The applicant and the 2nd defendant at trial were charged that on 2 March 2012, outside Ashley Centre, 23-25 Ashley Road, Tsim Sha Tsui, and acting together with others unknown, they unlawfully and maliciously caused grievous bodily harm to Luk Hung Kai (“Luk”) with intent to do bodily harm to him, contrary to s 17(a) of the Offences against the Person Ordinance.  The applicant pleaded not guilty and was convicted after trial before District Judge Johnny Chan, who sentenced him to 6 years’ imprisonment.  The applicant applied to this Court for leave to appeal both conviction and sentence.
申請人與原案第二被告人被控於2012年3月2日，在尖沙咀亞士厘道23-25號雅利士中心外，連同其他身份不詳的人，意圖使陸鴻楷（“陸”）身體受傷而非法及惡意導致他身體受嚴重傷害，違反《侵害人身罪條例》第十七 (a) 條。申請人否認控罪，經審訊後，被區域法院法官陳仲衡裁定罪名成立，判監6年。申請人不服定罪及判刑，向本庭申請上訴許可。

At the conclusion of the hearing on 10 April 2014, we dismissed the application for leave to appeal conviction and sentence, for reasons which we now give.
2014年4月10日，經聆訊後，本庭拒絕定罪及判刑的上訴許可申請，理由如下。

Prosecution case
控方案情

At 1 am on 2 March 2012, Luk and one Mr Chan Kong Shing (PW1) were in a bar at Ashley Centre for entertainment, during which Luk introduced the applicant to PW1 and the three of them had drinks together.  After a while, the applicant went to the rear staircase with Luk, who returned to his seat half an hour later.  PW1 noticed that Luk appeared to be a bit unhappy.  At around 4 am, the applicant came back with several men and said to Luk, “Since you like talking so much, go down to talk!”  Then Luk was taken away under duress.  PW1 followed them, and while waiting for the lift on the 7th floor, he heard someone from the applicant’s group saying with foul language, “Sun Yee On is [xxx] almighty in Tsim Sha Tsui!”.
2012年3月2日凌晨1時，陸和控方第一證人陳港成先生在雅士利中心一間酒吧消遣。期間，陸介紹申請人給控方第一證人認識，他們一起喝酒消遣。過了一會，申請人跟陸一起到後樓梯位置，半小時後返回座位。控方第一證人見陸顯得有點不開心。凌晨4 時左右，申請人連同數名男子折返，對陸說：“你咁鍾意講，就落去講！”，然後挾持陸離開。控方第一證人尾隨他們，在7樓等候升降機期間聽見申請人一伙人中有人以粗言道：“新義安响尖沙咀大x晒！”。

When the lift arrived at the ground floor, Luk was dragged away and tugged all the way to somewhere outside Ashley Centre where he was assaulted by the applicant’s group (but not the applicant himself) with fists and kicks.  Two of them even hit Luk on the head with glass bottles.  During the assault which lasted some 5 minutes, Luk, lying on the ground, was too weak to put up any resistance, and various parts of his body including his head were subject to attack.  Towards the end of the incident, the applicant asked the assailants to leave first, saying, “Someone has made a report to the police.  Off you go!  Let me deal with it here.  I have never hit him.”  The assailants and the applicant left the scene before the ambulance arrived.
升降機到達地下後，陸被強行拉出，其身體在地上拖行，一直到雅士利中心門外，申請人一伙（但不包括申請人）便向陸拳打腳踢，其中二人更用玻璃樽襲擊他的頭部。陸躺在地上無力反抗，身體多處受襲，包括頭部。襲擊歷時約5分鐘，申請人於末段叫施襲者先行離開，並說：“有人報咗警，你哋走喇！呢度等我處理，我冇打過佢。”施襲者和申請人均在救護車到場前離開現場。

Mr Leung Fuk Hoi (PW2) was a cook who, at the material time, happened to be smoking outside the ground floor of Ashley Centre.  He saw 5 or 6 men, who were 20 feet away from him, dragging out a man from Ashley Centre, and 3 or 4 of them assaulted the man with fists and kicks, while the other two hit the man being dragged with glass bottles.  The assaulted man was injured in the head and bleeding.
控方第二證人梁福海先生是一位廚師，案發時剛好在雅士利中心地下門外抽煙。他在20呎外看見5、6名男子將一個男人從雅士利中心拖出來，其中3、4個用拳腳施襲，另外兩個用玻璃樽打被拖行的男子。被襲的男子頭破血流。

Miss Cheung Wan Yin (PW3) was in the bar on the 7th floor at the material time.  At about 2 am, she heard some people, including the applicant, quarrelling inside the bar, but she had no idea what the quarrel was about or what led to the quarrel.
控方第三證人張韻妍小姐案發時在7樓酒吧。凌晨2時左右，她聽到酒吧內有人爭吵，當中包括申請人，但她不知道爭吵的內容或背景。

The prosecution also adduced as evidence a CCTV footage which showed what happened when Luk was being dragged into the lift.  It appeared that Luk was not willing to be taken into the lift and the applicant and the other men subdued him with violence.  After the lift arrived on the ground floor, the applicant exited first and the people next to him dragged Luk out and tugged him along the ground.  The group left the lobby, with PW1 following them.
控方證據還包括一段閉路電視錄影片段。該片段錄到陸被人強行帶進升降機的情況。當時陸看來是不情願被帶進去升降機內，期間申請人和數名男子以武力控制著他。升降機到達地面後，申請人先行步出，他身邊的人把陸拉出去，在地上拖行。控方第一證人尾隨一干人等離開大堂。

Under cross-examination, PW1 admitted that he had consumed about less than 10 bottles of beer that night, and the defence put it to him that at that time he must be under the influence of alcohol.  The defence also submitted that the evidence of PW2 and PW3 and that of PW1 were discrepant in the following ways:
盤問時，控方第一證人承認當晚喝了約10瓶以下的啤酒，辯方於是指他當時必然受到酒精影響。辯方還說控方第二和第三證人的證供和控方第一證人有以下出入：

(1)PW3 said that she did not hear words to the effect that “Since you like talking so much, go down to talk!”.
（一）控方第三證人說她沒聽到“你咁鍾意講，落去講！”之類的說話。

(2)PW3 said that 5 or 6 men put their hands on the shoulder of “A” (i.e. Luk) indicating that he should go with them, in the course of which there was no dispute.
（二）控方第三證人說有5至6名男子搭著“A君”（即陸）的膊頭示意他一起離開，期間並無發生爭執。

(3)PW2 saw someone hitting Luk on the head twice with glass bottle, and on one of the two occasions the glass even broke as a result.  On the other hand, PW1 said he “[did] not think that [the glass bottle] landed on” Luk’s head.
（三）控方第二證人看見有人用玻璃樽先後兩次擊中陸的頭部，其中一次更導致玻璃碎裂；控方第一證人則說玻璃樽“應沒打中”陸的頭。

(4)PW2 said that at the scene no one said “a report has been made to the police” or talked in a loud voice.
（四）控方第二證人說現場沒有人說：“報了警”或高聲說話。

The defence submitted that these discrepancies in the evidence had undermined the reliability of PW1’s evidence.
辯方認為這些證供上的差異削弱了控方第一證人證供的可靠性。

The prosecution and defence did not dispute the injuries sustained by Luk.
控辯雙方對陸的傷勢並無爭議。

When Luk arrived at the Accident and Emergency Department of the hospital, his general condition was poor and he was dazed and muddled.  Two lacerations were found on his head, his right eyelid was swollen with bruises, and there was a lacuna on his right upper jaw.  He had to be intubated when he was in the Accident and Emergency Department.  Upon examination, the Department of Neurosurgery found swellings and bruises around Luk’s right orbit.  Brain and cervical spine CT scanning showed mild subarachnoid hemorrhage in his right ambient cistern and mild hemorrhage in his right medial temporal lobe.  There were also fractures in his right pars triangularis and right lower jaw.
陸被送到醫院急症室時，陸的整體狀況欠佳，神智迷糊；他的頭部有兩處裂傷，右眼簾有瘀血及腫脹，右上顎凹陷。陸在急症室時須插入喉管。腦外科部門檢驗陸，發現陸右眼窩四周腫脹及瘀傷，腦部及頸椎電腦掃瞄顯示，在右環池蛛網膜下有少量出血及右顳葉內側有少量出血，右邊三角部及右下顎亦有骨折。

Luk received conservative treatment from the hospital for his brain trauma.  His coma scale reading gradually improved, and later on the tubes could be removed from him.  He was examined respectively by the Ear, Nose and Throat Department, Ophthalmology Department and Dental Department and was required to visit various specialists for follow-up treatment.
院方以保守療法診治陸腦部創傷，陸的昏迷指數逐漸改善，其後陸可被拔除喉管。陸分別接受了耳鼻喉科、眼科及牙科的檢驗，並須到各專科覆診。

On 9 March 2012, a brain scan on Luk showed resolution of intracranial hematoma.  Luk was still dazed and muddled, but his coma scale reading gradually improved.
2012年3月9日腦部掃瞄顯示，臚內血腫消散，陸仍然神智迷糊，但昏迷指數亦逐漸改善。

On 16 March and 7 May, Luk was respectively referred to the Kowloon Hospital for rehabilitative treatment and the Department of Neurosurgery of the Queen Elizabeth Hospital for follow-up treatment.
3月16日及5月7日，陸分別獲轉介往九龍醫院接受康復治療及往伊利沙伯醫院腦外科接受覆診治療。

On 28 March 2012, Luk, under general anaesthesia, had an open reduction and internal fixation performed on him in respect of his fractured inferior maxilla.  The results were satisfactory.
12年3月28日，陸於全身麻醉下，就斷裂的下頜骨進行開放性復位內固定。癒合順利。

On 14 April 2012, an oral and maxillofacial surgeon and an ophthalmic surgeon jointly performed an operation on Luk, involving open reduction and internal fixation in respect of his fractured zygomatic complex maxillary and orbital cavity.  The operation was completed on 18 April, and the results were satisfactory.
2012年4月14日，口腔頜面外科醫生與眼外科醫生為陸進行聯合手術，就斷裂的顴骨復合體上頜竇和眼眶進行開放性復位內固定，手術於4月18日完成，癒合順利。

Based on such undisputed medical evidence, the trial judge found that the assault on Luk had caused grievous bodily harm to him.
根據這些不具爭議的醫療證據，原審法官裁定陸所受的襲擊對他身體造成嚴重傷害。

Defence case
辯方案情

The applicant elected to give evidence.  He said that he, a part-time party organizer, had been acquainted with Luk for about one year, during which they had seen each other twenty-odd times, and that they were ordinary friends.  He had only met PW1 once or twice and there were no grudges between them.  At midnight to 1 am on the day in question, he saw Luk and PW1 at the bar on the 7th floor of Ashley Centre having drinks together and chatting.  The applicant only took a sip of beer as he had to work, but Luk had consumed a lot.  The atmosphere at that time was relaxed.  At some point, the applicant and Luk went to the rear staircase where they smoked.  Later on, he left and went to another bar at Hillwood Road to work, and returned at 4 am.
申請人選擇作供。他說自己是兼職派對搞手，認識陸約一年，期間見面廿多次，兩人是普通朋友。他與控方第一證人見面僅一、兩次，彼此互無過節。案發當晚凌晨12至1時左右，他在雅士利中心7樓酒吧碰見陸和控方第一證人，一起喝酒聊天。申請人因工作關係只淺酌了一口啤酒，而陸則喝了很多。當時氣氛輕鬆，申請人和陸亦曾一起到後樓梯間抽煙。申請人後來離開，到了山林道另一間酒吧工作，凌晨4時折返。

While waiting in the lift lobby on the 7th floor, the applicant saw a group of people standing around Luk who appeared to be under the influence of alcohol.  When entering the lift, he pulled Luk back once and he himself lost balance and bumped against a woman behind him.  He did not know the group who were standing around Luk, and he denied having instructed anyone to drag Luk away or assault him.  Upon leaving Ashley Centre, the applicant joined two friends in Ashley Road.  When he returned to Ashley Centre, he saw Luk lying on the ground.  He asked PW1 if it was necessary to send Luk to the hospital.  PW1 said that he would do so, and the applicant then boarded a taxi with his friends and left the scene.
申請人在7樓升降機大堂等候期間，看到一班人圍著陸，陸亦看似受酒精影響。他進入升降機時曾拉了陸一把，自己失平衡碰到身後一名女士。他並不認識圍著陸的那班人，又否認曾指使任何人拉陸離開或向陸施襲。申請人離開雅士利中心後，跟兩名友人在亞士厘道會合，返回雅士利中心時看到陸躺在地上。申請人問控方第一證人是否需要送陸到醫院。當控方第一證人說會那樣做時，申請人便與友人乘的士離開。

Main issue
主要爭議

The main issue in the present case is whether, as alleged by the prosecution, the applicant had acted in joint enterprise with the other assailants to assault Luk, causing grievous bodily harm to him.
本案的主要爭議點是：申請人是否如控方所指，夥同其他襲擊者向陸施襲，令他身體受到嚴重傷害。

Conviction
定罪

Having considered and analysed the evidence, the trial judge found that the three prosecution witnesses were veracious and reliable, although PW3’s evidence was of limited assistance to both the prosecution and the defence.
經考慮及分析後，原審法官裁定控方三名證人都是誠實可靠，惟控方第三證人的證供對控辯雙方均沒有太大幫助。

In respect of the two issues of whether the applicant had participated in assaulting Luk and the role played by him at the material time, PW1’s evidence was particularly important.  Regarding the criticisms levelled by the defence against PW1’s evidence, the trial judge took the view that:
就案發時申請人有否參予對陸的襲擊和他所辦演的角色這兩點，控方第一證人的證供尤其重要。就辨方對控方第一證人口供的批評，原審法官認為：

(1)The CCTV footage showed that PW1 was not under the influence of alcohol.
（一）閉路電視片段顯示控方第一證人並沒受酒精影響。

(2)PW1 gave evidence in a straightforward and impartial manner without deliberately making up allegations against the applicant.
（二）控方第一證人作供時態度平實中肯，沒刻意掐造對申請人不利的指控。

(3)PW3’s evidence did not undermine PW1’s reliability because the matters on which the two witnesses focused were different.
（三）控方第三證人的證供沒有削弱控方第一證人的可靠性，因為她所注意的地方跟控方第一證人有所不同。

(4) As to the slight inconsistencies between the evidence of PW2 and that of PW1, this was also reasonable because each of the two witnesses told the court what he saw and heard from his own location at the material time, drawing on his own recollection of what had happened.  Most importantly, the CCTV footage lent support to the case of PW1 to a certain extent.
（四）至於控方第二證人與控方第一證人證供有輕微的出入，這也是合乎常理的，因為兩人按著自己獨立的記憶，案發時處身不同的位置將所見所聞向法庭闡釋。最重要的是，閉路電視錄影片段在某程度上支持了控方第一證人的說法。

On the other hand, the trial judge rejected the applicant’s evidence.
另一方面，原審法官不接納申請人的證供。

The trial judge pointed out that the footage showed that inside the lift the applicant waved his hand three times, looking like he was giving orders to the people outside.  The applicant’s act of rushing towards the lift door together with the 2nd defendant at trial was inconsistent with the applicant’s allegation that he did not know the assailants.  The trial judge was of the view that, were it true that the applicant pulled Luk into the lift for the sake of his safety (as the applicant alleged), he would not have, as shown in the footage, left the lift on his own upon arrival at the ground floor without even looking back.  In fact, Luk had been shoved continuously inside the lift.  When the applicant found that Luk was lying on the ground, he said the words “Do you need to go first?  I will take him to the hospital.”  Coupled with the fact that the applicant left the scene before the ambulance arrived, the trial judge drew the inference that the applicant had knowledge of the assault, as opposed to his allegation in the court that he did not know that Luk had been assaulted.
原審法官指出，錄影片段顯示申請人在升降機內曾作出3 次招手的動作，狀似向外面的人發施號令，而申請人曾與原案第二被告人一起衝向升降機門，動作不符合他不認識行兇者的說法。原審法官認為，如果真的如申請人所說，他是為了陸的安全而拉他入升降機，他實不會如片段顯示在到達地面時自行離開升降機，連頭也不回。事實上陸在升降機內已被不斷推撞。當申請人發現陸躺在地上時，拋下了一句“你使唔使走先？我送佢去醫院。”，加上申請人在救護車到場時已先行離開，原審法官因此推斷申請人對襲擊一事知情，而非他在庭上指不知道陸曾受到襲擊。

The trial judge accepted the prosecution evidence and found that the prosecution had proved its case beyond reasonable doubt.
原審法官信納控方證據，裁定控方已在毫無合理疑點情況下，成功舉證。

Sentence
判刑

The trial judge took the view that given the serious harm done to Luk, it was indeed fortunate that he did not die or become permanently disabled.  The circumstances of the present case fell within the most serious category because the several assailants joined forces not only to drag Luk away from the bar but also to assault him, who was unarmed, by beating and kicking him and hitting him on the head with glass bottles.  They could be described as acting in blatant disregard of the law.  The trial judge also considered that the incident obviously smacked of triad elements.  He adopted 6 years’ imprisonment as the starting point for sentencing.  Having been convicted after trial, the applicant was not entitled to any discount to his sentence.
原審法官認為陸所受的傷害嚴重，他沒有死亡或永久傷殘實屬幸運。本案屬情節最嚴重的類別，因為行兇者集數人之力，不單強行拉陸離開酒吧，更對手無寸鐵的陸拳打腳踢，並用玻璃樽重擊他的頭部，兇徒可謂目無視法紀。原審法官又認為案件明顯帶有黑社會的色彩。原審法法官以6年監禁作量刑基準，由於申請人經審訊後被定罪，故刑期不能得到任何扣減。

At the time of sentencing, the applicant was 24 years of age and had received education up to Form 5.  In 2008, following a conviction for theft, he was sentenced to 160 hours’ community service.  In mitigation, he said that after the offence he tried hard to turn over a new leaf by actively pursuing further studies and doing charitable work such as donating blood and serving as a voluntary worker.  The trial judge did not consider them strong mitigating factors.
申請人判刑時24歲，中五教育程度，2008年曾因盜竊罪被判160小時社會服務令。他求情指案發後努力改過自新，積極進修，並多作善行如捐血、當義工等。原審法官認為這些都不是有力的求情理由。

Application for leave to appeal conviction
針對定罪的上訴申請

The applicant has put forward three grounds of appeal in support of his contention that the conviction is neither safe nor satisfactory.
申請人提出3個上訴理由以支持定罪不安全及不穩妥的主張。

First, it is argued that the trial judge erred in allowing PW1 to read his witness statement for the purpose of refreshing his memory as the prosecution had failed to establish a sufficient legal basis for PW1 to be allowed to read the statement.  Such error, it is submitted, constituted a material irregularity in the trial.
第一，原審法官錯誤地批准控方第一證人翻閱其證人供詞，以幫助他恢復記憶，因為控方未能建立足夠的法理基礎讓他閱讀供詞。法官此舉導致審訊過程出現重大的不當之處。

The Court of Appeal has repeatedly pointed out that the purpose of giving evidence at trial is not to test the memory of a witness.  The focus of the court is on the reliability of a witness and the truth of the matter.  If, in the course of giving evidence in the court, a witness has to read his witness statement to refresh his memory, the court may allow him to do so provided that, upon being shown the statement, the witness is able to state that he still had a clear recollection of the relevant facts when he made the statement: see R v Lai Chi-ping [1982] HKC 592 at 595A-B.
上訴庭多次申明，證人作供並非要測試他的記憶力，法庭所關注的是證人的可信性及事件的真相。若證人在庭上作供時需要閱讀其證人供詞以恢復記憶，只要把證人供詞給他看，而他又能說明當他提供該份供詞時，他對有關事實的記憶仍然鮮明，法庭便可批准他閱讀供詞來恢復記憶：見R v Lai Chi-ping [1982] HKC 592，第595A-B頁。

At trial, PW1 gave the following evidence in respect of his witness statement:
原審時，控方第一證人有關其證人供詞的證供如下：

“Q:Do you remember that you made – gave a statement to the police after the incident?
“問：你記唔記得你事後同警方做－－落過一份口供呀？

A:(I) do.
答：記得。

Q:(You) do.  Do you wish to read the statement?
問：記得。你想唔想睇番份口供？

A:That will be good.
答：都好。

MR LUK:Your Honour, I will object to that because he, just now his reason was that he could not remember.
MR LUK：法官閣下，我會反對，因為點解，佢頭先佢嗰個原因就係話佢都話唔記得。

COURT:Now he is – the question you are clarifying is whether he does not remember now or he did not remember at that time or he did not remember at any time?
官：佢而家係－－問題你弄清楚佢而家唔記得定當時唔記得，定從來都唔記得呢？

MR LUK:Yes, yes.
MR LUK：係，係。

MR WONG:Yes.
MR WONG：係。

COURT:Did (he) remember when the statement was given?
官：喺落口供嘅時候記唔記得呢？

MR WONG:Yes, yes.
MR WONG：係，係。

COURT:The basis …
官：個基礎…

MR LUK:Perhaps the prosecutor do a bit more to establish the basis first, yes.
MR LUK：或者主控官做多少少嘅基礎先，係。

MR WONG:Yes, sorry, sorry.
MR WONG：係，對唔住，對唔住。

Q:Is it the case that (you) remembered at that time and now you do not remember, or that at no stage did you remember?
問：你係當時記得，而家唔記得吖，抑或你不嬲都唔記得㗎？

A:Now (I) do not remember the previous – now (I) do not quite remember.
答：而家唔記得咗之前一－－而家唔係好記得。

Q: Right.  But you – how about previously?
問：係，但係你－－之前呢？

A:In fact, previously – my god, (I) have forgotten, (I) have forgotten.
答：其實之前－－死喇，唔記得咗添，唔記得咗。

MR WONG:I would like to show him (his) previous police statement – that is, so that he can refresh his memory.
MR WONG：我想畀佢睇番佢之前嗰份嘅警方嘅口供嚟－－即係令佢可以回憶番。

COURT:Well, let’s first see if he himself thinks that reading the statement will assist him.
官：睇下佢自己認為佢睇番口供對佢有冇幫助先喇。

MR WONG:Yes
MR WONG：係。

Q:If you read the statement, will it assist you in refreshing your memory of the incident?
問：如果你睇番份口供，你會唔會對你回憶番起件事件有幫助？

A:(I) have to read it before (I) can tell.
答：要睇下先知。

Q:Will that assist (you) or not?
問：係有幫助定係冇幫助？

A:Yes.
答：有。

MR WONG:Your Honour, I would like to show him the statement.
MR WONG：法官閣下，我想畀份口供佢睇。

COURT:Mr Luk?
官：陸先生？

MR LUK:Yes, Your Honour.  What I heard from this witness just now is that he could not remember whether at that time he in fact – that means heard …
MR LUK：係，法官閣下，我頭先聽到佢呢位證人嘅說法就係話，佢都唔記得咗當時佢究竟有冇－－即係聽到…

COURT:Well, so reading the statement can assist him – see if he remembered at that time.
官：咪睇番份口供咪可以幫助佢－－睇下佢當時記唔記得囉。

MR LUK:Yes, yes, yes, alright, alright.  I withdraw this, Your Honour.
MR LUK：係，係，係，好，好，我撤回番呢個，法官大人。

Q:We give – in fact you have two statements, so I – ok, I now show you one statement.  See if you can recognize whose statement it is?
問：我哋畀－－其實你有兩份口供嘅，咁我就－－嗱，我而家畀一份口供你睇，你睇下認唔認到係邊個嘅口供？

COURT:What are you asking him?
官：你問佢乜嘢嘢呀，喺度？

MR WONG:In fact, (I) wish to see – in fact, (I) wish to see if he can recognize that the statement and the signature are …
MR WONG：其實睇下想－－其實想睇下佢認唔認到口供同埋個簽名係…

COURT:[The question is] whether (he) can remember the statement.  What do (you) mean by whether (he) can recognize the statement?
官：記唔記到口供，咩嘢認唔認到口供呀？

MR WONG:That means whether this statement is his own statement, and he – then I will ask him whether the signatures below are his own signatures.
MR WONG：即係呢份口供係咪佢自己嘅口供，同埋佢－－跟住我會問下佢下面有啲簽名係咪佢自己嘅簽名。

Q:Mr Chan, yes, can you recognize whose statement this is?
問：陳生，係，你認唔認得呢份邊個人嘅口供呀？

A:Well, my own statement.
答：本人口供囉。

…
…

Q:I would like you to read the statement, that is paragraph 10.  Tell me when you have finished.
問：我想你睇番份口供，就係第10段，你睇完你話畀我知。

A:Alright, I remember now.
答：好，我記得番。

Q:Have you finished reading it?
問：你睇完未？

A:(I) have read (it).
答：睇咗。

Q:Yes.  Can you say again – perhaps (you) close, close the statement first.
問：係，你可唔可以再講一次－－或者冚埋，冚埋份口供先。

COURT:After you have finished reading this statement, does it assist your memory?
官：你睇完呢份口供對你個記憶有冇幫助？

A:Yes.”
答：有。”

Mr Lee, Counsel for the applicant on appeal against conviction, submits that when PW1 gave the police statement he had already forgotten whether he remembered “who said someone had made a report to the police”, and therefore the judge should not have allowed him to read his witness statement.  Mr Lee seems to mean that PW1’s memory of the incident had become blurred by the time he gave his witness statement.
代表申請人處理定罪的李大律師陳詞說，當控方第一證人向警方提供證人供詞時，已經忘記了他是否記得「邊個講有人報咗警」，所以法官不應批准控方第一證人閱讀其證人供詞。李大律師的意思似乎是控方第一證人在提供證人供詞時，對事情的記憶已經模糊不清。

In our judgment, Mr Lee’s submission is, with respect, taking PW1’s evidence out of context.  Viewing at his evidence as a whole, what he meant is obviously that when he gave his witness statement to the police he still remembered the course of the incident, but when he gave evidence in court he had to read the statement to refresh his memory.  We see nothing wrong for the trial judge to allow him to do so.
本庭認為，李大律師的說法是對控方第一證人的口供斷章取義。綜觀控方第一證人的證供，他的意思明顯是，當他向警方提供證人供詞時，他仍然記得事情發生的經過，但在庭上作供時，需要閱讀供詞來恢復記憶。原審法官批准他這樣做，並無出錯。

The second ground of appeal is that the trial judge erred in allowing the prosecution to ask, or failing to stop them from asking, leading questions during the re-examinations of PW1 and PW3.  Having read the relevant questions and answers, we are unable to agree with Mr Lee’s submission.
第二個上訴理由是，原審法官錯誤容許或沒有制止控方於覆問控方第一和第三證人時，提出引導性的詰問。看過有關問答後，本庭不能認同李大律師的主張。

The third ground of appeal is that there was insufficient evidence to prove that the applicant and the unknown assailants had a common intention to do Luk grievous bodily harm.  Mr Lee submits that, taken at its highest, the prosecution evidence only served to prove the applicant’s presence at the scene.  Furthermore, the prosecution had adduced no evidence to prove that the applicant knew and was aware that other assailants would assault Luk with fists and kicks and glass bottles. Other assailants might, without the applicant’s knowledge and on their own initiatives, have done something on Luk which went beyond the original joint enterprise or agreement to commit the offence.
第三個上訴理由是，案中並無足夠證據證明申請人與不知名的施襲者有共同意圖使陸身體受嚴重傷害。李大律師說控方的證據最多只能證明申請人身在案發現場而已，並且控方並沒有證據證明申請人是在知情下及意識到其他襲擊者會向陸拳打腳踢，並且用玻璃樽來施襲。其他襲擊者可能在申請人不知情下及自發性地向陸展開越過原定的共同犯罪計劃或協議的行為。

With respect, Mr Lee’s submission has in our judgment wholly disregarded the evidence of PW1 and PW2 and the CCTV footage.  As the trial judge held, far from being an onlooker, the applicant acted as the leader throughout the assault incident.  Luk was attacked by the applicant’s underlings for as long as 5 to 6 minutes, and the assault continued even after Luk lost consciousness.  The applicant was present all along and in the end ordered the assailants to leave.
本庭認為，李大律師的陳詞根本上是完全漠視控方第一及第二證人的口供以及閉路電視錄影帶的片段。正如原審法官所裁定的，申請人並非一旁觀者，他在整個襲擊事件中擔演領導的角色，陸被他的手下襲擊長達5至6分鐘，即使陸失去知覺，襲擊仍然繼續，過程中申請人一直在場，最後指令襲擊者離開。

As none of the grounds of appeal have been made out, we have refused to grant leave to the applicant to appeal his conviction.
上訴理由無一成立，本庭因此拒絕定罪上訴許可。

Application for leave to appeal sentence
針對刑罰的上訴

The applicant has advanced two grounds of appeal.
申請人提出兩個上訴理由。

The first ground of appeal is that although the injuries sustained by the victim were serious, the sentence imposed on the applicant is, compared to other cases of wounding with intent, manifestly excessive.  In our judgment, it cannot be a correct sentencing approach to compare sentences imposed in different cases: each case involves its own set of facts and little purpose will be served by comparing sentences imposed on the basis of different facts.
第一個上訴理由是，案中受害人傷勢雖重，但申請人的判刑明顯較其他有意圖傷人案件過重。本庭認為，把不同案件的判刑比較，並非對量刑的正確處理方法，因為每宗案件的情節不盡相同，比較判刑的意義不大。

In HKSAR v Chan Chun Tat [2013] 6 HKC 225, the Court of Appeal reiterated that “wounding with intent” is a serious offence which warrants a deterrent sentence, and that the major sentencing considerations are:
上訴庭在HKSAR v Chan Chun Tat [2013] 6 HKC 225一案中，重申「有意圖而傷人」罪的嚴重性，判刑必須具阻嚇性，而法庭須考慮的重要因素為：

(1)the extent to which the assault was premeditated;
(1)襲擊的預謀程度；

(2)the motivation underlying the assault;
(2)襲擊的背後動機；

(3)the mental or emotional state of the assailant;
(3)襲擊者的精神狀態；

(4)whether the assailant was acting under the influence of alcohol or drugs;
(4)襲擊者有否受酒精或藥物影響；

(5)whether the assault was committed by the assailant alone or as part of a group;
(5)襲擊是個人或群體行為；

(6)the type of weapons employed;
(6)使用的武器性質；

(7)the level of force used;
(7)武力使用的程度；

(8)the injuries caused to the victim;
(8)受害人的傷勢；

(9)the effect of the assault upon the victim (and those close to him or her).
(9)襲擊帶給受害人（及親人等）的影響。

The Court of Appeal also pointed out that in respect of certain acts of violence, such as those involving triad gang attacks, the court must issue strong denunciation and impose sentences with a greater deterrent effect.
上訴庭亦指出對於某些暴力行徑，如牽涉三合會的團伙襲擊，法庭必須作出強烈讉責及施以更強的阻嚇性刑罰。

Furthermore, the aggravating factors for this type of wounding case are: (1) the defendant was the principal offender; (2) the assault was committed in company; (3) the assault was unprovoked; (4) the assault took place in a public place; (5) the assault went on after the victim had fallen down; (6) the assault went on after the victim became unable to defend himself; (7) the victim suffered serious and lasting injuries; (8) at the police interview, the defendant misled the police as to the facts, indicating a lack of remorse.  See paragraph 13 of the Reasons for Judgment in HKSAR v Chui Kwok Ming, CACC 380/2013 (unreported), 27 March 2014.
另外，在這類傷人案件的加刑因素有：（一）被告是事件的主腦；（二）有其他人夥同行兇；（三）襲擊並非源於挑釁；（四）在公眾地方作案；（五）事主在跌倒後繼續受襲；（六）事主在失去防衛能力後繼續受襲；（七）事主受到嚴重及永久傷害；（八）被告被接見時就案情誤導警方，顯示沒有悔意。見香港特別行政區訴徐國明，CACC 380/2013（未經彙報），2014年3月27日的判案理由書第13段。

As the trial judge pointed out when passing sentence, the sentence for the offence of “wounding with intent” is determined mainly by reference to the facts of the particular case.  The present case is serious in that the attacks launched by the applicant’s group had caused very serious injuries to Luk.  All the medical reports point to only one conclusion: Luk sustained very serious injuries.  As a result of the attack, Luk suffered from cognitive impairment as well as other injuries and was hospitalized for 40 days to undergo various operations and treatments.  When he was discharged, the doctor expected that it would take one to two years for him to recover.  He could not be sure if Luk suffered from permanent trauma.
誠如原審法官於判刑時指出，就「有意圖而傷人」罪的判刑，主要是取決該案的特有案情。而本案的嚴重之處，乃是申請人一伙人的襲擊，引致陸遭受非常嚴重的傷害。綜觀所有的醫療報告，只有一個結論：陸受到的傷害非常嚴重。陸因這次襲擊，除其他傷勢外，認知功能亦受到損害，須留院40天，接受不同的手術及治療；在出院時，醫生預期陸需1-2年才能康復，亦不能確定陸有否永久性的創傷。

On 4 April 2014, the applicant submitted a letter from the Department of Justice dated 3 March 2013, which confirmed that on 30 July 2012 Luk was arrested by the Australian police for the offences of conspiracy to import dangerous drugs and possession of dangerous drug of a commercial quantity with intent.  The applicant submits that Luk in fact did not become permanently disabled as a result of the attack, otherwise he could not have committed the offences abroad.  In our view, this is no more than an unfounded speculation.
2014年4月4日，申請人呈交了一封由律政司寄出的信(日期為2013年3月3日)，證明陸在2012年7月30日遭澳洲警方拘捕，罪名是串謀進口毒品及意圖管有份量可作商業用途的毒品。申請人指陸根本並無因受襲而受到永久傷殘，否則他不可能越洋犯案。本庭認為這只是毫無根據的猜測。

The applicant also relies on the medical report dated 11 March 2013, but that report serves little purpose because it merely consolidates the previous medical reports without providing an update of Luk’s condition.
另外，申請人依賴一份2013年3月11日的醫療報告，但這報告作用不大，因為它只是把先前的醫療報告綜合而已，並沒有提及陸最新的情況。

The trial judge also pointed out that another serious feature of the present case, namely the modus operandi of the assailants.  The applicant, along with the assailants, forcibly took Luk away from the bar in the public gaze and dragged him out to the street where they jointly attacked him, who was unarmed, with fists and kicks and glass bottles.  On PW2’s evidence, Luk did move his body when he was dragged out from the building, and subsequently he no longer had any body movement, but the assailants continued the assault by attacking him on the head with glass bottles and stepping on his head with their feet.  As the trial judge described, the assailants were cold-blooded and turned a blind eye to the law.
原審法官亦指出本案另一嚴重之處，即兇徒行兇的手法。申請人帶同那些行兇者，於酒吧眾目睽睽下強行帶走陸，並將他在地上拖行至街外，合眾人之力以拳腳及玻璃樽襲擊手無寸鐵的陸。根據控方第二證人的證供，陸被拖出大廈時是有郁動的，不過後期沒有任何動作，但襲擊者仍然繼續以玻璃樽襲擊他的頭部，及以腳「踏」他的頭部。如原審法官所描述，兇徒冷血、目無法紀。

Moreover, it is clear from all the evidence that the applicant was not only a member of the group of assailants but was their “leader”.  Both PW1’s evidence and the CCTV footage show that the applicant was the person who gave orders.  Therefore, although he himself did not attack Luk, he was obviously more culpable than the other assailants.
再者，所有證據清楚顯示申請人不單是該行兇團伙的一員，他更是「領導者」。無論是控方第一證人的證言，或是閉路電視錄像，申請人均是發號施令的人物。因此，雖然申請人並無親手向陸施以襲擊，但他在本案的罪責明顯比其他行兇者更加嚴重。

The second ground of appeal is that in the present case there is no clear evidence that the attack had anything to do with a triad society.
第二個上訴理由是，本案並無清晰的證據證明襲擊與黑社會有關。

In our judgment, this ground cannot be made out because someone from the applicant’s group had shouted, “Sun Yee On is [xxx] almighty in Tsim Sha Tsui!”.  Also, the modus operandi of the applicant and his accomplices did smack of triad elements.  Therefore, the trial judge did not err when he said in passing sentence that the present case obviously smacked of triad elements.
本庭認為，這個理由不能成立，因為申請人一伙曾有人大喊：“新義安真係響尖沙咀大x晒！”，而且申請人及其同伙的犯案手法，的確帶有黑社會的色彩，所以原審法官在判刑時指本案有明顯黑社會色彩並無犯錯。

For the above reasons, we have also dismissed the applicant’s application for leave to appeal his sentence.
因此，本庭亦拒絕判刑的上訴許可申請。

Mr Derek Lai, Assistant Director of Public Prosecutions (Acting) of the Department of Justice, for the respondent
答辯人：由律政司署理助理刑事檢控專員黎劍華代表

Mr Dick Lee, instructed by Shea & Co, Damien, for the applicant (re appeal against conviction)
申請人（定罪）：由佘英輝律師行轉聘大律師李國輔代表

Mr S.K. Khattak (Kelly Lam), instructed by Shea & Co, Damien and assigned by the Legal Aid Department, for the applicant (re appeal against sentence)
申請人（判刑）：由法律援助署委派佘英輝律師行轉聘大律師林沙文代表