Leong J. (delivering the judgment of the Court):
原訟庭法官梁紹中（宣讀上訴法庭判案書）﹕

The applicant, LAI Wai-cheong, was convicted on two counts in the District Court, namely on the third count of Conspiracy to defraud and on the fifth count of Inviting another person to vote at an election, knowing that such person has made a false statement for the purpose of registering as a voter, contrary to s.14(1)(aa) of the «Corrupt and Illegal Practices Ordinance» (Cap. 288) of the Laws of Hong Kong. The district judge fined him 4,000 dollars on each of the two counts. The applicant now applies for leave to appeal against conviction on the two counts and to have the convictions quashed.
申請人黎偉昌在區域法院被裁定兩項控罪罪名成立。即控罪第三項﹕串謀詐騙罪和第五項﹕明知他人為了登記為選民已作出虛假的陳述﹐而在選舉中促請該人投票﹐違反香港法例第288章《舞弊及非法行為條例》第14(1)(aa)條。區域法院法官判他兩項罪名每項罰款4,000元。申請人不服﹐現針對兩項判罪提出申請上訴許可﹐要求推翻原判。

According to the facts admitted by both the prosecution and the defence during the trial, the applicant was one of the candidates in the Tai Po Market District Board Election in June 1994. The legislation provides that only those who have registered as voters in the Tai Po Market constituency may vote in that constituency at that election. For a person who wishes to apply for registration as a voter in that constituency, his principal place of residence has to be within the boundary of that constituency. He must sign and fill in his particulars in his application, including his principal place of residence.
根據控辯雙方於審訊時承認的事實﹐申請人是1994年6月大埔墟區議會選舉候選人之一。根據法例﹐只有在大埔墟選區正式登記為該區選民﹐才可以在該選區該次選舉中投票。要申請登記為該區選民的人的主要寓所地址﹐必須在該選區範圍內。並須簽署及填上申請人的詳情﹐包括主要寓所地址。

The evidence in support of the charges came mainly from the evidence of PW3 and Exhibit No.5. PW3 stated that he had known the applicant and the applicant's wife since childhood. He addressed the applicant as elder brother. In June 94, the applicant telephoned the witness and said that he was to stand for the Tai Po Market District Board membership election. He requested the witness to vote for him and to provide personal particulars to him. The witness subsequently gave his personal particulars to the applicant's wife.
支持控罪的証據主要是控方第三証人的証言和第五號証物。第三証人稱﹐他從小就認識申請人和申請人太太。他稱申請人為兄長。於94年6月申請人致電給証人﹐說他參選大埔墟區議會議員﹐要求証人投他一票﹐並且提供個人資料給他。証人其後將個人資料交給申請人的太太。

At that time, the applicant knew that the witness lived in Nam Wah Po Tsuen, which was outside the Tai Po Market constituency. The witness also told the applicant over the phone that he used to vote at Nam Wah Po Tsuen. However, the applicant said that he could arrange for the witness to vote at Tai Po Market. The witness said that he had never applied for the registration nor signed on any registration form. Although his name appeared on Exhibit No.5 (Change of Address Form), he was not the one who signed it. He had never lived at the address shown in the form, i.e. M/F, 4 Wai Yan Street. On the polling day, he saw the applicant at the polling station. The applicant asked him to vote for the applicant.
當時﹐申請人是知道証人住在大埔墟選區外的南華甫村。証人在電話中亦告訴申請人他一向是在南華甫村投票的。但申請人稱他可以安排証人到大埔墟投票。証人稱他從沒有申請登記或簽署過登記表格。雖然証物5號（更改地址表格）有他的名字﹐但簽名的不是他。他從來沒住過表格上所填的地址 - 即懷仁街4號閣樓。在投票當日﹐他在投票站見到申請人。申請人叫他投申請人一票。

The witness stated that on the day when the applicant telephoned him, he had said, "Yuen Chai, I am Cheong Ko. I want to stand for the District Board membership election in Tai Po Market (constituency)." Then they discussed something including the address of the witness. He recognised the person on the phone as the applicant because he clearly said, "I am Cheong Ko."
証人稱當日申請人打電話給他時﹐曾說﹕「源仔﹐我係昌哥﹐我想係大埔墟區個度競選做區議員。」其後﹐他們討論証人的住址等問題。他認出對方是申請人﹐因為他說明「我係昌哥」。

As regards the allegation that the person on the phone had said "I am Cheong Ko", the applicant did not take issue, and there was no evidence to show that it was not true either. However, the applicant in his defence denied that he had talked with the witness on the telephone or asked the witness to vote for him.
對於証人說對方在電話中曾說「我係昌哥」一點﹐申請人未能提出爭議﹐也沒有証據顯示這不是真實的。不過﹐申請人自辯﹐否認曾與証人在電話交談和叫証人投他一票。

The trial judge accepted the evidence of PW3. The judge found that the applicant had telephoned the witness, and the witness agreed to support the applicant to stand for the District Board membership election in the Tai Po Market constituency and also gave his personal particulars to the applicant's wife. The applicant knew that the principal place of residence of the witness was not within the boundary of the Tai Po Market constituency but he registered for the witness with a false address so that the witness could become a voter in the Tai Po Market constituency and then nominate the applicant as a candidate to stand for the District Board membership election in that constituency. Subsequently, the applicant, knowing that the witness could not vote legitimately in the Tai Po Market constituency, still invited the witness to vote there. Therefore, the act of the applicant was sufficient to constitute the two offences.
主審法官信納第三控方証人的証言﹐裁斷申請人曾致電話給証人﹐証人同意支持申請人在大埔墟選區參選為區議員。並將他的個人資料交給申請人的太太。申請人知道証人的主要寓所﹐並非在大埔墟選區範圍內。卻用假地址替証人登記﹐以便証人能成為大埔墟選區的選民。從而可以提名申請人為候選人﹐參選該區區議員。其後申請人﹐更明知証人不可能合法地在大埔墟選區投票﹐仍促請証人在該處投票﹐所以申請人的行為足以構成兩項控罪。

The grounds of appeal touch on various aspects.
上訴理由有多方面。

There was no evidence to prove that the applicant did conspire with LAU Cham-yuen to defraud the Registration and Electoral Office;
無証據証明申請人曾串同劉湛源詐騙選舉事務處﹔

The judge did not remind herself to be particularly prudent handling the reliability of the identification evidence;
法官沒有就認定証據的可靠性﹐提醒自已須要特別謹慎﹔

The judge wrongly used the contents of the telephone conversation between the witness and "Cheong Ko" as grounds for conviction;
法官錯誤的以証人和「昌哥」電話談話內容﹐支持定罪﹔

Without any legal justification, the judge stopped the lawyer for the appellant from cross-examining the witness on how he was able to recognise the voice of the applicant;
法官無法理依據﹐阻止上訴人代表律師就証人如何能認出申請人的聲音盤問証人﹔

The prosecution did not have any evidence to prove that the applicant did invite the witness to vote. The fifth count was not proved.
控方沒有証據証明申請人有促請証人投票。第五項罪名是不成立的。

A conspiracy offence involves two or more persons who have reached an agreement to do an unlawful act or to do a lawful act by unlawful means.  It is not easy to prove a conspiracy offence. Usually, there are only two ways. The first one is for the conspirators to confess to the police and disclose that they have reached an agreement with the other person(s) to carry out an unlawful practice, or for one of the conspirators to give evidence against the other parties to the conspiracy and reveal what agreement has been reached. The second way is to draw an inference from the subsequent acts of the conspirators as to whether they have previously reached an agreement and then carried it out accordingly. The court can objectively analyse and draw the appropriate inference from proven or undisputed facts.  If the only reasonable conclusion that can be drawn is that the conspirators must have reached an agreement, or else a series of acts would not have been carried out, then this is sufficient proof.   With regard to the first ground, the evidence accepted by the judge covered not only the telephone conversion between the witness and the applicant, but also the undisputed facts including the obtaining of the witness’s personal particulars by the applicant’s wife, the change of residential address form which had not been signed by the witness, the form signed by the witness for nominating the applicant to be a candidate, the vote given for the applicant by the witness in the Tai Po market constituency, etc. The judge was entitled to draw an inference from these facts. The evidence for the third count of conspiracy to defraud turns on the proof of the existence of a dishonest agreement between the applicant and the witness in arranging the witness, who lived at Nam Wah Po Tsuen, Tai Po, to vote in the Tai Po Market constituency by fraudulent means together with the proof that the applicant was party to this agreement. The evidence accepted by the judge was sufficient to prove that the applicant knew that the witness lived outside the Tai Po Market constituency, that it was impossible for him to vote in that constituency and that therefore, he made an agreement with the witness to arrange for the witness to be a voter in the Tai Po Market constituency so that the witness could nominate the applicant to be a candidate and finally vote in the Tai Po Market constituency. To achieve this objective, it was necessary to register a false address for the witness. Thus, there was sufficient evidence for the judge to draw such inference. The decision on this point is unchallengeable. The first ground of appeal does not stand.
串謀罪是涉及兩個人或以上達成協議去進行一些非法的行為或以非法的手段進行一些合法的行為。要証明串謀罪並不容易。通常只有兩種方法。第一﹐就是串謀者向警方自白﹐供出曾與其他人士達成協議去進行非法勾當或其中一個串謀者﹐指証其他有份串謀的人士﹐說出當時所達成什麼協議。第二﹐就是從串謀者他們其後的所作所為﹐去推論他們是否曾經達成協議﹐然後將之付諸實行。法庭是可以從已証明或不爭議的事實﹐用客觀分析及作出適當推論。如果所得的唯一合理結論是串謀者必然曾經達成協議﹐否則不會進行一連串的行動﹐那麼便是足夠的証明了。就第一點而言﹐法官信納的証據﹐不謹是証人與申請人的電話談話﹐還包括申請人太太取得証人的個人資料﹐証人沒有簽署的更改寓所地址表格﹐証人所簽署提名申請人為候選人的表格﹐還有証人在大埔墟選區投申請人一票等沒有爭議的事實。法官有權從這些事實作出推論。要証明第三項串謀詐騙罪﹐關鍵在於証明申請人與証人之間存著一項不誠實的協議﹐用欺騙方法安排身居大埔南華甫村的証人到大埔選區投票。而申請人有參與此項協議。法官所信納的証據﹐足以証明申請人知道証人在大埔墟選區以外居住﹐沒有可能在該區投票﹐所以與証人協議﹐安排証人成為大埔墟選區選民﹐以便証人可以提名申請人為候選人﹐最後在大埔墟選區投票。若要達致此目的﹐必須以虛假地址為証人登記。所以法官有足夠証據支持她作出如此推論﹐這項裁決﹐是無可質疑的。上訴第一點理由不成立。

As to the second and third grounds, counsel for the applicant cited R v. Chan Wan Cheung & Li Ka Leung (Cri. App. 664/95). He submitted that the judge did not state in her judgment that in considering the identification evidence of the witness, she had followed the guidelines in Turnbull. Hence, no thought was ever given to the danger of supporting a conviction with this kind of evidence, and the conviction of the applicant was unsafe. In the case of Chan Wan Cheung & Anor, the Court of Appeal held that in trying cases involving identification evidence, if the Turnbull guidelines were not expressly quoted in the judgment, the district judge should at least give an indication, either expressly or by implication, that he had all along had in mind the danger of supporting a conviction with this kind of evidence. If this was not done, the conviction might be considered as unsafe and thus might be quashed.
至於第二和第三點﹐申請人代表大律師引述R v. Chan Wan Cheung & Li Ka Leung (Cri.App.664/95)為例。指法官在判詞中沒有說明她已遵照Turnbull一案的指引﹐考慮証人的認定証據。因此沒有顧慮以此類証據支持定罪所存在的危機﹐申請人的判罪是不穩當的。上訴法院在Chan Wan Cheung & Anor一案認為﹐地方法院法官在審理牽涉認定証據的案件時﹐如果沒有在判詞中明文引述Turnbull指引﹐最少應以明文或暗示方式﹐表示法官一直有顧慮以此類証據支持定罪的危險性。如果沒有這樣做的話﹐判罪可能被認為不穩當而被推翻。

This Court agrees that the Turnbull guidelines are applicable to evidence of identification of appearance or voice, and they should be followed. However, the case of Turnbull was decided in the light of special circumstances where the identifying witness only had a fleeting glance of the suspect or heard the voice of the suspect for a short time and subsequently pointed out a stranger or an unfamiliar person based on what he had seen or heard. If the identifying witness and the suspect were already well acquainted, and the identification was solely based on their previous association, the judge need not follow the guidelines in Turnbull. The Court of Appeal had clearly indicated this point in the case of R v. Cheung Hay Din & Ors [1991] 1 HKC 250. The witness in this case knew the applicant and was also familiar with his voice and his manner of talking over the phone. Based on these two aspects, he recognised that it was the applicant who telephoned him. Therefore, the situation is not within the scope of the guidelines set down in the Turnbull case. Moreover, although the judge did not expressly state in her judgment that she had followed those guidelines and reminded herself of the need to deal with the identification evidence of the witness prudently, this does not indicate that the judge had overlooked this point. In the case of R v. Chau Chun Kwong (Cri. App. Case 142/95), Power, V.-P. of the Court of Appeal, pointed out, "A District Court judge is not required to deal with every single aspect of the evidence placed before him as long as he makes it plain that he has considered all of that evidence when coming to his conclusion." As counsel submitted, counsel for both parties at the trial had already stressed in their submissions to the trial judge the significance of the identity of the caller. In her judgment, the judge also indicated that she fully understood the focus of this case was on whether the person who telephoned the witness was the applicant. Before drawing her conclusion, she had taken all the evidence into consideration.
本法庭同意Turnbull一案的指引﹐對以外貌或聲音作指認的証據都適用﹐而指引是應該加以遵循的。不過Turnbull一案是針對辨認証人只能在一剎那間見到可疑人外貌或短時間聽過可疑人口音﹐而事後憑所見過或聽過的去指出陌生人或不熟悉的人的特殊情況。如果辨認証人與可疑人本來已互相熟悉﹐認出他是純粹基於兩人以前的交往﹐這樣﹐法官是毋須跟隨Turnbull的指引。這一點上訴法院已在R v. Cheung Hay Din & Ors [1991]?1 HKC?250一案清楚地指明。本案証人是認識申請人又熟悉他的聲音及說電話時的習慣﹐根據這兩方面﹐他認出是申請人致電話給他。因此﹐這種情況不是在Turnbull案指引範圍內。再者﹐法官雖然沒有在判詞明文指出她已遵從該指引﹐自我警惕應對証人的指認証據審慎處理﹐但這並不表示法官忽略此點。在R v. Chau Chun Kwong (Cri.App.Case?142/95)一案﹐上訴法院鮑偉華副院長指出﹕「地方法院法官是不須要處理庭上証據的每一方面。他只須要明顯地表示他是考慮全部的証據後才下結論。」正如大律師所述﹐雙方律師在向主審法官的陳詞中已強調誰是來電人的重要性﹐法官在判詞中﹐亦充分表示出她完全掌握本案的焦點在於致電証人者是否申請人。在下結論前﹐她已考慮所有証據。

The witness had known the applicant for years, and naturally he could recognise the applicant’s voice. The witness also said that usually when the applicant telephoned him, he would always identify himself first. If the person on the phone said, "I am Cheong Ko", the witness would immediately recognise him as the applicant. On that day, the person on the phone said that he was "Cheong Ko", and the conversation lasted for some time. There was a discussion about the witness's place of residence, and therefore it was not a brief conversation. By his own experience and from the manner and voice of the applicant in talking over the phone, the witness identified the one who telephoned him as the applicant. The judge was satisfied with this piece of evidence beyond reasonable doubt. In addition, right after the telephone conversation, the applicant’s wife collected the personal particulars of the witness and told the witness when to vote. This could support the witness’s version. The findings of the judge in this area are unchallengeable. There is nothing improper for the judge to use it as corroborative evidence.
証人與申請人相識多年﹐當然可以認出申請人的聲音。而且証人說﹐通常申請人來電話﹐必定先講出自已是誰。如果對方說「我係昌哥」的話﹐証人就立刻認出是申請人。那日﹐電話中的人說他是「昌哥」而且交談維持一段時間﹐討論過証人的住址。所以不是簡單的交談。証人憑他的經驗及申請人講電話的習慣和聲音﹐認定打電話給他的是申請人。這點証言﹐法官毫無疑問的信納為真實。而且緊接電話談話後﹐申請人的太太收取了証人的個人資料﹐並告訢証人何時往投票。這點可以支持証人所說。法官在這方面的裁斷﹐是無可質疑。法官以此支持定罪。並無不當。

As to the fourth ground, the notes of proceeding show that the question raised by the defence and objected to by the prosecution was a hypothetical one. It was not a question based on the facts for the prosecution or points raised by the defence. It was unfounded and kind of fishing expedition. It was not necessary for the witness to answer this type of questions. The judge has the responsibility to guard against abusing the right of cross-examination and has the right to stop this type of questions. The notes of proceeding show that apart from stopping the applicant from asking this question, the judge did not prevent the applicant from further questioning. However, counsel for the applicant at the trial did not further pursue this line of cross-examination. There is nothing improper for the judge to act as she did in accordance with the law.
至於第四點﹐聆訊記錄顯示當時控方所反對的辯方問題是一項假設性問題﹐不是根據控方案情或答辯而發問的問題﹐是無根據而屬乎探索性的問題。對此類問題﹐証人是毋須回答。法官有責任防止一方濫用盤問權利﹐並有權制止發問此類問題。聆訊記錄顯示﹐法官除阻止申請人提問此題之外﹐並無阻止申請人續問﹐但申請人代表律師沒有跟進﹐放棄盤問。法官依法如此行事﹐並無不當。

Counsel for the applicant pointed out that on the polling day, the witness had already decided to vote for the applicant. The prosecution did not have any evidence to prove that the applicant had "invited" the witness to vote. Counsel submitted that both "invite" and "induce" had the same definition, meaning to "procure", "lead" or "solicit" the act of others. He referred to the definition of the word "induce" given by Li J. in the case of Law Ming Tak @ Law Tak v. The Queen (Cri. App. 266/75) to support his argument. In that case, Li J. was of the opinion that the words "induce", "invite" and "incite" all had the same connotation. That is to say, all of them basically bore the meaning of "solicit or encourage", "affect” or "stimulate". Counsel pointed out that in this case, the witness had already decided beforehand on how to vote, whether the witness would vote or how he should vote was not affected by the applicant. Therefore, the applicant did not "invite", and the fifth count was not proved.
申請人代表大律師指投票當日﹐証人早已決定往投申請人一票﹐控方沒有証據証明申請人「促請」証人投票。大律師謂「促請」與「誘使」有相同定義﹐意思是「促致」﹐「誘導」或「游說」他人的行為。他並引用Law Ming Tak @ Law Tak v. The Queen (Cri.App.266/75)一案李福善大法官對「誘使」一詞所下的定義﹐以支持他的論據。在該案﹐李大法官認為「誘使」﹐「促請」 和「煽惑」各詞﹐都有相同的含義。即基本上有「游說或慫恿」﹐「影響」或「激發」的意思。大律師指出在本案中﹐証人早已決定如何投票﹐証人投票與否或如何投票是不受申請人影響﹐所以申請人沒有「促請」﹐第五項罪名是不能成立的。

The evidence accepted by the judge sufficiently proved that the applicant knew that it was not possible for the witness to vote legitimately in the Tai Po Market constituency. Since the applicant had reported a false residential address for the witness, the witness became eligible to vote at the polling station of that constituency on the polling day. The judge also accepted that the applicant had, at that polling station, asked the witness to vote for him. By inviting the witness to vote in false circumstances, the applicant committed the fifth count on the indictment. It was immaterial that the witness by that time had determined to vote or had decided on whom to vote for. The elements of this offence hinged not on what the witness thought at that time but on whether the applicant knew the false identity of the witness and whether he had invited the witness to vote in such a manner. The act of inviting was sufficient to constitute the offence. The last ground of appeal also does not stand.
法官所信納的証據﹐已確實証明申請人知道証人不可能合法地在大埔墟選區投票﹐後來因為虛報了証人的寓所地址,証人才能在投票日到該選區投票站投票。法官亦信納申請人在該投票站曾叫証人投他一票。因此﹐申請人是在虛假的情況下仍邀請証人投票﹐他已干犯第五項控罪。証人當時已決心投票或決定投誰人票是無關重要的。此項罪名的因素不在於証人當時的心態而在於申請人是否知道証人的虛假身份和是否有促請証人如此投票。邀請的行為足以構成控罪。最後一點上訴理由亦不成立。

In the premises, the application for leave to appeal is refused.
基於以上所述﹐申請上訴許可駁回。

Mr. Harry Macleod, Deputy Director of Public Prosecutions, and Mr. Robert Lee, Senior Government Counsel for HKSAR/Respondent
上訴答辯人﹕ 律政司副刑事檢控專員麥禮諾﹑高級政府律師李紹強代表

Mr. C.S. Fu instructed by M/S Fan & Fan for the Applicant
上訴申請人﹕ 范仲瑜律師行傅昶生代表