Hon Chu JA (giving the judgment of the Court):
上訴法庭法官朱芬齡頒發上訴法庭判案書：

Introduction
引言

The applicant was convicted after trial by District Judge Gary Lam, (“the trial judge”) of two counts of robbery and two counts of theft.
申請人在區域法院法官林嘉欣（「原審法官」）席前經審訊後被裁定兩項「搶劫」罪和兩項「盜竊」罪罪名成立。

On 24 April 2014, the trial judge sentenced the applicant for each count of robbery to imprisonment of 5 years and 6 months, both terms were to run concurrently; and, for each count of theft to imprisonment of 1 year, both terms also to run concurrently, but 3 months out of each of these two terms were to run consecutively to the sentences of the two counts of robbery, making a total sentence of 6 years’ imprisonment.
2014‍年4月24日，原審法官判處申請人就每項「搶劫」罪入獄5年6個月，同期執行，及每項「盜竊」罪入獄1年，同期執行，但這兩項刑期中的3個月監禁與兩項「搶劫」罪的刑期分期執行，總刑期是6年監禁。

The applicant applied for leave to appeal against conviction.
申請人就定罪裁決提出上訴許可申請。

This was a case of robbery which took place on residential premises.  The victims were two sisters, Grace and Joyce.  The place where the crime was committed was their residence, a 3-storeyed villa in Kowloon Tong.
這是一宗入屋行劫案。案中兩名事主是兩名姊妹Grace和Joyce。涉案單位是她們位於九龍塘的一幢三層高平房的居所。

The case occurred at about 4 am on 11 September 2013.  At that time a male robber, armed with a knife, entered the victims’ home and robbed them of the properties referred to in the particulars of the two robbery charges, including the items belonged to Grace, namely 5 necklaces, 4 pendants, 20 Swiss Francs, one HSBC ATM card; and the items belonged to Joyce, namely HK$500, RMB¥10,000, Euro€100 and one HSBC ATM card.  The robber demanded that the two victims give him the PIN numbers of their bank accounts and subsequently withdrew $20,000 from each of their bank accounts, which sums were the properties involved in the two theft charges.
案發於2013年9月11日凌晨約4時。當時有一名男賊人持刀進入事主的居所行劫，劫去了兩項「搶劫」罪所述的財物，包括屬於Grace的5條頸鍊、4個吊墜、20瑞士法郎和一張香港上海滙豐銀行提款卡，及屬於Joyce的港幣500元、人民幣10,000‍元、100歐羅和一張香港上海滙豐銀行的提款卡。該名賊人要求兩名事主提供她們銀行戶口的密碼，並稍後從她們的銀行戶口分別提取20,000元，即兩項「盜竊」罪所涉的財物。

The applicant was arrested on 19 October 2013.
申請人在2013年10月19日被拘捕。

On 21 October 2013, Joyce identified the applicant from among the people who formed an identification parade as the robber who committed the robbery in her home.
2013年10月21日，Joyce在警署認人行列中，認出申請人為入屋行劫的賊人。

At the trial, the defence did not dispute that the two victims were robbed in their home by a robber and that the robber later stole their money from their bank accounts.  The issue raised by the defence was whether the applicant was the robber who perpetrated these crimes.  The crucial points in this case were whether the identification evidence of Joyce was admissible and whether her identification evidence was reliable so that the prosecution was able to prove that the applicant committed all the offences beyond reasonable doubt.
在審訊時，辯方不爭議兩名事主遭賊人入屋行劫，及賊人其後從她們的銀行盜取了款項。辯方的爭議是申請人是否涉案的賊人。案中的關鍵點是Joyce的認人證供是否可以被採納為證據，以及Joyce的認人證據是否可靠，以致控方能在無合理疑點下證明申請人干犯了所有控罪。

Evidence in this case
案中的證據

The prosecution evidence in this case showed that at the material time Grace and Joyce were sleeping in their respective bedrooms on the second storey of the villa.  Grace woke up and saw a man standing at the door of her room.  The man was wearing a cap, a breathing mask, black upper garment and a pair of trousers.  His hands were in gloves.  He was 45 to 50 years old, holding an electric torch in his left hand and a chopper in his right hand.  This man said to Grace in pure Cantonese, “I am here for money.  Take out every valuable thing in your home.  I won’t hurt you”.  Grace gave him her ornaments.  She succumbed to his demand and surrendered 20 Swiss Francs and her ATM card to him, and also wrote down the PIN number of her bank account on a slip of paper and gave it to him.
案中控方的證據顯示，案發時Grace和Joyce分別在她們位於涉案平房二樓的睡房睡覺。期間Grace醒來看見一名男子站在房門口。他載著帽和口罩，穿黑色上衣和長褲，雙手戴上手套，年齡約45至50歲，左手拿電筒，右手拿著一把菜刀。這人以純正廣東話對Grace說：「我嚟求財嘅，將屋企值錢嘅攞晒出嚟，我唔會傷害你。」Grace把她的手飾交給該男子後，又按他的要求交出了20法郎和銀行提款卡給他，及把銀行戶口密碼寫在紙上交給他。

After that, as demanded by the man, Grace took him to the bedroom of Joyce.  She opened the door of the room, woke Joyce up and told her about the robbery.  The man said to Joyce, “ATM card, issued by the HSBC, can be used to withdraw $20,000”, and he added, “Don’t be afraid; I won’t hurt you people.”  Joyce said that she had to go upstairs to get the money.  Then the three of them went from Joyce’s bedroom to a room on the third storey.  Joyce surrendered some money in a foreign currency, some Renminbi and some Hong Kong money.  Then the man told them to return to Joyce’s bedroom, and then he made a demand to Joyce for her ATM card.  Joyce said that she had to go downstairs to fetch it.  Then the three persons left Joyce’s bedroom.  When Joyce picked up a handbag in the sitting room, Grace and the man were standing on the staircase.  Subsequently, they returned to Joyce’s bedroom.  Joyce surrendered to him an ATM card and a slip of paper on which she wrote the PIN number of her bank account.
之後，Grace應該男子的要求，帶他到Joyce的睡房。Grace打開Joyce睡房房門，叫醒Joyce，告訴她被打劫。該男子對Joyce說：「提款卡，滙豐嘅，要撳到20,000蚊嘅」，及「唔使驚，我唔會傷害你哋嘅」。由於Joyce表示要到樓上拿錢，他們一行三人便從Joyce的睡房去到三樓一間房間。Joyce把一些外幣、人民幣和港幣交出，該男子之後指示她們回到Joyce的睡房。該男子再向Joyce索取銀行提款卡，Joyce表示要到樓下拿取，於是他們一行三人便離開Joyce的睡房。當Joyce在客廳取手袋時，Grace和該男子站在樓梯。他們之後回到Joyce的睡房。Joyce交出了銀行提款卡，及把銀行戶口密碼寫在紙上，交給該男子。

The man then told Grace and Joyce to go to bed to sleep.  He said that he would wait outside the room for his partner to withdraw the money and after that he would leave, but that they would not know when he left.  Grace and Joyce asked him to leave as soon as possible.  Joyce further said that she had to work in the morning and that she needed to sleep.  The man then took away the two sisters’ mobile phones.  He said that he would put them somewhere in the house and that they could look for them themselves after he left.
該男子之後指示Grace和Joyce到牀上睡覺，並說他會在房間外等候他的拍檔去提款後才離去，但她們不會知道他何時離開。Grace和Joyce要求該男子儘快離開；Joyce更表示早上要工作，需要睡覺休息。該男子接著取去兩姊妹的手提電話，說會把它們隨意放在屋內，著她們在他離開後自行尋找。

Several minutes after the man went out of the bedroom, Joyce called him but there was no reply.  When they were sure that the robber had left, they called the police.
在該男子從睡房出去數分鐘後，Joyce叫喚該男子但沒有回應，她們斷定賊人已離開，便報警求助。

On 21 October 2013, the police arranged for an identification parade to be held in a police station.  Detective Sergeant 10859 (PW3), before taking the applicant to the police station, obtained confirmation from him that he was willing to appear on the identification parade and that he did not require a lawyer to be present at the parade.  PW3 gave him a Notice To Suspect, which was a notice supplied to a suspect who was to attend an identification parade (exhibit P9).  The applicant indicated that he could read and after he read P9 for about two minutes, PW3 asked him whether he understood and was clear about its content.  The applicant answered, “Clear, understand” and signed on P9 to confirm that.
2013年10月21日，警方在警署安排了列隊認人手續。偵緝警長10859（PW3）在帶申請人到警署前，向他確認是願意參加認人手續，及他不需要律師在場。PW3亦交給他一份參與認人行列的疑犯須知通知書（證物P9）。在申請人表示能閱讀，及在他閱讀了P9約兩分鐘後，PW3問申請人是否清楚明白內容。申請人回答「清楚，明白」，之後在P9簽名作實。

The officer-in-charge of the parade was Chief Inspector Ng (PW4).  The whole process was video recorded.  The video recording (P4) was played at the trial.  The Identification Parade Book and its Chinese translation were produced as exhibits (P3 and P3A).  Before the identification procedure began, PW4 confirmed with the applicant that he did not require the presence of a lawyer and that he had read P9 and had received a copy of it.  The applicant told PW4 that he was clear about and understood its content and was willing to appear on the identification parade.
列隊認人手續由吳總督察（PW4）主持。整個過程被攝錄，錄影記錄（證物P4）在原審時曾播放，而「認人手續記錄簿」及其中文譯本亦呈堂為證物（P3和P3A）。在開始認人手續前，PW4向申請人確認了他不需要律師在場，及他已閱讀P9及收到一份副本。申請人向PW4表示清楚明白內容及願意參與列隊認人。

When Joyce inspected the parade, she requested that each man on the parade be asked to say one sentence, “Don’t be afraid; I won’t hurt you people.”  PW4 asked her why she made this request.  She replied that at the material time she had talked with the robber for a long time.  PW4 acceded to her request.  When it came to the applicant’s turn, Joyce asked him to say the sentence three times.  Subsequently, she reported to PW4 that she recognized that the applicant, who was standing at position 7, was the robber who robbed her and Grace that night.  When PW4 informed the applicant that he was identified, he said, “I have nothing to say.”
Joyce在進行列隊認人時，要求行列中的各人說一句話：「唔使驚，我唔會傷害你哋嘅」。PW4向她查詢她提出要求的原因後，Joyce回答案發時曾與賊人有長時間對話。PW4同意她的要求。在輪到申請人時，Joyce要求他重複句子三次。Joyce之後告訴PW4辨認出站在7號位置的申請人是當晚行劫她和Grace的賊人。當PW4通知申請人他被認出時，申請人回答說：「無嘢講」。

At the trial, the applicant objected to the prosecution’s production of the evidence that Joyce picked him out from the identification parade.  The reasons he offered were that he provided his voice sample for identification by Joyce in circumstances under which he was unwilling to do so, and that to ask him to say that sentence was a violation of the right against self-incrimination and the right to remain silent.
申請人在審訊時反對控方提出Joyce在認人行列中認出他的證據，理由是他是在不自願的情況下，提供自己的聲音供Joyce辨認，而且要求他說出該句子是違反「免自證有罪」的權利（right against self-incrimination）及「保持緘默」的權利（right to remain silent）。

The trial judge adopted the alternative procedure in dealing with this issue.  The applicant elected to give evidence but did not call any witness.  The applicant’s evidence was that although he received P9 and signed on it, he did not read the content and did not know that he might be required to say something for the purpose of voice identification.  He said that although he was willing to take part in the identification parade, he was not willing to participate in the part involving voice identification.
原審法官採用了交替程序處理這項爭議。申請人選擇作供，沒有傳召證人。申請人的證供指雖然收到P9及在其上簽名，但他沒有閱讀內容，不知道可能要說話以辨別聲音。申請人也表示他雖然願意參加列隊認人手續，但卻不願意參與聲音辨認的部分。

In relation to the general issue the applicant elected not to give evidence and he did not call any witness either.
申請人就一般事項選擇不作供，亦沒有傳召證人。

Findings made by the trial judge
原審法官的裁定

In respect of the special issue, the trial judge found that both PW3 and PW4 were honest and credible and he accepted their evidence.  He found that although they did not read out the content of P9 to the applicant, they did issue a copy of P9 to the applicant and allowed him to read its content himself.  The trial judge rejected the applicant’s evidence.  He did not believe that he did not read P9 and was not aware of the rights enjoyed by a suspect who attended an identification parade.  The trial judge found that the applicant had read P9, that he was aware of its content and that he had learnt from paragraph 4(f) thereof that in the course of the identification parade, he might be asked to speak for the purpose of hearing his voice.  The trial judge also rejected the applicant’s assertion that he was not willing to provide his voice sample for the purpose of identification.  The trial judge pointed out that even though the police did not expressly tell the applicant that he could refuse to comply with the request for the provision of his voice sample, judging from the fact that he had made request two times concerning the arrangements for the holding of the identification parade (namely: (1) to pull down the shower caps worn by members of the parade in order to cover their ears; and (2) to cover their left eyes), it could be seen that he knew that he had the right to challenge or make requests concerning the actual arrangements for the holding of the identification parade.  The trial judge found that if the applicant had not been willing to say anything to let the witness to identify his voice, he would surely have made it known and would have refused to do so.  However, when he was asked to speak, he did not object; and when he was informed that he was identified by Joyce, he did not make any protest.  The trial judge found that the applicant voluntarily took part in the identification parade procedure, including the uttering of the sentence in order that the witness could try to identify his voice.
就特別事項，原審法官裁定PW3和PW4是誠實可信，接納他們的證供，裁定他們雖然沒有向申請人讀出P9的內容，但已向申請人發出P9和一份副本，且讓申請人自行閱讀內容。原審法官拒絕信納申請人的證供，不相信他沒有閱讀P9和不知道它所載有關參與列隊認人手續的疑犯的權利。原審法官裁定申請人曾閱讀P9，知悉其內容，亦從其中第4(f)段知悉在進行列隊認人時，有可能被要求說話，辨別他的聲音。原審法官亦拒絕接納申請人不願意提供聲音作辨別的說法。原審法官指出，雖然警方沒有明言告訴申請人可以拒絕提供聲音的要求，但從申請人兩度向PW4提出有關進行列隊認人安排的要求（即：(1) 把行列中各人所戴的浴帽拉下遮蓋耳朶；及(2)遮蓋左眼），可見他瞭解有權對進行認人手續時的具體安排提出質疑或要求。原審法官裁定，假若申請人不願意說話，讓證人辨別他的聲音，他必會表達或拒絕，然而當他被要求說話時，申請人沒有提出反對，當他被告知Joyce認出他時，申請人亦沒有任何抗議。原審法官裁斷申請人是在自願的情況下，參加列隊認人手續，包括說話讓證人辨別聲音。

Furthermore, having considered paragraphs 31 and 35 of McFadden v H M Advocate [2009] HCJAC 78, the trial judge found that the sentence which the applicant was asked to say in the course of the identification parade did not constitute any form of confession, that the content of the sentence would not incriminate him, and that therefore there was no violation of the right against self-incrimination or the right to remain silent.
此外，原審法官經考慮McFadden v H M Advocate [2009] HCJAC 78，第31和35段後，裁定申請人在列隊認人過程中被要求說的說話，不構成任何形式的招認，該段說話的內容不會使他入罪，故此沒有抵觸「免自證有罪」及「保持緘默」兩項權利。

The trial judge did not agree that because PW4, in the course of the identification parade, did not ascertain beforehand whether every member of the parade spoke with roughly the same accent and because most of the people failed to say the sentence in question accurately, the identification parade was conducted unfairly and the applicant suffered an injustice.  The trial judge considered that there was no reason for him to exercise his discretion to reject the evidence concerning the conduct and the result of the identification parade.  He ruled that the evidence relating to that part and exhibits P3, P3A and P4 were admissible evidence.
原審法官亦不同意，PW4在認人過程中沒有先確立認人行列中各人的口音是否大致相若，以及大部分人都未能準確地說出有關的說話，使列隊認人過程欠公平，對申請人造成不公。原審法官也認為沒有任何理由行使酌情權力，拒絕採納列隊認人過程和結果的證據。原審法官裁定該部分的證供以及證物P3、P3A和P4可被呈堂作為案中的證據。

As for the general issue, the trial judge found that the only reasonable inference was that the robber who entered Grace and Joyce’s home to rob was also the culprit who subsequently used their ATM cards and their PIN numbers to withdraw $20,000 cash from each of their accounts.
就一般事項，原審法官裁斷，唯一合理的推論是進入Grace和Joyce家中行劫的賊人，亦是其後利用她們的提款卡和戶口密碼，從她們的銀行戶口分別提取20,000元現金的賊人。

In respect of the issue as to whether the applicant was the robber, the trial judge pointed out that the only piece of evidence which was against the applicant was the result of Joyce’s inspecting the identification parade, and that therefore the factual issue concerning the credibility and reliability of the identification made by Joyce was the linchpin of this case.
有關申請人是否該名賊人這項爭議，原審法官指出，唯一能指證申請人的證據，是Joyce在列隊認人手續的結果。因此，Joyce認人的可信性和可靠性是案中關鍵的事實爭議。

The trial judge reminded himself of the legal principles laid down in R v Turnbull [1976] 63 Cr App R 132, and of the dangers of solely relying on identification evidence to convict.  He also stated that when he considered evidence of identification by voice, he proceeded in accordance with the relevant direction given in a jury trial.
原審法官提醒自己須謹記R v Turnbull [1976] 63 Cr App R 132所訂的法律原則，及單純依賴認人證據定罪的危險性。原審法官亦提及在考慮有關辨認聲音的證據時，他會按相關的陪審團指引行事。

The trial judge commented that the circumstances in which Joyce observed the face of the robber that night were less than satisfactory, because the robber was wearing a cap and a breathing mask, the lighting at the scene was insufficient and Joyce did not look closely at the face of the robber for a significant length of time.  However, at the same time he pointed out that in the course of the robbery, which lasted 25 to 30 minutes, Joyce kept on talking with the robber.  At that time, the environment was quiet without any interfering noise, so that Joyce was able to hear clearly what the robber said.
原審法官指出，Joyce當晚觀察賊人樣貌的環境不儘理想，因為賊人戴了帽和口罩，現場光線不足，及Joyce不是長時間注視賊人的樣貌。但原審法官同時指出，在整個大約25至30分鐘的行劫過程中，Joyce與賊人不斷地對話，當時四週環境寧靜，沒有雜音，Joyce可以清楚聽見賊人的說話。

The trial judge analysed the evidence which underlay Joyce’s identifying the applicant as the robber.  He noticed that Joyce satisfied herself that four features, namely the height, build, right eye and voice of the applicant all matched those of the robber before she concluded that the applicant was the robber who robbed them in the house that night.  The trial judge also took into account Joyce’s evidence that she was a professional drama director and actor, that she had studied in a special course about voice, and that therefore she was accustomed to engage in various activities in a dark environment (such as the backstage) and was particularly sensitive to sounds, so much so that she was capable of analysing and distinguishing the vocalization, pronunciation, intonation and tone of different people.  Moreover, because her job involved choosing different people to play different roles, she was used to recognizing and remembering the voices of strangers and their relevant special features.  The trial judge also mentioned that Joyce said in her evidence that in the course of the identification parade, when the applicant uttered the sentence specified by her, the spontaneous bodily reactions which she experienced (ie her body trembled and her heart thumped) strengthened her belief that the applicant was the robber who entered her house to rob.
原審法官分析Joyce有關辨認出申請人為賊人的基礎的證據，他注意到Joyce是確定申請人的身高、身型、右眼和聲音這四項元素都與賊人吻合，才認定申請人是當晚入屋行劫的賊人。原審法官亦考慮了Joyce作供時提及她是專業舞台劇導演和演員，曾修讀「聲學」（voice），因此習慣在黑暗的環境（如後台）活動，對聲音特別敏感，有能力分析和分辨不同人的發聲、咬字、語調、語氣，以及她因工作涉及角色輪選而習慣認清和記憶陌生人的聲音和相關的特質。原審法官也提及Joyce作供時說，在列隊認人時，當申請人說出她指定的句子時，她的身體出現了自然反應（即擅抖及心秤然跳動），使她更深信不疑申請人便是入屋行劫的賊人。

Having analysed and examined Joyce’s evidence, the trial judge was satisfied that the reasons she gave for being able to identify the applicant were sufficient, logical and reasonable.  Therefore, he found that the credibility and reliability of her identification evidence was beyond doubt and he accepted it entirely.  As a result, he held that the applicant was undoubtedly the robber who robbed the victims in their house and the culprit who stole the money from their bank accounts, and he convicted him of the four offences accordingly.
經分析和考慮Joyce的證供，原審法官認為她辨認出申請人的理據充分，合情合理，從而裁斷她的辨認證供的可信性和可靠性無可置疑，並完全予以信納。原審法官因此裁定，毫無疑問申請人是入屋行劫和從銀行戶口盜取款項的賊人，故判決申請人4項控罪罪名成立。

Grounds of appeal
上訴理由

The applicant put forward two grounds of appeal as follows:
申請人提出兩項上訴理由如下：

The prosecution violated the common law principle against self-incrimination and the defendant’s right to remain silent in that the evidence as to voice identification which took place during the identification parade was elicited without the consent of the applicant.  The trial judge committed an error of law in finding that such evidence was admissible.
控方有關在列隊認人過程中聲音辨認的證據是在未徵得申請人同意下取得，違反了「免自證有罪」的普通法原則，也違反了「被告人有權保持緘默」的原則。原審法官把它採納為案中的證據犯上法律錯誤。

The trial judge, while recognizing that the evidence concerning identification by appearance was unsatisfactory, relied on evidence of identification by voice and found that the identification evidence in the present case was sufficient to support a guilty verdict.  In doing so, he overlooked the fact that voice comprised only 55% of the totality of Joyce’s identification evidence, thus the guilty verdict was not reached where there was no reasonable doubt, and the conviction was unsafe.
原審法官既確認樣貌辨認的證據不理想，卻依賴聲音辨認的證據裁定案中辨認的證據足以支持有罪的裁決，但他忽略了聲音只佔Joyce整個辨認證據中的55%，因此定罪裁決並非在毫無合理疑點下作出，故定罪並不穩妥。

Ground of appeal (1)
第(1)項上訴理由

In support of ground of appeal (1), Mr Ma, counsel for the applicant, advanced two arguments.  His first argument was that the sentence (“Don’t be afraid, I won’t hurt you people.”) which the applicant was asked to say in the course of the identification parade, was one of the utterances which the robber uttered to the witness during the robbery.  To ask every member of the parade to say this sentence was to let the witness to make comparison to see if any person’s voice was similar to the robber’s.  According to him, this was tantamount to take a breath sample, a blood sample or a DNA sample from a suspect for the purpose of examining it to see whether it matched a sample collected at a scene of crime.  Mr Ma further said that there were stringent requirements under the law about how to collect intimate samples from a suspect, and that the consent of the suspect was required, otherwise it was necessary to obtain authorization from a high ranking police officer or a judicial officer before this step could be taken; but that at present in Hong Kong there was no legal provision which governed the procedure of taking voice samples from a suspect.  Mr Ma’s submission was that if a suspect was just asked to say some words or phrases which had no relevance to the case under investigation for a witness to hear his accent and intonation, then it might not constitute a confession; but that if, as what happened in the present case, a suspect was asked to say what a culprit involved in the case had said, then it was equivalent to a reconstruction of the crime, and that it necessarily constituted a confession.  For this reason, he asserted that to ask the applicant to say the words in question in order to collect his voice sample to let the witness to identify it without informing him that the identification parade included the voice identification part was a breach of the legal principle against self-incrimination and a violation of the right to remain silent.
就第(1)項上訴理由，代表申請人的馬大律師提出兩點論據。他的第一點論據指申請人在列隊認人過程中被要求說的句子（「唔使驚，我唔會傷害你哋嘅」），是賊人行劫時向證人說的其中一句話，要求認人行列中的各人說這句話是要讓證人作出比較，看看是否像賊人的聲音，這等同向疑犯收集酒精吹氣樣本、血液或脫氧核糖核酸（DNA）樣本，以便核對是否與從犯案現場採集到的樣本吻合。馬大律師進一步指出，法律對從疑犯收集體內樣本有嚴格規定，必須得到疑犯同意，否則要由高級警務人員或司法人員批令才可進行。然而，現時香港沒有法律監管向疑犯收集聲音樣本的過程。馬大律師的陳詞是：如果只是要求疑犯說一些與案無關的句子，以供證人考慮其口音、語調，則未必構成一項招認。但是，若如本案的情況，疑犯被要求說出案中賊人說過的話，則等同案件重演，必然構成一項招認。因此，在沒有通知申請人列隊認人過程中有聲音辨認的部分的情況下，要求申請人說話以收集他的聲音樣本供證人辨認，是違反「免自證有罪」的法律原則，及「保持緘默」的權利。

In our judgment, this argument was the result of overlooking the factual findings made by the trial judge and the nature of the identification parade held in the present case.  The trial judge made the following findings of fact in relation to the special issue: (1) The applicant had read exhibit P9 and was clear about and understood its content, including paragraph 4(f); (2) He therefore knew that during the identification parade he might be asked by a witness to speak for the purpose of hearing his voice; (3) The applicant clearly understood what rights he had in the course of the identification parade, including the right to give opinions and make requests about the relevant arrangements; and (4) When he was asked to speak in order to let Joyce hear his voice, he did not raise any objection, make any challenge or protest; nor did he complain in any way when he was informed of the result of the identification.  Therefore, the trial judge drew the conclusion that the applicant voluntarily took part in the identification parade, including the saying of certain words to let a witness hear his voice.
本庭認為，這項論據忽略了原審法官的事實裁斷和本案列隊認人手續的性質。原審法官就特別事項的事實裁決是：(1) 申請人已閱讀過證物P9，清楚明白其內容，包括第4(f)條；(2) 所以他是知悉在進行列隊認人手續時，證人有可能要求他說話，以辨別他的聲音；(3) 申請人清楚瞭解他在列隊認人過程中的權利，包括可以對相關的安排提出意見和要求；以及(4)他在被要求說話讓Joyce辨別他的聲音時，沒有表示反對或提出質疑、抗議，在獲告知辨認的結果時亦沒有作出投訴。原審法官因此總論，申請人是自願參與列隊認人手續，包括說話讓證人辨別他的聲音。

The applicant’s ground of appeal made no reference to the above findings of fact (1) to (4) made by the trial judge.  Mr Ma’s submission did not address the conclusion drawn about the fact that the applicant voluntarily took part in the identification parade and voluntarily said those words to let the witness hear his voice.  Mr Ma obviously understood that these factual findings were made on the basis of the trial judge’s assessment and judgment of the trustworthiness of PW3, PW4 and the applicant as witnesses and the credibility of their evidence.  A well-established legal principle is that an appellate court should not lightly interfere with the assessment made by the trial judge in respect of the witnesses and the evidence and the findings of fact derived from such assessment.
申請人的上訴理由沒有針對原審法官上述的第(1)至(4)項事實裁斷。馬大律師的陳詞亦沒有針對申請人是自願參與列隊認人手續，及自願說話供證人辨別他的聲音這項事實的結論。馬大律師顯然明白，原審法官這些事實的裁斷，是基於對PW3、PW4及申請人作為證人的誠信，及他們證言可信程度的評估和裁斷。明確的法律原則是：上訴法庭不輕易干預原審法官對證人和證言的評估，以及由此達致有關的事實的結論。

In view of the above-mentioned findings of fact made by the trial judge, Mr Ma’s submission that prior to the carrying out of the voice identification, the applicant had not been informed that there would be such an arrangement and he had not consented lacked factual support.
有鑑於上文述及的原審法官的事實裁斷，馬大律師有關在進行聲音辨認前，沒有通知申請人會有這樣的程序及沒有徵得他同意這些陳詞，欠缺事實基礎的支持。

In addition, the procedure in which the applicant took part was an identification parade, not a procedure which involved no visual identification but purely about voice identification.  Joyce asked members of the parade to say something to let her hear their voice.  Essentially, such a request was no different from a request made by a witness when he asked members of the parade to show him a certain side of their faces or bodies, their hands, their legs or other parts of their bodies for him to make identification.  That which Joyce relied on to pick out the applicant was not the content of what he said, but the special features of his voice, including the volume, pronunciation, intonation and tone.  The applicant was only asked to provide a voice sample, not substantive information in relation to certain questions.  Such being the case, the evidence obtained was the applicant’s voice, not the content of what he said.  Mr Ma argued that to ask the applicant to say what the robber said during the commission of the crime was equivalent to reconstructing the crime and that it constituted a confession.  We consider that it was a wrong analogy.  The sentence said by the applicant during the identification parade was said at the request of Joyce.  His saying the sentence was not equivalent to his admitting that the robber did say the sentence during the commission of the crime, and still less was it equivalent to his admitting that he did say the sentence to Joyce.  The content of the sentence would not constitute evidence adverse to the applicant.
再者，申請人參與的是列隊認人手續，不是一項不涉及目視認人，而純粹以聲音認人的手續。Joyce要求認人行列中的人士說話，提供聲音讓她辨認，在本質上，無異於一名證人要求認人行列中的人士展視側面輪廓、手、腳或身體某些部位以作辨認。Joyce賴以辨認出申請人的不是他說話的內容，而是他聲音的特質，包括聲線、發音、語調、語氣等。申請人祇是被要求提供聲音樣本，而不是被要求向一些問題提供具體的資料。因此，作為案中證據者是申請人的聲音，而不是他所說話的內容。馬大律師陳詞說，要求申請人說出賊人犯案時說過的話，等同案件重組，構成一項招認，本庭認為引喻失當。申請人在列隊認人過程中所說的句子，是應Joyce的要求說的，不會等同他承認賊人犯案時說過這話，更不等同承認他曾向Joyce說過這句話，這句話的內容不會構成對申請人不利的證據。

In McFadden v HM Advocate [2009] HCJAC 78, the two appellants were convicted of assault and of murder.  One of the appellants took part in an identification parade, during which two witnesses asked members of the parade to say something which other [sic] witnesses heard an assailant say at the material time.  Subsequently, both witnesses identified the appellant.  The appellant submitted that the trial judge should not have admitted evidence concerning the identification parade because: (1) There was no legal foundation for conducting voice identification during an identification parade and there was a lack of proper procedural safeguards; and (2) The practice of requesting a suspect to speak during an identification parade was a violation of the right to silence and the right not to incriminate oneself.  The High Court of Justiciary of Scotland dismissed the appellants’ appeal.  In relation to ground of appeal (1), the Court held that the practice of requesting members of an identification parade to say some words or phrases for voice identification during the parade was well established, and the possibility of such a request being made was referred to in the notice supplied to a suspect who took part in the identification parade, and that the European Court of Human Rights had held that the use of voice samples obtained during the course of an investigation of a crime was a legitimate means of identifying an individual.  As for ground of appeal (2), the Court held that the right to silence and the right not to incriminate oneself related to the right of a suspect not to be compelled to answer substantive questions concerning a crime, but that the taking of a voice sample did not focus on substantive content, but on the timbre of a voice, intonation, accent, pronunciation and other features sufficient to identify an individual who said certain words or phrases, that such procedure operated in the same way as making identification by relying on facial features, hair colour, build, fingerprints, and DNA taken from blood, hair or skin samples, and that the use of voice samples as evidence in a criminal trial did not contravene the right to silence or the right not to incriminate oneself .
在McFadden v HM Advocate [2009] HCJAC 78案，兩名上訴人被裁定毆打和謀殺罪名成立。其中一名上訴人曾參與一項列隊認人手續，期間有兩名證人分別要求認人行列中的人士說話，所說的是案發時其他證人聽到行兇者說過的話。之後，兩名證人分別認出上訴人。上訴人提出，原審法官不應接納列隊認人手續的證供，理由是：(1)在列隊認人時進行聲音辨認欠缺法理基礎和在程序上對疑犯沒有適當保障，以及(2)在列隊認人時要求疑犯說話，違反了保持緘默和免自證有罪的權利。蘇格蘭上訴法庭拒絕上訴人的上訴。就第(1)項上訴理由，它指出，在列隊認人過程中要求參與人士說話以進行聲音辨認是素來都有的做法，給予參與列隊認人手續的疑犯的通知亦有提及這個可能性，而歐洲人權法庭的判決亦認為，在刑事調查中向疑犯收集聲音樣本作辨認之用，是合法的。就第(2)項上訴理由，蘇格蘭上訴法庭裁定，緘默權和免自證有罪的權利是指不可强逼疑犯回答與罪案有關的具體問題，然而聲音樣本的重點不在於所涉說話的具體內容，而在於該聲音的特質、音調、口音、發音及其他足以辨認說話者的特徵，情況猶如一個人的面部特徵、頭髮顏色、身材、指模及從血液、頭髮或皮膚樣本收集DNA；在刑事審訊中引用聲音樣本等證據不抵觸緘默權和免自證有罪的權利。

In our judgment, the analysis in McFadden v HM Advocate is also applicable to the present case.  As pointed out by Mr Tam, SC, acting for the respondent, voice is one of the factors by which a person can be identified.  All along, a witness who views an identification parade can ask members of the parade to say something for him to make voice identification, and this is a reasonable request.  It is expressly stated in paragraph 4(f) of the notice issued to a suspect who takes part in an identification parade that in the process he may be asked by a witness to speak for the purpose of hearing his voice.  The applicant read the notice, clearly understood its content and what rights he had, and after that he was willing to take part in the identification parade and was also willing to participate in the voice identification part which took place in the course of the identification parade.  In these circumstances, the applicant suffered no unfairness when he and other members of the parade were asked to say those words and there was no violation of his right to silence or his right against self-incrimination.
本庭認為，上述McFadden v HM Advocate案中的分析亦適用於本案。如代表答辯人的覃資深大律師指出，聲音可以是辨認他人的一個元素，參與列隊認人的證人從來都可以要求認人行列中的人士說話讓他作出辨認，這亦是一項合理要求。發給參與列隊認人手續的疑犯的通知書中的第4(f) 段亦清楚說明，在過程中證人有可能會要求他說話，提供聲音作辨認。申請人在閱讀過通知書，清楚明白其內容和權利後，願意參與列隊認人手續，亦願意參與過程中的聲音辨別部分。在此情況下，在列隊認人手續中要求申請人和認人行列中的人士說話，沒有對申請人不公平，亦不抵觸申請人的緘默權和免自證有罪的權利。

The second argument advanced by Mr Ma was that the use of Joyce’s voice identification evidence was against procedural justice.  He submitted that most of the members of the identification parade could not utter the sentence specified by Joyce with complete accuracy.  On that day, the parade consisted of nine people, including the applicant.  Except actor number 2, everyone said, “Ngor Mm Wui Seung Hoi Nay Ge”（I won’t hurt you 我唔會傷害你嘅）, when he was supposed to say “Ngor Mm Wui Seung Hoi Nay Day Ge”（I won’t hurt you people 我唔會傷害你哋嘅）.  Apart from that, two actors pronounced the last character “嘅”（Ge）as “呀”（Ah）and “㗎”（Ga）respectively; and when the applicant said the sentence for the second time and the third time, he left out this character.  Mr Ma also complained that before the identification procedure began, PW4 failed to ensure that all members of the parade spoke with a similar accent, and that was unfair to the applicant.
馬大律師的第二項論據指Joyce聲音辨認的證據有違程序公義。他的陳詞稱認人行列中的人大部分不能完全準確地說出Joyce指定的句子。當日認人行列中，連同申請人共有9人。除卻戲子2號外，所有人都把「我唔會傷害你哋嘅」說成「我唔會傷害你嘅」，另外有兩名戲子更把句子最後一個字「嘅」分別說成「呀」和「」，申請人在第2次和第3次重複句子時則遺漏了這個字。馬大律師亦指，PW4 沒有在開始認人前確保認人行列中各人的口音相若，對申請人不公。

The trial judge had taken this submission into account when he gave his verdict.  He remarked that the complaint about the inability of members of the parade to utter the sentence in question with complete accuracy was fault finding, and that although PW4 did not ascertain beforehand with what accent each person spoke, from his viewing the video recording, he noticed that every person spoke pure Cantonese and no unfairness was created against the applicant.
原審法官在裁決時，已考慮了這項陳詞。他認為有關認人行列中的人士不能全部準確地說出指定句子的投訴，屬吹毛求疪，而雖然PW4沒有事先確認各人的口音，但從錄影記錄觀察所得，各人都操純正粵語口音，沒有對申請人造成不公。

As stated above, the focus of voice identification is on letting a witness hear the special features of the voices of members of the parade.  Mr Ma complained that PW4 did not deal with the problem that the applicant and the actors failed to accurately utter the specified sentence, but he did not point out in what way the special features of the voices of these people, and the accuracy and fairness of the witness’s voice identification was affected by these differences.  It is noteworthy that when the defence were cross-examining Joyce, it was put to her that the failure of the people to accurately utter the sentence she asked them to utter would render the voice identification inaccurate.  Joyce clearly voiced her disagreement with that proposition.  She explained in detail that she judged whether a person’s voice matched the voice of the robber by referring to the timbre, volume, tone, method of breathing, pronunciation, and the rising and falling rhythm as revealed in the utterance of that person (see 89K-S, 90J-Q and 91 H-J of the appeal bundle).  We are of the view that to say “Nay” (you你) instead of “Nay Day” (you people你哋), and to pronounce “Ge”（嘅）as “Ah”（呀）”, “Ga”（㗎）or leave it out altogether are only minor differences, which had no obvious or perceptible influence on the special features of the voice of any person, and had created no observable unfairness in the process of the identification parade, including the voice identification part.
如前所述，聲音辨認的重點在於讓證人辨認認人行列中各人聲音的特徵。馬大律師投訴PW4沒有處理申請人和戲子沒有準確地說出指定的句子，但他沒有指出這些差異如何影響各人聲音的特徵，及證人辨認他們聲音的準確性和公平性。值得注意的是辯方在盤問Joyce時，曾向她指出各人沒有準確地說出她要求說的句子會使聲音辨別變得不準確，但Joyce明確表示不同意，並詳細解釋她是以各人的音質、聲線、語氣、用氣方法、咬字、說話的抑揚頓挫，去決定他們的聲音是否與賊人的聲音吻合（見上訴文件冊89K-S、90J-Q和91H-J）。本庭認為，把「你哋」說成「你」和把「嘅」說成「呀」、「」或遺漏了，都是輕微的差異，對各人聲音的特徵沒有明顯或可見的影響，對列隊認人手續及當中聲音辨認部分的過程沒有可見的不公平之處。

Regarding the complaint that PW4 did not ascertain beforehand whether members of the parade spoke with a similar accent, Mr Tam correctly pointed out that in the guidelines concerning the holding of an identification parade presently in force in Hong Kong, there was no arrangement or requirement specially designed to cater to the request made by a witness during the process for making voice identification.  Generally speaking, the police officer in charge of the identification parade has the duty to ensure that there are no obvious differences among members of the parade.  Since a witness who comes to participate in the identification parade procedure mainly depends on visual identification, when choosing people to form the parade, it is mainly focused on their appearances and visible physical features.  We think that if it is to conduct a voice identification, the ideal way to proceed is of course to ensure that members of the identification parade speak with roughly the same accent.  However, this is dependent on whether the circumstances permit.  Ultimately, what the court has to consider is whether the trial will be rendered unfair if the relevant identification evidence is admitted, so that the court should exercise its discretion to exclude it.
至於指PW4沒有先確立認人行列中各人的口音相若這點，覃大律師正確指出，香港現行有關列隊認人手續的指引，沒有針對證人在過程中要求作聲音辨認，作出特別處理和規定。就一般原則而言，負責舉行列隊認人手續的警務人員有責任確保認人行列的人士沒有明顯的差異；由於列隊認人手續以目視辨認為主，故此在揀選認人行列人士時，焦點多在於他們外貌和可見的身體特徵。本庭認為，如果進行聲音辨別，理想的做法當然是確保認人行列人士的口音大致相若。然而，這亦須視乎情況是否許可。最終，法庭要考慮的是倘若採納有關的認人證據，會否使審訊不公，以致應行使酌情權力把它豁除。

In the present case, when PW4 explained to Joyce the procedures and facilities for holding an identification parade, she asked whether she could request members of the parade to say something, but at that moment she was just enquiring whether she was allowed to do that; she did not specifically make such a request.  It was only when she was viewing the parade did she make up her mind that she would like to ask them to say something in order to hear their voices (see 87B-C of the appeal bundle).  In these circumstances, it is understandable that before the identification parade began PW4 did not check with what accent each member of the parade spoke.
在本案中，雖然Joyce在PW4向她介紹列隊認人程序和設施時，曾詢問可否要求認人行列人士說話，但她當時只是查詢是否可以這樣做，不是明確提出這個要求，她是在進行列隊認人期間才決定要求他們說話，以辨別他們的聲音（見上訴文件冊87B-C）。在此情況下，PW4沒有在開始列隊認人前瞭解認人行列中各人的口音，是可以理解的。

The evidence of both Grace and Joyce was that the robber spoke pure Cantonese.  In her evidence Joyce carefully and fully explained how she could be sure that the applicant’s voice matched the robber’s.  She pointed out that the robber spoke in a low and deep tone, that he spoke without enough breath, that he could not say a sentence in full without pausing, that his voice was not clear, that he spoke without much modulation and that the speed of his speech was low (58U to 59O of the appeal bundle).  She said that during the identification parade she still remembered clearly the robber’s voice (60G of the appeal bundle).  In giving his verdict the trial judge stated that every member of the parade spoke pure Cantonese and no problem related to accent arose.  The applicant did not appeal against this finding of fact.  Mr Ma did not challenge this finding in his submission, nor did he specify in what way the applicant actually suffered any unfairness as a result of PW4’s failure to ascertain beforehand with what accent each member of the parade spoke.
Grace和Joyce的證言都指賊人操純正廣東話。Joyce作供時，對於肯定申請人的聲音吻合賊人的聲音，給予詳盡的說明。其中她指出賊人的聲線低沉、不太夠氣、不能一口氣把整個句子說完、音質不亮、沒太多高低起伏和說話速度偏慢（上訴文件冊58U至59O）。她亦表示在進行認人手續時仍能清楚記得賊人的聲音（上訴文件冊60G）。原審法官的裁決亦指出認人行列中各人都操純正廣東話，沒有口音的問題。申請人沒有就此事實裁斷提出上訴。馬大律師的陳詞也沒有挑戰這項裁斷，亦沒有指出PW4沒有先瞭解認人行列人士的口音，為申請人造成甚麼實質的不公平之處。

Looking at all the relevant evidence, the fact that before the voice identification began PW4 did not take any step to ensure that members of the identification parade spoke with roughly the same accent did not result in any unfairness in the procedures of the identification parade or cause the applicant to suffer any actual unfairness.  The trial judge’s decision to admit this part of the identification parade evidence did not create any unfairness in the trial.
綜觀有關的整體證據，PW4沒有在進行聲音辨認之前，採取行動確保認人行列人士的口音大致上相若，這點沒有使列隊認人的程序不公平，或對申請人造成任何實質上的不公平。原審法官決定採納列隊認人手續這部分的證據，沒有為審訊帶來不公平之處。

Ground of appeal (1) of the applicant is not established.
申請人的第(1)項上訴理由不能成立。

Ground of appeal (2)
第(2)項上訴理由

In relation to ground of appeal (2) the gist of Mr Ma’s submission was that the trial judge did not fully follow the guidelines laid down in R v Turnbull about how to deal with identification evidence, that when he made his findings he failed to point out the weaknesses in Joyce’s observation and identification evidence of the robber’s height, build, right eye and voice, that his analysis of the evidence was cursory, and that therefore the conclusion he reached was unsafe.
至於第(2)項上訴理由，馬大律師陳詞的重點指原審法官沒有完全依從R v Turnbull案有關處理辨認的證據的指引，在作出裁決時，沒有指出Joyce有關對賊人的身高、體型、右眼和聲音的觀察和辨認證供的不足之處，分析證據時粗疏，得出的結論因而不穩妥。

The focal point of the legal principles expounded in R v Turnbull is that when the case against a defendant depends wholly or substantially on the correctness of a witness’s identification of the defendant which the defendant alleges to be mistaken, then the judge should warn the jury of the need for caution before convicting the defendant in reliance on the identification evidence, because an honest and convincing witness could make a mistaken identification.  The judge should further direct the jury to examine closely the circumstances in which the identification was made and should remind the jury of any weaknesses in the identification evidence.  In a number of cases (for example: The Queen v Cheung Ping Kwong (unreported) CACC 149/1989; The Queen v Pham Van Hai (unreported) CACC 127/1990) the Court of Appeal held that it was not necessary for a District Judge, in making his findings, to give himself explicit directions about how to assess identification evidence in the terms of R v Turnbull, but that he should show that he had been mindful of the legal principles in R v Turnbull concerning the dangers inherent in relying on identification evidence.
R v Turnbull案的法律原則的核心點在於若控方對被告人的指控，完全或在很大程度上取決於證人對被告人的辨認是否正確無誤，但被告人指稱他被錯誤辨認，則法官在引導陪審團時，必須提醒他們在依賴辨認證據把被告人定罪前，必須小心考慮，因為誠實、有說服力的證人亦可能作出錯誤的辨認。法官同時亦應引導陪審團仔細研究證人是在甚麼情況下辨認被告人，以及向他們指出辨認證據存在甚麼弱點。上訴法庭在不少案件中指出（例如：The Queen v Cheung Ping Kwong (未經匯編) CACC 149/1989; The Queen v Pham Van Hai (未經匯編) CACC 127/1990），區域法院的法官不需要在裁決時，向自己明言發出R v Turnbull案中有關考慮辨認證據的指引，但他必須顯示他已顧及R v Turnbull案的法律原則，即依賴辨認證據定罪的潛在危險。

In this case, the trial judge said in paragraph 44 of the Reasons for Verdict:
在本案中，原審法官在裁決理由書第44段說：

關於如何處理「認人」證據，本席謹記Turnbull案的法律原則。本席亦謹記，單純依賴「認人」證據的危險性。關於「聲音辨認」的證據，本席按相關的陪審團指引行事。」	“As regards how I should deal with the identification evidence, I bore in mind the legal principles laid down in Turnbull.  I also reminded myself of the dangers inherent in relying solely on identification evidence.  As far as the evidence of identification by voice is concerned, I proceeded according to the relevant direction given in a jury trial.”
「

From paragraphs 40 to 43 the trial judge analysed Joyce’s evidence about her visual identification and voice identification.  He was aware that there were unsatisfactory areas in Joyce’s observation of the face of the robber, ie the robber was wearing a cap and a breathing mask; the lighting at the scene was insufficient and Joyce was not able to look at the robber’s face for a significant length of time.  On the other hand, he pointed out that at the material time the surrounding environment was quiet, in the course of the robbery the robber kept on talking with the victims, so Joyce could clearly hear the voice of the robber and notice its special features.  The trial judge was also mindful of the fact that owing to the nature of her work and her training in a course about voice, Joyce was capable of seeing things in places where there was insufficient lighting and recognizing the special features of the voices of strangers.
原審法官亦在第40段至43段分析了Joyce的目視和聲音辨認證供。其中他注意到Joyce觀察賊人樣貌不理想之處，即賊人戴了帽和口罩、案發現場光線不足及Joyce未能長時間注視賊人的樣貌。另一方面他指出，案發時四週環境寂靜，行劫過程中賊人與事主不停對話，Joyce因而能清楚聽到賊人的聲音和留意其特徵。原審法官亦注意到Joyce因工作需要和曾接受聲音方面的訓練，故掌握在光線不足的環境看東西，及辨別陌生人聲音特質的能力。

The trial judge did not spell out in the Reasons for Verdict the guidelines in R v Turnbull in the way in which a judge would direct the jury, but he did not need to do so.  The crucial consideration is whether he had in mind the legal principles contained in the Turnbull guidelines.  It can be seen from the Reasons for Verdict that the trial judge took notice of the dangers inherent in relying on identification evidence to convict a defendant, and knew that he had to carefully consider the relevant evidence.  Although he did not enumerate one by one the evidence about Joyce’s observation at the material time of the appearance of the robber and the special features of his voice when he spoke, he was clearly aware of the strengths and weaknesses in the evidence of visual identification and that of voice identification.  We do not agree with Mr Ma’s submission that the guilty verdict was unsafe because the trial judge did not fully follow the Turnbull guidelines.
原審法官在裁決理由書中沒有像引導陪審團般詳細道出R v Turnbull的指引，但他並不需要這樣做。關鍵的考慮是他是否已顧及R v Turnbull指引所涉的法律原則。從裁決理由書可見，原審法官知悉依靠辨認證據定罪的潛在危險，須小心謹慎考慮相關的證據。雖然他沒有把有關Joyce案發時觀察賊人外貌和說話時聲音的特徵的證供一一臚列，但他顯然明瞭案中目視和聲音辨認證據的强弱。本庭不認同馬大律師指原審法官沒有完全依從R v Turnbull指引，令定罪裁決不穩妥的陳詞。

Mr Ma further submitted that there were defects in Joyce’s identification evidence, but that the trial judge did not consider them.  Joyce’s evidence was that she was sure that the applicant was the robber on the basis of four features: voice, right eye, height and build.  In respect of the feature of voice, Mr Ma submitted that PW4 did not check before the identification parade began what dialect the applicant and the actors spoke, and that the applicant and the actors (except number 2) could not accurately say the specified sentence, but the trial judge failed to seriously consider these defects.  When we were dealing with ground of appeal (1), we already found that these complaints were not substantiated (see paragraph 36 to 42 above).  We are not going to repeat that.
馬大律師也指Joyce的辨認證供有不足之處，而原審法官沒有加以考慮。Joyce的證供是她基於聲音、右眼、身高和體型四項元素，肯定申請人便是賊人。就聲音這項元素，馬大律師提出PW4沒有在列隊認人前查問申請人和戲子操甚麼方言，及申請人和戲子（除2號外）都沒有準確地說出指定的句子，但原審法官沒有認真考慮這些不足之處。本庭在處理第(1)項上訴理由時已指出這些理據不能成立（見上文第36段至42段），不再贅述。

Another complaint raised by Mr Ma was that the trial judge admitted and used evidence about Joyce’s physical reactions to support her voice identification.  He said that in the absence of any support from any scientific or expert evidence, such approach was risky because there could be various reasons for a particular physical reaction.
馬大律師也投訴原審法官接納和引用Joyce的生理反應的證據作為輔助聲音辨認，既欠缺科學或專家證據予以支持，亦是危險的做法，因為產生生理反應的成因有多種。

The evidence relevant to this submission originated from the explanation given by Joyce during her examination-in-chief about why she asked the applicant to repeat the specified sentence.  She said it was because even though when the applicant uttered the sentence the first time, she already found that his voice was the same as that of the robber kept in her memory, for the sake of caution and for the avoidance of any mistake due to nervousness, she asked him to repeat the sentence.  Joyce went on and said, “In addition, from the very moment I heard his voice again, I trembled all over and my heart pumped fast.  The reactions were the same as those I experienced when just now I heard his voice again.  I therefore asked him to say it the third time, for I wanted to be 100% sure.”  (61Q-R of the appeal bundle).  When Joyce was being cross-examined in respect of this part of her evidence, she said, “When I kept on asking [him] to say that, the feeling in my heart, that’s the pumping of my heart and the spontaneous reaction of my body, became intensified and stronger.  This could support, could reinforce me.  I mean even my body could spontaneously reflect that.  What I experienced at that moment really came from my emotional memory and sensory memory.  Yes, it was a kind of supporting...” (91M-O of the appeal bundle).
與這項陳詞有關的證供源於Joyce在主問時解釋，要求申請人重複說指定的句子，是因為雖然第一次已認為申請人的聲音與她記憶中賊人的聲音一樣，但為審慎和避免因緊張出錯，所以要求申請人重複該句子。Joyce接著說：「加上由我再聽番佢把聲嗰一刻開始，我係全身震嘅，我個心亦都跳得好快，同我剛才再聽番佢把聲係同一個反應，所以我要佢講第三次，因為我要100 per cent肯定。」（上訴文件冊61Q-R）當Joyce就此部分證供被盤問時，她說：「而當我一路要[佢]去講嘅時候，我心裡面嘅感覺，即係嗰個心跳同埋個身體自然反應，係愈嚟愈加劇強烈嘅,咁所以呢一個係輔助性地，令到reinforce咗我，即係話我身體自然地都已經反映到，確實係嗰個emotional memory同埋sensory memory當其時出現咗嘅，係喇，佢係輔助性地…」（上訴文件冊91M-O）。

In analysing Joyce’s evidence about how she could identify the applicant, the trial judge said, “Joyce considered that when the defendant uttered the sentence, the volume, tone and pronunciation matched those of the robber perfectly, and in addition, there were the spontaneous reactions which she experienced when she heard him say the sentence (her body trembled and her heart thumped), so she was sure that the defendant was the robber who appeared that night.” (paragraph 43 of the Reasons for Verdict)
原審法官在分析Joyce辨認出申請人的證供時，指出：「Joyce認為，被告人說那句話的聲線、語氣、咬字完全與賊人吻合，加上自己在聽到被告人說那句時的自然反應（身體顫抖和心跳）。所以她肯定被告人是當晚的賊人。」（裁決理由書第43段）

In her evidence Joyce mentioned that when she heard the applicant say the sentence requested by her, her body reacted spontaneously, ie her body trembled and her heartbeat accelerated.  That was her explanation as to why she asked the applicant to repeat the sentence.  She said that these spontaneously arisen emotional reactions reinforced her belief that the voice of the applicant matched that of the robber kept in her memory.  It was not her evidence that she relied on these spontaneous physical reactions to help her conduct the voice identification, and the trial judge in giving his verdict did not say that her spontaneous physical reactions formed part of the basis on which she identified the applicant.  We consider that this complaint from Mr Ma sprang from his misunderstanding of Joyce’s evidence and the trial judge’s reasons for verdict.
Joyce在作供時提及當她聽到申請人說她要求的句子時，出現身體顫抖和心跳加速的自然反應，是為解釋何以要求申請人複述該句子。她指出這些自然的情緒反應令她更加肯定申請人的聲音吻合她記憶中賊人的聲音。Joyce的證供不是說她依賴這些身體的自然反應協助她進行聲音辨認。原審法官在裁決時亦不是指Joyce的身體自然反應是她辨認出申請人的基礎之一。本庭認為馬大律師這項投訴是基於對Joyce的證供和原審法官的裁決理由的錯誤理解。

As for his right eye, which was another identifying feature, the defects pointed out by Mr Ma were that at the material time Joyce had only stolen a glance at the eyes of the robber which lasted only a short moment of time, that she could only give a simple description of his right eye, that she did not notice whether the robber’s left eye had any special feature, and that she did not notice whether he was wearing spectacles.
有關右眼這項辨認元素，馬大律師提出的不足之處有Joyce案發時只是短時間偷看賊人的眼睛，她只能簡單地描述他的右眼，她沒有注意賊人的左眼的任何特徵，及沒有留意他有沒有戴眼鏡。

Joyce’s evidence was that in the course of the robbery, which lasted 25 to 30 minutes, she had looked at the face of the robber in a face-to-face position for about five seconds (55J of the appeal bundle), and that at the rest of the time she had seen the face of the robber four or five times, not in a face-to-face position, each time for about three seconds (55M, 56B-J, 57K-P and 58A-C of the appeal bundle).  She also mentioned one occasion on which she walked and got to a position in front of the robber, where she stole a glance at him at close range.  At that moment the lighting was quite good and she clearly saw the right eye of the robber (48B-J, 48R-T of the appeal bundle).  Her description of his right eye was that it was small and slender, like a piece of thread and expressionless, and that there was a bulging eye-bag (58G, 74H of the appeal bundle).  When being cross-examined, Joyce explained that she was looking for a chance to have a look at the robber.  When she saw his right eye at a short distance, she focused on his eye; because of that she did not pay attention to whether he was wearing spectacles, but she had about two seconds to look clearly and closely at his right eye (73A-R, 75M-V of the appeal bundle).
Joyce的證供指在約25至30分鐘的行劫過程中，她曾正面看到賊人的面部約5秒（上訴文件冊55J），其他時間曾4、5次非正面看賊人的面部，每次約3秒（上訴文件冊55M，56B-J，57K-P和58A-C）。她亦提及其中一次當她行經賊人面前，近距離地偷看了他，當時光線頗亮，她能清楚看到賊人的右眼（上訴文件冊48B-J、48R-T）。她描述賊人的右眼細、長，好像一條線，眼肚浮腫和沒有神采（上訴文件冊58G、74H）。在接受盤問時，Joyce表示她是找機會偷望賊人，當她近距離望見他的右眼時，由於注意點集中在他的眼，故沒有留意他是否戴著眼鏡，但她有約兩秒時間可以清楚仔細地看到賊人的右眼（上訴文件冊73A-R、75M-V）。

In view of the circumstances in which the crime occurred and the fact that the robber was wearing a cap and a breathing mask, Joyce’s observation of the face of the robber must have been subject to certain limitations.  The trial judge in giving his verdict did not overlook this point.  He noticed that Joyce’s visual observation was not the most satisfactory type.  On the other hand, even though Joyce could see the robber’s right eye only when she stole a glance at him, the observation was done at a close distance when the lighting was quite good.  It was clear and close observation.  There was evidential basis for the trial judge to accept her identification evidence about the right eye.  Moreover, Joyce observed that the robber’s right eye was small and slender, like a piece of thread.  She did not describe the eyelid, the white of the eye or the pupil.  There was nothing to be criticized.  We do not agree with Mr Ma’s criticism that her description of the robber’s right eye was too simple.
基於案發時的客觀環境和賊人戴上帽和口罩，Joyce對賊人樣貌的觀察必然有局限性。原審法官在裁決時亦沒有忽略這點，他注意到Joyce的目視觀察並非最理想。另一方面，雖然Joyce只是偷望賊人的時候看到他的右眼，但她是在近距離、光線頗亮的情況下作出清楚和仔細的觀察，原審法官有證據基礎接納她基於右眼的辨認證供。再者，Joyce的觀察是賊人的右眼細、長，像一條線，她沒有形容他的眼簾、眼白或瞳孔，沒有可詬病之處，本庭不同意馬大律師指她對賊人的右眼的描述太過簡單的批評。

Turning now to the height of the robber, which was also an identifying feature, Joyce gave evidence that the robber was taller than her by 4 cm.  Mr Ma complained that when Joyce gave evidence she forgot whether the actors on the identification parade were wearing shoes or not, and that the height of the heels might affect the height of the robber and the actors, and that therefore Joyce’s identifying the applicant as the robber by relying in his height was unreliable and might be mistaken, but that the trial judge did not consider this defect.
至於身高這項辨認元素，Joyce的證供是賊人較她高約4 cm。馬大律師批評Joyce作供時忘記了認人行列中的戲子有沒有穿鞋，而鞋跟的高度有可能影響賊人和戲子的高度，因此Joyce以身高確認申請人是賊人不可靠，有可能出錯，但原審法官沒有考慮這不足之處。

We do not accept this submission.  First of all, when Joyce was asked during cross-examination about the shoes worn by the robber during the commission of the crime, she described them as dark colour shoes and “heelless”, and it was because he did not make any sound when he was walking (77A, M-O of the appeal bundle).  The defence did not put it to her that this observation was incorrect or unreliable.  Therefore, in the present case there was no evidence which showed that the shoes worn by the robber could affect Joyce’s observation of the height of the robber.  Secondly, although when Joyce gave evidence she forgot whether the actors on the parade were wearing shoes or not, in this case there was no evidence which showed that during the identification parade only the applicant was wearing shoes while the actors were not, nor was there evidence that the heels of the shoes the applicant wore were higher than those of the shoes worn by the actors so that Joyce’s judgement as to height during the identification parade was affected.
本庭不同意這項陳詞。首先，Joyce在接受盤問時，被問及賊人犯案時穿的鞋子，她描述是深色鞋和「冇踭」，因為他走路時沒有發出聲音（上訴文件冊77A、M-O）。辯方沒有向她指出這項觀察不確或不可靠。案中因而沒有證據顯示賊人穿的鞋會影響Joyce對賊人高度的觀察。其次，雖然Joyce作供時忘記了認人行列中的戲子有沒有穿鞋子，但在本案中根本沒有證據顯示進行列隊認人時，只有申請人穿鞋而戲子們沒有穿鞋，又或是申請人穿的鞋比戲子穿的鞋較高跟，從而影響Joyce在目視辨認時就身高這點的判斷。

Finally, we come to build, which was yet another identifying feature.  Joyce’s description was that the robber was of medium build and not muscular.  Mr Ma submitted that the thickness of the clothes worn by a person could impact on other people’s impression of his build.  However, Joyce’s evidence was that the robber was not wearing loose-fitting clothes, and that at the material time the weather was warm and somewhat hot (78M-Q, 79F-K of the appeal bundle).
最後有關體型這項辨認元素，Joyce描述賊人的身型中等、不健碩。馬大律師指衣服的厚薄會影響別人對他的體型的觀感。然而，Joyce的證供指賊人不是穿著鬆身的衣服，及案發時天氣溫暖、有點兒熱（上訴文件冊78M-Q、79F-K）。

Mr Ma also submitted that Joyce said in her evidence that she noticed that when the applicant was standing in a line with other people, he deliberately put on the appearance that one of his shoulders was higher than the other one, but that PW4 did not see this.  He said the evidence of these two witnesses contradicted each other in this respect and it was questionable whether Joyce really saw that the applicant stood there with one of his shoulders higher than the other.  Mr Ma criticized the trial judge for his failure to address this discrepancy and defect and for his not giving the benefit of the doubt to the applicant.
馬大律師也提出，Joyce作供時提及留意到申請人在認人行列中站立時，刻意假裝高低膊，但PW4沒有看到這個情況，兩人在這方面的證供出現矛盾，令人質疑Joyce是否真的看見申請人以高低膊的姿勢站立。馬大律師批評原審法官沒有解決這項分歧和不足之處，及沒有把疑點的利益歸於申請人。

We must first point out that whether the applicant was standing with one shoulder higher than the other was a matter about his standing posture and did not have any necessary connection with Joyce’s use of his build as one of the identifying features.  Furthermore, although during cross-examination the defence did ask Joyce the question why her identification would not be affected by the fact that the applicant was standing with one of his shoulders higher than the other one, whereas the robber’s shoulders were not like this, it was not put to her that when she was viewing the parade, the applicant did not stand with one shoulder higher than the other, nor was it put to her that her observation in this respect was not accurate, or that her evidence was untrue.  The raising of this point by the applicant during the appeal was actually an attack on Joyce and the credibility of her evidence.  However, judging from the evidence of this case as a whole, the discrepancy between the evidence of Joyce and that of PW4 about the standing posture of the applicant when he was standing in a line with other people did not affect Joyce’s integrity as a witness, nor did it undermine the credibility and reliability of her identification evidence.  This is because standing posture was not one of the features she relied on for making the identification, and also because in her evidence there was clear and detailed description and explanation about the four identifying features which she relied on.  There was a sound evidential basis on which the trial judge could accept Joyce’s evidence, including her identification evidence, and rely on such evidence to reach the guilty verdict.  In conclusion, we do not agree that there were serious defects in Joyce’s identification evidence which the trial judge did not take into consideration so that the guilty verdict was rendered unsafe.
本庭首先須指出，申請人是否以高低膊的姿勢站立，是站姿的問題，與Joyce以體型作為其中一項辨認元素沒有必然的關係。其次，辯方在盤問Joyce時雖然有問及由於申請人以高低膊的姿勢站立，但賊人不是高低膊，這點為甚麼不會影響她進行辨認，但卻沒有向Joyce指出，申請人在她進行列隊認人時沒有以高低膊的姿勢站立，或指出她這方面的觀察不準確，或她的證言失實。申請人在上訴時提出這項陳詞，實質上是針對Joyce及其證言的可信性。然而，從本案的整體證據看來，Joyce和PW4有關申請人在認人行列中的站姿的分歧，不會影響Joyce作為證人的誠信，亦不會削弱她辨認證供的可信性和可靠性。這除了是因為站姿並非Joyce依賴作出辨認的元素之一，亦因為她的證供對所依賴的四項辨認元素的基礎，提供了清晰詳細的描述和解釋。原審法官有充份的證據基礎，接納Joyce的證言，及採納她的辨認證供，並依賴它作出定罪的裁決。總括而言，本庭不同意Joyce的辨認證供有着嚴重不足，及原審法官沒有加以考慮，以致定罪裁決不穩妥。

Under ground of appeal (2) Mr Ma further submitted that Joyce identified the applicant by relying on four features, namely his voice, his right eye, his height and his build, that in her evidence she said the weight she assigned to them was respectively 55%, 20%, 12.5% and 12.5%, and that she concluded that the applicant was the robber only when all four features matched those of the robber.  According to Mr Ma, this showed that Joyce’s identification evidence was not entirely certain, so there was bound to be doubts when it was used as the basis of the conviction.
馬大律師在第(2)項上訴理由下亦提出，由於Joyce是憑仗聲音、右眼、身高和體型四項元素辨認出申請人，而她作供時指它們各佔的比重分別為55%、20%、12.5%和12.5%，以及她是在四項元素都吻合的情況下才會確定申請人是賊人，這就表示Joyce的辨認證據並非是完全肯定的，採納它作為定罪的基礎必然造成疑點。

We consider that this submission is wholly untenable.  The circumstances in The Queen v Yip Moon Ting & Another [1984] HKLR 443, which Mr Ma prayed in aid, were utterly different from those of the present case.  In that case, when the witness was under cross-examination, he indicated that when he identified the second applicant of that case as one of the robbers, he was 60% to 70% sure; and in re-examination he further said he was not able to be 100% sure.  In view of this, the Court of Appeal remarked in the judgment (446B-C) that in making identification a witness was either sure or he was not, and could not be 60% to 70% sure.  In the present case, Joyce repeatedly said that she was totally sure that the applicant was the robber and that she had made no mistake about it.  The 55%, 20%, 12.5% and 12.5% only represented the respective weight she assigned to the four identifying features which she relied on in making the identification.  In The Queen v Sung Kwok Man & Another [1994] HKCLR 164, the Court of Appeal held that an identification could be founded on more than one human sense and that an identification made in this way could be more reliable than one which depended on one sense alone.  In that case, during the course of an identification parade, one of the victims said that she was not sure whether the person who raped her was on the parade, she asked each member of the parade to say some words which one of her rapists said when she was forcibly taken away by them.  Having heard them utter these words, she identified the second applicant.  The Court of Appeal held that the trial judge had correctly admitted such identification evidence and that it was not necessary for the trial judge to give the jury a separate Turnbull direction in respect of the voice identification.
本庭認為，這項陳詞完全不能成立。馬大律師援引的The Queen v Yip Moon Ting & Another [1984] HKLR 443與本案的情況廻然不同。在該案中，證人被盤問時，表示當他辨認出案中第二申請人是其中一名劫匪時，他是60%至70%肯定，而在覆問時，他亦說他不能100%肯定。有見及此，上訴法庭在判案書中（446B-C）指出，證人作辨認時，一是肯定，一是不肯定，不能是60%至70%肯定。在本案中，Joyce多次表示她完全肯定申請人是賊人，不會認錯人。她提及的55%、20%、12.5%和12.5%，只是四項辨認元素對她作出辨認時的影響所佔的比重。在The Queen v Sung Kwok Man & Another [1994] 1 HKCLR 164，上訴法庭裁定，證人是可以依賴多種感官進行辨認，而這樣做有可能較單靠一種感官進行辨認更可靠。在該案中，其中一名受害人在列隊認人過程中，表示不能肯定强姦她的人是否在認人行列中，她要求各人說出一句其中一名强姦她的人在擄走她途中說過的話，在各人說了那句話後，她認出第二申請人。上訴法庭裁定原審法官接納上述的辨認證據正確無誤，並裁定原審法官不需要就聲音辨認部分另外向陪審團給予R v Turnbull的指引。

The circumstances in the present case were similar to those in Sung Kwok Man.  Joyce similarly relied on more than one human sense in making identification.  Her evidence was that in making identification she mainly relied on voice, and for the rest she relied on visual observation.  There was nothing wrong for Joyce to found her identification on this basis.  Indeed, its accuracy and reliability could be higher than an identification founded on what was seen or what was heard alone.
本案的情況與Sung Kwok Man案相若。Joyce亦是依賴多於一種感官作出辨認。她的證供顯示她較大部分依賴聽聲音作出辨認，其餘依靠目視觀察作辨認。Joyce這樣的辨認基礎並無不妥，相反，其準確和可靠程度有可能較單純以目視或以聲音作辨認來得更高。

The applicant’s ground of appeal (2) is not established either.
申請人的第(2)項上訴理由亦不能成立。

Conclusion
結論

For the above reasons, we hold that the application for leave to appeal against conviction shall be dismissed.
基於上述理由，本庭認為申請人就定罪提出的上訴許可申請應予以撤銷。

由法律援助署署長委派陳進安鍾海英律師行轉聘馬家颿大律師代表。	Mr Henry Ma, instructed by C O Chan & Co., assigned by the Director of Legal Aid, for the Applicant.
申請人：

Mr Simon Tam SC, Senior Assistant Director of Public Prosecutions, of the Department of Justice, for the Respondent.
答辯人：由律政司高級助理刑事檢控專員覃民輝資深大律師代表。