Hon Yeung VP and Yuen JA (giving the reasons for judgment of the Court):
高等法院上訴法庭副庭長楊振權及上訴法庭法官袁家寧頒發上訴法庭判案理由書：

Introduction
引言

Around 10:52 p.m. on 15 February 2012, Wu Yuen Fai, the victim in the present case, was injured in an attack outside “Man Lee Snack Shop” (transliteration) on the ground floor of Tai Po Plaza. Chung Chi Fai, the applicant herein, was said to have been involved in the incident and was arrested by the police on 23 February 2012 for the offence of “wounding with intent”. Under caution, the applicant said, “Ah Sir, I did not do it. I was at a betting centre on that day placing bets on horses until the 6th or 7th race, and then I returned home.”
2012年2月15日晚上約10時52分，胡遠輝（受害人）在大埔廣場地下“萬利小食”外遭人襲擊受傷。申請人（鍾志輝）被指和事件有關，並在2012年2月23日遭警方以“有意圖而傷人”罪拘埔。警誡下，申請人說：“阿Sir，我無做過，果日我係投注站賭馬，賭到6至7場就番屋企。”

At 11 p.m. on 23 February 2012 the applicant voluntarily attended a video-recorded interview with Detective Sergeant 50569 and Police Constable 47952 in respect of the incident. At the interview the applicant reiterated that he was not at the scene when the incident occurred. He said that on that day he was at the Tai Po Plaza betting centre placing bets until the 6th or 7th race and returned home at 10 p.m. to go to bed. He said that he did not know the victim and that he did not carry any sharp object on his person on the day of the incident.
同日晚上11時，申請人因上述事件自願和偵緝警長50569號和警員47952號進行錄影會面。申請人重申案發時，他不在案發現場。他指當天自己在大埔廣場馬會投注站下注至第六、七場後，在晚上10時返家睡覺。申請人表示不認識受害人，而案發當天亦沒有帶任何利器在身上。

Prosecution witness Miss Chong Po Ching (Miss Chong) witnessed the incident. At an identification parade held on 24 February 2012, she identified the applicant as the man who attacked the victim on the evening of 15 February 2012 outside Man Lee Snack Shop.
證人莊寶貞小姐（莊小姐）在現場目睹案發經過。2012年2月24日，莊小姐在認人手續認出申請人就是在2012年2月15日晚上於“萬利小食”外襲擊受害人的男子。

As a result of the incident, the applicant was charged with one count of wounding with intent, contrary to section 17 of the Offences against the Person Ordinance. He pleaded not guilty and was tried before Barnes J (the trial judge) and a jury.
事件導致申請人被控一項有意圖而傷人罪，違反《侵害人身罪條例》第17條。申請人否認控罪，並在高等法院原訟法庭法官張慧玲（原審法官）會同陪審團席前受審。

On 16 November 2012, the jury convicted the applicant on the charge. On 30 November 2012, he was sentenced to 17 years’ imprisonment. Represented by Mr David Ma and Ms Fiona Nam of Counsel, the applicant applied for leave to appeal the conviction and sentence. At the conclusion of the hearing, we granted the applicant leave to appeal the conviction but dismissed the appeal. We also allowed his application for leave to appeal the sentence and, treating the application as the appeal proper, allowed his appeal against sentence and reduced the sentence from 17 to 15 years. The reasons for judgment are set out below.
2012年11月16日，申請人遭陪審團裁定罪名成立，並在2012年11月30日被判入獄17年。申請人不服定罪及判刑，由馬維騉大律師及藍凱欣大律師代表提出申請，要求獲就定罪及/或判刑上訴。經聆訊後，本庭批准申請人就定罪提出的上訴許可申請，但駁回他就定罪的上訴；本庭另批准他就判刑提出的上訴許可申請，並視其申請為正式上訴，本庭裁定申請人就判刑的上訴得直，並將其刑期由17年減至15年。以下是本庭的判案理由。

Issue in dispute
案件爭議點

It was not under dispute that the victim was attacked on the evening in question and sustained extremely serious injuries, including a 25-cm long laceration wound to the neck. The main issue at trial was whether or not the applicant was the assailant.
受害人在案發當晚遭人襲擊，令他蒙受極為嚴重的傷勢，包括頸部一條長達25厘米的裂傷是不爭的事實。原審時的主要爭議點是申請人是否就是襲擊受害人的罪犯。

Prosecution evidence
控方證據

At the time of the incident, the victim, Miss Chong and Chan Mei Han (Miss Chan) were having a meal at Man Lee Snack Shop. As it was crowded inside the shop, the trio went outside, where there were three tables, and sat at the middle table. Miss Chong and Miss Chan sat respectively on the right side and left side of the applicant, who was then facing Man Lee Snack Shop with the Plaza behind him. Shortly after the trio began eating, a man suddenly approached the victim from the betting centre in the Plaza, cut his neck with a sharp object, and then left the scene immediately in the direction of the bus terminus.
事發時，受害人和莊小姐及陳美嫻（陳小姐）在“萬利小食”用餐，由於店舖內人多，三人選擇在店舖外三張檯的中間一張就坐。當時受害人面向“萬利小食”、背向廣場，莊、陳兩位小姐則分別坐在受害人右、左兩邊。當三人進食不久，突然有一名男子由廣場投注站方向走至受害人，用利器他的頸部後，便立刻離開現場，走向巴士總站。

The victim said the sudden attack threw him into a panic. He had no idea why he was attacked for no reason. This notwithstanding, he was able to describe his assailant as someone who stood about 1.7 metres tall and was wearing a dark green windbreaker.
受害人表示事出突然，他驚惶失措，不明白為何會遭人無故襲擊。但他仍能描述襲擊者約1.7米高，穿一件墨綠色風褸。

Miss Chong witnessed the course of the incident. She said that before the attack, the assailant looked towards her and Miss Chan and gave a grin, and then he immediately threw his arm around the neck of the victim, gave him a pull to the right, and turned round to hurry off the scene. But after taking four to five steps, he turned his head to give a sly grin, which sent chills down her spine. Miss Chong said the assailant then turned round to make for the bus terminus. The victim knelt on the ground after being attacked. His neck was covered in blood.
莊小姐目睹事發經過。她表示襲擊者襲擊受害人前，有望向她及陳小姐，先笑了一笑，隨即便用手臂箍受害人的頸，向右一拖後，便轉身急步離開，但走了4至5步後，就回頭奸笑一下，令她感到心賽。莊小姐指襲擊者之後掉轉頭向車站走去。受害人受襲後，跪在地上，滿頸鮮血。

Miss Chong said it was only a matter of 5 to 6 seconds between the time the assailant emerged to attack the victim and the time he left the scene. She said the assailant was about 30 years old, 1.7 metres tall, of medium build, wearing a green windbreaker and not wearing any glasses or cap.
莊小姐指由襲擊者出現襲擊受害人至離開現場，前後過程只是約5至6秒。莊小姐指襲擊者約30歲、1.7米高、中等身材、身穿綠色風褸、沒有帶眼鏡或帽。

Miss Chan also said that she saw the assailant walk up behind the victim from the betting centre. She said that the assailant leaned forward, looked at the victim, “scraped” his neck right away, and then turned round immediately to make for the bus terminus. She was unable to describe the appearance of the assailant.
陳小姐亦指見到襲擊者從投注站行近至受害人後面，先向前傾斜，望向受害人，隨即“刮”了他的頸部後便立刻轉身走向巴士站。陳小姐不能描述襲擊者的外貌。

According to the medical evidence, the laceration wound on the victim’s neck was as long as 25 cm. The wound was not deep at both ends but was deeper in the middle, going beneath the subcutaneous layer of fat and with parts of it going even deeper than the subcutaneous tissue albeit not approaching the deep muscle. Fortunately, only the arteriole of the victim was cut and the aorta was not affected, although the injury to the nerve cords would result in numbness in the neck.
根據醫生的證供，受害人的頸部裂傷長達25厘米，頭尾較淺中間較深，過了皮下脂肪，部分更深過皮下組織，但不至深層肌肉。幸好受害人只是細動脈受割，不影響大動脈，但頸部會因神經線受傷而有麻痺感覺。

The incident was captured on six CCTVs at the betting centre and Tai Po Plaza. There was footage showing the applicant turning up at the staircase by the betting centre. If he turned right, he would walk past the entrance of the betting centre towards Man Lee Snack Shop. There was also footage showing that from 10:51:39 p.m. to 10:51:47 p.m. the applicant came out of the staircase and walked past the entrance of the betting centre towards the victim. His conduct was consistent with the allegation that he was the assailant of the victim. Further, the footage showed that the applicant was at that time wearing a green upper garment, a pair of jeans and white shoes — the same clothing as that of the assailant.
案發經過被投注站及大埔廣場的六部閉路電線拍下，有鏡頭顯示申請人在投注站旁的樓梯間出現。如他右轉便會橫過投注站門口向“萬利小食”，亦有鏡頭顯示在晚上10時51分39至47秒，申請人走出樓梯及行過投注站門口，走向受害人。其行為和指他襲擊受害人的說法吻合。鏡頭更顯示當時申請人身穿綠色上衣、牛仔褲和白色鞋，其衣著和襲擊者的衣著相同。

Records of the Jockey Club showed that there were eight races on the evening in question. Races 5, 6, 7 and 8 began at 9:15 p.m., 9:45 p.m., 10:17 p.m. and 10:52 p.m. respectively.
根據馬會記錄，案發當晚有8場賽事，第5、6、7、8場賽事的開跑時間分別是9:15pm、9:45pm、10:17pm和10:52pm。

Applicant’s defence
申請人的答辯理由

The applicant neither testified in his own defence nor called any witness. His position was that he was not the assailant and that Miss Chong had identified him by mistake.
申請人沒有作供自辯，亦沒有傳召證人作供。他的立場是他並非襲擊者，而莊小姐是認錯了他。

Trial judge’s directions to jury
原審法官向陪審團的指引

The trial judge gave a detailed account to the jury of the prosecution evidence on the facts of the case, in particular the circumstances of the incident and the CCTV records.
原審法官就案情事實有向陪審團詳細複述控方的證據，特別是案發的經過及閉路電話拍下的記錄。

The trial judge pointed out that, in light of the victim’s neck injury, it should not be difficult for the jury to conclude that the victim had suffered grievous bodily harm in the incident. The crucial issue was whether the applicant was the assailant.
原審法官指出以受害人頸部的傷勢而言，陪審團應不難認定事件令受害人有嚴重傷害，而事件的重點是申請人是否就是行兇者。

The trial judge gave the jury the following directions in writing regarding the essential elements of the charge:
原審法官有就控罪的要素向陪審團作出以下書面指引：

“Wounding with intent
“有意圖而傷人

You must be sure of the following before you can convict the defendant of this offence:
你們先要肯定以下事項，才可裁定被告此項罪行罪名成立：

That the victim Wu Yuen Fai suffered grievous bodily harm;
胡遠輝（受害人）身體受到嚴重傷害；

That the defendant unlawfully caused the victim Wu Yuen Fai to suffer grievous bodily harm;
被告非法令胡遠輝（受害人）身體受到嚴重傷害；

That the defendant intended (intentionally) to cause grievous bodily harm to the victim Wu Yuen Fai, or that the defendant actually foresaw that his acts might cause grievous bodily harm to the victim Wu Yuen Fai and yet, in disregard of that risk, proceeded with his actions when, in all the circumstances known to him, it was unreasonable for him to take the risk and do the acts. This is what the word ‘maliciously’ in the indictment means.”
被告意圖（蓄意）令胡遠輝（受害人）身體受到嚴重傷害，或實際上已預見得到他的行為，可能令胡遠輝（受害人）身體受到嚴重傷害，然而，卻仍不顧這種風險，繼續做出那些行為，而以被告所知悉的所有環境情況而言，被告仍冒險而有所作為是不合理的。這就是公訴書上‘惡意’一詞的意思。”

In her oral directions to the jury, the trial judge repeated the above directions and then elaborated on the aforesaid three elements. In respect of the third element, she directed the jury in the following terms:
向陪審團作出口頭指引時，原審法官先複述上述書面指引，再就上述三項因素闡述，就第三項要素，原審法官向陪審團的指引如下：

“The third [element] is that the defendant intended to cause grievous bodily harm to the victim Wu Yuen Fai, or the defendant actually foresaw that his acts might cause grievous bodily harm to the victim Wu Yuen Fai and yet [um] disregarded that risk and proceeded with such acts when, in all the circumstances known to the defendant, it was unreasonable for him to take the risk and do such acts. This is what the word ‘maliciously’ in the indictment means. Again, let us leave aside the question of whether it was the defendant, but look at it in terms of the attacker, the assailant. First, the assailant intended to cause bodily harm to the victim Wu Yuen Fai. Second, the assailant actually foresaw that his acts might cause grievous harm to the victim Wu Yuen Fai. I do not propose to read out the rest, which is already set out in writing. Clearly, there are two parts. First, there was the intention. It is only when you cannot be sure that there was the intention that you have to look at the next part, namely recklessness. This is how to look at it.” (emphasis added)
“第三個，就係話被告人意圖令胡遠輝（受害人）身體受到嚴重傷害或者實際上已經預見佢嘅行為可能令到胡遠輝（受害人）身體受到嚴重傷害，然而仍然佢（唔）不顧呢個風險繼續做出呢個行為，而以被告所知悉所有環境情況而言，被告仍然冒險有呢個作為係唔合理嘅，呢個就係公訴書上「惡意」一詞嘅意思。又係唔好講係咪被告先，用行兇者、襲擊者嚟睇喇，咁呢個襲擊者，首先第一樣就係意圖令胡遠輝（受害人）身體受到傷害，而第二樣就係話實際上已經預見到佢嘅行為可能令到胡遠輝（受害人）受到嚴重傷害喇，我唔讀其他，即係已經寫咗出嚟嗰個喇。好明顯就分兩部分，第一部分就係有意圖，如果你哋唔能夠肯定有意圖，就先睇下嗰部分，嗰個部分就即係罔顧，咁樣去睇嘅。”（劃線後加，以示強調）

In respect of the identification by Miss Chong of the applicant as the assailant, the trial judge directed the jury as follows:
就莊小姐認出申請人為襲擊者一事，原審法官則向陪審團作出以下指引：

“Of course, as you are in fact aware, when Miss Chong identified this defendant, as I said just now, she simply could not see how he wore his hair, what colour his hair was or how tall he was. But one fact cannot be denied: she said the person she identified from the nine persons was the defendant, and it so happened that the defendant was wearing a green outer garment and had turned up at that place. Was it sheer coincidence, or is Miss Chong a very observant person?  With hair all covered, the look will be different. That is to say, generally speaking, I think if you will all think about it, that is imagine you have put on a shower cap so that the colour of your hair and your hairstyle cannot be seen, it only stands to reason that you should look different, right? So, will you think that she is quite observant, so much so that she was able to identify that person, and what’s more, that person had indeed turned up at the scene at that time, as opposed to not having been present at all. Or was it really sheer coincidence that he was wearing a green upper garment, that is, the defendant was wearing a green upper garment, and was also wearing a pair of jeans, and had turned up in the vicinity, and therefore he was, as the defence is saying, identified by mistake; by turning up at the wrong time and the wrong place, and by a strange twist of fate, he became the man when in fact he was not. These, and what in fact happened, are really matters for you to consider.”
“當然，莊小姐其實你哋又都知道，佢認呢個被告人出嚟嘅時候，我頭先都講咗，根本睇唔到佢個髮型、睇唔到髮嘅顏色，亦都睇唔到佢幾高㗎嘛。咁但係一個無可否認嘅事實，佢說佢喺呢九個人裡面，佢辨認咗係被告喇，而被告又咁啱咁蹻係當時著住綠色嘅外套，係曾經喺嗰個地方出現個喎，咁呢個係巧合吖，定係話呢一位莊小姐佢嗰個觀察力係咁強，遮晒啲頭髮，都唔同樣㗎喇，即係一般嚟講，我諗如果你哋大家諗下，即係你想像下你如果戴咗個浴帽，睇唔到啲頭髮咩嘢色、睇唔到個髮型嘅，照計個樣都應該唔同咗㗎喇，係咪呀？咁你話會唔會覺得佢話嗰個觀察力都幾強喎，居然可以係搵到個人出嚟，嗰個人又仲要係真係當時在場出現過，而唔係完全冇出現過呢，定係話真係咁啱咁蹻，佢又著住綠色衫，即係個被告，又著住綠色衫，又著住個牛仔褲，喺嗰度附近出現過，咁所以就認錯人，就好似辯方講，錯誤時間、錯誤地方出現，陰差陽錯，變咗係佢，其實就唔係佢嘅，咁呢個就你哋真真正正要考慮，究竟呢件嘅事件係點喇。”

Grounds of appeal
上訴理由

Mr Andrew Ma of Counsel raised two grounds of appeal on behalf of the applicant. Mr Ma submitted that the trial judge had misdirected the jury regarding the requisite mens rea of the offence.
代表申請人的馬維騉大律師提出兩點上訴理由。馬大律師指原審法官就控罪所需的犯罪意圖錯誤引導陪審團。

Mr Ma complained that, in her written directions to the jury, the trial judge applied the interpretation of “malicious” to the essential element of “intention” in “with intent to cause grievous bodily harm”, and that she erroneously introduced concepts such as “reckless” which would mislead the jury. Mr Ma emphasized that “recklessness” did not amount to the essential element of “intention” in the offence of “wounding with intent”.
馬大律師指原審法官在向陪審團的書面指引中，將“惡意”的闡釋用於“意圖使人受嚴重傷害”的要素“意圖”上，並納入“罔顧”或“魯莽”等概念，做法錯誤，亦會誤導陪審團。馬大律師強調“魯莽”不足夠構成“有意圖而傷人”罪的“意圖”一要素。

Mr Ma also contended that, in directing the jury on the identification evidence given by Miss Chong, the trial judge had improperly suggested that Miss Chong was an observant person and that the likelihood of a coincidence was low, and that the trial judge had not clearly pointed out to the jury the possible weaknesses in the evidence.
馬大律師亦指原審法官就莊小姐的認人證供向陪審團作出指引時，不當地向陪審團暗示她的觀察力強，亦暗示巧合的可能性低，更沒有清晰地向陪審團指出有關證據可能潛藏的弱點。

Discussion
討論

According to section 17 of the Offences against the Person Ordinance (“section 17”), anyone who “(a) unlawfully and maliciously, by any means whatsoever, wounds or causes any grievous bodily harm to any person … with intent … to do … grievous bodily harm to any person” shall be guilty of an offence. Strictly speaking, this offence consists of four essential elements:
根據《侵害人身罪條例》第17條（“第17條”），任何人意圖使任何人受…嚴重傷害… (a) 以任何方式非法及惡意傷害任何人或導致任何人身體受嚴重傷害…即屬犯…罪行為。上述罪行嚴格來說要有四項犯罪要素：

The defendant had the intent to cause injury to the victim;
被告人有意圖導致受害人受傷；

The harm the victim suffered was truly grievous bodily harm;
受害人受的傷是真正嚴重的身體傷害；

The grievous bodily harm the victim suffered was caused by the defendant; and
受害人身體嚴重傷害是被告人造成的；及

The defendant’s act of wounding was unlawful and malicious.
被告人的傷人行為是非法及惡意作出的。

The victim’s neck was cut by a sharp object. The wound was as long as 25 cm, and part of the wound went deeper than the subcutaneous layer of fat and the subcutaneous tissue, causing the victim to bleed profusely. The injuries sustained by the victim were no doubt truly grievous bodily harm, and the perpetrator no doubt had the intent to cause him grievous bodily harm.
受害人頸部遭人用利器割傷，傷口長達25厘米，部分深至過了皮下脂肪及皮下組織，令受害人大量出血，受害人所受的傷，必然是真正嚴重的身體傷害，而作出該行為的人亦必然有意圖使受害人身體受嚴重傷害。

Where an offender used a sharp object to attack a victim directly in the neck, causing him to bleed heavily, the trial judge is merely required to direct the jury that they must be sure that the defendant had the intent to cause the victim grievous bodily harm when he committed the acts in question, and is not required to further elaborate on the meaning of “intent”.  In Direction 13 of Part II of the Specimen Directions in Jury Trials regarding the direction applicable to mens rea, particular reference is made to the following statement made by Lord Bridge on the issue in R v Moloney [1985] 1 AC 905:
當一名犯罪者用利器直接襲擊受害人的頸部，令受害人大量出血，除了向陪審團指出他們必須肯定被告人作出案中的行為時他有意圖使受害人受嚴重傷害外，主審法官無需要再就“意圖”的意思再詳盡闡述。陪審團的《樣本指引》第II章第13節有關犯罪意圖的適用指引亦有援引Lord Bridge法官在R v Moloney [1985] 1 AC 905案，就上述議題的以下表述，特別是：

“In trials of murder or wounding with intent, I find it very difficult to visualise a case where any such explanation or elaboration could be required, if the offence consisted of a direct attack on the victim with a weapon …”
“在謀殺或有意圖傷人審訊，如罪行包括用兇器直接襲擊受害人時，很難想像有需要（就意圖）再作解釋或詳盡闡述。”（非官方翻譯）

Where a defendant deliberately did some acts which caused injuries to another person, and the result of such acts was that the victim suffered grievous bodily harm, the reference to “malice” should be left out from the directions to jury (see R v Mowatt [1968] 1 QB 421 at 426, and HKSAR v Ying Tung CACC 150/2003 at paras.26 and 27). This is because the definition of “malice” covers two different situations, one involving “actual intent” and the other “reckless”. However, section 17 requires proof of a specific intent to cause grievous bodily harm, and “recklessness” is not sufficient. In Mowatt, having discussed the two different scenarios that the definition of “malice” might cover, Diplock LJ pointed out (at 46 B-C) that the intent required by section 17 was more specific than such element of foresight of consequences as was implicit in the word “malice”, and therefore in directing a jury on the section 17 offence it was not necessary for the judge to refer to the word “malice”.
如被告人蓄意作出一些令受害人受傷的行為，而該 些行為的結果是令受害人身體嚴重受傷，向陪審團作出“惡意”這詞的指引是應該省略的。（見R v Mowatt [1968] 1 QB 421案第426頁和HKSAR v Ying Tung CACC 150/2003案判案書第26、27段）原因是，“惡意”的定議可含蓋兩種不同的情況，一種是“蓄意”(actual intent)；另外一種是“魯莽”(reckless)。但第17條所需的令人身體受到嚴重傷害的意圖是固定(specific intent)的，“魯莽”並不足夠。在Mowatt 一案(第46頁B-C)，Diplock LJ討論了“惡意”的定議可含蓋的兩種不同的情形後，道出第17條所需的意圖比“惡意”的定義可含蓋的預見後果固定，所以法官就第17條罪行引導陪審團時，實無需着墨“惡意”這詞。

“The intent expressly required by that section [section 18 Offences against the Person Act] is more specific than such element of foresight of consequences as is implicit in the word ‘maliciously’ and in directing a jury about an offence under this section the word ‘maliciously’ is best ignored.”
“該條例[英國侵害人身罪條例第18條，即第17條]明文所需的意圖，比‘惡意’一字所含蓋的預見後果的因素固定，向陪審團引導有關該條例的罪行時，最好不要理會‘惡意’這詞。”(非官方譯本)

In R v Belfon [1976] 3 All ER 46, the English Court of Appeal applied Mowatt and clearly expressed the following principle (at 49h):
在R v Belfon [1976] 3 All ER 46一案，英國上訴法庭應用Mowatt案例後，更清楚道出以下原則(第49頁h)：

“In cases of wounding with intent it had never been considered that recklessness was to be equated with the particular intention that is required in order to constitute an offence described in s.18.”
“在有意圖傷人的案件，從來都沒有視魯莽與構成第18條[即第17條]罪行所需的特定意圖相等這想法。”

The Court of Appeal also made it clear (at 51j) that “foresight” was not the same as “intention”:
在同一案中，上訴法庭亦說明“預見”(foresight)不等同“意圖”(第51頁j)：

“Lord Hailsham of St Marylebone clearly distinguished ‘foresight’ from ‘intention’.  He said:
“Lord Hailsham of St Marylebone 清楚區分‘預見’和‘意圖’。他說：

‘For the reasons I have given, I do not think that foresight as such of a high degree of probability is at all the same thing as intention …’ ”
‘基於上述理由，本席不認為高度可能性的預見等同意圖。’” (非官方譯本)

Therefore, in ordinary circumstances, no mention should be made of concepts such as “malice”, “foresight” or “recklessness” when a judge directs a jury on the section 17 offence. The judge should direct the jury that they must be sure that the defendant had the intent to cause grievous bodily harm before they can convict the defendant (Archbold Hong Kong 2014, p.1310, para.20-206, Blackstone’s Criminal Practice 2014, p.261, para.B2.73). In some cases, the issue may arise as to whether the defendant foresaw grievous bodily harm. In such cases, the judge should tell the jury that they must be sure that “serious bodily harm was a virtual certainty (barring some unforeseen intervention) … and the defendant appreciated that such was the case” (R v Woollin [1999] 1 Cr App R 8). But in a usual section 17 case involving a direct attack with weapon, such as the present case, references to concepts such as “malice” or “foresight” would only confuse the jury, and the concept of “recklessness” is inconsistent with the specific intent required under section 17.
因此，在一般情形，法官引導陪審團考慮第17條罪行時，都不應該提及“惡意”或“預見”或“魯莽”這些概念。法官應該對陪審團說他們必須肯定被告人有意圖令受害人身體嚴重傷害，才可裁定被告人有罪。(Archbold Hong Kong 2014, 第1310頁, 20-206段, Blackstone’s Criminal Practice 2014, 第261頁, B2.73段)。在某些案件中，是會有可能出現被告人是否預見到嚴重傷害這議題，在這些情況時，法官應該引導陪審團他們要肯定嚴重傷害的可能性是幾乎必然的(除非有不可預見的干預)，而被告人是領略到該可能性的(serious bodily harm was a virtual certainty (barring some unforeseen intervention) … and the defendant appreciated that such was the case) (R v Woollin [1999] 1 Cr App R 8)。但在一般涉及以武器直接襲擊他人的第17條罪行（例如本案），提及“惡意”或“預見”這些概念只會令到陪審團混淆，而“魯莽”這概念更與第17條所需的固定意圖不符。

In our view, the statement in para.16.3B(a) of the Specimen Directions that “‘Malicious’ in this Ordinance means either intentionally or recklessly” has not made it clear that “recklessly” is in general applicable only to section 19 cases, and neither para.16.3B(b) nor the Specimen Directions on section 17 should refer to the concept of “foresight”.
本庭認為“樣本指引”16.3B(a)段所說“ ‘Malicious’ in this Ordinance means either intentionally or recklessly” （“在這條例中，惡意的意思是有意圖或魯莽”）並未有清晰說出“recklessly”（魯莽）一般只可應用於第19條的案件，而16.3B(b)段及第17條的“樣本指引”亦不應提及“預見”這概念。

We believe that the trial judge was misled by the Specimen Directions into referring not only to the concepts of “malice” and “foresight” but also to the concept of “recklessness” (see the underlined passage quoted in paragraph 18 hereinabove). Her approach is, with respect, incorrect. However, the assailant in the present case cut the victim in the neck directly with a sharp object, causing a laceration wound that measured as long as 25 cm and ran as deep as the subcutaneous tissue in the Platysma muscle. On such evidence, which was not in dispute, we believe that any reasonable jury would conclude that the “intent” required under section 17 had been sufficiently proved.
本庭相信原審法官是被“樣本指引”誤導，引致她不但提及“惡意”及“預見”的概念，更甚至提及“罔顧”的概念（看本文第18段劃線一段）。原審法官的處理方法是不正確的。但本案中襲擊者是以利器直接割傷受害人的頸部，令他蒙受長達25厘米及深至皮下組織下頸濶肌的裂傷。根據該些無爭議證據，本庭相信任何合理的陪審團都會認為第17條所需的“意圖”已獲足夠證明。

We reiterate that in the majority of similar cases where someone cut the victim intentionally with a sharp object, the trial judge is only required to point out that one of the essential elements of the charge is that when the defendant committed the acts in question he had the intent to cause grievous bodily harm, and it is not necessary for the judge to elaborate further on the word “intent”. As a matter of fact, this was not at issue in the present case.
本庭重申在大部分同類案件，當受害人遭人故意用利器割傷時，主審法官只需指出控罪要素之一是被告人作出犯罪行為時是有意圖導致受害人受嚴重傷害，而無必要再就“意圖”一詞再作詳盡闡述，而事實上，該議題在本案是沒有爭議的。

In the circumstances of the present case, it can hardly be disputed that someone had intentionally, unlawfully and maliciously harmed the victim causing him grievous bodily harm. The only issue was whether or not the applicant was the assailant. As the trial judge pointed out to the jury, “… the defence has never disputed that (Mr Wu) suffered grievous injuries, that it was unlawful to cause him injuries, and that the person who caused him injuries did so intentionally. None of these are in dispute. The only issue is whether or not that person was the defendant.”
以本案的案情而言，受害人遭人有意圖、非法及惡意傷害，令他身體受嚴重傷害根本是無可爭拗的事實，而案件唯一爭議點只是申請人是否就是襲擊受害人的兇徒。誠如原審法官向陪審團指出，“… 辯方根本唔爭議（胡生）係受咗嚴重傷害，去傷害嗰個人係非法嘅，去傷害嗰個人係有意圖咁做，呢啲根本完全唔爭議，唯一爭議喇，就嗰個係咪個被告。”

In the present case, although there might have been inaccuracy and ambiguity in the trial judge’s directions to the jury regarding “intent” and/or “malice”, such inaccuracy and ambiguity in no way rendered the conviction unsafe or unsatisfactory and therefore do not constitute a ground for overturning the conviction.
在本案，原審法官就“意圖”及/或“惡意”向陪審團作出的指引可能有不準確和含糊之處，但該些不準確和含糊之處絕不會令有關定罪不穩妥或不安全，故不構成推翻定罪的理由。

As regards the other ground of appeal, the trial judge had not suggested that Miss Chong was strongly observant or that the likelihood of coincidence was low. In the relevant parts of her directions, the trial judge went no further than setting out the relevant evidence and the parties’ respective cases and directing the jury on the factors they should consider before making findings of facts.
至於另外的上訴理由，原審法官並沒有暗示莊小姐的觀察力強，亦沒有暗示巧合的可能性低。原審法官在有關引導部分只是向陪審團列出有關證據及雙方的說法，並指示他們應考慮的因素而作出事實的裁斷。

In fact, regarding the evidence on the identification of the applicant by Miss Chong, the trial judge directed the jury as follows:
事實上，原審法官就莊小姐認出申請人的證供，向陪審團作出以下指示：

“The defence case is she has wrongly identified him. In other words, it is at least possible that the defendant has been wrongly identified, that [the assailant] was not the defendant. To prevent such unfair instances that had happened before, cases where people had been mistakenly identified – such incidences had happened before, that is during a trial, so in the present case I must remind you to consider very carefully before you rely on the evidence of identification by a witness, because witnesses may firmly believe that they are not mistaken or are very sure that they are not mistaken, but it does not necessarily mean they are in fact not mistaken, because you may all have had the experience of mistaking a person for another. At first glance, you may think someone you see in the street is a friend of yours, but on coming closer, you realize he/she is not. Such cases happen. Therefore, you must consider very carefully whether you can accept the identification evidence given by Miss Chong in this respect.”
“辯方就話佢認錯人，即係起碼有可能認錯人喇，嗰個唔係被告嚟嘅咁。因為為咗防止好似喺以前曾經試過有啲咁嘅情況就係唔公平嘅，認錯人嘅，試過有啲咁嘅情況，即係喺審訊嘅時候，咁所以喺呢件案件我一定要提醒你哋，你哋去倚賴一個證人作出辨認呢一方面嘅證供之前，一定要好小心考慮，因為啲證人可能佢自己深信佢係冇搞錯，佢好肯定佢自己冇搞錯，但係唔等於其實事實上佢係有冇搞錯，因為大家可能都有啲經驗就係認錯人㗎，喺街度行，咁嗰個以為佢自己嘅朋友，點知行埋去原來唔係嘅，都有咁嘅情況發生，所以你哋一定要好小心去考慮，你哋能唔能夠接納莊小姐就呢一方面認人嗰個嘅證供。”

We also reject Mr Ma’s argument, which we consider incorrect, that the trial judge had not pointed out clearly to the jury the possible weaknesses in the relevant evidence. On the basis of the prosecution evidence, and in particular when the applicant neither testified nor called any witness to explain, rebut or undermine the prosecution evidence, the jury was fully entitled to find that the applicant was the person who attacked the victim.
馬大律師指原審法官沒有清晰向陪審團指出有關證據可能潛藏的弱點亦不正確，本庭不接納。根據控方的證據，特別是在申請人沒有作供，亦沒有傳召證人去解釋、反駁或削弱控方證據時，陪審團絕對有權裁定申請人就是襲擊受害人的兇徒。

Given the circumstances of the case and the issue in dispute between the parties, once the applicant was found to be the person who attacked the victim, any reasonable tribunal would inevitably have found the applicant guilty of wounding with intent. Although the Mr Ma’s arguments are to a certain extent justified, the verdict of guilty against the applicant does not involve any miscarriage of justice. We do not consider the applicant’s conviction for the offence of “wounding with intent” unsafe or unsatisfactory. We have therefore granted leave to the applicant to appeal his conviction but dismissed the appeal.
以本案的事實及雙方的爭議而言，只要申請人是襲擊受害人的行兇者，任何合理的審裁機構都必會裁定申請人犯了“有意圖而傷人”罪。雖然馬大律師提出的論點有一定程度的根據，但裁定申請人有罪的決定並無任何司法不公。對申請人被裁定“有意圖而傷人”罪罪名成立，本庭不覺有任何不穩妥之處。本庭批准申請人就定罪提出上訴，但駁回他的上訴，維持原判。

Sentence
判刑

The present case presents difficulties in terms of sentencing. The applicant bore no grudge whatsoever against the victim but cut his neck with a sharp object for no reason. As the trial judge pointed out, had the applicant cut through the artery or other vital bodily parts of the victim, the victim would very likely have lost his life.
本案的判刑決定不容易作出。申請人和受害人無怨無仇，但卻無故用利器割受害人的頸部。誠如原審法官指出，如申請人割斷受害人的大動脈或其他重要部分，受害人極可能性命不保。

The motive of the applicant in committing the offence is unknown. He had been abusing drugs for as long as 20 years, causing him memory impairment, self-muttering, unexplained tremors, and visual and auditory hallucinations. The psychiatrist opined that the applicant suffered from drug-induced psychotic disorder and depression and had to be put on medication. However, the applicant refused and failed to attend follow-up consultations.
申請人犯罪動機不明，但他濫用藥物長達20年，令他記憶力衰退、會自言自語、身體無故震顫、視覺及聽覺都會有幻象。精神科醫生認為申請人患有藥物引起的精神病性障礙及抑鬱，需要服藥，但申請人拒絕亦沒有繼續覆診跟進其病況。

The psychologist was of the opinion that the applicant was prone to violence and had a propensity to anger. Apart from having previous convictions for drug trafficking and possession of dangerous drug, the applicant had been sentenced to imprisonment for possession of offensive weapon in a public place and wounding.
心理醫生則確認申請人有暴力傾向，容易發怒。除了有“販毒”和管有毒品罪行外，申請人亦曾因在公眾地方藏有攻擊性武器及傷人而遭判監。

We do not intend to surmise the reason why the applicant committed this offence, although his violent behaviour might have been caused by his mental or psychological state. The offence he committed is very serious, posing a threat to innocent members of the public, and must be dealt with severely.
本庭不打算猜測申請人犯案的原因，但他的暴力行為可能是由他的精神心理狀況所導致。申請人的罪行非常嚴重，對無辜市民造成威脅，必需嚴肅處理。

In sentencing, the trial judge indicated that the starting point for offences involving attacks out of retaliation or provocation was imprisonment for 3 to 12 years, and it went without saying that the length of imprisonment depended on the facts specific to the case.
原審法官判刑時表示一些出於報復或挑釁而去襲擊他人的罪行，判刑基準是3至12年，判刑長短當然要根據案件的具體事實而定。

The trial judge also referred to two cases involving attacks for no apparent reason: Secretary for Justice v Lam Kai Wah [2000] 2 HKLRD 246 and HKSAR v Wan Pak Sing aka Cheung Ka Ping (CACC 535/2003).
原審法官亦援引了兩宗無故傷人的案件，即Secretary for Justice v Lam Kai Wah [2000] 2 HKLRD 246及HKSAR v Wan Pak Sing aka Cheung Ka Ping（尹北勝又名張家平）（CACC535/2003）案。

In Wan Pak Sing, the defendant was a mental patient who, for no reason at all, attacked a complete stranger in the street, first with an umbrella and then with a chopper, causing serious injuries to his head and left hand. In the end, the judge ordered that he be admitted to a psychiatric centre for an unspecified time.
尹北勝案的被告人是一名精神病患者，他無故在街上先用雨傘再用菜刀襲擊一名陌生過路行人，令他頭部及左手受重傷。被告人結果被判入精神病院無限期接受治療。

In Lam Ka Wah, the defendant was not a mental patient but had a low I.Q.. As a result of anxiety, he got bogged down in worried ruminations in addition to not being able to control his own emotions. While waiting for a train in an MTR station and for no reason at all, he pushed a woman onto a railway track as the train was approaching. Fortunately, the victim remained calm and hid herself in the space between the tracks and therefore managed to save her own life. She nevertheless had her left hand crushed by the train, as a result of which she suffered permanent disability.
Lam Kai Wah案的被告人智商低，但並非精神病患者。他因為焦慮、陷於憂慮沉思，再加上情緒失控，而在地鐵站候車期間及列車即將駛至時，無故將一名女士推落路軌。幸好受害人鎮靜，躺在路軌中間，才幸免於難，但她的左手仍遭列車壓碎，導致她永久傷殘。

The Court of Appeal considered that the appropriate starting point was 15 years’ imprisonment. A severe sentence was imposed as the court had the duty to protect the safety of members of the public.
上訴法庭認為適當的量刑基準是15年監禁，重判原因是法庭有責任保障社會人士的安全。

The trial judge took the view that the offence in the present case was more serious than that in Lam Kai Wah because the applicant had a sharp weapon with him at the time of the offence. Therefore, the trial judge considered it necessary to adopt a higher starting point than that in Lam Kai Wah. A starting point of 17 years was adopted.
原審法官認為申請人的罪行較Lam Kai Wah案被告人的罪行更為嚴重，原因是申請人犯案時身懷鋒利兇器。因此，原審法官認為需要較Lam Kai Wah案更高的量刑基準，即17年監禁。

It is highly likely that the applicant in the present case and the defendant in Lam Kai Wah committed the offence for a similar reason. Nevertheless, we have reservations about the position taken by the trial judge that the offence in the present case was even more serious than that in Lam Kai Wah.
申請人犯案的原因極可能和Lam Kai Wah案被告人的犯案原因類似，但對原審法官認為申請人的罪行較Lam Kai Wah案被告人的罪行更嚴重的立場，本庭有保留。

It is true that in Lam Kai Wah, the defendant did not carry any weapon or use any weapon in the attack. However, his act of pushing a passenger waiting for a train onto the track when the train was approaching was tantamount to attempted murder. In the normal course of events, even if a person being pushed onto the track when a train is approaching is not killed, he or she is bound to sustain serious injuries.
雖然Lam Kai Wah案的被告人沒有攜帶兇器或利用兇器傷人，但他在列車即將到站時推一名候車人士落路軌的行為，等同意圖謀殺。一般情況下在列車即將駛至時，遭人推落路軌的人即使不死，亦會受重傷。

We are of the view that the offence committed by the applicant, namely wounding someone with a sharp object, is not more serious than that committed by the defendant in Lam Kai Wah, namely pushing someone onto a railway track when the train was approaching. Nor can we overlook the fact that although the victim in Lam Kai Wah was lucky enough to have survived the attack, she was left permanently disabled.
本庭認為申請人用利器傷人的罪行，並不比Lam Kai Wah案被告人在列車將至時推人落路軌的罪行較嚴重。本庭亦不能忽視，Lam Kai Wah案的受害人雖然幸免於難，但仍受永久傷殘。

The victim in the present case is left with a 25-cm long scar and suffers numbness in the right shoulder, but he is not left with other permanent disabilities. The consequences brought about by the offence are not as serious as those in Lam Kai Wah.
本案受害人頸部留有25厘米長的疤痕、右邊肩膊有麻痺，但沒有其他永久傷殘。申請人罪行導致的後果較Lam Kai Wah案的後果為輕。

In another similar case Secretary for Justice v Liu Chi Yung [2007] 4 HKLRD 182, the defendant, who was stopped by a police officer in the street for examination, suddenly produced a knife which he intended to use in a robbery and stabbed the police officer in the neck, causing serious injuries to the police officer and leaving him in a vegetative state. The Court of Appeal considered that the appropriate starting point was 15 years’ imprisonment. Although the defendant in that case was able to rely on a lot more mitigating factors (a clear record, remorse, voluntary surrender and a guilty plea) than the applicant is, we cannot overlook the fact that the victim in Liu Chi Yung suffered far more serious injuries than the victim in the present case did. In our view, the appropriate starting point in the present case should not be higher than those adopted in the above cases of Lam Kai Wah and Liu Chi Yung.
在另一宗同類案件（Secretary for Justice v Liu Chi Yung [2007] 4 HKLRD 182）的被告人當遭警員在街上截查時，突然從身上取出打算作搶劫用的刀刺向警員的頸部，令警員身受重傷，變成植物人。上訴法庭認為適當的量刑基準為15年監禁。雖然該案的被告人沒有案底，加上他有悔意，自動投案及認罪，求情理由遠較申請人為多，但本庭不能忽視Liu Chi Yung案的受害人蒙受的傷勢遠較本案受害人的傷勢為重。本庭認為適用於申請人的量刑基準不應較上述Lam Kai Wah和Liu Chi Yung案所採納的量刑基準為高。

In light of the offence in question, the way in which the applicant committed the offence and the consequences brought about by the offence, we are of the view that a sentence of 15 years’ imprisonment sufficiently reflects the gravity of the offence.  Therefore, we have granted leave to the applicant to appeal the sentence and, treating the application as the appeal proper, we have allowed the appeal against sentence and reduced the applicant’s term of imprisonment from 17 years to 15 years.
本庭認為以本案的控罪、申請人的犯案手法及其罪行導致的後果，15年監禁已足以反映其罪行的嚴重性。因此本庭批准申請人就判刑提出上訴，並視其申請為正式上訴。本庭判申請人就判刑的上訴得直，並將其刑期由17年減至15年。

Mr Martin Hui, Senior Assistant Director of Public Prosecutions of the Department of Justice, for the Respondent
答辯人：由律政司高級助理刑事檢控專員許紹鼎代表。

Mr David Ma and Ms Fiona Nam, assigned by the Bar Free Legal Service Scheme, for the Applicant
申請人：由香港大律師公會（法律義助服務計劃）委派大律師馬維騉及大律師藍凱欣代表。