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

Application for leave to appeal
上訴許可申請

The Applicant was charged with one count of rape.  He was convicted and sentenced to 6 years’ imprisonment after trial before Deputy Judge Pang with jury.  The Applicant applied for leave to appeal against conviction and sentence.  Mr. Lok, SC for the Applicant only made submissions on the application for leave to appeal against conviction.  On 24 June 2004, after the hearing of this application, the law firm which represented the Applicant informed this Court in writing that the Applicant had abandoned his application for leave to appeal against sentence. It is therefore unnecessary for us to deal with the application for leave to appeal against sentence.
申請人被控一項強姦罪，經高等法院原訟法庭彭偉昌暫委法官及陪審團審訊後，申請人被裁定罪名成立及判監六年。申請人對定罪及刑期提出上訴許可申請。但代表申請人的駱應淦資深大律師只針對定罪的上訴許可申請作出陳詞。2004 年 6 月 24 日，在本申請聆訊後，代表申請人的律師行致函本庭，通知本庭申請人放棄要求減刑的申請。故此本庭不需要處理針對刑期的上訴許可申請。

Facts
案情

According to the facts, the victim was an Indonesian domestic helper. From 7 January 2002 onwards, she was employed by the Applicant and lived with his family members in the same flat.  There were two bedrooms in the flat, one being the bedroom of the Applicant and his wife and the other being that of the victim and the Applicant’s two children.  The victim shared the lower bunk of a double bunk bed with the Applicant’s one-year-old son while the Applicant’s five-year-old daughter slept on the upper bunk.
案情顯示，受害人是一名印尼籍的家庭傭工。她於 2002 年 1 月 7 日起受聘於申請人及與其家人居住在同一單位內。該單位內有兩個房間。其中一個房間是申請人和他的妻子的睡房，另一個房間是受害人及申請人的一對子女的睡房。受害人和申請人的一歲大兒子睡在一張雙格床的下格，而申請人的五歲女兒則睡在該雙格床的上格。

At about 7:00 a.m. on 24 August 2002, the Applicant entered the victim’s room and forcibly had sexual intercourse with her. The victim resisted, but in vain. Only when the Applicant heard some sound coming from the upper bunk of the double bunk bed did he stop the intercourse and left the room.  After the incident, the victim saw bloodstain at her private parts and on the bed sheet.  At about 1:00 pm that day, the victim phoned an elder sister of hers who was working in Hong Kong and told her that she had been raped by the Applicant.  The victim then called the police.  She said she had no sex experience whatsoever prior to the above incident.
2002 年 8 月 24 日早上約七時，申請人走進受害人的房間，強行和她進行性交，受害人反抗不遂，後來申請人只是因為聽到有聲音從雙格床的上格傳出才終止性行為及離開房間。事後，受害人發現下體及床單有血漬。當日下午一時左右，受害人打電話給在香港工作的一位姊姊，並告訴姊姊她被申請人強姦。受害人接着報警。受害人說她在這次事件之前沒有任何性經驗。

The forensic pathologist said he only found signs of fresh lacerations on the victim’s hymen and that he did not find any old laceration thereon.  He also pointed out that most females would sustain hymenal lacerations after having sexual intercourse for the first time, but that if the victim in this case had had sexual intercourse with the same male for ten odd times, there should not be any new laceration on her hymen or any further bleeding arising from rupture of the hymen.
法醫官指出，他只發現受害人的處女膜上有新的撕裂痕跡，但沒有舊的裂痕。法醫官又指，大部分女性在進行了第一次性交後都會有處女膜撕裂的現象，但如果本案的受害人曾經和同一名男子發生過十多次的性交，她的處女膜是不應該再有新的裂痕，亦不會再發生因處女膜破裂而流血的情況。

The Applicant elected to give evidence.  He said that he did have sexual intercourse with the victim that morning but claimed that the victim did so voluntarily.  He further said he and the victim had already had sex before this incident.  They had sex for the first time in late February 2002, and in the following six months, they had sex for more than ten times. The Applicant said he would give money to the victim after each intercourse, which he regarded as a transaction, but he did not give her money on this particular occasion.
申請人選擇作供，他說他在當天早上曾和受害人性交，但他指這是在受害人自願的情況下進行的。在這次事件之前，他和受害人已有性關係。第一次和受害人發生性關係是在 2002 年 2 月底，之後的六個月內他和受害人共有超過 10 次性交。申請人指他在事後會付錢給受害人以當為交易，但這次就沒有給她金錢。

Grounds of appeal
上訴理由

Mr. Lok, SC advances two grounds of appeal on behalf of the Applicant. The first ground is directed at the burden of proof and the second ground concerns the direction on lies given by Judge Pang.
駱大律師提出兩項上訴理由。第一點是涉及舉證的責任。第二點是涉及彭法官所作出的謊言指引。

Burden of proof
舉證責任

The Hong Kong Judicial Studies Board (“Studies Board”) has provided judges with specimen jury directions (“specimen directions”) for use in criminal trials in the Court of First Instance.  The specimen directions, which aim to assist judges in giving proper guidance to the jury, contain directions that judges usually give, for example, the burden and standard of proof, how to approach the evidence, rights of the defendants and elements of certain offences.  Paragraph 2.1 of the specimen directions states that, where the judge has referred to the grounds of defence in the directions to jury, the judge should remind the jury that the defendant has no duty to establish the truth of those grounds and that if the account given by the defendant is true, then the jury must acquit him, but “if that account may be true”, then the jury “must also acquit him”.
香港司法人員培訓委員會（‘培訓委員會’）就原訟法庭刑事審訊提供陪審團指引樣本（‘指引樣本’）給法官。指引樣本的目的是協助法官對陪審團作出適當的引導。指引樣本的內容是提供一般法官經常要作出的引導，例如：舉證責任與舉證標準、如何處理證據、被告人的權利及某些罪行的犯罪要素等等。該指引的 2.1 段指出，若法官在引導陪審團時曾經提及答辯人的答辯理由，法官就需要提醒陪審團被告人沒有責任去證實這些答辯理由及若被告人所說的是真實的話，陪審團必須判他無罪；然而只要被告人〝所說的有可能是真實的話〞，他們〝也是必須判他無罪的〞。

As Mr. Lok, SC has pointed out, Judge Pang had indeed not given the aforesaid directions in this case.  Therefore, we have to consider whether the failure to give the aforesaid directions according to the specimen directions was such as to render the conviction unsatisfactory or unsafe.
駱大律師指彭法官並沒有在本案作出上文引述的指引。彭法官的確沒有作出該指引，故此本庭需要考慮彭法官沒有根據指引樣本作出該指引會否影響定罪的穩妥或安全性。

Regarding the burden of proof, Judge Pang directed the jury in the following terms:
在本案，彭法官就舉證責任曾向陪審團作出以下的指引，有關的指引節錄如下：

I have to raise another extremely important issue here, which is how you should arrive at a verdict.  First, please bear in mind that under the current system, a defendant is innocent unless and until he is found guilty, and the burden of proving guilt of the defendant falls entirely on the prosecution.  Having brought a charge, the prosecution must bear the burden of establishing the charge.  It is as simple as that.  In other words, a defendant is not guilty just because he is sitting in the dock and being kept under guard.
喺呢度，我又要提出另一個非常重要嘅問題，就係你哋點去衡量呢個裁決。首先，請你哋記住，喺現行制度之下，被告一日未定罪，佢就一日無罪，而證明被告有罪嘅責任，全在控方。控方既然提出起訴，就有責任去證明有關嘅控罪，就係咁簡單。換句話講，被告雖然坐喺犯人欄裡面，有人看管，但係絕不表示佢咁就有罪。

What is more, the defendant bears no burden whatsoever to prove his innocence and, therefore, is under no obligation to give evidence or call any witness.  Even if he does both – and the defendant in this case has done both, has he not? – he has no duty to prove what they say is true.  So how should it be?  It is rather for the prosecution to prove that his evidence is untrue.  To prove that the defendant is guilty, the prosecution still has to convince you to accept the evidence adduced by it, and also explain what other evidence is favourable to the prosecution and why.  All in all, it still boils down to this: the burden of proving the defendant’s guilt rests with the prosecution.  This is the first point.
唔單止咁喎，被告係冇任何責任去證明自己嘅清白嘅，所以亦冇責任作供，或者傳召證人。就算佢兩樣都做齊 —— 事實上佢有吖，係咪？—— 佢都冇責任去證明佢哋嘅講法係真嘅，而係點呢？而係由控方去證明佢係假嘅。要證明被告有罪，控方仍然要說服你哋，接受控方提出嘅證據，同埋點解，有啲咩其他嘅證據對控方有利，講到底，仍然都係嗰句說話，證明被告有罪嘅責任喺控方，呢個係第一點。

Now let me talk about the second point.  Given the burden of proof is on the prosecution, to what extent and up to what standard must it prove in order to establish the defendant’s guilt?  The answer is: it has to prove beyond reasonable doubt.  This means the prosecution has to prove to the point where you are sure that the defendant did commit the offence in question.  These two statements are complementary.  I have mentioned that before, have I not?  In other words, only when you have considered all the evidence and believe that there is no reasonable doubt, or to put it in another way, only if you are sure that the defendant committed the offence, can you return a verdict of guilty.
再講第二點，舉證嘅責任既然喺控方，咁佢哋要舉證到咩程度，咩標準，先能夠證明被告有罪呢？答案係，直到冇合理疑點為止，亦即係話，要你哋肯定被告曾經干犯有關嘅控罪為止。呢兩個講法係相通嘅，我之前已經提過喇，係咪？換言之，只有喺你哋考慮過所有嘅證據，認為冇合理疑點，又或者講，肯定被告曾經干犯有關嘅控罪嘅情況之下，你哋先能夠裁定佢罪名成立。

On the contrary, if, viewing the evidence as a whole, you consider there is reasonable doubt, or if you are not sure whether the defendant committed the offence, you must return a verdict of not guilty.  This is the meaning behind the saying ‘the benefit of doubt shall be given to the defendant’ that you often hear.
相反，如果你哋認為證據嘅整體，有合理疑點，又或者唔肯定被告曾經干犯有關嘅控罪，咁你哋就必須裁定佢罪名不成立。呢個亦都係你哋成日聽到咩『疑點嘅利益要歸於被告』嗰句說話背後嘅意思」。

Judge Pang also said:
彭法官亦說 ：

On the other hand, given the prosecution bears the burden of proof, you cannot simply jump to a verdict of guilty even if you do not believe the defendant or his witnesses at all.  It is because in the end, it still depends on whether the evidence adduced by the prosecution and such other evidence that you may accept as true is sufficient so that you are sure the defendant is guilty.
反過嚟，舉證嘅責任既然喺控方，咁你哋就算完全唔信被告同佢嘅證人，亦唔能夠就咁定被告嘅罪，因為結果仍然要視乎控方所提舉嘅證據，同其他你接受為真實嘅證據，係咪足以令你哋肯定佢有罪。」

All the above directions were given in accordance with the specimen directions and fully explained the prosecution’s burden of proof and the defendant’s legal rights.
上述的指引都是根據指引樣本作出的，這些指引亦充分闡釋控方的舉證責任及被告人的法律權利。

Judge Pang said that if the jury considered that the evidence, viewed as a whole, raised a reasonable doubt or if the jury could not be sure whether the Applicant had committed the offence in question, then they were bound to find the Applicant not guilty.  In our view, if a person with legal knowledge is not sure whether the Applicant committed the offence in question, this certainly includes the situation in which he considers the account given by the Applicant true or possibly true.  However, for a jury unarmed with legal knowledge, if they think that the Applicant’s defence may be true, does this necessarily mean they will then be unsure whether the Applicant committed the offence in question?
彭法官說，如果陪審團認為整體的證據，有合理疑點，又或者陪審團不能肯定申請人曾經干犯有關罪名，這樣他們就必須裁定申請人的罪名不成立。本庭認為，對於有法律知識的人來說，若他未能肯定申請人曾經干犯有關的控罪，這肯定是包括他認為申請人所說的話是真實的，或者是有可能是真實的，但對於沒有法律知識的陪審團來說，若他們認為申請人的答辯理由有可能是真實的，這是否會必然令他們不能肯定申請人曾經干犯有關的控罪呢？

Had Judge Pang only given directions on the burden of proof without also giving directions on other aspects, we would have reservations over the above question.  First, if the evidence in the case had totally come from the prosecution, the directions given by Judge Pang would have been adequate, because the jury had been directed that, if they thought the prosecution evidence raised a reasonable doubt or if they were not sure whether the Applicant had committed the offence in question, then they had to return a verdict of not guilty.  If a defendant elects to give evidence and the jury consider that the account given by the defendant is true, then as a matter of logic they should have no difficulty in finding the defendant not guilty.  If, however, the jury think that the defence may be true but are not absolutely sure that it is true, what should they do?  Our experience tells us that, far from being an academic issue, this is a real problem which will very likely arise. If the judge has not given other directions to the jury or told them in explicit terms that the defendant should be acquitted in such a situation, we very much doubt whether the jury will necessarily say that in such a case they are not sure whether the defendant committed the offence in question and therefore the defendant has to be acquitted.  We do not rule out the possibility that a jury with no legal knowledge may be troubled where “the account given by the defendant may be true”.  At the very least, when they are confronted with this issue, they will very probably fail to appreciate its importance and, as a result, fail to acquit the defendant promptly.
倘若彭法官只單單作出舉證責任的法律指引，而沒有作出其他指引的話，本庭會對上述問題有所保留。首先，若案件的證據完全來自控方，彭法官的指引是足夠的，因為如果陪審團認為根據控方提供的證供有合理疑點，又或者不肯定申請人干犯有關控罪，他們已經被指導必須裁定申請人罪名不成立。若果被告人選擇自辯，而陪審團認為被告人所說的是真實的，從常理來說他們是應該沒有困難裁定被告人無罪，但陪審團如何處理他們認為答辯理由是有可能是真實的，但卻不能完全肯定是真實呢？經驗告訴我們這情況不是一個學術的議題，而是極有可能發生實際的事，若法官沒有作出其他指引，亦沒有直接了當地告訴陪審團他們在這情況下應該裁定被告人無罪，本庭不認為陪審團是會必然說，由於這樣他們是不肯定被告人干犯有關控罪因而裁定被告人罪名不成立。本庭不排除‘被告人所說可能是真實的’對沒有法律知識的陪審團來說是會產生困擾的，從最基本的角度來看，他們在面對這議題時是極有可能意識不到這一點的重要性而及時裁定被告人無罪。

A verdict of guilty indicates that the jury are satisfied that the case against the defendant is proved beyond reasonable doubt.  However, before returning a verdict of guilty, in all likelihood they have to consider whether the defendant’s evidence may be true.  The court cannot assume from a verdict of guilty that the jury have not found it necessary to consider whether the defendant’s evidence may be true.  To make such an assumption is to put the cart before the horse.  The relevant principle, which is but a crystallisation of past experiences, is to explain, positively and clearly and in simple language, to a jury with no legal knowledge how the rules on the burden of proof are applied in practice.  It is in our view possible for a set of directions that do not follow the relevant principle to be incomplete and to render a verdict unsafe and unsatisfactory. As Stuart-Moore VP in HKSAR v Sze Kwan-lung CACC 92/2002 pointed out, although many of the specimen directions given to a jury will need to be adapted to the circumstances of the case being tried, the directions on the burden and standard of proof are, in view of their obvious importance, intended to be extremely straightforward and easy to understand and do not usually require any adaptation or further amplification.
陪審團裁定一名被告人罪名成立，這是表示他們是認為案情是無合理疑點，但達到這步驟之前，他們是極有可能需要考慮被告人的證供是否可能是真實的，法庭不可以單靠陪審團定罪的裁決來否定他們不需要考慮被告人的證供是否可能是真實的，否則便是本末倒置的做法。有關的原則是一項累積前人經驗，採用簡單的言語向沒有法律知識的陪審團正面地清楚說明舉證責任實際運用的原則，本庭不排除一份欠缺有關原則的指引是可能會令指引不完整的及會令裁決不穩妥及不安全的。正如司徒冕副庭長在香港特別行政區訴施君龍（譯音）CACC 92/2003 一案所說，雖然指引樣本內的很多指引是需要因應案情來作出修改後才可使用，但基於舉證責任及舉證標準之重要性，所以有關這方面的指引是極之直接及容易明白的，它們通常是不需要更改或加以補充的。

The Court of Appeal (Hon Ma CJHC, Stuart-Moore VP and Stock JA) also pointed out in HKSAR v Wong Wai-man (No.2) [2003] 4 HKC 517 that the above specimen directions were usually used and appropriate.  In that case, the jury asked the trial judge whether they could disregard the evidence given by the police or the appellant if they had doubts about that evidence.  In response, they were directed that, if they were not sure that the evidence from either the prosecution or the defence was true, they could disregard it.  The Court of Appeal held that this direction was erroneous because if the jury took the view that the account given by the defence was true or might be true, they should, instead of disregarding that evidence, take it into account in deciding whether the prosecution had discharged the burden of proof.
上訴法庭（高等法院首席法官馬道立，上訴庭副庭長司徒冕，上訴庭法官司徒敬）在香港特別行政區訴黃偉民（譯音）[2003] （2 號）4 HKC 517 一案亦指出上述的指引樣本是通常使用及適當的指引。在該案，陪審團詢問原審法官如果他們對警察或上訴人的證供存疑，他們是不是可以不理會這些證供。法官給他們的指引是，如果他們不肯定控方或辯方的證供是真實的，他們便不需理會那些證供。上訴法庭認為有關的指引是錯誤的，因為若陪審團認為辯方所說的話是真實的或者是有可能是真實的，他們是有需要藉此考慮控方是否舉證成功，而不是不需理會這些證供。

Although the issues involved in that case were different from those of the present case, the crucial point is that the relevant direction is usually used and is an appropriate one.  In R v Liberato (1985) 159 CLR 507, Brennan J of the High Court of Australia also said:
雖然該案的議題和本案不同，但重點是有關的指引是一項通常使用及適當的指引。澳洲高等法院 Brennan 法官在英女皇訴 Liberato (1985) 159 CLR 507 一案亦說：

When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence.
「如果案件結果的關鍵在於控辯雙方証人証言之間互相矛盾，那麼法官通常會請陪審團考慮這個問題：“究竟相信哪一方？” 但法官必須作適當的指引，確保假如這個問題（這個無論如何陪審團肯定會向自己提出的問題）的答案對辯方不利的話，陪審團也不會就此下結論，斷定控方已經毫無合理疑點地証明了其負有舉証責任的爭議點。法官必須告訴陪審團，即使他們認為控方的証據比較可取，也不應該就此裁定被告罪名成立，除非他們毫無疑點地信納該証據屬實。

The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue.
法官必須告訴陪審團，即使他們不完全相信辯方的証據，在某爭議點上，只要辯方的証據引起了合理疑點，他們就不能就該爭議點作出與辯方証據相悖的判斷。」

The purpose of giving these directions to the jury at great length is to ensure that they practically and correctly apply these principles.  We believe that the relevant specimen directions will fully serve this purpose.  We do not agree that using those directions is merely adding embroidery to silk.
法官不厭其詳地向陪審團作出這些指引，其目的是為了確保陪審團能夠實際地及正確地運用這些原則。本庭認為有關的指引樣本是會全面地發揮這個目的。本庭不認同採用這指引只是錦上添花的做法。

Nevertheless, it must be stressed that the court cannot deal with the question of “whether the account given by the defendant may be true” in isolation and overlook the facts of the case and the entire set of directions.  In the present case, the entire set of directions given by Judge Pang has to be looked at when considering whether the verdict was rendered unsafe by the absence of a relevant direction.
但本庭需要強調一點就是在處理‘被告人所說的是否可能是真實’的議題時，法庭不可以單獨處理這議題而忽略了案情及整份指引。本庭需要以彭法官作出的整份指引來考慮會否因欠缺一個相關的指引而令到該裁決變得不穩妥。

Judge Pang did not only give legal directions on the burden of proof, but also applied the legal principles to the issue in dispute.
在本案，彭法官不單只向陪審團提出舉證責任的法律指引，他還將法律原則引申到具爭議性的議題中。

The evidence for the prosecution and that for the defence in this case was diametrically opposed.  The victim said that she did not consent to sexual intercourse, whereas the Applicant claimed that she did consent to it and that they had had sexual intercourse on many occasions in the few months prior to the incident but just that he did not give her money on this occasion.  Towards the end of his summing up, Judge Pang had this to say:
本案雙方的證供互相衝突，受害人說她不同意性交，但申請人卻說她是同意的，而案發前數月內他們已有多次性交，只是這次他沒有給她金錢。彭法官在他作出的指引的末段這樣說：

Finally, I would like to say that an accusation of rape can easily be made but cannot be easily refuted, especially when sexual intercourse has actually taken place.  In the present case, apart from the evidence of the victim herself, there is in fact no evidence to show that the defendant had sexual intercourse with her against her will.  Even if you believe that she had no sex experience prior to the occasion in question, this in itself is not sufficient to prove that she was unwilling to have sexual intercourse, is it?  Therefore, before you convict the defendant, you have to be very careful.  In any event, please bear in mind that you can convict the defendant if and only if you are sure that the victim did not consent to sexual intercourse at the material time and that the defendant knew that the victim did not consent or was reckless as to whether she consented.  Otherwise, you must acquit the defendant.  (Emphasis supplied)
最後，我想講嘅係，強姦嘅指控好易提出嘅，不過反駁就難，尤其係真係有過性行為嘅情況之下。事實上，本案除咗事主本身嘅證供之外，就冇證據證明佢係喺唔自願嘅情況之下同被告性交喇。就算你哋相信佢之前係冇性經驗嘅，呢次係第一次，呢點本身都唔足以證明佢係不願意嘅，係咪？所以如果你哋要定被告嘅罪嘅話，就要非常之小心。無論如何，請你哋記住，你哋一定要肯定事主當時係唔同意性交嘅，而又肯定被告知道事主唔同意性交，又或者罔顧佢同唔同意，先可以裁定佢罪名成立。否則，就一定要裁定被告罪名不成立。」（劃線為本庭後加）

The underlined sentences in the above direction clearly conveyed the message that, if the jury could not be sure that the victim did not consent to sexual intercourse at the material time, they must return a verdict of not guilty.  In directing the jury, Judge Pang did not simply set out dull and dry legal principles, but also explicitly illustrated the application of the principles relating to proof.  In these circumstances, we believe that, had the jury concluded that the Applicant’s evidence that the victim consented to sexual intercourse might be true, they would have clearly understood that such a conclusion meant that they could not be sure that the victim did not consent to sexual intercourse at the material time and, as a consequence, would have found the Applicant not guilty.  It follows that, even though Judge Pang had not given the relevant direction, the verdict of this case was still safe and satisfactory.
這指引的劃線部分清楚顯示了一個訊息：倘若陪審團不能肯定受害人當時是不同意性交的話，他們一定要裁定申請人罪名不成立。彭法官並不是單單向陪審團作出一些枯燥乏味的法律原則指引，而是直接了當運用這些舉證原則作為實例。在這情況下，如果本案的陪審團作出的結論是申請人說受害人同意性交的證供可能是真實的，本庭相信他們會清楚了解這是表示他們不能肯定受害人當時是不同意性交，因而裁定申請人無罪，故此就算彭法官沒有作出有關的指引，本案的裁決仍是穩妥的。

In our view, there is nothing in the first ground of appeal.
本庭認為第一個上訴理由不是一個充分的上訴理由。

Direction on lies
謊言的指引

The second ground of appeal is directed at the presence of a “lies” direction.  In his summing up, Judge Pang said:
第二個上訴理由是彭法官在指引陪審團時曾作出了謊言指引。他說：

In fact, as what the defence counsel said in his final submission, accused persons may not be telling the truth, but this is not necessarily because they are guilty.  They may just want to bolster a true defence, or they may feel that it is not so easy to have the true story believed.  So, what will they do?  To borrow popular language, they will ‘exaggerate a bit’.  Or the true story may involve conduct which was disgraceful but fell short of bring criminal.  Or the accused persons were in panic at that moment and did not know what to do.  There are all sorts of reasons.  Hence, if you really think that something said by the defendant is unbelievable and that he was lying, but that he may have lied for one of the reasons I have just mentioned which have nothing to do with his guilt, then the only thing you should do is to disregard the part consisting of the lies and focus on all the other evidence which you accept as true, including that part of evidence from the defendant which you accept to be true.  Here I have to make this clear: I am not saying the defendant has lied.  What I mean is that, even if you firmly believe he has told a lie, you should not and cannot convict him simply because of that.
其實，正如辯方律師喺最後陳詞咁講，被起訴嘅人，係可能唔講真說話嘅，但係就唔一定因為有罪個喎。有時佢哋只係為咗要加強一個真實嘅辯護，又或者覺得個實情唔係咁易令人相信，所以點呀？講得俗啲，即係作大少少咁喇。又或者個實情涉及一啲唔係咁光彩，但係又唔至於犯罪嘅行為。又或者係一時驚惶失惜，唔知點，林林總總嘅。所以，假如你哋真喺唔相信被告講過嘅一啲咩嘢，認為佢講大話，但係就可能係為咗我剛才提到嗰啲同有罪無關嘅原因，咁你哋唯一應該做嘅，就係去摒棄佢講大話嗰部分，而集中考慮任何其他你哋接納為真嘅證據，包括從被告而嚟而你哋又認為係真嘅嗰部分嘅證據。呢度，我要澄清，我唔係話被告講過啲咩大話。我嘅意思係，就算你哋認定佢講過啲咩大話，亦都唔應該，同埋唔能夠，就咁去定佢個罪。」

Mr. Lok, SC contends that it was not necessary to give any “lies” direction.  He points out that the prosecution case and the defence case were in direct conflict.  The victim alleged that she had been raped by the Applicant, but the Applicant said that she had consented to sexual intercourse with him.  In that case, if the jury accepted the victim’s evidence as true, they would necessarily be also finding that the Applicant had lied.  Therefore, the trial judge did not have to give any “lies” direction at all.
駱大律師認為彭法官不需要作出謊言指引。他指本案控辯雙方的案情是對立的。受害人指稱她被申請人強姦，而申請人則說是在受害人同意下和她性交，在這情況下，若陪審團認同受害人的證供為事實，就必同時認為申請人在說謊，所以原審法官根本無須作出任何謊言指引。

In the Court of Final Appeal case of Yuen Kwai-choi v HKSAR [2003] 2 HKC 337, Hon Chan PJ said that:
終審法院常任法官陳兆愷在袁貴才（譯音）訴香港特別行政區 [2003] 2 HKC 337 一案指出:

Where there is no need for such a ‘Lucas’ direction (a direction on lies), as in the normal case where there is a straight conflict of evidence, it will add complexity and do more harm than good.  In the great majority of cases where the prosecution contends that an accused is telling lies in the witness box, a direction on lies is inappropriate (R v Barnett [2002] 2 Cr App R 168, 173).  In cases where the rejection of any explanation given by an accused almost necessarily leaves the jury with no choice but to convict as a matter of logic, or where the jury are asked to decide on the truth of what an accused said on a central issue in the case, the usual direction on the burden and standard of proof would normally be sufficient.
當控辯雙方的證據有直接衝突時，一般情況下實無需作出 “Lucas”（謊言）指引，否則只會令事件更為複雜及害多於利。在大部份案件當控方指被告人在證人臺作供時說謊，“謊言指引”是不適當的（見 R v Barnett [2002] 2 Cr. App. R 168,173）。如在案件中，否定被告人的解釋，必然會導致定罪的決定或當陪審團要決定應否接納被告人就案件的重點所作的解釋時，一般情況下採納就舉證責任和舉證標準的慣常指引實已足夠。」

The above principle was adopted by this Court (Hon Cheung, Yeung and Yuen JJA) in HKSAR v Tung Wing-so (transliteration) CACC 201/2003.
本庭（上訴法庭法官張澤祐、楊振權及袁家寧）在香港特別行政區訴董穎甦 CACC 201/2003 亦採用上述原則。

The Respondent in this case has conceded that it was not necessary to give any “lies” direction.  This notwithstanding, we take the view that the direction in question was given in light of the Applicant’s evidence that he had had sex with the victim for ten odd times before and of the evidence given by the forensic pathologist.  In giving the direction, Judge Pang intended to remind the jury that they should not convict the Applicant just because they believed he had lied and that they should consider other evidence of the case to decide whether the Applicant was guilty.
雖然答辯人認同彭法官無須就本案作出謊言指引，但本庭認為彭法官的指引是針對申請人說之前與受害人有十多次的性接觸，及有關法醫官的證供而作出的。他的目的是要提醒陪審團不要因為他們認定申請人說謊而判他罪名成立，而是要考慮案件的其他證據去決定申請人是否罪名成名。

Even though there had been no necessity for a “lies” direction, it does not follow that the direction given by Judge Pang would have confused the jury or rendered the verdict unsafe and unsatisfactory.  The Applicant’s second ground of appeal is accordingly rejected.
就算彭法官不需要作出上述的謊言指引，但這也不表示這指引會混淆陪審團或令他們的裁決不穩妥。本庭不接納這上訴理由。

Conclusion
總結

The application for leave to appeal is dismissed.
本庭拒絕今次上訴許可申請。

Mr. Cheung Wai Sun, Deputy Principal Government Counsel and Ms. Lau Siu Yee, Senior Government Counsel, for the Respondent.
答辯人：由律政司張維新副首席政府律師及劉少儀高級政府律師代表。

Mr. Lawrence Lok, SC and Ms. Gekko Lan, instructed by Li, Wong & Lam, for the Applicant.
申請人：由李黃林律師行轉聘駱應淦資深大律師及藍雪溋大律師代表。