Leong, J.A. (giving the judgment of the court):
上訴法庭法官梁紹中（宣讀上訴法庭判案書）:

The applicant, LING Chi-yip was convicted of one count of robbery and sentenced to 4 years’ imprisonment in the District Court. He now applies for leave to appeal against conviction.
申請人凌置業日前在區域法院被裁定一項搶劫罪罪名成立，被判刑監禁四年。現申請准許上訴，推翻判罪。

It is stated in the Particulars of Offence that on 31 December 1996, the applicant robbed WONG King of his property including one wallet and cash HK$850-in On Po Village ( 安埔村  ),Sheung Shui.
罪行詳情指申請人在1996年12月31日在上水安埔村搶劫王瓊劫去財物包括一個錢包和現金港幣850元。

The prosecution case was as follows: WONG King was a taxi driver.  On the night in question, he drove a taxi with the registration number GK761 .  He picked up 3 men in the vicinity of Argyle Street and took them to Sheung Shui. On the way, one of the men  told him to drive into a road with an unknown name and stop. Then, a man grabbed round his neck with his arm and told him to take out his money. After he had taken out HK$500-, another man took away his wallet and money from behind.  Then, the three men fled into the village.  WONG King could only tell that one of the three men wore a woollen cap while another one put on a baseball cap.
控方案情是這樣：王瓊是一名的士司機。事發當晚，他駕駛的士GK761。在九龍亞皆老街附近，接載三名男子前往上水。途中，其中一名男子叫他駛入一條不知名的路上停下。其後，一名男子用手箍他的頸，叫他拿出錢來。他取出港幣500元後，另一名男子從他後面拿走了他的錢包和錢。該三名男子後來逃入村中。王瓊只能指出三人中一人是戴著一件毛帽的，另有一人則戴上壘球帽。

WONG King then made a report to the police. The police arrived and took him to patrol the vicinity in police car with a view to intercepting the culprits.  At that juncture, another police patrol car, acting on the information received, intercepted a taxi with the applicant and the two other Defendants on board.  While the police was questioning the three men separately, WONG King arrived in the police car. Wong King pointed out right away that the 1st Defendant was one of the culprits. The police found a baseball cap on his person upon search.
王瓊於是報警。警員到場後，用警車載著他四處巡邏，希望能堵截賊人。此時間，另一警方巡邏車接獲報告後，截停了一輛的士。車內有申請人和其他兩名被告。警員於是向三人個別查問。而載著王瓊的警車亦在這時到達。王瓊立刻指出第一被告人是其中的一個賊人。警員從他的身上找到一件壘球帽。

PW4, PC49235, made enquiries of the applicant about the robbery case. The applicant denied having taken part in the robbery but was, nonetheless, put under arrest and taken to Sheung Shui Police Station.  In the police station, PW4 post-recorded in his note-book the account of the arrest and what the applicant had told him.  However, the prosecution did not produce the   post-recorded evidence to the Court.  This was because the applicant gave  evidence that he had not taken part in the robbery when he objected to the production of the record of interview.  Moreover, the prosecution could only, under the law, produce the confession statement of a defendant. For these reasons, the post- record was not produced and it did not cause him any disadvantage.
控方第四証人警員49235向申請人查問劫案事件。申請人否認曾參與搶劫。雖然如此，申請人仍被拘捕及帶回上水警署。在警署內，第四証人把拘捕過程和申請人所說的一切，補錄在他的記事冊內。但控方沒有把補錄証供呈堂。因為申請人在反對會面紀錄呈堂時，作証否認參與搶劫。而且，在法律上，只有被告的供認，控方才可以呈堂。因此，補錄沒有呈堂，對他並沒有構成不利。

Shortly afterwards, PW6, DPC8684, interviewed the applicant in the police station.  The record of interview shows that the applicant confessed to robbery at the time of the interview.  He said to the detective that, “for this robbery, I took a part, but it is not my idea.  It is ‘Tiger’ who suggested doing robbery.”
稍後，控方第六証人探員8684在警署內會見申請人。會面紀錄顯示在會面時，申請人承認搶劫。他對探員說：「呢次打劫，我係有份。但是唔係我提出，係老虎提議去打劫嘅。」

The applicant objected to the production of the record of interview by the prosecution.  He alleged that he had been assaulted by the police and that PW6 had induced him to confess to robbery.  However, PW4 and PW6 gave evidence to deny assaulting the applicant or inducing him to make a confession.
申請人反對控方把會面紀錄呈堂。他指稱曾經被警員毆打，而且第六証人曾誘使他供認搶劫。但第四和第六証人都作証否認曾毆打或誘使申請人供認。

The applicant only gave evidence on the admissibility of the record of interview.  He did not give evidence on the general issue of the case.  The applicant alleged that at the time of the arrest by police officers, his head was banged against the wall thereby causing injuries to both sides of his forehead.  Subsequently, a detective hit him on his leg, in his tummy and lower parts.  He could not, however, identify who hit him.  He complained to the Duty Officer about the assault and was then taken to hospital for medical examination.  He said that his wound was still bleeding at that time and he had to wipe it with his sleeve.
申請人只就在審理會面紀錄可否呈堂的問題上作證。至於本案的整體方面，他並沒有作証。申請人稱警員拘捕他時，把他的頭推向牆上，以致他兩額受傷。其後，一名探員又打他的肚，大腿和下體。但是他認不出誰人打他。他向值日官投訴被毆打後，就被送到醫院驗傷。他說，他的傷口那時還在流血，他要用衣袖抹血。

The applicant also said that DPC 8684 had told him that he would be allowed bail if he was co-operative. As he wanted to be granted bail, he signed the record of interview even though what was written there was simply what DPC 8684 had told him to write.
申請人又稱探員8684曾對他說，如果他合作的話，他可以保釋出外。他希望獲得保釋，所以，雖然會面紀錄所寫的一切，都是探員8684教他寫的，他也在上面簽名。

Further, the applicant summoned Doctor WONG ( 黃醫生 ) of Fanling Hospital to testify.  Dr.WONG confirmed that the applicant arrived  in the hospital for medical examination at 7:37 p.m. that day, i.e., some ten odd hours after the robbery. She examined him and found that there were some blood stains (but no bleeding) over the minor abrasions on both sides of the applicant’s forehead.  She said that she had no record of whether his clothing was blood-stained.
申請人又傳召粉嶺醫院的黃醫生作証。黃醫生証實在當日下午七時三十七分，即劫案發生了十多小時後，申請人到醫院驗傷。她檢驗申請人。發現申請人兩額有輕微擦傷，沒有流血，但有血跡。至於申請人衣物有沒有血跡，她沒有紀錄。

On this special issue, the Trial Judge was not satisfied with the testimony of the applicant as the Judge took the view that the applicant’s allegations of assaults resulting in the injuries and of confession to robbery under inducement were unsubstantiated.  The Trial Judge found that PW4 and PW6 were truthful and reliable witnesses.  The Judge held, on their testimonies, that the applicant’s confession to robbery was made voluntarily and for this reason, the applicant’s record of interview was admissible as evidence.  The Trial Judge said in his reasons for verdict that he was unable to identify the cause of the applicant’s injuries but was of the view that as the applicant suffered only minor injuries, so he did not believe that the injuries were caused by assault.
原審法官在這個特別問題上，沒有信納申請人的証言，認為申請人所聲稱曾受毆打引致受傷及被誘使承認搶劫罪的說法，是沒有根據的。原審法官裁定控方第四及第六証人都是誠實可靠。他根據他們的証言，裁定是申請人自願供認搶劫。因此，會面紀錄可以呈堂作為証據。原審法官在判決書中，提及他找不到申請人受傷的原因，但他認為申請人只是輕微受傷，原審法官不相信他的傷是被人毆打引致。

The 1st Defendant gave evidence in defence that on the night in question, he boarded the taxi of the victim together with the 2nd Defendant and the Applicant.  The applicant was seated right behind the driver and at the material time, it was the applicant who grabbed hold of the victim’s neck from behind with his hand and claimed that it was a “ robbery ”.  In other words, the 1st Defendant was saying that the applicant was the principal offender.
第一被告在自辯作証時，指當晚他和申請人及第二被告一起登上受害者的的士。申請人坐在司機後面的座位。事發時，申請人從後面用手箍受害者的頸聲稱「打劫」。換句話說，第一被告指申請人是主犯。

On the applicant’s confession and the 1st Defendant’s evidence against him, the Trial Judge found the applicant guilty.
原審法官根據申請人的供認和第一被告的指証，裁定申請人罪名成立。

The applicant put forward a number of grounds of appeal. They boil down to two points.  The first point concerns the abrasions sustained by the applicant.  It is the submission of Mr.CHAN, Counsel representing the applicant that by reasons of the prosecution’s failure in giving a satisfactory explanation about the applicant’s injury and the fact that the Trial Judge was unable to ascertain the cause of his injury, the possibility of  assaults by police officers cannot, therefore, be ruled out altogether.  Admitting the applicant’s record of interview as evidence was, in the circumstances , unsafe.  It shifted the burden of proof onto the applicant.
申請人有多項上訴理由。歸納起來說，只有兩點。第一點是關於申請人的擦傷。代表他的陳大律師在這方面陳詞稱，由於控方未能完滿解釋申請人因何受傷，而原審法官亦未能確實申請人受傷的原因，所以不可能完全排除申請人曾被警員毆打的可能性。在此情況下准許會面紀錄呈堂是不穩當的。是把舉証責任轉嫁到申請人方面。

On the issue of admissibility of the confession statement, it is the duty of the prosecution to prove that the applicant confessed voluntarily, that is to say, not under violence, threats, inducement or oppression.  If the applicant alleged that he had been subjected to assault and inducement, the prosecution must prove that the applicant did not make his confession in circumstances as such.
在審理供認可否呈堂的問題上，控方有責任証明申請人是自願供認的。即他不是因受暴力對待，威嚇，誘使，或受到壓迫而供認。如果申請人指稱他曾受毆打和誘使，控方必須証明申請人不是在如此情況下供認。

The Trial Judge was satisfied that the prosecution witnesses did not make the applicant confess by assault or inducement.  As to the applicant’s allegations , he found it incredible despite Dr.WONG’s testimony that the applicant had suffered some minor abrasions.  It is a finding of fact.  In a case where the Trial Judge did not believe or suspect that the applicant was assaulted by the prosecution witnesses, he did not have to decide on the cause of the applicant’s injury, particularly when making such a decision in the absence of any evidence is a mere speculation.  Therefore, even if the Trial Judge was unable to identify the cause of the applicant’s injury, it would not have affected his verdict.
原審法官信納控方証人沒有毆打和誘使申請人，令他供認。而對於申請人所說，雖然有黃醫生証明他曾受輕微擦傷，則認為仍然不可信。這是一項事實的裁決。如果原審法官不相信或沒有懷疑申請人曾被控方証人毆打，他是無需決定申請人受傷的原因。 特別是在無証據下作這方面的決定，更屬於猜測。所以，即使原審法官找不到申請人受傷的原因，也不會影響他在本案的裁決。

Mr. CHAN said that the Trial Judge ought not to have admitted the confession statement merely because what the applicant had suffered was only minor injuries.  He said that one of the purposes of the assaults was to frighten the applicant and so the extent of injury should not be a major consideration.  The Trial Judge admitted the applicant’s confession statement as evidence because he believed that the confession was made voluntarily.  He rejected the applicant’s allegations of assaults.  He also rejected the suggestion that the applicant’s injuries were caused by the assaults.  Therefore, the ground put forward by Counsel cannot be established.
陳大律師指原審法官不應該因申請人傷勢只是輕微，而准許供認呈堂。大律師稱毆打申請人目的之一是要他受驚，所以傷勢不是主要的考慮因素。原審法官准許供認呈堂，是因為他相信供認是自願的。他拒絕了申請人被毆打的說法，亦否定了傷勢不是毆打所引致。所以大律師的這點理由是不成立的。

A more arguable ground of appeal is the newly added point 4(a): The applicant complains of the Judge’s refusal to let his Counsel cross-examine the 1st Defendant on his previous criminal records.  Mr. CHAN points out that the applicant and the 1st Defendant were charged in the same proceedings and the 1st Defendant gave evidence in his own defence that it was the applicant who took action in the robbery on the night in question.  It was evidence against the applicant and it was adverse to the applicant.  Pursuant to Section 54 (1) (iii) of the Criminal Procedure Ordinance, the applicant was entitled to cross-examine the 1st Defendant on his previous criminal records.  Mr.CHAN points out that it was a wrong decision.
比較有爭辯力的上訴理由是新加上的4(a)一點:申請人投訴原審法官沒有准許他的律師盤問第一被告關於他的刑事犯案紀錄。陳大律師指出，第一被告與申請人在本案屬同犯。而第一被告自辯作証時指當晚是申請人出手搶劫，這是針對申請人的証據。對申請人不利。根據刑事程序條例第54(1)(iii)條，申請人是有權如此盤問第一被告的前科。陳大律師指出這是錯誤的決定。

Mr. CHAN cites R. v. Varley [1982] CA 512 as an example.  It was held in that case that if the Defendant gave evidence against his co-accused, i.e., the defendant testified to support the prosecution case or to weaken the defence of his co-accused, the co-accused could then cross-examine the defendant on his previous criminal record and that the Trial Judge had no discretion to refuse the co-accused’s application to cross-examine the defendant in this regard. Counsel also cites R. v. NG Hang-yee [1987] HKLR 1093.  That case generally accepted the rule laid down in R.v. Varley but there was no conclusion as to whether the judge had discretion.  However, even if the judge had such a discretion, the Court of Appeal concluded that the Trial Judge should, in the special circumstances of that case, allow the applicant to cross-examine the 1st defendant on his criminal record.
陳大律師引用女皇對華里拉(譯音)(1)一案為例。該案裁定如果被告作証針對他的同犯，即是被告作証支持控方的案情或削弱該同犯的辯護， 該同犯可就被告的刑事犯案紀錄向他盤問。而主審法官無酌情權拒絕該同犯申請在這方面盤問被告。大律師又引用女皇對吳杏儀(譯音)(2)一案。 該案大致接納華里拉(譯音)案所訂定的原則。但對於法官是否有酌情權的一點，沒有下定論。不過，即使法官在這方面有酌情權的話，上訴法庭認為在該案的特殊情況下，主審法官也應讓申請人盤問第一被告的刑事犯案紀錄。

Mr. Arthur LUK appearing for the Government / Respondent submits that the Trial Judge ought to have the discretion as he had to maintain a balance between the interests of the applicant and that of the 2nd (sic) Defendant. Counsel points out that section 54 (1) (f) (iii) is intended to protect the witness but this applicant in this case had, without first having permission, questioned the 1st Defendant on his previous record thereby disclosing his bad character. It might have been the applicant’s defence strategy but it was a gross procedural irregularity. For the sake of fairness, and in order to prevent abuse of the right of cross-examination and to safeguard the interest of the 1st Defendant, the Trial Judge was entitled to refuse the application.  Counsel further submits that even if this Court is to hold that the Trial Judge was wrong, it can still invoke the proviso under section 83 of the Criminal Procedure Ordinance since there was ironclad evidence against the applicant and no miscarriage of justice has occurred as the result of the conviction. The application for leave to appeal should be dismissed.
代表政府答辯的陸大律師陳詞，認為原審法官應有酌情權。因為法官需要平衡申請人和第二被告的利益。大律師指出第54(1)(f)(iii)條目的是保障証人，而申請人在本案中，未經准許已盤問第一被告的前科，披露了他的不良品格。雖然這可能是申請人的辯護策略，但此舉已嚴重違反程序。因此，原審法官為公平起見，要防止濫用盤問權利，維護第一被告的利益，可以拒絕申請。大律師又稱，如果本法庭裁定原審法官有錯誤，本法庭可引用刑事程序條例第83條的但書。因為針對申請人的証據確鑿，判罪並沒有帶來審判不公平。申請上訴許可，應該駁回。

The 1st Defendant gave evidence that the applicant was the principal offender and this is evidence against the applicant.  The applicant could rely on R.v.NG Hang-yee to argue that he had the right to cross-examine the 1st Defendant on his previous records in the same way as in R.v.Varley.   As to whether the Trial Judge had the discretion to refuse his application, the precedents before us have not provided any clear guidance. No matter he had or he had not, the outcome of the cross-examination would not have affected the verdict of the Trial Judge.
本案第一被告曾作証指申請人是本案主犯。這是針對申請人的証據。申請人可以根據吳杏儀一案，爭論他有權盤問第一被告的前科。正如華里拉案一般。至於原審法官是否有酌情權不批准他這樣做，本法庭當前的案例沒有明確的表示。不過，不論有沒有，盤問結果，對原審法官的裁決沒有影響。

The defence relied on by the applicant in cross-examining the prosecution witnesses was: he did not take part in the robbery although he was on board the taxi at the material time and he was forced to make a confession statement that he did.  On the other hand, the 1st Defendant alleged that the applicant took part in the robbery. Therefore, the truthfulness of the 1st Defendant was of critical importance in deciding whether the applicant had committed the offence. The previous records of the 1st Defendant would have a great bearing on whether the Judge would accept his version.  The purpose of cross-examining the 1st Defendant on his previous records was to undermine his credibility.  At the trial, Counsel representing the applicant had already asked the 1st Defendant about his criminal records of assault and of assaulting a police officer and he had admitted the commission of the two offences and the convictions.  There were criminal records as such. The Trial Judge had already realized that the 1st Defendant was not a man without blemish and without a criminal record. The purpose to undermine was already served.  Further criminal record of the 1st Defendant, if any, would, perhaps, have further undermined the credibility of his testimony, but it depended on the nature of the record.  The appeal file only mentions two criminal records of the 1st Defendant.  Neither Mr. CHAN nor Mr. LUK has any objection to our inspecting the criminal records of the 1st Defendant.  The record shows, apart from the two offences already disclosed, one count of possession of infringing copies of compact discs of musical works for commercial purposes. It was a minor offence involving only a matter of commercial goodwill.  Any impact this record might have would have been overshadowed by the gravity of the 1st Defendant’s other two offences of assault and assaulting a police officer. Even if the Trial Judge had not refused the application and had permitted the applicant to continue with his cross-examination about the previous criminal record of the 1st Defendant, what would have been discovered was merely a further criminal record of minor and dissimilar nature.  Since the Trial Judge already had knowledge of the 1st Defendant’s two previous criminal records, a further record of a minor offence would not be of much help to the applicant and would not have affected the verdict in any way. After assessing the credibility of the 1st Defendant, the Judge as a professional tribunal was able to decide on the truthfulness of the 1st Defendant.
申請人盤問控方証人時所憑藉的辯護點是，雖然他當時是在車內，他沒有參與搶劫。他是被迫供認有參與的。而第一被告則指申請人出手搶劫。因此，要決定申請人有沒有干犯本案，第一被告的誠信是十分重要。第一被告的前科對法官是否信納他的說法，會有極度的影響。盤問第一被告的前科，目的是削弱他的可信性。在原審中，申請人律師已問及第一被告的毆打和襲警犯案紀錄。而他亦承認確曾犯此兩項罪及被定罪。有如此紀錄。因此，原審法官已曉得第一被告不是品格無瑕疵，無犯罪紀錄的人。削弱的目的已達到。不過，如果第一被告還有其他的犯案紀錄，這可能更削弱他的証言的可信性。但那要看紀錄的性質而定。上訴檔案只提及第一被告有兩項犯案紀錄。陳大律師和陸大律師都沒有反對本法庭查閱第一被告的犯案紀錄。紀錄顯示。除已披露的兩項外，還有一項管有翻版鐳射唱碟作商業用途罪。不過，這只是一項涉及商業的忠誠，性質輕微的罪行。 此項紀錄可能引起的影響，已被第一被告的毆打和襲警犯案紀錄的嚴重性掩蓋。即使法官在審訊時沒有拒絕申請，容許申請人繼續盤問第一被告的前科，所能發現的，只不過是多了這一項不同性質的輕微犯案紀錄。既然原審法官已知道第一被告已有兩項犯案紀錄，多了一項輕微罪案紀錄，對申請人沒有多大幫助。不會對裁決帶來甚麼影響。衡量第一被告的可信性後，原審法官作為專業裁判，對於第一被告的誠信，已可以作出判決。

In his verdict, when analysing the testimony of the 1st Defendant, the Trial Judge says, “ I do not accept the 1st Defendant’s evidence where it conflicts with the prosecution witnesses.”  Obviously, the Judge was satisfied with the 1st Defendant’s evidence that the applicant had taken part in the robbery. When coming to the evidence against the applicant, the Judge also made reference to the testimony of the 1st Defendant.  It is clear that he was satisfied with what the 1st Defendant had told him.
原審法官在他的判決書上，分析第一被告的証言時說：「第一被告的証言中，如有與控方証人不符合的地方，我不信納。」明顯地，法官已信納第一被告所指，申請人有參與搶劫的証據。在提及有關申請人的不利証據中，法官亦有引述第一被告的証言。可見他已信納第一被告所說。

On the whole, there was strong evidence to prove that the applicant did commit the offence of robbery. The verdict is a finding of fact made by the Trial Judge who had had due regard to all the evidence , including of course the previous criminal records of the 1st Defendant.  Further cross-examination would not have taken the matter any further.  This Court does not propose to interfere with the verdict.  The application for leave to appeal against conviction is dismissed
整體而言，本案有強烈証據証明申請人已干犯搶劫罪。原審的裁決是法官經詳細考慮一切証據，這當然包括第一被告的前科，然後作出的事實裁決。鑒於進一步的盤問，不可能有進展。本法庭不干預裁決。申請准許上訴推翻原判拒絕。

Mr. CHAN Siu-ming (assigned by the Director of Legal Aid) for the Applicant
上訴申請人：法律援助署由陳銚明代表

Mr. Arthur LUK, Senior Assistant Director of Public Prosecutions andMr. David LEUNG, Senior Government Counsel of the Department of Justice for HKSAR/Respondent
上訴答辯人：律政司由陸貽信，高級助理刑事檢控專員及梁卓然，高級政府律師代表