Hon Yuen JA (giving the reasons for judgment of the Court):
上訴法庭法官袁家寧頒發上訴法庭判案理由書：

This appeal is concerned with evidence of “uncharged acts”, namely:
本上訴有關的議題是，“不被控告的行為”的證供 (evidence of “ uncharged acts”)

whether it is admissible;
是否可被法庭接納 (admissible) ，

if it is, how it should be dealt with in a judge’s directions to a jury.
如果被接納的話，法官應該怎樣向陪審團作出指引。

On 13 May 2010, after considering submissions from counsel for the Applicant and the Respondent respectively, we gave the Applicant leave to appeal, treated the application as the appeal proper and allowed the appeal.  We quashed the conviction and ordered a re-trial.  Our reasons appear below.
2010 年5月13日，本庭經考慮上訴申請人的大律師與及答辯人律師的陳詞後，給予申請人上訴許可，並視其申請為正式上訴。本庭判令上訴人上訴得直，撤銷其定罪，把案件發還重審。本庭的理由如下。

Background
背景

The Applicant Kwok Hing, Tony was charged with 7 offences, the 1st to 4th offences involving a girl (referred to as “Y”), and the 5th to 7th offences involving Y’s elder brother (referred to as “X”).  X was born in 1987 and Y was born in 1991.
申請人郭慶被控共7項控罪, 第一至第四項涉及一名女童(以下畧稱Y)，第五至第七項涉及Y的兄長 (以下畧稱X)。X 於1987年出生, Y於1991年出生。

In 1992, when X was 5 and Y was 1, the Applicant started to live together with their mother, and the two children regarded him as their stepfather.  In 2000, when X was 13 and Y was 9, the Applicant and their mother separated, whereupon the two children moved away with their mother whilst continuing to have contact with the Applicant, including visiting him at his home, which was where the two children used to live.
1992 年, 即X 5歲，Y 1歲時，申請人開始與他們的母親同居，兩名兒童視申請人為後父。2000年，亦即是X13歲，Y9歲時，申請人與他們的母親分居，兩名兒童跟母親搬出但繼續與申請人有聯絡，包括前往他的住所，亦即是兩名兒童以前居住的地方 。

Charges
控罪

In early 2007, the Applicant was charged with 9 offences, and after trial he was acquitted of 2 of the charges, leaving 7 charges for which the jury was unable to arrive at a verdict, leading to a re-trial.  The chronology of the 7 offences charged is as follows:
2007 年初，申請人被控9項控罪，審訊後就其中兩項，被裁定無罪，其餘7項控罪，陪審團不能作出裁決，所以需要重審。有關這7項控罪，時序如下:

On a day unknown about a week prior to the occasion in Charge 5 between 1 April 1993 and 31 October 1994, the Applicant committed gross indecency on X (then 7 years old), the prosecution alleging that the Applicant caused X to perform oral sex on him (Charge 7);
於1993 年4月1日至1994年10月31日期間的某日，在第五項控罪發生的一個星期前，向X(當時7歲) 作出嚴重猥褻作為，控方指申請人要X替他口交 (第七項控罪);

On a day unknown between 1 April 1993 and 31 October 1994, he committed buggery with X (then 7 years old) without his consent (Charge 5);
於1993 年4月1日至1994年10月31日期間的某日，與X (當時7歲) 作出未經同意的肛交 (第五項控罪);

On a day unknown between 1 September 2000 and 30 September 2000, he committed buggery with X (then 13 years old) without his consent (Charge 6);
於2000 年9月1日至9月30日期間的某日，與X (當時13歲) 作出未經同意的肛交 (第六項控罪);

On a day unknown between 1 September 2004 and 31 October 2004, he committed buggery with Y (then 13 years old) without her consent (Charge 1);
於2004 年9月1日至10月31日期間的某日，與Y (當時13歲) 作出未經同意的肛交 (第一項控罪);

On a day unknown between 1 January 2005 and 31 January 2005, he had unlawful sexual intercourse with Y (then 14 years old) (Charge 2);
於2005年1月1日至1月31日期間的某日，與Y(當時14歲) 非法性交 (第二項控罪);

On 27 January 2006, he had unlawful sexual intercourse with Y (then 14 years old) (Charge 3);
於2006年1月27日，與Y (當時14歲) 非法性交(第三項控罪);

On a day unknown between 1 September 2006 and 30 September 2006, he had unlawful sexual intercourse with Y (then 15 years old) (Charge 4).
於2006年9月1日至9月30日期間的某日，與Y (當時15歲) 非法性交 (第四項控罪) 。

Trial
審訊

In December 2007, the Applicant was retried before Barnes J and a jury.  Y being then 16 years old, the prosecution used her video recorded interview as evidence in chief, and she was cross-examined and re-examined by live television link.  X, then 20 years old, gave evidence in court.
2007 年12 月，申請人在原訟法庭張慧玲法官連同陪審團席前重審。Y 當時16歲，控方以錄影紀錄作為她的主問証供，而她是籍電視直播聯繫方式，接受盤問與及補問。X當時己20歲，他在法庭上作供。

At the conclusion of the trial the jury found the Applicant guilty on all charges, for which he was subsequently sentenced to a total term of  imprisonment of 18 years.  He applied for leave to appeal against conviction, for which this court granted legal aid, and he is now represented by counsel.  He has also applied for leave to appeal against sentence out of time.
最後陪審團裁定申請人全部控罪都成立，其後他被判監禁總共18 年。他申請許可就定罪提出上訴，本庭批准他可獲法律援助，他現有大律師代表。他亦申請了許可，就刑期提出逾期上訴。

Ground of appeal
上訴理由

The only ground of appeal against conviction is that when X and Y gave evidence, they alleged that apart from the 7 offences charged, the Applicant had also carried out similar acts on them on many occasions (referred to cumulatively below as “ uncharged acts”).  Y alleged that the Applicant had committed buggery with her without her consent on some 20 to 40 occasions, and also had sexual intercourse with her on 10 - 20 occasions.  When X was cross-examined, he also said that the Applicant had made him perform oral sex on him on more than 10 occasions, and committed buggery with him on more than 10 but less than 100 occasions.  The defence referred to X’s evidence at the previous trial at which he had testified that between 1993 and 2000, the Applicant had “molested” him on about 80 occasions and, on his reckoning, on more than 100 occasions.  X admitted that he had said so.
就定罪方面，上訴的唯一上訴理由，是有關X及Y作供時，都聲稱申請人除了7項控罪之外，也曾有多次向他們作出同類的行為 (以下統稱“不被控告的行為”, uncharged acts) 。Y聲稱申請人與她作出未經同意的肛交，有20至 40次，另外性交 10至 20次。而X被盤問時，亦說申請人要他替他口交超過10次，肛交亦超過10次，但應該不會超過100次。辯方亦帶出前一次審訊時，X作供時曾說1993 年至2000年間，申請人曾 “搞” 過他大約80 次，計起來甚至乎超過100 次。X承認他曾有這樣說過。

Judge’s directions
原審法官的指引

In respect of this evidence of “uncharged acts”, the judge gave the following directions to the jury [translated]:
就這些“不被控告的行為”的證供，原審法官向陪審團作出以下的指引 :

“According to [Y], in fact buggery and sexual intercourse were not restricted to the offences with which the Applicant is now charged, she has said that there was buggery on at least 20 occasions, and even possibly 30 - 40 occasions, but at least 20 occasions.  As for sexual intercourse, there were 10 - 20 occasions.
“根據 [Y] 講，其實肛交同埋性交係唔止而家被告面對嗰個控罪咖嘛，佢講咗喇，佢話如果肛交起碼二十次，甚至有可能三十至四十次添，不過起碼二十次喇。性交就十次到二十次。

And [X] also said that in fact there was buggery on more than one occasion, of course you must remember you can only consider and decide whether he is guilty of the 7 charges which he is now facing, that is, those are only background material, you should not say ‘I now say that buggery occurred at age 4, and that you are guilty of the offence on that occasion’, no, not so now, now our 7 charges state clearly within specific years, specific months, and where they occurred, so you can still only consider if he is guilty of the charges which he faces, but the background is that in fact it is said that these were not the only occasions”.  (Emphasis added in italics).
咁仲有就[X]都係話其實唔止一次肛交嘅，當然，你哋最緊要記住，就係你哋只係可以就係考慮決定佢而家被告面對嗰七項控罪係咪罪名成立喎，即係嗰啲係背景資料咗喎，你唔好話「我而家話你4歲嗰次有發生過肛交，而且你嗰次肛交罪名成立」唔係，而家冇，而家我哋就嗰七項控罪講得好清楚係邊一個年份、邊一個月份之內，喺邊個地點發生，所以你哋仍然只係可以考慮佢而家面對嘅控罪係咪罪名成立，不過個背景就係其實就話唔止呢幾次嘅”。(斜線後加，以示強調)

Further, Y had also said that the Applicant had sexually violated her at the age of 4, and the judge gave directions to the jury as follows:
另外，Y亦有說過她四歲時被申請人性侵犯，原審法官向陪審團作出以下的指引 :

“Now, you remember that [Y] said she had been sexually violated from the age of 4, she also said so in the note to the teacher, age 4, and I had told you yesterday ‘you must not say because she had mentioned age 4, you can say “look, the defendant had committed the offence at age 4"’, don’t, because the charges now do not have such an event at age 4, but only those 4 occasions, what you must consider is that what Y has come to speak about are those 4 occasions”.
“嗱，你哋記得 [Y] 講佢由4歲開始已經係被侵犯喇嘛，佢寫畀老師張紙都係咁寫喇，4歲，咁我琴日都同你哋講過「嗱，你哋千祈唔好話因為佢講過4歲，你就話『嗱，被告4歲嗰陣時曾經干犯』」唔好，因為而家個控罪冇4歲嗰啲咁嘅事嘅，凈係嗰四次嘅啫，你哋要考慮就 [Y]嚟講就係嗰四次” 。

Issue on appeal
上訴議題

The issue on the appeal is whether the above directions which the trial judge gave to the jury were appropriate or adequate.
本上訴的議題是，原審法官向陪審團作出上述的指引，是否適當或足夠。

We would first mention a matter of concern, which is that when an offence which a defendant faces refers to an “unknown date” within a lengthy period of time, and the location is a place where the defendant and the complainant are often likely to meet, the appearance of evidence of “uncharged acts” may lead to unfairness to the defendant, because if he cannot distinguish acts with which he is charged from those with which he is not, he would not be able to present a defence   corresponding to the charge.
本庭首先要提出令人顧慮的一點，就是當一名被告人面對的控罪所陳述的日期，是一段悠長期間內的 “某日”，而地點是被告人與投訴人經常會見面的地方時，“不被控告的行為” 的證供的出現，是可能會對被告人不公，因為他未能辨別哪項行為是被控告的，而哪項行為是沒有被控告的，而作出相應的答辯。

In Chim Hon Man v HKSAR (1999) 2 HKCFAR 145, the Court of Final Appeal has held that the defendant has a right to know clearly the particular act which forms the foundation of the charge.  Sir Anthony Mason NPJ said (pp.161-2):
終審法院在Chim Hon Man v HKSAR (1999) 2 HKCFAR 145 一案已提出，被告人是有權清楚知道作為控罪基礎的明確行為。非常任法官梅師賢爵士Sir Anthony Mason NPJ 說 (第161 頁):

At p.162, Sir Anthony applied S v The Queen (1989-1990) 168 CLR 266 which affirmed the principle that even though the case involved sexual molestation of a child over a long period of time, that does not provide an exception for the prosecution to present a specimen count.  At pp.163-4, Sir Anthony suggested how an indictment may be drawn to deal with a case where offences cannot be differentiated but which occurred over a relatively short period of time.
在該案例的第162頁，梅法官援引了 S v The Queen (1989-1990) 168 CLR 266 案例所確認的原則，就是即使案件涉及向兒童作長期性侵犯，控方仍然不能以例外為理而提出樣本控罪 (specimen count) 。在該案例的第163-4頁，梅法官提出了草擬公訴書的模式，處理一段較短時間內發生多項不可辨別罪行的案件。

However in our case, the 5th charge refers to an occasion when the Applicant committed buggery with X without his consent on an unknown date within the period 1 April 1993 to 31 October 1994.  This is a period of some 1½ years, but at the same time, X also said that between 1993 and 2000, the Applicant had sexually violated him in similar ways on numerous occasions, for which he was not charged.  When there is  evidence of charged acts and uncharged acts occurring on overlapping dates, then unless there is evidence of a special fact to validate the charged act, a defendant would find it difficult to know what is the date for which act he is charged, and to present a relevant defence to the charge.  This is a point to which the prosecution should pay particular attention when drafting an indictment.
但在本案中，第五項控罪指1993 年4月1日至1994年10月31日期間的某日，申請人曾有一次與X  作出未經同意的肛交。這段期間長達一年半，但與此同時，X 亦說於1993 至 2000 年內，申請人曾多次向他進行同類的性侵犯，但沒有被控告。當證據顯示，被控告的行為與及不被控告的行為，是發生在重叠的日期時，除非有特別事實的證據鑒定被控告的行為，否則一名被告人是難以知道他被控告的行為，其實是指哪一天的事，令他對控告作出有關的答辯。就這一點，控方在草擬公訴書時，是需要特別留意的。

Coming back to how one should deal with evidence of “uncharged acts”, counsel for the Applicant has referred us to a number of Australian cases, i.e. Gibb v The Queen 194 CLR 106, R v Nieterink (1999) SASR and Nicholas Kostaras [2002] SASC 326, among which Nieterink contains the most thorough and comprehensive discussions.
就如何處理 “ 不被控告的行為” 的證供，代表申請人的大律師向本庭援引了幾宗來自澳洲的案例，即Gibb v The Queen 194 CLR 106, R v Nieterink (1999) SASR 56 與及 Nicholas Kostaras [2002] SASC 326, 其中以Nieterink有最詳細及全面性的討論。

Principles of law
法律原則

In our view, the principles of law on evidence of “uncharged acts” derived from the above Australian cases and other English cases are as follows:
歸納上述案例與及其他英國案例的討論後，本庭認為有關“ 不被控告的行為” 的證供，法律原則如下:

The issue of whether evidence of “uncharged acts” is admissible or not must be decided on the individual circumstances of each case, and the court is not bound to refuse to admit such evidence by reason of its nature alone (R v M & Ors [2000] 1 WLR 421, 426-7. Citing R v Pettman (unrep) 2 May 1985, C.A.  R v M & Ors was followed in HKSAR v Chan Pui Mun CACC 514/2006 unrep 16 July 2008).
“不被控告的行為” 的證供是否可被法庭接納 (admissible evidence), 需視乎個别案件的情況而定，法庭並不需要因為其本質而必定拒絕接納該類證據 (R v M & Ors [2000] 1 WLR 421, 426-7, 援引R v Pettman (unrep) 2 May 1985, C.A. 。HKSAR v Chan Pui Mun CACC 514/2006, unrep. 16 July 2008亦有援引R v M & Ors) 。

Even though such evidence is not used in a particular case  as identification evidence of the defendant, or as similar fact evidence to prove that the defendant had committed the offence charged, or is deployed by the defendant to challenge the credibility of the complainant, the court may still admit evidence of “uncharged acts” in circumstances including the following:
在個别案件中，雖然該類證供並不是用來識别被告人的身份(identification evidence) ，或並不是以 “類似事實證據” (similar fact evidence) 用來證明被告人干犯了被控告的控罪, 或並不是由辯方提出用來挑戰投訴人的可信性，但法庭仍然可以接納 “不被控告的行為” 的證供，情況包括:

to prove the setting and context in which the offence occurred, or
用來顯示控罪發生的環境 (setting) 及全盤局面(context) ，或

to explain the defendant’s confidence in repeating the offence, or
用來解釋被告人重覆行動的信心，或

to explain unusual acts on the part of the complainant (such as the lack of surprise or fear, or the lack of complaint, or acts of acquiescence), or
用來解釋投訴人不尋常的行為 (例如沒有覺得驚慌，或沒有作出投訴，或順從的行為)，或

to explain why the complainant is unable to recall the specific date and details of the offence charged.
用來解釋投訴人為何不能清晰記起控罪的正確日期及詳情。

In summary, the court may admit evidence of “uncharged acts” if its refusal to do so would result in the jury having an incomplete or incomprehensible account of events.
簡單而言，如果法庭不接納這些證供的話，是會領到陪審團不能獲得一個完整及能夠明白的陳述時，則法庭是可以接納 “不被控告的行為” 的證供的。

Of course the court should refuse to admit evidence of “uncharged acts” if it considers that the prejudicial effect on the defendant outweighs its probative force.
當然，如果法庭認為這些證供對被告人的不利超越證供的舉證力量，法官是應該拒絕接納這些“不被控告的行為” 的證供的。

However if the court admits evidence of “uncharged acts”, the judge should be alert to two points when directing the jury on such evidence: (a) the standard of proof and (b) the use to which such evidence may be put.
但是如果法庭接納了“不被控告的行為” 的證供，法官向陪審團就這些證供作出指引時，需特別留意兩點: (a) 舉證的準則(standard of proof) 與及 (b) 這些證供的用途 (use) 。

(a) We consider that generally the standard of proof for evidence of “uncharged acts” should be beyond reasonable doubt.
(a) “不被控告的行為” 的證供的舉證準則，本庭認為一般來說，應該達到無合理疑點的準則。

(b) The use to which such evidence may be put may include explaining the nature of the relationship between the defendant and the complainant as well as the matters set out in point (2), but the judge must specifically remind the jury that they may not infer from such evidence that the defendant had committed similar offences, or that he is the sort of person with a propensity to commit the offence.
(b) “不被控告的行為” 的證供的用途，可包括用來解釋被告人與投訴人關係的性質 (nature of the relationship) ， 與及以上第 (2) 點所述的事情，但法官應該特地提醒陪審團，他們不可因為這些證供，而推斷被告人干犯了同類的罪行，或他是有干犯控罪的傾向的人 (propensity) 。

Discussion
討論

In the present case, as far as the standard of proof was concerned, the judge did not tell the jury that they must not consider such evidence unless they were sure that the “uncharged acts” had in fact occurred.
在本案中，就舉證準則一點，原審法官沒有告訴陪審團他們先需肯定“不被控告的行為” 確有發生，才可把這些證供考慮在內。

Further, in directing the jury, the judge said only that the evidence of “uncharged acts” was “background” or “background material”.  Although the word “background” has been used in previous cases to describe this type of evidence (Pettman), we agree with the court in Nieterink that the use of this word is debatable.  Words such as “background” and “background material” are ambiguous and may give the jury the impression that such evidence was uncontroversial (Nieterink paras. 90-91), or may give the jury the impression that the defendant had a propensity to commit the offence (Kostaras para. 53).  On top of that, the judge’s direction to the jury that the 7 charges the defendant now faced referred to specific dates and places may have given the jury the impression that the “uncharged acts” lacked only specific dates and places.
另外，原審法官向陪審團作出指引時，只是說 “不被控告的行為” 的證供是 “背景” 及 “背景資料” 。雖然曾有案例以這詞語(“background”) 來描述這些證據 (Pettman)，但本庭認同Nieterink 案例中法庭所說，利用這詞語作為指引是值得商榷的。“背景” 及 “資料”這些詞語用意含糊，可能給陪審團的印象，是這些證供不具爭議性 (Nieterink paragraphs 90-91) ，亦可能給陪審團的印象，是被告人有傾向干犯控罪 (Kostaras paragraph 53) 。加上原審法官向陪審團作出指引時說，被告人面對的7項控罪是有明確的日期與及地點，這可能給陪審團的印象，是“不被控告的行為” 只是欠缺了明確的日期與及地點。

For the reasons set out above, we took the view that the judge had failed to direct the jury on the standard of proof when considering the evidence of “uncharged acts”.  The judge had also failed to give adequate directions to the jury on the evidence of “uncharged acts”, resulting in unfairness to the Applicant.
基於以上理由，本庭認為原審法官遺漏指引陪審團，他們考慮 “不被控告的行為” 的證供時，應用的舉證準則。就“不被控告的行為” 的證供，法官亦沒有給予陪審團足夠的指引，對申請人造成不公。

Order
命令

Accordingly we gave the Applicant leave to appeal, treated the application as the appeal proper, allowed the appeal and quashed the conviction.
為此，本庭給予申請人上訴許可，並視申請為正式上訴，頒令上訴得直，撤銷定罪。

The Respondent having asked for a re-trial and this not having been opposed by counsel for the Applicant, we consider that this being a serious case, there should be an order for re-trial.  It is not necessary for us to deal with the application for leave to appeal against sentence.
答辯人要求重審，上訴人的大律師沒有反對，鑑於本案的嚴重性，本庭認為應該把案件發還重審。本庭不需要處理有關刑期的上訴許可申請。

Mr Paul Wu, instructed by Peter K.H. Wong & Co, assigned by the Director of  Legal Aid, for the Applicant
申請人: 由法律援助署委派王吉顯律師行轉聘大律師吳建五代表

Mr Edmond Lee, SPP of Department of Justice, for the Respondent
答辯人: 由律政司高級檢控官李俊文代表