Hon Yeung VP (giving the reasons for the judgment of the Court):
高等法院上訴法庭副庭長楊振權頒發上訴法庭判案理由書：

Introduction
引言

1.The applicant, Y.H.M., was charged with two counts of indecent assault. He pleaded not guilty and was tried before District Judge Kwok Wai Kin (the trial judge), who on 29 February 2016 found him guilty on both counts and on 9 March 2016 sentenced him to imprisonment for a total of 33 months. Represented by Mr Shahmim K. Khattak and Mr Anthony Lai of counsel, the applicant applied for leave to appeal against conviction and/or sentence. Having heard the matter, this Court on 23 March 2017 dismissed all applications, for reasons which we now give.
申請人（Y.H.M.）被控兩項“非禮”罪。他否認控罪並在區域法院法官郭偉健（原審法官）席前受審。2016年2月29日，原審法官裁定申請人兩項控罪都罪名成立，並於2016年3月9日判他入獄共33個月。申請人不服定罪及判刑，由林沙文及黎家傑兩位大律師代表提出申請，要求獲准就定罪及/或判刑上訴。2017年3月23日，經聆訊後，本庭駁回申請人提出的全部申請。以下是本庭的判案理由。

Background
背景

2.The victims in the present case were two sisters: X (“Elder Sister”) and Y (“Younger Sister”). They were born in June 1992 and November 1997 respectively. Apart from them, their parents, Mr Wong (transliteration) (“Father”) and Mrs Wong (transliteration) (“Mother”) also had a son (Tai Chai (transliteration)) who was born in July 1995.
案件的受害人是兩姊妹，X（姊姊）和Y（妹妹）。她們分別在1992年6月和1997年11月出生。她們的父母（黃先生（父親）、黃太太（母親））亦育有一名在1995年7月出生的兒子（泰仔）。

3.At the material time, the five-member Wong family were residing in a unit in Lung Fung Garden, Sheung Shui. Mr and Mrs Wong started a private tuition centre (“tuition centre”) in 2007 after the former left the telecommunications company for which he had worked 27 years.
案發時，黃先生一家五口居住在上水龍豐花園一住宅。黃先生在2007年離開已工作27年的某電訊公司後和黃太太經營一補習社（該補習社）。

4.Mrs Wong had three elder sisters (including Aunt Wah Wah) (transliteration), one elder brother and two younger sisters (Aunts Kum Kum and Luk Luk) (transliterations). Mrs Wong’s father had a half younger sister (Grand Aunt) with whom he had the same father but not mother. Grand Aunt’s husband was called “Grand Uncle”.
黃太太有三名姊姊（包括華華姨）、一名兄長及兩名妹妹（琴琴姨和六六姨）。黃太太的父親有一名同父異母的妹妹（姑婆），其丈夫被稱為“姑丈公”。

5.Aunt Wah Wah had two daughters, Cousins Wai and Yan (transliterations). They were both younger then Elder Sister but older than Younger Sister. The applicant, being Aunt Kum Kum’s husband, was the uncle of the two victims. The couple gave birth to a son (“Ho Chai” (transliteration)) in October 1999.
華華姨有兩名女兒（慧表姐和茵表姐）。她們的年紀較姊姊少，但較妹妹大。申請人是琴琴姨的丈夫，即兩名受害人的姨丈。申請人夫婦有一名在1999年10月出生的兒子（“浩仔”）。

6.The applicant and his family used to reside at another unit in Lung Fung Garden, Sheung Shui (the old unit) but moved out subsequently. The applicant’s family and the victims’ family, who were then living in the same building, had frequent dealings and gatherings.
申請人一家亦原是居住在上水龍豐花園的另一住宅（舊住宅），但他們現已搬離舊住宅。由於申請人一家和受害人一家在同一大廈居住，兩家人經常有往來及聚會。

7.The prosecution case was that on a date between 13 November 2002 and 13 November 2003, the applicant indecently assaulted Younger Sister who was paying a visit to the old unit and who was then 5 years old (Charge 1). It was also the prosecution case that on a date between 2002 and 2004, the applicant indecently assaulted Elder Sister who was paying a visit to the old unit and who was then 12 years old (Charge 2).
控方指申請人在2002年11月13日至2003年11月13日的某一天，“非禮”到訪舊住宅的妹妹，當時妹妹約5歲（第一項控罪）。控方亦指申請人在2002年至2004年某一天，“非禮”到訪舊住宅，當時年約12歲的姊姊（第二項控罪）。

Prosecution evidence
控方證據

8.The prosecution evidence against the applicant rested mainly upon the evidence of the two sisters and the confession made by the applicant.
控方針對申請人的證據主要源自姊姊和妹妹的證供及申請人的招認。

9.According to Younger Sister, one evening when she, then an upper class kindergarten schoolchild aged 5 or so, and her family visited the old unit, on the bed inside the bedroom, the applicant reached out his right palm and put it into the front of her knickers. He put his finger into her vagina and moved it about. Younger Sister said that this went on for about one minute, after which the applicant said to her, “how come your fanny is so warm”. Younger Sister said that before the applicant indecently assaulted her, Cousins Wai and Yan had been watching TV on the bed in the bedroom and it was only after they had left the room and closed the door that the applicant indecently assaulted her.
妹妹指她大約5歲，讀幼稚園高班時的某天晚上，當她和家人到該舊住宅時，申請人在睡房內的床上伸右手手掌入她的內褲的前方，並將手指伸入她的陰道後郁動手指。妹妹指申請人的動作維持約一分鐘後便向她說：“乜你啫啫咁暖嘅”。妹妹指申請人“非禮”她前，慧表姐和茵表姐是在睡房內的床上看電視，而申請人是在她們離開房間及把房門關上後才“非禮”她。

10.Younger Sister said she did not understand what the applicant had said and done, nor did she know how to react, but she felt “very odd”, “very disgusted”, “very uncomfortable” and “frightened”.
妹妹指不明白申請人的言行亦不知如何反應，但她感到“好怪”、“好核突”、“好唔舒服”及“驚驚”。

11.Younger Sister said that after the incident she went out of the bedroom and told Mother, who was in the sitting room, that she wanted to go home to sleep. At that time, Aunt Kum Kum and Ho Chai were also present. Younger Sister said that when they were back home she did tell Mother that the applicant had reached his hand into her knickers, although she did not give a detailed account because she felt fearful and “very odd”. Younger Sister said she did not remember how Mother reacted to what she said.
妹妹指事發後她走出睡房並向在客廳的母親說想回家睡覺。當時琴琴姨和浩仔亦在場。妹妹指返回家後，有向母親表示申請人伸手入她的褲內，但沒有交待詳情，因為她感到恐慌及“好怪”。妹妹表示不記得母親當時的反應。

12.Younger Sister further said that subsequently, at Mother’s request, Aunt Kum Kum visited their home to discuss the matter.  Younger Sister briefly recounted the incident to them, but Mother told her to keep quiet about it and not to pursue the matter, the reason being that a family scandal must not be made known to outsiders, otherwise the matter would affect the future of Younger Sister.
妹妹更指其後琴琴姨應母親的要求來到她們家中討論該事件。妹妹有向她們簡略覆述事件，但母親要求她息事寧人及不要追究，原因是家醜不外傳，否則事件會影響妹妹的將來。

13.Younger Sister said that she did not mention the incident to other people but had always remembered it and felt “very frightened”. She said she and her elder sister agreed to be careful when they saw the applicant again and not to stay with him in the same room. Although Younger Sister often saw the applicant at family gatherings, she claimed that she no longer had contact or conversations with him and would even try her best to avoid him.
妹妹表示她沒有向其他人提及事件，但一直記得事件並因而感到“好驚”。她指和姊姊有協議當再見到申請人時要小心，不要和他共處一室。雖然妹妹因為家庭聚會而經常見到申請人，她聲稱已沒有和申請人接觸或交談，更會盡量避開他。

14.Younger Sister further testified that when she was in Primary 5 or 6 she talked about this matter with “Elaine”, a social worker. Although Elaine said she could report the matter to the police for her, Younger Sister did not take further action and instead only brought up the matter again with Mother. She said Mother was “very angry” and questioned her, “what do you want now?” and also said, “It’s lucky that you kept quiet about it at that time, or else Aunt Kum Kum’s family would have collapsed”.
妹妹進一步供稱她在五、六年級時，曾向社工“Elaine”談及事件。雖然Elaine說可以幫助她報警，但妹妹沒有採取進一步行動，而只向母親重提舊事。她指母親“好嬲”，並質問她：“妳而家想點”，“好彩當時妳冇講出嚟咋，如果唔係琴琴姨頭家就散喇”。

15.Younger Sister also said she learned from Elder Sister that on the evening following the incident, upon Mother’s request, Aunt Kum Kum visited their home to discuss the matter, and when Aunt Kum Kum was leaving the room, Mother said to Aunt Kum Kum: “Well, Ah Kum, the kids are growing up, you ask Ah Ming (the applicant) (transliteration) to exercise restraint” and things like that.
妹妹進一步表示從姊姊處得悉事發後當晚琴琴姨應母親的要求到她們家中討論事件後並在離開房間時，母親有向琴琴姨說：“喂，亞琴呀，啲細路大喇，妳叫阿明（申請人）收斂下啦”等說話。

16.Younger Sister stressed that the matter was not an accident and that she had given an accurate account of her conversation with Mother. Younger Sister even said that when she brought the matter up again with Mother when she was in Primary 5 or 6, as she felt too embarrassed to repeat orally the words “how come your fanny is so warm” that the applicant had said, she wrote these words on a piece of paper and handed it to Mother. However, she agreed that she did not write down that the applicant had put his hand into her knickers and private parts for as long as one minute, nor did she use such words as “private parts” or “vagina” but merely used the words “the part for peeing” to describe the part of her body that had been molested by the applicant.
妹妹力稱事件並非意外造成，而她亦有準確交代和母親的對話。妹妹更表示當她在小五或小六向母親重提事件時，因為對申請人說過的“乜你啫啫咁暖嘅”這句話感到難於啟齒，故將該句說話寫在紙上交給母親。但妹妹同意沒有寫下申請人伸手入她的內褲和私處長達一分鐘這一點，亦沒有用“私處”或“陰道”等詞句；而只是以“屙殊殊嗰度”來形容被申請人侵犯的地方。

17.In her correspondence with her parents, Younger Sister repeatedly asked Mother to confirm that she and Elder Sister had notified Mother very early that they had been sexually molested by the applicant, and also questioned the parents why they turned a blind eye to it.  Younger Sister maintained that what happened when the applicant indecently assaulted her was “etched in her memory”.
妹妹和父母的書信往來中多次要求母親確認她和姊姊一早知會母親指曾受申請人性侵犯，並質問父母為何對事件視若無睹。妹妹堅持她對申請人“非禮”她的過程“刻骨銘心”。

18.Elder Sister also said that she had also been indecently assaulted by the applicant shortly before Younger Sister was. She further said when Younger Sister complained to Mother after she had been indecently assaulted, she eavesdropped outside the room door and heard Younger Sister say that the applicant touched her private parts over the knickers, but then Mother told Younger Sister to mind what she said. Elder Sister said that as the same thing had happened to her, she rushed into the room and demanded that Mother deal with the matter.
姊姊亦指在妹妹被申請人“非禮”前不久，她亦被申請人“非禮”過。她更表示妹妹被“非禮”後向母親投訴時，她曾在房門外偷聽到妹妹說被申請人隔着底褲摸下禮，但母親卻叫妹妹不可胡亂說話。姊姊指由於相同事件曾發生在她身上，因此她衝入房內要母親處理事件。

19.Elder Sister said that when Aunt Kum Kum visited their home to discuss the indecent assault on Younger Sister by the applicant, Mother said to Aunt Kum Kum that the two daughters had grown up and demanded that she tell the applicant “not to hug and hold [the girls] again as if they were kids”. In reply, Aunt Kum Kum responded by saying she would ask the applicant to be “more careful”. Elder Sister agreed that Younger Sister was not present when Mother and Aunt Kum Kum had the above conversation.
姊姊指當琴琴姨到她們家中討論申請人“非禮”妹妹一事後，母親有向琴琴姨說兩個女兒已長大，並要琴琴姨告訴申請人“唔好好似小朋友咁樣再攬攬抱抱”。琴琴姨則回應說會叫申請人“小心啲”。姊姊同意母親和琴琴姨作出上述交談時妹妹並不在場。

20.Elder Sister also gave a detailed account of how she was indecently assaulted by the applicant. She said on a summer’s day when she was aged 11 or 12 and in Primary 5 or 6, she went to the old unit to ask to use the computer because her father had locked the computer at home. The applicant opened the door and let Elder Sister into the study to use the computer to do homework and the room door was kept open.
姊姊亦有詳述她被申請人“非禮”的經過。她指當她11-12歲，就讀小五、小六時的夏天某日，因家中的電腦被父親上鎖，故前往舊住宅借用電腦。申請人開門後，便讓姊姊入書房使用電腦做功課而房間保持開啟狀態。

21.Elder Sister said when she was using the computer, the applicant entered the study from the sitting room, held her from behind and “touched” her “chest”. Elder Sister even described the acts the applicant did to indecently assault her, which included reaching his arms forward, passing her shoulders and then “holding” her and “touching” and “squeezing” her breast(s) with both hands. Elder Sister stressed that the case was not that the applicant’s hands reached her chest by going under her arms, but was that they reached from her shoulders down to her chest.
姊姊指當她使用電腦期間，申請人由客廳進入書房，從後抱着她並“摸”她的“胸部”。姊姊更有描述申請人“非禮”她的動作，包括伸出雙手向前，經過她的肩膊後“攬着”她及用雙手“摸”和“摙”她的乳房。姊姊強調申請人的雙手並非是從她的手臂下穿向她的胸前，而是在她的肩膊上向下到她的胸前。

22.Elder Sister said at the time in question, she was wearing a vest undershirt and a short-sleeved T-shirt but not a bra.
姊姊指事發時，她穿着一件背心底衫和一件短袖T恤，但沒有穿着胸圍。

23.Elder Sister stressed that she knew what the applicant did was wrong but she did not push the applicant away immediately as she did not know how to react or deal with the matter. But she later turned round, pushed the applicant’s hands away, told him that she had finished using the computer, and then left the old unit hurriedly. The applicant did not say anything at that time.
姊姊強調自己知悉申請人的行為不對，但她不知如何反應或處理，故沒有即時推開申請人。但其後她轉身推開申請人的雙手，並向他表示已用完電腦及急步離開舊住宅，而當時申請人沒有說話。

24Elder Sister said that she did not tell her parents immediately because “face mattered a lot” to Mother and she had a bad relationship with Father. Elder Sister said there was a family gathering on the Sunday one week after the incident and the applicant would be there, so she told Mother about the matter on Saturday. Mother reacted by saying that the incident was a family scandal and disgrace, that it was not a good thing for Elder Sister, and that it would even break up Aunt Kum Kum’s family. Elder Sister said that she decided not to bring up the matter again but acted with deliberate care and stayed away from the applicant during family gatherings. Nor would she go to the unit alone again.
姊姊表示當時沒有即時告知父母，原因是母親“重面子”，而她和父親的關係不佳。姊姊指事發後一星期的週日有家庭聚會，而申請人會在場，故她在週六向母親講述事件。當時母親的反應是指事件是家醜及不光彩，對姊姊亦不是一件好事，更會破壞琴琴姨一家。姊姊指她決定不重提事件，但在家庭聚會時，她刻意小心及遠離申請人，亦不會再單獨前往舊住宅。

25.Elder Sister contended that the matter was definitely not an accident. Further, she mentioned this indecent assault on her by the applicant in two of the pages of her diary dated 1 May 2009. The diary recorded that the applicant held her from behind and touched her chest, and that Younger Sister was also a victim. During cross-examination, Elder Sister denied that she knew full well that the applicant came into contact with her chest by accident but, after discussing with Grand Aunt and Grand Uncle, described it as an “indecent assault” before informing the police. She also denied that the diary dated 1 May 2009 was made up or newly fabricated, or that, upon relapse of a delusional disorder or mental illness, she wrote a complaint on a blank page of the diary or on a new page which she then inserted into the diary.
姊姊力稱事件絕非意外，而她更有在2009年5月1日的日記中的兩頁提及她被申請人“非禮”一事。該日記說及申請人從後抱住她及摸她的胸部，亦有說及妹妹也是受害人。在盤問時，姊姊否認明知申請人觸碰到她的胸部是意外，但她在報警前，與姑婆及姑丈公商量後將它說成“非禮”。她亦否認2009年5月1日的日記是虛構或是新近捏造的，是她在妄想症或精神病發作下在日記的空白頁寫下投訴或將投訴寫在一新頁，並將新頁加入日記簿內。

26.Apart from the evidence of the sisters, the prosecution also relied on the confession which the applicant made under caution following his arrest. Regarding the allegation of having indecently assaulted the sisters, the applicant said that it was only when he was holding Younger Sister while watching TV that “the hand accidentally touched her private parts. I did not intend to touch her. I did not intend to indecently assault the two of them”.  In a subsequent video-recorded interview with the police, the applicant provided further explanation. He reiterated that he only “touched her private parts by accident”, “I was holding her and, well, touched the thigh, well, the inner thigh, and then touched [it]”. The applicant also said that at the time of the incident, Younger Sister was 5 years old and he was helping Mrs Wong “look after the kid(s)”, and that when he was holding Younger Sister while watching TV, he “touched her private parts by accident” over her pants.
除了姊姊和妹妹的證供外，控方亦依賴申請人被拘捕後及在警誡下作出過的招認。被指“非禮”姊姊和妹妹時，申請人表示他只是抱着妹妹看電視時“隻手唔覺意掂到佢下體，我都無心要掂佢，我都無心‘非禮’佢地兩個”。在其後和警員的錄影會面時，申請人有再作解釋。他重申只是“唔覺意掂到佢下體”，“咁我抱住佢、咁呀掂到大髀咁呀內側咁，跟着掂到”。申請人亦指事發時，妹妹是5歲而他協助黃太太“湊細路”及當他抱着妹妹看電視時隔着褲“唔覺意掂到佢下體”。

27.The applicant said that he touched the private parts of Younger Sister for a few seconds, but as he was focusing on the TV show, he was not aware of the need to withdraw his hand. He went on to explain that it was the middle finger or the little finger of his right hand that touched Younger Sister’s “sexual organ”.
申請人指掂到妹妹的下體有幾秒，但他因為掛住看電視，沒有為意要縮手。申請人更有進一步解釋是他的右手中指或尾指掂到妹妹的“性器官”。

28.During the police interview, the applicant also admitted that he had held Elder Sister (who was then aged about 11) from behind and touched her chest by accident when they were playing. He said that he “liked girls, wanted to have a daughter and tried but in vain, wanted to hold her [sic] very much when seeing girls”. The applicant considered his behaviour normal as he was merely playing with them.
和警員會面時，申請人亦承認曾試過在玩耍時從後抱着當時約11歲的姊姊及唔覺意掂到她的胸部。申請人表示自己“鍾意女仔，想生個女，但追唔到，見到啲女仔呢好想抱佢”。申請人認為他的舉動正常，原因是他只是和她們玩耍。

29.The applicant said he knew that Younger Sister had complained to Mother and senior members of the family about the aforesaid incident, and he had even been “cautioned” and “scolded” by family member(s) as a result of such complaint, and so he thought that was the end of the matter.
申請人表示他知悉妹妹就上述事件有向母親及長輩投訴，而他更因為妹妹的投訴而被家人“警誡”及“鬧過”，令他認為事件已完結。

30.Although the charges were straightforward and the evidence against the applicant not complicated, the trial was very long as the sisters were cross-examined on some ancillary issues by both parties. And in order to address those issues, it was necessary for the trial judge to write, as he did, Reasons for Verdict which ran to over 100 pages.
雖然控罪性質簡單，而針對申請人的證據亦不複雜。但原審時，雙方就一些附帶性的議題向姊姊和妹妹提出盤問，導致極長的審訊；而為處理這些議題，原審法官需要撰寫一份超過100頁的裁決理由書。

31.Both sisters said that the two of them and Tai Chai had been physically abused and improperly treated by their parents when they were kids. The sisters said Father often inflicted violence on them for various reasons, thereby causing them injuries, but Mother defended Father and demanded that family scandal must not be made known outside the family. They said that Elder Sister even covered with clothes the marks of injuries caused by the physical abuse in order to ensure that the matter would not come to light.
姊姊和妹妹都表示童年時，她們和泰仔都受到父母的虐打和不當的對待。她們指父親經常以不同理由向她們施暴，令她們受傷，而母親則維護父親及要令家醜不外傳。她們更指姊姊以衣服遮蓋身上被虐打的傷痕，確保事件不會曝光。

32.They said that apart from frequently subjecting them to physical punishment and verbal abuse, Father also supervised them strictly and disrespected their privacy, including restricting and monitoring the use by them of the computer and checking their Internet browsing records. They said that not only did Mother defend Father’s improper conduct by all means but even asked them to make allowances for Father.
她們指父親除了經常體罰和用粗言責駡她們外，亦對她們施行嚴密的監管及不尊重她們的私隱，包括限制及監視她們使用電腦及查閱她們的上網記錄。她們指母親處處維護父親的不當行為，更要她們體諒父親。

33.Elder Sister admitted that when she had grown up, she refused to accept Father’s violent behaviour and would even fight back when being attacked. As a result, their relationship was extremely poor.
姊姊承認她年長後，不接受父親的暴力行為，更會在遇襲時還手，導致雙方關係極為惡劣。

34.Both sisters mentioned an incident that happened on 17 September 2012. Elder Sister said that it started off when she spilled a bag of rice by accident and had a row with Mother about cleaning up. She then went back to her room and shut the door. But Father kept knocking on the door and then even kicked the door open, pulled her from the bed down to the floor, and dragged her out to the sitting room. She was injured as a result. Elder Sister agreed that she would lose control and fight back when being attacked by her parents and Tai Chai.
姊姊和妹妹都有述及發生在2012年9月17日的事件。姊姊指該事件源自她不小心將一袋米打瀉，因收執問題和母親發生激烈衝突。其後她返回房間及將門關上，但父親不斷敲門，其後更踢開門及將她從床上扯落地下後，將她拖出大廳，導致她受傷。姊姊同意自己在父母及泰仔襲擊下也會失控而還手。

35.The incident eventually necessitated the intervention of Grand Aunt and Grand Uncle. They discovered that Mr Wong had recorded the scenes of violence between Elder Sister and Mother. After Mr and Mrs Wong left the unit, Grand Aunt and Grand Uncle suggested that Elder Sister move into a storeroom inside the tuition centre. But as it took time to clean up the place, Elder Sister decided to reside with Grand Aunt and Grand Uncle in the meantime.
事件最終要姑婆和姑丈公的介入。他們發現黃先生拍下姊姊和母親動武的情況。在黃先生和太太外出後，姑婆和姑丈公建議姊姊入住該補習社的一個士多房，但因清潔需時，故姊姊決定搬往姑婆和姑丈公家中暫住。

36.In the end, Elder Sister lived at the home of Grand Aunt for over half a year. Elder Sister said she neither wanted to see her parents nor had contact with them, and neither her parents nor Mother’s elder sister had contacted her, although she received from time to time soup that Mother prepared. Elder Sister said during that time she disclosed the indecent assault to Grand Aunt and Grand Uncle but did not take any action.
結果姊姊在姑婆家中居住了超過半年。姊姊指她不想見父母亦沒有和他們接觸，而父母和姨媽都沒有聯絡她，但她有收到母親的湯水。姊姊表示期間她有將“非禮”事件向姑婆及姑丈公透露，但沒有採取行動。

37.Younger Sister also recounted how the police became involved in the matter. Younger Sister said Mother did not let other people know that Elder Sister had moved in with Grand Aunt, and it was only after half a year that she told Aunt Kum Kum about it. Mother’s elder sisters then began a frantic search for Elder Sister who, however, refused to take their phone calls. On 30 March 2013, Elder Sister agreed that Aunt Kum Kum could bring her soup, but Aunt Kum Kum went to look for Elder Sister with her parents without informing her and Grand Aunt and Grand Uncle of this in advance.
妹妹亦有述及事件導致警員介入的經過。妹妹指母親沒有讓他人知悉姊姊搬到姑婆家居住，直至半年後才將事件告知琴琴姨。其後各姨媽開始瘋狂地搜尋姊姊，但她拒絕接聽她們的電話。2013年3月30日，姊姊同意琴琴姨送湯給她，但琴琴姨卻在沒有知會姊姊和姑婆及姑丈公下，和父母一起前往找姊姊。

38.Younger Sister came to know about this and informed Elder Sister and Grand Aunt. As a result, Elder Sister hid herself up on the podium of the building to hide from them, while Aunt Kum Kum and their parents had a heated argument with Grand Aunt and Grand Uncle. In the end, the police intervened.
妹妹知悉情況後，知會姊姊和姑婆，導致姊姊在大廈平台躲避，而琴琴姨和父母則和姑婆和姑丈公發生激烈爭執，最終導致警員介入。

39.Younger Sister said that Father was emotionally unstable after returning home, and she feared that her having tipped off Elder Sister would cause Father to take follow-up action and inflict violence on her. She therefore decided to spend the night at Aunt Kum Kum’s place. Younger Sister stressed that she slept with the room door locked as she was afraid of the applicant.
妹妹指父親回家後情緒不穩，而她害怕向姊姊通風報信一事會令父親追究及會向她動粗，故決定前往琴琴姨家中過夜。妹妹強調因害怕申請人而在睡覺時鎖上房門。

40.The following day, Aunt Kum Kum and Aunt Luk Luk went with Younger Sister to Grand Aunt’s place, and the two sisters told them the problems which had existed all along at home. They said that Father was mentally ill and physically abused them, but Mother’s elder sisters did not agree and even said that it was for the sisters’ own good that Father beat them up.
翌日，琴琴姨、六六姨帶同妹妹前往姑婆家，而兩姊妹向她們透露家中一直存在的問題。她們指父親有精神問題及虐打她們，但各姨媽都不認同更指父親打她們是為了她們好。

41.Younger Sister then returned to Aunt Kum Kum’s place. As she feared there might be pinhole cameras in the toilet and rooms, she searched for them as instructed by Grand Uncle, but could not find any. In the end, Younger Sister decided to go to the clubhouse of Lung Fung Garden to take a shower instead of taking it at home.
其後妹妹返回琴琴姨的家中，但因為害怕廁所和房間有針孔鏡頭，故按姑丈公的指示尋找，但找不到。最終妹妹仍決定前往龍豐花園的會所，而不在家中洗澡。

42.Younger Sister said before she went for a shower, Father called and said that he had made an appointment with a psychiatrist. Having met a social worker, she said she was unwilling to see a psychiatrist. However, Aunt Kum Kum said Younger Sister had agreed to do so and should not change her mind and “make use of” the social worker. Once again, the police were brought in to deal with the matter eventually, and the conclusion was that no one could compel Younger Sister to visit a doctor. In the end, Younger Sister left Aunt Kum Kum’s place and went to Grand Aunt’s home to stay with Elder Sister, one of the reasons being that she was at odds with Aunt Kum Kum because of some other matters and Aunt Kum Kum even called Grand Uncle a “vermin”.
妹妹指前往洗澡前，父親來電表示約見了精神科醫生。妹妹見過社工後表示不願意見精神科醫生，但琴琴姨指她曾同意，故不應改變主意及用社工“過橋”。事件最終亦導致警員介入，而結論是無人可以強迫妹妹去看醫生。最後妹妹離開琴琴姨家，前往姑婆家和姊姊一起，原因之一是她因其他事件和琴琴姨不和，琴琴姨更指姑丈公是“害人精”。

43.Younger Sister said Grand Aunt learned about her having been indecently assaulted by the applicant through Elder Sister. Grand Aunt took the view that they should fend for themselves and said that the matter was through no fault of theirs and was not something that could never be disclosed. Grand Aunt told the sisters that they could report the matter to the police and she would respect their decision although it was not an easy one to make. In the end, having discussed the matter between themselves, the sisters decided to make a report to the police and recount what happened when being indecently assaulted by the applicant.
妹妹指姑婆透過姊姊知悉她被申請人“非禮”一事。姑婆認為她們要為自己做點事，並指出事件不是她們的錯造成，亦非不可以說出來。姑婆向兩姊妹表示她們可以報警，而她亦會尊重她們的決定，雖然該決定並不簡單。結果，兩姊妹經商量後，決定前往警署報案，道出被申請人“非禮”的經過。

44.Grand Aunt said in her testimony that she was a registered social worker. She recounted what happened during the time when Elder Sister moved in with her in September 2012. She said that on one occasion when she took a stroll with Elder Sister, she mentioned that she had been indecently assaulted by the applicant. Grand Aunt also described what happened before the two sisters reported the matter to the police on 3 April 2013.
姑婆作供時表示她是一名註冊社工。她述及2012年9月姊姊搬往她家居住的情況。姑婆指有一次和姊姊散步時，姊姊提及曾被申請人“非禮”。姑婆亦說及2013年4月3日姊姊和妹妹報警前發生的事情。

45.She went on to say that on the morning of 3 April 2013, she received a phone call from Younger Sister, and as she kept weeping over the phone, Grand Aunt instructed Grand Uncle to go to check on her. She later understood that Younger Sister was at Sheung Shui Integrated Family Service Centre and Mr Wong and Aunt Kum Kum were compelling her to see a psychiatrist, and the matter led to intervention by the police. That evening, Younger Sister showed up at Grand Aunt’s home and indicated that she felt frightened and unsafe. Elder Sister then told her that both sisters had been indecently assaulted by the applicant, and she said they could consider whether or not to report the matter to the police. Grand Aunt agreed that before they made a report to the police on 3 April 2013, the two sisters had not told her the details of the matter, and that she was not present when statements were being taken from them. Grand Aunt indicated that she came to learn about the facts of the indecent assault only on 11 April 2013 when she accompanied Younger Sister to an interview by a social worker. Grand Aunt denied having abetted the two sisters to describe what was accidental physical contact as indecent assault.
姑婆續稱，2013年4月3日早上，因妹妹致電她後一直哭泣，故指示姑丈公去看妹妹的情況，其後她理解妹妹在上水綜合家庭服務中心，而黃先生和琴琴姨強逼她看精神科醫生，事件導致警方介入。當晚，妹妹在姑婆家出現，並表示感到害怕及不安全。其後，姊姊向她表示自己和妹妹都曾被申請人“非禮”，她則說她們可以考慮是否報警。姑婆同意2013年4月3日，姊姊和妹妹報警前，並沒有告訴她事件的詳情，而她們錄口供時，自己亦不在場。姑婆表示到2013年4月11日，她陪同妹妹接受社工會面，才知道她被“非禮”一事的案情。姑婆否認有教唆姊姊和妹妹將意外的身體觸碰說成“非禮”。

Defence case and evidence
辯方的立場和證據

46.The defence denied that the applicant had indecently assaulted the two sisters. The defence case was that the applicant might have had some physical contact with them, but that contact  was accidental, and the applicant had no indecent intent at the time in question.
辯方否認申請人有“非禮”過受害人兩姊妹。辯方指申請人可能有和她們有過一些身體接觸，但該些身體接觸是意外造成，而當時申請人是沒有猥褻意圖的。

47.The defence even alleged that both sisters were mentally ill, and that the allegations they made against the applicant were the result of delusional disorders and/or lies and therefore completely unreliable or incredible.
辯方更指受害人兩姊妹均患有精神病，而她們針對申請人的指控源自她們的妄想及/或謊言，因此全不可靠或可信。

48.The defence submitted that both sisters had a normal and happy childhood but subsequently suffered from persecutory delusion which developed into “shared delusional disorder” (“SDD”). The defence further contended that, with a view to breaking up the family of the two victims, Grand Aunt and Grand Uncle exercised undue influence over them, and this caused them to suffer from mental illness, and delusions that they had been physically abused and improperly treated by their parents, which eventually led to a breakdown of their relationship with their parents and their running away from home. And their mental illness, it was submitted, had  deluded them into believing that they had been indecently assaulted by the applicant, as a result of which they made false accusations against him.
辯方指姊姊和妹妹的童年生活正常及快樂，但後來患上被害型妄想症，及轉變為“共有性妄想症”。辯方更認為姑婆和姑丈公為了破壞兩名受害人的家庭完整，而對她們施以不當影響，導致她們患上精神病，妄想曾受父母虐打和不當對待，最終導致她們和父母關係破裂及離家出走。而她們的精神病亦令她們妄想曾被申請人“非禮”，故對他作出不實的指控。

49.According to Dr Wong Chung Kwong (“Dr Wong”), expert witness for the defence, it was highly unlikely, on the basis of the theory of cognitive development, that Younger Sister could recall clearly what happened when she was 5 years old, and the allegation that she had been indecently assaulted by the applicant was a statement which stemmed from her persecutory delusion. The defence also relied on the explanation he gave in the post-recorded statement, namely that the incident was caused by accident.
辯方根據專家證人黃重光醫生（黃醫生）的說法指從認知發展理論，妹妹能清晰回想5歲時發生的事件的可能性極低，而她指被申請人“非禮”一事是基於她所患的被害型妄想症衍生出來的描述。辯方亦依賴他在補錄供詞時所作的解釋，指事件是意外造成。

50.However, the applicant did not give evidence for himself. He only called Mr Wong and Cousin Wai to give evidence in order to rebut the evidence of Elder Sister, Younger Sister and Grand Aunt. The applicant also called Dr Wong to try to convince the court that the two sisters had delusional disorders and hence their evidence was not reliable.
但申請人沒有作供自辯，他只是傳召黃先生和慧表姐作供以反駁姊姊、妹妹和姑婆的證供。申請人亦有傳召黃醫生作供以說服法庭相信姊姊和妹妹有妄想症，因此她們的證供是不可靠的。

51.In her testimony, Cousin Wai disagreed with the allegations made by the two sisters against the applicant. Her position was that, based on her observations, the applicant could not have had any opportunity to indecently assault the two sisters, the reason being that Younger Sister had never been on the bed with the applicant inside the room with its door closed. She said that in 2007, the only place at home where there was a TV set was the sitting room. She said it was not correct to say, as Younger Sister did, that the three cousins had sat together on the bed of the applicant and that Younger Sister was in the end left behind in the room with the applicant. Further, there was no TV set or computer inside the room at the time in question. Cousin Wai said, based on her observations, the two victims and Tai Chai enjoyed a harmonious relationship with their parents and the relatives were close to each other. She stressed that she had never seen any marks from injuries on the two victims or Tai Chai, nor had she heard the two sisters complain about having been physically abused by the parents. However, she indicated that she did not know why the two victims had broken up with their family.
慧表姐作供時否定姊姊和妹妹對申請人的指控。慧表姐的立場是據她的觀察，申請人根本沒有機會做出“非禮”姊姊和妹妹的行為。原因是妹妹未試過在房門更關上時和申請人一起在床上。她指2007年，家中只有客廳有擺放電視。她指妹妹說她們三表姐妹曾一起坐在申請人的床上，而最後留下妹妹和申請人在房的說法不正確，而事發時房間內更沒有電視或電腦。慧表姐亦指根據她的觀察，兩名受害人及泰仔和父母的關係融洽，而各親戚的關係亦密切。她強調從來沒有見過兩名受害人或泰仔身上有傷痕，亦沒有聽過她們投訴曾受父母虐打，但慧表姐表示不知悉兩名受害人和家庭破裂的原因。

52.Cousin Wai further said that the applicant was of good character and got along well with kids. She said she had been in contact with the applicant ever since she was a kid and had never felt she had been indecently assaulted by him. She firmly believed that the applicant would not indecently assault the two sisters.
慧表姐更指申請人品格良好，和小朋友玩得來。她表示自少至大都有和申請人接觸，而她從來沒有感覺到申請人有“非禮”她。她堅信申請人不會“非禮”姊姊和妹妹。

53.In his evidence, Mr Wong admitted that he had only used corporal punishment on Elder Sister and Tai Chai but never on Younger Sister. He considered that, as Elder Sister was the eldest of the three children, he would usually use corporal punishment on her when the children quarrelled, and the corporal punishment used on Tai Chai had mostly to do with his grades at school. Mr Wong denied having ever caused injuries to the children in using corporal punishment on them or beaten them with any objects.
黃先生作供時承認只有體罰姊姊和泰仔，而沒有體罰過妹妹。他認為姊姊年紀最長，故當子女有爭執時，他通常會罰姊姊，而體罰泰仔則和他的學業成績有關。黃先生否認體罰子女時，試過令她們受傷，亦否認有用過任何物件毆打子女。

54.Mr Wong also denied having unreasonably restricted the victims in their use of the computer or improperly invaded their privacy.
黃先生亦否認有不合理地限制受害人使用電腦或不當地侵犯她們的私隱。

55.Mr Wong admitted that he had sworn in the presence of his children, but said that this was for the purpose of venting his feelings and not scolding the children. However, he admitted that he had “very occasionally” sworn at the children when they were naughty.
黃先生承認曾在子女面前說粗口，目的只是抒發情緒，而非責駡子女，但他承認在“好偶然”的情況下，曾向頑皮的子女說粗口。

56.Mr Wong thought that the victims had a happy childhood. He also recounted in detail the row which arose from Elder Sister spilling rice on 17 September 2012. He said Elder Sister blamed Younger Sister for having caused the incident, and so she rushed to Younger Sister’s room to scold her with intent to attack her and also swore at Tai Chai. Later, Elder Sister even swore at Mother and had a clash with her. Mr Wong denied having inflicted violence upon Elder Sister, and said that she even lost control because he used a phone to record her improper behaviour. This in the end caused Grand Aunt and Grand Uncle to step in to conciliate between the parties and also caused Elder Sister to move in with them.
黃先生認為受害人的童年是愉快的。黃先生亦有詳述2012年9月17日，因姊姊倒瀉米而引致的糾紛。他指姊姊指責妹妹造成事件，故衝向妹妹的房間責駡和意圖襲擊她及以粗口駡泰仔。其後姊姊更用粗口駡母親及和她有肢體衝突。黃先生否認有向姊姊動武，而姊姊更因他用電話攝錄她的不當行為而失控，最終導致姑婆和姑丈公前來調停及姊姊搬去他們的家中居住。

57.In order to avoid Elder Sister having to live with Grand Uncle for a long period of time, Mr Wong arranged for one of the rooms in the tuition centre to be Elder Sister’s place of residence, but he had no idea whether Elder Sister had lived there. He admitted that he arranged for someone to change the lock of that room on 2 April 2013 to take back control over that room.
黃先生指為了避免姊姊長時間和姑丈公相處，故安排該補習社其中一間房間作為姊姊居住的地方，但他不知悉姊姊是否曾入住。他承認在2013年4月2日找人換了房間的鎖，取回該房間的控制權。

58.Mr Wong said he had not heard from Elder Sister between 17 September 2012, the date she left the family, and 30 March 2013. Mr Wong also described what led to serious conflict between the two parties on 30 March 2013 when he went with his wife and Aunt Kum Kum to Grand Aunt’s place to look for Elder Sister.
黃先生指出姊姊自2012年9月17日離開家庭後至2013年3月30日都沒有聽過她的聲音。黃先生亦述及在2013年3月30日，他和太太及琴琴姨前往姑婆家找姊姊時，如何導致雙方發生嚴重衝突。

59.Mr Wong pointed out that on 31 March 2013 he learned for the first time that he was said to be mentally ill, and the two sisters also believed this to be true. He said he noticed that evening that Younger Sister looked scared and this prompted him to consider it necessary to seek help from a psychiatrist. As a result, he made three appointments on 2 April 2013 with Dr Tsang Fan Kwong for himself and the two victims to be medically examined the following day. But the two victims did not turn up and, in the evening of the same day, made a report to the police complaining that they had been indecently assaulted by the applicant.
黃先生指在2013年3月31日，首先知悉有人指他患有精神病，而受害人兩姊妹亦相信該說法。黃先生指當天晚上，他發現妹妹神情驚慌，令他認為需要找精神科醫生協助。結果他在2013年4月2日和曾繁光精神科醫生替自己和兩名受害人作出三個預約在翌日接受醫生檢查。但兩名受害人沒有出席更在當天晚上報警指被申請人“非禮”。

60.Mr Wong agreed that after he knew the victims had made a police report on 3 April 2013, he made enquiries with Mrs Wong and learned that Younger Sister had back then complained to Mrs Wong that the applicant had come into contact with the part of Younger Sister’s body for “peeing” and Mrs Wong had sought clarification from Aunt Kum Kum and the applicant. Mrs Wong’s understanding was that the applicant “had inadvertently had one contact” with Younger Sister when playing with her. When he enquired with Elaine Tsang, the social worker at school, she indicated that Younger Sister had not told her about that incident.
黃先生同意當他知悉受害人在2013年4月3日報警後，他有向黃太太查問並得知妹妹當年曾經向黃太太投訴被申請人碰到“屙殊殊”的地方，而黃太太亦有向琴琴姨和申請人澄清。黃太太的理解是申請人和妹妹玩耍時“唔覺意碰一碰”。當他向學校社工Elaine Tsang查問時，Elaine Tsang表示妹妹沒有告訴過她該事件。

61.To support the suggestion that the victims had “delusional disorders”, the defence called Dr Wong to testify. Dr Wong had not seen either of the two sisters, less so examined them. Based on information he had obtained on the two sisters, he prepared a number of reports which pointed out that the two sisters were suffering from the rarely seen SDD.
為了支持受害人患有“妄想症”這說法，辯方傳召精神科黃醫生作供。黃醫生沒有見過姊姊和妹妹，更沒有檢驗過她們。他是根據取得和她們有關的資料，先後準備了多份報告指姊姊和妹妹患了罕見的“共有性妄想症”。

62.Dr Wong’s first four reports, dated 27, 28, 29 January 2014 and 15 February 2014 respectively, related to Mr Wong and the two sisters. In the first report, Dr Wong confirmed that Mr Wong was not suffering from mental illness; the second report, on the other hand, stated a confirmed diagnosis that Younger Sister was suffering from persecutory delusions and also SDD. In his third report, Dr Wong made a preliminary diagnosis that Elder Sister was very likely to be suffering from a delusional disorder, in particular SDD, but added that he had to obtain and study Elder Sister’s diary before he would prepare a report of confirmed diagnosis. The fourth report showed Dr Wong’s diagnosis that Elder Sister was also suffering from persecutory delusions and also SDD.
黃醫生首四份報告涉及黃先生和姊姊及妹妹，日期分別是2014年1月27、28、29日和2014年2月15日。在第一份報告，黃醫生確認黃先生沒有患精神病，但在第二份報告，黃醫生已確診妹妹患有被害型妄想症，且是共有性妄想症。在第三份報告，黃醫生初步診斷姊姊極可能患有妄想症，尤其是共有性妄想症，但他補充要取得姊姊的日記研究後再撰寫確診報告。第四份報告顯示黃醫生診斷姊姊亦患有被害型妄想症，且是共有性妄想症。

63.Shortly before the trial commenced on 17 February 2014, the defence provided the prosecution with Dr Wong’s first four psychiatric reports in respect of Mr Wong and the two sisters. With the consent of both parties, the trial judge first heard the evidence of the two sisters and then adjourned the case to enable the prosecution to prepare its own expert evidence. The judge also gave leave to Dr Wong to stay in court to observe the two sisters when they gave evidence. Subsequently, the defence obtained the transcript of the evidence given by the two sisters, and in early June, Dr Wong compiled two supplemental reports on the sisters which quoted part of their evidence.
案件在2014年2月17日開審前不久，辯方將黃醫生的首四份關於黃先生、姊姊和妹妹的精神報告提供給控方。在雙方同意下，原審法官先聽取姊姊和妹妹的證供，再押後案件讓控方準備專家證供。原審法官亦批准黃醫生在法庭內觀察姊姊和妹妹作供的情況。其後，辯方取得姊姊和妹妹的證供謄本，而黃醫生在6月初撰寫了姊姊和妹妹的兩份補充報告，內容引用了姊姊和妹妹的部分證供。

64.By the time the factual witnesses for both parties had finished giving evidence, the prosecution had still to engage an expert. For that reason, Dr Lai Tai Sum Tony (Dr Lai), expert witness for the prosecution, did not get to observe the sisters giving evidence.
控辯雙方的事實證人作供完畢時，控方尚未聘用專家，故控方的專家證人黎大森醫生（黎醫生）沒有觀察到姊姊和妹妹作供的過程。

65.Dr Lai compiled his first expert report on 13 October 2014. When the trial resumed on 14 October 2014, the defence objected to Dr Lai giving evidence by way of rebuttal and took the view that the prosecution should reopen its case for Dr Lai to testify. The defence stressed that they had already informed the prosecution two weeks prior to the trial that they were going to call Dr Wong, and had delivered the reports to the prosecution before the trial commenced. The defence submitted that, as Dr Wong’s evidence neither came unexpected nor arose ex improviso, so the prosecution was not entitled to adduce rebuttal evidence after the defence had closed its case. The defence cited cases such as R v Days [1940] All ER 402 and R v Scott (1984) 79 Cr App R 49 to support its position.
黎醫生在2014年10月13日撰寫了第一份專家報告。2014年10月14日重新開庭時，辯方反對黎醫生以反駁證供方式作供。辯方認為控方應重開案情，由黎醫生先作供。辯方強調，他們在開審前兩星期已通知控方他們將傳召黃醫生，並在審訊前已將報告交給控方。辯方認為黃醫生的證供並非未能預計或突如其來(arose ex improviso)，故控方無權在辯方結案後提出反駁證供。辯方援引R v Days [1940] All ER 402及R v Scott (1984) 79 Cr App R 49等案支持該立場。

66.The trial judge did not accept the defence argument. He pointed out that in Days, the prosecution alleged that the defendant had forged the signature on the cheque, and therefore the evidence of the handwriting expert that the signature was a forgery went to one of the elements of the offence that the prosecution had to establish. The trial judge pointed out that in the present case it was not necessary for the prosecution to prove that the sisters were not mentally ill because it was not an element of the offence charged against the applicant. He stressed that before Dr Wong testified, there was no evidence whatsoever to indicate that the sisters were mentally ill, and therefore the defence must first discharge the burden of proving that they were mentally ill and hence their evidence was not credible or reliable.
原審法官不接納辯方的立場，並指出Days案中控方指被告人冒簽支票，故證明冒簽的筆跡專家的證供是控方要證明控罪的元素之一。原審法官指出在本案控方不需要證明姊姊和妹妹沒有患上精神病，原因是該事項並非是控罪的罪行元素之一。原審法官強調，在黃醫生作供前，沒有任何證據支持姊姊和妹妹患有精神病，因此辯方須先履行其舉證責任，顯示她們患有精神病，導致她們的證供不可信或不可靠。

67.The trial judge in the end held that Dr Wong should give evidence first, and having heard such evidence Dr Lai would be allowed to give rebuttal evidence. The trial judge also directed that Dr Wong could stay in court to listen to such evidence and/or points as Dr Lai might give. If Dr Lai mentioned any point either not contained in his reports or not put to Dr Wong via cross-examination by the prosecution, the defence could apply to call Dr Wong again to give evidence and make additional comments on such new evidence and/or point.
原審法官最終裁定黃醫生要先作供，而黎醫生可以聆聽黃醫生的證供後提出反駁證供。原審法官亦指示黎醫生作供時，黃醫生可以在庭內聆聽其證供及/或論點。如黎醫生提及某些沒有記載在他的報告，或沒有透過主控的盤問向黃醫生提出的論點時，辯方可以申請重召黃醫生就該些新證供及/或論點再次作供及作出補充。

68.Thereafter, based on the relevant transcripts of evidence, Dr Wong produced two supplemental reports. Dr Wong not only confirmed his previous confirmed diagnosis on the two sisters, but even stated that Grand Aunt and Grand Uncle had, by exercising undue influence, caused the two sisters to suffer from delusional disorders, and this, Dr Wong stated, was serious mental ill-treatment of them.
其後，黃醫生再根據有關證供的謄本，作出兩份補充報告。黃醫生不但確認他較早前對姊姊和妹妹的確診，更指姑婆和姑丈公有透過不當影響令她們患上妄想症，是對她們的嚴重精神虐待。

69.In his report dated 13 October 2014, Dr Lai stated that the information quoted by Dr Wong in his reports was fragmented and incomplete, and further that Dr Wong had taken an unprofessional and improper approach in failing to take all the necessary steps for psychiatric assessment of the sisters. Dr Wong responded to the Dr Lai’s criticisms by way of a supplemental report which also set out his personal background, clinical and expert experience and the international recognitions, with a view to strengthening the credibility of his opinions. Dr Lai also compiled a supplemental report in respect of Dr Wong’s said response.
黎醫生撰寫日期為2014年10月13日的報告，指黃醫生在其報告中引述的資料零碎不全、更沒有對姊姊和妹妹進行全部必需的精神科評估步驟，做法不專業亦不恰當。其後，黃醫生以補充報告回應黎醫生的批評，並列出其個人背景、臨床和專家經驗及國際認可的資料，以加強其意見的可信性。黎醫生亦有就黃醫生的上述回應撰寫一份補充報告。

70.Dr Wong said in evidence that the special characteristic of SDD was that it was a delusion which developed in an individual by reason of his/her close relationship with another person suffering from a mental disorder with prominent delusional symptoms. The latter person was known as the “primary case” or “inducer”. The former gradually recognised/shared all or part of the latter’s delusional beliefs due to the close relationship between the two.
黃醫生作供時指該共有性妄想症的特徵是一個人因為與另一名已有明顯妄想徵狀的精神障礙患者有密切關係而發展出來的妄想症；後者稱為“原個案”或“引發者”；前者因為和後者有密切關係而漸漸認同/共享後者的全部或部分妄想信念。

71.Dr Wong said that, based on the information in hand which related to the sisters including Mr Wong’s written and oral statements, family photos and videos, school reports, Elder Sister’s diary, Younger Sister’s weekly journal, and the WhatsApp messages and letters with parents, Dr Wong was able to conclude that both sisters suffered from delusional disorders as well as SDD, and their mental abnormality would have affected their state of mind, thereby casting grave doubts on the truthfulness of their evidence.
黃醫生指根據他取得和姊姊及妹妹有關的資料，包括黃先生的書面和口頭陳述、家庭照片和錄像、學校成績表、姊姊的日記簿、妹妹的週記和與父母的WhatsApp及書信通訊，他能判斷姊姊和妹妹都患有妄想症及兩人亦患有共有性妄想症，而他們的精神失常會影響到她們的思想狀態，致使她們證供的真確性大受質疑。

72.In essence, Dr Wong took the stance that, if the sisters had indeed been physically abused and ill-treated by their parents, then the family photos and videos would not have captured scenes in which the sisters were joyous and happy, and they would have had bad grades at school, and their writings, journal and diary would have been devoid of words and phrases expressing their concern and love for their parents. Dr Wong fully accepted Mr Wong’s statement that he had never physically abused or improperly treated the two victims. It followed that their allegations that their father had acted improperly were the result of their delusional disorders. Dr Wong based his diagnosis on the false beliefs that the sisters held even though they had neither been improperly treated by their parents nor been indecently assaulted by the applicant.
黃醫生的基本立場是如姊姊和妹妹曾遭父母虐打和不當對待，家庭照片和錄像就不會拍攝到他們歡笑愉快的場面，她們的學校成績就不會理想，而她們的文章、週記、日記等亦不會出現關心、愛護父母的語句。黃醫生完全接受黃先生的說法，指他從來沒有虐打或不當地對待兩名受害人。因此她們針對父親有不當的指控是因為她們患有妄想症。黃醫生的診斷是建基在姊姊和妹妹都沒有被父母不當對待及沒有被申請人“非禮”的情況下，但仍持有虛假的信念。

73.Dr Wong contended that before 2006 in the case of Elder Sister, and before 2011 or 2012 in the case of Younger Sister, they both led normal and happy childhoods. Their parents subjected them to appropriate discipline but did not inflict violence upon them. But later, with the imperceptible onset of their illness, they began to believe they had been physically abused. Dr Wong took the view that the sisters’ said belief was false but unfaltering.
黃醫生力稱姊姊在2006年前，而妹妹在2011年或2012年前，均過著正常和快樂的童年。她們的父母對她們施以合適的管教，但沒有對她們施暴。但後期在不知不覺間發病，令她們相信曾受虐打。黃醫生認為姊姊和妹妹的上述信念是虛假的，但亦是不能動搖的。

74.Dr Wong took the view that the sisters were suffering from persecutory delusions and that it showed signs of “systematization” and “generalization”, so that they considered themselves being harmed not only by their parents but also by others including the applicant, relatives, teachers, social workers, etc. And “generalization” meant that their ability to perceive, thoughts, moods and memories were all affected by their mental illness, rendering their evidence unreliable.
黃醫生認為姊姊和妹妹所患的是被害型妄想症，而更有“系統化”和“廣泛化”的現象，令她們認為加害她們的人由父母擴展至其他人，包括申請人、親戚、老師、社工等。而廣泛化是指她們的感知能力、思想、情緒和記憶功能都受病患影響，導致她們的證供不可靠。

75.Based on the entry dated 1 May 2009 in Elder Sister’s diary, Dr Wong opined that Elder Sister began to fall ill in May 2009. At that time, her “views” of her parents turned from positive to negative. But it was only later － in August 2010 or so －  that her delusional disorder truly manifested, and the entry dated 28 August 2010 in her diary gave some indication of the status of her illness.
根據姊姊2009年5月1日的日記內容，黃醫生認為姊姊在2009年5月已開始病發。當時她對父母的“諗法”由正向轉去負向，而她真正出現妄想症是在較後時間，即約在2010年8月，而其病況亦在2010年8月28日的日記內容顯示。

76.Dr Wong also took the view that Younger Sister was mentally normal before 2011 or 2012 and that it was very difficult to pinpoint the time of the onset of illness. Dr Wong opined that by the time Younger Sister reported to the police that she had been indecently assaulted by the applicant, her delusional disorder had already manifested, and when she sent the WhatsApp messages to her parents, she was under full-blown attack of the delusional disorder.
黃醫生亦認為妹妹在2011年或2012年前精神狀態是正常的，亦很難準確地判斷她病發的時間。黃醫生認為當妹妹報警指遭申請人“非禮”時，她的妄想症已經病發，而當她發出WhatsApp訊息給父母時，其妄想症則全面爆發。

77.Dr Wong came to the conclusion that both sisters suffered from delusional disorders and SDD and hence neither of them was a veracious and reliable witness, and the court should not act on their evidence.
黃醫生的結論是姊姊和妹妹都患有妄想症及共有性妄想症，因此她們都並非誠實可靠的證人，而法庭亦不應根據她們的證供行事。

78.Dr Wong further pointed out that according to Jean Piaget’s theory of cognitive development, the age of 5, which was Younger Sister’s age when she said the offence occurred, was the pre-operational stage, in which a child was yet to understand concrete logic and mentally manipulate information, and was therefore egocentric and unable to see the viewpoints of others or to use his/her linguistic ability in a sophisticated way. Accordingly, Younger Sister had no more than a vague memory of the incident, and even if she tried to recall the incident, she could only recall periods of time with even greater vagueness. Dr Wong cited the decision in R v H (JR) (Childhood Amnesia) [2006] 1 Cr App 10 to support his statements.
黃醫生亦指出，根據尚、皮亞傑的認知發展理論，妹妹指稱在案發時，她只有5歲，處於前運思期，仍未能理解具體邏輯，其心智未能掌握資料，故以自我為中心，未能了解他人想法，亦未能成熟運用言語能力。因此，妹妹對事件只有模糊記憶，而即使回想事件，她也只能記起更為模糊的時段。黃醫生援引R v H (JR) (Childhood Amnesia) [2006] 1 Cr App 10案的判決支持他的論述。

79.Dr Wong reached the conclusion that it was very unlikely for Younger Sister to be able to recall clearly what happened in the incident. He even took the view that the account or contrived account that she gave of the incident might have been a frame-up or a mistaken account derived from her persecutory delusion.
黃醫生的結論是妹妹能清晰回想有關事件的經過的可能性非常低。他更認為妹妹就事件的描述或做作的描述（contrived account），可能是一個誣陷的描述或是基於她患有被害型妄想症而衍生而來的錯誤描述。

80.After Dr Wong finished giving evidence, the prosecution called Dr Lai to rebut Dr Wong’s evidence and diagnostic findings. Dr Lai had neither examined the sisters nor analyzed the materials that Dr Wong relied on, but he considered the materials relied on by Dr Wong fragmented, unverified and unreliable. Dr Lai took the view that Dr Wong’s diagnostic approach was unfair, unsophisticated and even failed to meet the necessary diagnostic requirements in the field of psychiatry.
控方在黃醫生作供完畢後，傳召黎醫生反駁黃醫生的證供及診斷結論。黎醫生沒有檢驗過姊姊或妹妹，亦沒有分析黃醫生所依賴的資料，但他認為黃醫生依賴的資料是零碎，未經證實及不可靠。黎醫生認為黃醫生的診斷方法不公平、不成熟、更不符合精神科病患所需的診斷要求。

Decisions of the trial judge
原審法官的裁決

81.The trial judge stressed that the expert witnesses were obliged to assist the court by expressing objective and unbiased opinions and should never assume the role of counsel or advocate. He pointed out that the expert witnesses were under a duty to specify the scientific standards by which they tested their conclusions, so that the court could apply those standards to the proven facts and make independent judgments.
原審法官強調專家證人必須提出客觀及沒有偏見的意見以協助法庭，而絕對不能扮演訴訟律師的角色。原審法官指出專家證人有責任提供用作測試他們結論的科學準則，以便法庭能運用該些科學準則在獲得證明的事實上，令法庭能作出獨立的判斷。

82.The trial judge had dealt at great length with Dr Wong’s evidence. He took the view that Dr Wong’s judgments, which were not based on comprehensive, accurate and objective information, showed that he had already taken a stance regarding the incident beforehand. He stressed that Dr Wong’s diagnosis set out in his second, third and fourth reports, namely that the two sisters were suffering from persecutory delusions and also SDD, was made without having examined or even seeing the two sisters. He considered Dr Wong’s approach slipshod and unconvincing.
原審法官花了極大篇幅來處理黃醫生的證供。原審法官認為黃醫生的判斷並非建基在全面、準確和客觀的資料，顯示他對事件早有預設立場。原審法官強調黃醫生在沒有檢驗更沒有見過姊姊和妹妹下，便在他撰寫的第二、三、四份報告書確診姊姊和妹妹都患有被害型妄想症，且是共有性妄想症。原審法官認為黃醫生的處理方法粗疏及不具說服力。

83.The trial judge rejected Dr Wong’s statement that observing them giving evidence in court was tantamount to having examined their state of mind. The trial judge took the view that the further reports Dr Wong prepared after listening to the sisters’ testimony showed that he was playing the role of counsel rather than giving expert evidence, for the reason that some of the points he made were simply beyond his expertise. The trial judge stressed that as a matter of fact, Dr Wong had no evidence to prove that Grand Aunt and Grand Uncle had exercised any undue influence over the sisters.
原審法官否定黃醫生的說法，指他觀察姊姊和妹妹作供已等同有對她們進行了精神狀態檢查。原審法官認為黃醫生在聆聽姊姊和妹妹的證供後作出的進一步報告，顯示他扮演了訴訟律師的角色，而非給予專家證供，原因是他的部分論點根本不屬於他的專業範疇。原審法官強調事實上黃醫生沒有任何證據證明姑婆及姑丈公有對姊姊和妹妹施加過任何不當的影響。

84.The trial judge pointed out that Dr Wong’s conclusion that the sisters’ allegations against their parents were not true was based merely on one-sided statements made to him by the parents, and ruled that Mr Wong was a “loving father” and that he and Mrs Wong were “good parents”. The trial judge took the view that Dr Wong’s judgments were not objective and lopsided and that his diagnosis, rested on the factual basis as it stood, was not one which he could have made within his expertise. The trial judge considered Dr Wong in fact did not have sufficient grounds to enable him to believe Mr Wong. The trial judge explained in detail the basis on which he came to that conclusion.
原審法官指出黃醫生是根據父母親向他作出的片面陳述便認定姊姊和妹妹對他們的指控不真確，而判定黃先生和黃太太都是“慈愛的父親”和“好父母”。原審法官認為黃醫生的判決是不客觀及片面的，而他作出診斷的事實基礎亦非他專業知識範圍內可作出的。原審法官認為黃醫生根本沒有足夠理據令他能相信黃先生。原審法官有詳細解釋他得出該結論的理據。

85.The trial judge also examined, one by one, the bases of Dr Wong’s diagnosis. He took the view that the diagnostic methodology adopted by Dr Wong was full of loopholes and shortcomings, and that the information Dr Wong relied on did not support his conclusion. The trial judge stressed that Dr Wong started off by presuming that both sisters were influenced by mental illness instead of considering all the information before coming to a conclusion.
原審法官更有根據黃醫生的診斷結論的基礎逐一審視。原審法官認為黃醫生採納的診斷方法充滿漏洞及缺失，而他依賴的資料亦不支持他的結論。原審法官強調黃醫生是先假定姊姊和妹妹都是受了精神病的影響而不是考慮全面資料才作出該判定。

86.The trial judge found that Dr Wong had a predetermined position and failed to objectively analyse the relevant information including the family photos, videos, school reports, writings, diary and so on. The trial judge explained in great detail the aforesaid conclusion that he reached. He found that Dr Wong in fact did not have sufficient grounds to support his diagnosis on the sisters. He pointed out that part of the information Dr Wong relied on did not support his conclusion and that his judgment was wrong. Moreover, the content of Elder Sister’s diary was not in line with Dr Wong’s view that she had a happy childhood.
原審法官裁定黃醫生有預設立場，而他分析有關資料，包括家庭相片、錄像、成績表、文章、日記等等時的態度並非客觀。原審法官有非常詳細地解釋他得出的上述結論。原審法官認為黃醫生根本沒有足夠理據支持他對姊姊和妹妹的診斷。原審法官指出黃醫生所依賴的資料部分不支持他的結論，而他的判斷是錯誤的。原審法官指出姊姊日記的內容和黃醫生指她有愉快童年生活的說法不符。

87.The trial judge found that he could not attach any weight to the evidence of Dr Wong.
原審法官認定他不能給予黃醫生的證供任何比重。

88.In the end, the trial judge found that the sisters were not under any false belief of being persecuted by their parents, and that they did not suffer from any delusional disorder, not to mention SDD.
最終，原審法官裁定姊姊和妹妹都沒有任何遭受父母迫害的虛假信念，而她們沒有患上任何妄想症，更遑論共有性妄想症。

89.The trial judge also very carefully analyzed the evidence of the sisters and tested the credibility and reliability of their evidence from the perspective of the defence.
原審法官亦有非常小心分析姊姊和妹妹的證供，亦有根據辯方的立場來測試她們的證供的可信性和可靠性。

90.The trial judge set out in detail the events leading to the sisters reporting the matter to the police on the evening of 3 April 2013 and the reasons causing them to accuse the applicant of indecently assaulting them. The trial judge said it was out of fear of “score-settling” and violence from the father that Younger Sister was willing to go to the applicant’s home. Therefore, that matter shed no light on the sisters’ allegations against the applicant, and it was in order to protect Younger Sister that they reported the matters to the police. The trial judge pointed out that Grand Aunt and Grand Uncle did not stand to gain anything from the sisters’ severance of the relationship with their parents, and that the sisters had no reason to target the applicant.
原審法官有詳細列出導致姊姊和妹妹在2013年4月3日晚上報警的過程及她們指控遭申請人“非禮”的前因後果。原審法官指出妹妹是害怕父親秋後算賬及為了逃避暴力，才願意前往申請人的家，因此該事項和姊姊及妹妹針對申請人的指控沒有啟示性，而她們報警亦是為了保護妹妹。原審法官指出姊姊和妹妹切斷和父母的關係對姑婆和姑丈公沒有任何好處。他們亦沒有針對申請人的理由。

91.The trial judge found that the discrepancies in the evidence between Elder Sister, Younger Sister and Grand Aunt were merely the result of different recollections they had of the details and did not mean that any of them lied.
原審法官認為姊姊、妹妹和姑婆的證供有矛盾只是基於她們對細節有不同記錄，不等同她們任何一人有說謊。

92.The trial judge said according to Younger Sister, she did make a complaint to the mother shortly after she had been indecently assaulted by the applicant － an account which was confirmed by the applicant in his video-recorded interview. The trial judge stressed that Younger Sister complained to her mother that the applicant had “touched (her) private parts” with his hand(s), and the applicant was aware of the complaint Younger Sister made because he had been “cautioned” and “scolded” as a result of the complaint. The trial judge considered that the incident the applicant mentioned was the very incident about which Younger Sister complained to her mother and of which Younger Sister accused the applicant. The trial judge found that Younger Sister had made a “recent complaint” about the applicant’s indecent assault on her.
原審法官指出根據妹妹的說法，而該說法亦獲申請人在錄影會面確認，她在被申請人“非禮”後不久，有向母親投訴。原審法官強調妹妹向母親投訴被申請人用手“掂下體”，而申請人知悉妹妹的投訴，原因是妹妹的投訴導致他被“警誡”及“鬧過”。原審法官認為申請人提及的事件和妹妹向母親的投訴及妹妹對申請人的指控都是同一事件。原審法官裁定妹妹有就申請人“非禮”她的行為作出過“新近投訴”。

93.The trial judge did not spell out how he dealt with Elder Sister’s evidence that she eavesdropped on the complaint Younger Sister made to their mother. However, he pointed out that if it was accepted that Elder Sister did in fact hear Younger Sister complaining to their mother that she had been indecently assaulted by the applicant, then Elder Sister’s evidence would support the recent complaint in respect of Charge 1.
原審法官沒有明確表示他如何處理姊姊偷聽到妹妹向母親投訴的證供，但他指出如接納姊姊確有聽到妹妹向母親投訴被申請人“非禮”，姊姊的證供亦構成支持第一項控罪的“新近投訴”。

94.The trial judge said that there was no recent complaint to support Elder Sister’s allegation against the applicant, but the entry she made in her diary of 1 May 2009 could prove that she had been consistent in making her allegation against the applicant and that she had not fabricated the allegation only shortly before the report made to the police in 2013. The trial judge stressed that the relevant diary showed no sign of new page(s) having been inserted and that the content of the diary showed continuity, and these were inconsistent with the defence case that the entry in question was written on page(s) left blank in advance or on newly inserted page(s). The trial judge also rejected another allegation made by the defence, namely that Elder Sister wrote the entry in question when her mental illness relapsed. The trial judge did not accept the defence case and found that the relevant entry in the said diary was written by Elder Sister on 1 May 2009.
原審法官指出姊姊指控申請人的證供沒有“新近投訴”這因素支持，但她在2009年5月1日的日記記錄能證明她針對申請人的指控是一貫性的，而不是在2013年報警時才新近捏造的指控。原審法官強調有關日記簿沒有加入新頁的痕跡，日記的內容亦有連貫性，和辯方指該日記是寫在預留空頁或是新加的說法不符。原審法官同時否定辯方的另一說法，指姊姊是在精神病發作下寫該日記的。原審法官不接納辯方的說法，並裁定該日記內容是姊姊在2009年5月1日寫下的。

95.The trial judge stressed that the said diary mentioned the applicant holding Elder Sister from behind and touching her chest, and also mentioned that Younger Sister was also a victim. This showed that the evidence of Elder Sister was consistent and not in conflict with the content of the diary. The trial judge also examined the account given by the applicant during the video-recorded interview, and concluded that the applicant had done the relevant acts to Elder Sister with an indecent intent.
原審法官強調，上述日記說及申請人從後抱住姊姊及摸她的胸部，亦說到妹妹也是受害人。這顯示姊姊的證供和該日記的內容是一貫的及是沒有衝突的。原審法官亦有審視申請人在錄影會面時的說法，原審法官認定申請人向姊姊作出的行為有猥褻意圖。

96.The trial judge rejected Dr Wong’s statement that Younger Sister was only 5 years old at the time in question and therefore could not possibly recall the details of what allegedly happened. He pointed out that as a result of the decisions in cases such as R v E [2009] EWCA Crim 1370 and R v Anderson [2012] EWCA Crim 1785, the case of R v H(JR)(Childhood Amnesia) [2006] 1 Cr App R 10 relied on by Dr Wong had become much less important. The trial judge stressed that the opinion expressed by Professor Conway in H(JR) did not in fact support Dr Wong’s stance because, according to the Professor, on the topic in question there were two schools of thought which yielded diametrically different results. Therefore, the trial judge took the view that Dr Wong could not conclude, on the basis of Professor Conway’s opinion, that Younger Sister could not possibly recall the details of the indecent assault upon her when she was 5 years old. The trial judge pointed out that the indecent assault was a traumatic experience for Younger Sister and was also an incident which was “etched in her memory”. And after the incident, she agreed with Elder Sister that they should not be alone with the applicant any more. The trial judge found nothing surprising in Younger Sister being able to recall the incident and tell the police and the court about it.
原審法官否定黃醫生的說法指妹妹在事發時只有5歲，故不可能記得她聲稱的事發細節。原審法官指出基於R v E [2009] EWCA Crim 1370及R v Anderson [2012] EWCA Crim 1785等案。黃醫生所依賴在R v H(JR)(Childhood Amnesia) [2006] 1 Cr App R 10案的重要性已大大降低。原審法官強調H(JR)案中Conway教授的意見，亦不支持他的立場，原因是根據Conway教授的意見，有關議題有兩種不同的說法，而該兩種說法得出的結果亦是截然不同。因此，原審法官認為黃醫生不能根據Conway教授的意見來認定妹妹不可能記得5歲時被“非禮”的細節。原審法官指“非禮”事件對妹妹來說是一個創傷性經歷，而她對事件亦是“刻骨銘心”的。事後她更有和姊姊相約不再和申請人單獨相處。原審法官認為妹妹能對事件有記憶及將事件向警方和法庭道出是絕不為奇的。

97.The trial judge found that, on the evidence of Younger Sister, the applicant’s acts were certainly intentional and done with an indecent intent.
原審法官指出根據妹妹的說法，申請人的動作必然是蓄意及具有猥褻意圖的。

98.The trial judge analyzed in detail the evidence of the two sisters. He found that they were both veracious and reliable witnesses and that the credibility and reliability of their evidence was not affected by Cousin Wai’s evidence. He also rejected Mr Wong’s evidence. He set out in detail the bases of his findings.
原審法官有就姊姊和妹妹的證供作出仔細的分析。原審法官認定姊姊和妹妹都是誠實可靠的證人，而慧表姐的證供未能影響她們證供的可信性和可靠性。原審法官亦否定黃先生的證供。原審法官有詳細列出裁決基礎。

99.In the end, on the basis of the evidence of the sisters, the trial judge convicted the applicant of both charges of indecent assault.
最終原審法官根據姊姊和妹妹的證供裁定申請人兩項“非禮”控罪都罪名成立。

Grounds of appeal
上訴理由

100.Mr Khattak, Counsel for the applicant, seeks to quash the convictions, raising a number of grounds of appeal.
代表申請人的林大律師提出多項上訴理由，要求本庭推翻原判的有罪裁決。

101.In terms of the law and procedure, Mr Khattak argues that the trial judge should not have treated as a recent complaint the fact that Elder Sister heard Younger Sister complain to the mother that she had been indecently assaulted by the applicant, the reason being that Mrs Wong, the person to whom Younger Sister made the complaint, did not give evidence, and the witnesses gave different accounts of how Younger Sister had been indecently assaulted by the applicant. Mr Khattak stresses the need for sufficient consistency between the content of the recent complaint and the allegations made by the victim. He further argues that the confession made by the applicant was double hearsay evidence which should not have been accepted either. Besides, it is argued that there was no evidence of Younger Sister having made any recent complaint, and that the content of the complaint that Younger Sister had allegedly made was inconsistent with her evidence. The trial judge therefore should (it is argued) not have relied on such evidence of recent complaint.
就法律及程序而言，林大律師指原審法官不應視姊姊聽到妹妹向母親投訴被申請人“非禮”一事為“新近投訴”，原因是妹妹的投訴對象黃太太沒有作供，而各人就申請人“非禮”妹妹過程的說法都不同。林大律師強調“新近投訴”的內容須和受害者的指控有足夠一致性。林大律師認為申請人的招認是雙重傳聞證據，亦不應獲採納。林大律師指案件沒有妹妹曾有作出過“新近投訴”的證據。林大律師亦認為妹妹聲稱作出過投訴的內容和她的證供不一致，因此原審法官不應依賴該些“新近投訴”的證據。

102.Mr Khattak also submits that the trial judge should not have allowed the prosecution to wait until Dr Wong finished giving evidence and then call Dr Lai to give evidence in rebuttal.
林大律師認為原審法官不應容許控方在黃醫生作供完畢後才傳召黎醫生作供來反駁黃醫生的證供。

103.Mr Khattak argues that the trial judge had excessively participated in questioning Dr Wong in the course of his testimony, which indicated that the trial judge cast doubts on and challenged Dr Wong’s evidence. The trial judge’s approach, it is argued, lacked impartiality.
林大律師指原審法官在黃醫生作供時，過度參與詢問他，顯示原審法官質疑及挑戰黃醫生的證供。林大律師認為原審法官的處理方法有失中立。

104.Mr Khattak levels a number of complaints at the trial judge’s decision not to accept Dr Wong’s evidence. It is argued that the trial judge erred in dealing with the evidence on the theory of cognitive development and should not have relied on the decisions in similar types of cases in rejecting Dr Wong’s evidence that Younger Sister could not possibly recall the details of the “indecent assault” on her when she was 5 years old. It is submitted that the trial judge should not have rejected Dr Wong’s evidence, particularly when the prosecution failed to put forward sufficient evidence in rebuttal. Mr Khattak stresses that in a criminal case the defendant bears no burden of proof and the prosecution must clear all doubts in respect of the charge before the court can find the defendant guilty.
林大律師就原審法官否定黃醫生的證供的裁決，提出多項投訴。林大律師指原審法官有錯誤處理認知發展理論的證據，亦不應根據同類案件的裁決為基礎來否定黃醫生指妹妹不可能記得5歲時被“非禮”的細節。林大律師認為原審法官不應否定黃醫生的證供，特別是在控方沒有提出足夠的反證的情況下。林大律師強調在刑事案件，被告人並沒有舉證責任而控方必須消除控罪的所有疑點，法庭才可以裁定被告人罪名成立。

105.Mr Khattak also complains about the trial judge’s findings of fact, including the refusal to accept the evidence of Cousin Wai and the father. It is submitted that the trial judge did not adequately consider and explain the contradictions between the sisters’ evidence on the one hand and that of Grand Aunt on the other, and also overlooked the obvious weaknesses in the evidence of the sisters and its inherent improbability. Mr Khattak submits that the trial judge was unreasonably biased against the father and hence rejected his evidence. On the whole, Mr Khattak submits that the convictions are unsafe.
林大律師亦就原審法官作出的事實裁決，包括拒絕接納慧表姐和父親的證供作出投訴。他認為原審法官沒有足夠考慮及交代姊姊/妹妹的證供和姑婆的證供之間的矛盾，亦忽略了姊姊和妹妹證據的明顯弱點及其內在不可能性。林大律師認為原審法官對父親有不合理的偏見，而拒絕接納他的證供。整體而言，林大律師認為原審法官作出的有罪裁決是不穩妥的。

Discussion
討論

Could the “recent complaint” evidence of Younger Sister be produced in court?
妹妹的“新近投訴”證供是否可以呈堂

106.A fundamental principle of the common law is that in giving evidence, a witness is not allowed to talk about any previous statement he had made which is consistent with his evidence. One of the exceptions is that, in cases involving sexual assault, if the victim did make a complaint at the earliest reasonable opportunity (“recent complaint”), then the victim’s complaint can be produced as evidence in court; so can the fact of the complaint and the content thereof as they related to the recipient of the complaint.
普通法的一項基本原則是一名證人作供時不能述及他曾作過和他證供吻合的表述。例外之一是在“性侵犯”案件，如受害人就事件在事發後的合理盡早機會作出投訴（“新近投訴”），則受害人的投訴及接收到投訴的一方就有關投訴一事及投訴內容可以呈堂為證。

107.Evidence of recent complaint is merely relevant to the credibility of the victim, serving to demonstrate consistency of the complaints but not constituting evidence in support of the relevant offence (see, for example, White v The Queen [1991] 1 AC 210, Leung Chi Keung v HKSAR (2004) 7 HKCFAR 526).
“新近投訴”的證據只與受害人的可信性有關，目的是證明投訴的說法前後一致，而不構成支持有關罪行的證據（見White v The Queen [1991] 1 AC 210、Leung Chi Keung v HKSAR (2004) 7 HKCFAR 526等案）。

108.At trial, there were a number of sources showing that shortly after the incident Younger Sister did complain to her mother and Aunt Kum Kum that she had been indecently assaulted by the applicant.
原審時，顯示妹妹在事發後不久有向母親和琴琴姨投訴曾遭申請人“非禮”一事有多個源頭。

109.Apart from making it clear in her testimony that she immediately complained to the mother upon returning home on the day of the incident, Younger Sister also said that she repeated the matter to her mother and Aunt Kum Kum when they were discussing it at home.
除了妹妹作供時表明在事發後當天返回家後立刻向母親作供投訴，她亦指有和母親及琴琴姨在家中討論事件時，再向她們覆述事件。

110.In her testimony, Elder Sister stated that she heard from outside the room that Younger Sister was complaining to their mother about having been indecently assaulted by the applicant, and then she rushed into the room to demand that mother deal with the matter.
姊姊作供時亦指當妹妹向母親投訴被申請人“非禮”時，她在房門外聽到妹妹的投訴並有衝入房要母親處理事件。

111.If the defence considered that Younger Sister’s complaint was not a recent complaint and therefore could not be produced in court, the defence should have objected to Younger Sister talking about her complaint to the mother about having been indecently assaulted by the applicant, on the ground that it was only a “previous consistent statement” which could not be produced in court as evidence (see White v R [1999] 1 AC 210).
假若辯方認為妹妹的投訴不屬“新近投訴”，故不能呈堂為證，辯方理應反對妹妹談及有向母親投訴被申請人“非禮”一事，原因是妹妹的說法只屬“作出過的一致說法”（previous consistent statement），而“作出過的一致說法”是不能呈堂為證的（見White v R [1999] 1 AC 210）。

112.At trial, the defence did not object to the production to the court of the evidence of Younger Sister which might constitute a recent complaint. Nor did the defence, upon learning that the mother would not testify to support the case that Younger Sister had complained to her, ask the trial judge to strike out Younger Sister’s evidence that she had complained to her mother. As a matter of fact, Younger Sister’s complaint that she had been indecently assaulted by the applicant was confirmed by one of the defence witnesses. When the father testified for the applicant, he stated clearly that after the report was made to the police about the incident on 3 April 2013, he made enquiries with Mrs Wong and learned that Younger Sister had complained to her mother about having been indecently assaulted by the applicant.
原審時，辯方沒有反對妹妹有作出能構成“新近投訴”的證供呈堂為證。在知悉母親不會作供來支持妹妹有向她投訴後，辯方亦沒有要求原審法官剔除妹妹有向母親投訴的證供。事實上，妹妹投訴被申請人“非禮”一事更獲辯方證人之一確認。父親為申請人作供時表明，在2013年4月3日事件報警後他有向黃太太查詢，並因而知悉妹妹曾向母親投訴被申請人“非禮”。

113.The facts agreed by the prosecution and defence also confirmed that, at the video-recorded interview, the applicant admitted that he knew Younger Sister had disclosed to her mother and senior family members the incident of the applicant touching her thigh(s) and private parts, as a result of which he had been “cautioned” and “scolded”.
控辯雙方同意的案情亦證實申請人在錄影會面時，承認知悉妹妹曾向母親及長輩透露因申請人掂到她的大髀和下體一事，而申請人亦因此被“警誡”及“鬧過”。

114.On the above analysis, at trial the defence not only raised no objection to the production of Younger’s recent complaint to the court as evidence, but even admitted that she had indeed made a recent complaint.  With respect, Mr Khattak is wrong in saying that the position of the defence at trial was that Younger Sister had not made any recent complaint. As a matter of fact, during cross-examination, instead of putting to Younger Sister that she had not complained to her mother, the defence merely put to her that the content of her complaint was inconsistent with her allegation against the applicant. They also put to Younger Sister that when she was complaining to her mother, Elder Sister was in fact not at home. Quite clearly, the position of the defence at trial was that they accepted that Younger Sister had complained about having been indecently assaulted by the applicant.
根據上述分析，在原審時辯方不但沒有反對妹妹的“新近投訴”呈堂為證，辯方更承認妹妹確有作出過“新近投訴”。林大律師指辯方在原審時的立場是妹妹沒有作出過任何“新近投訴”。林大律師的說法並不正確。事實上，辯方並沒有在盤問妹妹時指她沒有向母親作出過投訴，辯方只是指妹妹的投訴內容和她針對申請人的說法有出入。辯方亦指妹妹向母親投訴時，姊姊根本不在家。辯方在原審時的立場明顯是接納妹妹有就申請人“非禮”她一事有作出過投訴。

115.Mr Khattak contends that since Mrs Wong, the person to whom Younger Sister complained, was not called to give evidence on the content of the complaint she had received, the trial judge should not have found that the Younger Sister’s evidence was supported by a recent complaint.
林大律師力稱妹妹的投訴對象，即黃太太沒有出庭作供闡述她接受到妹妹的投訴內容。因此原審法官不應裁定妹妹的證供有“新近投訴”這因素支持。

116.Generally speaking, the person who receives a recent complaint has to be called to give evidence on the content of the complaint, for the obvious reason that other people cannot have direct knowledge of the content of the complaint. If those other people give evidence on the victim’s recent complaint, such evidence will be “hearsay evidence upon hearsay evidence”.
一般而言，接受“新近投訴”的人需要出庭作供道出投訴的內容，原因明顯是其他人不能直接知悉有關投訴的內容。如該些其他人就受害人作出的“新近投訴”作供，則會是“傳聞證據”上的“傳聞證據”。

117.However, when Younger Sister made the complaint to the mother and Elder Sister heard it from outside the room, could Elder Sister give evidence on Younger Sister’s recent complaint? Mr Khattak takes the stance that she could not. He refers to the case of HKSAR and Lau Chiu Tong (transliteration) (HCMA 686/2009) in support. In that case, based on the judgment of the Privy Council in Kory White v The Queen [1999] 1 AC 210, the trial judge concluded that even if the witness was also present when the victim made the complaint to someone, the court still could not rely on the witness to relate the complaint the victim made to that person.
但當妹妹向母親投訴時，姊姊在門外聽到妹妹的投訴，姊姊能否就妹妹的“新近投訴”作供？林大律師的立場是不可以。他援引香港特別行政區訴劉照棠（HCMA 686/2009）案支持他的立場。在該案主審法官根據英國樞密院Kory White v The Queen [1999] 1 AC 210案的裁決得出的結論是當受害人向某人投訴時，即使證人也在場，法庭也不可以依據證人轉述受害人向某人作出的投訴。

118.The trial judge was relying on the following decision of Lord Hoffman in Kory White:
主審法官依賴的是Kory White案賀輔明勳爵的以下裁決：

“If a complaint is made at the first reasonable opportunity after the offence, it may be proved in evidence to show the complainant’s consistency and to negative consent.  But for this purpose it is necessary not only that the complainant should testify to the making of the complaint but also that its terms should be proved by the person to whom it was made.  If, as in this case, the recipients of the complaints do not give evidence, the complainant’s own evidence that she made a complaint cannot assist in either proving her consistency or negating consent.”
“如投訴人在案發後首個合理機會出現時作出投訴，該投訴能顯示投訴人的一致性及反駁‘同意’，但條件是不但要投訴人作供表示有作出過投訴，其內容亦要由接受投訴的人證實。當如本案情況接收投訴者沒有作供，投訴人指她有作過投訴的證供不能對她的一致性或反駁‘同意’等議題有幫助”（非官方翻譯）

119.Kory White only confirms that a witness cannot relate the complaint made by a complainant to another person, but does not say that the principle also applies to people who were present and could hear the complaint when the complainant made it.
上述Kory White案只是確認一名證人不能覆述投訴人向另一人作出的投訴，而沒有表明該原則亦適用於一名投訴人投訴時，有在場及能聆聽到有關投訴的人。

120.In cases involving sexual offences, the “recent complaint” principle focuses on whether the victim had complained about the offence in question to another person at the earliest reasonable opportunity. If, when a victim made a recent complaint to another person, a third party was present and could hear the complaint clearly, then we see no logical reason for not allowing the third party to give evidence to prove that the victim had indeed made a recent complaint. We have reservations about the decision in Lau Chiu Tong.
在性侵犯案件“新近投訴”的重點是受害人是否有在最早的合理機會就有關罪行向別人投訴。如受害人作出投訴時，有第三者在場，並能清楚聆聽到受害人向另一人作出“新近投訴”，本庭實不能想象到有合邏輯的理由拒絕該名第三者向法庭作供證實受害人確有作出過“新近投訴”。本庭對劉照棠案的判決有保留。

121.There are also cases which show that if the victim of a sexual offence did make a complaint after the incident and the complaint meets the requirement of being “recent”, then even if the recipient of the complaint does not testify in court, the court can still accept such recent complaint as evidence. (See, for example, R v B [1997] Crim L.R. 220 and HKSAR and So Tsz Yeung (CACC 201/2013).)
亦有案例顯示，如性侵犯案受害人確有在事發後作出投訴，而投訴符合“新近”的要求，則即使接受投訴的人沒有出庭作供，法庭仍可以採納該些“新近投訴”呈堂為證。（見R v B [1997] Crim L.R. 220和香港特別行政區訴蘇子揚 CACC 201/2013等案）

122.In any event, at trial the defence raised no objection to the production of the relevant recent complaint as evidence, and the undisputed fact was that Younger Sister had indeed complained to the mother about the applicant’s conduct. The dispute raised by the defence at trial was confined to whether the content of the complaint made by Younger Sister to the mother and the applicant’s confession were consistent with the Younger Sister’s allegations against him. Although what the applicant said in the record of interview and Mr Wong’s statement that Mrs Wong had received a complaint from Younger Sister that the applicant had indecently assaulted her were hearsay evidence, they were put forward either by way of agreed facts or by the defence. The trial judge was absolutely entitled to accept such evidence in considering the credibility of Younger Sister’s evidence.
無論如何，本案在原審時，辯方沒有反對有關的“新近投訴”呈堂為證，而妹妹有向母親投訴申請人的行為亦是不爭的事實。原審時辯方的爭議只局限在妹妹向母親作供投訴內容和申請人的招認是否和妹妹對申請人的指控吻合。雖然申請人在會面記錄的說法和黃先生指黃太太接受過妹妹曾投訴被申請人“非禮”等事項屬傳聞證據。但該些證據是以同意案情或是由辯方提出。原審法官絕對有權採納該些證據來考慮妹妹證供的可信性。

123.Having carefully analyzed the relevant evidence, the trial judge formed the conclusion that the applicant’s confession was consistent with Younger Sister’s allegation and complaint, and that they were all relevant to Younger Sister’s allegation that the applicant had indecently assaulted her. Although there were discrepancies between the sisters’ accounts of the detailed content of the complaint, they both mentioned clearly that Younger Sister’s complaint concerned the applicant touching her private parts. The applicant’s confession was also consistent with the complaint. We agree with the trial judge’s findings.
原審法官經過小心分析有關證據後，得出的結論是申請人的招認和妹妹的指控和投訴是一致的，都是和妹妹指被申請人“非禮”一事有關。姊姊和妹妹就投訴的內容細節有出入，但她們都清晰地提到妹妹的投訴涉及申請人接觸到妹妹的下體。申請人的招認亦和該投訴吻合。本庭認同原審法官的裁決。

124.The ground of appeal raised by Mr Khattak regarding recent complaint fails.
林大律師就“新近投訴”一事提出的上訴理由不成立。

The order in which Dr Wong and Dr Lai were called to give evidence
黃醫生及黎醫生作供的次序

125.The established legal principle is, if the prosecution can reasonably foresee that a particular piece of evidence has to be adduced to prove the offence, they must produce the evidence to the court as part of their case and should not wait until the defendant has finished giving evidence (see R v Scott [1984] 79 Cr App R 49).
確立的法律原則是，如控方能合理地預見需要引證某些證據才能證明有關罪行，控方必須在舉證時將該些證據向法庭展示，而不應等候至辯方舉證完畢（見R v Scott [1984] 79 Cr App R 49）。

126.In the present case, the trial judge did consider Scott and other relevant cases. He stressed the following principle: “In considering whether the prosecution must call all witnesses before the defence case begins, an important test is whether the prosecution can reasonably foresee that they will need a particular witness in order to prove the offence with which the defendant is charged. If the answer is ‘yes’, the prosecution should not wait until the end of the defence case and then produce ‘rebuttal’ evidence”.
原審法官有考慮過Scott案和其他相關案例。原審法官強調以下原則“控方是否必須在辯方開始舉證之前傳召所有證人，一個重要的測試因素是控方是否可以合理地預見它是否需要該名證人的供詞來證明被告人面對的控罪。假若答案為‘是’，控方就不應該等待辯方舉證完畢後才提出它的‘反駁’證據”。

127.In the present case, the prosecution did not have any evidence that the sisters were suffering from any mental illness, nor was there a reasonable basis on which the prosecution could so suspect. The defence relied solely on Dr Wong’s reports in saying that the sisters had mental illnesses.
在本案，控方沒有任何證據或合理基礎懷疑姊姊及妹妹患有任何精神病。辯方只是依靠黃醫生提供的報告指她們是精神病患者。

128.The prosecution had never accepted Dr Wong’s allegations. The trial judge found that Dr Wong had a predetermined stance and that his claims were based on some superficial and non-objective points of view that were fraught with mistakes and loopholes.
控方由始至終都不接納黃醫生的指稱。原審法官指出黃醫生有預設立場，而其聲稱亦是建基在一些片面、錯漏百出及非客觀的立場。

129.As the trial judge rightly pointed out, the sisters were no different from ordinary witnesses. The court still could convict the applicant on the basis of their evidence without the prosecution having to prove that they were not mentally ill. From the perspective of the prosecution, the claim that the sisters were mentally ill was not relevant to the charges. The prosecution was not even in a position to take the initiative of calling expert witnesses in an attempt to convince the court that the mental condition of the sisters was such that they were reliable witnesses.
誠如原審法官正確指出，姊姊和妹妹和一般證人無異。控方無須證明她們沒有精神病，法庭仍可以根據她們的證供將申請人定罪。聲稱姊姊和妹妹有精神病的說法，從控方的角度而言，和控罪是無關的。控方更無權主動傳召專家證人作供以圖說服法庭姊姊和妹妹的精神狀態顯示他們是可靠的證人。

130.Although Dr Wong compiled a number of medical reports before he gave evidence, it was open to him to make additions to or deletions from those reports when he gave evidence. And the prosecution could not possibly know in advance what possible changes there might be to Dr Wong’s evidence under cross-examination. It was in fact impossible for Dr Lai to produce full rebuttal evidence until after Dr Wong had finished giving his evidence.
黃醫生作供前雖然有作出多份醫療報告，但他作供時仍可以增減該些醫療報告。控方事前亦不能知悉在盤問下，黃醫生證供可能出現的變化。黎醫生根本不可能在黃醫生作供完畢前提出全面反駁的證供。

131.If a witness indeed suffers from mental illness, the reliability of his/her evidence may of course be affected, and the opposite party is entitled to adduce evidence that the mental condition of that witness would have affected the reliability of his/her evidence. This has been established in Toohey v Metropolitan Police Commissioner [1965] AC 595, in which Lord Pearce concluded as follows (at 609):
如某證人確實患有精神病，該名證人證供的可靠性當然可能會受影響，對方亦有權提出證據顯示該名證人的精神狀況會影響他的證供的可靠性。這點在Toohey v Metropolitan Police Commissioner [1965] AC 595案確立。在該案的判案書第609頁，Lord Pearce大法官作出以下結論：

132.Having said that, it was necessary for the prosecution to have a complete grasp of such information as why Dr Wong concluded that the sisters suffered from delusional disorders, the basis of and reasons for his diagnosis, and how and to what extent any delusional disorders they were suffering from had rendered their evidence unreliable and incredible, before the prosecution could properly adduce evidence to rebut what Dr Wong said. It was absolutely reasonable and fair for the prosecution to request that Dr Lai be called only after Dr Wong had finished giving evidence.
但控方必須全面掌握黃醫生為何得到姊姊和妹妹患有妄想症的結論，他的診斷基礎和原因、為何她們所患的妄想症（如有的話）如何令她們的證供不可靠及不可信的程度等等資料才能恰當地提出反駁他說法的證據。控方要求黃醫生作供完畢才傳召黎醫生的做法絕對是合理和公平的。

133.In R v Robinson [1994] 3 All ER 346 at 532C-D, Lord Taylor CJ had the following comment to make on the relevant issue:
Lord Taylor CJ在R v Robinson [1994] 3 All ER 346案的判案書第352C-D行就相關議題有以下評論：

134.The trial judge held that Dr Wong was to give evidence first, and when he was giving evidence, the expert witness for the prosecution was allowed to listen to his evidence and provide the prosecutor with assistance as necessary. If the prosecution deemed it necessary at the close of the defence case, the prosecution could, if it considered necessary, call expert evidence in rebuttal; when the expert witness for the prosecution was giving evidence, the defence expert witness could be present in the court to listen to the evidence and provide assistance as necessary to the defence counsel; and if the expert witness for the prosecution put forward evidence and/or points which were not contained in his expert reports or not put to the expert witness for the defence in the course of cross-examination by the prosecutor, then the defence could apply to the court to call that expert witness to testify again on such new evidence or points. The approach taken by the trial judge was undoubtedly reasonable and took into account the rights and interests of both prosecution and defence.
原審法官裁定黃醫生要先作供，而當他作供時，控方的專家可以聆聽他的證供及向主控官提供所需協助；在辯方舉證完畢後，如控方認為有需要可以傳召控方專家證人提出反駁證供；當控方專家證人作供時，辯方專家證人可以在庭內聆聽及向辯方大律師提供協助；及如控方專家證人作供時提出的證供及/或論點沒有記載在他的專家報告，或沒有透過主控官的盤問向辯方專家證人提出，辯方可以向法庭申請重召辯方專家證人就該新證供及/或論點再次作供。原審法官的處理方法絕對是合理及有照顧到控辯雙方的權益。

135.Furthermore, as far as the order of testimony of the respective expert witnesses was concerned, the issue is whether or not the approach taken by the trial judge would have been unjust to the defendant and rendered the trial unfair.
再者，就控辯雙方專家證人作供的次序，要關注的是原審法官的處理方法會否對被告人不公及會否導致審訊不公平。

136.The question at that time pertained to the reliability of the expert witnesses. It involved the witnesses’ professional knowledge and experience and whether the tests they suggested were reliable and credible. It was not the case that the prosecution called the expert witness only after the defence had closed its case in order to fill in gaps in the factual evidence already adduced by the prosecution. The order in which the expert witnesses appeared in court would, by itself, hardly affect the reliability of their evidence, still less the court’s assessment of the reliability and credibility of their evidence.
有關爭議是專家證人的可靠性，涉及證人的專業知識、經驗及其主張的驗證方式是否可靠及可信。控方並非是在辯方結案後才傳召證人以填補控方原本提出的事實證據不足之處。專家證人出庭的先後次序本身不會影響他們的證供的可靠性，更不會影響法庭對他們證供的可靠及可信性的評核。

137.We take the view that the decision of the trial judge on the order in which the respective expert witnesses testified in the court was comprehensive and reasonable, indicating a correct exercise of his discretion. As far as the aforesaid issue is concerned, the decision of the trial judge was in no way prejudicial to the applicant at all, still less did it render the trial unfair. There is no basis to support Mr Khattak’s argument that the approach taken by the trial judge might have rendered the trial unfair.
本庭認為原審法官就控辯雙方專家證人出庭作供的次序所作的裁決是全面和合理，亦是正確地行使他的酌情權。就上述議題，原審法官的裁決絕對沒有對申請人不利，更不會導致任何不公平的審訊。林大律師指原審法官的處理方法可能會導致不公審訊的說法沒有基礎支持。

Unfair trial
不公平審訊

138.Another complaint mounted by Mr Khattak is that the trial judge had excessively participated in questioning Dr Wong when he was giving evidence, and this might have given a reasonable bystander the impression that the trial judge had descended into the arena, thereby depriving the applicant of a fair trial. Mr Khattak cites a number of examples in support of his argument.
林大律師的另一投訴是原審法官在黃醫生作供過程中過度參與詢問他，可能令合理的旁觀者認為他進入了格鬥場，令申請人得不到公平的審訊。林大律師更提出多個例子來支持他的立場。

139.We have carefully read the relevant transcript. The trial judge was then mainly trying to ascertain the basis of Dr Wong’s opinions and requesting him to provide further opinion or explanation and also testing the reliability and accuracy of the views he had expressed.
本庭有詳細參閱過有關謄本的內容。原審法官主要是要理解黃醫生意見的基礎及要求他提供進一步意見或解釋及測試黃醫生所表達的意見的可靠性及準確性。

140.We should start by pointing out that Dr Wong was not an ordinary witness who gave factual evidence to the court. He was an expert witness in psychiatry who was explaining recondite medical problems to the court. The trial judge was required, and indeed duty-bound, to ensure he understood Dr Wong’s evidence and its implications. The questioning of Dr Wong by the trial judge was done for the sole purpose of testing the basis of and reasons for Dr Wong’s diagnosis and ascertaining his views on the reasons for and extent of the effect on the sisters’ reliability as witnesses. The trial judge had to decide whether Dr Wong’s evidence was objective and independent and whether his conclusions were justified. In respect of tenuous propositions, it was plainly normal for the trial judge to raise questions to ensure that he properly understood Dr Wong’s evidence. The law does not require the trial judge to silently hear weak or flawed arguments without raising any queries before he rules on the relevant question. To do so would not only be remiss of the trial judge but might even be unfair to Dr Wong, the reason being that queries raised by the trial judge would very likely prompt Dr Wong to provide clearer and more convincing explanations of his position.
本庭應先指出，黃醫生並非一名普通就事實向法庭陳述的證人。他是一名精神科專家證人，並向法庭解釋深奧的醫學問題。原審法官有需要、更有責任確保他明白黃醫生的證供及其影響。原審法官對黃醫生的提問，用意只是測試黃醫生診斷的基礎和原因及他為何認為姊姊和妹妹的可靠性受影響及影響的程度。原審法官要裁定黃醫生的證供是否客觀，是否獨立及其結論是否有充分理據支持。對某些說服力不強的說法，原審法官提出質疑以確保他恰當地理解黃醫生的證供亦是正常不過的。法律原則並不要求原審法官在面對一些說服力不強或充滿漏洞的理據，默默地聆聽而不作任何質疑便就相關議題作出裁決。該做法不但會可能是失職行為，更可能會對黃醫生造成不公，原因是在原審法官提出質疑時，他極可能就他所持的立場作出更清晰及更具說服力的解釋。

141.As the trial judge rightly pointed out, “when dealing with the evidence of an expert, [he] must examine the evidence critically instead of accepting it in its entirety without questioning it just because it comes from an expert”.
正如原審法官正確指出“在處理專家的證供時，（他）必須抱有批判性的態度，詳細審視證供，而不是因為證供來自專家便照單全收”。

142.In R v Yeung Mau Lam [1991] 2 HKLR 468, a case Mr Khattak has referred to, the Court held as follows on the issue of the propriety of the questioning of a witness by the judge (at 473):
林大律師援引的R v Yeung Mau Lam [1991] 2 HKLR 468一案，就法官詢問證人是否恰當的問題作出以下裁定（見判案書473頁）：

Questions by their number alone are not decisive;
法官發問問題的數目本身並非決定性之因素；

The quantity and quality of the questions must be looked at as factors which react upon each other;
必需考慮問題之性質及數量及二者互動下所引起之後果；

Actual bias on the part of the judge need not be established, it being enough if by his conduct he would be thought by the informed bystander to be taking over the conduct of the case from the prosecution;
無需確立法官事實上有偏見，只要法官之行為令一名對事件有認知的旁觀者認為法官已取代了主控之職能，便已足夠；

Where a judge sits without a jury, the appeal court must ask itself whether a person listening to the case would justifiably have had the impression that the judge had by his questions entered the arena instead of remaining objective; and
如果原審時法官是單獨行事，而非聯同陪審團審理事件，上訴法庭應考慮以下問題；究竟一名聆聽案件的人士會否合理地得出一個結論，就是法官提出之問題顯示他已加入了「格鬥場」，而並非保持客觀之態度；及

The ultimate question for the consideration of an appellate court is whether the judge’s conduct was such that it would have caused the informed bystander listening to the case to say that the defendant had not had a fair trial.
上訴法庭最終要考慮之問題是究竟原審法官的行為會否令一名聆聽案件及知情之旁觀者認定被告人沒有獲得一個公平之審訊。

143.We do not agree that the trial judge had contravened the principles laid down in Yeung Mau Lam. We also need to emphasize that, when considering the propriety of questioning by the trial judge, it is important to bear in mind it was the duty of the trial judge throughout the trial to ensure that it was conducted in a proper and coherent manner.
本庭不同意原審法官有違反Yeung Mau Lam案定下的原則。本庭亦須強調，在考慮原審法官之詢問是否恰當，要緊記由始至終原審法官有責任確保審訊是正當地及有條理地進行。

144. We have considered in detail the overall circumstances of the questioning of Dr Wong by the trial judge. In our view, the trial judge did no more than ask Dr Wong further questions on areas about which the trial judge harboured doubts, with a view to understanding the basis of Dr Wong’s opinion and seeking further explanation by Dr Wong on his opinions.
本庭已有詳細考慮過林大律師就原審法官詢問黃醫生的整體情況。本庭認為原審法官只是就某些他有疑問的範疇向黃醫生進一步提問，目的是要理解黃醫生意見的基礎及要求黃醫生就其意見作出進一步的解釋。

145. The trial judge also asked Dr Wong to elaborate on some of the areas about which the trial judge had doubts, with a view to understanding the basis of and reasons for the diagnosis made by Dr Wong, so as to ensure that all relevant and material details were fully considered before a proper decision was made on the relevant issues.
原審法官亦有就某些他有疑問的地方要求黃醫生作出更詳細的闡述，目的亦是理解黃醫生診斷的基礎和原因以確保他有全面考慮過所有相關及重要的細節，就有關議題作出恰當的裁決。

146. The other purpose of questioning Dr Wong was obviously to test whether the understanding Dr Wong relied on before making the diagnosis was sufficient and convincing or whether it was self-contradictory or illogical.
原審法官的另一目的明顯是為了測試黃醫生在作出其診斷結果前所依賴的理解是否足夠、是否具說服力及是否有自相矛盾或不合邏輯。

147. The wording of the trial judge’s questions was neutral, not sarcastic, and in no way hostile. Those questions were clearly asked with a purpose — to ensure that the trial judge understood clearly the basis and logic of Dr Wong’s opinions so as to assist the trial judge in deciding whether the conclusion Dr Wong reached was credible and justified.
原審法官的發問用詞中立、沒有譏諷性更不具任何敵意。原審法官的發問亦明顯是有目的而發，以確保他清楚明白黃醫生所表達的意見的基礎及邏輯性，以協助他裁決黃醫生的結論是否合信，是否有足夠論據支持。

148. We agree with the approach adopted by the trial judge. Indeed, the ground of appeal that the trial judge had descended into the arena and deprived the applicant of a fair trial should, in our view, not have been advanced at all.
本庭認同原審法官的處理方法。本庭更認為，指原審法官進入了格鬥場而導致申請人未能獲得公平審訊的上訴理由根本不應該提出。

Criticisms levelled at Dr Wong’s evidence
對黃醫生證供的批評

149. In his Reasons for Verdict, the trial judge went to great lengths to analyze Dr Wong’s evidence and explain why he considered Dr Wong’s opinions incredible and whether any weight should be attached to them. The trial judge found that Dr Wong had made factual judgments and diagnoses without first obtaining comprehensive, accurate and objective information, and this showed that he had a preconceived position. The trial judge set out dozens of reasons and factors in support of his conclusion.
在其裁決理由書，原審法官花了極大篇幅分析黃醫生的證供及解釋為何他認為黃醫生的意見不合信，應不應賦予任何比重。原審法官認為黃醫生是在沒有取得全面、準確和客觀的資料便作出事實判斷及診斷，顯示他有既定立場。原審法官列出數以十計的理由和因素來支持他的上述結論。

150. Mr Khattak submits that some of the reasons given by the trial judge were not valid, that some of his analysis went against the evidence, and that his conclusions were made without considering all the relevant evidence. Mr Khattak further stresses that the prosecution had not adduced any evidence to rebut Dr Wong’s evidence.
林大律師指原審法官的部分理據不成立，其某些分析和證據有抵觸的及作出的結論是沒有全面考慮有關證據。他更強調控方沒有提出任何證據反駁黃醫生的證供。

151. We do not consider it necessary to dwell too much on the issue. An expert witness may give evidence in his/her area of ​​expertise but is not entitled to rule on issues. Based on Dr Wong’s evidence, the defence argued that the sisters were both suffering from delusional disorders, rendering their allegations against the applicant unreliable. The defence also argued that Younger Sister could not possibly recall in detail what happened when she was being indecently assaulted at the age of 5. The prosecution challenged Dr Wong’s statements, arguing that his conclusion rested upon an insufficient basis, in particular, he drew his conclusion without having diagnosed their mental conditions and without even having met them first. All these issues had to be decided by the trial judge on the basis of all the evidence.
本庭不認為有需要在這問題上過度着墨。專家證人可以在其專業範疇作供，但無權就爭議作出裁決。辯方根據黃醫生的證供指姊姊及妹妹都患有妄想症，導致她們針對申請人的指控不可靠。辯方亦指妹妹不可能記得在5歲時被“非禮”的詳情。控方挑戰黃醫生的說法，指他的結論所依賴的基礎不足，特別是他沒有診斷過她們的精神狀況而作出，結論前更沒有和她們見過面。上述議題都須由原審法官根據全部證據作出裁決。

152. Dr Wong’s statement that, in the absence of an opportunity to examine the patients, a correct diagnosis could still be made via assessments and diagnosis made solely on the basis of the information, is neither reasonable nor credible. And it is against common sense and unconvincing to say, as Dr Wong did, that based solely on his observations of the sisters when they gave evidence in court, he was in a position to confirm that they were suffering from mental illnesses. The trial judge was perfectly entitled to reject such bold statements of Dr Wong.
黃醫生指可以在沒有機會檢驗過病人的情況下，單單根據資料來作出評估及診斷就能得出正確診斷，絕非合理和合信的說法。而他指以觀察姊姊和妹妹作供亦足以令他能確認她們患有精神病的說法亦有違常識，也不具說服力。原審法官絕對有權不接納黃醫生的大膽說法。

153. Mr Khattak stresses that Dr Wong’s testimony had not been challenged by Dr Lai’s evidence or other evidence adduced by the prosecution. We agree that when an issue can only be answered on the basis of the expertise of an expert witness, the court should not ignore the evidence of that witness. We also accept that the court should not, for no reason, reject the professional opinion of an expert witness which has not been challenged. (See, for example, Anderson v R [1972] AC 100, Taylor v R (1978) 22 ALR 599)
林大律師強調黃醫生的證供沒有受到黎醫生或其他控方提出的證據挑戰。本庭同意當某議題的答案只能根據專家證人的專業知識作出，法庭不應忽視該名專家證人的證供。本庭亦接納當一名專家證人的專業意見未受挑戰時，法庭不應無故地拒絕接納該些意見。（見Anderson v R [1972] AC 100、Taylor v R (1978) 22 ALR 599等案）

154.However, it is also an established principle that if the testimony of an expert witness is challenged and the facts and circumstantial evidence of the case throw doubt on the testimony of the expert witness, the Court is also entitled to reject his evidence even in the absence of any evidence of rebuttal from the opposite party.
但另一確立原則是如某專家證人的證供被挑戰，而案件的案情及環境證據令該名專家證人的證供有疑問，即使對方沒有提出任何反駁證據，法庭亦有權拒絕接納該名專家證人的證供。

155. The issue in Walton v R [1978] AC 788 was how the defence of “diminished responsibility” was to be applied in a murder case.
Walton v R [1978] AC 788案涉及的議題是在謀殺案件中如何應用“減責神志失常”（Diminished responsibility）這答辯理由。

156. Lord Keith of Kinkel discussed at length the question of how a court should deal with the evidence of an expert witness on the issue, as follows (at 793):
Lord Keith of Kinkel 法官就法庭如何處理專家證人就該議題的證供時有以下詳論（判案書第793頁）：

157. Dr Lai expressly stated that Dr Wong’s diagnostic approach was unprofessional and improper, and that the information he cited was fragmented and incomplete. At trial, the prosecution strongly opposed Dr Wong’s opinion that the sisters had delusional disorder and that Younger Sister could not remember in detail the indecent assault committed on her when she was 5 years old. The prosecution also set out in detail the mistakes and loopholes in the arguments on which Dr Wong formed his opinions, and the trial judge gave a detailed account of those mistakes and loopholes.
黎醫生表明黃醫生的診斷方法不專業、不恰當，而其引述的資料更是零碎不全。原審時，控方強烈反對黃醫生的意見，指姊姊和妹妹患有妄想症，及妹妹不能記得在5歲時被“非禮”的詳情。控方亦詳細列出黃醫生所持意見的立論點的錯漏，而原審法官有詳細列出該些錯漏。

158. There is no need for us to set out those defects again; it suffices that they are both clear and obvious. It should be pointed out that in Re LLC (Statutory Will) [2010] 3 HKLRD 16, in which Dr Wong also gave evidence as an expert witness, he was criticized by the court for assuming the role of an advocate and providing his own opinion on the factual disputes between the parties. He made the same mistake in the present case – he not only assumed the role of an advocate but even made unfounded allegations against Grand Aunt and Grand Uncle, saying that they had exercised undue influence over the sisters.
本庭無需要再次列出該些錯漏，但該些錯漏是明確的，亦是顯而易見的。本庭應指出黃醫生以專家證人身份作供時扮演訴訟律師的角色，就與訟雙方的事實爭議提供自己的意見，曾在Re LLC (Statutory Will) [2010] 3 HKLRD 16案備受法庭的批評。在本案，黃醫生亦是犯了同一錯誤，不但有扮演訴訟律師的角色，更在沒有基礎下指姑婆和姑丈公有對姊姊和妹妹施加不當的影響。

159. The trial judge’s rejection of Dr Wong’s diagnosis was amply justified. We agree with the trial judge’s ruling that Dr Wong’s conclusions were based on biased, fragmented, unverified and unreliable information and that those conclusions were also unreliable. We would go further by expressing the view that Dr Wong was not a reliable expert witness at all.
原審法官否定黃醫生診斷結論是有充份理由支持的。本庭認同原審法官的結論指黃醫生的結論是建基在偏見、零碎、未經證實和不可靠的資料，而該些結論亦是不可靠的。本庭更認為黃醫生根本並非是一名可靠的專家證人。

160. The trial judge was entitled to reject Dr Wong’s evidence in its entirety and to find that neither of the sisters was suffering from any delusional disorder.  We concur with those findings, which are justified and correct.
原審法官有權全盤否定黃醫生的證供並裁定姊姊和妹妹都沒有患任何妄想症是有根據和正確的裁決，本庭認同。

161. We also have to point out that Dr Wong’s performance in the present case completely failed to demonstrate the professionalism that the court requires of expert witnesses. As a result of his unprofessional and unreliable opinions, the sisters were, in giving evidence, made to face the unwarranted accusation that they had delusional disorders. We express our deep regret about this.
本庭亦需指出，黃醫生在本案的表現，完全未能達到法庭對專家證人的專業要求，而因為他不專業及不可靠的意見，令姊姊和妹妹在作供時要面對她們患上妄想症的無理指控，本庭對此深表遺憾。

Credibility of the sisters
姊姊和妹妹的可信性

162. Having resolved the issues raised by the defence that the sisters were suffering from delusional disorders and Younger Sister was unable to recall the details of the indecent assault upon her when she was 5, the main issue in the present case was whether the sisters were veracious and reliable witnesses.
解決了辯方所指姊姊和妹妹患有妄想症及妹妹不能記得5歲時被“非禮”的詳情這些議題後，案件主要爭議是姊姊和妹妹是否誠實和可靠的證人。

163. It was not the defence case that the sisters had any motive to falsely accuse their uncle (the applicant).
辯方沒有指姊姊或妹妹有任何動機說謊誣告她們的姨丈（申請人）。

164. The sisters described in detail what happened when the applicant indecently assaulted them. On the undisputed evidence, on the evening of the day of the offence Younger Sister complained to her mother about the applicant’s conduct, and shortly after the incident Younger Sister also related what had happened to her mother and Aunt Kum Kum.
她們有詳細描述申請人“非禮”她們的經過。沒有爭議的證據顯示申請人“非禮”妹妹當晚，她有向母親投訴申請人的行為，而事後不久亦有向母親及琴琴姨覆述事件。

165. The confession made by the applicant during the video-recorded interview was also consistent with the prosecution allegation against him. The entries in Elder Sister’s diary also matched her allegations against the applicant, indicating that her allegations against the applicant were not recent fabrications. The trial judge found that Elder Sister’s diary could be used to prove the consistency of her allegations against the applicant and also to answer the defence allegation that the accusations were recent fabrications made by Elder Sister when she made the report to the police on 3 April 2013. The trial judge’s approach was correct.
申請人在錄影會面時所作的招認亦符合控方針對他的指控。姊姊的日記記錄亦和她針對申請人的指控吻合，顯示她對申請人的指控並非新近捏造的。原審法官認為姊姊的日記可以用來證明她對申請人的指控是一貫性的，亦可以用來回應辯方提出姊姊是在2013年4月3日報警時才作出新近捏造的指控。原審法官的處理方法正確。

166. Apart from the sisters, the applicant was the only person who had direct knowledge of the incidents. As he had exercised his right to remain silent, there was no evidence to directly refute the sisters’ allegations against him.
除了姊姊和妹妹外，申請人是唯一對事件直接知情的。他行使其保持緘默的權力，因此沒有證據直接反駁姊姊和妹妹對申請人的指控。

167. This being the case, the trial judge was fully justified in finding that both sisters were veracious and reliable witnesses. In the context of the present case, the contradictions pointed out by Mr Khattak, whether between the evidence of the sisters or between their evidence and Grand Aunt’s evidence, have no significance whatsoever and do not render the convictions unsafe.
在上述情況下，原審法官絕對有理由裁定姊姊和妹妹都是誠實可靠的證人。林大律師指姊姊/妹妹相互的證供和她們的證供和姑婆的證供的矛盾，以本案的背景而言，根本不具任何重要性，更不會影響定罪的穩妥性。

168. Cousin Wai was obviously a witness who had taken sides. Her evidence was not objective, and the conclusion drawn therefrom was based on some uncertain factors. In the context of the present case, Mr Wong’s testimony deserved the criticisms it received from the trial judge. The trial judge was entitled to find that neither Cousin Wai’s evidence nor Mr Wong’s evidence served to raise any doubt about the sisters’ evidence.
慧表姐明顯是一名有立場的證人。她的證供不客觀，而其得出的結論亦是建基在某些不確定的因素。以案件的背景而言，黃先生的證供值得原審法官的批評。原審法官有權認定他們的證供都不構成針對姊姊和妹妹證供的疑點。

169. On the evidence of the sisters as accepted by the trial judge, the applicant had indecently assaulted them in the manner they described, and he had an indecent intent when he did those acts of indecent assault. It was reasonable and correct for the trial judge to convict the applicant on the two counts of indecent assault. We agree with those verdicts.
根據原審法官接納姊姊和妹妹的證供，申請人確有如她們所指的方式“非禮”她們，而他作出該些“非禮”行為時，申請人是有猥褻意圖的。原審法官裁定申請人兩項“非禮”罪罪名成立是合理和正確的。本庭認同。

Conclusion
結論

170. We find nothing unsafe in the convictions against the applicant in respect of the two counts of indecent assault. We have therefore dismissed his application for leave to appeal against convictions and affirmed the convictions.
對申請人被裁定兩項“非禮”控罪罪名成立，本庭不覺有任何不穩妥的地方。因此，本庭駁回申請人就定罪提出的上訴許可申請，維持原判。

Sentence
判刑

171. This is an extremely serious case of “indecent assault. As an elder member of the family, the applicant took the opportunity of family gatherings to indecently assault two nieces aged 5 and 11 respectively. We do not intend to go into the applicant’s acts of indecent assault again. It suffices for us to point out the applicant’s conduct, especially that towards Younger Sister, was at a very high level of indecency. The applicant’s misconduct left an indelible mark in the minds of the sisters.
本案是一宗極為嚴重的“非禮”案件。申請人以長輩身份，在家庭聚會期間趁機“非禮”兩名分別只有5歲和11歲的姨甥女。本庭不打算複述申請人的“非禮”行為，而只需指出申請人的行為，特別是針對妹妹的行為的猥褻程度甚高。申請人的不當行為更在姊姊和妹妹心靈上留下不可磨滅的陰影。

172. Nor can we ignore the fact that the applicant’s improper conduct will distress the sisters for a long time to come. Although there are no expert reports, such distress is obvious, and it is also the type of post-traumatic stress that any girl who has been sexually molested will certainly suffer from.
本庭亦不能忽視申請人的不當行為會長時間困擾姊姊和妹妹。雖然沒有專家作出報告，但該些困擾是顯而易見，亦是任何女童受性侵犯後都必會面對的創傷後遺症。

173. The trial judge pointed out that the court was under a duty to protect children who were vulnerable to sexual assault and to impose deterrent sentences on offenders in order to reflect the disgust that members of the public feel towards this kind of offence and also redress for the victims and their families. The trial judge took the view that when the offender was the victim’s elder, an even more severe sentence would be passed because the elder’s misconduct was a breach of trust and distorted normal familial relationships. We could not agree more with the trial judge’s comment.
原審法官指出法庭有責任保護容易受到性侵犯傷害的兒童，及要以阻嚇性的刑期來表達公眾對這些罪行的厭惡及為受害人及其家人伸冤。原審法官認為當犯案者是受害人的長輩，法庭更會判處較嚴峻的刑期，因為該些長輩的不當行為破壞誠信及有異倫常。原審法官的看法絕對正確。

174. The cases cited by Mr Khattak do not support his claim that the total sentence imposed on the applicant was excessive. The delay he pointed out was the result of the defence allegation that Younger Sister/Elder Sister was mentally ill, but as mentioned above, the basis of the allegation was simply inadequate. And that also accounted for the repeated adjournment of the case and the greater length of trial as a result. The delay in the present case does not constitute a mitigating factor.
林大律師提出的案例不支持他指申請人被判的總刑期過重的說法。他所指的延誤部分是因為辯方提出姊姊/妹妹患有精神病，但正如上文所述，該指稱根本沒有足夠基礎支持。案件多次押後導致審訊時間較長亦主要是因為該原因造成。本案的延誤並不構成減刑理由。

175. In any event, given the background and the modus operandi of the offences, the sentences, whether taken individually or as a whole, are in no way manifestly excessive, and we have no reason to vary them.
無論如何，以案件的背景及犯案手法，申請人被判的個別刑期及總刑期都絕非明顯過重，本庭沒有基礎更改。

176. Therefore, we have also dismissed the applicant’s application for leave to appeal sentence and affirmed the sentence.
因此，本庭亦駁回申請人針對判刑的上訴許可申請，維持原判。

Mr Nicholas Wong, SPP of the Department of Justice, for the Respondent
答辯人：由律政司高級檢控官黃俊賢代表。

Mr Shahmim K Khattak and Mr Anthony Lai, instructed by Poon & Cheung, for the Applicant
申請人：由潘繼洪，張宗泉律師行轉聘大律師林沙文及大律師黎家傑代表。