Hon Yeung, JA (giving the judgment of the Court):
上訴法庭法官楊振權頒發上訴法庭判案書：

Introduction
引言

The applicant Chu Chi Wah was indicted for 13 offences, other than the 7th offence, which was Conspiracy to Procure an Abortion, all the other 12 offences were Unlawful Sexual Intercourse with an Underage Girl.
申請人朱志華被控共13項控罪, 除了第7項串謀促致流產罪外，其他12項控罪都是與未成年女童非法性交。

The victim of this case X was a girl born on 3 December 1991.  At part of the times of the commission of these offences, i.e. before 2004, X was under 13, while at other times she was over 13. Therefore, 7 of the 12 counts of Unlawful Sexual Intercourse with an Underage Girl for which the applicant was indicted (i.e. counts 1-6 and count 8) were Unlawful Sexual Intercourse with a Girl under 13, and the other 5 counts (i.e. counts 9-13) were Unlawful Sexual Intercourse with a Girl under 16.
案中受害人女童X在1991年12月3日出生。案發時的一段時間，即2004年前，X年齡在13歲以下，另一段時間，她則超過了13歲。因此申請人被控的12項與未成年女童非法性交罪中有7項是和13歲以下女童非法性交（即1-6，8項）,另外5項，即（9-13項）則是和16歲以下女童非法性交。

The applicant denied all the charges.  He was tried before Deputy High Court Judge Maggie Poon (as she then was) with a jury.  The trial began on 12 March 2009.
申請人否認全部控罪，在2009年3月12日開始在高等法院暫委法官潘敏琦（當時職階）席前會同陪審團接受審訊。

On 18 May 2009, the jury returned a verdict of guilty in respect of counts 1 to 6 and counts 8 to 12 of the Unlawful Sexual Intercourse with an Underage Girl offences, while the verdicts in respect of count 7 Conspiracy to Procure an Abortion and count 13 Unlawful Sexual Intercourse with a Girl under 16 were not guilty.
2009年5月18日，陪審團裁定申請人第1至第6項及第8項至第12項與未成年女童非法性交罪罪名成立，第7項串謀促致流產罪和第13項與16歲以下女童非法性交罪則罪名不成立。

For counts 1, 2, 3 - 6 and count 8 of the Unlawful Sexual Intercourse with a Girl under 13 offences, the applicant was sentenced to 8 years’ or 6 years’ imprisonment for each count.  The sentences are to run concurrently.  As for counts 9 to 12 of the Unlawful Sexual Intercourse with a Girl Under 16 offences, the applicant received 4 years’ imprisonment on each count.  The sentences are to run concurrently, but 2 years of the term is to run consecutively to the aforesaid 8 years’ imprisonment.  The defendant has to serve a total of 10 years’ imprisonment.
就第1、第2、第3至第6項及第8項與13歲以下女童非法性交罪，申請人被判每罪入獄8年或6年，同期執行，就第9至第12項與16歲以下女童非法性交罪，申請人則被判每罪入獄4年，同期執行，但其中兩年要和上述8年的判刑分期執行，申請人需服刑共10年。

The applicant seeks leave to appeal against his conviction.
申請人不服定罪，現提出上訴許可申請，要求獲准就定罪上訴。

Prosecution case
控方案情

The facts of the case and the issues raised in the appeal are not particularly material, and a brief description is sufficient.  The applicant was the teacher of X.  He started teaching her since she was a primary 2 student.  In September 2003 X was promoted to Form 1 and from that time onwards, she went to the applicant’s home to receive private tuition.  The place where the applicant gave private tuition was his dwelling place at No. 385 Nathan Road, Yaumatei, Kowloon.
案件事實和上訴引發的議題重要性不大，故只需簡述。申請人是X的老師，自X小學二年級開始教她。2003年9月X升讀中一後，開始到申請人家中補習。補習地點為申請人位於九龍油麻地彌敦道385號之居所。

X stated that starting from January 2004 the applicant had sexual intercourse with her on multiple occasions.  X remembered that the 1st occasion took place between 1 January and 29 February 2004; that the 2nd occasion was one to two weeks after the 1st one; that the 3rd occasion was also one to two weeks after the 2nd one; and that the 4th, 5th and 6th occasions took place between 1 March 2004 and 30 June 2004.
X指自2004年1月開始申請人多次和她發生性行為。X記得第一次是在2004年1月1日至2月29日期間發生；第二次和第一次相隔約一個多星期；第三次亦是在第二次發生後一個多星期進行；而第四、五、六次則在2004年3月1日至2004年6月30日期間發生。

According to X, before her 13th birthday i.e. before 3 December 2004, she had sexual intercourse with the applicant several dozen times.  At the beginning, it was once or twice every one to two weeks, but then it became more and more frequent.  X specifically said that during May and June in 2004, on every Saturday after she finished jogging she stayed overnight at the applicant’s dwelling place and that she had sexual intercourse with him once or twice each week.  She said that as a result of these activities she was pregnant and that in July or August in 2004 she had an abortion.  Less than 2 weeks after the abortion, the applicant resumed having sexual intercourse with her.
據X所稱，她13歲生日，即2004年12月3日前，她和申請人性交有數十次。開始時約每一、兩星期一兩次，但其後愈來愈密。X特別指出在2004年5、6月期間，她每星期六跑完步都會到申請人的居所過夜，而每星期都會和他發生一、兩次性行為。她又指事件導致她懷孕，並在2004年7、8月期間接受墮胎手術，而接受墮胎手術不足兩星期後，申請人再開始和她發生性行為。

X gave evidence that after her 13th birthday i.e. after 3 December 2004, the applicant had sexual intercourse with her regularly, about 10 times every month.  The last time was in December 2006.
據X所稱她年滿13歲，即2004年12月3日後，申請人經常和她發生性行為，每月約10次，而最後一次是在2006年12月發生。

The evidence-in-chief of X was given by way of video recording according to section 79C of the Criminal Procedure Ordinance (“the Ordinance”).  The video recording of the evidence-in-chief was done in November 2008.  X could not remember clearly the exact time when each intercourse with the applicant took place.  However, she could recall that the 1st time took place in January or February of 2004.
X是根據《刑事訴訟程序條例》（“條例”）第79C條以錄影紀錄作為主問證供。主問證供錄影時間為2008年11月。X不能詳細記得每次和申請人性交的的確實時間，但她能說出第一次是在2004年1月或2月發生。

X said that in May and June 2004, she had sexual intercourse with the applicant nearly 3 times weekly, and that consequently she was pregnant in July or August 2004.  She said the applicant suggested that she should have an abortion and he accompanied her to a On Kay [transliteration of 安琪] Gynaecological Clinic.  She alone entered the clinic.  After the abortion, the applicant picked her up and they left the clinic together.
X亦指在2004年5、6月差不多每星期3次和申請人性交而她更因此在2004年7、8月懷孕。她指申請人建議她去墮胎並陪同她一起前往一「安琪婦科」。她一人進入診所，墮胎後，申請人接她離開診所。

X went on to say that after the abortion and up to December 2006 when they broke up, she had sexual intercourse with the applicant on average 2 to 3 times a week.  X pointed out that after the abortion, sexual intercourse should be suspended for at least 1 month, but in less than 2 weeks the applicant asked her to allow him to make love to her.
X亦指墮胎後至兩人在2006年12月分開期間，平均每星期都和申請人發生兩、三次性行為。X更指墮胎後應最少一個月才性交，但不足兩星期後，申請人已要求和她性交。

When the defence counsel cross-examined X, he put it to her that she had strong desire to show off, that she was very good at creating something out of nothing and that she had lied before.  X answered that a human being would certainly lie but she would not take the risk to lie in Court.  She maintained that all her evidence was true.
辯方大律師盤問X時，指她有表演慾，又擅長創作，亦曾說謊。X表示人一定會講大話，但她不會冒險在法庭說謊，而她的證言全部屬實。

The counsel submitted that X’s evidence was not credible, that it was riddled with contradictions and that part of her evidence was not consistent with the witness statements given to the police.  X admitted that she did not tell the whole truth in her witness statements because during the interviews with the police officers, her mother was present and she did not know everything about this matter.
大律師指X的證供不可信，亦甚多矛盾，更部份和向警方提交的證人供詞不符。X承認警員會見她時因為媽媽在場，而她亦未知悉整件事件，故沒有在證人供詞中將事實全部說出。

X stressed that she did not know that it was wrong to have sexual intercourse with the applicant.  She trusted the applicant and thought that what she did with the applicant could not be wrong.  X said that she continued to go to the applicant’s home to receive private tuition because she did not want her mother to become suspicious.  She explained that after her first sexual intercourse with the applicant, she did not “care” about it anymore, so she did not refuse to continue to have sexual intercourse with the applicant.
X強調她不知道和申請人性交是不對的，同時她相信申請人並認為和申請人做的事都不會錯。X又表示繼續到申請人家中補習是避免媽媽懷疑。她更表示和申請人第一次性交後，再唔“care”，故沒有拒絕繼續和申請人性交。

Based on the information provided by X, the police searched a Pang On Kay [transliteration of 彭安琪] Chinese Medicine Clinic.  No western medicine or abortion equipment was found in the clinic, so no one was prosecuted after investigation.
警方曾根據X提供的資料，搜查一彭安琪中醫診所，警員發現診所內沒有西藥，亦沒有墮胎工具，故調查後並無起訴任何人。

Besides X, X’s mother also gave evidence against the applicant.  Her evidence was that after X was promoted to secondary school, she asked the applicant to allow X to go to his dwelling place to receive private tuition. Initially, she picked up X and went home with her.  Later, she allowed X to return home on her own.  Some time after that, X said that she would play ball games on Saturdays at Aberdeen with the applicant and other schoolmates, and that when the ball games were over, it would be very late at night and besides, the homework was left at the applicant’s home.  The result was that she allowed X to stay overnight at the applicant’s home.
除了X外，她的媽媽亦有作供指證申請人。X的媽媽表示，X升讀中學後，她要求申請人容許X前往他的住所補習，初期她會接X返家，後來則容許X自己返家。其後X表示星期六會和申請人及其他同學前往香港仔打球，因打球後太晚，加上習作留在申請人家中，她結果容許X在申請人家中過夜。

X’s mother testified that she had received a telephone call from the applicant.  At that time the applicant called himself “Chu Sir”.  He said that he and X had “fallen in love”.  She said to the applicant, “ Don’t have any misunderstanding.  You are her teacher now and throughout your life you will be her teacher.  This kind of bond will last even longer.  Don’t fancy about that thing; don’t have excessive desire.  You’d better continue to be her teacher.  The difference in age between the two of you is so big that even if I accept that and even if there is any result, it won’t last.  The divorce rate nowadays is so high.  I just want my daughter to concentrate in her education.”
X的母親更表示，曾收過申請人的電話，當時申請人自稱朱Sir，並表示和X“鐘意咗”。她則向申請人說：“你唔好誤會呀，一日為師，終生為師，情義重長喇，你唔好多心，唔好貪心，不如企番出嚟，做教師喇，你哋年紀又相差咁多，就算我接受，有結果都唔會長久嘅，而家離婚率又咁高我淨係想個女讀書啫。”

X’s mother said that she had questioned X about this but X said “There’s nothing”.  At last, she decided that she would not allow X to go to the applicant’s home to receive private tuition any more.  X’s mother insisted that the person who telephoned her and claimed that he and X had “fallen in love” was the applicant.
X的母親表示曾質問X，但X表示“冇嘢呀”，但她最終決定不再容許X前往申請人家中補習。X的母親力稱打電話給她聲稱和X“鐘意咗”的人就是申請人。

Dr Lau [transliteration of 劉] of the Forensic Pathology Service gave evidence that he examined X on 12 September 2008 and found that there were tears in her hymen which were probably caused by sexual intercourse.  However, he could not be sure when the sexual intercourse took place, nor could he tell whether X had undergone any abortion operation.
法證科劉醫生亦有作供，劉醫生在2008年9月12日檢查X，發現她的處女膜有裂縫，很可能是性交造成，但他不能決定性交何時進行，亦不能肯定X是否曾經進行過墮胎手術。

Defence evidence
辯方的證供

The applicant’s case was that X lied and falsely accused him.  In his evidence, he admitted that he began to teach X when she was in primary 3.  His description of X was that she was lively, talkative, fond of play, imaginative and would do something aggressive against those who were more able than she.
申請人指X說謊誣告他。作供自辯時，申請人承認X三年級時已開始教她。申請人指X性格活潑，多嘴，貪玩，有創意，亦會針對和攻擊能力較她強的人。

The applicant admitted that in September 2003 after X was promoted to Form 1, she began to go to his home to receive private tuition.  Later, because there was a lot of homework to do, she stayed at his home until 8-9 o’clock.  Starting from September 2004, X stayed overnight at his home on Saturdays.  X slept in his bedroom, while he and 2 male students “ slept in the living room.”
申請人承認2003年9月，X升中一後開始到他家中補習，後來因為功課多，留在他家中至8、9點。2004年9月開始，X更在星期六在他家中過夜。X會睡在他的睡房，而他和兩名男生則“瞓廳”。

The applicant agreed that in early 2005 he, at the request of X, provided her with a telephone, but X had never returned to him the money required for the telephone.  The applicant said that on [one] occasion, X lost temper over some minor matters and asked her mother to come at once to take her away from the applicant’s home.
申請人同意曾應X的要求在2005年初出了一部電話給她，但X最終沒有歸還所需款額。申請人亦指X曾因一些小事發脾氣，要其母親立刻接她離開申請人的居所。

According to the applicant, there was a period of one month during which X’s mother refused to allow X to go to his home to receive private tuition.  The reason was that X had a love affair with a schoolmate.  Only in December 2005 was X allowed to resume having private tuition in the applicant’s home.
申請人更指X的母親拒絕容許X到其居所補習一個月，原因是X和另一同學拍拖，直至2005年12月才容許X繼續在申請人居所補習。

The applicant gave evidence about a number of incidents which made X unhappy with him.  He said that in January 2006, at the request of X’s mother, he had X’s mobile telephone service changed to another telephone service provider so as to prevent her from ceaselessly sending text messages to her schoolmates.  In the summer vacation of 2006, X persuaded him into buying a mobile telephone for her, but X had never paid for it.
申請人述及多宗事故，導致X對他不滿。申請人指2006年1月他應其母親的要求，將X的手提電話轉台，避免她不停向同學發短訊。2006年暑假，X說服他替她買了一部手提電話，但X最終沒有付款。

The applicant put special emphasis on an incident which happened in November 2006.  One day, X’s mother telephoned the applicant and asked him to look secretly at matters about the love affair between X and the boys recorded in X’s diary.  She would use this as a reason for disallowing X to continue to receive private tuition. When the applicant was looking secretly at X’s diary, X discovered that. She snatched away the diary and slapped the applicant.  The applicant said that he was “blinded by anger”, so that he not only slapped X, but scolded her for having deceived her mother and him.  He also told X that she could not receive any more private tuition.  X then left, but on the following day she still came to the applicant’s home for private tuition and she went on doing so until after mid December 2000.  At that time X’s mother again accused X of lying and for that reason decided not to allow X to go to the applicant’s home for private tuition.
申請人特別提及2006年11月發生的一件事。當時X的母親致電要求申請人偷看X的日記有關她和男孩子拍拖之事並以此為理由不再容許X繼續補習，但申請人偷看其日記時遭X發現，X不但搶回日記，更掌摑了申請人。申請人指自己“火遮眼”，不但掌摑X，更駡她不應欺騙母親和他，同時要X不再補習, 結果X離開。但翌日X仍繼續到申請人居所補習直至2000年12月中後。當時X的母親再指X說謊，並決定因此不容許X到申請人居所補習。

Later, X returned to the applicant his home keys and said that she would return to him the mobile telephone which he bought for her earlier.  However, the applicant told her that she could use it until she bought a new telephone.  The applicant said that X still contacted him and from time to time invited him through her schoolmates or over the telephone to go with her to have a look at the latest mobile telephone models or to go to the movies, or she would ask him about her homework, but he refused all such invitations.
其後X將申請人居所鎖匙歸還，並表示將申請人較早前買給她的手提電話歸還，但申請人向她表示她可以繼續用直至她買到新電話。申請人表示X仍有繼續聯絡他，並不時透過其同學及致電要他陪伴去看新出手提電話、看戲及問功課，但他都一一拒絕。

The applicant denied that he had ever done anything improper to X or had ever told her to have an abortion.  The applicant thought that X learned about the abortion clinic from a schoolmate and then she made up a story about abortion and used it against him.  The applicant strongly protested that X falsely accused him because he had slapped her and she bore a grudge against him for that.
申請人否認有向X有做過任何不軌行為，更沒有叫她去墮胎。申請人認為X是由另一名同學中知悉墮胎診所，而將墮胎一事套用在其身上。申請人力稱X是誣告他，原因是他曾撐摑她，令她懷恨在心。

The applicant stressed that the relationship between him and X was at all times confined to a solemn teacher and student relationship.  He had never cherished any special affection for X.
申請人強調他和X的關係一直局限於嚴肅之師生關係，亦對X不抱任何特殊感情。

The applicant called 2 students to testify.  Both of them said that it was only in September 2004 that X began to stay overnight at the applicant’s home on Saturdays.  However, X slept in a bedroom, while the applicant slept in the living room.  They said that the applicant had never gone with X into the bedroom or into the storeroom, and that the door of the bedroom could not fully shut.  One of the students even testified that he saw the applicant and X slap each other.  Subsequently, X said to that schoolmate, “Why the hell did he look at my things?  I had never been slapped by anyone before in my life. I will get even with him later”.  Then X asked that male schoolmate to “lend a hand to frame Ah Sir for the 11 characters offence”.  When the schoolmate indicated that he was not willing to do that, X asked him not to “reveal” it.
申請人有傳召兩名學生作供，他們都表示2004年9月開始，X才在星期六在申請人家中過夜。但X睡房，而申請人則睡廳。他們指申請人沒有和X一起入房或入雜物房，而睡房門亦不能完全關上。其中一名學生更表示目睹申請人和X互相掌摑。其後X更向該名同學表示“鬼叫佢睇我啲嘢先，我咁大個女都冇畀人打過，我遲啲會報仇嘅”。其後X更要該名男同學“幫手屈阿Sir衰十一”。該名同學表示不願意時，X則要他不要“篤爆”她。

Grounds of appeal
上訴理由

On the face of it, the issues in this case all boiled down to this factual issue, namely whether X had sexual intercourse with X between January 2004 and December 2006 as alleged by her on the days mentioned in the charges.
表面上，案件的爭議全屬事實之爭議，即申請人在2004年1月至2006年12月期間，是否有如X所稱在控罪所指的日子和她發生性行為。

The applicant’s counsel Mr. Richard Wong put forward a number of legal points as the grounds of appeal.
代表申請人的黃達華大律師提出多項法律觀點，作為上訴人理由。

Mr. Wong submitted that the trial judge should not have granted the prosecution’s application made under section 79C of the Ordinance for treating X’s video recording as her evidence-in-chief.
黃大律師指原審法官不應批准控方根據條例第79C條，以X的錄影紀錄作為其主問證供。

Mr. Wong said that at the time of the recording X was 17 years and 5 months old, and that she behaved like a mature person in the course of the questioning-and-answering during the recording.  Mr. Wong emphasized that X was not to be examined by way of a live television link provided for under section 79B and had to face the applicant in Court and be cross-examined by his counsel in any event.  Mr. Wong said that under these circumstances, X did not need to be protected by section 79C, therefore the trial judge should not have accepted that X could use the video recording as her examination-in-chief.
黃大律師指錄影時X的歲數是17歲5個月，而她在錄影時，答問表現成熟。黃大律師強調X始終須在法庭上面對申請人及接受其代表大律師的盤問，而非根據條例第79B條藉電視直播聯繫方式接受訊問。黃大律師認為在上述情況下，X無需受條例第79C條保護，因此原審法官不應接納X以錄影紀錄為其主問證據。

Mr. Wong submitted that the trial judge should not have ruled that X’s video recording could be given in evidence without excluding any content.  Mr. Wong considered that the following 3 categories of content should have been excluded from the video recording, namely (1) content about whether X was willing to have sexual intercourse with X; (2) content about sexual intercourse between X and the applicant which X talked about but was not included in the sexual intercourse specified in the charges (“uncharged acts”); and (3) content about complaints made by X to her boyfriend.  Mr. Wong pointed out emphatically that these 3 categories of evidence were not relevant to the charges and were prejudicial to the applicant, therefore these 3 categories of evidence should have been excluded from X’s video rerecording before it could be given in evidence.
黃大律師亦指原審法官不應裁定X的錄影紀錄無需刪除內容就能呈堂為證。黃大律師認為以下三類內容應該從錄影紀錄中刪除，包括（一）X是否同意和申請人性交；（二）X說及和申請人的性交，但並非控罪所指的性交（“不被控告的行為”）；及（三）X向男朋友的投訴。黃大律師強調上述三類證據和控罪無關，但會對申請人構成不利，因此X的錄影紀錄需刪改上述三類證據，才能呈堂為證。

Mr. Wong further submitted that part of X’s video recording infringed upon the legal principles about previous consistent statement.  The trial judge did not exclude that part, nor did she give any directions to the jury about how to deal with such evidence, thereby going back on what she had promised to do during the argument between the prosecution and the defence.
黃大律師更指X的錄影紀錄部份觸犯了“以前一致”陳述（Previous consistent statement）的法律原則，原審法官卻沒有刪除該部份，更沒有向陪審團引導如何處理上述證供，違反了她曾在控辯雙方爭論時作出過之承諾。

Mr. Wong argued that all the evidence against the applicant emanated from X, but the verdict returned by the jury in respect of the 13th charge against the applicant, namely Unlawful Sexual Intercourse with a Girl under 16, was not guilty, while the verdicts in respect of all other charges of Unlawful Sexual Intercourse were guilty.  Mr. Wong considered that the verdicts returned by the jury were inconsistent verdicts.
黃大律師指出針對申請人的證供全部源自X，陪審團裁定申請人第13項和16歲以下女童非法性交罪不成立，但其餘各項和女童非法性交的罪名成立。黃大律師認為陪審團的裁決屬不一致的裁決。

Finally, Mr. Wong complained that when the trial judge gave directions to the jury, she voiced strong views about the applicant’s evidence.  Her directions were unbalanced and unfair to the applicant, therefore the verdicts of guilty against the applicant were unsafe and unsatisfactory.
最終，黃大律師指原審法官引導陪審團時，對申請人的證供作出強烈意見，其引導不平衡，對申請人不公，故將申請人定罪的決定是不安全及不穩當的。

Discussion
討論

Under Section 79C, in proceedings in respect of an offence of sexual abuse, a video recording of a child which relates to any matter in issue in the proceedings may, with leave of the Court, be given in evidence.
根據條例第79C條，在性虐待罪行，兒童的錄影會面記錄，如涉及有關法律程序中的任何爭議事宜，經法庭許可可以呈堂為證。

The purpose of this provision is to strike a balance between the defendant’s interests and the victim’s interests in a particular kind of offence, so as to ensure that the trial is fair and just.  Section 79C also provides that:
上述條例的目的是在某類特定案件平衡被告人和受害人的權益，確保審訊公平公正。條例第79C同時訂明：

“(4)Where a video recording is tendered in evidence under this section, the court shall grant leave to admit the recording unless –
“(4) 如根據本條將錄影紀錄提出作為證據，除非有以下情況，否則法庭須給予許可以接納該紀錄─

(a)it appears that the child… will not be available for cross-examination;
(a) 看來該兒童…將不能出席接受盤問；

(b)any rules of court requiring disclosure of the circumstances in which the recording was made have not been complied with to the satisfaction of the court; or
(b) 規定披露作該紀錄的情況的法院規則未獲遵從至令法庭滿意的程度；或

(c)the court is of the opinion, having regard to all the circumstances of the case, that in the interests of justice the recording ought not to be admitted,
(c) 法庭在顧及該案的所有情況下，認為為了司法公正，該紀錄不應予以接納，

and where the court grants such leave it may, if it is of the opinion that in the interests of justice any part of the recording ought not to be admitted, direct that that part shall be excluded.
凡法庭給予許可，但認為為了司法公正，該紀錄的任何部分不應予以接納，可指示摒除該部分。

(5)In considering whether any part of a video recording ought to be excluded, the court shall consider whether any prejudice to the defendant, or one of the defendants, which might result from the admission of that part is outweighed by the desirability of showing the whole, or substantially the whole, of the recorded interview.
(5) 法庭在考慮應否摒除任何錄影紀錄的某部分時，須考慮顯示錄影會面的全部或絕大部分的好處，較諸接納該部分的錄影紀錄對被告人或其中一名被告人所可能造成的損害，是否更為重要。

(6)Where a video recording is admitted –
(6) 凡某錄影紀錄獲接納─

(a)the child… shall be called by the party who tendered the recording in evidence;
(a) 提出該紀錄作為證據的一方須傳召該兒童…；

(b)the child… shall not be examined in chief, save with leave of the court, on any matter which, in the opinion of the court, has been dealt with in his recorded testimony.”
(b) 除非經法庭許可，否則不得就法庭認為已在錄影證供上獲處理的任何事宜向該兒童…進行主問…”

In section 79 Interpretation it is laid down that “child” means a person who:
條例第79條釋義部份亦列明“兒童”指：

“in the case of an offence of sexual abuse –
在性虐待罪行的個案中─

is under 17 years of age; or
指不足17歲的人；或

for the purposes of section 79C, if the person was under that age when a video recording to which section 79C applies was made in respect of him, is under 18 years of age;”
就第79C條而言，則指不足18歲的人(如接受第79C條適用的錄影紀錄的人當其時不足17歲)；

X was born on 3 December 1991.  The video-recorded interview took place on 18 November 2008 when X was nearly but not yet reached 17 years of age.  The trial began on 12 March 2009.  X began to testify on 7 May 2009 and finished testifying on 11 May 2009.  At that time X was 17 years and 5 months old, still under 18.  X fully fit the definition of “child” in the Ordinance.
X是在1991年12月3日出生，有關錄影會面在2008年11月18日進行，當時X是接近但不足17歲。審訊在2009年3月12日開始，X亦是在2009年5月7日開始作供至2009年5月11日作供完畢。當時X是17歲零5個月，不足18歲。X完全符合條例所指“兒童”的釋義。

One of the conditions for the Court’s admitting a video recording of a “child” witness as evidence is that the child must be available for cross-examination.  Therefore, the fact that X had to undergo a face-to-face cross-examination can never be a reason for excluding such video recording.  We will not overlook the fact that the pressure and difficulties which confront a child witness during the examination-in-chief stage are not the same as those in the cross-examination stage.  In a sexual abuse case, it is not unusual that a child victim in Court during the examination-in-chief stage is unable to describe how the defendant abused him/her, with the result that the prosecution cannot prove their case.  A child witness who is able to stand up to cross-examination in Court is not necessarily able during the examination-in-chief stage to tell the Court the course of events.  The legislators certainly had this situation in their mind, and therefore under section 79C, on the one hand it is allowed to treat the video recording of a child witness as his/her examination-in-chief, and on the other hand the child is required to be available for cross-examination.
法庭採納“兒童”證人錄影紀錄作為證據，條件之一是該兒童必須出席接受盤問，因此X要面對面接受盤問，絕非摒棄該些錄影紀錄的理由。本庭不能忽視一名兒童證人在主問及盤問時要面對的壓力及困難不同。很多時候在性虐待案件，受害兒童在法庭在主問過程時已不能道出被告人侵犯他/她的過程，導致控方無法證案。一名能出席法庭面對盤問的兒童證人，不一定能在主問過程道出事實經過。立法者必然是考慮到上述情況，故在條例第79C條，一方面容許兒童證人以錄影紀錄作為其主問證供，另一方面要求該名兒童證人出庭接受盤問。

Different people will have different views as to whether X behaved like a mature person during the recording.  This is not the main factor in the Court’s consideration of whether leave should be granted for giving the video recording in evidence.
X在錄影時表現是否成熟是見仁見智，亦非法庭決定應否給予許可接納錄影紀錄為證的主要因素。

In R v Chan Bing For [1997] 2 HKC 205 Liu JA, when considering the taking of the evidence of a child witness through close circuit television, had this to say:
在Rv Chan Bing For [1997] 2 HKC 205案，上訴法庭廖子明法官考慮以閉路電視錄取兒童證人的證供時，指出：

“ The long-established procedure of having the physical presence of a child witness in Court should generally yield to such a statutory protection.  Discretion should be favourably exercised in the case of a sexual abuse child victim unless the Court is otherwise persuaded that protection would not be necessary or a fair trial could not otherwise be attained.  The Court may simply act on the age of the child, the nature of the offence and the nature of the allegations, such as those disclosed in the Crown’s opening.  The application need not be fortified by other evidence, such as social welfare or psychological report.”
“條例訂立，目的是在性罪行案件保護幼童。要一名兒童證人親身出庭是早已確立的程序，但該程序一般而言要因條例所賦予的保障而讓路。在涉及性侵犯案件酌情權應對兒童受害人有利方向行使，除非法庭信服無需給予有關保障或給予有關保障會令公平審訊無法達致。法庭只需根據“兒童”的年齡、控罪的性質和控方開案陳述所顯露之指控的性質行事。申請無必需要以其他證據，例如社會福利署或心理專家報告來強化。”

We agree with Liu JA’s view.  In cases involving sexual abuse against children, the Court should presume that the child witnesses concerned need the protections provided by the Ordinance.  The Court should exercise its discretion to allow the child witnesses to give evidence by using the procedures prescribed in sections 79A, 79B or 79C, unless the giving of evidence by using these procedures without the child witnesses giving evidence in Court will lead to an unfair trial.  We do not accept Mr. Wong’s argument that the trial judge erred in granting leave to the prosecution to treat X’s video recording as her examination in-chief in accordance with section 79C.
本庭認同上述立場，在涉及性侵犯兒童的案件，法庭是要假設兒童證人需要條例的保障。除非兒童證人不出庭作供而根據條例第79A、79B或79C條列出的方式作供會導致不公平的審訊，法庭理應行使酌情權，容許兒童證人根據條例第79A、79B或79C條的方式作供。黃大律師指原審法官不應批准控方根據條例第79C條以X的錄影紀錄為主問證供的立場不正確，本庭不接納。

The contents of X’s video recording showed that the number of times of sexual intercourse between she and the applicant which she alleged had taken place were far more than those specified in the charges.  These illegal acts not included in the charges (“uncharged acts”) would be unfavourable to the applicant but it is not necessary that evidence related to “uncharged acts” can never be tendered as evidence.  It had always been the prosecution’s position that the number of times specified in the charges were not the total number of times of the sexual intercourse between the applicant and X.  The jury was well aware of the prosecution’s position.
X的錄影紀錄內容顯示她指稱申請人和她性交的次數遠較控罪所指的為多，該些控罪外之不法行為（“不被控告的行為”），會對申請人不利，但和“不被控告的行為”有關之證供並非一定不能呈堂為證。控方由始至終的說法都是控罪列出的次數並非申請人和X非法性交的全部次數，陪審團亦是知悉控方的立場的。

In cases involving sexual abuse against children, evidence concerning “uncharged acts” can be relevant and admissible evidence.
在性侵犯兒童的案件，涉及“不被控告的行為”的證供可以是有關及可採納的證據。

First of all, such evidence can be background information which explains the relationship between the defendant and the victim.  Such evidence can serve to explain why the victim cannot remember the details of a particular event; explain the victim’s behaviour, including why she allowed the defendant to interfere with her on multiple occasions without making any complaint; and explain why the defendant could flagrantly and confidently make the victim submit and allow him to sexually abuse her again and again without the need to use any threat or inducement.
首先，該些證據可構成背景資料，解釋被告人和受害人的關係。該些證據可以解釋受害人為何不能記得某次事件詳情；可以解釋受害人的行為，包括為何她會容許被告對她多次侵犯而沒有投訴；可以解釋被告為何會明目張胆，有信心而無需恐嚇或引誘受害人便能使她就範，多次容許他的性侵犯行為。

At the trial, Mr. Wong placed emphasis on the following points, including why the applicant could flagrantly have sexual intercourse with X in a bedroom at the same time when other students were doing homework in the living room; why X made mistakes about the date of a particular occasion on which she had sexual intercourse with the applicant; why she did not get away from the applicant when he behaved improperly to her; and why X could not remember the details of individual occasions of sexual intercourse.
原審時，黃大律師有強調以下數點，包括為何申請人會在其他學生在廳做功課時，肆無忌憚地在房間內和X發生性行為，為何X會就某次和申請人性行為的日子弄錯，為何申請人對她作出不軌行為時，亦不避開申請人，為何X不能記得個別性行為的詳情等等。

The answers to the above questions are likely that X and the applicant had sexual intercourse so frequently that it became their regular activity.  In fact, X clearly said that over the years she had sexual intercourse with the applicant on many occasions, so many that except the first occasion about which she had a relatively clear recollection, as for other occasions she might mix up one occasion with another and she could not remember clearly what happened on those occasions.
上述疑問的答案很可能都是因為申請人和X發生性行為次數多，變成慣性。事實上X亦有明確表示，多年來她和申請人發生性行為的次數太多，故除了第一次印象比較深刻之外，其他時候她容易混淆，過程亦不能記到清楚。

We repeat the following remarks made by this Court in another case of similar nature, HKSAR v Kwok Hing Tony (CACC 26/2008):
本庭複述本庭在另一宗同類案件香港特別行政區 訴 郭慶 Tony (CACC 26/2008)案作出過的以下評論：

“1.The issue of whether evidence of “uncharged acts” is admissible or not must be decided on the individual circumstances of each case, and the court is not bound to refuse to admit such evidence by reason of its nature alone (R v M & Ors [2000] 1 WLR 421, 426-7, citing R v Pettman (unrep) 2 May 1985, C. A..  R v M & Ors was followed in HKSAR v Chan Pui Mun CACC 514/2006 unrep 16 July 2008).
“1.不被控告的行為” 的證供是否可被法庭接納 (admissible evidence), 需視乎個别案件的情況而定，法庭並不需要因為其本質而必定拒絕接納該類證據 (R v M & Ors [2000] 1 WLR 421, 426-7, 援引R v Pettman (unrep) 2 May 1985, C.A. 。HKSAR v Chan Pui Mun CACC 514/2006, unrep. 16 July 2008亦有援引R v M & Ors) 。

2.Even though such evidence is not used in a particular case as identification evidence of the defendant, or as similar fact evidence to prove that the defendant had committed the offence charged, or deployed by the defendant to challenge the credibility of the complainant, the court may still admit evidence of “uncharged acts” in circumstances including the following:
2.在個别案件中，雖然該類證供並不是用來識别被告人的身份(identification evidence) ，或並不是以“類似事實證據” (similar fact evidence) 用來證明被告人干犯了被控告的控罪, 或並不是由辯方提出用來挑戰投訴人的可信性，但法庭仍然可以接納 “不被控告的行為” 的證供，情況包括:

-to prove the setting and context in which the offence occurred, or
-用來顯示控罪發生的環境 (setting) 及全盤局面(context) ，或

-to explain the defendant’s confidence in repeating the offence, or
-用來解釋被告人重覆行動的信心，或

-to explain unusual acts on the part of the complainant (such as the lack of surprise or fear, or the lack of complaint, or acts of acquiescence), or
-用來解釋投訴人不尋常的行為 (例如沒有覺得驚慌，或沒有作出投訴，或順從的行為)，或

-to explain why the complainant is unable to recall the specific date and details of the offence charged.
-用來解釋投訴人為何不能清晰記起控罪的正確日期及詳情。

In summary, the court may admit evidence of “uncharged acts” if its refusal to do so would result in the jury having an incomplete or incomprehensible account of events.”
簡單而言，如果法庭不接納這些證供的話，是會令到陪審團不能獲得一個完整及能夠明白的陳述時，則法庭是可以接納 ‘不被控告的行為’的證供的。”

Whether X was willing to have sexual intercourse with the applicant, like the frequency of their having sexual intercourse, can shed light on some doubts and suspicions in this case, so it is not absolutely irrelevant.  The applicant’s case was that he had never had any sexual intercourse with X, therefore it was not a matter of willing or unwilling.  The applicant’s case would surely be put to X.  We consider that what X said in the video recording about whether she was willing to have sexual intercourse with the applicant would not cause any injustice, therefore it was not necessary to exclude it.
X是否同意和申請人性交，亦和他們性交次數一樣，能解釋案件部份疑團，並非與案件完全無關。申請人的立場是他從來沒有和X性交,因此不存在同意與否，申請人的立場亦必會向X指明。本庭認為X在錄影紀錄中說及是否同意和申請人性交一事, 不會導致不公，故無需刪除。

Mr. Wong also complained about the following two sections in the contents of X’s video recording:
黃大律師亦有就X的錄影紀錄內容的以下兩段作出投訴：

“217. Interviewer: You can’t remember; mm, it doesn’t matter.  You mean that earlier, on 8 September, a statement had been taken [from you], is that what you mean?
“217. 接見者：唔記得，唔，唔緊要吓，即係你之前九月八號呢就已經攞咗一份口供，係咪咁嘅意思呀？

218. X:Mm, mm.
218. X：唔，唔。

219. Interviewer:Ah, I see.  Is that statement of yours about the same … er case which you described to me just now?
219. 接見者: 哦，明白。咁你嗰份口供同唔同你頭先同我講嗰啲-誒案件一樣呀？

220. X:The same, but the year is a bit different.”
220.X:一樣，但係年份就有啲唔同。”

“153. Interviewer: When did [you] tell him?
“153. 接見者: 幾時同佢講？

154. X:This year, (Interviewer: Yes.) 20 … 25 August 2008.
154. X: 今年（接見者：係。）零八年八月廿…廿五號。

155. Interviewer:Huh, huh, where did the conversation take place?
155. 接見者: 喀、喀，喺邊度講？

156. X:Through the computer I sent … sent … er sent him a file.  I mean I type a piece of writing by using Word … (Interviewer. Mm.) Microsoft Word, (Interviewer. Mm.) and then sent it to him, to tell him about it.
156. X: 喺電腦我send咗…send咗- 誒send咗個file 畀佢，即係我自己喺word…(接見者:唔) 喺Miscrosoft Word嗰度打一篇嘢，（接見者：唔）跟住send咗畀佢，同佢講。

157. Interviewer:Mm, what was the gist of its content?
157. 接見者: 唔、內容大意係咩嘢？

158. X:Er, I told him this thing happened.  …
158. X: 誒就同佢講番有呢件事嘅發生囉。…

368. X:The first one who learnt about it was my boyfriend.  I mean I told him about it in August this year  (Interviewer: Ah.) and he was the first one to learn about it.”
368.X:第一個人知，就係我男朋友，即係我就係去到今年八月同佢講，（接見者：哦。）先係佢第一個知。”

Mr. Wong’s position is that the first section is “previous consistent statement” and that the second section does not comply with the requirements of “recent complaint”, therefore they should not have been admitted as evidence.
黃大律師的立場是第一段屬“以前一致”(Previous Consistent Statement)陳述而第二段則不符合“近期投訴”(Recent Complaint)，故不應被接納為證。

The first section only shows that X agreed that in an earlier statement she had mentioned something which was “about the same case which she described in the video recording”.  X did not say what she said in her earlier statement, nor did she agree that what she said was the same as the content of the video recording.  We do not agree that the first section constitutes “previous consistent statement”.
第一段只顯示X同意在早前一份口供有說及“同她在錄影紀錄內講嗰啲案件一樣”。X沒有說及在早前一份口供內說過甚麼，更沒有同意所說的和錄影紀錄的內容相同。本庭不同意第一段會構成”以前一致”陳述。

The second section shows that X told her boyfriend that “this thing happened”, but the interviewer did not ask X to tell him and X did not tell him the details of what she told her boyfriend about what happened.  X’s boyfriend gave evidence at trial.  Both Mr. Wong and his assistant said that they could not remember the details of the evidence of X’s boyfriend.  However, Mr. Wong conceded that if X’s boyfriend had given evidence that X told him that the applicant had done any improper thing to her, he surely would have objected on the ground that such evidence did not constitute “recent complaint”.  In this case, evidence related to what X’s boyfriend had been told would not constitute any unfairness against the applicant.
第二段顯示X曾向其男朋友說及“有呢件事嘅發生”，但接見者沒有要求X，而X亦沒有說出她向男朋友說出事件發生的經過的詳情。X的男朋友在原審時有作供。黃大律師和其副手都表示不再記得X男朋友證供的詳情。但黃大律師同意，如X的男朋友有說及X指申請人對她作出任何不當行為，他必會因該些證供不構成“近期投訴”而提出反對。在本案，和X男朋友有說過的話有關的證據，不會對申請人做成不公。

We do not agree that the two sections quoted above are in any way unfair or prejudicial to the applicant.  The trial judge was justified in not excluding them.  Although the trial judge did not do what she had earlier promised to do when Mr. Wong raised his objection, namely to give directions to the jury about the aforesaid 2 points – what Mr. Wong called “previous consistent statement” and “recent complaint”, judging from the background and all the circumstances of this case, what the trial judge did and what she omitted to do did not constitute unfair treatment.  The ground of appeal argued by Mr. Wong concerning the first and the second sections of X’s video recording is not established.
本庭不同意上述第一、二段會對申請人構成不公平或造成損害，原審法官有理由不作出刪除。雖然原審法官沒有按她較早前在黃大律師反對時所作之承諾，就上述兩點，即黃大律師所稱之“以前一致”陳述，和“近期投訴”向陪審團作出指引，但以案件之背景及整體情況而言，原審法官之所為及非作為不構成不公平的處理方法。黃大律師就X的錄影紀錄內容第一及第二段提出的上訴理由不成立。

Furthermore, section 79C (5) of the Ordinance provides that:
再者，條例第79C (5)條規定如下：

“In considering whether any part of a video recording ought to be excluded, the court shall consider whether any prejudice to the defendant, or one of the defendants, which might result from the admission of that part is outweighed by the desirability of showing the whole, or substantially the whole, of the recorded interview.”
“法庭在考慮應否摒除任何錄影紀錄的某部分時，須考慮顯示錄影會面的全部或絕大部分的好處，較諸接納該部分的錄影紀錄對被告人或其中一名被告人所可能造成的損害，是否更為重要。”

The legislators surely understood that at the time when a video recording is made for use as evidence in respect of a “child” witness, the person in charge of the recording is not necessarily a lawyer or a person who has received legal training, and these categories of people are not necessarily present; therefore, the video recording made may not fully comply with the requirements and stipulations laid down in the law of evidence.  Section 79C (5) shows that even if part of a video recording violates the requirements and stipulations laid down in the law of evidence, the Court has discretion to order that no part of the video recording shall be excluded.  We agree with the submission made by the respondent’s representative Mr. David Leung, Senior Assistant Director of Public Prosecutions, that in the circumstances of this case, it is proper to admit the whole video recording in evidence and that nothing unfair was done to the applicant, because any possible prejudice to the applicant was outweighed by the desirability of showing the whole of the video recording.
立法者必然是理解到根據條例第79C條從“兒童”證人拿取錄影紀錄為證時，不一定是由律師或有法律訓練的人士負責，他們亦不一定在場，因此取得的錄影紀錄不一定完全符合證據法的要求及規定。條例第79C（5）條的內容顯示即使錄影紀錄部份有抵觸了證據法的要求及規定，法庭仍具酌情權，下令無需摒除錄影紀錄的任何部份。本庭認同答辯人的代表大律師梁卓然高級刑事助理檢控專員的立場，以本案的背景，將X的整個錄影紀錄呈堂為證是恰當的做法，並沒有對申請人不公，原因是顯示全部錄影紀錄的好處，較對申請人可能造成的損失更為重要。

It is one thing that the whole of X’s video recording could be admitted in evidence, but it is another thing whether the trial judge had given proper directions to the jury in respect of the admitted evidence.  X alleged that at the material times, the applicant had on many occasions had sexual intercourse, which were not included in the charges, with her.  Obviously, these acts, i.e. the aforesaid “uncharged acts”, were potentially prejudicial to the applicant.  It was incumbent on the trial judge to give directions to the jury about how to deal with these “uncharged acts”.
X的錄影紀錄可以全部呈堂為證是一回事，原審法官是否有就呈堂的證據向陪審團作出適當指引是另一回事。X指在有關時段，申請人曾多次，在控罪所指以外，和她性交。該些行為，即上文所述的“不被控告的行為”，明顯可能會對申請人造成不利，主審法官理應引導陪審團如何處理該些“不被控告的行為”。

In paragraph 145 of the judgment of Nancy Ann Kissel v HKSAR (FACC No. 2 of 2009), the Court of Final Appeal stressed that:
誠如終審法院在Nancy Ann Kissel v HKSAR (FACC No. 2 of 2009)案，判案書第145段強調：

“We stress that where a trial judge comes to the conclusion that it is proper to admit evidence which has the capacity to be prejudicial, he should clearly direct the jury as to the use to which it can put the evidence.”
“本庭強調，當原審法官作出結論認為應採納一些帶有偏見的證據時，他應該清楚地引導陪審團可怎樣使用該等證據。”

The High Court of Australia pointed out in paragraph 77 on p.132 of the judgment of Gipp v The Queen [1998] 194 CLR 106:
澳洲聯邦高等法院在Gipp v The Queen [1998] 194 CLR 106案的判案書第132頁第77段指出：

“No doubt the evidence of general behaviour, if accepted, proved the commission of other criminal acts.  But it was not tendered as propensity evidence.  If the evidence had been tendered to prove propensity, it would have required careful direction in accordance with the principles emphasised by this Court on numerous occasions in recent years.  Moreover, as BRS v The Queen (1997) 191 CLR 275 shows, if evidence admitted for reasons other than propensity in fact reveals a criminal or reprehensible propensity on the part of the accused, a trial judge must carefully direct the jury as to the use which they can make of the evidence.  In BRS, McHugh J pointed out:
“毫無疑問，某些和一般行為有關的證據，如被接納，會證明被告人干犯了其他罪行。如該些證據呈堂目的是證明某些習性或傾向，必需根據本庭近年多次強調的原則向陪審團作出小心指引，再者,如BRS v The Queen (1997) 191 CLR 275案顯示，如採納證據目的並非顯示被告人有犯罪或不道德的習性或傾向，而是有其他目的，主審法官必需指引陪審團可怎樣使用該等證據。在BRS案，McHugh法官指出：

‘If the evidence is admitted for a reason other than reliance on propensity, the judge must direct the jury that they can use the evidence for the relevant purpose and for no other purpose.  In some cases, the judge need to be more specific.  He or she may need to direct the jurors that they cannot use the evidence for an identified purpose.  If the evidence is admitted because the Crown wishes to rely on the accused’s propensity as an element in the chain of proof, it is especially necessary that the judge give the jurors clear directions as to the manner in which they may use the propensity evidence’”.
‘如採納證據目的與習性和傾向無關，則主審法官必需指引陪審團只能使用該些證據作有關用途，而非其他用途。某些情況下法官的指引可能需要明確及具體，他有可能要指示陪審團不可使用該等證據作某些已識別之用途。如採納證據是因為控方要依賴被告人之習性或傾向作為證明鏈條之一環，主審法官更特別需要向陪審團清楚引導他們可怎樣使用該等習性或傾向證據”。

In another Australian case R v Nieterink (1999) 76 SASR 56, the Supreme Court of South Australia gave even more specific guidelines about how to deal with “uncharged acts”.  It is sufficient just to cite the 3 points specified in the headnote:
在另一宗澳洲案件, R v Nieterink (1999) 76 SASR 56, 南澳洲省的最高等法院就一些“不被檢控的行為”的處理方法，作出更為明確的指導。本庭只需列出判案書摘要指明的三點。

“As to the use to be made of evidence of uncharged criminal acts, the jury must be directed, inter alia:
“就可怎樣使用“不被檢控的行為”為證據，必需向陪審團作出以下指引，包括：

(a)Not to act upon it unless satisfied that those acts were proved;
除非“不被檢控的行為”已確立，否則不能根據它們行事；

As to how they can use, and cannot use, such evidence;
陪審團可怎樣使用，或不能使用該些證據；

Not to reason from such evidence that the accused had committed similar offences and/or was the sort of person who might commit the crimes charged;
不能因為該些證據為理由而認定被告人有干犯同類罪行及/或可能是會干犯控罪的那類人士；

Not to reason from such evidence that as similar conduct to that charged has occurred, they can convict on a particular count for which the accused is being tried.”
不能因為該些證據顯示和控罪相同的行為發生過而裁定被告人受審的某項控罪罪名成立。”

In the present case, besides the 13 charges set out in the indictment, X in the video recording stated that between January 2004 and December 2006, a period of 3 years, the applicant regularly had sexual intercourse with her at the frequency of about 10 times per month.  However, when the trial judge gave directions to the jury, she gave no explanation at all as to the purpose for which this “uncharged acts” evidence was produced; whether it was tendered as “similar fact” evidence; whether it was used to show that the applicant had the propensity to commit the offences in question; or whether it was used to explain some special circumstances in this case, including why X could not remember the details of certain events; why X allowed the applicant to interfere with her on multiple occasions without making any complaint and without keeping away from him and why the applicant would flagrantly and outrageously have sexual intercourse with X in a bedroom when other students were doing homework in the living room.  The trial judge gave the jury no direction at all as to the manner in which they could use this “uncharged acts” evidence.
在本案，除了控罪書列出的13項罪行外，X在錄影紀錄中談及申請人由2004年1月至2006年12月，共三年期間，經常和她發生性行為，每月約10次。但原審法官在引導陪審團時完全沒有解釋該些“不被檢控的行為”呈堂的目的是甚麼，是“類似事實”(“Similar fact”)證據;是顯示申請人有干犯控罪的傾向或習性(“propensity”), 或是解釋案件中一些特殊情況；包括為何X不能記得某些事件發生的詳情；為何X會容許申請人多次侵犯她而不作出投訴或逃避；為何申請人會明目張膽，有其他學生在廳做功課時仍肆無忌憚地在房間內和X性交。原審法官亦完全沒有向陪審團指引可怎樣使用該等“不被檢控的行為”的證供。

Given that the trial judge gave no direction to the jury as to the use which they could make of the “uncharged acts” evidence, and that she gave no direction about the applicable standard of proof either, the trial was indeed unfair to the applicant and consequently his conviction is unsafe.  For this reason, we should set aside the conviction.
在原審法官沒有指引陪審團應怎樣使用“不被檢控的行為”的證供，更沒有指引他們應採納的舉證準則時，審訊對申請人確有造成不公，而針對他的定罪亦因此是不穩妥的。基於這點，本庭理應撤銷有關定罪。

In order to show that we take both counsel’s submissions seriously, we shall also briefly deal with the other 2 grounds of appeal relied on by Mr. Wong.
為顯示對雙方律師陳述之重視，本庭亦簡單地處理黃大律師提出的另外兩項上訴理由。

We do not agree with Mr. Wong’s argument that the verdicts returned by the jury in this case are inconsistent.  In HKSAR v Chan Shek-Wai (CACC 472/2001), Mr. Justice Stuart-Moore succinctly spelled out on page 11 of the judgment the applicable principle regarding “inconsistent verdict”:
本庭不同意黃大律師所稱本案的陪審團作出的裁決不一致。在HKSAR v Chan Shek-Wai (CACC 472/2001)案，司徒冕法官在判案書第11頁簡單地道出“不一致裁決”的適用原則：

“So far as general principle is concerned, the burden of showing that verdicts are inconsistent falls squarely upon an appellant.  Furthermore, not only must inconsistency be established but this must be shown to have been such as to call for interference by an appellate court.”
“一般性原則是，上訴人有絕對責任證明裁決是不一致的。再者，他不但要確立‘不一致’，更要證明‘不一致’的程度要上訴法庭干預。”

In HKSAR v Chan Lai Lam (CACC 311/2003), this Court remarked that when dealing with an appeal which relied on the ground of “inconsistent verdict”, a firm approach should be adopted.  From relevant cases this Court cited the following paragraphs:
在HKSAR v Chan Lai Lam（CACC 311/2003）案，本庭建議在處理以“裁決不一致”為理由的上訴時，應採取堅定不移的方法。本庭從有關案例中援引了下列段落：

“To succeed the appellant must show, firstly, that the verdicts are logically inconsistent, secondly, that they are so inconsistent as to demand interference by an appellate court – i.e. that there is no way in which the logically inconsistent verdicts can be sensibly explained.”
“要成功，上訴人需顯示第一，裁決邏輯上是不一致的，第二，不一致的程度令上訴法庭不得不干預，即邏輯上不一致的裁決不可能合理地闡明。

“All of these directions and those to which we have earlier referred, serve to illustrate yet again the importance of according respect to the verdict given by a jury.  Having said that, obviously if the verdict amounts to what can effectively be described as nonsense, then it cannot be allowed to stand.”
上述指引及本庭較早前述及的指引再一次說明尊重陪審團裁決之重要性。當然，如果裁決實際上可被視為屬荒謬的，則必需推反。”

The verdicts of not guilty reached by the jury in respect of the 7th charge, namely Conspiracy to Procure an Abortion and the 13th charge, which is one of the charges of Unlawful Sexual Intercourse with a Girl under 16, are not inconsistent with the verdicts of guilty reached in respect of other charges.  The evidence shows that the police had searched the clinic where X alleged that she had received an abortion, but no equipment or western medicine which could be used for abortion was found.  X had been examined by a forensic pathologist but the pathologist could not conclusively prove that X had received any operation for induced abortion.  In these circumstances, the jury had a good basis to hold that X’s allegation that she had undergone an operation for abortion might be a result of misunderstanding and this could also be the basis on which they gave the applicant benefit of the doubt.
陪審團裁定申請人第7項串謀促致流產罪和第13項與16歲以下女童非法性交罪罪名不成立並非和其他控罪有罪的裁決不一致。證據顯示警方曾搜查過X聲稱進行流產的診所，但不能找到可供流產用的工具或西藥。法醫在檢查X後亦不能確證X曾進行過人工流產手術。在上述情況下，陪審團有基礎認為X所聲稱曾進行過流產手術可能是誤會所導致，亦有基礎給予申請人疑點的利益。

The 13th charge stated that the applicant had sexual intercourse with X on a certain day in December 2006.  However, on X’s evidence, in December 2006 she had already stopped receiving private tuition in the applicant’s home.  The jury obviously was of the view that the day specified in the 13th charge might be wrong, and for this reason gave the applicant benefit of the doubt.  The verdicts of the jury are by no means inconsistent.  There is certainly no sufficient reason for us to interfere with the verdicts reached by the jury on the ground that the verdicts are inconsistent.
第13項控罪指申請人在2006年12月某日和X發生性行為，但根據X的證供，她在2006年12月已停止在申請人居所補習。陪審團明顯認為第13項控罪所指的日子可能有錯，並因此給予申請人疑點的利益。陪審團的裁決絕非不一致，本庭更沒有足夠理由以裁決不一致來干預陪審團的裁決。

When a criminal case is tried in the Court of First Instance, the trial judge and the jury have different functions to fulfil.  The jury is the judge in factual matters and the trial judge should trust them to make correct decisions.  In giving directions to the jury, the trial judge is certainly entitled to express his views on factual issues, but the words and expressions used should be mild and balanced, not strong or one-sided. Otherwise, an onlooker who is aware of what is going on may feel that the trial judge has usurped the function exclusive to the jury and may think that the trial process is unfair.
高等法院原訟法庭處理刑事案件時，主審法官及陪審團扮演不同角色。陪審團是事實的裁決者而主審法官應信賴他們會作出正確的裁決。當然主審法官在引導陪審團時有權就事實議題表達其意見，但用詞應溫和、均衡而非強烈及一面倒，否則會導致一名知情的旁觀者覺得主審法官篡奪了陪審團獨有的職能及認為審訊程序不公平。

To quote the following passages from the headnote to the judgment of HKSAR v Yeung Chor Ming [2004] 1 HKLRD 136 will suffice:
本庭只需複述香港特別行政區 訴 楊楚明 [2004] 1 HKLRD 136案之裁決摘要：

“(1)The ultimate question was whether the summing-up as a whole was balanced and fair.  This was one aspect of the long-established principle that justice must not only be done, but must be seen to be done …
“（一）最終來說，問題是總結講辭整體上是否平衡和公平。這是一項確立已久的原則。一即公義不但必須執行，而且必須被目睹執行…

(2)The principles governing the judge’s powers and duties in relation to summing-up could be summarised as follows:
（二）關乎法官作總結講辭時的權力和責任的原則，可歸納如下：

(a)The judge should never take away the jury’s function as the sole arbiter of facts.  Hence, the wording and comments made in the course of the summing-up should not give the impression that the judge was directing the jury to accept his views on the facts …
(a)法官不可剝奪陪審團為事實方面的唯一裁斷者的職權，因此法官在總結講辭中的用語和評論不應使人覺得法官正在指示陪審團接納他自己對事實的看法…。

(b)The wording and comments made in the course of the summing-up should not give the impression that the judge was making another speech for the prosecution …
(b)法官在總結講辭中的用的語言和評論，不應使人覺得法官正在替控方作另一次陳詞…；

(c)Subject to (a) and (b) above, the judge was entitled to provide reasonable, impartial and fair explanation, analysis and comments on the parties’ cases and evidence, which would help the jury reach a conclusion …
(c)在受制於上述(a)和(b)下，法官有權在總結講辭中對控辯雙方的案情和證據作出合理、中肯和公平的解釋、分析和評論。這將有助陪審團達致裁決。

(d)Where (a) or (b) above was contravened, the unbalance of the summing-up would not be saved by the usual reminder or direction that the jury were the sole arbiter of facts, or that it was a matter for the jury to draw a conclusion or verdict on the facts, or that the jury were free to reject any of the judge’s comments with which they disagreed … ”
(d)一旦出現違反上述(a)或(b)的情況，則即使法官在總結講辭中曾有循例叮囑或指示陪審團他們是事實方面的唯一裁斷者，或他們須自行就事實作出判斷及裁決，又或他們若不贊同法官的意見便無需接納該等意見等，也不足以彌補總結講辭的不當。

It is undeniable that a significant part of the applicant’s evidence was not convincing, especially the evidence about the events which, according to the applicant, caused X to tell lies to falsely accuse him, including X’s refusal to return to the applicant the money spent on buying two mobile phones for her and the occasion on which they slapped each other.
無可否認申請人作供自辯時的證供很多部份不具說服力，特別是申請人指導致X說謊誣告他的事件，包括X拒絕歸還申請人替她購買的兩部手提電話的費用及互相掌摑等事件。

With reference to the above two events, the trial judge made comments in her summing up to the jury as follows:
就上述兩宗事件，原審法官向陪審團作出總結陳辭在以下詳論：

“The defendant bought at different times two wireless phones, mobile phones and gave them to X.  However, he stressed that these two phones were not gifts.  The defendant said that the first phone was a 3G phone and that X told him she would get money from her elder brother in order to return the money to him.  But after a while, nothing happened.  He asked X about it and X just gave him equivocal answers.  What’s strange in this matter is that when X’s mother telephoned the defendant and asked him why he gave X such an expensive gift, the defendant not only did not clarify the situation by saying, “It’s not a gift”, but he even told X’s mother, “I had bought it anyway and I didn’t want to be mean, so I treated it as a birthday gift”.  Then it was the West Kowloon incident, the defendant said that on that occasion he again could not resist X, who kept on [      ] [sic] him and repeatedly asked him to buy a white Sony Ericsson. On that occasion he again trusted X, who said that when she got to Form 4 she would have more pocket money, then she would pay.  He said he relented and bought X the phone.  You will remember that after this incident, X’s mother telephoned the defendant again and asked him, “Why did you buy another phone for X?”  In this conversation between the two of them, she asked the defendant, “You’d better take the phone back or return it [to the company].”  What was the defendant’s reply to X’s mother? The defendant said, “ You can treat it as an encouragement for X being able to be admitted to the science class at Form 4.”  When the defendant was asked how much the phone actually cost, he said it was one thousand odd to two thousand odd dollars.  He was not sure.  Then Mr. So [transliteration of 蘇] questioned him, “You expected that she would repay you.  There is no reason why you cannot remember how much money you wanted her to repay you and how much money the phone cost, right?”  The defendant answered, “It happened many years ago.  I cannot remember everything.”  Then Mr. So put another question to him, “Why didn’t you return the phone [to the company] or take it back for your own use?”  The defendant said, “You have bought a mobile phone yourself.  [You know] you can’t return it [to the company].  The phone was a model for ladies.  How could I use it?”  You will remember that later, when X stopped receiving private tuition, she went to his home to pack up her things, and she left behind the bunch of keys and the phone, but the defendant still--  According to his evidence, he said to X, “You can take it away and use it.”  Ladies and gentlemen, please think about this.  The defendant said that on the first occasion when he bought the 3G telephone, he was cheated.  At first he did not intend to treat it as a gift for her.  At first he thought that she would repay him, but in the end she did not pay him back the money. Then why didn’t he become wiser?  Why was there a second occasion when he bought the second telephone at West Kowloon?  Why can he remember clearly some details such as what happened on which day, but in relation to how much the telephone cost, he didn’t take it seriously and cannot remember it?  Were the two phones, as what X said, gifts given to her by the defendant, or were they, after he was cheated by X two times, after X failed to repay him, when he had no other alternatives, treated by him as a birthday gift or encouragement gift?  Do you think that under an ordinary private tutor and student relationship, he would give her such an expensive gift which cost one thousand odd to two thousand dollars, approximately equivalent to the tuition fees for 5 tuition lessons?  Can these two phones help you to decide what the relationship was between the defendant and X?  Please consider this point yourselves.”
“被告前後就買咗兩個無線電話，手提電話畀X，不過佢強調兩個電話唔係禮物嚟嘅。被告話第一個3G電話，X就同佢講話會喺大哥嗰度攞番錢畀佢，但係過咗一排之後就冇件事喇，佢有問起過X嘅，但係X就支吾以對。但係奇怪嘅係，當X媽媽打電話畀被告，問佢做咩嘢送部咁名貴嘅禮物畀X嘅時候，被告係不但冇澄清話「唔係禮物嚟」，咁反而佢會同X嘅媽媽講話「都買咗喇，費事咁小家囉，咪當係生日禮物囉」。到咗西九龍嗰次喇喎，被告話佢嗰次又係經唔起X係咁「」，再三要求要買部白色嘅Sony Ericsson，咁佢嗰次又相信X，話到中四零用錢多番啲喇，就會畀錢，佢話佢心軟，買咗部電話畀X，但係嗰次之後，你哋會記得媽媽就又再打電話畀被告，問佢「點解又再買部電話畀X呀？」跟住兩個交談嘅時候又叫被告話「你不如收番喇，或者退番部電話喇。」咁被告點樣答X媽媽呢？被告就話「當係X入到中四理科嘅獎勵喇。」咁又係當被告被問及嗰部電話其實幾多錢？咁被告就話千幾二千金文喇，佢唔肯定。咁蘇大律師又質疑喇，「你諗住人哋會還錢，冇理由你要人哋還你幾多錢，嗰部電話幾多錢你會唔記得？」被告就話「好多年前嘅事，唔係所有嘅嘢都記得晒嘅。」咁蘇大律師又問佢喇，「咁你點解唔退番部電話或者自己收番嚟自己用呢？」被告就話「你都買過手機，都唔退得番嘅，部機係女裝嘅，我自己點用呀？」各位亦都記得，後來就算X停止補習喇，上去屋企執嘢喇，留番低揪鎖匙喇，留番低部電話，被告都仍然--根據佢自己嘅證供，叫X「妳攞番去用喇」。咁各位諗下喇，被告就話第一次買3G電話都上當喇，初初冇諗住係禮物送畀佢，初初諗住係會還錢，咁但係最終冇還到錢，咁點解仲唔經一事、長一智，仲要再第二次喺西九龍嗰度買第二部電話呢？點解佢對一啲細節，以至係咩嘢日期發生咩嘢事記得咁清楚，但係就對部電話係幾多錢又唔上心，記唔起嘅呢？嗰兩部電話係正如X所講，被告送畀佢嘅禮物，抑或係佢係佢喺X兩度呃佢唔還錢嘅情況下，不得而已，當作生日禮物或者係獎勵嘅禮物呢？咁各位認為普通補習老師同學生會唔會送成千幾二千鈫，等同五堂補習費咁上下嘅名貴禮物呢？呢兩部電話幫唔幫到你哋決定被告同X嘅關係呢？呢一點你哋自己考慮。”

“The defendant was sure that after the slapping- each-other-incident as described by him, he had only told X’s mother that there was some conflict between he and X.  He did not tell X’s mother that they had slapped each other.  He said it’s because he himself felt embarrassed.  According to his evidence, X went away angrily, but on the next tuition day, X came as usual for tuition.  Both of them refrained from talking about that incident.  You remember the defendant has given evidence that X was of strong character and had an intense rebellious temperament.  When her mother and she went to have her mobile telephone service changed to another mobile telephone service provider.  She went away when she was in Causeway Bay, went away in a fit of anger.  Well, when the defendant succeeded in coaxing her to return home, according to the defendant, the whole family had to pretend that they had fallen asleep and dared not say anything.  Ladies and gentlemen, the defendant’s evidence is that after X was slapped, she swallowed this humiliation in silence, pretended as if nothing had happened and went back there to receive tuition.  Do you think that such evidence is reasonable or is it contrary to logic?  The defendant talked about a looking-at-her-diary incident.  He told you why there was this incident; what happened in and the result of this incident.  Do you think it is true or invented?  Please make your own decision.
咁被告所講話發生咗嗰件互相掌摑嘅事件之後，被告就好肯定佢凈係有同X嘅媽媽講話同X有啲衝突，佢係冇講過畀X媽媽聽有互相掌摑嘅事件事件，因為佢話佢都好瘀。而根據佢嘅證供，雖然X雖係怒氣沖沖咁走咗，咁但係佢話下一個補習天X又照舊返去補習，大家仲對個事件避而不談。咁各位記得喇，根據被告嘅證供，X嘅性格都好剛烈喎，反叛性好強喎，媽媽同佢轉台，喺銅鑼灣嗰度佢都可以走咗去，拂袖而去，好喇，被告氹到佢返屋企喇，根據被告所講，成家人都仲要扮瞓咗覺，唔敢出聲講嘢嘅，咁各位認為被告所講，X會喺被掌摑之後忍氣吞聲，扮若無其事返去補習嘅講法係合情合理吖，抑或常理有歪呢？被告所講睇日記呢件事件嘅始末同埋前因後果係事實定係砌詞呢？你哋自己決定喇。

You will also remember that when Mr. Wong asked X about the diary, the instant response of X was this answer: “Oh, so, it was lost on that day! I just remember that I had taken it out to the streets, and after that it was missing.” She also said, “At first I thought that mum took away my diary, now it turns out that he took it away.”  After that, Mr. Wong put it to X that when she came out from the toilet, she saw that the defendant was looking secretly at her diary; she snatched it away and slapped the defendant once.  X categorically denied that.  Mr. Wong put it to X that on that occasion she was slapped once by the defendant in front of Law Wing Lam [transliteration of 羅永林]; as a result she was psychologically injured.  X replied, “The defendant had never slapped me in front of any schoolmates of junior classes.  You’d better ask Law Wing Lam whether he saw such thing ever happened.”  Do you think that these were X’s spontaneous responses or well-prepared responses?  Was there ever a slapping-each-other-incident?  Please consider it yourselves.”…
各位又會記得喇，當黃大律師問及X有關嗰本日記簿嘅時候，X第一個反應就係「哦，原來係嗰日唔見咗，我凈係記得帶過出街，之後就唔見咗喇」，佢又話「我起初以為阿媽攞咗我本日記，原來佢攞咗」。咁之後黃大律師就向X指出，佢喺洗手間出嚟見到被告偷睇佢嘅日記時候，佢搶番，摑咗被告一巴，X係斷言否認嘅。咁對於黃大律師向佢指出話，呢一次X係因為畀被告喺羅永林面前摑咗一巴，佢心靈受到創傷嘅，咁X就話「被告都未試過喺師弟面前摑我，你不如問下羅永林有冇見過啲咁嘅嘢發生」？各位認為呢啲係X嘅自然反應，抑或係早有準備嘅反應呢？互相掌摑嘅事件究竟有冇發生呢？你哋自己考慮。”…..

In our judgment, the above passages show that the trial judge placed excessive emphasis on the weak points of the defence case, so that it gives the impression that she was making another speech for the prosecution, rather than providing impartial and fair analysis and comments on the facts of the case.
本庭認為，上述例子顯示原審法官對辯方案情的弱點過份強調，令人覺得她正在替控方作另一次陳詞，而非就案情作出中肯和公平的分析和評論。

Conclusion
結論

We hold that the trial judge did not give any direction to the jury about the “uncharged acts” and therefore rendering the conviction unsafe.  We grant leave to the applicant to appeal against conviction.  We treat this application as the appeal and allow the appeal.  The conviction and sentence against the applicant are set aside.
基於本庭認為原審法官沒有就申請人“不被控告的行為”的證供，向陪審團作出任何指引，導致定罪不穩妥，本庭批准申請人就定罪上訴。本庭視申請為正式上訴，並裁定申請人上訴得直,針對申請人的定罪和判刑決定都撤銷。

Postscript
附文

This case involves the handling of evidence about “uncharged acts”.  The period within which an individual offence which the applicant allegedly committed was not a certain day, or a short period, but one month, two months, three months or even as long as one year.  The prosecution alleged that within these periods of time, besides the sexual intercourse specified in the individual charges, there were many other sexual intercourse between the applicant and X.  According to the prosecution, in any one of the periods of time referred to by the charges, the applicant did many other “uncharged acts”, the exact number of which is not known.  Owing to the fact that the offences and many other “uncharged acts” took place within the same place and the same periods of time, and under the same circumstances, the acts specified in the charges cannot be separated or differentiated from the many “uncharged acts” at all.
本案涉及如何處理“不被控告的行為”的證供。控方指控申請人的個別控罪發生的時間，並非是某一天，或某一段短時期，而是一個月，兩個月，三個月甚至長達一年的時間。根據控方的指稱，在上述時段，除了個別控罪所指的一次外，申請人有和X多次發生性行為。因此，在控罪所指的同一時段，控方指申請人同時犯有無數次的“不被控告的行為”。由於控罪和其他多次“不被控告的行為”發生在同一地點、同一時段及同一情況，控罪所指的行為和多次“不被控告的行為”根本不能區分或辨別。

This handling method has two major defects: (1) It may lead to unfairness to the defendant, because the defence cannot distinguish which acts are the acts referred to in the charges and which acts are “uncharged acts”, and therefore may encounter difficulties when preparing its defence; (2) It will also be difficult for the trial judge to give directions to the jury as to these “uncharged acts”.
上述的處理方法，有兩大缺點：（一）可能會對被告人不公平，原因是辯方不能辨別哪些是控罪所指的行為，哪些是“不被控告的行為”，在作出相應的答辯時可能會面對困難；（二）主審法官要就“不被控告的行為”引導陪審團時，亦會面對困難。

In HKSAR v Kwok Hing Tony (CACC 26/2008), this Court expressed its concern about the same matter.  We cite paragraph 12 of the judgment of that case:
本庭在香港特別行政區 訴 郭慶 （CACC 26/2008）案已作出同樣關注。本庭複述該判案書第12段：

“We would first mention a matter of concern, which is that when an offence which a defence faces refers to an ‘unknown date’ within a lengthy period of time, and the location is a place where the defendant and the complainant are often likely to meet, the appearance of evidence of “uncharged acts” may lead to unfairness to the defendant, because if he cannot distinguish acts with which he is charged from those with which he is not, he would not be able to present a defence corresponding to the charge.
“本庭首先要提出令人顧慮的一點，就是當一名被告人面對的控罪所陳述的日期，是一段悠長期間內的“某日”而地點是被告人與投訴人經常會見面的地方時，“不被控告的行為”的證供的出現，是可能對被告人不公，因為他未能辨別哪項行為是被控告的，而哪項行為是沒有被控告的，而作出相應的答辯。

In Chim Hon Man v HKSAR (1999) 2 HKCFAR 145, the Court of Final Appeal has held that the defendant has a right to know clearly the particular act which forms the foundation of the charge.  Sir Anthony Mason NPJ said:
終審法院在Chim Hon Man v HKSAR (1999)2 HKCFAR 145一案已提出，被告人是有權清楚知道作為控罪基礎的明確行為。Sir Anthony Mason NPJ說：

‘Knowledge of the particular act, matter or thing which is the foundation of the charge is important in enabling the accused to ascertain and prove what, if any, defence, for example, an alibi, he may have to the offence charged and to subject a complainant’s evidence to searching scrutiny by reference to the surrounding circumstances.  An accused person may be subjected to unfairness and embarrassment if he is called upon to meet a charge of one offence based upon evidence of the commission of multiple offences, more particularly if the evidence is such that it does not enable each such offence to be clearly differentiated from the others.  The degree of unfairness or embarrassment may vary according to the circumstances.  If the prosecution case is based on evidence of many offences in an extended period of time the unfairness may be considerable.’”
‘獲悉哪個確切的行動或事宜構成控罪的根基，是具重要性的，因為這會令到被告人能夠查明及證明他對控罪有什麼答辯，如有的話: 例如他並不在犯罪現場這一個答辯，與及令到被告人能夠就周遭的情況，對投訴人的證據作出徹底的審閱。如果一名被告人面對一項控罪，而支持該項控罪的證據顯示發生了多項罪行，尤其是如果該證據未能夠令人把每一個罪行辨別清楚，該名被告人是會蒙受不公。不公的程度則按情況而定。如果支持控方案情的證據，是一段悠長期間內發生了的多項罪行，那麼其不公的程度可能是相當高的)。’

We hope that the Department of Justice would take into consideration the concern we have when they draft any indictment, so that the same problem would not appear again.
本庭希望律政司在草擬公訴書時，能將本庭的關注考慮在內，避免相同問題再次出現。

Mr. Richard Wong and Mr. Robin Yue, instructed by Ng, Lie, Lai & Chan, for the Applicant
申請人: 由伍李黎陳律師行轉聘黃達華大律師及喻競天大 律師代表。

Mr. David Leung, Senior Assistant Director of Public Prosecutions of the Department of Justice, for the Respondent
答辯人：由律政司高級助理刑事檢控專員梁卓然代表。