Hon Cheung JA (giving the reasons for judgment of the Court):
上訴法庭法官張澤祐頒發上訴法庭判案理由書：

The charges
控罪

The Applicant was charged with two offences:
申請人被控兩項控罪：

Common assault, contrary to the common law;
普通襲擊罪，違反普通法；

Causing grievous bodily harm to another person with intent, contrary to section 17(a) of the Offences against the Person Ordinance (Cap. 212 of the Laws of Hong Kong).
有意圖而導致身體受嚴重傷害罪，違反《侵害人身罪條例》（香港法例第 212 章）第17(a) 條。

Charge 1 alleged that the Applicant assaulted the 1st witness Wong Sheung Ling (王嫦玲) (PW1) on 26 May 2006. Charge 2 alleged that the Applicant assaulted the 2nd witness Lee Kang Chuen (李鏡泉) (PW2) and bit off the tip of his right thumb.
第一項控罪指申請人於 2006 年 5 月 26 日襲擊控方第一証人王嫦玲（‘第一証人’）。第二項控罪指申請人在同日襲擊第二控方証人李鏡泉（‘第二証人’），咬斷他的右拇指指頭。

After trial before Deputy District Judge Yim, the Applicant was convicted on both charges and sentenced to 21 months’ imprisonment: 14 days’ imprisonment on Charge 1 and 21 months’ imprisonment on Charge 2, with the two sentences to run concurrently. The Applicant applied for leave to appeal against the convictions and sentences.
案件經區域法院暫委法官嚴舜儀審理後，申請人被裁定罪名成立及被判監 21 個月：第一項罪行被判 14天監禁；第二項罪行被判 21 個月監禁，兩項刑期同期執行。申請人就定罪及刑期提出上訴許可申請。

We granted leave to appeal against the convictions and, treating the application as the appeal itself, quashed the convictions on both charges and made no order for a retrial. We now set out the reasons for our judgment.
本庭批准針對定罪的上訴許可申請、視申請為正式上訴、撤銷兩項定罪及不命令案件重審。以下是本庭的判案理由。

Prosecution case
控方案情

The prosecution case revealed that PW1 was a female driver of the Kowloon Motor Bus Company. On 26 May 2006, the Applicant, pushing a baby cart (‘the cart’) on which there was a baby, boarded a bus driven by PW1. For safety reasons, PW1 repeatedly requested the Applicant to scoop the baby out of the cart and fold up the cart. The Applicant, however, ignored her requests. A male passenger on board the bus (i.e. PW2), who heard the Applicant answering PW1 by saying ‘I know’ in Putonghua, relayed in Putonghua to the Applicant what PW1 had said, but the Applicant still made no response.
控方案情顯示第一証人為九龍巴士公司的女車長。2006 年 5 月 26 日申請人手推着一架載有一名嬰兒的嬰兒手推車（‘手推車’）乘搭由第一証人駕駛的巴士。第一証人以安全為由多次要求申請人抱起嬰兒及將手推車摺起，但申請人沒有理會。由於當時車上有一名男乘客（即第二証人）聽到申請人在回應第一証人時以普通話說：「知道」，他便以普通話向申請人複述第一証人說的話，但申請人仍然沒有作出回應。

Later, the Applicant realized that if he did not fold up the cart as requested by PW1, she would not start the bus. He therefore scooped up the baby and folded up the cart. However, after the bus started to move, the Applicant unfolded the cart and put the baby on it. The Applicant also pressed his arm against PW2 who was next to him. PW2 managed to push away the Applicant only after 1 to 2 minutes. The Applicant then walked to a location beside PW1 and jotted down her particulars, ignoring the fact that the baby was standing up on the cart. Noting that the baby was standing on the cart and that there was jostling between the Applicant and PW2, PW1 stopped the bus, called the police and arranged for the passengers to take another bus.
申請人後來意會到如他不應第一証人的要求把手推車摺起的話，第一証人是不會開車的，他於是抱起嬰兒及摺起手推車。可是，當巴士啟程後，申請人再次打開手推車及將嬰兒放在手推車上。申請人更用手臂壓着站在他旁邊的第二証人。第二証人需要一至兩分鐘才能成功推開申請人。申請人之後走到第一証人旁用筆記記下她的資料，其間他沒有理會嬰兒在手推車上起來。第一証人因看見嬰兒站立在手推車上及申請人和第二証人有身體踫撞而停駛、報警及安排車上的乘客轉乘另一輛巴士。

Shortly afterwards, another bus arrived. The passengers on PW1’s bus, including the Applicant, alighted and boarded the other bus. PW1 tried to intercept the Applicant and stop him from boarding the other bus but was pushed by him onto the ground. She got back on her feet and said to the Applicant that he was not allowed to board the bus because she had already called the police. However, the Applicant pushed her away again, and she tried to keep her balance by grabbing the Applicant’s briefcase. The Applicant then shoved her hard, as a result of which she fell onto the ground again (Charge 1). This time the other passengers helped her regain her footing.
不久另外一部巴士駛至，車上包括申請人在內的乘客下車轉乘該輛巴士。第一証人上前攔截申請人及阻止他登車但被申請人推倒在地上。第一証人從地上站立起來後對申請人說他不可以登車，因為她已報警，但申請人再次用手推開她，令她失去平衡，她為了保持身體平衡就用手執着申請人的公事包，申請人使勁地推撞她，令她再次跌倒在地上（第一項控罪），第一証人這次跌倒後需要其他乘客把她扶起來。

Having witnessed the Applicant pushing PW1 onto the ground, PW2 immediately came up and grabbed the Applicant’s clothing by the chest in an attempt to stop him from leaving the scene. The Applicant instantly grasped PW2’s right hand and then put PW2’s right thumb in his mouth and bit it. PW2 felt pain and tried to push the Applicant’s head away, but the Applicant did not let go. Eventually, he bit off PW2’s right thumb (Charge 2).
第二証人看到申請人推倒第一証人後立刻上前抓着申請人胸前的衣服以圖阻止他離開現場。申請人即時以雙手捉着第二証人的右手，並將他的右拇指放進口咬。第二証人感到痛楚，用手推開申請人的頭，但申請人仍不放開口，最後申請人咬斷了第二証人的右拇指（第二項控罪）。

PW3 was another passenger on board the bus. On her testimony, the Applicant pressed against PW2 with his left elbow on the bus and the latter managed to get free only after some struggle. According to PW3, when the Applicant was getting off the bus carrying the baby and the cart, PW1 approached him and said that she had already called the police. She also asked the other passengers to help intercept him. PW1 grabbed the Applicant’s hand.
控方第三証人（‘第三証人’）是巴士上的另外一名乘客，她說申請人在巴士上曾經用左手肘壓着第二証人。第二証人幾經掙扎才可脫身。第三証人指申請人抱着嬰兒及提着手推車下車，這時第一証人走到他的面前說她已經報警，並呼籲其他乘客協助她截停申請人。第一証人用手抓着申請人的手。

PW3 further said that PW1 fell onto the ground possibly because she was shoved by the Applicant, but PW3 did not see how PW1 fell down. PW3 also said that, at the front door of the other bus which arrived subsequently, PW1 grabbed the Applicant’s briefcase in an attempt to stop him from boarding the bus and PW1 then fell onto the ground. And at that moment, PW2 stretched out his finger(s) and rebuked the Applicant for shoving PW1 and causing her to fall onto the ground, and the Applicant grabbed PW2’s hand and bit off his thumb.
第三証人說第一証人可能是被申請人推撞，因而跌倒在地上，但她看不到第一証人如何跌倒。第三証人又說第一証人在後來到達的巴士前門位置抓着申請人的公事包以圖阻止他登車，之後第一証人就跌倒在地上。第三証人說第二証人這時伸出他手指責備申請人推跌第一証人，申請人用手捉着第二証人的手及咬斷他的手指。

Following the incident, PW1 and PW2 were sent to the hospital for treatment. PW1 was diagnosed to be suffering from contusion to her right shoulder blade, low back and right leg. As for PW2, the tip of his right thumb was almost detached, and the site sustained bone fracture and required correction, amputation as well as skin graft for the purpose of covering the injured area. PW2 was hospitalized for 9 days. The tip of his thumb suffered from numbness and the dexterity of his fingers was reduced. After discharge, he had to undergo physiotherapy and occupational therapy.
第一証人及第二証人後來被送往醫院接受治療。第一証人被診斷為右肩胛下背及右腿挫傷；而第二証人的右拇指指頭幾乎脫落，末端指頭骨折，需要進行修正、切斷手術及皮膚移植手術以覆蓋受損部位。第二証人留院九天，他的指尖無感覺，手指靈活度下降，他出後後需要繼續接受物理治療及職業治療。

The Applicant’s defence
申請人的答辯

The Applicant elected to give evidence at trial. He said that PW1 spoke to him after he boarded the bus, but he did not understand Cantonese. He later realized that PW1 wanted him to scoop the baby out of the baby cart and fold up the cart. He therefore picked up the baby from the cart. However, as he was holding the baby with both hands, he was unable to fold up the cart, and so he had no alternative but to put the baby back to the cart. On seeing this, PW1 pulled up when the red traffic light was on and then told the Applicant loudly to fold up the cart. The Applicant was not happy with PW1’s attitude and walked to the location beside her to jot down her particulars for the purpose of making a complaint in the future. PW1 was angry in reaction to that. Subsequently, PW1 drove the bus into a bus stop. After the bus came to a halt, PW1 again asked the Applicant to fold up the cart, but he did not know what to do. At that moment, PW2 scolded him in Cantonese. The baby, who was awakened by the voice, stood up on the cart and cried. The Applicant then heard PW1 say that she had already called the police. After the bus stopped, the Applicant alighted from it to board the other bus that had arrived. He admitted that PW1 did fall onto the ground twice but asserted that he had never pushed her away or made her fall because his hands were occupied in holding the baby and pushing the cart. Nor, he said, did he intend to hurt PW1. According to the Applicant, before her first fall, PW1 did grab his sleeve and he turned in an attempt to get away from her. He then saw her fall onto the ground. Later, when he was about to board the other bus, PW1 again approached him and grabbed his briefcase, causing the strap thereof to fall from his shoulder to his elbow. PW1 then let go of her grip. After he boarded the bus, the Applicant saw PW1 lying on the ground. When PW1 got back on her feet after her second fall, the Applicant had in fact boarded that bus already. However, on seeing PW1 dumping his cart on the road, he got off the bus. At that juncture, PW2 came up to him, shoved him rashly and then attacked him with the fist. The Applicant carried the baby in his arm and held the briefcase with his other hand to shield the baby’s head from attack. PW2 started by hitting the Applicant on the shoulder and chest. He then grabbed the Applicant’s suit collar with one hand and assaulted him with the other hand. After a moment, when the suit became loose amidst the struggle, PW2 grabbed the Applicant’s tie while continuing to assault him. In the course, on the verge of suffocation, the Applicant instinctively opened his mouth, and PW2 assaulted his mouth with his hand, which he thrust into the Applicant’s mouth. Being aware that PW2’s fingers were in his mouth, the Applicant bit PW2’s fingers in self-defence, but PW2 kept hitting him with his fist.
申請人作供自辯。他指當他登上巴士後第一証人對他說話，但他不明白廣東話，後來才意會到第一証人要他抱起嬰兒和收起手推車。他於是抱起嬰兒，但因雙手抱着嬰兒而無法收起手推車，故此無奈地把嬰兒放回手推車上。第一証人見狀就在交通燈亮起紅燈時停車，然後大聲叫他摺起手推車。他因不滿第一証人的態度而走到她身旁記下她的資料以便日後作出投訴。第一証人當時的反應是忿怒。之後，第一証人將巴士駛進一個車站，停車後再次要求他摺起手推車，但他不知道應該怎麼辦。就在這個時候，第二証人用廣東話罵他，嬰兒此時被他的聲音吵醒，並站立在手推車上哭泣。申請人之後聽到第一証人說她已報警。申請人在巴士停下來後下車及登上後來的一輛巴士。申請人承認第一証人曾經兩次跌倒在地上，但他說他的雙手既要抱着嬰兒又要提着手推車，他是沒有用手推開或摔倒第一証人的；他也沒有傷害第一証人的意圖。申請人說第一証人在第一次跌倒之前曾抓着他的衣袖，他就轉身以圖擺脫她，之後他看見她跌倒在地上。申請人又指當他準備登上後來到達的巴士時，第一証人再次上前抓着他的公事包，致令公事包的揹帶從他的肩膊跌落他的手踭位置。第一証人之後放開手。當申請人登上後來到達的巴士後，他看見第一証人躺在地上。當第一証人第二次跌倒後再站立起來時，申請人本來已經登上後來到達的巴士上，但他在看見第一証人將他的手推車丟掉在馬路上而再次下車。此時第二証人出現在他面前，胡亂地推撞他，繼而以拳頭襲擊他，他當時以一隻手抱着嬰兒，另一隻手就拿起公事包遮擋着嬰兒的頭部。第二証人先毆打申請人的肩膊及胸口，繼而用另一隻手執着申請人穿着的西裝衣領，再以另一隻手來毆打他，後來因西裝被扯鬆就抓着他的領帶，繼續毆打他，其間申請人因窒息而不自覺地張開了口，第二証人此時用手打申請人的口，並伸進申請人的口腔內，申請人意識到第二証人的手指在他口腔內，出於自衛他咬第二証人的手指，但第二証人不斷用拳頭擊打他。

Deputy Judge Yim’s verdict
嚴法官的裁決

Deputy Judge Yim accepted the evidence of PW1, PW2 and PW3 on the incident and rejected the Applicant’s defence.
嚴法官接納第一、第二及第三証人對有關事件的証供。嚴法官拒絕接納申請人的答辯理由。

Deputy Judge Yim ruled that, when the Applicant first shoved PW1 and made her fall, he was already aware that the force he used was strong enough to make her fall and get hurt. In spite of that, he then even more forcefully pushed PW1 onto the ground. Deputy Judge Yim therefore found that, when he shoved PW1 for the second time, he deliberately applied stronger force, knowing that it would inflict more serious injuries on PW1. That was an intentional and malicious act. Deputy Judge Yim further found that the Applicant had inflicted grievous bodily harm on PW2 by biting off his thumb tip.
嚴法官裁定申請人在第一次推撞第一証人致令她跌倒時已經知道他所使出的力度是足以令第一証人跌倒受傷的，但他之後還加大力度去推跌第一証人。嚴法官裁定申請人在這一次推撞第一証人時是故意使出更大的力度，並知道此力度會使第一証人受更重的傷害，這是一項故意及存有惡意的行為。嚴法官更裁定申請人咬斷第二証人的指頭是嚴重傷害第二証人的身體。

Fresh evidence: Cheung Hon Man
新的証供：張漢文

Cheung Hon Man (張漢文) worked in the vicinity of the scene of the incident. He was passing by the scene on a bicycle and witnessed what happened. On the following day, he read Sun Daily and noticed that its report about the incident was at variance with what he had witnessed. He immediately called Sun Daily, relating what had actually happened and asking the newspaper to report the truth. However, Sun Daily replied that the arrested man had already given to the police an account of the incident, the content of which was the same as what Mr. Cheung had witnessed, and that Cheung need not worry about it.
張漢文是一名在案發地點附近工作的人士。他當時騎自行車到達現場，並目擊案發經過。翌日，當他閱讀太陽報有關該事件的報導時發現報導內容與他目擊的事實不符，他即時致電太陽報說出實情，並要求該報作出真實報導，但太陽報回覆他說案中被警方拘捕的男子已經向警方交待了案情，而內容與張先生所看到的情況是相同的，並叫他不用擔心。

In early December 2006, Mr. Cheung read Sun Daily and came across another report about the case. The case was at that time being tried, but the content of the report was completely different from what he saw on the day in question. He therefore called Sun Daily again, and the reply he received was that the report was prepared on the basis of information provided by the court.
2006 年 12 月初張先生再次在太陽報看到有關這宗案件的報導。案件當時已進入審訊階段，但該報導的內容與他當日目睹的情況完全不一樣，他於是再次致電太陽報。太陽報給他的回覆是有關的報導是根據法庭提供的資料而撰寫的。

Subsequently, Mr. Cheung purchased a copy of Apple Daily and read its report about the case. He then called Apple Daily and related to a staff member thereof what he saw on the day in question. He was then told to contact by phone the staff of Court No. 23 on 7/F of the District Court Building. Subsequently, he got in touch with a clerk of the District Court, who told him that as the case was being tried, he should lodge an appeal after the conclusion of the trial.
張先生之後購買一份蘋果日報，閱讀有關該案的報導。之後他致電蘋果日報及將當日目睹事件的經過告訴該報的一位職員，該名職員叫他親自致電區域法院七樓23庭與法庭職員聯絡。他之後聯絡上區域法院的的一名書記。該書記告訴他由於案件正在審理中，叫他在審訊完畢後提出上訴。

On 23 December 2006, Mr. Cheung learnt from Apple Daily that the trial had concluded and sentences had been passed. However, the content of the report was different from what he saw on the day in question. Thereafter he received a phone call from the solicitor acting for the Applicant. He told that solicitor what he had witnessed and later, at the request of the solicitor, provided information to the police. On 28 December 2006, in the company of a solicitor, Mr. Cheung went to Sheung Shui Police Station and gave a statement, the content of which is reproduced below:
2006 年 12 月 23 日張先生從蘋果日報獲知案件已經審結，並作出判刑，但該報導的內容與他目睹的事發經過不同。 張先生其後接到代表申請人的律師的來電，他將目擊的事實告訴該名律師，並應律師的要求向警方提供資料。2006 年 12 月 28 日張先生在律師陪同下到上水警署提供口供。以下是他所作出的口供內容：

Sometime after 1 pm that day, having finished my lunch, I was cycling along Pak Wo Road bicycle track in the direction of Fanling on my way back to the school for work. When I reached the bus stop off the school, I saw a stationary 273A bus. A man in suit was standing at the bus stop and pushing a baby cart on which there was a baby. He was surrounded by 3 or 4 persons who scolded him in foul language. The front and middle doors of the bus were both open. Some of the passengers on the lower deck also scolded the man in suit. However, I have no idea how and why they scolded him. I was about 4 metres away from him. About 2 minutes later, another 273A bus arrived. The driver of the first bus told the passengers on board that the police had been called, and she asked them to board the other bus which was behind her bus. After all the passengers from the bus in front had boarded the other bus, the man in suit pushed the baby cart towards the other bus and lifted it with both hands to get on the bus through the front door. After boarding the bus, he pushed the cart to the centre of the bus. At that moment, the driver of the first bus, who had been chasing after the man, got onto that bus. She pulled the cart to get it off the bus through the front door, and also said that the police had been called and the man was not allowed to go. The man in suit pulled the other end of the cart. When the driver stepped onto the ground while pulling the cart, she got wrong footed, lost her balance and went down on her knees. At that juncture, she shouted that the Mainland guy was pushing and assaulting her. She then regained her footing and continued to pull the cart to get it off board. Eventually, both the cart and the man in suit were off onto the ground. The driver continued to pull the cart to the roadside, and I saw her tripping over the concrete barrier on the roadside and falling flat on the ground. She again shouted that she was assaulted by the Mainland guy. Three to 4 male onlookers then approached the man from the roadside and took him from the road to the pavement. I then carried the cart from the road to the pavement. And then I saw one of the men grabbing the man in suit from behind and striking a blow with his left hand from behind towards the man’s lower back, while two other men were grabbing the man’s clothing by the chest and his right arm respectively. I was about one metre behind the man to his left. Seeing that the baby had stood up on the cart, I immediately scooped up the baby. As the men continued to assault the man in suit, I shouted at them, saying that they should stop the assault in the presence of a child. They then stopped. The man in suit then came to me and I passed the baby back to him. At the same time, I saw that one of the men, whose hand was bleeding, still wanted to kick the man in suit. I shouted at him, telling him to stop. After that, the parties calmed down. I took a look at the bleeding man and noticed that his thumb was broken. As the people involved had calmed down and the police had been called, and I was in a hurry back to work, I then left the scene!
係當日下午 1 點多時，我踩住我部單車沿百和路單車徑向粉嶺方向剛食完飯打算返學校工作，當我踩到學校對出巴士站時，我就見到當時站停住一部 273A 路線巴士，而巴士站當時企住一個穿著西裝男子，手推住一部BB 車，而BB 車上有一小孩，當時西裝男子被三、四名男女圍住並被用粗口指罵，而當時巴士前門及中門都打開住，下層嘅部份乘客亦向住西裝男子指罵，但佢地閙嘅內容及原因我就唔係咁清楚，當時我與西裝男子距離約 4 米左右，大約兩分鐘之後，後面再有另一部 273A 巴士到來，咁第 1 部巴士嘅司機就同車上乘客講已報咗警，並叫佢地去後面巴士上車，當前面巴士嘅乘客全部上咗後面巴士之後，西裝男子就推住BB車去到後面巴士，跟任就用雙手抬起 BB 車，從前門上車，上咗車之後，西裝男子將 BB 車推到車中間位置，這時第一部巴士司機就追上並上咗後面巴士，跟住司機就拉住 BB 車，從前門拉返 BB 車落車，並話已經報咗警唔比走，而西裝男子亦拉住 BB 車另一邊，當司機拉住 BB 車行到落地下時，司機叉錯腳失平衡跪在地上，這時個司機就大叫大陸仔推佢打佢，跟住司機起翻身，繼續拉住 BB 車落車，最後 BB 車同西裝男子都落到地，再跟住司機繼續拉住 BB 車埋路邊，這時我就見司機絆倒路邊石壆，整個人就瞓在地上，這時司機又再大叫大陸仔打佢，跟住在路旁有3 至 4 個圍觀嘅男子上前，將西裝男子從馬路捉上行人路，而我當時就將在馬路上嘅 BB 車抬回行人路上面，之後我就見到其中一名男子從後扼住西裝男子，並用左手從後打向西裝男子後腰位置，而有一人就手執著西裝男子胸口衣物，另一人就捉住西裝男子右手，而當時我與西裝男子約一米距離，在佢左後方，再後我見 BB 車上嘅小孩企咗起身，隨即我就一手抱起 BB，當我抱起小孩之後，我就見佢地再打西裝男子，隨即我就喝止話有細路，唔好再打，跟住佢地就已經停咗；西裝男子就行向我度，我就將抱住嘅小孩交返比西裝男子，與此同時，我見其中一名手部流緊血嘅男子，繼續想用腳踢西裝男子，但我隨即喝止，其後雙方都已經平靜，我亦有睇過手部流血嘅男子，見佢手指公斷咗，由於當時已經平靜，加上已經報咗警，我亦趕時間返工，所以我跟住就離開咗喇！’

In the same statement, Mr. Cheung also answered the following questions regarding the case:
張先生在該份口供中亦解答了以下有關案件的提問：

Q4:Did you clearly see how the man, who had his thumb broken, got injured?
問 4 ：你有無清楚見到斷手指嘅男子係點樣受傷架？

A4:I did not see that because the man in suit had his back towards me and therefore blocked my sight.
答 4 ：因為西裝男子背住我，所以遮咗我視線，我睇唔到。

Q5:In the course of the incident, did you hear the man in suit say anything?
問 5 ：係過程裏面，你有無聽到穿西裝男子講過任何說話？

A5:Throughout the incident, the man in suit said a few times in Putonghua, ‘you Hong Kong people are bullying me, a Mainlander’.
答 5 ：整個過程裡面，西裝男子講過幾次話「你地香港人欺負我呢個大陸人」，用國語講。

Q6:You said the driver pulled the baby cart from the second bus onto the ground. Does ‘the ground’ refer to the road or the pavement?
問 6 ： 當司機將 BB 車從第二部巴士拉到地面時，地面係指馬路還是行人路呀？

A6:The road.
答 6 ：馬路。

Q7:Do you have anything to add?
問 7 ：你仲有無野要補充呀？

A7:When the man in suit was being assaulted, he was in fact got hold of by others. He could not have grabbed someone with both hands and bitten him as described in the newspaper. Nor had he pushed the driver onto the ground. For this reason, I am coming forward to have the facts clarified with the police.
答 7 ：西裝個男子比人打果陣時根本比人捉住，無可能如報紙上面所講佢用雙手捉住人咬，而且都無推跌過司機，就因為叻樣我先出來向警方澄清。’

Mr. Cheung gave another statement to the police on 21 January 2007, in the course of which he gave the following answers to questions concerning the circumstances of the incident:
張先生在 2007 年 1 月 21 日再向警方提供另一份口供，其中有關案件發生情況的提問，張先生作出以下的答案：

Q1:When you first contacted the solicitor handling this case, what did you say to him in giving an account of what you saw?
問 1：係你第 1 次接觸呢宗案件嘅律師時候，你點樣向律師交待呢宗案件所睇到嘅野呢？

A1:I told the solicitor that on that day I was riding a bicycle to school after lunch. Upon reaching the 273A bus stop off the school, I saw the Mainland guy pushing the baby cart with a baby in it. He was surrounded by 3 or 4 persons, who scolded him as a Mainland guy. Then the second bus arrived and the passengers left the first bus and boarded the second bus. The Mainland guy was the last one to board the second bus. The driver of the first bus then went to the second bus, intending to move the baby cart off the bus. When she was moving the baby cart onto the ground, she lost balance and fell. She accused the Mainland guy of hitting her, and then other people went up to him and hit him. During that time, when the driver tried to pull the baby cart back onto the pavement, in the course of which she fell onto the ground again. Then someone grabbed the Mainland guy and dragged him onto the pavement, where he was hit with fists and legs. At that moment, I saw the baby standing and crying on the cart, and so I went up and scooped up the baby. Having done so, I told the group to stop fighting in the presence of a baby. When the Mainland guy approached me, I saw blood at the corner of his mouth. Then someone tried to rush over to hit the Mainland guy again. I noticed that the thumb of that person was broken and bleeding, and I shouted at him to stop him. Subsequently, as they had stopped fighting, I went back to school for work!
答 1：我就向個律師講話我果日食完飯之後踩住架單車返學校，當去到學校出面 273A 號巴士站時，就見到個大陸仔推住架 BB 車，上面有個 BB，我見個大陸仔比 3 至 4 個人圍住，並比人閙大陸仔，跟住後面就有架巴士嚟喇，之後啲乘客就轉車，而大陸仔就最後一個上第 2 架巴士，跟住第 1 架巴士嘅司機就去第 2 架巴士，並打算抬返架 BB 車落車，就係抬架 BB 車落地時，巴士司機就失平衡跌咗落地，跟住司機就話大陸仔打佢，跟住就有其他人走埋去打大陸仔，其間巴士司機打算將 BB 車拉回上行人路時巴士司機又再一次跌咗係地上，跟住有人扼住大陸仔拉上行人路再而有人用拳同腳打大陸仔，就係果個時時候，我見 BB 車上嘅 BB 企咗係 BB 車上面，並且喊，所以我就埋去抱起 BB，我抱起咗 BB 之後我就叫佢地唔好打有 BB 係度，當大陸仔行近我時，我就見大陸仔口角有血，之後有人想沖過來想再打大陸仔時，我就見果個人隻手指斷咗，並流血，我又再次喝止，之後我見佢地無再打，我就返咗學校做野喇！’

Q10:Can you tell me the respective positions of all the parties involved when AP was being assaulted?
問10：可唔可以講下 AP 被人打時各人嘅位置呀？

A10:At that time, the Mainland guy was facing Sheung Shui Government Secondary School. To the Mainland guy’s right, someone was grabbing his arm. Another person was grabbing his neck from behind, and a third person was hitting him from the left.
答10：當時大陸仔面向上水官立中學，大陸仔右邊有人捉住拒手，後面再有一人扼住佢條頸，左邊就有一人打大陸仔。’

On 29 November 2007, i.e. the first day of hearing of the present appeal, Mr. Cheung told us how he contacted the newspaper and court staff and eventually went to the police station to give statements. We adjourned the hearing and ordered the police to investigate the incident in light of Mr. Cheung’s account. In response to the investigation, Sun Daily indicated that it would not provide information to the police unless ordered by the court to do so. A reporter at Apple Daily’s court news unit revealed to the police that he was told by his company that Mr. Cheung had previously called the company, saying that he had read newspaper reports on the circumstances of the wounding case and the outcome of the court case against the Applicant but that the circumstances were different from what Mr. Cheung had witnessed at the scene. The newspaper therefore passed Mr. Cheung’s phone number on to the reporter so that he could contact Mr. Cheung direct in respect of the matter. That reporter later made enquiries with Mr. Cheung, recorded what Mr. Cheung said about what he had seen at the scene, and subsequently reported it in the newspaper. The reporter knew the solicitor formerly acting for the Applicant and therefore told that solicitor Mr. Cheung’s phone number and the circumstances of the incident. Thereafter, the reporter was no longer involved in the matter.
張先生在2007 年 11 月 29 日即本上訴聆訊的第一日告訴本庭他如何聯絡報社和法庭職員及最終到警署提供証供的始末。本庭在當日決定押後聆訊，命令警方對張先生所說的經過作出調查。警方的調查結果是太陽報表示除非有法庭命令，否則該報是不會向警方提供資料的。蘋果日報的一名法庭組記者向警方透露他的報社告訴他張先生曾經致電報社說他看到報章報導申請人傷人事件經過及判案的結果，但事件經過與他在案發現場所見到的情況不一樣，所以報社將張先生的電話號碼轉交給他，由他直接聯絡張先生了解事件。該名記者之後向張先生作出查詢及記下張先生述說在案發現場所見的情況，他其後在報章上作出有關報導。該名記者因認識代表申請人的前任律師，所以他告訴該名律師張先生的電話號碼及有關事件發生的情況。之後，他再沒有牽涉其中。

Mr. Cheung appeared in court again on 23 September 2008, the second day of hearing of the present appeal. He again described how he got in touch with the newspaper and eventually went to the police station to give statements, as well as the circumstances of the incident. He was also cross-examined by Miss Louisa Lai, Senior Assistant Director of Public Prosecutions.
張先生在2008 年 9 月 23 日即本上訴聆訊的第二天再次出庭。張先生在庭上再次述說他如何與報社接觸及最終到警署提供証供的經過、案件事發的經過及接受律政司高級助理刑事檢控專員黎雅雯的盤問。

Assessment of Cheung Hon Man’s evidence
本庭對張漢文証供的評核

In our judgment, Mr. Cheung is a veracious and credible witness. He is a school janitor who has received only primary education. We find him a simple yet upright witness. Under cross-examination, when asked why he did not approach the police direct and tell them what actually happened, he replied that he sought clarification with the newspaper because of its untrue report on the incident. He added that he was someone who was reluctant to have any involvement with the authorities. After the incident, he sought advice from his colleagues on how to handle the matter. Some of them encouraged him to provide information to the police, but some warned him that he might face retaliation if he testified, and he decided not to contact the police. Subsequently, it was only with the company of a solicitor that he was willing to go to the police station to provide information. We accept Mr. Cheung’s explanation. He is plainly a person with the traditional mindset of ‘never going to the authorities as long as one is alive’. In our view, given the considerable influence of the local media on the public, it was not unusual for Mr. Cheung to elect to contact the media instead of the police after the incident.
本庭裁定張先生是一名誠實、可信的証人。他是一名學校校工，只接受過小學教育。本庭認為他是一名簡單但正直的証人。當他在接受盤問時被問及為何事發後他不將真相告直接告知警方，他的回覆是他因報章的報導失實而致電報社要求他們作出澄清。他續說他是一名不願意與官方有任何接觸的人士。事發後，他曾經就如何處理該事諮詢過一些同事的意見，有些鼓勵他向警方提供資料；有些則告誡他如果他作証他可能會被人尋仇，故此他決定不聯絡警方。後來因有律師陪同，他才願意到警署提供資料。本庭接納張先生的解釋，他明顯是一名有「生不入官門」的傳統觀念的人士。本庭認為香港傳媒對市民甚具影響力，張先生在事發後選擇與傳媒而非政府部門接觸並不算不尋常。

The time at which Mr. Cheung contacted the newspaper publisher and the court was in accord with the dates of trial. The case was heard in the District Court from 4 to 6 December 2006, with the Court receiving evidence on the first two days and hearing submissions from both parties on the third day. Deputy Judge Yim gave judgment on conviction on 7 December 2006 and adjourned the case to 22 December 2006 for sentencing.
張先生與報社及法庭聯絡的時間與原審的日期吻合。案件在 2006 年 12 月 4 至 6 日在區域法院審理。法庭在首兩天聆聽証供，於第三天聆聽雙方陳詞。嚴法官在 2006 年 12 月 7 日作出判決及將案件押後至 2006 年 12 月 22 日作出量刑。

Mr. Cheung jotted down the telephone number of the newspaper publisher on the back of a Mark Six ticket dated 5 December 2006, i.e. the second day of trial. The content of the subsequent telephone conversation between Mr. Cheung and the court staff also shows that the court had given judgment on conviction and was yet to pass sentence.
張先生在一張六合彩的收條背後記下報社的電話號碼，該收條的日期是  2006 年 12 月 5 日，亦即案件審訊的第二天。張先生之後與法庭職員聯絡的電話內容亦反映出法庭已作出裁決但未量刑的事實。

More importantly, Mr. Cheung has in the Court given a well-organized and completely truthful account of the course of events that he witnessed. He was indeed at the scene at the material time. In fact, in the evidence at trial there was also mention of a man riding a bicycle turning up at the scene. Despite the rather rigorous cross-examination, the credibility of Mr. Cheung’s evidence was unimpaired. As regards the material facts pertaining to Charge 2, he frankly admitted that he did not witness the Applicant biting another person. We fully believe and accept Mr. Cheung’s evidence.
更重要的是張先生在法庭述說他目睹事件的經過的証供是條理分明，沒有半點虛假，張先生當時的確是身處現場。原審的証供亦說過現場有一名騎着自行車的男士出現。雖然張先生面對頗為尖銳的盤問，但他的証供可信性沒有受損。他就涉及本案第二項罪行的重要情節上坦然承認他看不到申請人咬人的情形。本庭絕對相信及接納張先生的証供。

Legal principles
法律原則

Section 83(1)(a) of the Criminal Procedure Ordinance (Cap. 221 of the Laws of Hong Kong) provides that the Court of Appeal shall allow an appeal against conviction and set aside the relevant conviction if it thinks that under all the circumstances of the case the conviction is unsafe or unsatisfactory. Once fresh evidence is admitted, the only issue for the Court of Appeal is whether such evidence would render the conviction unsafe or unsatisfactory: see R. v. Pendleton [2002] 1 All ER 524 and Stafford v. Director of Public Prosecutions [1974] AC 878.
根據《刑事訴訟程序條例》 （香港法例第221章）第83(1)(a)條，上訴法庭如認為案件在所有的情況下定罪是不穩妥或並不令人滿意便須判決上訴得直，命令定罪作廢。上訴法庭在接納新的証據之後唯一需要考慮的是有關的証據是否會令定罪不穩妥或不令人滿意：見R. v. Pendleton [2002] 1 All ER 524 及 Stafford v. Director of Public Prosecutions [1974] A.C. 878。

In Stafford, Lord Cross of Chelsea pointed out the following three possible consequences of the Court accepting fresh evidence:
Lord Cross of Chelsea 在 Stafford 一案指出法庭接納新的証供後可能會產生以下三種後果：

First, where the fresh evidence will create in the case new complexity so that the court will be satisfied that the conviction is unsafe, the court will quash the conviction and not order a retrial.
第一，新的証據會令案件產生全新的複雜性，令到法庭確信定罪是不穩妥的，這會令法庭撤銷定罪及不命令重審。

Second, where the fresh evidence, though credible and relevant to the facts of the case, is not of such weight as to cast any reasonable doubt on the prosecution case, the court will uphold the conviction.
第二，新的証供雖然可信及對案情有關連，但新証據的分量並不能對控方案情產生任何合理疑點，在這情況下，法庭是會維持定罪。

Third, where, having considered the fresh evidence or the evidence adduced by the prosecution in rebuttal, the jury may convict the defendant or may acquit him, the court will have to order a retrial.
第三，在考慮新的証據或控方在針對這些証據所提交的反駁証據時，陪審團可能判被告人無罪，亦可能判他有罪，在這情況下，法庭需要命令案件重審。

Unsafe conviction
定罪不穩妥

In the present case, we are of the view that Mr. Cheung’s evidence has rendered the convictions unsafe and unsatisfactory. Mr. Cheung is an independent witness of the incident which gave rise to the two charges against the Applicant. Two items of material evidence given by him are diametrically opposed to those adduced by the prosecution:
在本案本庭認為張先生提供的証供是令定罪的裁決不穩妥及不令人滿意的。張先生是一名獨立人士，他目睹涉及兩項控罪的事發經過。他所提出的兩項重要証供與控方所提出的極之不同：

First, on both occasions PW1 was pulling the cart before she fell onto the ground. She fell by herself and was not shoved to the ground by the Applicant.
第一，第一証人在兩次跌倒之前都是用手拉着手推車，她是自己跌倒而不是申請人推跌她的。

Second, the Applicant was being attacked by several persons, including PW2, when he bit off his thumb. The circumstances at that time were chaotic.
第二，申請人在咬斷第二証人手指時正受到多名人士襲擊，其中包括第二証人，當時情況混亂。

The discrepancies between the aforesaid two items of evidence and the original evidence have a direct bearing on the court’s assessment of the evidence. They go directly to the issues of whether the Applicant did shove PW1 onto the ground and cause grievous harm to PW2 with intent as alleged.
上述兩項証供與原本証供的分歧是會直接影響法庭對証供的評核。它直接影響申請人有否推跌第一証人及是否意圖導致第二証人嚴重傷害的指控。

The original evidence on the circumstances in which PW1 fell is entirely different from Mr. Cheung’s account. Miss Lai submits that, even on the Applicant’s own evidence, the circumstances were merely that PW1 was grabbing the Applicant’s sleeve and his shoulder bag and there was no mention of PW1 pulling the Applicant’s baby cart, was and this is different from Mr. Cheung’s account. In our view, this does not mean that Mr. Cheung’s observation was erroneous. According to the Applicant, he was carrying the cart when he boarded the second bus, and subsequently PW1 tossed it onto the street. In our view, it was not entirely impossible for PW1 to have pulled the cart apart from pulling the Applicant’s clothing. In light of the discrepancies in evidence, the Applicant’s conviction on Charge 1 is unsafe.
在原本証供上有關第一証人跌倒在地上的經過與張先生所說的版本完全不同。黎律師指出就算根據申請人本人提供的証供他也只是說第一証人執着他的衣袖及揹袋，而沒有說過第一証人拉着他的手推車，這與張先生所作出的証供不同。本庭認為這不表示張先生的觀察是錯誤的。申請人說他登上第二輛巴士時是提着手推車的，而後來第一証人將手推車丟掉到街上。本庭認為第一証人除了拉扯申請人衣物外，還拉扯過手推車並不是完全不可能發生的事情。基於証供的分歧，第一項定罪的裁決是不穩妥的。

Turning to Charge 2, PW2’s evidence was that after he saw PW1 fall down, he came up and grabbed the Applicant’s clothing by the chest and stopped the Applicant from boarding the second bus, and the Applicant instantly grabbed PW2’s hand, put it in his mouth and then bit his thumb. He felt pain and tried to free his right hand from the Applicant’s mouth but in vain. The Applicant opened his mouth only after he had bitten off part of PW2’s thumb tip. According to Mr. Cheung, the person whose thumb was bitten off was one of those who were assaulting the Applicant and at that time that person was not at all aware that his thumb had already been bitten off. As that person continued to kick the Applicant, Mr. Cheung shouted at him to stop him and told him that his thumb was bleeding. Only then did he realize that his thumb tip had been bitten off. If, as PW2 said, the Applicant got hold of his thumb, put it in his mouth and bit it immediately after the two of them had body contact, then he could not possibly have been unaware that his thumb was bitten off. More importantly, Mr. Cheung’s evidence lends support to the Applicant’s case that he bit PW2’s thumb because he could not breathe and had to defend himself as a result of PW2’s attack.
至於第二項控罪，第二証人的証供是當他看見第一証人跌倒後，他便上前執着申請人胸口的衣服及阻止他登上第二輛巴士，申請人就立即用雙手捉着他的手放入口中及咬他的手指；他感到痛楚，他嘗試從申請人的口中抽出右手但不成功。申請人直至咬斷他部分的手指頭後才張開口。張先生說被咬斷手指的人是其中一名毆打申請人的人士，這人當時根本不知道他的手指已經被咬斷。由於這個被咬斷手指的人還繼續用腳踢申請人，故此張先生喝止他及告訴他他的手指在流血。之後，這人才發現他的手指頭已經被咬斷。若根據第二証人的証供，當申請人與他有身體接觸後便立即用雙手捉着他的手指及放進口中咬的話，第二証人是不可能不知道他的手指被咬斷的。更重要的是張先生的証供支持申請人說他是受到第二証人的襲擊後因不能呼吸及出於自衞而咬第二証人的手指。

Conclusion
總結

In our assessment, Mr. Cheung’s evidence is highly credible. We are satisfied that his evidence does render the convictions unsafe. In our judgment, the present case falls within the first scenario set out by Lord Cross. We therefore allow the appeal, set aside the convictions and make no order for retrial.
本庭評定張先生証據的可信性極高。本庭肯定他的証據是會令到定罪不穩妥的，本庭認為本案屬於 Lord Cross 所列出的第一種情況。故此本庭批准上訴、撤銷定罪及不作出任何重審命令。

Miss Louisa Lai, Senior Assistant Director of Public Prosecutions, for the Respondent.
答辯人：由律政司高級助理刑事檢控專員黎雅雯代表。

Mr. Chan Siu Ming, instructed by Kong & Chang on assignment by the Legal Aid Department, for the Applicant.
申請人：由法律援助署委派江偉強、張振邦律師行轉聘陳銚明大律師代表。