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

Introduction
引言

The applicant (Man Shun Tai) was charged with one charge of attempted burglary.  He pleaded not guilty and was tried before HH Judge Stanley Chan (“the trial judge”).
申請人（文順泰）被控一項企圖入屋犯法罪。他否認控罪，並在區域法院法官陳廣池（原審法官）席前受審。

On 16 February 2015, the trial judge found the applicant guilty and on the same day sentenced him to imprisonment of three years and six months.  The applicant was aggrieved at his conviction.  On 4 March 2015, he applied for leave to appeal against conviction.
2015年2月16日，原審法官裁定申請人罪名成立，並在同日判他入獄3年6個月。申請人不服定罪，並在2015年3月4日提出上訴許可申請，要求法庭批准他就定罪上訴。

On 9 December 2015 a single judge of the Court of Appeal dismissed his application.  The applicant does not give up and he applies again for leave, hoping that he would be allowed to appeal against his conviction.
2015年12月9日，上訴法庭單一法官駁回申請。申請人仍不服，並重新提出上訴許可申請，希望能獲准就定罪上訴。

Prosecution case and evidence
控方的立場及證據

The prosecution alleged that in the evening of 16 August 2014 the applicant and another person, who is at large, acted furtively near no. 23 Bisney Road, Pokfulam and that they were being watched by police officers who were conducting an anti-burglary operation there.  One of the officers, PC 12073, saw that the applicant climbed up a drainpipe to the outside of a residential unit on the 1st floor of no. 23 Bisney Road.  PC 12073 said that the applicant attempted to open a window of the unit with his hand but without success.  Thereupon, he climbed down to the ground and walked to the hillside on Sassoon Road near the canteen of the University of Hong Kong.
控方指申請人和另一名在逃人士在2014年8月16日傍晚在薄扶林碧荔道近23號形跡可疑。負責防止“爆竊”行動的警員在監視申請人和該名在逃人士期間，有一名警員12073看見申請人沿水渠攀爬上碧荔道23號一樓的住宅外的位置。警員12073指申請人有用手企圖打開該住宅的窗戶，但不成功。申請人隨即返回地面，然後步行往香港大學沙宣道的飯堂附近的山坡。

Six or seven police officers took part in the anti-burglary operation, but only one of them (PC 12073) claimed that he had seen that the applicant climbed up the drainpipe.  At that time he was wearing a jacket and a cap and had a mask over his mouth.  According to PC 12073, after the applicant returned to the ground, he took off the mask, the jacket and the gloves [sic], exposing a red T shirt he was wearing.  PC 12073 further said that when he first saw the applicant, the applicant was also wearing a red T shirt and that he put on the cap, the mask and the jacket only when he was about to climb up the drainpipe.
雖然參與上述防止“爆竊”行動的警員有六至七名，但只有其中一名警員（12073）聲稱有目睹申請人攀爬水渠，而當時他是穿着風褸和戴有鴨舌帽及口罩。警員12073指申請人返回地面後，除去口罩、風褸和手套，露出身穿的紅色T裇。警員12073亦指他首次見到申請人時，申請人亦是身穿紅色T恤，而他是在攀爬水渠前，才戴帽、口罩和穿上風褸。

PC 12073 immediately reported to his team mates and asked for support, but the applicant and the person who is at large walked away hurriedly.  Finally, the applicant was intercepted but the other person managed to escape.
當警員12073隨即通知同袍要求支援，但申請人和該名在逃人士急步離開。結果警員截停申請人，但在逃人士則成功逃脫。

The police alleged that when the applicant was being questioned he said he was having a walk in the hill, but that he did not disclose what relationship he had with the person who got away.  The police officers searched the black plastic bag which the applicant held in his hand and found that in the bag there were a blue pullover, a black jacket, a mask, labour gloves and a small torch.
警員聲稱查問申請人時，申請人表示自己正在行山，但他沒有說他和在逃人士的關係。警員檢視申請人手持的黑色膠袋時，發現袋內有藍色衞衣、黑色外套、口罩、勞工手套及一支細電筒。

When the police officers handcuffed the applicant, he did not cooperate and behaved nervously.  His elbow was injured and bled.
警員把申請人上手銬時，申請人不合作及表現緊張，而他的手肘有受傷、流血。

In the video-recorded interview conducted in the police station, the applicant denied having acted in any way which had anything to do with the crime of burglary.  He explained that at the material time, he had knocked off and he went past the place.  He just wanted to see what food there was at the university canteen.
在警署接受錄影會面時，申請人否認犯有任何和“爆竊”罪行有關的行為，他表示案發時，他收工經過，看看大學飯堂有甚麼東西吃。

The applicant further said that on the day in question, he was working in a construction site about half an hour’s walk from the scene of the offence.  He admitted that the black plastic bag and the things in it, namely a cap, a mask, gloves, a blue pullover and a black jacket belonged to him, but he denied that there was an electric torch in the bag.  He complained that the police framed him.  Prosecution evidence shows that the applicant had not been employed at any construction site near the scene of the offence.
申請人亦指案發當天，他在距離案發地點步行半小時的地盤開工。申請人承認有關的黑色膠袋和膠袋載着的帽、口罩、手套、藍色衞衣和黑色外套都是他的，但否認袋中有電筒。申請人指警員“屈”他。控方的證據顯示涉案現場附近的地盤都沒有聘請過申請人。

Applicant’s case and evidence
申請人的立場和證據

The applicant denied the prosecution’s allegations and maintained that he did not commit the offence.  He complained that the police officers lied and wrongly accused him, but he did not give evidence and did not call any witness.
申請人否認控方的說法，並指自己沒有干犯有關罪行。他指多名警員說謊誣告他。但申請人沒有作供，亦沒有傳召證人為他作供。

Verdict given by the trial judge
原審法官的裁決

The trial judge pointed out that although the applicant did not make any confession under caution, he did change the version of his story.  One moment he said he was looking for someone at the scene; the next he said he was going to the canteen for a meal; and at yet another moment he mentioned that he was working at a construction site.  The trial judge rejected the applicant’s explanation given during the video-recorded interview.
原審法官指出申請人在警誡下沒有作出過任何招認，但他有顧左右而言。他一時說在現場找人、一時說去飯堂吃飯、一時又提及在地盤開工。原審法官拒絕接納申請人在錄影會面時的解釋。

The trial judge stated that a police officer saw that the applicant climbed up the drainpipe fixed on the outside of the building and tampered with a window, but that he failed to do anything and left.  The trial judge found that the applicant, when being watched by the police officer, did climb up the drainpipe, reached the 1st floor of the building, and did tamper with the window with his hand.
原審法官指出有警員目睹申請人攀爬涉案樓宇外的水渠及“攪”窗戶，不過最終是無功而退。原審法官認定申請人有在警員監視下攀爬水渠上涉案樓宇的一樓，並用手“攪”窗戶。

The trial judge found that the police officers involved in this case were all honest and reliable witnesses, and that they had no motive to lie against the applicant.
原審法官認定涉案的多名警員都是誠實可靠的證人，而他們沒有動機說謊誣告申請人。

The trial judge found that the acts of the applicant, namely climbing up the drainpipe to the 1st floor of the building and tampering with the window with his hand were more than preparatory to the commission of the relevant offence and constituted attempted burglary.  Therefore, he found the applicant guilty.
原審法官認定申請人攀爬水渠上一樓外的位置及用手“攪”窗戶等作為已超乎預備犯罪，而構成企圖入屋犯法罪。因此，原審法官裁定申請人罪名成立。

In giving his verdict of guilty, the trial judge made the following comments on the police officers’ integrity:
在作出定罪裁決時，原審法官就警員的誠信，作出以下評論：

“The evidence of the police officers was not shaken at all when they were being cross-examined by defence counsel.  I do not believe that the defendant had been assaulted by any police officer when he was intercepted or when he was in the police station.  The police officers did not need to fabricate evidence to falsely accuse the defendant of attempted burglary.  Had they been minded to do that, they could have also made up evidence that the defendant made an oral confession at the scene … ”
“各名警員的證言從沒有在辯方大律師的盤問下有所動搖。本席亦不相信警員在截查被告時或在警署之內毆打被告。警員亦犯不著捏造證據，誣捏被告企圖爆竊。否則，警員大可捏造被告在拘捕現場的口頭招認…”

“I do not believe that these police officers would, for the purpose of giving the defendant ‘an additional charge’ of (having the defendant charged with) attempted burglary, be so unscrupulous and foolish as to commit an offence which is even more serious, ie conspiracy to pervert the course of justice.”
“本席不相信眾多警員因為要‘加控’（檢控）被告一項企圖爆竊罪，而膽敢及愚昧地干犯一項更加嚴重的串謀妨礙司法公正罪。”

Grounds of appeal
上訴理由

The applicant submitted that the police officers’ evidence was not credible and that there were discrepancies between the evidence of some police officers and their statements.  He also pointed to inconsistencies between the prosecution’s summary of facts and the witnesses’ evidence.  The applicant emphasized that the upper garments which he was wearing were not stained with any dirt, so he could not possibly have climbed up and down the drainpipe as alleged by the prosecution witness, and that the stains on his jeans had nothing to do with this case.
申請人指控方警員的證言不可信，而部分警員的證言和他們的口供有分歧。申請人亦指控方的案情撮要和證人的證供有出入。申請人強調自己身上的上衣沒有污漬，顯示他不可能如控方證人所指有攀爬水渠的行為，而他穿着的牛仔褲上的污漬亦與案件無關。

The applicant submitted that it was simply impossible that the prosecution witnesses could see him climb the drainpipe, and that the prosecution did not have any scientific evidence to support the charge against him.  He stressed that no sole marks were found on the drainpipe of the building, and that there was no evidence which showed that any clothings on his person had come into contact with the drainpipe or the wall of the building.  He complained that the trial judge did not consider the questionable areas in this case, and that therefore the guilty verdict was wrong.
申請人指控方證人根本不可能觀察到他爬水渠的動作，而控方亦沒有其他科學證據支持針對他的控罪。他強調涉案樓宇水渠位沒有他的鞋印，亦沒有證據證明他身上的衣物和該樓宇的水喉或牆壁有任何接觸。申請人指原審法官沒有考慮案件的疑點，故將他定罪的裁決是錯誤的。

Discussion
討論

Since the applicant did not give any evidence at the trial, nor did he call any witness, what the verdict would be was mainly dependent on the veracity and accuracy of the evidence of the police officers.  If the evidence of the police officers (particularly PC 12073) was true and accurate, it would be sufficient to prove that the applicant did climb up to the 1st floor of no. 23 Bisney Road and that he did tamper with a window with his hand.  Such acts of the applicant were sufficient to constitute attempted burglary.
由於申請人在原審時沒有作供，亦沒有傳召證人作供，案件的裁決主要建基在控方警員的證供是否真確。如控方警員（特別是警員12073）的證供真確，則足以證明申請人有攀爬上碧荔道23號一樓，並用手“攪”窗戶。申請人的上述行為足以構成企圖“爆竊”罪。

At the trial, counsel for the applicant did point out to the court evidence and views favourable to the applicant.
原審時，申請人的代表大律師有向法官力陳對申請人有利的證據及看法。

The trial judge did consider carefully the prosecution evidence and submissions made by the two sides.  In the end, the trial judge found that the prosecution witnesses were honest and reliable, and that the court could safely act on their evidence.
原審法官有小心考慮控方的證據及雙方的說法。原審法官最終認定控方的證人誠實可靠，而法庭可以穩妥地根據他們的證據行事。

The verdict in this case is entirely based on the findings of fact made by the trial judge.  The evidence against the applicant came from a number of police officers and all their evidence supports the charge preferred by the prosecution against the applicant.
本案的裁決全建基在原審法官作出的事實決定。針對申請人的證據源自多名警員。他們的證供都支持控方指控申請人的罪行。

On the face of it, the trial judge had every reason to accept the prosecution witnesses’ evidence and to act on their evidence, particularly when the applicant did not give evidence or call any witness to contradict, undermine or explain the prosecution evidence against him.
表面上原審法官絕對有理由接納控方證人的證供及根據該些證供行事，特別是當申請人沒有作供，或傳召證人作供，以反駁、削弱或解釋控方針對他的證據時。

The absence of scientific evidence and other supporting evidence does not mean that the court could not accept the police officers’ evidence.
沒有科學證據或其他佐證亦不表示法庭不能採納有關警員的證供。

That being said, the verdict in this case is wholly founded on the trial judge’s findings about the credibility of the evidence of the police officers, especially that of PC 12073’s evidence.  Therefore, the way in which the trial judge dealt which these police officers’ evidence must conform to the established legal principles.
但本案的裁決完全建基在原審法官就多名警員，特別是警員12073的證供的可信性作出裁決。因此，原審法官處理該些警員證供的方法，必須合乎既定的法律原則。

One of the established legal principles is that when the court is considering the credibility and reliability of the evidence of the witnesses (including the defendant’s evidence), all evidence must be placed on the same footing.  The court must not treat police officers’ evidence on the basis that police officers are less likely to tell lies (R v Culbertson (1970) 54 Crim App R 310).
既定的法律原則之一是法庭在考慮證人的證供（包括被告人的證供）的可信性及可靠性時，必須一視同仁。法庭絕對不能以警員說謊的可能性較低為基礎來處理他們的證供（R v Culbertson (1970) 54 Crim App R 310）。

In Culbertson, the trial judge, in his summing up to the jury, told them not to concern themselves with the consequence of acquitting the defendant that would be suffered by the police officers who testified against the defendant, but he added that the police officers would be “finished and would be out of the police within a very short time”.
在上述Culbertson案，主審法官引導陪審團時告訴他們無需顧慮裁定被告人無罪會對作供指證他的警員造成的後果，但同時表示該些警員會“finished and would be out of the police within a very short time.”（完蛋及在短期內失業）（非官方翻譯）。

The Court of Appeal of Hong Kong has all along applied the above-mentioned principle in hearing cases (see R v Wong Kim Wah & another (CACC 258/1993)).
香港的上訴法庭亦一直根據上述原則來處理案件（見R v Wong Kim Wah & another (CACC 258/1993)案）。

When the trial judge was considering the credibility of the evidence of the police officers involved in this case, he emphasized that the police officers did not need to fabricate evidence to falsely accuse the applicant of attempted burglary and that they would not, for the purpose of having the applicant charged with attempted burglary, be so unscrupulous and foolish as to commit an offence which was even more serious, ie conspiracy to pervert the course of justice.
原審法官在考慮涉案警員證供的可信性時強調警員犯不著捏造證據，誣捏申請人企圖爆竊，亦不會為了檢控申請人一項企圖爆竊罪而膽敢及愚昧地干犯一項更加嚴重的串謀妨礙司法公正罪。

The message conveyed by the trial judge is clear.  Its meaning is that there was no incentive for the police officers to frame up the applicant, nor were they unscrupulous and foolish enough to do so.  The comment made by the trial judge indicates that he thought that the police officers’ evidence was more credible than the evidence of other witnesses.
原審法官表達的信息是明確的，其含意是指警員沒有誘因，亦不會有膽和愚蠢地去誣捏申請人。原審法官的說法顯示他認為警員的證供較其他證人的證供，更具可信性。

The approach adopted by the trial judge was not proper.  We need to once again remind judges who hear criminal cases that they cannot consider the evidence of a witness, who is a police officer, in this way.  The reason is that to consider the evidence in this way will give rise to an appearance that the defendant has not received a fair trial.
原審法官的處理方法不妥當，而本庭亦需要再一次提醒審理刑事案件的法官不能以上述方法來考慮警員證人的證供，原因是該處理方法會令人感到被告人未有獲得一個公平的審訊。

The improper approach adopted by the trial judge, ie to single out the issue of the credibility of the police officers’ evidence and to deal with it in isolation, is not necessarily a material irregularity sufficiently serious for the guilty verdict given at the trial to be set aside.
主審法官將警員證人的證供的可信性議題單獨挑出來處理的不當處理方法不一定構成重要的不正常做法，足以推翻原判的有罪裁決。

In fact, in Culbertson, the English Court of Appeal (Criminal Division) held that the trial judge’s comment to the jury that if they acquitted the defendant, the police officers who testified against him would be “finished and would be out of the police within a very short time” did not constitute a material irregularity sufficient to justify quashing the conviction.
事實上，在Culbertson案，英國刑事上訴法庭裁定主審法官向陪審團表示，如他們裁定被告人無罪，則表示作供針對他的警員“完蛋及在短期內失業”不構成重要的不正常做法，亦不足以推翻一項有罪的裁決。

In R v Fisher (1983) Crim L.R. 486, the summing up given by the trial judge to the jury included passages to the effect that some criminal offences were more serious when committed by a certain kind of people and perjury by a police officer to secure a false conviction of an innocent person was about the most serious criminal offence a police officer could commit, and that any police officer convicted of perjury knew, and any group of police officers who conspired to give false evidence to secure a conviction against an innocent person and were convicted of conspiracy knew they would receive a very heavy sentence at the court’s hands.  The English Court of Appeal reiterated that a trial judge should not put evidence given by police officers into a category different from that given by other witnesses, and should not tell the jury about the dire results which might follow from police officers telling lies, and that otherwise, the conviction would be regarded as unsafe and unsatisfactory and would be quashed.
在R v Fisher (1983) Crim L.R. 486案，主審法官引導陪審團的講辭，包括一些段落而該些段落的含義是某些人仕干犯某些罪行的後果會特別嚴重，而警員作偽證令無辜人仕被定罪更是一名警員可能干犯的罪行中最嚴重的一類，而任何警員因作偽證而被定罪應知悉，正如其他因串謀作偽證以令一名無辜人仕被定罪的警員理應知悉法庭必會對他們處以重刑。英國上訴法庭重申主審法官不應將警員的證供和其他證人的證供分類，亦不應該向陪審團提及警員說謊可能導致的極為嚴重的後果，否則有關的定罪會被視為不穩妥及不安全而要被撤銷。

The guilty verdict in this case was entirely given on the basis of the credibility of the evidence of the police officers, the evidence of PC 12073 in particular.  The prosecution did not adduce any supporting evidence which could show that the applicant did climb up the drainpipe to the residential unit in question and did attempt to open the window of the unit with his hand.
本案的定罪裁決基本完全建基在控方警員證人，特別是警員12073證供的可信性。控方沒有提出任何其他佐證，足以顯示申請人確有沿水渠攀爬上涉案的住宅外，及用手企圖打開該住宅的窗戶。

We consider that when the trial judge committed a mistake of principle in the course of his dealing with the police officers’ evidence, with the result that the trial became unfair, the appropriate remedy is to quash the conviction.
本庭認為當原審法官處理警員證供的可信性時犯了原則上的錯誤，而導致審訊不公平時，適當的處理方法是要撤銷有關的定罪裁決。

We grant the renewed application made by the applicant for leave to appeal against conviction, and allow his appeal.  We quash the applicant’s conviction and set aside his sentence.
本庭批准申請人就定罪提出的更新上訴許可申請，並裁定他的上訴得直。本庭撤銷針對申請人的定罪及判刑。

Mr Franco Kuan, Senior Public Prosecutor of the Department of Justice, for the Respondent.
答辯人：由律政司高級檢控官關百安代表。

The Applicant, acting in person, present.
申請人：無律師代表，親自應訊。