Hon Cheung JA (giving the reasons for judgment of the Court):
上訴法庭法官張澤祐頒發上訴法庭判案理由書：

The applicant was convicted by Deputy High Court Judge Albert Wong (as he then was) sitting with a jury of one count of conspiracy to commit robbery and was sentenced to a term of imprisonment of 8 years and 6 months.  The applicant lodged an application for leave to appeal against conviction.  We heard the application and granted leave to appeal to the applicant and treating the application as the appeal proper, we allowed the appeal, quashed his conviction and set aside the sentence.  We also allowed the applicant to submit his affidavit dated 2 July 2015 as additional evidence in this application.
申請人被高等法院黃崇厚暫委法官（當時官階）及陪審團裁定一項「串謀犯搶劫罪」罪名成立及被判監八年六個月。申請人就定罪提出上訴許可申請。本庭在聆訊後給予許可，視申請為正式上訴，批准上訴及撤銷定罪及刑期。另外，本庭批准申請人提交他2015 年7月2日的誓章作為本申請的額外證據。

The respondent did not have any objection to the applicant’s application and appeal, nor did they request us to order a retrial.
答辯人不反對申請人的申請及上訴，亦不要求本庭命令案件重審。

The applicant had been remanded in custody since his arrest until we granted him bail on 14 July of this year.  The applicant had been remanded for a period of about 33 months.
申請人在被補後一直被羈押直至本年7月14日獲本庭給予保釋。申請人的羈押期約33個月。

We now give reasons for our judgment.
以下是本庭的判決理由。

Background
背景

1)Prosecution evidence
1)  控方證據

The charge alleged that the applicant conspired with Lam Hing to commit the offence of robbery between 1 March 2011 and 14 July 2011.
控罪指申請人於2011年3月1日至2011年7月14 日期間與林興串謀犯「搶劫」罪。

The prosecution relied on 4 prosecution witnesses, who were robbed by a male respectively on 16 May, 13 June, 13 July and 14 July 2011 inside a lift of a building while on their way back to the office after withdrawing money from the bank.
控方依賴四名控方證人，他們分別在2011年5月16 日、6月13日、7月13日及7月14日在銀行提取現金後返回辦事處途中，在大廈電梯內被一名男子搶劫。

PW1 and PW2 said that they were robbed of $20,000 on 16 May 2011 and 13 June 2011 respectively.  PW3 said that she was robbed of $2,000 on 13 July 2011.  PW5 said that she was robbed on 14 July 2011, but the robber was unable to rob her of any money.
控方第一及第二證人指在2011年5月16日及2011 年6月13日被分別搶去$20,000。控方第三證人指在2011年7 月13日被搶去$2,000。控方第五證人指在2011年7月14日被賊人行劫，但賊人未能搶去她的金錢。

In the present case, the prosecution also relied on PW4, that is, the Lam Hing as alleged in the charge, to give evidence against the applicant.
控方在案件亦依賴控罪所指的林興為控方第四證人，指證申請人。

Lam Hing was previously arrested by the police on 11 August 2011 and pleaded guilty to 3 counts of robbery in the High Court in June 2012, that is, the offences in relation to the robbing of PW1, PW2 and PW3.  The prosecution agreed that the charge against Lam Hing in respect of the robbery which took place on 14 July 2011 be dismissed.
林興早前在2011年8月11日被警方拘捕及在2012年6 月在香港高等法院承認三項「搶劫」罪，即涉及控方第一、第二及第三證人遭搶劫的罪行。控方同意撤銷針對林興2011 年7月14日劫案的控罪。

On 2 August 2012 Lam Hing indicated to the police that he was willing to be a witness for the prosecution to testify against the applicant for conspiring with him to commit the 4 robberies.  As Lam Hing agreed to give evidence in the present case, the Secretary for Justice granted him immunity from prosecution as regards the robbery that took place on 14 July 2011.
林興於2012年8月2日向警方表示願意成為控方證人，指控申請人與他串謀干犯該四宗劫案。就林興在本案同意作供，律政司就涉及2011年7月14日的劫案給林興免予起訴書。

In the present case, Lam Hing testified that he had plotted with the applicant to rob bank customers who withdrew money from the bank.  Their arrangement was to have the applicant entered the bank first, and he would call Lam Hing after he spotted a suitable money withdrawer.  Lam Hing would then follow these persons to their office, and rob them with a knife inside a lift.  Lam Hing admitted that, on 16 May 2011, he and the applicant had split the $20,000 obtained from the robbery he committed.  He also stated that he and the applicant had split the money obtained from the robbery on 13 June 2011.  Lam Hing stated that no money could be obtained from the robberies on 13 and 14 July 2011.  He stated that the four robberies were proposed by the applicant.  Lam Hing said that he had two previous robbery convictions.  He knew how to commit a robbery and did not require the applicant to teach him what to do.
林興在本案作供指他與申請人合謀搶劫在銀行提取金錢的客戶。他們的安排是申請人先進入銀行，看到合適的提款的人士後打電話給林興。林興接着尾隨這些人士回到他們的辦事處，在電梯內用刀進行搶劫。林興承認在2011年5 月16日與申請人攤分他劫得來的$20,000。林興亦指他與申請人攤分在2011年6月13日所劫得的金錢。林興指他在2011年7月13日及14日的劫案都取不到金錢。林興指四宗搶劫都是申請人建議的。林興說他以前有兩次「搶劫」罪定罪的記錄。他知道怎樣行劫，不需要申請人教他怎樣做。

PW7 was a police officer.  He admitted that the applicant was his informer.  Between July and August 2011, the applicant had provided information concerning some robberies involving Lam Hing, but the applicant did not specify the cases to which the information related.  After PW7 received the information, he reported the same to his superior officer.  PW7 denied that the applicant had tipped him off before each of the four aforesaid cases took place.  He also denied that the applicant had contacted him during the course of these four cases.
控方第七證人是一名警員。他承認申請人是他的線人。在2011年7月及8月期間，申請人曾經提供林興涉及一些搶劫案件的資料，但申請人沒有說明是哪一宗案。當控方第七證人收到資料後向上司會報。控方第七證人否認就上述四宗案件，申請人在每宗案件發生之前通知他。他亦否認在四宗案件發生過程裡面，申請人和他有接觸。

2)The applicant’s defence
2)  申請人的答辯

On 24 August 2011 the applicant was arrested in connection with the offences of robbery, and the police allowed him bail on his own recognizance of $500.  This went on until 15 March 2012 when the applicant was discharged unconditionally, and not subjected to any bail conditions.
申請人於2011年8月24日就有關「搶劫」罪被拘捕，而警方批准申請人以自簽$500保釋外出。延至2012年3月15 日，申請人獲無條件釋放，不用保釋。

On 17 October 2012 the police re-arrested the applicant.
2012年10月17日警方再次拘捕申請人。

The applicant gave evidence in his defence.  The applicant stated that Lam Hing had invited him to commit robbery together, but he refused.  The applicant knew a person named “Ah Fai”, who told him that Lam Hing would commit robbery.  The applicant said that he and “Ah Fai” entered into agreement to inform the police of Lam Hing’s actions in return for remuneration.  The applicant said that he had contacted PW7 prior to and during the course of these 4 robberies and provided him with information on Lam Hing’s actions.  PW7 instructed the applicant to look further into the matter, and to find out who Lam Hing’s partner in crime was.  The applicant said that, in those 4 incidents, he did show up in the banks concerned, but he was there merely to look further into the matter and to comply with PW7’s instructions, in order to find out who Lam Hing’s partner was.  He had absolutely no intention to commit any offence, nor was he there to look for targets to rob.
申請人作供自辯。申請人指林興曾經邀請他一同搶劫，但被他拒絕。申請人認識一名「阿輝」的人。「阿輝」對他說林興會進行搶劫。申請人說他與「阿輝」協議，將林興的行動通知警方，換取酬金。申請人說在該四宗搶劫事件發生之前及期間，他聯絡控方第七證人，提供林興行動的資料。控方第七證人吩咐申請人跟進，並且查清楚誰是林興的犯事拍檔。申請人說他在該四宗事件都曾經在相關的銀行出現，但不過是為跟進及遵從控方第七證人的吩咐，看看誰是林興的拍檔，他絕無犯罪的心，更不是在尋找搶劫的目標。

Lam Hing successfully obtained reduced sentence
林興成功減刑

On 28 November 2013, Lam Hing sought leave to appeal against his sentence of 6 years’ imprisonment out of time.  His grounds were that, after he was sentenced, he provided to the police the particulars of his accomplice, that is, the applicant, in the three robberies he was involved, and that enabled the police to successfully arrest the applicant.  Lam Hing also acted as a prosecution witness to testify against the applicant, and that enabled the prosecution to successfully prosecute the applicant.  The Court of Appeal allowed Lam Hing’s application and reduced his original sentence of 6 years’ imprisonment to one of 5 years.
林興在2013年11月28日就其六年監禁刑期提出逾期上訴申請，申請理由是他在判刑後向警方提供了他所涉及三宗「搶劫」案件的共犯申請人的資料，使警方成功拘捕申請人，林興更出任控方證人，指控申請人令控方成功檢控申請人。上訴法庭批准林興的申請，將他原本六年監禁的刑期改判為五年監禁。

The first ground of appeal
上訴理由一

The first ground of appeal advanced by the applicant was that the prosecution did not disclose to the defence important material which could affect the credibility of the main prosecution witness.  This constituted a material irregularity in the trial, and rendered the trial unfair.
申請人提出的第一項上訴理由是控方沒有向辯方披露可影響控方主要證人的可信性的重要資料，導致審訊存有關鍵性的欠妥及使審訊不公。

Undisclosed evidence
未披露的證據

In April 2015 the applicant successfully obtained legal aid through help from the Clinical Legal Education Centre of the University of Hong Kong.  The Legal Aid Department assigned the applicant’s current lawyers to represent him.  The applicant’s lawyers successfully obtained from the Department of Justice Lam Hing’s telephone communication records covering the material times of the offences.  However, the prosecution did not disclose these records to the applicant or his legal representative prior to the trial in the present case.
申請人在2015年4月透過香港大學臨床法律教育服務中心的協助，成功取得法律援助。法律援助署委派申請人現時的律師代表申請人。申請人的律師從律政司成功取得案發時林興的電話通訊記錄，但控方並沒有在本案審訊前將這些記錄披露給申請人或其代表律師。

Lam Hing’s evidence was that, having found a robbery target in the bank, the applicant would call Lam Hing to inform him of the target person’s features, and let Lam Hing carry out the robbery.  However, by referring to Lam Hing’s telephone communication records obtained from the police, it can be seen that in the three robberies that took place on 13 June, 13 July and 14 July 2011, contrary to what Lam Hing had claimed, the applicant actually did not have any telephone contact with Lam Hing during the time he remained in the bank or even before the robbery took place.
林興的證供是申請人在銀行尋找到打劫的目標後，會打電話給林興，告訴他目標人的特徵，讓林興進行搶劫。但從警方獲得林興的電話通訊記錄可見，在2011年6月13日、7 月13日及7月14日的三宗劫案中，申請人根本就沒有如林興的聲稱在銀行逗留期間以至搶劫發生前與林興電話聯絡。

Mr Eric Cheung, solicitor representing the applicant, submitted that Lam Hing clearly had the motive to frame the applicant.  Lam Hing once said in his evidence that it was his own speculation that the applicant provided information to the police to accuse him of committing the relevant robberies.  Many of the key issues referred to in Lam Hing’s oral testimony in court were self-contradictory, and there were repeated substantial inconsistencies between them and those in the version he stated to the police before the trial.  When Lam Hing was cross-examined on the inconsistencies between his evidence and his previous statements, he frequently exhibited an utterly unreasonable attitude, failed to provide logical explanations, and repeatedly admitted of lying to the police earlier.  The relevant phone records were obviously in direct contradiction to what Lam Hing said in his evidence, showing that he made up the facts to frame the applicant.  The prosecution did have the duty to provide the relevant material to the defence.  However, the prosecution did not do so, and up to the current moment, they had not explained why they did not do so.
代表申請人的張達明律師陳述，林興顯然有誣衊申請人的動機。林興在證供上曾說過他自己估計是申請人向警方提供資料指控他干犯有關劫案。林興在法庭上的口供有不少關鍵問題上前言不對後語，這些與他在審訊前向警方所陳說的版本存有多次實屬矛盾。林興在被盤問有關他的證供與早前所作的陳述有矛盾之處，經常表現蠻不講理的態度及不能作出合理解釋及多次承認早前向警員說慌。有關的電話記錄跟林興的證供明顯有直接矛盾，顯示他是捏造事實誣衊申請人。控方是有責任向辯方提供有關的資料，但控方沒有這樣做及到現時亦沒有解釋為何沒有這樣做。

Ms Anna Lai, counsel for the respondent, explained to us about the handling of the telephone communication material in the present case.  The police had requested for and obtained from the telecommunications company the telephone records of Lam Hing and the applicant from June to July 2011 (the telecommunications company no longer retained the communication records for the month of May).  These records were saved in the office computer of an inspector formerly in charge of the case.  The police had sought legal advice from the Department of Justice in October 2011.  Both the documentary file and the accompanying comprehensive report submitted did not mention the investigation on the mobile phones of Lam Hing and the applicant, nor the call records obtained.  In August 2012, when another inspector formerly in charge of the case sought legal advice from the Department of Justice, he prepared another comprehensive report dated 16 August 2012, which stated inter alia that due to the lapse of time, the call records of Lam Hing and the applicant could not be obtained.  Having received enquiries from the solicitors firm concerning the phone records, the inspector currently in charge of the case looked up the documentary file of this case, and confirmed that it contained no printed copy of any telephone call records.  Subsequently, this inspector checked the office computer, and found from it the telephone call records provided by the telecommunications company earlier.  The police subsequently handed over a printed copy of the relevant telephone records to the solicitors firm.
代表答辯人的黎婉姬大律師向本庭解釋本案電話通訊資料處理一事。警方曾向電訊公司要求及獲得林興與申請人在2011年6月至7月的電話記錄（電訊公司已不保留5月份通訊的記錄）。這些記錄儲存在本案前案件主管督察的辦公室的電腦內。警方曾就本案在2011年10月向律政司尋求法律意見，上呈的文件檔案及其綜合報告均沒有提及對林興及申請人手提電話的調查及獲得的通話記錄。另一位前案件主管督察在2012年8月就尋求律政司法律意見而撰寫日期為2012年8 月16日的綜合報告,其中內容指因時間流逝而得不到申請人及林興的通話記錄。本案現任案件主管督察在接獲律師行就電話記錄查詢後，查閱本案的文件檔案，確認當中沒有任何電話通話記錄的列印本。其後該主管檢視辦公室電腦，從中找到當日由電訊公司提供的電話通話記錄。警方其後將有關的電話記錄的列印本交予律師行。

Prosecution's duty to disclose material
控方披露資料責任的原則

In HKSAR v. Lee Ming Tee and The Securities and Futures Commission (2003) 6 HKCFAR 336, the Court of Final Appeal stated clearly that it was the prosecution's duty to disclose to the defence relevant material (including information) which may undermine its case or advance the defence case.  The stringent and firm obligation of disclosure will maintain the criminal trial as the appropriate forum for determining the truth or falsity of criminal allegations.
香港終審法院在香港特別行政區對李明治對證劵及期貨事務監察委員會(HKSAR  v. Lee Ming Tee and The Securities and Futures Commission) (2003) 6 HKCFAR 336 一案清晰指出，控方的責任是向辯方披露可能會削弱控方案情或對辯方案情有幫助相關資料（包括資訊）。嚴謹和堅定的披露責任，將使刑事審訊得以繼續成為判定刑事指控的真偽的適當訴訟方式。

In HKSAR v. Shum Leung (transliteration) (CACC632/2002), the Court of Appeal ruled that, as the prosecution did not disclose certain material evidence, the conviction in that case was unsatisfactory, with the result that the appeal was allowed and the conviction quashed.
上訴法庭亦在香港特別行政區訴沈良 (CACC 632/2002)一案裁決由於控方沒有披露某些關鍵性的證供，令定罪的裁決不穩妥，從而批准上訴，撤銷定罪。

Our views
本庭的意見

In the present case, the evidence of the four victims in the robberies cannot directly accuse the applicant of committing the subject offence.  The only evidence that can connect the applicant to the offence comes from Lam Hing, who was a tainted witness.  He himself had committed criminal offences, yet at the same time he testified that the applicant was the accomplice in those four robberies.  The court must evaluate the evidence from a tainted witness with care and prudence.  This is because a tainted witness may testify against another person for he wants to save his own skin or exonerate himself, or he wishes to receive a reduced sentence or seek vengeance, or for other reasons.
在本案，四名被劫的受害人的證供不能直接指控申請人干犯本案控罪。唯一可以將申請人與控罪連上關係的證供來自林興。林興是一名污點證人，他本身干犯刑事罪行，但同時卻指證申請人是該四宗劫案的共犯。法庭在處理這些污點證人的證供時必須小心謹慎審核，原因是這些污點證人可能是為了自保、脫罪或希望獲得減刑、報仇或有其他原因指證另外一名人士。

In the present case, Deputy Judge Wong had already repeatedly given the jury detailed directions that, if they could not be sure that Lam Hing’s accusations were true, they had to find the applicant not guilty. However, we are of the view that the relevant telephone communication records would substantively and materially affect the jury’s evaluation on whether Lam Hing’s testimony was credible.  If the jury had access to such independent and objective material during the trial, it is very likely that they would not have accepted Lam Hing’s evidence and, consequently, would return a verdict of not guilty on the applicant.  In our view, the prosecution have not discharged their duty to disclose the material.  This slip had deprived the jury a full grasp of the facts necessary for arriving at the correct verdict, the conviction was thus unsafe.  It is on this ground we allow the appeal.
在本案，雖然黃法官已經重複及詳細指導陪審員，若他們不能肯定林興的指控屬實的話，他們必須判申請人無罪，但本庭認為有關的電話通訊記錄是會實質及關鍵性地影響陪審團對林興證供是否可信的審核。若陪審團在審訊時獲得這些獨立及客觀的資料，他們極可能是不會接納林興證供，以致裁定申請人被控的罪名不成立。本庭認為控方沒有履行披露資料的責任，這失誤令陪審團未能掌握全面的案情，作出正確的裁決，從而令定罪不穩妥。基於這個理由，本庭批准上訴。

In our view, the Department of Justice and the police need to look further into the way the police handled those telecommunications records in the present case in order to prevent similar incidents from happening in the future.
本庭認為律政司及警方需要跟進本案警方處理該電訊記錄的方法，避免再次發生同類事故。

Mr Cheung also submitted that there was direct and clear guidance with regard to the exercising of due diligence on the prosecutor’s part to disclose relevant material in The Statement of Prosecution Policy and Practice – Code for Prosecutors issued by the Department of Justice in 2009, but the guidance was shortened in the Prosecution Code 2013 published in 2013.  We are not required to discuss the contents of these two Codes, but we hope the Department of Justice will review the relevant contents to find out whether any improvement is needed.
張律師亦提出律政司2009年頒布的「檢控政策及常規」，就檢控人員盡職披露相關資料的責任有直接清晰的提點，但這些提點卻在新的2013年發布的「檢控守則2013」中被簡略刪掉。本庭不須就這兩份守則的內容作出討論，但冀律政司會檢討有關內容是否需要改善。

The second ground of appeal
第二項上訴理由

In his second ground of appeal, the applicant submitted that there was a lurking doubt in the present case, and the prosecution case lacked inherent probability.  As a result, the applicant’s conviction was neither safe nor satisfactory and had to be quashed.  As we have allowed the appeal on the first ground and quashed the conviction, it is unnecessary to discuss this second ground of appeal.
申請人的第二上訴理由是本案存有「潛在疑點」(lurking doubt)，控方案情缺乏內含潛在可能性(inherent probability)，導致對申請人的定罪不安全或不穩妥，應予撤銷。由於本庭已經根據第一上訴理由批准上訴，撤銷定罪，故此無須討論這第二項上訴理由。

Eric Cheung, Solicitor Advocate, instructed by ONC Lawyers, assigned by Director of Legal Aid, for the applicant
答辯人：由律政司高級助理刑事檢控專員黎婉姬代表。

Anna Lai, Senior Assistant Director of Public Prosecutions of the Department of Justice, for the respondent
申請人：由法律援助署委派柯伍陳律師事務所轉聘訟辯律師張達明代表。