Hon Cheung JA (giving the reasons for judgment and ruling on costs of the Court):
上訴法庭法官張澤祐頒發上訴法庭判案理由書及訟費裁決：

The appellant was prosecuted for four charges, two of which (the 1st and 3rd charges) were “procuring another person to become a prostitute”, contrary to section 131(1)(a) of the Crime Ordinance (“the Ordinance”), Cap. 200.  There were two alternative charges of “trafficking in persons from Hong Kong” (the 2nd and 4th charges), contrary to section 129(1) of the Ordinance.
上訴人被控四項控罪，其中兩項(即第一及第三項控罪)是「導致另一人賣淫」罪，違反《刑事罪行條例》(《條例》)（香港法例第 200 章）第 131(1)(a) 條；另外兩項是交替控罪，即「販運他人離開香港」罪（第二及第四項控罪），違反《條例》第 129(1) 條。

The case was tried before Deputy District Judge Wahab, who convicted the appellant after trial of two counts of “trafficking in persons from Hong Kong”, and sentenced him to three years’ imprisonment for each count, both sentences to run concurrently, making a total sentence of three years.  The appellant applied for leave to appeal against conviction and sentence.  We granted the application after hearing his case and treated the application for leave as the appeal proper.  We also quashed the two convictions but ordered a retrial of the 4th charge.  The appellant was allowed bail pending retrial.  The reasons for our judgment are given below.
案件經區域法院暫委法官馬保華審理後，上訴人被裁定兩項「販運他人離開香港」罪罪名成立及每項控罪被判監三年，兩項判刑同期執行，總刑期為三年。上訴人就定罪及刑期提出上訴許可申請。本庭於聆訊後批准申請、視該申請為正式上訴、撤銷兩項定罪，但命令第四項控罪需要重審及批准上訴人可於候審期間擔保外出。以下是本庭的判案理由。

Facts
案情

The facts show that the following advertisement was published in a Hong Kong newspaper between December 2006 and June 2007:
案情顯示以下一則廣告於 2006 年 12 月至 2007 年 6 月期間刊登於一份香港的報章內：

“Overseas short-term quick money.  Japan, Britain, Taiwan.  PR  Safe and confidential.  Can provide air tickets, board and lodging.  Good reputation for many years (telephone number)”.
「海外短期快錢  日本、英國、台灣  PR  安全保密可包機票食宿  多年信譽  [電話號碼]」

The advertisement was brought to the knowledge of the Hong Kong Police, which suspected that prostitution was involved and therefore assigned two woman police officers, namely the 1st prosecution witness (“PW1”) and the 2nd prosecution witness (“PW2”) to carry out investigations.
香港警方得悉有關廣告，並懷疑它涉及賣淫活動，因此指派兩名女警（即控方第一證人(‘第一證人’)及控方第二證人(‘第二證人’)展開調查。

The 2nd charge
第二項控罪

PW1 posed as a job applicant and telephoned a man surnamed Ho (“Mr Ho”) at the number provided in the advertisement.  Mr Ho explained to PW1 that the nature of the job was “PR”.  He told PW1 further that if she chose to go to Britain, she would have to pay for her own air ticket; however, if she chose to go to Japan, an air ticket would be provided to her.  The duration of the job would be three months, she could choose to go to Taiwan if she preferred a shorter duration, which would be fourteen days.  He added that working in Japan would be better rewarded and more comfortable when compared with working in other places.  He would charge PW1 a fee of approximately $10,000, which would be deducted from PW1’s job income.  Mr Ho said he would provide accommodation to PW1, and asked her what type of passport she was holding.  They then arranged to meet the following day, and Mr Ho also required PW1 to bring along her passport for him to look at.
第一證人假扮應徵者。她根據廣告上提供的電話號碼致電一名何姓男子(‘何先生’)應徵。何先生對第一證人說明這是一份屬「PR」性質的工作。他告訴第一證人若她選擇前往英國的話，她就需自行付錢訂購機票；若她選擇到日本的話，他們會提供機票給她，工作期為三個月；若第一證人希望工作期較短的話，她可以選擇到台灣，為期14天。他說到日本工作較到其他地方所得的待遇高和較舒服。他會向第一證人收取約 $10,000的費用，有關費用會從第一證人工作後的收入扣除。何先生說他會提供宿舍給第一證人居住。他問第一證人所持的是哪種護照。之後，兩人相約在翌日會面，何先生並要求第一證人將她的護照拿來給他看。

On 12 January 2007, Mr Ho (who was identified as the appellant) and PW1 met in a Mongkok hotel.  Their conversations are summarized as follows:
2007 年 1 月 12 日，何先生(後被辨認出為上訴人)與第一證人在旺角一間酒店內會面。以下是他們的談話內容簡述：

The appellant said he would arrange jobs for PW1 in the bars of the Chiba prefecture in Tokyo, Japan, where she had to provide sex services to the customers.  The appellant also explained to PW1 details of her working hours and the fees that she would charge her customers.  He told PW1 that she could keep the extra tips given by customers, and her monthly income could reach several tens of thousand Hong Kong dollars.
上訴人說他會介紹第一證人到日本東京千葉縣酒吧工作，她需要向酒吧的客人提供性服務。上訴人向第一證人說明有關的工作時間及她須向客人收取的費用詳情。他告訴第一證人客人給她的額外小費是屬於她的，她每個月可賺取數萬港元。

The appellant would take PW1 to the airport, but she had to go through the customs herself.  He would give PW1 a small quantity of Japanese coins, so that she could make a telephone call to inform him about her safe arrival in Japan.  He would arrange other women to travel to Japan on the same flight with PW1, and someone would collect her at the Tokyo airport and take her to her quarters. After that, she could commence working in the bars immediately.
上訴人會送第一證人到機場，但她需要自行過關。他會給第一證人少許日本錢幣，讓她到埗後可打電話給他報平安。他會安排其他女子與第一證人一同乘飛機到日本；他亦會安排人員在東京機場接機及送第一證人到宿舍。之後，第一證人便可以立即到酒吧工作。

(3)The appellant said PW1 could live in the quarters provided by the boss, but had to pay a monthly rental of $2,000.  He would charge PW1 $13,000 as “passage fee”, to be deducted from her income.  Her income would be kept by the Japanese boss first and given back to her later.  The appellant also said they needed a large number of women to work in Japan, most of them would come back to Hong Kong after finishing their jobs, but would return to Japan to work after taking some rest.  He said:
(3)上訴人說第一證人可以在老闆所提供的宿舍內居住，但須繳交每個月 $2,000 的租金，而他就會向第一證人收取 $13,000 的「水腳費」，該筆款項會在第一證人的收入中扣除。日本的老闆會扣起第一證人的收入，但之後會交還給她。上訴人並說他們需要大量的女子到日本工作，她們大部分在完成工作後會返港，休息一段時間後再到日本工作，他說：

“will not force you … just like doing business … I make arrangements for you to go there, but will not charge you commission, that means the harder you work, the more money you make.”
「唔會迫你嘅…..好似做生意咁……我就安排你過去，咁就又唔會抽你佣嘅，即喺你做多啲，咁你咪搵多啲囉。」

(4)The appellant said he could take PW1 to book an air ticket to Japan, but she had to pay the fee of $2,000 to $3,000 herself.  Alternatively, he could book an air ticket for PW1, but the fee would be $5,000.
(4)上訴人說他可以帶第一證人去訂購往日本的機票，但她須自行支付 $2,000 至 $3,000的費用，又或者他可以代第一證人訂購機票，但費用要 $5,000。

During the meeting, the appellant showed PW1 a photo album, which contained photographs showing the airport in Japan, some bars and the quarters.
兩人會面期間，上訴人將一本相簿遞給第一證人看，內載着一些日本機場、酒吧及宿舍的照片。

PW1 told the appellant that she needed some time to consider whether she would go to Japan to work.  The appellant telephoned PW1 on 13 July 2007 asking her whether she had made up her mind.  He said the Japanese boss was in need of workers, and if PW1 was in financial difficulties, he would ask the boss to provide her with a cheaper air ticket.  PW1 indicated that she was still considering it, as she would like to spend the New Year in Hong Kong.  The appellant told PW1 that if she went to Japan, she could earn and bring home more than one hundred thousand Hong Kong dollars.  PW1 has not contacted the appellant since then.
第一證人告訴上訴人她需要一點時間考慮是否到日本工作。2007 年 7 月 13 日上訴人致電第一證人及問她作出了決定沒有，他說日本那邊需要人手，若第一證人有財政困難，他可代她要求老闆提供較平宜的機票給她。第一證人向他表示她仍在考慮中，因為她想在香港過新年。上訴人對第一證人說若她去日本的話，她可賺取十多萬元港幣回家。之後第一證人再沒有與上訴人聯絡。

The 4th Charge
第四項控罪

Some time later, the police made arrangements for PW2 to contact the appellant.  PW2 dialed the telephone number provided in the advertisement on 12 March 2007, posing as a job applicant, and spoke to a Mr Ho.  PW2 asked Mr Ho if there were ways to make money, Mr Ho said “yes” and told PW2 that she could choose to go to Japan, Taiwan or Britain.  Mr Ho then suggested meeting PW2 the following day, as it was not convenient to go into any details over the telephone.  The appellant also asked PW2 what type of passport she was holding.
警方之後安排第二證人聯絡上訴人。2007年 3 月 12 日第二證人假扮應徵者，致電廣告上的電話，並與一名何先生對話。第二證人詢問何先生是否有途徑可以賺錢。何先生說「是」及說第二證人可以選擇去日本、台灣或英國。何先生對第二證人說在電話上詳談不方便，兩人於是相約在翌日見面。上訴人問第二證人所持的是哪種護照。

The following day, PW2 and the appellant met in a Mongkok hotel, the same hotel where the appellant had met PW1.  The appellant told PW2 in the meeting that the job she applied for was prostitution.  He suggested that PW2 could work in the bars in the Chiba prefecture, as she could earn a monthly income of several tens of thousand dollars there.  The appellant then explained to PW2 the charges of providing overnight services and the sex services she had to provide to her customers.  He also told PW2 to hand over the money she received from her customers to the Japanese boss, who would deduct $13,000 from it to pay for the appellant’s “passage fee”, and the rest of the money would belong to PW2.  The appellant told PW2 that she could earn $30,000 to $40,000 per month, and suggested that she gave her bank account number to the Japanese boss, so that he could transmit her wages to Hong Kong.  The appellant also told PW2 that the Japanese boss would provide her with quarters at a monthly rental of $2,000.
翌日，第二證人與上訴人在旺角一間之前上訴人與第一證人會面的酒店會面。會面期間，上訴人對第二證人說明她所應徵的職位是妓女。他建議第二證人到日本千葉縣的酒吧工作，因為她可以每月賺取數萬港元。上訴人向第二證人說明她陪客人過夜的收費項目及她須向客人提供的性服務形式。他並吩咐第二證人她須將從客人收取到的金錢交給日本的老闆，他會從中取出 $13,000 來支付上訴人的「水腳費」，餘下的金錢則屬於第二證人所有。上訴人說第二證人每月可賺取 $30,000 至 $40,000。他建議第二證人把銀行戶口的號碼告知日本的老闆，讓他把她的工資滙到香港。上訴人告訴第二證人日本的老闆會提供宿舍給她，每月的租金為 $2,000。

The appellant reminded PW2 to dress decently and not to bring any condoms and lubricants when she boarded the flight, because she would be prohibited from entering Japan if such items were found in her luggage by the Japanese immigration staff.  He also mentioned to PW2 the fees for booking air tickets and showed her a photo album containing photographs showing the airport in Japan, some bars and the quarters.
上訴人提醒第二證人乘飛機時的衣著要斯文一點和不要攜帶安全套和潤滑劑上機，因為如日本入境處人員檢查第二證人的行李時發現這些物品，第二證人就不會獲准入境。上訴人亦與第二證人提及訂購機票的費用及將一本內載有日本機場、酒吧及宿舍照片的相簿給第二證人看。

When PW2 telephoned the appellant on 30 May 2007, the appellant asked her whether she would like to work in Japan and suggested taking her to book an air ticket.  PW2 agreed and arranged to meet him in Mongkok.  After meeting up with the appellant, PW2 was taken to a travel agency, where she booked a round trip air ticket under a false name with the departure date of 12 June 2007, and the air ticket fare was paid by PW2.  As the air ticket could not be issued that day, the appellant promised to collect it and give it to PW2 before her departure.  He explained to PW2 details of her trip to Japan, and reminded her again that she had to dress decently on the day she departed for Japan.  The appellant added that he would provide her with contraceptive pills.  He told PW2 that the Japanese boss would charge her a fee of JPY 250,000, to be deducted from her income from receiving customers.
2007 年 5 月 30 日，第二證人致電上訴人，上訴人問她是否想去日本工作及建議由他帶第二證人去訂購機票，第二證人同意及與他相約在旺角見面。兩人見面後，上訴人帶第二證人到一間旅行社訂購機票。第二證人以假名訂購了一張在 2007 年6 月 12 日出發去東京的來回機票，費用是由第二證人支付。由於機票未能在當天發出，上訴人承諾他會替第二證人領取機票，並在她出發之前將機票交給她。他將到日本的細節告訴第二證人及再次提醒她往日本那天要穿着斯文的服裝。上訴人更說他會提供一些避孕丸給第二證人服食。他告訴第二證人日本的老闆會向她收取JPY 250,000的費用及會在她接客後所得的金錢中扣除。

On the occasion when they met again on 11 June 2007, the appellant gave PW2 an air ticket and told her to phone him before she left for the airport, so that he could arrange for some Japanese staff to pick her up at the airport.  The appellant also gave PW2 a few Japanese coins and told her to telephone him upon her safe arrival in Japan.  He also gave PW2 a blister pack of contraceptive pills, a small phial containing contraceptive pills and a tube of lubricant, and advised her on how the aforesaid items should be stored to avoid detection.  He also supplied PW2 with some information about traveling in Japan and false telephone numbers and addresses in Japan, in case she would be interrogated by the Japanese immigration staff.
2007 年 6 月 11 日，雙方再次會面，上訴人將機票交給第二證人及囑咐她在去機場之前要致電給他，他就會安排日本員工到機場接她。上訴人給了第二證人幾個日本硬幣及吩咐她在到埗後致電給他報平安。他又給第二證人一排避孕丸、一個載着一些避孕丸的小瓶及一支潤滑劑及教導她如何放置有關物品以掩人耳目。他又向第二證人提供一些日本旅遊資料及虛假的日本電話及地址資料，讓她在被日本入境處人員查問時使用。

PW2 then gave signals to the police officers laying ambush in the vicinity, who approached the appellant and arrested him.
之後，第二證人向埋伏在附近的警員發出信號，他們上前把上訴人拘捕。

Defence
答辯理由

The appellant did not give evidence.  His counsel at trial put it to PW1 and PW2 during cross-examination that the appellant had never mentioned to them, either over the phone or in the meetings, that they had to provide sex services in Japan; nor had he given any contraceptive pills, lubricants etc to PW2, he merely recruited them to work illegally in Japan.
上訴人沒有作供。他當時的代表律師在盤問第一及第二證人時向她們指出上訴人無論在電話上或會面時都從沒有提及關於她們在日本須向人提供性服務一事，亦沒有將避孕丸、潤滑劑等物品交給第二證人；他只不過是僱用兩名證人到日本當黑工。

Decision of the trial judge
馬法官的判決

On 17 November 2007, upon hearing the prosecution’s evidence and the defence’s closing submission, Deputy District Judge Wahab found the appellant guilty of the two alternative charges.  The trial judge indicated that he would give a brief outline of his reasons for verdict first, and would “set out formally and in details” his reasons for verdict at a later stage.  The trial judge then went on to say that the crucial issue in this case was whether the two prosecution witnesses had spoken to the appellant over the phone or met him personally.  When and in what ways they contacted each other were side issues, the more important issue was what they talked about when they contacted with each other.  The trial judge found that the prosecution had already proved that the conversations between the appellant and PW1 and PW2 involved their working as prostitutes in Japan, and he accepted the two witnesses’ evidence.  The trial judge added that he had considered the fact that the appellant had no criminal conviction records, but nevertheless still accepted the two prosecution witnesses’ evidence.  Regarding the reason why the prosecution did not make a closing submission, the trial judge explained that it was because the appellant did not give evidence in his own defence.  The trial judge reiterated that he would first briefly outline his reasons for giving a guilty verdict, and the detailed reasons for verdict would be given and delivered in court on a later date.  Subsequently, the judge passed sentences after hearing mitigation from defence counsel.
馬法官在 2007 年 11 月 17 日聆聽過控方證供及辯方的結案陳詞後立刻裁定兩項交替罪罪名成立。馬法官表示他會簡單說出裁決理由，但稍後會「正式詳細列出」判決理由。馬法官接着說本案的重要議題是控方兩名證人及上訴人有沒有通電話及會面，他們何時及以甚麼形式聯絡是次要的事，比較重要的是雙方聯絡時的談話內容。馬法官說控方已經證明上訴人與第一和第二證人的對話內容是涉及她們在日本賣淫的事，他接納兩名證人的證供。另外，馬法官說他有考慮過上訴人沒有刑事記錄，但他仍接納兩名控方證人的證供。馬法官解釋由於上訴人沒有作證自辯，因此控方沒有作出結案陳詞。馬法官再說他只是簡單交代何以他會作出定罪的裁決，稍後他會詳細交代他的裁決理由，並在法庭上宣讀。之後，馬法官在聆聽過辯方律師替上訴人求情的陳詞後作出量刑。

The judge delivered the reasons for verdict and reasons for sentence in court on 28 November 2008.
馬法官於2008年11月28日在法庭上宣讀判決理由及判刑理由。

Grounds of Appeal
上訴理由

Regarding the convictions on the 2nd and 4th charges, the appellant’s counsel at appeal Mr Richard Wong submitted that the procedures and results of the hearing are so seriously flawed as to render the convictions unsafe and unsatisfactory.  His reasons were that after hearing the case and after delivering his reasons for verdict and sentence, the trial judge had already fulfilled his duties and completed his task, he had no judicial power to deliver another set of reasons for verdict more than ten days later.  Mr Wong submitted that this court should not accept the reasons for verdict delivered on 28 November 2008, but should instead decide this appeal solely on the basis of the reasons for verdict given on 17 November 2008.  As the judge did not explain why he accepted the two witnesses’ evidence on 17 November 2008, hence this court could not decide whether the judge’s verdict was correct.
代表上訴人的黃達華大律師就第二項及第四項定罪提出的上訴理由是聆訊程序及結果嚴重失誤，以致定罪不安全及不穩妥。他的理由是馬法官在聆訊結束、宣告判決及判決理由後已履行了職責及完成了任務，他沒有司法權力在十多天後再宣讀另一份判決理由。黃律師指本庭不應該接納 2008年11月28日的判決理由書，而只應該根據2008年11月17日的判決理由來審理本上訴。由於馬法官在該日並沒有交代他接納兩名證人的證供的理由，因此本庭不能裁定馬法官的裁決是否正確。

Section 80(1) of the District Court Ordinance
《區域法院條例》第 80(1) 條

Section 80 of the District Court Ordinance (“the Ordinance”) (Cap 336) states:
《區域法院條例》(‘《條例》’)（香港法例第 336 章）第 80 條說：

“80(1)The verdict and any sentence shall be delivered orally and be recorded in writing at the time of that delivery.
「80 裁決及任何判刑須以口述方式宣告，並在宣告時以書面記錄。

The reasons for the verdict and any sentence -
裁決及判刑理由:

shall be delivered orally; and
須以口述方式宣告；及

shall be reduced to writing within 21 days after the hearing or the trial,
須在聆訊後或審訊後 21 天以書面記錄。」

The wording of the current section 80 is different from that of the section 80 before 1993, which reads:
現行使用的第 80 條與 1993 年之前的第 80 條的條文用字不同，以前的條例內容是：

“80.Before pronouncing judgment, a judge shall record his verdict and,   at the same time or so soon thereafter as may be, shall also place on record a short statement of the reasons for the verdict.”
「法官在宣告裁決之前必須先記錄他的裁決及同時或者儘快將一份簡短的裁決理由書記錄在案。」

According to the current section 80(2), a District Judge needs not deliver the reasons for verdict on the same day as he delivers the verdict.  He can deliver the verdict first, and then fix a day for the delivery of the reasons for verdict and reduce them to writing.  However, the reasons for verdict must be reduced to writing within 21 days after the oral delivery.  The judge can of course deliver the verdict and the reasons for verdict on the same day, but section 80(2) forbids the delivery of two sets of reasons for verdict, one delivered immediately with the verdict and the other delivered some time later.
根據現行的第 80(2) 條，區域法院法官並不需要在宣告判決當日同時宣告判決理由，他是可以先宣告判決，然後再定日子宣讀判決理由及將判決理由以書面記錄下來，但他必須在宣讀判決後的 21 天內作出書面記錄。法官當然是可以在宣告判決當日同時宣告判決理由，但第80(2) 條不允許兩份判決理由，即一份是即時宣告的判決理由，而另一份是日後宣告的判決理由。

Authorities
案例

The Court of Appeal has stated repeatedly on the basis of the old section 80 that a District Judge cannot provide more than one set of reasons for verdict.  In R. v. Hui Lap Keung and Others [1989] 1 HKLR 261, the District Judge convicted the defendant after trial and delivered the reasons for verdict.  The gist of the reasons for verdict was that the three main prosecution witnesses had in general given clear evidence, and their performance under cross-examination did not raise any doubts about their evidence.  The judge found that, on the basis of the prosecution witnesses’ evidence and the documentary evidence of the case, there was no reasonable doubt; and convicted the three defendants.  The judge subsequently handed down his reasons for verdict consisting of ten pages.
上訴法庭曾經就未修改的第 80 條多次說明區域法官不可以提供多過一份的判決理由。在 R v. Hui Lap Keung and others 一案 [1989] 1 HKLR 261一案，區域法院法官在審訊結束後裁定被告人罪名成立及宣告判決理由。該判決理由的大意是三名主要的控方證人大致上提供了清晰的證供及沒有在接受盤問時令人對他們的證供產生懷疑，法官根據他們的證供及案件的書面證供，在毫無合理疑點下裁定三名被告人罪名成立。法官之後再頒下一份十頁紙的判決理由。

The Court of Appeal took the view that the judge should not deliver two sets of reasons for verdict; the best approach was for the judge to deliver the verdict and the reasons for verdict at the same time.  If the circumstances did not permit the judge to do so, he should deliver the verdict only.  As counsel for the appellant did not ask the Court of Appeal to disregard the written reasons for verdict consisting of ten pages, hence the Court of Appeal did not rule on this issue.
上訴法庭認為法官不應作出兩份判決理由及認為最佳的做法是法官在宣告判決時同時宣告判決理由，如情況不許可的話，法官應該只宣告判決。由於該案的上訴人代表律師並沒有要求上訴法庭不考慮該十頁紙的判決，上訴法庭因此沒有就這項議題作出裁決。

In R v. Law Chi Kong CACC 491 of 1987, the District Judge convicted the defendant after trial.  He said he convicted the defendant as charged on the basis of the evidence called.  Subsequently, the judge delivered another set of reasons for verdict.  The Court of Appeal took the view that the judge should not deliver two sets of reasons for verdict, and for this reason it did not consider the other set of reasons for verdict delivered by the judge after the conviction.
在R v. Law Chi Kong CACC 491 of 1987一案，一名區域法院法官聆訊案件後裁定被告人罪名成立，他說根據傳召的證供裁定被告人干犯控罪。之後，法官再提交一份判決理由書。上訴法庭認為不應該作出兩份判決理由，故此上訴法庭不考慮法官在定罪後所作出的另外一份判決理由。

In The Queen v. Lam Kwok Hung [1989] 2 HKLR 184, the Court of Appeal described the trial judge’s delivery of two sets of reasons for verdict as  “improper procedure”.
在The Queen v. Lam Kwok Hung [1989] 2 HKLR 184 一案，上訴法庭形容法官作出兩份判決理由是「不適當的程序」。

Reasons for verdict
判決理由

We do not accept the respondent’s view that the trial judge only delivered a verdict of guilty after trial, but not the reasons for verdict.  As noted in paragraph 16 of this Judgment, apart from delivering a verdict of guilty, the trial judge also delivered the reasons for verdict.  The trial judge said he would give his reasons for verdict in “two to three sentences” and “explained the conviction in two to three sentences”, and would formally deliver his detailed reasons for verdict on a later date. However, whichever ways one looks at it, what the judge delivered at that time were the reasons for verdict, although he was minded to give his detailed reasons for verdict on a later date.
本庭不同意答辯人指馬法官在審訊結束後只是作出一個定罪判決，而不是作出判決理由的觀點。從本判案理由書第 16 段可見，馬法官除了宣告定罪判決外，還宣告判決理由，雖然他指他會以「兩三句」說出他的判決理由及只以「兩三句交代定罪」，並會在日後正式詳細交代他的判決理由，但從任何一個角度來看，馬法官當時所宣告的就是判決理由，他無非是想在日後作出一份詳細的判決理由而已。

For the above reasons, we would decide this appeal solely on the basis of the reasons for verdict delivered on 17 November 2008.  It is obvious that the trial judge did not specify in the relevant reasons for verdict why he accepted the two witnesses’ evidence.  In Oriental Daily Publisher Ltd v. Commissioner for Television and Entertainment Licensing Authority (1997-98) HKCFAR 279, Chief Justice Li states clearly that the court needs to provide well-grounded reasons for verdict.  The principles underlying the aforesaid requirement can be summarized as follows:
基於上述原因，本庭只會根據2008年11月17日的判決理由來理審本上訴。明顯地，有關的判決理由沒有說明馬法官為何接納兩名證人的證供。李國能首席法官在Oriental Daily Publisher Ltd v. Commissioner for Television and Entertainment Licensing Authority (1997-98) HKCFAR 279一案清楚說明法庭需要提供具理據的判決理由。有關要求的背後原則可以歸納為以下四點：

the giving of reasons is an incident of judicial office;
司法人員的職責是要提供判決理由；

to enable an appellate court to do its duty in considering an appeal by a convicted person against such a decision;
上訴法庭需要根據一份判決理由來審理上訴；

to enable a convicted accused to make an informed and timely decision as to whether to exercise his right to appeal; and
被定罪的被告需要依賴一份判決理由來就他是否上訴作出有基礎及合時的決定；

to reflect the public interest in the open and due administration of criminal justice.
法庭提供判決理由以反映公開及適當的刑事司法制度所涉及的公眾利益。

See: Bruce on Criminal Procedure Vol 1 paragraph VII [153].
見：Bruce on Criminal Procedure Vol 1第7[153] 段。

In Zhuo Cui Hao v. Ting Fung Yee [1999] 3 HKC 634, the trial judge merely stated in her reasons for verdict that the appellant’s case was unbelievable, without specifying which parts were unbelievable and why she found it unbelievable.  The Court of Appeal set aside the verdict and ordered a retrial of the case.
在Zhuo Cui Hao v. Ting Fung Yee [1999] 3 HKC 634 一案，原審法官的判決理由只是說上訴人的案情不可信，但沒有說明哪一部分不可信及為何她認為上訴人的案情不可信。上訴法庭撤銷裁決及命令案件重審。

We have to point out that not all the decisions which are not well-grounded will be set aside by the Court of Appeal. This depends on the complexity of the cases and the nature of the issues in dispute.  In a more simple case, the Court of Appeal may make its decision on the basis of the facts of the case.  However, the present case was not a simple one.  The audio transcript of the two witnesses’ evidence consists of approximately sixty pages.  The appellant’s counsel at trial cross-examined the two prosecution witnesses on the credibility of their evidence, and PW2’s evidence showed that she had failed to record in her note-book the contents of the conversation immediately after speaking with the appellant on the phone.  Furthermore, the trial judge had failed to deal with PW3’s evidence in his reasons for verdict delivered on 17 November 2007.  We were of the view that in the absence of any well-grounded reasons for verdict, we were unable to rule on the issue of whether it was proper for the trial judge to accept the two witnesses’ evidence.  As we considered that there were indeed material irregularities in this case, we allowed the appeal and quashed the conviction.
本庭必須指出並不是任何欠缺詳細理據的判決都必然會被上訴法庭撤銷，這是要視乎案件的複雜程度及所爭議的議題的性質而定。在一宗比較簡單的案件，上訴法庭是可能根據其案情作出裁決。但本案並不是一宗簡單的案件，兩名證人的證供的錄音謄本約有 60 頁，上訴人代表律師的盤問涉及兩名證人的證供的可信性，第二證人的證供亦顯示她在與上訴人通電話後沒有即時在她的記事簿內記錄兩人的談話內容。另外，馬法官在 2007 年 11 月 17 日的判決理由內亦沒有處理第三證人的證供。本庭認為在欠缺一份具理據的判決理由的情況下，本庭是不可以就馬法官接納兩名證人的證供是否正確這一事作出裁決。由於本庭認為案件確實出現具關鍵性的不當情況，故此本庭批准上訴及撤銷定罪。

Senior Public Prosecutor Catherine Ko, who represented the respondent, asked this court to order a retrial of the 4th charge.  She did not ask for a retrial of the 2nd charge.  Counsel for the appellant Richard Wong opposed the retrial.  The reason for our quashing the conviction was not that the prosecution’s evidence was insufficient. Accordingly, though the appellant had already served about one year of the sentence, we held that, in the public interest, there must be a retrial on the 4th charge.
代表答辯人的高級檢控官高寶翠要求本庭頒令重審第四項控罪，但她不要求重審第二項控罪。代表上訴人的黃達華大律師反對重審。雖然上訴人已服了約一年的刑期，但由於本庭撤銷定罪的理由不是因為控方的證據不足，基於公眾利益，本庭裁定第四項控罪須重審。

Alternative charges
交替控罪

Apart from convicting the appellant on the 2nd and 4th alternative charges, the trial judge also ordered that the 1st and 3rd charges be placed on court file.  The appellant did not appeal against this decision.
馬法官除了裁定第二及第四項交替控罪罪名成立，亦命令第一及第三項控罪須保留在法庭的檔案內。上訴人並沒有就這一點提出上訴。

In R v. Mackell [1982] 74 Cr. App R 27, it is ruled that the Court of Appeal only has jurisdiction to deal with appeals against conviction and sentence.  Since the appellant has not appealed against the way that the trial judge dealt with the 1st and 3rd charges, we do not have the jurisdiction to deal with this issue.  Nevertheless, we will take this opportunity to make the following comments: We are of the view that the trial judge, in ordering that the 1st and 3rd charges be placed on court file, indicated really that he was not making any orders on the two charges.  It is the usual approach in dealing with cases in which one of the charges is an alternative charge, so that the Court of Appeal can still convict the appellant on the alternative charge if it quashes the conviction on appeal; see R. v. Tsui Fung [1996] 1 HKCLR 107.
根據R v. Mackell [1982] 74 Cr. App R 27一案，上訴法庭只是在一宗涉及定罪及判刑的上訴才有司法權力審理案件。由於上訴人沒有就馬法官處理第一及第三項控罪的方法提出上訴，故此本庭沒有司法權力審理這項議題，但本庭藉此機會作出以下的評論。本庭認為馬法官說他將第一及第三項控罪保留在法庭檔案內其實是表示他不就第一及第三項控罪作出任何命令，這是在涉及兩項控罪，而其中一項是交替控罪時的一般處理手法，理由是如定罪在上訴時被撤銷，上訴法庭仍具司法權力根據交替控罪定罪：見R v. Tsui Fung [1996] 1 HKCLR 107。

Costs Order
訟費命令

The appellant applied for costs in this appeal relating to the 2nd charge. As we quashed the conviction on the 2nd charge and only ordered a retrial of the 4th charge, we considered that the appellant should have this set of costs.  Costs to be taxed by the Registrar.
上訴人申請涉及本上訴的第二項控罪的訟費。本庭認為上訴人應獲得這項訟費：這是由於第二項控罪已經被撤銷，而本庭只是命令第四項控罪需要重審。訟費評核交由司法常務官處理。

Ms Catherine Ko, Senior Public Prosecutor, for the Respondent
答辯人：由律政司高級檢控官高寶翠代表。

Mr Richard Wong, instructed by Yung & Co., for the Appellant/Applicant
上訴人/申請人：由翁宗榮律師行轉聘黃達華大律師代表。