Hon Chu J (handing down the reasons of judgment of the Court):
高等法院原訟法庭法官朱芬齡頒發上訴法庭判案理由書 ：

The two Applicants were jointly charged with one count of “Causing grievous bodily harm with intent” and one count of “Wounding with intent”, both contrary to section 17(a) of the Offences Against the Person Ordinance, Cap. 212, Laws of Hong Kong. After trial, District Judge Mary Yuen convicted them of both charges on 14 April 2010 and sentenced the 1st Applicant to Training Centre and the 2nd Applicant to three years’ imprisonment. They were aggrieved by the conviction and applied for leave to appeal. Having heard the submissions by both the prosecution and the defense, this Court allows the application by the 1st Applicant. Treating the leave application as the appeal, this Court quashes both the conviction and sentence of the 1st Applicant. In respect of the leave application by the 2nd Applicant, it is dismissed by this Court. The reasons for the judgment are given below.
兩名申請人同被控一項「有意圖而導致身體受嚴重傷害」罪，及一項「有意圖而傷人」罪，兩者都是違反香港法例第 212章《侵害人身罪條例》第 17(a)條。經審訊後，區域法院法官源‍麗‍華在2010 年4 月14 日裁決兩人兩項罪名均成立，並分別判令把第‍一申請人送往教導所羈押及第‍二申請人監禁三年。兩名申請人不服定罪裁決，提出上訴許可申請。本庭經聆聽控辯雙方的陳詞後，批准第‍一申請人的申請，並視申請為上訴，批准上訴，撤銷定罪的裁決和判刑。本庭同時拒絕第‍二申請人的許可申請。有關的判案理由，本庭現給予說明。

Particulars of the charges
控罪內容

The particulars of the first charge against the two applicants are that on the 22nd day of February, 2009, on Ground floor, near Fung Yam House, On Yam Estate, Kwai Chung, together with other persons unknown, unlawfully and maliciously caused grievous bodily harm to Mok Wai Tung, with intent to do him grievous bodily harm. The particulars of the second charge are that on the same day at the same place, the two applicants together with other persons unknown, unlawfully and maliciously wounded Wong Chi Cheung with intent to do him grievous bodily harm.
兩名申請人所面對的第‍一項控罪指他們在2009 年2 月22 日在葵涌安蔭邨近豐蔭樓地下外，連同其他身份不詳人士，意圖使莫‍衛‍東身體受嚴重傷害而非法及惡意導致他的身體受嚴重傷害。第‍二項控罪指兩名申請人在同日同地點，連同其他身份不詳人士，意圖使黃‍智‍祥身體受嚴重傷害而非法及惡意傷害他。

Facts of the case
案情

According to the prosecution evidence, the two victims Mok Wai Tung (PW1) and Wong Chi Cheung (PW2) were chatting with two friends (i.e. altogether four persons) at a chess table in a park off Chak Yam House, On Yam Estate in Kwai Chung at 12:10 a.m. on 22 February 2009. Suddenly a group of 10 odd males arriving in three taxis rushed towards the two victims and their friends. The two friends managed to escape but the two victims were caught up and attacked by those males. PW2 said that he was pinned down on the ground by one male and was kicked and fisted by three to four other males. He was also hit hard on his head by iron pipes. After the assailants left, he saw PW1 lying on the ground not too far away from him and bleeding in his head.
控方的證據顯示在2009 年2 月22 日凌晨12 時10 分，兩名受害人莫‍衛‍東(PW1)和黃‍智‍祥(PW2)連同兩名朋友共四人在葵涌安蔭邨澤蔭樓外的棋檯休憩處閒談。突然有10 多名男人分別乘3 部的士而來，並衝向兩名受害人和他們的朋友。他們兩名朋友成功逃脫，但兩名受害人則被追上和遭受襲擊。據PW2說，他被一名男子按在地上，有3 至 4 名男子向他拳打腳踢 ，亦有人以鐵管猛力打他的頭部。當襲擊者離去後，他看到PW1躺在離他不遠處的地上，頭部正在流血。

The two victims were sent to hospital for treatment. The doctor diagnosed that PW1 suffered serious injuries to the head, bleeding and swelling at the scalp of the top right skull, multiple bruises at the scalp near the left temple and fracture at the left orbital bone. He was hospitalized at the Intensive Care Unit for a day before he was transferred to the Neurosurgical Unit for treatment. He was discharged on 28 February. As for PW2, the doctor diagnosed that he suffered 4 lacerations at the rear of the head, partial tenderness at the left hand and fracture at the 4th metacarpal bone of the left hand. Twenty stitches were applied to his lacerations and his fractured left hand had to be kept in plaster cast. PW2 was discharged on 23 February.
兩名受害人被送到醫院接受治療。醫生診斷PW1的傷勢是：頭部嚴重受傷，右顱骨頂部頭皮血腫，左顳位置頭皮有多處瘀傷，以及左眼眶骨骨折。他在深切治療部留院一天後轉到腦神經外科接受治療，在2 月28 日出院。至於PW2，醫生診斷他的傷勢是：頭部後方有4 處裂傷，左手局部位置觸痛及左手第‍四節掌骨骨折。他裂傷的傷口須縫合20 針，而左手骨折以石膏板固定位置。PW2在2 月23 日出院。

In the morning on 25 February 2009, the police arrested the 1st and the 2nd Applicants for “Causing grievous bodily harm with intent” and “theft” respectively. When the 1st Applicant was arrested, his mother was present. Under caution, the 1st Applicant said that he understood and had nothing to say. After he was taken to the police station, the police took a written record of interview from him. According to the record of interview, the 1st Applicant admitted that at the early hours on 22 February, he together with the 2nd Applicant and another 6 persons attacked a group of about 10 men outside the Shopping Arcade in On Yam Estate. Those men tried to escape immediately, but one male in red shirt could not run off and was kicked and fisted by the two applicants and their companions. Shortly afterwards, ten odd men arrived with some holding iron pipes in their hands. They had a fight with two applicants and his companions. They were no match for the applicants’ group and the 2nd Applicant and his companions snatched two iron pipes from them. As they were trying to escape, one man in black shirt was caught by the 1st Applicant and his companions, then the 2nd Applicant and his companions hit him repeatedly with iron pipes.
警方在2009 年2 月25 日早上以嚴重傷人罪和盜竊罪分別拘捕第‍一和第‍二申請人 。第‍一申請人被捕時 ，其母親在場 。在警誡下 ，第‍一申請人回答明白和沒有話要說。他被帶到警署後，向警方提供了一份會面記錄。根據該會面記錄，第‍一申請人承認在2 月22 日凌晨時間與第‍二申請人及另外6 人，在安蔭邨商場外襲擊一群為數約10 人的男子。那些男子立時逃跑，但其中一名穿紅色上衣的男子走避不及，被兩名申請人和同伴拳打腳踢。不久，有10 多名男子來到，當中有人手持鐵管，他們與兩名申請人及其同伴對打，但因不敵而被第‍二申請人和同伴奪去兩支鐵管。在他們逃跑時，其中一名穿黑色上衣的男子被第‍一申請人和同伴捉住，第‍二申請人和同伴以鐵管打他的頭多次。

When the 2nd Applicant was arrested and cautioned, he indicated that he understood. Later that day the police took a written record of interview from him inside the police station. He made no confession in the record of interview. In the afternoon on the following day, he had an interview with the police again. During the interview, the police showed him aforesaid record of interview made by the 1st Applicant and the record of interview made by another arrested person. Then the 2nd Applicant indicated that he got something to say. After he was reminded of his caution, the 2nd Applicant made certain confessions. The 2nd Applicant said that he together with the 1st Applicant and another six companions dashed towards and attacked a group of about 10 men who were near the chess table in On Yam Estate. He only kicked a man in red shirt a few times. Then the men who had run off returned with iron pipes and the two parties had a fight. During the fight, his companions snatched the iron pipes from the other party and assaulted one man in black shirt in that group with the iron pipes. The 2nd Applicant said he only kicked that man a few times with his feet.
至於第‍二申請人，他在被拘捕時，經警誡後表示明白。他在同日較後時間在警署內向警方提供一份會面記錄，當中沒有作出任何招認。翌日下午他再度與警方會面，期間警方向他展示第‍一申請人上文提及的會面記錄及另一名被捕人士的會面記錄。之後第‍二申請人表示有話要說。在被提醒警誡後，第‍二申請人作出了一些招認。第‍二申請人說他連同第‍一申請人和另外6 名同伴在安蔭邨棋檯附近向一群為數約10 多名的男子衝去和追打，而他只是用腳踢了一名身穿紅色上衣的男子幾腳。後來逃去的男子帶同鐵管折返，雙方發生打鬥，期間他的同伴搶去對方的鐵管，並以此毆打對方其中一名穿黑色上衣的男子。第‍二申請人說他只是用腳踢了這名男子幾腳。

Findings by the trial judge
原審法官的裁決

At the trial, the prosecution and the defense had no dispute that PW1 and PW2 were attacked and suffered the aforesaid injuries. The disputes between the prosecution and the defense were mainly about whether the 1st and 2nd Applicants took part in attacking the two victims. In this regard, the prosecution relied solely on the records of interview given by the two applicants.
在審訊時，抗辯雙方對於PW1和PW2受襲一事和他們因此而蒙受上文提及的傷害並無爭議。控辯雙方主要的爭議在於第‍一和第‍二申請人是否有參予襲擊兩名受害人。就此點而言，控方唯一依賴的證據是兩名申請人的會面記錄。

The 1st and 2nd Applicants objected to the Court’s admission of their records of interview as evidence. They respectively alleged that the police intimidated and used violence on them, and that the content of the records of interview did not come from them. Moreover, the 1st Applicant mentioned in paragraph (3) of his Grounds of Objection that when he was in the detention room, he made a request to a patrolling male police officer in uniform that he wanted to phone his family for legal representation. However his request was turned down because the officer-in-charge had given instruction that the case was serious and precaution must be taken against the 1st Applicant tipping off any outsiders.
第‍一和第‍二申請人均反對法庭採納他們的會面記錄成為證據。他們分別提出曾遭受警務人員施以威嚇和暴力，以及會面記錄的內容並非由他們提供的。此外，第‍一申請人的書面反對理由的第 (3) 段提出，他在臨時羈留室時曾向一名巡視的軍裝男警員要求致電家人請律師，但被拒絕，原因是案件主管指示案情嚴重，恐防第‍一申請人通風報信。

To deal with the issue as to whether the records of interviews by the two applicants should be admitted as evidence, the trial judge adopted the alternative procedure. The two applicants elected to give evidence in respect of the special issue. However in the trial of the general issue, they elected not to give evidence.
原審法官就兩名申請人的會面記錄應否被接納為證據的爭議，採用了交替程序。兩名申請人就此特別議題均選擇作供。就審訊的一般議題，他們則選擇不作供。

The trial judge was satisfied that the records of interview were taken from the two applicants voluntarily, and that there was no unfairness in the case that justified the exercise of her discretion to exclude the confessions made by the two applicants. In respect of paragraph (3) of the 1st Applicant’s Grounds of Objection, the trial judge said the following in her Reasons of Findings in the Alternative Procedure:
原審法官信納有關的會面記錄是兩名申請人在自願的情況下作出，而案中亦沒有不公平之處以致法庭須行使酌情權摒除兩名申請人所作出的招認。有關第‍一申請人書面反對理由的第 (3) 段，原審法官在有關交替程序的裁決理由內有以下說明：

D1更指當他在警署內收到羈留人士通告後獲知他有權聘用律師，他向當值軍裝警員要求致電家人請律師。軍裝警員其後向他指出須慎防D1通風報訊，不讓D1致電家人。D1相信由於他不能致電家人，他應也不能聘用律師。	‘4. D1 even said that inside the police station, he was given a “Notice to Detained Persons” that informed him of his rights to hire a lawyer. He made a request to the uniformed officer on duty to phone his family for a lawyer. The uniformed office then said precaution must be taken against D1 tipping off outsiders, so D1 was not allowed to phone his family. D1 believed that as he was not allowed to phone his family, he probably would not be allowed to hire a lawyer.
「4.

本席接納Pannu督察沒有特地指令下屬收去被告電話或發出『no outside contact』的指令。值日官指出在他巡視羈留室時[D1]並無要求聘用律師。本席接納[D1]有可能要求致電家人，他並沒有要求聘用律師，警方並無剝奪[D1]聘用律師的權利。」	31.	I am satisfied that Inspector Pannu neither gave an order to his subordinates for the special purpose of taking away the defendants’ mobile phones nor issued a “no outside contact” order. The duty officer said that when he patrolled to the detention room, [D1] did not make any request for hiring a lawyer. I accept that [D1] could have requested to make a phone call to family members, but he did not request to hire a lawyer. The police did not deprive [D1] of his rights to hire a lawyer.’
31.

The trial judge was also satisfied that the prosecution had proved the two charges beyond reasonable doubt. She accordingly convicted the two applicants of the charges.
原審法官亦滿意控方已在毫無合理疑點下證實兩項控罪，因此裁定兩名申請人的罪名成立。

Appeal application by the 1st Applicant
第一申請人的上訴申請

The 1st Applicant’s application for leave to appeal consists of two parts. The first part is to appeal against the trial judge’s decision on the special issue regarding whether his record of interview should be admitted as evidence, and the second part is against the conviction of the charges.
第‍一申請人的上訴許可申請分兩部份，分別針對原審法官有關其會面記錄可被採納為證據的特別議題的裁決，以及有關控罪的定罪裁定。

In respect of the decision on the special issue, the 1st Applicant put forth three grounds of appeal. The main thrust of his argument was that his request to call his family to hire a lawyer was refused. Firstly, the 1st Applicant alleged that the prosecution called neither the duty officer who was inside the report room at the material time nor the officer who patrolled to the detention room. Therefore he argued that the prosecution failed to prove beyond reasonable doubt that the 1st Applicant’s record of interview was not taken after his request to phone his family for legal representation was denied. Secondly, the 1st Applicant alleged that after he had given evidence on the special issue, the trial judge erroneously allowed the prosecution to call the duty officer to rebut his evidence on the request to make a phone call to his family. The 1st Applicant’s third ground of appeal was that the trial judge made mistakes in the way she understood and evaluated the evidence.
就特別議題的裁定，第‍一申請人共提出3 項申請理由，主要環繞他要求致電家人請律師被拒這一點。首先，第‍一申請人指控方沒有傳召所有在相關時候在報案室當值和負責巡視羈留室的警務人員，故此控方未能在沒有合理疑點的情況下，顯示第‍一申請人不是在被拒絕致電家人請律師的情況下作出會面記錄。其次，第‍一申請人指原審法官在他就特別議題作供完畢後，錯誤地批准控方傳召值日官以反駁他指曾要求致電家人的證言。第‍一申請人的第‍三項理由是原審法官在理解和處理證據方面出錯。

The 1st Applicant alleged that his record of interview was taken from him involuntarily and unfairly, and one of the reasons for this allegation was that when he was detained, he was not allowed to call his family for legal representation because the officer-in-charge sought to prevent him from tipping off any outsiders. The prosecution called Inspector Pannu (PW5), the officer-in-charge, who agreed that before the action of arrest, he had briefed his team of officers to seize the mobile phones of arrested persons in order to prevent them from contacting outsiders. PW5 also agreed that he gave an order to the duty officer that the arrested persons should have “no outside contact”.
第‍一申請人指其會面記錄是在不自願和不公平情況下作出的其中一項理由，是他被羈留時曾要求致電家人聘請律師但被拒絕，原因是案件主管恐防他通風報訊。控方傳召了案件主管Inspector Pannu(PW5)。他同意在執行拘捕行動前曾訓示隊員要檢去被捕人士的手提電話，以防止他們聯絡其他人。PW5亦同意他向值日官下達了指令，不許被捕者與外界接觸(no outside contact)。

When the trial judge gave her Reasons of Findings in the Alternative Procedure (paragraph 31), she said that PW5 neither ordered his subordinates to take away the applicant’s phone nor made any “no outside contact” order. Her decision in this regard was not in accordance with the evidence of the case.
就這方面，原審法官在有關交替程序的裁決理由(第 31 段)中指PW5沒有指令下屬取去申請人的電話或發出「no outside contact」的指令，這項裁斷與審訊的證據並不相符。

After the 1st Applicant gave evidence on the special issue, the prosecution called the duty officer (PW7) of the report room to rebut the 1st Applicant’s allegation that he made a request to his family for lawyers but it was denied. PW7 confirmed that if the officer-in-charge had given such an order, the officer(s) on duty would carry it out accordingly and would neither allow the suspects to have any outside contact nor allow them to call their families. PW7 said that he personally had not received the 1st Applicant’s request to call his family, nor had he received such a request through other officers. Moreover, he saw no record of such a request in the computer record. However PW7 agreed that, including him, there could have been altogether four police officers who had patrolled to the detention room. Some officers could have received the request from the 1st Applicant to call his family during the patrol, but did not notify him or make any record in the computer record.
控方在第‍一申請人就特別議題作供完畢，亦傳召了報案室的值日官(PW7)，以反駁第‍一申請人指他要求致電家人請律師但被拒的說法。PW7確認若果案件主管有此指令，值日警員會確實執行，不允許疑犯接觸外界，亦不會批准他們致電家人。PW7表示他本人沒有直接或透過其他警務人員收過第‍一申請人要求致電家人的請求，他從電腦記錄上亦沒有看到有這樣的要求。然而，PW7同意連同他在內，當天一共有4 名警務人員可能巡視羈留室，而有可能有警員在巡視時收到第‍一申請人關於致電家人的要求，但沒有通知他和記錄在電腦檔案內。

In the Reasons of Findings in the Alternative Procedure (paragraph 31), the trial judge held that the police did not deprive the 1st Applicant of the right to hire a lawyer because the 1st Applicant might have requested to call his family, but he did not request to hire a lawyer. Mr. Jim submitted to this Court that having found that the 1st Applicant might have requested to phone his family, how could the trial judge be certain that he did not request for a lawyer. We agree that it is not easy to understand the findings by the trial judge in this regard, especially when the 1st Applicant testified that he “had made a request to the uniformed police officer on duty to make a phone call to his family for legal representation” (See paragraph 4 of the Reasons of Findings in the Alternative Procedure). The trial judge did not explain why she was satisfied that the 1st Applicant’s request was only to phone his family and did not involve the hiring of a lawyer. We are of the view that the trial judge’s finding that the 1st Applicant did not request for legal representation was unsafe.
原審法官在交替程序的裁決理由(第 31 段)，裁斷第‍一申請人有可能要求致電家人，但沒有要求聘請律師，故此警方並沒有剝奪他聘請律師的權利。詹‍大律師向本庭陳詞，指出原審法官既接納第‍一申請人有可能要求致電家人，何以卻認定他沒有要求聘請律師。本庭同意原審法官這方面的裁斷不容易理解 ，尤其是鑑於第一申請人的證供是他曾「向當值軍裝警員要求致電家人請律師」(交替程序裁決理由第4 段)。原審法官並沒有說明她何以祇接納第一申請人的要求限於致電家人，不涉及聘用律師。本庭認為原審法官指第一申請人沒有要求聘用律師的裁斷有欠穩妥。

Given that the 1st Applicant’s request to call his family for legal representation was turned down, the court should consider whether his record of interview should be excluded on the basis that it was given under unfair circumstances and that it would be unfair to the 1st Applicant to admit the record of interview as evidence in the trial.
在第一申請人要求致電家人請律師被拒的情況下，法庭需要考慮的是他的會面記錄是否在不公平的情況下取得，以及在審訊時接納該份會面記錄作為證據是否對第一申請人造成不公平，以致應該把會面記錄摒除。

Article 35 of the Basic Law provides that Hong Kong residents shall have the right to confidential legal advice and choice of lawyers for timely protection of their lawful rights and interests. Similarly under the common law principles, a suspect under arrest shall also have the right to legal representation and advice. This is an important right to have.
《基本法》第35 條規定，香港居民有權得到秘密法律諮詢和選擇律師及時保護自己的合法權益。同樣，在普通法的原則下，被捕的疑犯是有權獲得律師的協助和獲取法律諮詢。這是一項重要的權利。

In this case, when the 1st Applicant was arrested, the police officer administered verbal caution on him. He clearly replied that he understood and had nothing to say. When he was taken to the police station, he received a Notice to Detained Persons informing him of his right to legal representation. He made a request to call his family for legal representation but it was refused. Then he was interviewed by the police and he made certain confessions which became the only incriminating evidence against him in the case. We are of the view that under such circumstances, the record of interview taken from the 1st Applicant could have been taken unfairly, and that it might also be unfair to the 1st Applicant to admit such evidence as evidence in the trial against him. Therefore, the errors by the trial judge in the understanding of the evidence and finding as to whether the 1st Applicant had been deprived of his right to legal representation had, in fact, a significant impact on the safety of her decision that the record of interview was made voluntarily and fairly. Mr. Lui for the prosecution also indicated that they could not be confident that if the trial judge had correctly held that the 1st Applicant had indeed made a request for legal representation but it was refused, she would have made the same decision to admit the record of interview as evidence.
在本案中，第一申請人被拘捕時，在警員向他施行口頭警誡時，明確回應他明白和沒有話要說。在被帶到警署時，他收到羈留人士通知，知悉有權得到律師的協助。他要求致電家人請律師但被拒絕。他之後與警方會面，作出若干招認，這些招認是案中唯一可指證他的證據。本庭認為在此情況下，第一申請人的會面記錄有可能是在不公平的情況下錄取，而把它採納作為對第一申請人的證據亦有可能對第一申請人的審訊造成不公平。因此，原審法官在理解相關證供，以及裁斷第一申請人聘請律師的權利是否遭剝奪時的錯誤，實嚴重影響她對會面記錄是否在自願和公平的情況下作出的裁決的穩妥性。代表控方的雷‍大律師亦表示控方不能有信心地說，若果原審法官正確裁斷第一申請人曾要求聘請律師但被拒絕的話，她就是否採納會面記錄作證據的決定將會是一樣。

In view of the above reasons, we consider that the trial judge’s decision to admit the 1st Applicant’s record of interview is unsafe. Given that the record of interview was the only incriminating evidence against the 1st Applicant in the trial, the decision to convict the 1st Applicant is therefore unsafe.
基於上述理由，本庭認為原審法官採納第一申請人的會面記錄的裁決有欠穩妥。有鑑於會面記錄是案中唯一指證第一申請人的證據，第一申請人的定罪裁決遂有欠穩妥。

It then follows that we need not deal with the other grounds of the application put forth by the 1st Applicant.
在此情況下，本庭無須處理第一申請人所提出的其他申請理由。

Appeal application by the 2nd Applicant
第二申請人的上訴申請

The 2nd Applicant put forward three grounds to support his application for leave to appeal.
第二申請人提出三項理由支持其上訴許可申請。

The first ground by the 2nd Applicant was in relation to the decision by the trial judge to admit his record of interview as evidence of the case on the basis that it was given voluntarily. The trial judge said in her Reasons of Findings that the two applicants’ allegations against the police were incredible, and in respect of their allegations of having been severely beaten by the police, the trial judge held that “they suffered no physical injuries and made no complaint”. The 2nd Applicant argued that the trial judge was wrong when she said that he “had made no complaint” because at the first hearing before the Tsuen Wan Magistrates’ Courts, he had already made a complaint against the police for coercing him to sign the records of interview by force. The 2nd Applicant also submitted that the trial judge erred when she did not consider whether he had exercised the right to remain silent before he made the complaint to the magistrate.
第二申請人的首項理由關乎原審法官接納其會面記錄為他自願提供的，及把它們採納成為證據的裁決。原審法官在裁決理由書中指出兩名申請人對警方的指控不可信；而有關他們遭警方毒打這一點，原審法官認為「他們並無體傷，亦無投訴」。第二申請人認為原審法官說他「亦無投訴」是不對的，因為他在荃灣裁判法院首次提訊時，已向法庭投訴警員以暴力強逼他簽署會面記錄。第二申請人亦指原審法官錯誤地沒有考慮，他在向裁判官作出投訴之前的期間內是否行使保持緘默的權力。

In respect of the two applicants’ complaints to the magistrate at the first hearing that the police had coerced them to sign the records of interview by force, the trial judge expressly dealt with this in her Reasons of Findings in the Alternative Procedure. She had obviously taken this point into consideration. As pointed out by the prosecution, the matter was first heard on 18 September 2009. In other words, it was not until seven months after the 2nd Applicant had signed the records of interview that he lodged the first complaint that the police had used force on him. We are of the view that reading from the wordings and logic of the Reasons of Findings by the trial judge, the phrase “had made no complaint” means no immediate complaint was made by the two applicants, and does not suggest that they never complained.
就兩名申請人在案件首次提訊時，曾向裁判官投訴警方以暴力強逼他們簽署會面記錄這點，原審法官在交替程序的裁決理由書有明確提及。顯然，她有考慮此點。誠如控方指出，案件是在2009 年9 月18 日首次提訊。換而言之，第二申請人是在簽署會面記錄過後近7 個月才首次投訴被警方施以暴力。本庭認為觀乎原審法官的裁決理由書的行文理路，「亦無投訴」是指兩名申請人沒有即時作出投訴，而不是指他們從沒有投訴。

The 2nd Applicant also said that he was exercising his right of silence when he did not make any complaint before the first hearing, and that no adverse inference should be drawn against him. We do not accept his argument. We are of the view that when the trial judge considered whether the 2nd Applicant’s allegation was credible, she was entitled to take into account factors in relation to why the 2nd Applicant did not make immediate complaint so as to decide whether the allegation was a recent allegation or fabrication. Moreover, when the trial judge held that the 2nd Applicant’s allegation was not credible, she also took into account other relevant circumstances, including that although the 2nd Applicant alleged that the police was violent towards him on the day of arrest and that they invented the contents of the record of interview, there was no confession in the record of interview made on that day. On the contrary, the 2nd Applicant said that before he signed the 2nd record of interview in which his confession was contained, the police did not use violence on him. We are of the view that the trial judge had correctly considered and analyzed the relevant evidence, including the time and circumstances under which the 2nd Applicant made his first allegation against the police. The submission by the 2nd Applicant that the trial judge had not followed the legal principles and had wrongly directed herself was not substantiated. The first ground of his application cannot stand.
第二申請人亦指他在案件首次提訊之前沒有作出投訴，是行使其緘默權，故不應對他作出不利的推斷。本庭不接受這項論據。本庭認為原審法官在考慮第二申請人的指控是否可信時，有權考慮那些指控是否新近提出或捏造，第二申請人有沒有即時作出投訴乃相關的因素。此外，原審法官裁斷第二申請人的指控不可信時，亦有考慮其他相關的情況，包括第二申請人指稱警方人員在拘捕他當天以暴力對待及自行杜撰會面記錄的內容，但該天的會面記錄卻未載有招認。反之，按第二申請人的說法，在簽署第二份載有招認的會面記錄前，警方並沒有施以任何暴力。本庭認為原審法官已正確考慮和分析相關的證據，包括第二申請人是在何時和甚麼情況下首次作出對警方的指控。第二申請人指原審法官沒有按法律原則和錯誤引導自己的陳詞缺乏支持理據。他的第一項申請理由不能成立。

The second ground by the 2nd Applicant was that the trial judge had made a significant procedural mistake when she allowed PW5 (Inspector Pannu) to give his evidence in Chinese after making an oath in English. We do not see any merit in this ground.
第二申請人的次項申請理由是原審法官容許PW5 (Inspector Pannu)採用英語宣誓後，以中文作出證供，因此犯上重大的程序謬誤。本庭認為這項理由不可取。

First of all, the transcripts of the recordings of the PW5’s testimony do not show that he all along or most of the time answered the prosecution and the defence’s questions directly in Cantonese. On the contrary, the transcripts show that the trial judge had at one stage asked the witness to clarify his answers in view of the translation difficulties (T5 N-R), and that the court interpreter had asked the Counsel to repeat his questions (T7 P-Q). Moreover, it is true that in court proceedings a witness should make an oath in the language that he gives his testimony. However, the court will not conclude that the witness’s testimony is invalid and exclude it merely because he gives his evidence in a language which is different from that he takes his oath. Nor will the Court of Appeal consider it as a major procedural irregularity of the original trial, so as to rule that the verdict of the trial judge was unsafe and should be set aside. In his submission to this Court, Mr. Yeung cast doubt on PW5’s command of the Chinese language. However, PW5 said under the cross-examination by Mr. Jim, Counsel for the 1st Applicant, that he understood Cantonese and he communicated with the other officers in the punti dialect (T8 K-M). Furthermore, we have also noted that when PW5 gave evidence in court, the defence did not raise any concern with the trial judge that the witness was testifying in a language different from that he swore in and asked the trial judge to rectify. These show that they did not consider that there was anything unfair in the trial procedures. Nor did they think that the defendants’ right to a fair trial was infringed in any way. Therefore, the fact that PW5 testified in Chinese after having made his oath in English at the trial did not constitute any major procedural irregularity. It certainly would not render PW5’s testimony invalid or justify the exclusion of his evidence. Mr. Yeung cited the case of HKSAR v Mahat Prem Bahadur [1998] 3 HKC 336, at 340H-I.  However the facts in that case are very different from the present case, and the legal principles laid down in that case are not relevant at all.
首先，PW5作供時的錄音謄本不顯示他一直或大部分時間是以廣東話直接回答控辯雙方的提問。反之，謄本顯示原審法官曾因翻譯的困難要求證人澄清其答案(T5 N-R)，而法庭傳譯主任亦曾要求大律師覆述問題(T7 P-Q)。再者，雖然在司法程序中，證人應以其選擇作供的語言進行宣誓，但法庭不會單純因為一名證人作供時採用的語言與宣誓時用的言語不同，便認定其證言無效及予以摒除。上訴法庭更不會單純因為原審時出現這種情況便認定有重大程序謬誤，從而認為原審法官的判決不穩妥及予以推翻。楊‍大律師向本庭陳詞時質疑PW5對中文有多少認知。然而，該名證人在接受代表第一申請人的詹‍大律師盤問時，已表明他懂廣東話和是以本地話與其他警員溝通 (T8 K-M)。此外，本庭亦注意到在PW5作供時，辯方沒有向原審法官提出這名證人宣誓和作供採用了不同語言，及要求糾正。由此可見辯方當時不認為審訊程序有任何不公平之處，或是被告人獲得公平審訊的權利有受到削弱。是故，即使原審時PW5在以英語宣誓後以中文作供，這亦不構成重大程序失誤，更遑論令PW5的證言無效，甚至要摒除這部分的證據。楊‍大律師引述HKSAR v Mahat Prem Bahadur [1998] 3 HKC 336, 340H-I一案，但該案的情況與本案截然不同，所論述的法律原則亦與本案毫無關連。

The 2nd Applicant put forward the third ground which was that the trial judge did not understand that the injuries sustained by the two victims could have been caused by a person other than the 2nd Applicant and that the injuries could have been caused by other persons using the iron pipes. Mr. Yeung argued that the two victims did not say in their evidence that the 2nd Applicant was the assailant, and that in the record of interview, the 2nd Applicant only mentioned kicking the man in red shirt and another man in black shirt a few times. There was no evidence in the present case which suggested the two victims were the only persons wearing a red shirt and a black shirt. Therefore no one could eliminate the possibility that the 2nd Applicant had kicked someone other than the two victims.
第二申請人的第三項申請理由是原審法官未能理解兩名受害人的傷勢可以非由第二申請人造成，而是在打鬥過程中被其他人以鐵管毆打所造成。楊‍大律師的論據是：兩名受害人的證言均沒有指證第二申請人是施襲者；第二申請人在會面記錄中祇提及踢了穿紅衣的男子和另一名穿黑衣的男子幾腳，而本案中沒有證據顯示案發時祇有兩名受害人是穿紅衣和黑衣，因此不能排除第二申請人所踢的男子不是兩名受害人。

We consider that his submission is purely speculative. The assault mentioned by the 2nd Applicant was the same in terms of the location and time as specified in the particulars of the charges and described in the prosecution evidence. The record of interview by 2nd Applicant clearly revealed that the case involved a fight between two gangs. The first gang was made up of the two applicants and his other eight companions, and the second consisted of the victims and another ten odd companions. The gangsters were sharply divided into two sides when they had a fight. The 2nd Applicant also confessed that he kicked the two men of the opposite side. In the circumstance, the submission by Mr. Yeung that it was possible that “the wrong persons were assaulted, the wrong persons were identified or the assault was arbitrary” was not supported by evidence.
本庭認為這項陳詞純屬臆測。第二申請人在會面記錄中講述的毆鬥，在地點和時間上都與控罪詳情和控方證據所描述的一致。第二申請人的會面記錄亦清楚顯示案件涉及兩幫人，一方為兩名申請人及同伴共8 人，另一方是受害人和同伴同10 多人。他們互相毆鬥，雙方壁壘分明。第二申請人的招認亦指出他所踢的兩名男子是對方陣營的人。在此情況下，楊‍大律師指有可能「打錯人、認錯人或亂打人」的說法，乃缺乏證據基礎。

Moreover, although the 2nd Applicant only confessed to a few kicks and no other assault in other ways, he is criminally liable to the injuries sustained by the two victims under the legal principle of “joint enterprise”.
此外，雖然第二申請人祇承認踢了幾腳，沒有提及以其他方式施行襲擊，但按照「共同參予」的法律原則，他亦須為兩名受害人的傷勢負上刑事責任。

Mr. Yeung also submitted that the trial judge did not draw a clear distinction between the two charges. We are of the view that his submission in this regard is irrelevant. From the reading of paragraph 8 of the Reasons of Findings, it can be seen that the trial judge clearly understood that the first charge was different from the second charge. In this case, the defense did not challenge the injuries sustained by the two victims. In view of this, Mr. Yeung’s submission as to whether the PW1 had sustained “break of true skin” would not support the 2nd Applicant’s application.
楊‍大律師亦指原審法官沒有明確區分兩條控罪。本庭認為這點無關宏旨。從裁決理由書第8 段可看到原審法官是清楚知悉第一和第二條控罪是有不同之處。而且在本案中，辯方對兩名受害人的傷勢從沒有爭議。基於此，楊‍大律師有關PW1是否有「真皮破損」(break of true skin) 的情況的陳詞，同樣無助第二申請人的申請。

Conclusion
總結

We allow the 1st Applicant’s application for leave to appeal. Treating his application as the formal appeal, we allow the appeal. His conviction and sentence are hereby quashed. But the application by the 2nd Applicant is refused.
本庭批准第一申請人就定罪上訴的許可申請，視其申請為正式上訴，並判上訴得直，撤銷定罪的裁決和判刑；但拒絕第二申請人的申請。

Mr. Ira Lui, Senior Public Prosecutor, of the Department of Justice, for the Respondent.
答辯人：由律政司高級檢控官雷芷茗代表

由法律援助署委派張世文蔡敏律師事務所轉聘詹俊祺大律師代表	Mr. Jacky Jim, instructed by Messrs. Cheung & Choy, for the 1st Applicant.
第一申請人：

Mr. Y C Yeung, instructed by Messrs. Wong & Co., for the 2nd Applicant.
第二申請人：由法律援助署委派黃律師事務所轉聘楊若全大律師代表