REASONS FOR JUDGMENT Hon Cheung JA:
上訴法庭法官張澤祐：

Fair trial
公正審訊

In Hong Kong, every defendant charged with a criminal offence is entitled to a fair trial by an independent and impartial court of law. This is a fundamental right afforded by the Basic Law of the Hong Kong Special Administrative Region, the Bill of Rights and the common law. The prerequisite for securing this right of a defendant to a fair trial is that the judge must conduct the trial in an impartial and fair manner. The judge must neither be biased towards either the prosecution or the defence, nor be biased against the defendant or his grounds of defence.
在香港任何被刑事檢控的被告人都應獲得獨立和公正無私的法庭審訊，這是《香港特別行政區基本法》、《人權法》及普通法所賦予的基本權利。要確保被告人獲得公正的審訊的先決條件就是法官必須以持平及公正的手法來進行審訊，法官是不可以偏幫控辯任何一方，亦不可以對被告人或其答辯理由存有偏見。

The concept that the judge must not be biased against a defendant refers not only to actual bias but also to the giving of the impression by the judge’s conduct or comments at trial that he had lost its neutrality or impartiality. If there was a real danger that such conduct or speech had materially affected the court’s judgment adverse to the defendant so as to have deprived him of a fair trial, then the judgment is liable to be set aside by the appellate court: see HKSAR v. Leung Kwok Hung [2007] 1 HKLRD 797.
法官不可以對被告存有偏見的概念並不單單指實質的偏見，而是包括法官在審訊時的行為或言論給人的印象是他喪失了中立或持平的立場。若有關的行為或言論確實是存有實質影響他的裁決的危險，即他會作出對被告人不利的判決，以致被告人不能獲得公平的審訊，有關的判決有可能被上訴法庭推翻：見HKSAR v. Leung Kwok Hung 香港特別行政區政府訴梁國雄 [2007] 1 HKLRD 797。

The convictions of the three appellants (the 1st, 2nd and 4th defendants) in the present case are quashed by this court on the ground that, in my judgment, they had been deprived of a fair trial: it is clear that, by his conduct and comments at trial, the trial judge had given the impression that he was not impartial or neutral; furthermore, there was the real danger as described above, namely that the judge’s conduct had actually influenced him into making a decision adverse to the defendants, thereby depriving them of their right to a fair trial.
本案的三名上訴人（即第一、二及四被告）的定罪被本庭推翻，本席所持的理由是他們未獲得公平審訊：原審法官在審訊時的行為及言論明顯給人的印象是他不是持平及保持中立，案件更確實存有上文指出的危險即法官的行為確實導致他對被告人作出不利的判決，以致剝奪了被告人應享有公平審訊的權利。

The charges
各項控罪

The 1st, 2nd and 4th defendants, all of whom are Mainland residents, were charged with the following offences:
第一、二及四被告均是內地居民，他們被控以下控罪：

Conspiracy to steal Buddhist pine trees planted in the country parks of Hong Kong, contrary to section 7 of the Theft Ordinance (Cap. 210 of the Laws of Hong Kong) and sections 159A and 159C of the Crimes Ordinance (Cap. 200 of the Laws of Hong Kong);
串謀偷竊種植於香港郊野公園的羅漢松樹木，違反《盜竊罪條例》第 7 條（香港法例第 210 章）及《刑事罪行條例》第159A 及 159C 條（香港法例第200章）；

Cutting the said plants in the country parks without a permit, contrary to regulation 8 of the Country Parks and Special Areas Regulations (Cap. 208 of the Laws of Hong Kong); and
在無許可証在郊野公園內切割有關植物，違反《郊野公園及特別地區規例》第 8 條（香港法例第 208 章）；及

Remaining in the territory of Hong Kong without authority after having landed in Hong Kong unlawfully, contrary to section 38(1)(b) of the Immigration Ordinance (Cap. 115 of the Laws of Hong Kong).
在非法進入香港後未獲授權而留在香港境內，違反《入境條例》第 38(1)(b) 條（香港法例第 115 章）。

They were also charged, as an alternative to conspiracy to steal, with handling stolen goods, contrary to section 24 of the Theft Ordinance (Cap. 210 of the Laws of Hong Kong).
他們亦被控一項串謀盜竊的交替控罪，即處理贓物罪違反《盜竊罪條例》第 24 條（香港法例第 210 章）。

Save for the guilty plea that the 4th defendant entered in respect of the charge of remaining in Hong Kong without authority, all the charges were denied by the defendants. After trial by Deputy District Judge Symon Wong, the three defendants were convicted of the following offences:
除了第四名被告承認未獲授權而留在香港境內的控罪外，他們全部否認控罪。案件經區域法院暫委法官黃汝榮審理後，三名被告被裁定以下罪名成立：

Conspiracy to steal; and
串謀盜竊罪；及

Cutting plants in the country parks without a permit.
無許可証在郊野公園內切割植物罪。

Deputy Judge Wong also convicted the 1st and 2nd defendants of the offence of remaining in Hong Kong without authority and ordered that the alternative charge of handling stolen goods be left in the court file.
黃法官亦裁定第一及第二被告未獲授權而留港罪名成立。黃法官將處理贓物罪的交替控罪存檔於法庭。

Appearance of bias
偏見行為的表現

In my view, Deputy Judge Wong gave the impression of being biased against the defendants by the following conduct of his at trial:
本席認為黃法官在審理本案時所作出的以下行為給人他對被告存有偏見的印象 ：

The comments or remarks that he made in the course of trial,
他在聆訊期間所作出的言論，

The wordings that he adopted in the Reasons for Verdict,
他在判決理由書所採用的言詞，

The wordings and attitude that he adopted when he verbally delivered the Reasons for Verdict, and
他在宣讀判決理由書時的言詞及態度，及

The comments or remarks that he made after sentencing.
他在量刑後所作出的言論。

Comments at trial
審訊時的言論

I start by dealing with the comments made by the Judge in the course of trial. The 1st and 2nd defendants elected to give evidence. When the 4th defendant indicated through Counsel that he elected not to give evidence, Deputy Judge Wong said:
本席首先處理黃法官在審訊期間所作出的言論。第一及第二名被告選擇作供自辯。當第四被告的代表律師告訴黃法官第四被告選擇不作供自辯時，黃法官說：

Judge:Smart. Alright, regarding closing submissions, do the prosecution and defence intend to make them today or tomorrow?
‘官：聰明。好，至於結案陳詞方面，控辯雙方打算今日做吖，抑或聽日？’

It was in my view most improper for Deputy Judge Wong to use the adjective “smart”. First, this would make one think that the Judge considered the 1st and 2nd defendants unwise or stupid in electing to give evidence. Besides, the Judge had then already rejected the submission of Counsel for the 4th defendant that there was no case to answer and had also ruled that there was prima facie evidence against the 4th defendant. In these circumstances, the Judge’s comment would make one feel that, in his view, the giving of evidence by the 4th defendant would not serve any useful purpose but would rather lead him into making more mistakes by saying more. On any view of the matter, the Judge’s comment clearly gave the impression that he had reached a decision before the trial concluded. He was apparently biased.
本席認為黃法官用「聰明」這一個形容詞是極之不妥當的。首先，這會令人覺得他認為第一及第二被告選擇作供是不明智或愚蠢的。另外，當時黃法官已經否定了第四被告的代表律師有關控方未提出表面証據的陳詞及裁定針對第四被告的表面証供成立，在這情況下，黃法官的評論會令人覺得他認為第四被告選擇自辯不但是沒有意思，反而是會講多錯多。無論從任何一個角度來看，黃法官的評論給人的印象明顯是他在案件仍未審結之前就已經作出結論。這是偏見的表現。

Wordings in the Reasons for Verdict
判決理由書的言詞

Bias can also be discerned from the wordings adopted by the Judge in the Reasons for Verdict. With respect, I am deeply disturbed by those wordings. Having rejected the defence put forward by the 1st defendant, the Judge said:
黃法官在判決理由書內所採用的言詞亦顯示出偏見的情況。他採用的言詞令本席深感不安。在拒絕第一被告的答辯理由後，黃法官說：

In short, the gist of the 1st defendant’s defence is that he had no alternative but was forced to do what he did and that he allowed everything to be manipulated by Mr. Lau. However, the summary does not dovetail with the details and is inundated with errors and omissions. The 1st defendant’s portrayal of himself as an unthinking walking corpse as well as what he said about spirits are weird and benighted.
‘長話短說，第一被告答辯大綱，指自己逼於無奈，一切受劉先生擺佈，惟大綱與細節互不接軌，錯漏百出，把自己塑造成行屍走肉，毫無思想，靈魂之說，怪誕愚昧。’

He further described the 1st defendant as follows:
他更形容第一被告人：

It is astonishing to see such rascally and unruly behaviour in the court. Although every word and every sentence uttered by the 1st defendant were false and fallacious, you do not bear any burden of proof.
‘無賴撒野之情，驚現法庭。第一被告雖然字字虛言，句句妄語，但你毫無舉證之責。’

Further, after rejecting the defence of the 2nd defendant, the Judge said:
另外，黃法官在拒絕接納第二被告的答辯之後說：

The 2nd defendant pleaded that after boarding the boat on the Mainland, he covered his head with clothes immediately so as to brace himself against the blistering cold wind. Upon arrival, he felt fatigued and took a nap, covering his head with a quilt. He said this in order to explain why all along he did not know where he was. Such use of the covering of the head with clothes and quilt as a story line is extremely flagrant and unbearably naïve. I have described the 2nd defendant’s story in a most graphical manner. If nothing other than key points were to be described, the essence of his defence could adequately be conveyed in 10-odd words: ‘I arrived in Hong Kong bewildered and to this day I still do not understand the subtleties in it as if I had got lost in a thick fog’. I am deeply perplexed at what the 2nd defendant said. Your evidence was just like an essay which bore a title but the contents of which were of no substance and could be interpreted in whatever way you liked. But the only conclusion is that, as a piece of evidence, what the 2nd defendant said is simply incredible.
‘第二被告從內地登船後，推說馬上以衣服蓋頭，以抵寒風凜冽。到埗後又因疲倦打睏，以被鋪蓋頭，藉此解釋因此一直不知自己身處何方。這些以衣被蓋頭作故事伏線之舉，露骨無比，幼稚難奈，本席已用極其生動形式，描述第二被告之故事，如以大處落墨式的表述方法，可以十數字涵蓋其答辯版本精髓，即「我糊旦糊塗到港，至今還五里霧中，未明箇中奧妙」。本席對第二被告版本，深感虛玄，你的證供，就像替文章起了題目，內容卻空無一物，如何演繹，隨君任意。但從證供角度考慮，唯一結論，是不值一信。’

He described the various defendants as:
他形容各被告人：

an integral whole with a common purpose, all tarred with the same brush.
‘數位一體，目的一致，全是一丘之貉’

I have been in the legal profession (including private practice and public office) for over 30 years and have read and written innumerable judgments. I have never come across such extreme, derisory and insulting words in judgments prepared by judges in recent times. Such language should not have any place in the advanced and enlightened judicial system of Hong Kong. In my view, the wordings adopted by Deputy Judge Wong in his judgment were inconsistent with the requirement that a judge must conduct a rational analysis of the case before him and were unacceptable. In using such wordings, the Judge would in my view actually give the impression that he had lost his impartiality and fairness.
本席從事法律工作三十餘年（包括私人執業及公職），其間閱讀及撰寫過無數判決書。本席從沒有在近代法官所撰寫的判決書中看見過如此偏激、嘲諷及含侮辱成分的用詞。這些言詞是不應該出現於先進及開明的香港司法制度中的。本席認為黃法官在判案書所採用的言詞是不符合法官要以理性分析案情的要求，亦是不可以接受的。本席認為當法官使用這些言詞時確實是會給人一個印象，就是他已失去了不偏不倚和公正的立場。

Instances of biased conduct of a judge may arise at any stage of a trial. The commonest example is where a judge constantly interrupts the cross-examination of a witness or a defendant or involves himself excessively in cross-examinations, asking questions clearly intended not only to clarify the evidence of a witness or a defendant but to negate the defendant’s defence. Another example is where a judge frequently interrupts counsel’s submissions, which indicates that he does not have any intention to consider those submissions. Apart from these two examples of miscarriage of justice, another valid ground of appeal is that the wordings adopted by a judge in his judgment clearly showed that he was biased against the defendant. An illustration can be found in the case of R. v. Yu Chun Man CACC 435/1993. See also HKSAR v. Pong Tai Chung CACC 467/2006.
法官存有偏見的行為是可以在審訊的任何階段中出現的。最常見的例子是法官在証人或被告人接受盤問時不停打斷盤問或者自己過份參予盤問，而他提出的問題的用意明顯不只是澄清証人或被告的証供，而是否定被告的答辯。另一個例子是法官在律師陳詞時多番打斷他的陳詞，顯示他根本沒有意圖去了解律師的陳詞。除了上述的兩個審訊不公的例子外，若果法官在判案書內所採用的言詞明顯顯示他對被告存有偏見，這也可以構成實質的上訴理由，R. v. Yu Chun Man （譯音：女皇訴余振文，CACC 435/1993）是其中一項例子。另見香港特別行政區政府訴龐太宗（CACC 467/2006）。

Wordings used during the oral delivery of Reasons for Verdict
宣讀判決理由時的言詞

Thirdly, by his attitude and the wordings adopted by him during the delivery of the Reasons for Verdict, Deputy Judge Wong also gave the impression that he was biased against the defendants.
第三，黃法官在宣讀判決理由時所採用的言詞及態度亦給人他對被告存有偏見的印象。

Mr. Kenneth Lee, Counsel for the 1st and 2nd defendants in this appeal, also represented the same two defendants at trial. He discovered that parts of the contents of the written Reasons for Verdict were different from the reasons for verdict delivered orally by the Judge. With the approval of the court, Counsel obtained a transcript of the audio recording of the trial, which revealed that the words spoken by the Judge of the 1st defendant during the verbal delivery were missing from the written Reasons for Verdict. Mr. Lee has rearranged the Reasons for Verdict by reinstating the deleted parts, and Miss Mary Sin for the respondent has accepted the contents of the rearranged Reasons for Verdict. At the hearing, the court also listened to the relevant audio recording of the trial.
代表第一及二被告的李冠雄大律師是在原審時代表這兩名被告的代表律師。當他接獲判決理由書時發現部分內容與黃法官在宣讀判決理由時的內容不同。他經法庭批准獲得審訊的錄音記錄。該些錄音記錄顯示黃法官在宣讀判決理由時曾經說出針對第一被告的說話沒有在書面的判決書內出現，李大律師將書面判決理由書重新整理，將被刪去的部分加插回原處。代表答辯人的高級助理刑事檢控專員洗佩霞認同重新整理後的判決理由書內容。本庭亦有即庭聆聽過有關聆訊記錄。

Deputy Judge Wong dealt with the evidence of the 1st defendant in paragraphs 9 to 22 of the Reasons for Verdict. The Judge had this to say in the following ten paragraphs before or after he made mention of the 1st defendant:
判決理由書第 9 至 22 段是黃法官處理第一被告的証供。在以下的十段，當黃法官提到第一被告之前或後都說出這番話 ：

12.1st defendant, still talking about you, …
‘12.第一被告呀，仲係講緊你呀，......

1st defendant, still about you, …
第一被告，仲係你喎，......

… 1st defendant, oh, still about you, …
......第一被告，唉，仲係你喎，......

Oh, still talking about you, 1st defendant, …
唉，仲係講緊你呀，第一被告，......

Still about you, 1st defendant. Wow, you have wasted quite a lot of the court’s time, alright, … only …
仲係你呀，第一被告，嘩，你浪費法庭嘅時間都頗多，好，......咋噃......

Still talking about 1st defendant, alright, … put them in open quotation mark so that you can listen for yourself: …
仲係講緊第一被告，好，......用開引號等你自己聽聽：......

Still about 1st defendant, …
仍然係第一被告，......

How come it’s still about you? …
仲係你嘅？......

Still about 1st defendant, you see how lengthy your speech has been, …
仲係第一被告，你話你當時幾長篇大論，......

Still you, oh, …
仲係你，哦，......’

That the Judge repeatedly commented that he was still dealing with the 1st defendant’s case showed that he was extremely impatient with the 1st defendant and dissatisfied with his defence. It can be heard from the recording that the Judge made part of the relevant comments in a scornful tone. In my judgment, even if the Judge had already analyzed and summed up the case when he delivered the reasons for verdict, he should not have dealt with a solemn verdict in the manner that he did, which obviously gave the impression that he was biased against the 1st defendant.
黃法官多次重複說他仍在處理第一被告的案情，顯示他對第一被告人的態度是極之不耐煩及不滿意他的答辯理由。從錄音記錄中可聽到黃法官在說出部分有關說話時的語氣是極為輕藐的。本席認為即使黃法官在宣讀判決理由書時已經對案情作出了分析及總結，他也不應該以如此的手法去處理一項嚴肅的裁決，這明顯給人一個印象是他對第一被告存有偏見。

Comments after sentencing
量刑後的言論

Fourthly, after imposing sentences on the defendants, Deputy Judge Wong said to them “Good luck to you”. Such a statement, with its overtones of derision, should not have appeared in solemn court proceedings. The terms of imprisonment meted out to the various defendants, which ranged from 4 years to 4 years and 8 months, were rather substantial. The statement “Good luck to you” in such circumstances reinforced the impression of the Judge being biased against the defendants.
第四，黃法官量刑之後向各被告人說「祝你好運」。這句說話帶有嘲諷的意味，這是不應該出現於嚴肅的法律程序中的。各被告所獲的刑期是 4 年至 4 年 8 個月監禁不等，這是頗高的刑罰。黃法官在這情況下對被告人說出「祝你好運」這一句話就更加强了他對各被告人存有偏見的印象。

Convictions quashed
撤銷定罪

The behaviour of Deputy Judge Wong fell short of the requirement that a judge must conduct the trial of a case before him in a solemn manner. In the present case, there was the danger that the Judge’s conduct had actually influenced his decision, as a result of which the defendants had been deprived of their right to a fair trial. For the above reasons and in the interests of justice, all the convictions of the defendants must be quashed. As the biased conduct of the Judge had a direct impact on the safeness of his verdict, we do not consider it appropriate to uphold the convictions by applying the proviso. All the convictions are quashed accordingly.
黃法官的表現是不符合法官必須以嚴肅的態度來處理審訊的要求。在本案黃法官的行為存有實質影響裁決的危險，令被告喪失公平審訊的權利。基於上述原因，本庭必須撤銷所有的定罪以示公正。由於黃法官的偏見表現直接影響了裁決的穩妥性，所以本庭認為不可以引用「但書」來維持定罪，因此撤銷所有定罪。

Order for retrial
重審命令

The appellants’ appeals are allowed not because of insufficient prosecution evidence but because of the improper conduct of the trial by the Judge. We therefore order, upon application by the prosecution, that the cases against the 1st and 2nd defendants be retried, with such retrial to take place promptly. In the absence of an application by the prosecution, we make no order for retrial in respect of the 4th defendant.
上訴人上訴得直，理由並非是控方証據不足，而是黃法官處理案件不妥當，因此本庭根據控方的申請命令第一及第二被告需要接受重審及重審須盡快進行。由於控方沒有提出第四被告需要接受重審的要求，因此本庭不對第四被告作出重審命令。

Judgment of the two Judges
兩位法官的判決

Furthermore, I concur with the reasons for judgment of Yeung JA and Yuen JA.
另外，本席同意楊振權法官及袁家寧法官的判決理由。

Hon Yeung JA:
上訴法庭法官楊振權：

Background
背景

There were originally five defendants in the present case. They were Chan Wah (“D1”), Cheung Yan Yau (“D2”), Liu Hin Ko, Ko Kwan (“D4”) and Chan Lo Ba. They are hereinafter collectively referred to as the defendants whereas D1, D2 and D4 are referred to as the applicants.
本案原涉及五名被告人，包括陳華（“D1”）、張仁有（“D2”）、廖顯高、高軍（“D4”）及陳老八。以下統稱他們為被告人而D1，D2及D4為申請人。

At about 3:30 a.m. on 23 November 2005, a team of police officers intercepted and arrested the defendants in a bush on the beach of Nam She Wan during an anti-illegal immigrants operation. The police found at the same time ten uprooted “Buddhist pines”, one long handsaw, two cotton quilts, a backpack, some clothes and some other equipment. Further out on the beach a blue motorised sampan was seen which contained two life jackets and one and a half barrels of petrol.
2005年11月23日，凌晨約3時30分，一警隊在執行反非法入境者行動時，在蚺蛇灣沙灘一處草叢截獲及拘捕被告人。警員同時發現十棵遭連根拔起的“羅漢松”、一把長手鋸、兩張棉被、一個背囊、一些衣物和一些其他用具。現場對出的沙灘上更有一艘藍色機動舢舨，內載有兩件救生衣及一桶半電油。

The defendants were Mainland residents and, at the time of their arrest, neither held any valid travel document nor had the authority to remain in Hong Kong.
被告人都是國內居民，被捕時, 他們不持有任何有效旅遊證件，亦未獲授權留在香港。

Eventually the defendants were arrested and charged jointly with conspiracy to steal (the first charge), an alternative charge of handling stolen goods (the second charge), and felling plants in country parks without a permit (the third charge). They were also each charged with one count of remaining in Hong Kong without the authority of the Director of Immigration.
結果被告人被拘捕及共同被控第一項串謀偷竊，第二項處理贓物的交替控罪及第三項無許可在郊野公園內砍伐植物罪。他們每人亦分別被控一項未得入境事務處處長授權而留在香港罪。

D1 and D2 denied all the charges whereas D4 denied the first, second and third charges but admitted the charge of unlawfully remaining in Hong Kong. Liu Hin Ko and Chan Lo Ba admitted the first charge of conspiracy to steal, the third charge of illegally felling plants and the charge of unlawfully remaining in Hong Kong. After trial, D1 and D2 were found guilty of the first and third charges and also the charge of unlawfully remaining in Hong Kong. D4 was convicted of the first and third charges. The second charge, being an alternative charge, was not dealt with.
D1和D2否認全部控罪，D4則否認第一、第二和第三項控罪，但承認非法留港罪。廖顯高及陳老八承認第一項串謀偷竊，第三項非法砍伐罪和非法留港罪。經審訊後，D1和D2被裁定第一、三及非法留港罪罪名全部成立，D4亦被裁定第一和第三項罪名成立，由於第二項控罪是交替性控罪，故無需另行處理。

D1, D2 and D4 were each sentenced to imprisonment for 2 years and 9 months for the first charge and 6 weeks for the third charge, with the sentences to run concurrently.
就第一、第三項控罪，D1、D2及D4分別被判入獄兩年9個月和六星期監禁，同期執行。

For the offence of unlawfully remaining in Hong Kong, D1 and D2 were sentenced to imprisonment for 23 months, which was to run consecutively to the sentences on the first and third charges, making a total term of 4 years and 8 months.
就非法留港罪，D1及D2被判入獄23個月，和第一、第三項控罪刑期分期執行。他們需服之總刑期為4年8個月。

D4 was sentenced to imprisonment for 15 months for the charge of unlawfully remaining in Hong Kong to which he had pleaded guilty, but the sentence was to run consecutively to the sentences on the first and third charges, making a total term of 4 years.
D4承認非法留港罪被判監15個月，但和第一、第三項控罪刑期分期執行，他的總刑期為4年。

D1 applied for leave to appeal against conviction, D2 applied for leave to appeal against conviction and sentence, and D4 applied for leave to appeal against conviction on the first and third charges.
D1不服定罪，D2不服定罪及判刑，而D4則不服第一、三項的定罪。申請人申請上訴許可，要求本庭批准他們就有關定罪或判刑上訴。

After hearing, we granted leave to appeal and, treating the hearing as the appeal, we allowed the applicants’ appeal against convictions which were quashed accordingly. We ordered a retrial in respect of D1 and D2. We acquitted D4, in respect of whom the prosecution had not applied for a retrial. We now set out our reasons for the decisions.
經審訊後，本庭批准申請人的上訴許可申請，並視之為正式上訴，本庭判他們針對定罪的上訴得直及將他們的定罪撤銷。本庭下令D1及D2須接受重審。控方沒有申請重審D4，因此D4獲釋。以下是本庭的裁決理由。

Prosecution case
控方案情

Apart from the undisputed background facts, the prosecution and defence agreed that Buddhist pines were planted in the area where the defendants were arrested, namely Sai Kung Country Park. The prosecution also adduced as evidence the confessions that some of the applicants had made to the police on the course of events.
除了不受爭議的背景事實外，雙方同意拘捕被告人的現場，即西貢效野公園範圍種有羅漢松，控方亦提交部份申請人向警員供述事發經過的招認為證。

The prosecution alleged that D1 confessed to the police upon arrest that he had been hired to come to Hong Kong to fell trees illegally.
根據控方指稱，在現場被捕時，D1向警員招認是受僱來港非法砍樹。

Subsequently, D1 voluntarily participated in two video-recorded interviews with the police at the police station. D1 said that when he was working at a pier in Nanao, he came to know one Mr. Lau, who deceived him into coming to Hong Kong. That Mr. Lau claimed to D1 that he would call people together to come to Hong Kong to perform construction work and earn daily wages of $150 to $200. Eventually, D1 and four other people were brought to Hong Kong by boat as arranged by Mr. Lau on 17 November 2005.
其後，D1在警署向警員自願提供兩份錄影會面記錄。D1指自己在南澳碼頭工作時，認識一劉先生後，被他騙來香港。該名劉先生向D1聲稱會召集人等來港從事建築行業，賺取工資每天150至200元。結果在2005年11月17日劉先生將D1和另外4人一起用船載來香港。

After the group went ashore, Mr. Lau led the rest of the group to a plastic tent by the hillside. According to Mr. Lau, they had to hide by the hillside because the situation was unfavourable. In the meantime, they found people felling trees and some people being arrested by the police. D1 said he had asked Mr. Lau to lead him away but Mr. Lau refused.
上岸後，劉先生將他們帶往山邊一個塑膠蓬。根據劉先生聲稱因當時風聲緊，他們要匿藏在山邊。期間，他們發現有人砍伐樹木，亦發現有警員拘捕他人。D1指曾要求劉先生帶他離開，但遭劉先生拒絕。

D1 said he had not seen the Buddhist pines found by the police. He also denied that he had been instigated to come to Hong Kong to fell Buddhist pines. He said that neither he nor the other defendants had ever felled Buddhist pines, and that he had not confessed to the police at the time of his arrest that he had been hired to come to Hong Kong to hack trees.
D1指沒有見過警員搜到的羅漢松，亦否認有人指使他來香港砍伐羅漢松。D1表示他和其他被告人都沒有砍伐過羅漢松，而在被捕時，他亦沒有向警員作出過任何招認，說是受僱來港斬樹。

D1 said that, prior to his arrest, Mr. Lau had neither referred or assigned any work to the defendants nor paid them any wages.
D1指被拘捕前，劉先生沒有介紹或分配工作，亦沒有支付任何工資給他們。

D1 stated that he had not applied for any document for coming to Hong Kong, but Mr. Lau had told him that they could travel freely between the Mainland and Hong Kong as China had resumed sovereignty over Hong Kong. Mr. Lau managed to escape the arrest, and among the people arrested, D1 only knew Chan Lo Ba.
D1表示沒有申請任何來港證件，但劉先生向他表示香港已回歸中國，他們可以自由往來中港兩地。事後劉先生逃離，而和他一起被捕的人士中，他只認識陳老八。

At the other video-recorded interview, D1 said Mr. Lau had stayed with them since they arrived at the scene on 17 November 2005. Although Mr. Lau had left them temporarily, this was for the purpose of checking if any boat had arrived as he expected that some other people would arrive at the scene. D1 reiterated that Mr. Lau had never asked them to hack or remove trees, nor had they seen anyone hack trees.
在另一份錄影會面記錄，D1指劉先生和他們在2005年11月17日抵達現場後，一直和他們一起。雖然劉先生曾短暫離開，目的亦只是查看是否有船到達，因為他期望會有其他人士抵達現場。D1重申劉先生沒有叫過他們斬樹或搬樹，而他們亦沒有看到有人斬樹。

D1 said that he did not write down “never said [I] helped the boss hack trees” when the police constable read over the caution administered at the scene to him because he was not allowed to do so by the constable.
D1指當警員把現場警誡詞複讀給他聽時，他沒有寫下“沒有說過幫老闆斬樹”, 原因是警員不容許他這樣做。

D1 also said that the camouflage he was wearing at the time was provided by Mr. Lau who had asked them to wear it.
D1亦指身上所穿著的迷彩衣物是劉先生供應及要他們穿著的。

D2 tried to flee during the arrest. After arrest and under caution, D2 also admitted illegal entry into Hong Kong but denied stealing Buddhist pines. He said that the night before his arrest he arrived at the scene with Liu Hin Ko and Ko Kwan by a small boat from Nanao, but that they had neither felled the Buddhist pines found at the scene by the police nor had intended to steal those Buddhist pines.
D2被捕時曾試圖逃跑。被捕後及在警誡下，D2亦曾承認非法入境，但否認有盜取羅漢松。D2表示在被捕前一晚和廖顯高和高軍坐小船由南澳抵達現場，但放置在現場及被警員搜獲的羅漢松並非他們所砍伐得來的，而他們亦沒有意圖盜取該批羅漢松。

Later in the video-recorded interview, D2 gave an account of why and how he came to Hong Kong. He said he got on a boat on the night of 22 November 2003 and unknowingly came to Hong Kong. He said a ganger had approached him about doing construction work abroad and as a result, he, Liu Hin Ko and Ko Kwan left Nanao by boat, but shortly after arrival at the scene, they were all arrested. D2 said he neither knew that some people had sawn Buddhist pines nor was aware that he had entered Hong Kong illegally.
其後在錄影會面時，D2向警員交待來港的目的及過程。D2表示在2003年11月22日晚上坐船，在不知情下來到香港。他表示有一工頭找他出外打工，從事建築工作，結果他和廖顯高和高軍坐船離開南澳，但抵達現場不久就一起被拘捕。D2表示不知有人鋸下羅漢松，亦不知自己非法進入了香港。

D4 said at the video-recorded interview that he had been working in the construction industry in Nanao. He said that, 8 days before his arrest, someone recommended him to a job in the construction industry which offered a daily wage of $60 as well as food and accommodation. Later, he was taken on board a boat and was told that he would be coming to Hong Kong to work for 10-odd days. Liu Hin Ko and D2 also travelled on the boat with him and they arrived in Hong Kong after a journey lasting an hour or so. The man who steered the boat told them to find a place to sleep and then left the scene. They were arrested by the police shortly afterwards.
D4在錄影會面時表示，自己在南澳打工，從事建築行業。他表示被捕前8天，有人說介紹他去從事建築工作，日薪60元，包食宿。其後，他被人帶上船，說會前來香港工作10多天。當時，廖顯高和D2亦和他一起坐船個多小時來港。駕駛小船的人在離開前，曾囑咐他們先找地方睡覺，但結果不久他們就被警員拘捕。

D4 said that, prior to his arrest, he was merely sleeping with some 10 people and did not notice any Buddhist pine or other equipment. D4 also said he neither knew D1 and Chan Lo Ba nor saw anyone felling trees. However, he did admit that he had come to Hong Kong without the permission of either the Mainland or Hong Kong authorities.
D4表示被拘捕前，不察覺有羅漢松，亦看不到其他工具，他只是和10多名人士一起睡覺。D4亦表示不認識D1或陳老八，亦看不到有人去鋸樹。但D4承認是在未得中國或香港有關當局批准而來到香港的。

The defence case
辯方案情

D1 and D2 gave evidence for their defence but did not call any witness. D4 elected not to give evidence or call any witness.
D1及D2有作供自辯，但沒有傳召證人。D4則選擇不作供，亦沒有傳召證人。

D1 denied that he had admitted to the police that he had been hired to come to Hong Kong to fell trees. He said that there was a communication barrier between the police constable who did not speak Putonghua and D1 himself who did not speak Cantonese. D1 further said that the police constable had not cautioned him and therefore, even if he had made a confession, it should not have been admitted as evidence.
D1否認曾向警員承認受僱來港砍樹。他表示警員不懂普通話，自己則不懂廣東話，故溝通上有障礙。D1更指警員沒有警誡他，故即使他有作過招認，招認都不應呈堂為證。

D1 reiterated in his testimony that he came to know Mr. Lau while he was working at a pier in Nanao and that, at Mr. Lau’s invitation, he worked in the construction industry at the Mainland-Hong Kong border at a daily wage of $60 dollars with food and accommodation provided.
D1作供時重申在南澳碼頭工作時認識劉先生，並應他的邀請到中港邊境從事建築工作，工資每天60元，包食宿。

D1 claimed that he, Mr. Lau and others got on board a fishing boat on the night of 17 November 2005 and went ashore when the boat arrived at a beach. The boat then left and they went up the hill and lodged in a makeshift tent.
D1指稱在2005年11月17日晚和劉先生及其他人士乘坐漁船到達一沙灘後登岸。其後漁船離閧，他們則往山上走，並在一臨時搭建的棚蓬棲宿。

D1 said that he did not get any job after waiting for two days and that they were even driven by Mr. Lau to hide in the gully so as to avoid the police. D1 said he felt he had been cheated but was unable to think of a way out, and subsequently he was arrested by the police.
D1說經等候兩天都沒有工作，更遭劉先生驅趕他們往山溝躲藏以避開警員的搜查。D1說，感到受騙，但無計可施，其後更被警員拘捕。

D1 stressed that he did not notice at the time of his arrest that there were Buddhist pines in the vicinity, and that he did not see Buddhist pines at the scene until after daybreak.
D1強調被捕時，沒有發現附近有羅漢松，他是在天亮後，才看到擺放在現場的羅漢松。

D1 denied conspiring to steal or having felled trees. He also denied having made any confession to the police.
D1否認有串謀偷竊，亦否認曾有砍伐過樹木。他更否認有向警員作過任何招認。

D2 said he came to know a boss whilst working in Nanao and promised the boss that he would go to a certain place to do construction work. D2 said that on the night of 22 November 2005, having travelled on a boat and gone ashore in the dark on a beach, he went up a hill. Later, he tripped over someone in the dark and  randomly found a spot to sleep. He said he was fast asleep when the police arrested him. He stressed that he did not come to Hong Kong on purpose and denied conspiring with others to fell trees, steal or handle in any manner the Buddhist pines found at the scene.
D2指在南澳工作時認識一名老闆，並答應該老闆到某地從事建築工作。D2稱在2005年11月22日晚上乘船隻在一沙灘摸黑登岸後，再往山上走。後來在黑暗中被人絆倒後，隨便找了一個位置睡覺。D2表示自己是在熟睡時遭警方拘捕。D2強調自己並非故意來港，更否認有和他人串謀砍木，偷竊或以任何方法處理現場搜獲的羅漢松。

Findings of the trial judge
原審法官的裁定

The trial judge accepted the evidence of the police constables including the evidence of the confession that they said D1 had made. The trial judge rejected the evidence of D1 and D2.
原審法官接納警員的證供，包括他們指D1曾作出的招認的證供。原審法官否定D1及D2的證言。

The trial judge emphasized that the place where the defendants were arrested was remote and seldom trodden, and that the arrest took place in the small hours. Apart from quilts, clothes, daily necessities and a handsaw, a motorized sampan was found resting on the beach nearby at that time. Furthermore, 10 uprooted Buddhist pines were found lying around the area where the defendants slept.
原審法官強調拘捕各被告人的地點偏僻，人跡罕至而時間更是在凌晨時份。當時除了被鋪、衣物、日用品和一手鋸外，更有一艘機動舢舨擱置在附近沙灘，而在各被告人睡覺的地方四週，更有十棵遭連根拔起的羅漢松。

The trial judge ruled that a reasonable and irresistible inference was that the Buddhist pines were felled from the nearby country park. He stressed that it was unrealistic to suggest that the Buddhist pines had been felled in some other place and then moved to Sai Kung Country Park where they were to be re-transported.
原審法官裁定合理而不可抗拒的推論是羅漢松是在附近郊野公園砍伐而來的。原審法官強調在其他地方砍伐羅漢松及將它們運往西貢郊野公園再轉運至其他地方的說法是不切實際的。

In rejecting the evidence of D1 and D2, the trial judge commented on their evidence in the following unusual language. Examples of such comments are: “What he said about spirits [is] weird and benighted”, “It is astonishing to see such rascally and unruly behaviour in the court”, “every word and every sentence … were false and fallacious”, “astonishing utterances”, and “extremely flagrant and unbearably naïve”, etc. In delivering his oral verdict, the judge also on numerous occasions spoke of the applicants in words that could be regarded as contemptuous. They included “I tell you there is order in the court proceedings. By order, I mean orderly. You need not yell or shout. It is the court which is now addressing to you, please listen carefully.”, “Defendant, would you, 1st defendant, please stand properly, do not wander your eyes here and there”, “1st defendant, still talking about you”, “1st defendant, still about you”, “1st defendant, oh, still about you”, “Oh, still talking about you, 1st defendant”, “Still about you, 1st defendant. Wow, you have wasted quite a lot of the court’s time, alright.”, “Still talking about 1st defendant, alright”, “put them in open quotation mark so that you can listen for yourself.”, “Still about 1st defendant,”, “How come it’s still about you”, “Still about 1st defendant, you see how lengthy your speech has been”, “Still you, oh”.
原審法官否定D1及D2的證言時，曾對他們的證言，用下列不尋常的措辭作出，評論例如：“靈魂之說、怪誕愚昧”、“無賴撒野之情，竟現法庭”、“字字虛言，句句妄語”、“語出驚人”及“露骨無比，幼稚難奈”等。在其口頭判決，原審法官亦曾多次對申請人作出一些可被視為輕蔑的言詞，包括“我告訴你們，法庭審訊有序，秩序嘅序，你哋不用大呼小叫，現在係法庭講說話，請小心聆聽吁。”，“被告請你，第一被告，請你企得好啲，不要眈天望地”，“第一被告呀，仲係講緊你呀”，“第一被告，仲係你喎”，“第一被告，唉，仲係你喎”，“唉，仲係講緊你呀，第一被告，“仲係你呀，第一被告，嘩，你浪費法庭嘅時間都頗多，好。”，“仲係講緊第一被告，好”，“用開引號等你自己聽聽。”，“仍然係第一被告，”，“仲係你嘅”，“仲係第一被告、你話你當時幾長篇大論”，“仲係你，哦”，

The audio recording of the trial, which we listened to during the hearing of the appeal, shows that the trial judge adopted such an arrogant attitude in delivering the judgment that the listener was made to feel that the judge professed an extreme contempt for the defendants’ evidence.
本庭在聆訊時，曾聆聽過原審時的錄音記錄，該些錄音記錄顯示原審法官宣讀判案書時，態度傲慢，令聆聽者覺得原審法官對被告人的證言極度蔑視。

When counsel for D4 indicated to the court that D4 elected not to give evidence for his defence, the trial judge commented that the decision was “smart”.
當代表D4的大律師表示D4不作供自辯時，原審法官更表示該決定“聰明”。

Grounds of appeal
上訴理由

Regarding the convictions on the first and third charges, Mr. Lee, counsel for D1 and D2, and Mr. Cheng, counsel for D4, put forward similar grounds of appeal. They both argued that the prosecution’s evidence was insufficient to give rise to an irresistible inference that the Buddhist pines in question were felled from a place near the scene of the offence.
就第一及第三項定罪，代表D1及D2的李冠雄大律師和代表D4的鄭從展大律師提出類同的上訴理由。他們都指控方的證供不足以導致無可抗拒的推論，指涉案的羅漢松是在案發現場附近被砍伐而來的。

Mr. Lee contended strongly that it was not an offence to possess felled trees in a country park and that the prosecution bore the burden of proving that the trees concerned had actually been felled from the park.
李大律師力稱在郊野園管有被砍伐的樹木並不構成罪行而控方必須證明有關樹木的確是在公園砍伐而來的。

Mr. Lee pointed out that, as the Buddhist pines in question had been felled about one week before the alleged offence took place, they might not have been felled at the scene. He suggested that the said Buddhist pines might have been felled at some other place and then moved to the scene to be gathered together pending their removal by sea.
李大律師指出涉案的羅漢松在案發時已被砍伐了約一周，故不一定是在現場砍伐而來。李大律師指涉案的羅漢松可能是在其他地方遭砍伐後搬往現場集中在一起，等候從水路運走。

Mr. Cheng also stressed that the scene of the alleged offence, being close to Shenzhen and Nanao, was an attractive stopover point where illegal immigrants could make short stays when travelling between Hong Kong and Shenzhen.
鄭大律師亦強調案發地點近深圳及南澳，因此是偷渡人士落腳的地點，吸引他們在往返香港和深圳途中，作短暫逗留。

Mr. Cheng argued strongly that the location of the alleged offence, the time of the defendants’ arrest or the outfit seized had no significant relevance to the accusation that the defendants had stealthily felled Buddhist pines.
鄭大律師力稱案發地點，拘捕被告人的時間和搜獲的裝備都和他們偷砍伐羅漢松的指控沒有重大關連。

Mr. Cheng further submitted that the ten Buddhist pines, of which the branches were “sawn off”, did not necessarily have a market or commercial value and might have merely been intended to be used by illegal immigrants for making a fire.
鄭大律師更指“被鋸掉”枝幹的10棵羅漢松不一定具市場或商業價值，它們可能只是非法入境者用作生火之用。

Mr. Cheng stressed that there were doubts in the present case, including the fact that the Buddhist pines had been felled some 7 days prior to the alleged offence and that no tools for uprooting or cutting Buddhist pines were found at the scene. Furthermore, the location at which the defendants were arrested, the exact position of the Buddhist pines and whether they were piled up together were all open to doubt.
鄭大律師強調案件有值得懷疑之處，包括涉案羅漢松已被砍下近7天，現場則沒有任何挖掘或切割羅漢松的工具，而被告人被捕時的位置及羅漢松是否堆放在一起及其正確位置均有疑問。

Mr. Cheng also submitted that the trial judge had simply rejected the explanation given by D4 in the video-recorded interview without properly considering such explanation.
鄭大律師亦指原審法官沒有適當地考慮D4在錄影會面的解釋而強行否定他的解釋。

As regards the confession made by D1, Mr. Lee pointed out that D1 could not possibly have understood the nature of the caution which was administered to him in Cantonese. Therefore, even if there had been communication between D1 and the police constable, it was by no means certain that they had correctly understood what each other said.
就D1曾作的招認，李大律師指出有關警員以廣東話警誡D1，而D1不可能理解警誡的性質。因此，即使兩人互有溝通，亦不能確保雙方能正確無誤地理解大家的說話。

In such circumstances, Mr. Lee argued, the trial judge should not have relied on the confession allegedly made by D1.
李大律師認為在該情況下，原審法官實不應依賴D1被指曾作過的招認。

Mr. Lee maintained that the wordings used by the judge in the course of trial indicated that he was biased against the defendants and made findings of facts prematurely, without dealing with factual discrepancies objectively.
李大律師力稱原審法官在處理案件時的用詞顯示他對被告人有偏見及對事實過早作出判斷，而沒有客觀地處理案情的分歧。

Mr. Lee pointed out in particular that, when D4 indicated to the court that he would not give evidence, the trial judge commented that he was “smart”. This showed that the judge thought the decision of D1 and D2 to elect to give evidence was unwise, and that the judge had already ruled against them on the facts before hearing submissions from both sides. Mr. Lee insisted that both the attitude of the judge and the manner in which he dealt with the case were improper and unfair to the applicants.
李大律師特別指出當D4向法庭表示會保持緘默時，原審法官作出“聰明”的評語，顯示他認為D1及D2選擇作供屬愚蠢的決定，更顯示原審法官在沒有聆聽雙方陳述前，已就事實作出對他們不利的決定。李大律師力陳原審法官處理案件的態度及方法不恰當，對申請人不公平。

Mr. Lee also submitted that when the judge commented on the evidence of D1 and D2, he used words that were not only strong but also distinctly complimentary or otherwise, so that one would strongly feel that justice had not been seen to be done. Mr. Cheng concurred with Mr. Lee’s position and arguments.
李大律師亦指原審法官批評D1及D2證言時，不但措辭強烈，更褒貶分明，令人深覺執行公義，未能彰顯。鄭大律師認同李大律師的立場及論據。

Discussion
討論

There was no direct evidence in the present case to prove that the applicants had actually felled Buddhist pines or conspired to steal Buddhist pines. The issues in the present case were simple and straightforward: whether the defendants’ explanations were credible and whether the prosecution evidence was capable of buttressing the irresistible inference that the defendants had actually felled the Buddhist pines with a view to conspiring to steal them. On the charge against D1 and D2 of illegal remaining in Hong Kong, the issue was whether they knew they would enter Hong Kong illegally.
本案沒有直接證據證明申請人確有砍伐羅漢松或串謀盜取羅漢松。案件要解決的議題簡單直接，是被告人的解釋是否合信及控方的證據能否導致不可抗拒的推論，證明他們確有砍伐羅漢松，目的是串謀盜取該批羅漢松。以D1及D2面對的非法留港罪，要解決的議題是他們是否知悉會非法進入香港。

As we order that the cases against D1 and D2 be retried, it is not appropriate for us to comment on the strength or otherwise of the prosecution evidence or the credibility of the explanations offered by D1 and D2 lest such comments should influence the judgment to be made at the retrial. We only have to point out that, looking at the evidence as a whole, it is possible for D1 and D2 to be convicted of all the charges.
由於本庭下令D1及D2需接受重審，因此不適宜就控方證據的強弱及D1及D2的解釋是否合信，作出評論，以免影響重審時的判決。本庭只需指出以整體證據而言，就全部控罪，D1及D2都有機會被裁定罪名成立。

We shall only focus on considering the manner in which the judge had conducted the trial, in particular whether the wordings adopted by the judge were appropriate and whether they would cause a reasonable bystander to think that the judge had failed to conduct the trial in a fair and impartial manner.
本庭只會集中處理原審法官處理案件審訊的過程，特別是其採納的用詞是否恰當，會否導致一名合理的旁觀者認為原審法官未能公正持平地審理案件。

Hearing cases is an extremely important and solemn task that a judge undertakes because his decision will put the liberty of the person being tried at stake. A judge must be discreet in word and deed in the course of hearing and determining a case. Not the slightest impropriety or ambiguity is allowed. We wish to reiterate the oft-cited principle that justice must not only be done but the administration of justice must also be seen to be done, otherwise the public will lose confidence in our system of justice.
審理案件是法官需履行而極為重要及嚴肅的任務，原因是法官的判決會影響受審者的人身自由。法官在審訊及判決過程，都必須謹言慎行，不得有任何不妥或含糊之處。雖然是老生常談，本庭亦要重申，公義不但必須履行，執行公義的過程，更必須彰顯於人前，否則不能服眾。

A defendant at trial is entitled to respond to the prosecution’s allegations in whatever way he thinks fit. No matter what the substance of his response and the manner of expressing the response are, the trial judge is duty-bound to make a detailed analysis of the response before making an appropriate decision. The trial judge should not make deprecatory and contemptuous comments simply because the defendant’s defence is incredible and, all the more, should not make rash judgments before hearing submissions from the prosecution and the defence. Otherwise, the defendant or a reasonable bystander may not be convinced that the judge has heard the case in a fair and impartial manner and may even think that the decision of the judge is unfair and unreasonable.
一名被告人受審時，有權就控方的指控，作出其認為合適的回應。不論其回應的內容及表達方式的性質如何，主審法官都有責任仔細分析才作出適當的裁決。主審法官不應因為被告人自辯的說法不合信，而作出輕挑蔑視的評論，更不應在未聆聽過控辯雙方的陳述前，妄下判語。否則被告人或合理的旁觀者都可能不會信服法官有公正持平地審理案件，更可能令他們認為法官的判決不公平，不合理。

The trial judge is of course entitled, after carefully evaluating the defendant’s evidence, to reject such evidence and state or explain his decision in resolute and unequivocal language. However, in delivering his decision, the judge must be discreet in the choice of words, which should not be deprecating, contemptuous or insulting.
當然，經小心評估證據後，主審法官有權否定被告人的證言，並以果斷、明確的措辭陳述或說明其裁決。但裁決時，主審法官措辭必須謹慎，不應輕挑蔑視，更不能帶侮辱性。

As this Court pointed out in HKSAR v. Pong Tai Chung CACC 467/2006:
誠如本庭在香港特別行政區 訴 龐太宗CACC 467/2006案指出：

It is most obvious that a judge should conduct a trial in an impartial and composed manner, making decisions based on legal principles and rational analysis. If a judge chooses to use emotive language in the Reasons for Verdict, such as to describe the defendant as ‘neither a human being nor a ghost’, then the defendant (or any other reader) would inevitably be given an impression that the judge has failed to act in a professional manner that one would have expected him to act.
“法官審案時是應該採取持平鎮靜的態度主持審訊，憑着法律原則及理性的分析作出裁決。這是明顯不過的。若法官在裁決理由書中採用感性化的措詞，如以“非人非鬼”來描述被告人，則難免令被告人（或其他讀者）得到一個印象，是法官已失去了他應持有的專業態度”。

We must also emphasize that Reasons for Verdict are not only mandatory and enforceable, but are also expected to be able to convince the parties involved. It follows that Reasons for Verdict must be seriously and accurately articulated and must avoid using exaggerating, coloured or ambiguous words and expressions. Wordings that are excessively strong or go to either extreme of praise or censure will undermine the solemnity of Reasons for Verdict. We quote below a paragraph in Chapter Two of “A Brief Discussion on the Preparation of Judicial Writings” compiled by the Judiciary:
本庭亦須強調，裁決理由不但有強制性，要執行，亦希望能獲當事人信服。因此，裁決理由書必需嚴謹、準確，避免採用誇張、渲染、含糊不清的用詞。措辭過份強烈，褒貶過份極端的用詞，會影響裁決理由的莊嚴性。本庭在此複述由司法機構編製的《司法文書製作淺談》第二章以下段落：

Literary language places emphasis on description of artistic conception, craves for imagery and liveliness so as to arouse the associations and imaginations of the readers and to emotionalize them by means of artistic style of writing. The object of judicial writings is to resolve problems based on facts and law, and to educate the public. The language used aims to facilitate comprehension and not to emotionalize. As the aims are different, so are the languages and the styles. If a judicial document is written in literary language, using artistic diction and employing lyric, exaggerating, satirical, figurative or insinuating means of description and carries marked literary colours, it is inconsistent with the solemnity of a judicial document.
“文學性言語重視描寫意境，追求形象性和生動性，以求引起讀者的聯想和想像，用藝術筆法感動讀者。司法文書是要以事實和法律解決問題，教育大眾，言語的目的在於使人理會，不在於使人感動。目的不同、言語不同、風格有別。司法文書如果選用文學性言語，用藝術性修辭方法，以抒情、誇張、諷刺、比喻、影射等方法描述，帶有濃厚文學色彩，都與司法文書莊嚴性風格不配合。”

We must emphasize that, even where a verdict is reasonable and correct, Reasons for Verdict which carry words that are excessively strong or go to either extreme of praise or censure, or exaggerating, coloured or even insulting words, may be subject to unnecessary appeal, thereby increasing the workload of the court. Such words and expressions should therefore not appear in Reasons for Verdict.
本庭須強調，裁決理由措辭過份強烈，褒貶過份極端，帶誇張、渲染甚至侮辱性用語，則即使裁決合理正確，亦可能導致當事人不服，做成不必要的上訴程序，增加法庭的工作壓力。因此該等用詞不應在裁決理由時出現。

We have carefully considered the comments made by the trial judge in the Reasons for Verdict on the explanations given by the applicants. We have also listened to the audio recording of the judge’s oral delivery of the Reasons for Verdict. In our judgment, the conduct of the judge fell short of the requisite standard. Both the tone and the words adopted by the judge showed that he was extremely scornful of the explanations given by the applicants in their defence. The judge had repeatedly said “still talking about you” and commented that D1’s defence evidence was lengthy and had wasted much of the court’s time. Such comments were unnecessary and should not have appeared in the delivery of reasons for verdict. Such utterances showed that the judge was very dissatisfied with the explanations given by the applicants in their defence, and a reasonable bystander would be made to think that the judge was biased against the applicants and had failed to hear the case in a fair and impartial manner.
本庭已小心考慮過原審法官在其裁決理由書中對申請人解釋所作的評論。本庭更聆聽過原審法官宣讀裁決理由時的錄音記錄。本庭認為原審法官的表現未達到應有的標準。原審法官的用詞語調顯示他極輕蔑申請人的自辯解釋。原審法官多次說到“仍然講緊你”及指D1的答辯證供長篇大論及浪費了法庭頗多時間等評論根本無必要及不應在宣告裁決理由時出現。該等言論顯示原審法官極為不滿申請人自辯時的解釋，導致一名合理的旁觀者認為原審法官對申請人有偏見及未能公正、持平地審理案件。

However, the problem mentioned above is not the main or sole basis on which we quash the convictions. Our decision to quash the convictions is mainly based on the comment “smart” made by the judge on the decision of D4, who by counsel notified the court that he had elected not to give evidence.
但上述因素並非本庭推反原判定罪的主要或唯一因素。本庭推反定罪的決定主要是建基在原審法官在D4的代表大律師向法庭表示D4選擇不作供自辯時，對該決定作出“聰明”的評論。

The comment “smart” made by the judge is open to the following constructions or interpretations: (1) That the judge considered D4’s decision not to give evidence “smart” could serve to show that he considered the decision of D1 and D2 to give evidence “not smart”; (2) D4’s decision to give evidence would have been considered “not smart”, and the reason must be that if he had elected to give evidence, any explanation that he could have given for his defence would definitely have put him in a more disadvantageous position.
原審法官“聰明”的評論能導致以下不同的詮譯或演譯，（一）原審法官指D4不作供的決定“聰明”，可顯示他認為D1及D2作供自辯的決定是“不聰明”；（二）如D4選擇作供，其決定屬“不聰明”，原因必然是如他選擇作供，他能作出的自辯解釋必會對他更不利。

No matter how the comment “smart” is construed or interpreted, it shows that the judge had already made a decision based on preconceptions on the explanations that the applicants had given or might give in their defence. It would also cause a reasonable bystander to perceive that the judge could not or would not assess the explanations given by the applicants in an objective, impartial and fair manner.
不論如何詮釋或演譯原審法官“聰明”的評論，都顯示原審法官對申請人已作出或可能作出的自辯解釋有了先入為主的決定，亦會導致一名合理的旁觀者認定原審法官不能或不會客觀、持平及公正地審議申請人的自辯解釋。

It has to be stressed that neither party had made closing submissions to the court when the judge made the comment “smart”. It was at that stage improper and wrong for the judge to make a clear indication by word or conduct that could lead a reasonable bystander to feel that he had already made a final decision on the case.
本庭須強調，原審法官作出其“聰明”評論時，雙方未向法庭作出結案陳詞。在該階段，原審法官明確表示或其言行能導致一名合理的旁觀者意會到他已就案件作出最終裁決，是不恰當的，亦是錯誤的。

To ensure that justice is seen to be done, to remind judges that they must maintain a fair and impartial stance throughout the hearing of a case, and to ensure that every defendant charged with a criminal offence enjoys the rights enshrined in the Basic Law and the Bill of Rights that “all persons shall be equal before the courts and shall be entitled to a fair and public hearing”, we are of the view that the correct approach is to set aside all convictions made by the judge against the applicants.
為了確保執行公義能彰顯；為了提醒法官在審理案件時，由始至終都必須保持公正、持平的態度，為了所有被檢控的被告人都能享有《基本法》和《人權法例》所賦予“在法院前平等及接受公正、公開審問的權利“，本庭認為適當的做法是撤銷原審法官所作的定罪決定。

The nature of the offences against the applicants is serious and there is prosecution evidence upon which the applicants can be convicted. A comparison of the sentence that D1 and D2 have already served with the sentence that they are likely to receive upon conviction does not reveal an exceptional reason for not ordering a retrial of their cases. We accordingly order a retrial of the cases against D1 and D2, such retrial to be conducted as soon as possible. As D4 has served the bulk of his sentence and the prosecution has not sought a retrial of the case against him, we order that D4 be released.
指控申請人的控罪性質嚴重，控方亦有證據能令申請人入罪。D1及D2已服的刑期和他們如被定罪時會被判的刑期相比，亦不構成特殊理由，令他們無須面對重審，所以本庭下令D1及D2須接受重審及重審要盡快進行。由於D4已服完其大部份刑期而控方亦沒有要求重審他，所以本庭下令釋放D4。

Hon Yuen JA:
上訴法庭法官袁家寧：

I respectfully agree with the judgments of Cheung JA and Yeung JA and the reasons given by them. Despite the solemnity of court proceedings, it may not be entirely objectionable that parties to the proceedings occasionally utter a few humorous words or statements. In the present case, however, we find it regrettable that the trial judge appeared to have made the defendants a laughing stock on many occasions. By such conduct, the judge had not only lost the dignity that a judge should have, but had also given the impression that he had lost the composure and impartiality required of a judge. The comment that he made before counsel made final submissions also showed that he had already prejudged the defendants. I hope that such conduct, which was in my view very inappropriate, will not recur.
本席同意張法官和楊法官的判決及其理由。在嚴肅的法庭程序中，參與者偶爾地加插少許有幽默性的語句，未嘗不可，但在本案本庭感到遺憾的是，原審法官看來是多次以被告人作為笑柄。這樣做不但有失法官應有的尊嚴，亦令人得到的印象是法官已失去他所應有的鎮靜持平的心態，而在律師總結陳詞之前，他所作出的評論亦顯示他對被告人已預作判斷。本席認為這些行動極為不合適，本席盼望同類的處事方式不會重現。

Miss Mary Sin, Senior Assistant Director of Public Prosecutions, for the Respondent.
答辯人：由律政司高級助理刑事檢控專員冼佩霞代表。

Mr. Kenneth Lee, instructed by Chong & Yen on assignment by the Legal Aid Department, for the 1st and 2nd Defendants.
第一及二被告人：由法律援助署委派張昭婷嚴興鳳律師事務所轉聘大律師李冠雄代表。

Mr. James Cheng, instructed by Terry Yeung & Lai on assignment by the Legal Aid Department, for the 4th Defendant.
第四被告人：由法律援助署委派楊寶林，黎雅明律師行轉聘鄭從展大律師代表。