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理由書：

The applicant was charged with one count of robbery.  He was convicted and sentenced to 4 years’ imprisonment by Deputy District Judge Kwok (“Judge Kwok”).  The applicant applied for leave to appeal against conviction.  At the conclusion of the hearing, we allowed the application and, treating it as the appeal, allowed the appeal and quashed the conviction.  The reasons for our judgment are set out below.
申請人被控一項搶劫罪。區域法院暫委法官郭啟安裁定申請人罪名成立及判處他四年監禁。申請人就定罪提出上訴許可申請。本庭聆訊後批准申請，視申請為正式上訴及撤銷定罪。這是本庭的判決理由。

The facts
案情

According to the “Summary of the Prosecution’s Case” in Judge Kwok’s Reasons for Decision, PW1 and the applicant both lived in Sun Chui Estate, Shatin and had known each other for many years.  At around 6:20 p.m. on 19 February 2006, PW1 came across the applicant in the said housing estate.  The applicant put a hand on PW1’s shoulder and said, “I’m holding a knife.  I’m in need of money.  Something happened … I just want to take the phone now.”  PW1 felt that a hard object was pressing against his waist.  After the applicant said the above, PW1 asked him whether he only wanted to take away his phone.  The applicant answered, “Yes.”  PW1 indicated agreement and pointed to his mobile phone which was placed in a leather case worn around his waist.  The applicant took away PW1’s phone and left the scene.  According to PW1, when the applicant left, he was holding PW1’s mobile phone with one hand and a shiny silver-coloured object which looked like a knife with the other.
根據郭法官的判決理由書內的「控方證據撮要」，控方第一證人(‘第一證人’)是在沙田新翠邨居住。申請人也是在新翠邨居住的，兩人認識了多年。2006年2月19日約下午六時二十分，他在該屋邨偶然遇到申請人。申請人將一隻手擱在第一證人的肩膊上，並對他說：「我而家攞住把刀嘅，我等錢使，有啲事…….我而家淨係想攞部電話嘅啫。」第一證人當時感到有一硬物壓着他的腰部。當申請人說完這番話後，第一證人就問他是不是只是想拿走他的電話，申請人回答他：「是」。第一證人表示同意，並用手指着他腰間的一個皮套內的手提電話。申請人拿走了第一證人的電話及離開現場。第一證人稱當申請人離開時他一手拿着第一證人的手提電話，另一手拿着一張閃爍銀色類似刀的物體。

PW1 did not cry out for help after the applicant had taken away his phone.  After the incident, he went to see his elder brother, i.e. PW2, who had also known the applicant for many years.  Subsequently, PW1 and PW2 tried to find the applicant at his address in Sun Chui Estate, only to discover that he no longer lived there.  They then went to a police station nearby to report the case.  On the night in question, PW1 called a friend of his (i.e. PW3) and told him that the applicant had taken away his phone and used a knife.
第一證人在申請人拿走他的電話後沒有高聲呼救，他在事發後前去找他的哥哥，即控方第二證人（‘第二證人’）。第二證人也認識了申請人多年。第一及第二證人之後到申請人在新翠邨的住所找他，但發現他已經不在那地方居住，兩人於是到附近的警署報警。在事發當晚第一證人致電一位朋友，即控方第三證人（‘第三證人’）告訴他電話被申請人拿走了及申請人使用刀的情況。

At around 7:30 p.m. on 1 March 2006, PW3 came across the applicant near Che Kung Temple in Shatin.  PW3 questioned the applicant as to the whereabouts of PW1’s phone and called PW2.  The applicant tried to escape, and PW3 gave chase and caught him up.  The two of them had a scuffle, and the applicant lost consciousness and fell onto the ground.  Subsequently the police arrived and arrested the applicant.
2006年3月1日下午約七時半，第三證人在沙田車公廟附近碰見申請人。第三證人質問申請人第一證人的電話下落，並致電第二證人。申請人趁機逃走，第三證人在追上他時與他發生糾纏，申請人昏迷及跌倒在地上，警察後來到場拘捕申請人。

The applicant elected not to give evidence.  His defence was that the so-called robbery was entirely made up by the three witnesses.  The applicant alleged that he had borrowed money from PW2 but had not made repayment, and that he had sought assistance from the police because PW2 had threatened and blackmailed him.  All the three witnesses have criminal records.
申請人選擇不作供自辯。他的答辯理由是整件所謂搶劫事件是由三名證人合謀捏造的。申請人稱他曾向第二證人借貸，但沒有還款。他曾因第二證人對他作出恐嚇勒索的行為報警求助。三名證人均有刑事記錄。

Judge Kwok held that the three prosecution witnesses were credible witnesses.  He was satisfied that the offence was proved beyond reasonable doubt and therefore convicted the applicant.
郭法官接納三名控方證人為可信的證人，他認為案情是毫無合理疑點，所以判處申請人罪名成立。

Legal principle
法律原則

In dealing with cases concerning findings of fact, the appellate court adopts the legal principle that the trial judge had the opportunity to listen to the witnesses’ evidence and observe their facial expressions and demeanour when they gave evidence.  Therefore, unless the findings of fact made by the trial judge are inconsistent with some crucial evidence or the trial judge has overlooked some crucial evidence, the appellate court will not overturn the trial judge’s findings of fact and replace them with the appellate court’s own findings on the facts.  Clearly, this principle does not mean that the appellate court is bound to accept all findings of fact made by the trial judge.  If the appellate court considers that the trial judge has not made use of his advantageous position to thoroughly deal with all the material contradictions in the evidence before him, and such evidence would directly affect the outcome of the case, then the appellate court is entitled to reject the trial judge’s findings in this regard.
上訴法庭處理案件涉及事實裁決的法律原則是原審法官有機會聆聽及觀察證人在作證時的神情和舉止，因此，除非原審法官作出的事實裁決與某些重要證據不符或是忽略了某些重要的證據，否則上訴法庭是不會推翻原審法官所作出的事實裁決，而代之以上訴法庭對事實了解的裁決。明顯地，這個原則並不表示上訴法庭在所有的事實裁決案件中都必須接納原審法官的裁決，如上訴法庭認為原審法官並沒有利用他本身的有利條件去全面處理案件中具關鍵性的證據衝突，而這些證據是會直接影響裁決的話，上訴法庭是有權拒絕接納原審法官這一方面的裁決。

Neither the appellate court nor the law itself requires the trial judge to account for his treatment of each and every discrepancy in the evidence.  Indeed, such a requirement would be unnecessarily meticulous and impractical.  However, where there is a material contradiction in the evidence, the trial judge must clearly set out his analysis of the issues involved and his reasons for accepting the controversial evidence.
上訴法庭是不會要求原審法官如何處理每項證據不一致的情況作出交待。法律亦沒有這個規定，況且這個做法是吹毛求疵、不切實際的。但當證據存有關鍵性的衝突時原審法官是必須清楚說明他就有關的問題作出了甚麼分析及他接納具爭議性的證據的理由何在。

PW1’s evidence
第一證人的證供

We overturned Judge Kwok’s decision because he had not thoroughly dealt with or analysed the inconsistencies and contradictions in PW1’s evidence.
本庭推翻郭法官裁決的原因是郭法官沒有充分處理及分析第一證人的證供出現不一致及衝突之處。

Inconsistencies in the evidence at trial
庭上證供的分歧

The first question concerns PW1’s evidence that the applicant had said to him, “I’m holding a knife.  I’m in need of money.  Something happened … I just want to take the phone now.”  During examination-in-chief, PW1 repeated 4 times that the applicant had told him he had a knife.  The relevant evidence is extracted below:
首先，這涉及第一證人指申請人對他說：「我而家攞住把刀嘅，我等錢使，有啲事……我而家淨係想攞部電話嘅啫」的證供。第一證人在控方律師主問時曾經四次重複說申請人對他說他是持有刀的，有關證供的節錄如下：

Q: Do you have anything to add about how you felt, apart from the poking and the feeling that something was pressing against you?
問 : 仲有冇可唔可以補充一下嗰個感覺，除咗篤同埋「銀」之外，係點樣樣?

A: No.
答 : 冇。

Q: Right.  Then was there any conversation, or was there – anything happened?
問 : 好，咁樣跟住又有冇咩嘢對話呀，或者有咩嘢嘅 -- 發生咗啲咩嘢事咁呢?

A: Then (he) said, ‘I’m holding a knife.’
答 : 跟住就話「我而家攞住把刀。」

Q: Say again.
問 ：講多次。

A: ‘I’m holding a knife.’
答 : 「我而家攞住把刀。」

Q: Who did you hear was saying this?
問 : 你聽到邊個講呀 ?

A: He said ‘It’s a knife that’s poking (you).’
答 ： 佢話「篤住嗰把刀嚟嘅。」咁樣。

Q: Yes.
問 :係。

…
…………..

Judge: He said, ‘I’m holding a knife.’
官 : 佢話「我而家攞住把刀。」

A: Yes.
答 :係。

Q: Eh, you heard this?
問 : 哦，你聽到咁樣呢一句說話?

A: Yes.
答 : 係。

Q: Just now you said someone (‘E.T.’) had taken away your phone.
問 : 啱啱你話有人(「E.T.」)就攞咗你個電話走喇。

A: Hm.
答 :唔。

Q: Were you willing or not willing to give him that?  What was the situation?
問 : 你係願意畀佢還是唔願意畀佢，係咩嘢情況?

A: He told me that I – he told me that he had a knife, and I really felt pain.  Something was pressing against me.  I dared not guess if it really was a knife.  At that moment I was really not – (I) mean I reluctantly let him take away my phone.
答 : 佢話畀我聽我 - - 佢話畀我聽有刀，同埋我感覺到真係痛，有嘢「銀」住咗我，我唔敢估係咪真係刀，我嗰一刻係好唔 - - 即係唔願意地咁樣畀佢攞咗部電話。

…
…………..

Q: Let me ask you this.  He was just 5 or 6 steps away from you.  How come you did not give chase – do something you would normally do upon being robbed?
問 : 我就問一問你喇，嗱，人哋又離開你五、六步嘅啫，咁點解你唔追番 - - 做一啲有人就搶咗你嘢嘅正常反應呢?

A: Because I saw he was carrying a silver-coloured object, and he told me that he had a knife.  I dared not – (I) mean rush forward to do anything.  I feared he might hurt me.
答 ：因為我所見到佢銀色嘅嘢，同埋佢話畀我聽佢有把刀，我唔敢 - - 即係話衝上去點樣做呀，我驚佢傷害到我。

…
…………..

Q: Well, you have said that you feared he might hurt you with the knife, and therefore you did not give chase even when he was 5 or 6 steps away from you?
問 ：哦，你曾經講過就驚人哋有把刀傷害你，所以就人哋離開你五、六步呢,你都唔追喇。

A: Hm.
答 : 唔。

Q: But then you went to his residence by yourself.  Did you not fear he might stab you with a knife?  What was in your mind?
問 :但係而家你就自己走上去人哋住所嗰度,你唔驚人哋攞刀插你咩?你係點?

A: At the moment – I was by myself at the beginning.  At that moment I was confused.  He said he had a knife.  (I) mean I was frightened.  Then my elder brother – how should I put it?  I was not frightened when I was with him.  I mean when someone was there you could take care of each other.  That was how I felt.
答 ：嗰一刻都係 -- 初初嗰陣時我得一個人，我嗰一刻都亂晒，佢話有刀咁樣，即係驚咗，咁我阿哥就 -- 點講呀? 同佢一齊，即係我覺得唔驚囉,即係多個人咁樣，即係有個照應咁樣囉，即係畀我嘅感覺。

…
…………..                                                                      ’

However, under cross-examination, PW1 said that the applicant had not told him he was holding a knife.  The relevant questions and answers are extracted below:
但第一證人在接受申請人律師盤問時卻稱申請人沒有對他說過他是持有刀的。有關的提問及答覆節錄如下：

Q: Then (he) went straight to the point and said ‘I’m holding a knife.  I’m in need of money.’  Is that what (you) mean?
問 :跟住就單刀直入話「我而家攞住把刀，我等錢使。」咁樣，係咪咁嘅意思?

A: Hm, no, he did not say that.  I did not express it clearly because I was dozing off outside before I came in, and at that moment I – well, I mean I did not express it clearly, I mean he – I felt that something was pressing against me.
答 :唔，唔係，佢就冇咁講，因為表達得唔好呀我，因為我入嚟嗰陣時，我喺出面係瞌著咗，嗰一刻我 - - 係囉，即係我表達得唔好囉，即係佢就 - - 我係感覺到有啲嘢「銀」住我咁囉。

Q: I do not really understand what you mean.  I just quoted what you had said, what you said this morning.  Do you now say that he did not say anything like that?
問 ：我唔係好明你嘅意思呀。剛才呢番說話係我引述番你講個喎，你今朝講個喎,咁你而家係咪話佢冇咁講過吖?

A: Hm, (he) did not.
答 ：唔，冇。

Q: (He) did not say that?
問 ：冇咁講過？

A: Hm.
答 ：唔。

Q: If he did not say that, what actually did he say?
問 ：咁佢究竟講過啲乜呢，如果佢冇講過呢番說話？

A: He said something had happened and he was in need of money.
答 :佢就話佢有啲事，等錢用。

Q: He said,  ‘Something happened, in need of money.’  And then?
問 ：佢話「有啲事，等錢。」咁又點呀？

A: Then he said he had to take my phone.
答 : 跟住佢話要攞我部電話囉。

Q: Something happened, in need of money, had to take your phone?
問 ：有啲事，等錢，要攞你電話呀？

A: Hm.  ’
答 :唔。                                      ’

In the “Summary of the Prosecution’s Case”, Judge Kwok did not mention PW1’s withdrawal of the part of his evidence regarding his allegation that the applicant had claimed to be holding a knife.  Judge Kwok did not take into account or discuss this discrepancy in PW1’s evidence in the “Analysis of Evidence” in his Reasons for Decision.  This is what Judge Kwok said:
郭法官在「控方案情撮要」中沒有引述上述第一證人撤回他指稱申請人說他持有刀的證供。郭法官在判決理由書內的「證據分析」中沒有就第一證人這一方面的證供分歧作出考慮或討論。郭法官這樣說：

Although PW1 was unable to express himself very clearly when he was giving evidence, he had not less than once asked the court to forgive him for being unable to express himself well when he was giving evidence.  In general, this has indeed given rise to some uncertainties in his evidence, but viewing his evidence as a whole, I do not think it is so bad that it has become incomprehensible.
雖然控方第一證人作證時，他的表達能力屬於比較差。他作證時亦都不少過一次同法庭表示希望法庭原諒自己的表達能力差，這亦導致他的證詞的而且確在整體來說有些地方有時會出現不清晰的情況，不過整體而言，我認為他證詞亦不至到一個難以理解的地步。’

It is difficult to understand why PW1 changed his evidence.  His explanation that he could not express himself well is not convincing.  Judging from the above extract of questions and answers, the fact that PW1 changed his evidence had nothing to do with his ability to express himself.  He stated of his own accord that the applicant told him he was holding a knife, and this statement was repeated many times.  This was the way in which PW1 recounted the incident and had little to do with his ability to express himself.  He also explained that he had gone to bed late on the night before the hearing and he was therefore sleepy during the examination-in-chief.  Again this is hardly a credible explanation.
第一證人更改他的證供的理由是令人費解的。他解釋這是由於他的表達能力差，這是欠缺說服力的。從上述節錄的提問及答覆來看，第一證人更改證供並不涉及表達能力的問題，他在沒有任何提示之下主動說出申請人稱他持有一張刀，並多次重複這番說話，這是第一證人敍述事件的過程，這與他的表達能力沒有甚麼關連。另外，他解釋因在聆訊之前一晚遲睡，以致在主問時發睏，本庭認為這也是一個可信性極低的解釋。

In the present case, the fact that the applicant told PW1 he was holding a knife was a crucial piece of evidence.  Obviously, PW1 let the applicant take away his phone mainly because the applicant threatened him that he had a knife.  Had the applicant not said this, why would PW1 have obeyed the applicant’s order?  Judge Kwok had not properly dealt with this important issue.
在本案，申請人對第一證人說他持有刀是一項關鍵性的證供。明顯地，第一證人讓申請人拿走他的電話的主要原因是因為申請人恫嚇他是持有刀的。若果申請人根本沒有對他說出這一番話，那麼為何他會服從申請人的命令呢?郭法官並沒有適當處理這個重要議題。

Discrepancies between evidence given in the witness statement and in court
證人口供及庭上證供的分歧

Nor had Judge Kwok analysed or dealt with another material discrepancy in PW1’s evidence.  PW1’s testimony at trial was that the applicant told him, “I’m in need of money.  Something has happened.  I just want to take the phone now.”  However, according to the witness statement (sic) provided by the applicant to the police after the incident, the applicant told him “Something happened to me, I’ll take the mobile phone and use it, where is the phone?”  These words were not threatening at all.  PW1 admitted that he never mentioned in his witness statement that the applicant had said he was “in need of money”.  It was only when Judge Kwok asked PW1 whether the applicant did utter the words “in need of money” that PW1 said, “I remember that he seemed to have said, ‘Help a fellow in urgent need’…”  PW1 said he had mentioned the words “Help a fellow in urgent need” to the police officer, and he agreed with what Judge Kwok put to him: he had no idea why the officer did not record those words in his statement.
另外，郭法官也沒有詳細分析及處理第一證人的證供另一個具關鍵性的衝突情況。第一證人在法庭上作出的證供是申請人對他說：「我等錢使，有啲事，我而家淨係想攞部電話嘅啫」，但申請人在事發後提供給警方的證人供詞卻這樣說：「申請人對他說『我有啲事，攞部手提電話用吓，部電話喺邊到？』」這些字眼完全不具恫嚇成份。第一證人承認在證人供詞內他完全沒有提到申請人說：「等錢使」這一回事，直至郭法官問第一證人到底申請人有沒有說過「等錢使」這三個字，第一證人才這樣說：「我記得就係佢好似同我講過『江湖救急』咁樣……」。第一證人說他曾經對警員說過「江湖救急」這四個字。他同意郭法官對他的提問：他不知道警員為何不替他筆錄這四個字。

When a robber utters words such as “Help a fellow in urgent need” during the robbery, he is definitely ordering the victim to do as he says and to surrender his money.  It defies common sense that an officer who hears a victim say that the robber has uttered the words “Help a fellow in urgent need” will not record those words.  We find PW1’s evidence in this respect inherently incredible.
當一名匪徒在行劫期間說出「江湖救急」這類字眼，這肯定是具有命令受害人就範及交出金錢的意思。以常理來推斷，一名警員若聽到被劫的受害人說匪徒曾經說過「江湖救急」這些字眼而不把它記錄下來是一件匪夷所思的事。本庭認為第一證人有關的證供存有內在不可信的情況。

In his Reasons for Judgment, Judge Kwok said:
郭法官在判案理由內這樣說：

In my view, although ‘in need of money’ and ‘help a fellow in urgent need’ are different expressions, they bear a similar meaning.  I also accept PW1’s explanation that the defendant should have actually said, ‘Help a fellow in urgent need’, but he transformed ‘Help a fellow in urgent need’ into something which meant ‘in need of money’.  That was why he applied or used the two expressions interchangeably.  The above example clearly reveals some blemishes in PW1’s evidence, but I do not think these blemishes will affect the credibility of his evidence as a whole.
本席認為「等錢使」同「江湖救急」兩個詞彙本身雖然不同，但仍然都是表達意思相近的一個意思。我亦接納控方第一證人的解釋，事實上被告人當時應該是講「江湖救急」，只不過他亦都將「江湖救急」轉化成為一個意思，就是「等錢使」，所以才將兩個詞彙互相交換運用或者使用。上述所舉的例子，顯然暴露控方第一證人證供一些地方的瑕疵，不過這些瑕疵本席並不認為會影響到他證供整體的可信性。’

We agree that these two expressions mean the same.  However, Judge Kwok did not discuss why PW1 made no mention whatsoever of the words “Help a fellow in urgent need” in his post-incident witness statement or why the police omitted these important words.  Judge Kwok’s findings in this regard leave the impression that he had not seriously considered whether PW1’s evidence in this respect was credible.
本庭同意這兩個詞彙是相同意思的，但郭法官沒有分析第一證人在事發後所提供的證人供詞中完全沒有提及「江湖救急」這些字眼及警方遺漏這些重要字眼的原因。郭法官就這一方面的裁決給人的印象是他沒有慎重地考慮第一證人就這一方面的證供是否可信。

Other evidence
其他證供

As the incident merely involved PW1 and the applicant, we do not think PW2 or PW3’s evidence could support the charge in question.  Even though at trial Counsel for the applicant did not cross-examine PW3 on the issue of his having asked the applicant of the whereabouts of PW1’s phone, this does not mean the applicant had committed robbery.  The applicant might indeed have taken away PW1’s phone, but the evidence in the present case does not reveal the circumstances under which he had done so.  More importantly, there are still unresolved material doubts about the evidence that went to the elements of robbery, for example, whether the applicant “used force on” PW1 or “put or attempted to put PW1 in fear of being there and then subjected to force” when he took away the phone.
本庭認為第二及第三證人的證供並不能支持有關的控罪，因為案發時只涉及第一證人及申請人。就算在審訊時，代表申請人的律師沒有就第三證人曾經質問過申請人有關第一證人電話的下落這議題向該證人提出質詢，這也不表示申請人觸犯了搶劫罪。申請人可能的確拿走了第一證人的電話，但本案的證供並未能顯示他在甚麼情況下拿走該部電話，尤其是構成搶劫罪的基本元素的證供──如申請人拿走電話時有否向第一證人「使用武力」或「使或試圖使第一證人害怕會在當時當地受到武力對付」──是存有未能完滿解決的重要疑點。

Conclusion
總結

The courts must give effect to, and not merely pay lip service to, the legal principle that an accused person can be convicted only where his guilt is proved beyond reasonable doubt.  The present case is a typical case where guilt has not been proved beyond reasonable doubt.  The applicant’s conviction is unsafe.  Accordingly, we allow the appeal and quash the conviction.
法庭必須實踐在毫無合理疑點下才可裁定被告罪名成立的法律原則，否則它只是一個空泛無實質意義的口頭襌。本案是一宗被告人未在毫無合理疑點之下被證明犯罪的典型例子。本案的定罪判決是不穩妥的，故此本庭批准上訴及撤銷定罪。

Mr Robert Lee, Counsel for the respondent, has indicated, in our view appropriately, that he will not apply for a re-trial.
代表答辯人的李紹強大律師表示他不會申請案件重審。本庭認為這決定是恰當的。

Mr Robert Lee, Acting Deputy Director of Public Prosecutions, for the respondent
答辯人：由律政司署理副刑事檢控專員李紹強代表。

Mr Andy Hung, assigned by the Legal Aid Department, for the applicant
申請人：由法律援助署委派孔慶碩大律師代表。