Hon Tong J (giving the judgment of the Court):
高等法院原訟法庭法官湯寶臣頒發上訴法庭判案書：

Background
背景

The applicant was charged with one count of Indecent Conduct Towards A Child Under The Age Of 16 Years, contrary to section 146(1) of the Crimes Ordinance, Cap. 200, Laws of Hong Kong.  The particulars of offence stated that the applicant, on 26 May 2008, in his private car at Lot S of the water catchment, Shing Mun Reservoir, Tsuen Wan, committed an act of gross indecency towards X, a girl under the age of 16 years.
申請人被控一項「向年齡在16 歲以下的兒童作出猥褻行為」，違反香港法例第 200章《刑事罪行條例》第 146(1)條。控罪詳情指申請人於2008 年5 月26 日，在荃灣城門水塘引水道S 地段，在他的私家車內，向一‍名年齡在16 歲以下的女童 X作出嚴重猥褻行為。

The applicant pleaded not guilty but was found guilty after trial before Deputy District Judge Johnny Chan, and was sentenced to 24 months’ imprisonment.
申請人否認控罪，區域法院暫委法官陳‍仲‍衡在審訊後裁定申請人罪名成立，判監24 個月。

The applicant initially applied for leave to appeal against both conviction and sentence.  Later, on 3 November 2009, he abandoned the application for leave to appeal against sentence, which application was dismissed by the Court on 4 November.  The applicant now applies for leave to appeal against conviction only.
申請人不服，先提出定罪及判刑的上訴許可申請，後來在2009 年11 月3 日放棄了針對判刑的上訴許可申請，法庭已於11 月4 日撤銷其申請。申請人現祇就定罪申請上訴許可。

Prosecution case
控方案情

In brief, the prosecution case is basically as follows:
簡略而言，控方基本案情如下 ：

The girl involved in this case was a Form 2 student.  She was 15 years and 7 months old at the time when the offence was committed.  She was a member of the fencing club of the school where she was studying.  The applicant was 33 years old.  He was a primary school teacher and also a part-time fencing instructor of the girl’s school; because of this, he came to know the girl.
涉案女童是一‍名中二學生，事發時年齡為15 歲零7 個月，是就讀學校劍擊會的會員。申請人則是一‍名33 歲的小學教師，在女童學校兼職劍擊導師，因而認識女童；

About 5 p.m. on 26 May 2008, the applicant invited the girl to have dinner together after school.  Subsequently, he drove the girl to Shing Mun Reservoir, Tsuen Wan.  Sometime between 8 p.m. and 9 p.m., he parked his car near Lot S of the water catchment, Shing Mun Reservoir.
在2008 年5 月26 日，大約下午5 時，申請人邀請女童放學後一起吃晚飯，之後，申請人駕車與女童前往荃灣城門水塘。大約晚上8 時許，申請人把車停在城門水塘近引水道S 地段；

Sometime between 9 p.m. and 10 p.m., PW2 was patrolling in a police vehicle and reached the above-mentioned location.  He spotted the applicant’s private car and saw that the girl was sitting, in a riding position, on the body of the applicant, who was sitting on the driver seat, with her back towards the windscreen, while the applicant’s arms were around her waist.  PW2 alighted, walked to the car and shone his torch into the car.  The girl immediately turned round and sat on the passenger seat beside the driver seat.  The police constable decided to investigate this matter.  At that time no woman police officer was present, so PW2 called for assistance through the radio.
到晚上9 時許，第二控方證人乘坐的警車巡邏至上述地點，他發現申請人的私家車，並看見女童騎著坐在司機位的申請人身上，背向著擋風玻璃，而申請人雙手則環抱在女童腰間。第二控方證人下車走近，用電筒照入車內，女童即時翻身坐回車頭乘客座位。警員決定進行調查，因為當時沒有女警在場，第二控方證人於是電召協助；及

Later, PW3 and other police constables came.  He questioned the applicant.  PW3 gave evidence that the applicant admitted under caution that he had committed acts of indecency towards the girl.
後來第三控方證人與其他警員到達，由他向申請人作出調查。第三證人作供說，在警誡下，申請人承認曾對女童作出猥褻行為。

In his Reasons for Verdict, Deputy Judge Chan set out clearly the evidence given by the witnesses of this case.  He recorded that it was not disputed that at the time of the offence the girl was 15 years and 7 months old, while the applicant was 33 years old.
陳‍法官在裁決理由書裡已清晰地交代了本案各證人的證供。他指出，控辯雙方不爭議女童的年齡，於案發時為15 歲7 個月，而申請人則為33 歲。

Deputy Judge Chan stated that the prosecution applied to tender as evidence the notebook record and the verbal admission made by the applicant at the scene to PW3. The contents of the notebook record included the reply made by the applicant which he confirmed by signing it at the scene and the post-recorded cautioned statement which was processed subsequently at the police station.  The defence objected to the application and submitted their written reasons for objecting it.  Deputy Judge Chan dealt with this matter by way of the alternative procedure.
陳‍法官提到，控方申請將申請人向第三證人在現場作出的口頭招認及記事冊紀錄呈堂為證據。有關的記事冊紀錄，包括申請人於現場簽署確認的回應及其後在警署所做的補錄警誡口供。辯方反對這項申請，並呈遞了書面反對理由。陳‍法官以交替程序處理了有關的問題。

As far as the girl’s evidence is concerned, Deputy Judge Chan pointed out that her evidence in chief was based on her video recordings, but after she was cross-examined by the defence, the prosecution asked that she be treated as a hostile witness.  Having heard submissions on this matter, Deputy Judge Chan granted the prosecution’s application and then the prosecution cross-examined the girl.
就女童的證供方面，陳‍法官說明她的主問是以其錄影記錄為基礎，但在辯方向她盤問後，控方要求將女童轉為敵對證人。聽過這方面的陳詞後，陳‍法官批准控方申請，主控其後有對女童提出盤問。

Deputy Judge Chan stated that he reopened the hearing on the special issue at the request of the defence.  The reason was that the defence learnt subsequently that the applicant was suffering from temporal lobe epilepsy.  In this connection, the defence called other witnesses to give evidence.  Finally, having considered the evidence and submissions from both sides, Deputy Judge Chan ruled that both the verbal admission and the notebook record were admissible as evidence.
陳‍法官提到，他曾批准辯方的要求而重開特別事項的聆訊，理由是辯方後來得悉申請人患有聶葉性羊癎症。在這方面，辯方傳召了其他證人作供。最後，在考慮了證供及雙方陳詞後，陳‍法官裁定口頭招認及記事冊的記錄均可呈庭為證據。

A rather special feature of this case is that in the video recordings the girl said that the applicant had committed acts of indecency towards her, but under cross-examination by the defence, she denied her evidence in this area.  Deputy Judge Chan carried out a careful analysis of the girl’s evidence in his Reasons for Verdict.  His analysis and conclusion are set out below (page 35-36 of the bundle):
本案較為特別的情況是女童在錄影證供時說過申請人有對她作出猥褻行為，但在辯方盤問下，她推翻了這方面的供詞。陳‍法官在裁決理由書裡有小心地分析了他對女童之證供的看法。他的分析及結論如下(綜卷第 35至36 頁) :

“168.PW1 (i.e. girl X) was successfully turned into a hostile witness by the prosecution and was cross-examined by them.  The Court has to consider whether [she] is a reliable witness.  The evidence [she] gave in Court is contradictory to the contents of the video recordings used as her evidence in chief.  The Court has to consider whether, in the light of the contradictions in her evidence, her evidence is still credible and whether there is any danger in relying on her evidence.
「168.就著控方證人一(即女童 X)，她於案中被控方成功轉為敵對證人盤問。法庭必須考慮[她]是否一‍位值得信賴的證人。因[她在]庭上[的]證供是與她被用作主問的錄影會面記錄前後矛盾。法庭必須考慮於控方證人一前後矛盾的證供下，她[的]證詞是否仍是可信及依賴她的證供是否存在危險。

169.At last, the Court finds that the contents of PW1’s video recordings are supported by PW2’s evidence and the defendant’s admission.  The Court is of the view that it is indeed dangerous to rely solely on PW1’s evidence given in the form of the video recordings.  However, in this case besides PW1’s evidence given during her interviews, there are also PW2’s evidence and the defendant’s admission, which can support her evidence.  As for PW1’s evidence given in Court, the Court finds that obviously [she] was not telling the truth when she was in Court.  The Court considers that the explanation given by PW1 as to the discrepancies between what she said in the video interviews and her evidence in Court is not convincing.  The Court rejects PW1’s evidence that because she wanted to leave the scene and the police station as soon as possible, she said something which she thought the police would like to hear.
169.法庭最後認為，控方證人一的錄影會面之內容是得到控方證人二證詞及被告人的招認所支持，法庭認為，若單靠控方證人一的錄影會作為證據那確是存在危險。但於案中除控方證人一的證詞會面外，她的證詞是尚有控方證人二及被告人的招認所支持。就著控方證人一於庭上的證詞法庭認為明顯地[她]並沒有於庭上說出真相，法庭認為控方證人於庭上就著她錄影會面中所說跟跟庭上證詞之出入解釋時欠缺說服力，法庭拒絕接納控方證人一所說她是為了早點離開現場及離開警署，而說一些她認為警方希望聽到的話。

170.The Court’s view is that there are inherent improbabilities in PW1’s evidence that if she said something which the police wanted to hear, she could leave earlier.  The Court believes that once PW1 told the police what she said in the video recordings, there was more reason for the police to ask PW1 to stay to assist them in the investigation.  When PW1 told the police that intimacies had taken place between she and the defendant, the police would need PW1 even more to stay to assist them to investigate what happened between she and the defendant.  The Court considers that what PW1 said in Court, i.e. she lied during the video recorded interviews because she was under pressure, is definitely not the truth.  At that time, PW1’s mother was in the police station and she watched over the process of the video recordings through the close circuit television.  In the course of the video recordings, PW1 could have told the video recording officers that she did not want to continue with the video recorded interviews and that she wanted to leave the police station, or when she was taking a rest she could have complained to her mother or told her mother that she did not want to continue with the video recorded interviews but wanted to leave.  However, she did none of that.  The Court finds that the explanation she gave in Court is unconvincing.
170.法庭認為控方證人一所說，若她說一些警方想聽的話，她便可早點離開，這說法是存在著內在的不可能性。法庭認為，若控方證人一向警方說出如錄影會面中她所說的話，那警方便更需要控方證人一留下協助他們調查。控方證人一若對經警方說她曾與被告人發生親密關係，那警方當然會更需要控方證人一留下協助警方調查她跟被告人發生的事情，法庭認為控方證人一於庭上所說，她是因受壓而於錄影會面時說謊，法庭認為這絕非事實所在，當時控方證人一的母親是於警署內，於一通過閉路電視監控錄影會面的過程。於錄影期間，控方證人一是可向錄影人員說她不再希望繼續錄影會面及欲離開警署，又或她亦於休息時跟她的母親作出投訴，或跟母親說她不再希望繼續錄影會面，離開警署，但他卻沒有這樣做，而法庭認為她於庭上的解釋是欠缺說服力。

……
……

172.In the Court’s view, during the video recorded interviews, PW1 was quite protective towards the defendant.  She tried her best to play down the degree of intimacy and the intensity of the intimate acts between she and the defendant.  PW1 often answered questions by saying, “I don’t remember’, but in fact it is not true that she did not remember the answers to the questions; rather, she was trying her best not to say anything detrimental to the defendant.  However, as a result of the social worker’s careful and patient questioning, PW1 eventually disclosed part of the truth, including the fact that the relationship between the defendant and she was one of boyfriend and girlfriend, and that the defendant asked PW1 to embrace him, then PW1 put her arms round the defendant’s waist, while the defendant put his hands on PW1’s back and then kissed PW1 on the forehead; then PW1 twined her arms around the defendant’s neck; the defendant reclined the seat, unzipped his trousers and asked PW1 to kiss his lower part (i.e. penis); and PW1 did that.
172.法庭認為控方證人一於錄影會面中是頗為維護被告人，她儘量希望將她跟被告的親密行為說的較輕、淡化，控方證人是常以記不起回答問題，但事實上她並非是對問題答案無記憶，而是她是儘量不想說一些對被告人不利的話，但於社工細心耐性的追問下，控方證人一始終道出了真相的部分，包括她跟被告人為男女朋友關係，及被告人要求控方證人一要求擁抱被告，而控方證人一亦擁抱被告的腰，被告人則把雙手放在控方證人一背部，之後被告吻控方證人一的前額，控方證人一並以雙臂纏著被告的頸，被告把椅背位低，拉開褲鍊，要求控方證人吻被告下體(即陽具)，而控方證人一亦有這樣做。

173.The Court believes that PW1 did not have any motive to fabricate a story that the defendant and she were boyfriend and girlfriend. Actually, the statement given by PW1 during the video recorded interviews that the defendant and she were boyfriend and girlfriend is a true statement.  2, Intimacies such as embracing, kissing PW1 on the forehead, PW1’s twining her arms around the defendant’s neck and PW1’s kissing the defendant’s penis as described by PW1 in the video recorded interviews did actually occur.”1 [emphasis added] 1 Page 35 H-M of the appeal bundle
173.法庭認為，控方證人一並沒有捏造她跟被告人為男女朋友關係的動機，而事實上控方證人一於錄影會所說，她跟被告人為男女朋友關係亦是事實所在。二，控方證人一跟被告亦確曾發生如控方證人一於錄影會面中所說的親密行為，如擁抱、吻控方證人一的額，控方證人一以雙臂纏被告的頸及控方證人一吻被告的陽具等行為。」  [本庭強調]

Deputy Judge Chan made the following comments and conclusions about other prosecution witnesses (see page 36 and 37 of the bundle):
陳‍法官對其他控方證人有以下的評估及結論(見綜卷第 36至37 頁) :

“175.The Court finds that PW2 is an honest and reliable witness. The Court is satisfied that PW2 at the scene saw that PW1 was sitting in the car, and that, as described by PW2, PW1 was sitting on the driver seat, that is to say, sitting, in a riding position, on the defendant, with her back towards the windscreen of the private car.  The defendant was sitting on the driver seat. At that time the back of the chair was in an upright position.  The defendant’s arms were around PW1’s waist.  The Court is aware that the scene was not illuminated by street lights and that at the material time it was night-time, but PW2 lit up the place with his torch and saw what happened, as described above, within a short distance. The Court is satisfied that PW2 unmistakenly saw a girl in school uniform, who was later identified to be PW1, sitting on the body of the defendant, who was sitting on the driver seat of the private car.
「175.法庭認為，控方證人二是一[名]誠實可靠的證人，法庭信納無控方證人二於現場看見控方證人一坐於車廂內，如控方證人二所說般，控方證人一是以背向著私家車的擋風玻璃，坐於司機座椅，即騎著被告人，被告是坐在司機座位，當時椅背是直立，被告並以雙手放於控方證人一腰間。法庭留意到現場環境，並無街燈照明，當時亦是夜晚，但控方證人二是以電筒照明，並於短距離看見上述情況。法庭信納控方證人二是正確無誤地看見其後得知為控方證人一的穿著校服女子坐於私家車司機座位被告身上。

176.The Court notices that the description given by PW2 about seeing PW1 sitting, in a riding position, on the defendant’s body in the car is different from what was admitted by the defendant and PW1.  Nevertheless, the Court is satisfied that PW1 saw the above-mentioned body contacts within a short distance under illumination by torch light and that he saw PW1 turn round and return to her seat.
176.法庭亦留意到控方證人二所述，他看見控方證人一騎在被告身上於車廂內的情況與控方證人二所述是於被告人及控方證人一所承認有別，但法庭信納控方證人二是於電筒照明下，並於短距離目睹上述接觸，並看見控方證人一翻身坐回她座位。

177.PW2’s evidence about what he saw the defendant and PW1 doing is different from what PW1 said in the video recorded interviews and is also different from what the defendant verbally admitted at the scene and from the admission recorded in the post-recorded cautioned statement.  The Court believes that PW2 honestly gave evidence about what he witnessed; on the other hand, PW1 was trying her best to make the incident appear to be less serious than it was, while the defendant made admission about the incident according to what he himself wished to say.
177.控方證人二就著目睹被告人跟控方證人一的行為，跟控方證人一於錄影會面事所說或被告人於他的現場口頭招認及補錄警誡供詞所記載的招認說話是有分別。法庭認為，控方證人二是就著自己所目睹如實作證，但另一方面，控方證人一只是儘量將事情說的較輕，而被告人本人則是按自己意願就著事件作出招認。

178.Furthermore, PW2 appeared at the scene only at a later stage.  The Court considers that it is not strange at all that PW2 did not see what contacts there were between PW1 and the defendant at the earlier stage, i.e. before PW2 arrived.  However, what PW2 saw did support the allegation that the defendant and PW1 had intimate contacts in the car.  Admittedly, the action which PW2 saw, namely PW1 sitting on the defendant’s body, in a riding position, with her back towards the windscreen of the private car, falls short of being indecent, but it strongly supports the allegation that the defendant and X, i.e. PW1 did have intimate contacts in the car. It also supports what PW1 said in the video recorded interviews, i.e. before the constable arrived she and the defendant had even more intimate contacts as described in the video recorded interviews.
178.再者，控方證人二出現於現場亦是較後期的時間，法庭認為控方證人二看不見較早前，即控方證人二到場前控方證人跟被告人的接觸是毫不出奇。但控方證人二所見確是支持被告人跟控方證人一於車廂內是有親密接觸，誠然控方證人二所見，控方證人一當時背向私家車擋風玻璃，騎在被告身上，這行為尚未達至猥褻程度，但卻強烈支持被告人跟X即控方證人一在車內是確是有親密的接觸，亦支持控方證人一於錄影會面中所說，警員到場前，她跟被告人是曾有如錄影會面有述更親密的接觸。

179.The Court finds that PW3 is an honest and reliable witness.  The Court has already commented on the evidence about the special issue and will not repeat it. As far as the general issue is concerned, the Court accepts PW3’s evidence that at the scene where the defendant was arrested, the defendant did, as stated by PW3, make the verbal admission recorded in the notebook.  The Court is satisfied that PW3 accurately recorded in his notebook the conversation between he and the defendant.  The Court gives full weight to the admission in question.”
179.法庭認為控方證人三是一誠實可靠的證人，法庭已交代了特別事項的證詞，不再贅述。而就著一般事項，法庭信納控方證人三的證詞中所說，被告於拘捕現場確如控方證人三所述，作為了現載於記事冊的口頭招認。而法庭亦信納控方證人三的記事冊是準確地記錄了他跟被告人的對答內容，法庭給予有關招認全面的證據比重。」

Deputy Judge Chan’s decision regarding this case as a whole is as follows (see page 37 of the bundle):
對於本案的整體案情，陳‍法官的裁決是(見綜卷第 37頁) :

“183.Judging from all the evidence before the Court, the Court is satisfied that the defendant and X did embrace each other; the defendant did kiss X on the forehead; X did twine her arms around the defendant’s neck and the defendant did take out his penis for X to have intimate contact with it.  Having considered all the evidence, the Court finds that the defence’s allegation that the police constables fabricated evidence to frame up the defendant is not substantiated.  The Court finds that there are inherent improbabilities in the defendant’s allegation that the constables fabricated the evidence.
「183.綜合本席面前證據，法庭從證據中信納被告人跟X確是曾互相擁抱，被告亦曾吻X的額頭，而X亦曾以雙手纏繞被告的頸部，被告更曾取出他的陽具給X作親密接觸。法庭考慮了整體證據後，認為案中如辯方所指，警員捏造證據誣告被告的情況並不存在。法庭認為辯方所指的警員捏造證據是存在其內在個不可能性。

184.The police constables involved in this case, including PW2 and PW3, had to put the admission words into the defendant’s mouth, and to force or induce the defendant to sign to confirm that he, being a teacher, indecently assaulted an underage girl.  The police not only needed to make the defendant confess, but also needed to find a victim, to make the girl X (i.e. the fencing student of the defendant) to cooperate with them to make up the accusations that there were intimate body contacts between the defendant and she.
184.案中警員，包括控方證人二及三，不但要將一些招認說話強加於被告人口中及逼或誘使被告人簽署確認他作為老師，非禮一未成年的少女，除需要使被告承認外，警方更需要找來一受害人，警方需要使女童 X（即被告的劍擊學生）跟警方合作，虛構一些指控，指被告人曾與她發生親密的身體接觸。

185.Judging from the evidence before the Court, the Court is sure that when PW2 reached the scene on patrol he saw that PW1 was sitting on the defendant, in a riding position, in the car, with her back towards the windscreen of the car.  Because of that, he carried out further investigation.  He called for police vehicle no. 68 to come to assist him only because of what he saw at the scene.
185.從面前證據，法庭確信控方證人二是因為他巡邏至現場時，看見控方證人一於被告車廂內以身體騎著被告的姿勢，背向私家車的擋風玻璃，他才作進一步的調查，他亦因他所於現場所目睹才召喚68 號警車到場協助。

186.The Court considers that if PW2 at the scene had seen that [the defendant] and PW1 were just sitting on the seats in the private car, without doing anything unusual, he would surely not have called for the police officers in police vehicle no. 68 to come to the scene to assist him.  The Court finds that PW3 declared to the defendant at the scene that he was under arrest only because the defendant made the verbal admission to him at the scene.  The Court is of the view that if the defendant did not make any admission to the police constables at the scene and the constables did not know whether the girl X would cooperate with them in framing up the defendant, then in there circumstances, it is unbelievable that they would, as alleged by the defence, take X and the defendant, without arresting him, to the police station.
186.法庭認為，若控方證人二於現場只看見跟控方證人一坐於私家車內的座位，並無異狀，他是決計不會找來68 號警車的車員到場協助。法庭認為控方證人三是因被告人於現場跟他作為口頭招認，才於現場宣佈拘捕被告人。法庭認為，若在場的警員並無被告人於現場作出任何招認，他們又不知道女童X會否跟他們合作誣告被告，於此情況下，他們如辯方所指，不拘捕被告的情況下，將被告及X帶返警署的說法是難以使人置信的。

187.On the basis of the defendant’s admission, the actions which PW2 saw at the scene and the things said by the girl X during the video recorded interviews, the Court finds that it is beyond reasonable doubt that at the scene in the car intimate contacts did occur between the defendant and X, including the defendant touching the breasts and the lower part of the girl X and the defendant taking out his penis for the girl X to touch it and kiss it.” [emphasis added]
187.從被告的招認，控方證人二現所目睹及女童X於錄影會面所說，法庭可毫無合理疑點的證案標準，被告人跟X於車廂內，於案發現場曾發生親密接觸，包括被告人曾觸摸女童X胸部及下體，被告亦曾取出他的陽具讓女童X觸摸及親吻。」  [本庭強調]

Deputy Judge Chan held that according to the moral standard of ordinary citizens, what the applicant did to the girl, especially taking out his penis for the girl to kiss it, was indecent, and that the indecency was serious enough to be gross.  He therefore found the applicant guilty.
陳‍法官認為，基於申請人對女童所作出的行為，尤其是取出陽具讓女童親吻，按一般巿民的道德標準而言已屬猥褻，程度也達至嚴重。因此法庭裁定申請人罪名成立。

Grounds of appeal
上訴理由

Mr. Alex Ng, counsel for the applicant, put forward the following grounds of appeal:
代表申請人的吳‍政‍煌大律師提出以下的上訴理由 ：

(1)The trial judge erred in law and in his findings of fact in that he wrongly adopted girl X’s video recorded interview evidence (“video evidence”) as the factual basis of the conviction.
(1)原審法官不當地採納女童 X的錄影會面證供(“錄影證供”)作為事實的定罪基礎，於法理及事實審斷上出錯。

(2)The trial judge erred in his findings of fact in that he admitted PW3’s evidence about the applicant’s verbal admission and about the contents post recorded in the notebook, having totally neglected the serious inherent improbabilities in his evidence.
(2)原審法官採納控方證人三就申請人的口頭招認及記事冊補錄的證供，完全忽略了其證供的嚴重內在性不可能的情況，於事實判斷上出錯。

(2.1)Alternatively, the trial judge proceeded on a wrong legal basis when he dealt with PC 1987’s questioning the applicant without cautioning him.
(2.1)交替地，原審法官在處理警員 1987在未有警誡申請人的情況下向他問話的法理基礎失當。

(3)In these circumstances, the conviction is unsafe.
(3)在此情況下，定罪為不穩妥。

Applicant’s submissions
申請人陳詞

Mr. Ng submitted that in general, if a witness in Court denied the truth of the statements he gave earlier, then the statements, including sworn statements, should not be treated as evidence.  Mr. Ng referred to the judgment given by the English Court of Appeal in R v Goldens, 45 Cr. App. R. 5, CCA (at p.11):
吳‍大律師陳詞裡指出，在一般情況下，證人於庭上否認早前所作的口供時，該等口供不應被視為證供，就算是宣誓下的口供也是如此。吳‍大律師引述了英國上訴庭在R v Goldens, 45 Cr. App. R. 5, CCA (at p. 11)的判詞 :

“When a witness is shown to have made previous statements inconsistent with the evidence given by that witness at the trial, the jury should not merely be directed that the evidence given at the trial should be regarded as unreliable; they should also be directed that the previous statements whether sworn or unsworn, do not constitute evidence upon which they can act.”
“When a witness is shown to have made previous statements inconsistent with the evidence given by that witness at the trial, the jury should not merely be directed that the evidence given at the trial should be regarded as unreliable; they should also be directed that the previous statements whether sworn or unsworn, do not constitute evidence upon which they can act.”

On this point Mr. Ng also cited other cases in support, including The Queen v Yip Moon Ting and another [1984] HKLR 443, Driscoll v the Queen [1977] 51 ALJR 731 and R v Maw [1994] Crim. L.R. 841.
吳‍大律師在這點上亦引用了其他案例，如The Queen v Yip Moon Ting and another [1984] HKLR 443, Driscoll v The Queen [1977] 51 ALJR 731和R v Maw [1994] Crim. L.R. 841。

Mr. Ng accepted that the video recordings of the girl were given in evidence by virtue of section 79C of the Criminal Procedure Ordinance, Cap. 221, Laws of Hong Kong, but he argued that there were unsafe areas in the trial judge’s assessment of the girl’s evidence.  He stressed that the girl’s evidence basically denied that the applicant had done any indecent act towards her and she said that the version of the events described by her in her video evidence was untrue.  This situation was similar to the one commented on by the English Court of Appeal in R v Birch, 18 Cr. App. R. 26:
吳‍大律師接納女童的錄影證供是以香港法例第 221章《刑事訴訟程序條例》第 79C條而呈堂為證據，但他認為原審法官的對女童證供的評估有不安全的地方。他強調女童證供基本上否認了申請人曾與她有猥褻行為，她已說過錄影證供的版本是假話。這種情況就如英國上訴庭在R v Birch, 18 Cr. App. R. 26所指 ：

“Apart from authority, the general position here was that the chief witness for the crown could not be believed on oath.  Of course, there might be enough other evidence to justify a conviction.  Was there here?  The confusion arose from supposing that depositions in the Court below are per se evidence at the trial: they are not.  You cannot leave a jury to act on a statement which the witness herself says is untrue.”
“Apart from authority, the general position here was that the chief witness for the crown could not be believed on oath.  Of course, there might be enough other evidence to justify a conviction.  Was there here? The confusion arose from supposing that depositions in the Court below are per se evidence at the trial : they are not.  You cannot leave a jury to act on a statement which the witness herself says is untrue.”

Mr. Ng submitted that there were special features in this case in that when the girl denied in Court the main allegations made in the video evidence, the defence counsel would not then engage in any in-depth cross-examination about the contents of the video evidence.  Therefore, the defence counsel would be put into a difficult position because of the changes in the testimony of the girl in Court and the trial judge’s subsequent decisions as to which parts of the facts he would accept and which parts he would reject, and this would lead to unfairness.
吳‍大律師認為本案有獨特的情況 ：當女童在庭上推翻了錄影證供裡的主要情節時，辯方大律師便不會針對錄影證供內容再作仔細盤問，因此，辯方律師會因女童在庭上的轉向及原審法官後來對事實的取捨而陷於兩難的處境，實有不公平的意味。

Mr. Ng pointed out that there were cases in which the English Court of Appeal held that a conviction was unsafe and unsatisfactory because it was not possible for the defence to carry out any effective cross-examination.  (see R v Janusz Marian Malicki [2009] EWCA Crim. 365 and R v M [2008] EWCA Crim 2751.)
吳‍大律師指英國上訴庭也會基於辯方不可能進行有效盤問而裁定判罪不安全不穩妥。(見R v Janusz Marian Malicki [2009] EWCA Crim. 365及R v M [2008] EWCA Crim 2751。)

According to Mr. Ng, Deputy Judge Chan’s conclusion that PW2’s evidence could support the girl’s evidence was also unsafe, because he did not sufficiently consider the following factors:
吳‍大律師的觀點是，陳‍法官認為第二證人的證供支持女童證供的結論也不穩妥，因為他沒有充分地考慮到以下的因素 ：

(i)The girl in her video evidence had never said that she had been sitting, in a riding position, on the applicant’s body, and the intimate acts in question took place when the policeman appeared; and
(i)女童在錄影證供裡都從沒有說她曾騎在申請人的身上，而有關的親密行為是在警察出現時發生；及

(ii)The girl’s sitting, in a riding-position, on the applicant’s body, without more, did not constitute indecency.
(ii)單憑女童騎坐在申請人身上的行為不構成猥褻行為。

Mr. Ng, based on his analysis, complained that it was inappropriate for Deputy Judge Chan to hold that PW3’s questioning the applicant upon his arrival at the scene, without cautioning the applicant first, was acceptable.  Mr. Ng argued that the Court overlooked the fact that PW2 had already conducted a preliminary questioning and knew how old the girl was.  In the mind of PW2, a crime had been committed at the scene.  Any police officer who came to the scene subsequently should not, on the ground that he came only at a “later” stage, neglect the requirement to administer a caution immediately.
吳‍大律師分析指陳‍法官裁定第三證人到場後向申請人問話前不先行警誡是可接受的做法，這是不當的裁決。吳‍大律師指法庭忽略了第二證人已進行了初步查問並得悉了女童的年齡，而第二證人的意念是現場已有案件發生，後期到場的警務人員不應以「遲來」的理由而忽略即時作出警誡的需要。

As far as PW3’s credibility is concerned, Mr. Ng specially pointed out that there were grave inherent improbabilities in his (PW3’s) evidence about the handling and recording of the verbal admission.  Although this was a finding of fact, there were areas to which the attention of the Court of Appeal should be drawn (paragraph 17 of the written submissions).  His views were:
在第三證人的誠信方面，吳‍大律師特別提及他(第‍三證人)在處理及記錄口頭招認方面的證供，有嚴重的內在不可能性，雖然這屬事實裁決，但卻值得上訴庭關注(書面陳詞第 17段)。他認為 ：

(i)PC5758 (PW2) would certainly not omit the focus of the investigation — the age of the girl — and fail to tell PC1987 (PW3) about that;
(一)警員 5758(第二證人)決不會遺漏了調查的焦點——女童的年齡——而沒有告訴警員 1987(第三證人)；

(ii)According to PC1987’s evidence, under the circumstances in existence at that time, he specifically cautioned the applicant before carrying on with the questioning. If that was the case, how come he would forget to write down the caution;
(二)跟據警員 1987的證供，在當時情況下，他是刻意要先行警誡申請人，才繼續發問，那又怎麼會忘了寫下警誡詞；

(iii)PC 1987’s evidence was that immediately after the applicant admitted that he had “touched” the girl X, he cautioned the applicant and asked him the questions which were, together with the answers (including the girl’s age), recorded on page 76 and 77 of the notebook.  If PC1987 at that time, as he said in his evidence, did not know how old the girl was, why would he decide to caution the applicant?  “Touching” a girl who was above 16 (with her consent) obviously was not a crime.  The only reasonable inference was that the questioning recorded on page 76 and 77 was not carried out under caution (so there was no caution).  The credibility/ reliability of PC1987 should be called into question and the admission, evidence of which came from him, should be rejected by the Court of Appeal.
(三)警員 1987的證供，是當申請人承認「摸過」女童 X，便隨即警誡申請人，並發問了記事冊上76及77頁所載的問題和答案——當中包括女童的歲數。若警員 1987當時如他所供稱一樣尚未知曉女童的歲數，那為什麼他會決定要警誡申請人呢？明顯地，「摸」一名年齡大於16 歲的女性(同意下)並非刑事罪行。唯一的合理推論是記事冊 76及77 頁的問答並非在警誡下進行(因此沒有警誡詞)而警員 1987的可信/可靠程度實應受到質疑，由他提證的招認亦應為上訴庭所拒納。

Mr. Ng in his supplemental written submissions added that according to R v Nelson and Rose [1998] 2 Cr. App. R. 399, CA, “The appropriate time to administer the caution is when, on an objective test, there are grounds for suspicion, falling short of evidence supporting a prima facie case of guilt, that an offence has been committed by the person questioned”.  In addition, in R v Hawkins [2005] EWCA Crim. 1723, the English Court of Appeal held that when an interviewee had been questioned at different times and the officer who questioned him at an earlier time suspected that the interviewee had committed certain crimes, but the officer who questioned him later, in ignorance of this result of the earlier questioning, carried on the questioning without cautioning the interviewee, then the confession thus obtained ought to be rejected.
吳‍大律師在附加書面陳詞時補充指，根據R v Nelson and Rose [1998] 2 Cr. App. R. 399, CA一案, “The appropriate time to administer to caution is when, on an objective test, there are grounds for suspicion, falling short of evidence supporting a prima facie case of guilt, that an offence has been committed by the person questioned”。再者，在R v Hawkins一‍案，[2005] EWCA Crim. 1723，英國上訴庭也說明，當被接見者先後被問話，如先問者已懷疑被接見者有干犯罪行，若後者不知道這調查結果而在沒有警誡下再進行問話，有關的招認也應被拒。

Respondent’s submissions
答辯人陳詞

The respondent’s representative, Mr. Alex Lee, Senior Assistant Director of Public Prosecutions, replied to the applicant’s arguments point by point in his written submissions.
代表答辯人的高級助理刑事檢控專員李‍運‍騰在其書面陳詞對申請人的理據遂點提出了反駁。

The respondent agreed that generally speaking, to convict just by relying on the contents of the girl’s video evidence would be dangerous and that this point was accepted by the trial judge.  However, the respondent submitted that the Deputy Judge had made it clear that in this case besides the girl’s video evidence, there were also evidence about what PW2 observed and the admission made by the applicant.  The respondent pointed out that the significance of PW2’s evidence was that it could serve as circumstantial evidence in support of the prosecution’s allegations and this, in combination with the applicant’s admission, fortified the prosecution evidence so that the prosecution evidence as a whole was sufficient to found a conviction.
基本來說，答辯人同意，若單靠女童的錄影證供的內容來定罪會是危險的，原審法官也接納這一點。但答辯人認為暫委法官已說明，案中除女童的錄影證供外，尚有控方第‍二證人的觀察及申請人的招認。答辯人指出，控方第二證人證供之重要性在於對控罪提供了環境證據的支持，而加上申請人的招認，控方的整體證據足以支持定罪。

In response to Mr. Ng’s submission about the video evidence, the respondent argued that the girl’s 3 video recordings, namely (P4) to (P6) were admitted in evidence in accordance with the Criminal Procedure Ordinance, Cap. 221, Laws of Hong Kong.  Their evidential value was therefore different from the ordinary prior inconsistent statements referred to by Mr. Ng.  These video recordings about her interviews should be regarded as the evidence in chief of the girl (see section 79C(6)(b) and Chim Hon Man v HKSAR [1999] 1 HKC 428, 438A-C).  That being so, when the girl, under cross-examination, denied the truth of what she said during the video recordings, the effect was the same as that when a witness, under cross-examination, denied the truth of his evidence in chief.  In principle, this was distinguishable from the cases such as R v Yip Moon Ting [1984] HKLR 443 cited by the applicant.
針對吳‍大律師對錄影證供的陳詞，答辯方反駁指，女童的三次錄影記錄(P4)至(P6)，均是根據香港法例第 221章《刑事訴訟程序條例》呈堂成為證據的。因此，它們的證據價值，有別於吳‍大律師指的一般「以往作出的不一致陳述」(“prior inconsistent statement”)。這些會面記錄應被視為女童證供的主問部份。(見第 79C(6)(b)條及Chim Hon Man v HKSAR [1999] 1 HKC 428, 438A-C。)因此，如女童在盤問時推翻她於錄影證供中所講述的情節，結果即相當於證人在盤問時推翻他在主問時的證供。在原則上，這是有別於申請人所提出的如R v Yip Moon Ting [1984] HKLR 443等案例。

The respondent’s view was that the correct understanding of the law on this issue was :
答辯人認為，在這議題上，正確的理解應該是 ：

(1)What the girl said in the video evidence, even though contradictory to what she said under cross-examination, was still part of her evidence;
(1)女童在錄影證供中所說的，雖與她在盤問下所說的有矛盾，但仍屬她證供的一部份；

(2)When the girl contradicted herself in her evidence, it was not necessary for the Court to reject the whole of her evidence;
(2)當女童的說法出現前後矛盾，法官並不一定須要全盤否定她的證供；

(3)In assessing the girl’s evidence, the Court was certainly required to consider carefully whether she was still reliable, and which parts of her evidence were credible and which parts were not; and
(3)在評估女童的證供時，法官當然必須小心考慮她是否仍是可信賴的，及她的那些部份的證供可信，那些部份不可信；及

(4)The Court should warn itself of the danger of accepting the evidence of a witness who had been shown to have said different things at different times which contradicted each other, and then decide what suitable weight to attach to the different versions.
(4)法官應警剔自己因證人的證供有前後矛盾的地方，接納她的證供會存在風險，然後按情況對她所敍述的不同版本給與適當的比重。

The respondent considered that in the circumstances of this case, Deputy Judge Chan dealt with the girl’s evidence in a fair manner in accordance with the principles and could not be faulted.
答辯人認為，在本案情況下，陳‍法官對女童證供的處理，是公平及合乎原則的，並沒有犯錯。

Furthermore, the respondent stressed that the trial judge was the trier of factual issues and that the findings he made about the credibility of PW3 were reasonable ones and ones which he was entitled to make, and therefore should not lightly be interfered with in an appeal (see HKSAR and Lee Hon Shun, CACC 626/1990).
再者，答辯人強調原審法官是案情事實方面的裁斷者。而他針對控方第三證人的誠信所作出的裁斷，是合乎情理的，也是他有權作出的，不應輕易地在上訴時受到質疑。(見HKSAR and Lee Hon Shun, CACC626/1999。)

The respondent submitted that Mr. Ng himself agreed that “What was observed by PC5758, namely the girl sitting, in a riding position, on the body of the applicant, on its own did not constitute indecency”; therefore, before the applicant admitted to PW3 that he had done any indecent acts to the girl, the police (whether it was PW2 or PW3) did not have sufficient “evidence” for them to caution the applicant.  Even if PW2 knew that the girl was under 16, that would not make any difference.  The trial judge found that PW3 was credible and reliable and that what he learnt from PW2 were only preliminary findings, including the fact that PW2 saw the girl sitting, in a riding position, on the body of the applicant.  For that reason, even if PW3 did not caution the applicant there and then, he was not in any way wrong (paragraph 85 of the Reasons for Verdict).
答辯人認為，吳‍大律師也承認「單憑警員5758的觀察，女童騎坐在申請人身上的行為不構成猥褻行為。」因此，在申請人向控方第三證人承認他曾對女童作出猥褻行為前，警方(不論是控方第二或第三證人)根本沒有足夠「證據」對申請人作出警誡。就算控方證人二知道女童未足16 歲，這也不會做成甚麼分別。原審法官已認定第三證人可信可靠，而他從第‍二證人處祇是知道初步情況，包括後者看見女童騎坐在申請人身上。因此，就算第三證人沒有即時向申請人作警誡，也並無不妥。(裁決理由書第 85段。)

The respondent’s view was that even if PW3 had contravened some of the rules for the questioning of suspects, it did not follow that the applicant’s verbal admission should automatically be disqualified from being admissible evidence.  In assessing its admissibility, the Court was required to consider, inter alia, whether the verbal admission was made voluntarily and whether the Court should exercise its discretion to exclude it.  The result was dependant on the particular circumstances of each case (see: SJ v Lam Tat Ming [2002] 2 HKC 693, 703E; HKSAR v Hung Kong Nam & Anor, CACC 346/2006, para. 28 on p.10).  The respondent submitted that since the applicant, with clear knowledge of the content of the notebook record, wrote down the declaration and appended his signature to confirm it, the trial judge’s refusal to exercise his discretion was a correct decision.
答辯人的看法是，就算控方第三證人真有觸犯發問規則的話，這也不表示申請人的「口頭招認」自動不能成為證據。在評估它的可接受性時，法庭須要考慮的包括有關的口頭招認是否出於自願，與及法庭該否運用酌情權拒絕接納它為證據。這應視乎每案的不同情況而決定(見：SJ v Lam Tat Ming [2000] 2 HKC 693, 703E；HKSAR v Hung Kong Nam & Anor, CACC346/2006，第 10 頁第 28 段)。答辯人認為，申請人他清楚知道記事冊的內容而寫下聲明及簽名作實，原審法官拒絕行使酌情權是恰當的決定。

The respondent submitted that the grounds put forward by the applicant did not show that the conviction was unsafe or unsatisfactory.
答辯人認為申請人所提出的理由並未能顯示定罪有不安全或不穩妥之處。

Discussion
討論

The record in the notebook, on its own, shows that the first question which PW3 put to the applicant at the scene was whether he knew what the girl’s name was.  Following that, he asked the applicant what the relationship between he and the girl was, how old the girl was and what he and the girl had done in the car.  After the applicant gave his answers, PW3 arrested and cautioned him.  Under these circumstances, the applicant further said that he liked the girl and that at that moment he was seized with a sudden impulse and touched her.  That means the witness only cautioned the applicant once, and that was done after the arrest.
單是根據記事冊裡的記錄，第三證人在現場詢問申請人的第一條題目是他知不知道女童的名字，隨後就問申請人和女童的關係、女童的歲數及他與女童在車上做過些甚麼事情。在申請人作出回應後，第三證人便進行拘捕和作出警誡。在這情況下，申請人再回應說他是因一時喜歡了女童才情不自禁地摸對方。那即是說，證人祇對申請人作了一次警誡，更是在拘捕後才作出。

However, when PW3 was in the witness box he provided a different version of the events.  He said that after he arrived at the scene, he spent 5 to 6 minutes on preliminary questioning of the applicant.  He asked the applicant how he came to know the girl and asked him for his background information.  PW3 said that he did not caution the applicant right at the beginning of this process because he needed to understand what had happened.  He considered that just the information he received from PW2 was not enough to make it necessary to caution the applicant, and that he needed to see what explanation the applicant could provide.
在作供時，第三證人卻說出了另一個版本。他說在他到達現場後，他用了5、6 分鐘對申請人先進行了初步查問。他問過申請人是如何認識女童與及申請人的背景資料。第三證人說他沒有一開始就去警誡申請人是因為他需要去了解事件，他認為單憑第二控方證人向他所說的，仍不足夠支持警誡的需要，他亦須要看看申請人有甚麼解釋。

PW3 said that what recorded on page 76 of his notebook were the questions he asked after he cautioned the applicant and the answers given by the applicant.  He said he forgot to write down the part about the caution, but he stressed that he asked those questions only after he cautioned the applicant.  What was recorded in the notebook were not the questions he asked during the preliminary investigation stage.  He stated that he recorded in pol.154 his preliminary investigation.  When the applicant said that he had “touched” the girl, he immediately cautioned the applicant and then asked him the questions recorded in the notebook.
第三證人指出，記事冊裡第 76頁上的記錄是他在警誡申請人後所提出的問題和申請人的回應。證人說他當時漏寫了警誡的部份，但他強調，他是在警誡申請人後才發問那些問題，記事冊所記錄的不是他在初步調查時所問過的問題。證人指出，他在Pol. 154裡就記錄了他的初步調查而當申請人說到他「摸過」女童的時候，他便隨即警誡申請人，然後問了寫在記事冊裡的問題。

In this connection, Deputy Judge Chan made the following comments (see page 15 of the bundle):
在這方面，陳‍法官有以下的看法(見綜卷第 15頁) ：

“85.I am satisfied that PW3’s evidence is credible and reliable.  PW3 gave evidence in a straight forward manner and did not hold back anything which he knew and saw.  I find that when PW3 arrived at the scene, he received some preliminary information from PW2, including the fact that PW2 saw X sitting, in a riding positing, on the body of the defendant, who was sitting on his seat.  Instead of cautioning the defendant instantly, PW3 chose to carry out [preliminary?] questioning of the defendant.  There was nothing wrong in handling the matter in this way.  To proceed in this way, PW3 did not mean to deliberately refrain from cautioning the defendant in order that the defendant would not be put on guard and therefore might make an admission.”2
「85.本席信納控方證人三的證供是可信、可靠，控方證人‍三作證時以簡單直接的態度作證，對他所知所聞毫無隱瞞，法庭認為控方證人三到場後，從控方證人二初步了解案情，包括控方證人二看見X騎於坐在座位的被告身上，控方證人三不即時警誡被告人，而選擇對被告人作[初?]步調查的處理方式並無不妥，控方證人三的處理方式並不是故意不警誡被告，使被告人在沒有防範下作出招認。」

87.…… I think that certain omissions in the notebook concerning, for example, times, places and the contents of the caution, must be viewed in the light of the circumstances in existence at the material time.  At that time it was dark at the scene, PW3 had to rely on the light from the electric torch.  After he cautioned the defendant, he asked him questions and there and then recorded the answers given by the defendant.  It was under these circumstances and for this reason that PW3 omitted to record certain times, places and contents of the caution.  If what the defence alleged is true, i.e. PW3 did not make the record in question at the scene, then when PW3 subsequently fabricated the record ——  he certainly was fully aware of the importance of cautioning the defendant ——  why did he not put down on page 76 the time, place and the contents of the caution?  The Court considers that PW3’s evidence that at the scene he shone the torch on the notebook and that in his way [he] read the record made at the scene and signed is true, credible and reliable. The Court believes that because of the condition of the scene of crime, PW3 knew very well that after he returned to the police station he needed to make a complete record of the process of taking the cautioned statement. To deal with the matter in the way PW3 did, namely not making a full and complete record of the process of taking the cautioned statement at the scene, was reasonable and should be free from any criticism.”
87.…… 法庭認為記事冊的一些遺漏，如時間、地點、警誡詞內容是吻合控方證人三當時於現場黑暗的情況下以電筒照明，於警誡被告後，對被告發問問題及被告所作的答案作出即時記錄的情況。亦因此控方證人三便遺漏了記錄時間、地點、警誡詞內容等資料，若控方證人三如辯方所指，他不是在現場作出有關記錄，那控方證人三於其後捏造記錄時，他是必然清楚知道警誡被告人的重要性，那控方證人三又為何不會於第 76 頁加進他警誡被告人的時間、地點及警誡詞等等內容。法庭認為控方證人三描述他是在現場以電筒照明記事冊，閱讀現場的記錄及簽署是真實可信及可靠，法庭認為按現場的情況，控方證人三是清楚知道回署後他仍需要安全補錄警誡口供的過程。按方證人三不於現場完全整個補錄警誡供詞的過程的處理手法是合乎情理，無可批評。」

Our view is that on the face of it, the notebook record is a more logical description of the sequence of events: PW3 asked about the name of the girl first; then the relationship between the two people and then the age of the girl; when the applicant said that he had taken out his penis to let the girl touch it, PW3 immediately cautioned him.
本庭的看法是表面看來記事冊裡的記述是一個過程較為合乎邏輯的描述 ：第三證人先問女童的名字，再問雙方關係，進而問及女童的年紀，到申請人說出曾拿出陽具給女童撫摸時，第三證人立即施行警誡。

If what happened was not like this, if the sequence was that the witness had already asked the applicant some questions earlier, and that when the applicant said he had touched the girl the witness cautioned him; but after cautioning him, the witness again asked the applicant whether he knew what the girl’s name was, what the relationship between the two of them was, how old the girl was and what they had done in the car; and then when the applicant said that he had touched the girl’s breasts and lower part and had taken out his penis, the witness put him under arrest and again cautioned him, such an account actually renders the contents of the notebook a bit far-fetched.  The witness said that he forgot to write down the verbal admission which led to the first caution, and that he also forgot to write down the caution.  From an objective point of view, this is rather hard to believe.  The challenge made by the defence directed against the witness’s explanation cannot be said to be groundless.
如果情況不是這樣，原來是證人事先已問過申請人問題，到申請人說有摸過女童後他便作出警誡，但在警誡後，他又再重新問及申請人知不知道女童的名字、他們的關係、女童的年歲及申請人在車上做過甚麼；又當申請人說出有摸過女童胸部及下體，亦曾拿出陽具的事情後，證人便進行拘捕及再施行警誡。這個叙述反而會令記事冊的內容顯得牽強。證人說他是漏寫了導致第‍一次警誡的口頭招認，也漏寫了警誡詞，客觀來說，這是頗難令人信服的。辯方針對證人的解釋而提出的質疑，不能說是全無道理的。

It was suggested that the witness thought it was necessary to immediately caution the applicant only when he heard the applicant admit that he had touched the girl, but actually long before that he already learnt from PW2 that PW2 saw the girl sitting on the applicant’s body.  We think that in view of what was going on at that time, it would have been fairer and more proper if PW3 had cautioned the applicant first before he questioned him (see R v Nelson and Rose and R v Hawkins, supra).
如果說證人是聽到申請人承認有摸過女童所以才覺得需要立刻施行警誡的話，他其實已一早知道第二證人說他看見女童曾坐在申請人身上的。本庭認為，考慮到當時的情況，第三證人在發問前先向申請人提出警誡會是較為公平及恰當的做法。(見前文R v Nelson and Rose及R v Hawkins。)

The question is that if the trial judge should have rejected PW3’s evidence or should have ruled that the admission in question was inadmissible, then was the rest of the prosecution evidence insufficient to support the conviction?  In our judgement, the answer is that it was not.
問題是，如果原審法官不應接納第三證人的證供，或應裁定有關的招認不可成為證據，控方的其他證據是否就不足以支持控罪？本庭認為答案是否定的。

Firstly, we agree with the respondent’s submission on the principles about how we are to understand the girl’s evidence (see para. 25, supra).  What the girl said in the video evidence is not a written statement given by a witness to the police under usual circumstances but was the evidence in chief of the girl.  Under the special circumstances of this case, the trial judge was entitled to judge whether the content of the video evidence was true or false.  After seeing and hearing the girl give evidence, Deputy Judge Chan made meticulous, objective and fair analysis of her evidence and finally rejected the explanation she made in her attempt to deny the truth of her video evidence.
第一，本庭同意答辯方對應如何理解女童證據方面的原則(見上文第 25段)。女童在錄影證供時的敍述，不是一般的證人對警方所作的書面供詞，這是女童證供的主問部份。原審法官有權在本案獨特的情況下去評估錄影證供的內容是真是假。在親自見過及聽過女童的作供後，陳‍法官有很小心、客觀及持平地分析了女童的證供，最後否決了她試圖推翻錄影證供內容而所作的解釋。

What is important is that Deputy Judge Chan clearly pointed out that it was dangerous to rely solely on the girl’s video evidence as the basis of the conviction.  Therefore, Deputy Judge Chan fully understood the strength and weakness in the girl’s evidence.  The verdict he gave was by no means rashly given.
重要的是，陳‍法官已清楚說明，單靠女童的錄影證供作為定罪的基礎是危險的。因此，陳‍法官是完全理解到女童證供的強弱，他的裁決絕非是輕率的。

Secondly, what PW2 saw was regarded by Deputy Judge Chan as evidence which could support part of the girl’s evidence; and what PW2 saw was that in the car the girl was sitting on the applicant, with their arms around each other’s body.
第二，第二證人所目擊的事情被陳‍法官視為支持女童證供的一部份。第二證人所見到的是，在車裡女童曾坐在申請人的懷中並互相環抱著。

Deputy Judge Chan accepted what PW2 observed as true and further, he made the following analysis (see page 36 of the bundle):
陳‍法官一方面接納了第二證人的觀察為事實，也進一步作出以下的分析(見綜卷第 36頁) :

“178.Furthermore, PW2 appeared at the scene only at a later stage, the Court considers that it is not strange at all that PW2 did not see what contacts there were between PW1 and the defendant at the earlier stage, i.e. before PW2 arrived.  However, what PW2 saw did support the allegation that the defendant and PW1 had intimate contacts in the car.  Admittedly, the action which PW2 saw, namely PW1 sitting on the defendant’s body, in a riding position, with her back towards the windscreen of the private car, falls short of being indecent, but it strongly supports the allegation that the defendant and X, i.e. PW1 did have intimate contacts in the car……” [emphasis added]
「178.再者，控方證人二出現於現場亦是較後期的時間，法庭認為控方證人二看不見較早前，即控方證人二到場前控方證人跟被告人的接觸是毫不出奇。但控方證人二所見確是支持被告人跟控方證人一於車廂內是有親密接觸，誠然控方證人二所見，控方證人一當時背向私家車擋風玻璃，騎在被告身上，這行為尚未達至猥褻程度，但卻強烈支持被告人跟X即控方證人一在車內是確是有親密的接觸……」[本庭強調]

Based on this conclusion, Deputy Judge Chan found that the intimate contacts between them included the applicant touching the breasts and the lower part of the girl and the applicant taking out his penis for the girl to touch it and kiss it.
基於這個結論，陳‍法官裁定他們的親密接觸包括了申請人曾觸摸女童胸部及下體，申請人亦曾取出陽具讓女童觸摸及親吻。

We believe that PW3’s evidence and the applicant’s admission were a separate and discrete unit. Even if it was removed, there were the girl’s evidence and PW2’s evidence, which could be the basis of Deputy Judge Chan’s analysis and findings, and could support the verdict of guilty.
本庭認為，第三證人的證供與及申請人的招認是一‍獨立部份，就算剔除了，以陳‍法官的分析及裁決，根據女童及第二證人的證供已可支持定罪的裁決。

We agree with the respondent’s submission that in considering whether the verdict in this case was safe, the Court should have regard to the undisputed facts which formed the setting of this case: Having had dinner in Yaumatei, the applicant drove the girl to the water catchment of Shing Mun Reservoir, where there was no street light and at the material time, there was no pedestrian either.  Before the police constable arrived, they had been there for about half an hour. In order to see, the constable had to turn on his electric torch.  PW2 saw that the girl was sitting on the applicant, with the applicant embracing her.  Once she was seen, she got away from him and sat on the passenger seat.
本庭同意答辯人在陳詞時指出，在考慮本案的判決是否穩妥時，法庭應該注意到本案沒有爭議的背景情節 ：在油麻地晚飯後，申請人駕駛與女童去了荃灣城門水塘引水道，那處是沒有街燈的地方，當時也沒有行人出現，他們在那裡度過了約半小時警方才到場，警員要用電筒才可照明，而第二證人見到女童坐在申請人懷，她被發現後便立即分開坐回乘客坐位。

We hold that when the evidence is viewed in this light, there is nothing unreasonable or unsafe in Deputy Judge Chan’s conclusion.
本庭認為，從這框架去考慮有關的證供，陳‍法官的結論並無不合常理和不穩妥之處。

We do not accept Mr. Ng’s submission that as a result of the girl’s denying the truth of her evidence in chief, it was impossible for the defence to conduct a fair cross-examination.  The record shows that the defence counsel had cross-examined the girl extensively on issues including the relationship between the girl and the applicant, what was done on that night, what happened after the police came and the questioning of her by the police.  Deputy Judge Chan did not in any way restrain the defence from cross-examining the girl.  As to how the defence counsel should conduct his cross-examination, what questions should be put, what details should be clarified, it was for him to make his professional decisions.  Mr. Ng complained that because the girl “went back on what she said”, the defence was thrown into a dilemma and consequently the trial was unfair.  We find that this complaint is not substantiated.
本庭也不接納吳‍大律師指因女童推翻主問口供導致辯方不可能進行公平盤問。記錄顯示，辯方大律師有對女童進行過詳細的盤問，題目包括女童與申請人的關係，當晚發生的事情，警察到場後的情況及警方對她的問話。辯方對女童的盤問並沒有受到陳‍法官的任何限制。至於辯方大律師應如何去盤問，提出甚麼問題，及要澄清甚麼細節，這是他的專業決定。本庭認為吳‍大律師指辯方因女童“反口”而陷入進退維谷引致審訊變得不公平，這觀點不能成立。

In our judgment, the conviction is not unsafe.
本庭認為定罪並無不穩妥之處。

Conclusion
結論

For the above reasons, we dismiss the application for leave to appeal against conviction.
基於以上原因，本庭駁回定罪上訴許可申請。

Mr. Alex Ng, instructed by Cheung & Yip, for the Applicant.
答辯人：由律政司高級助理刑事檢控專員李運騰代表香港特別行政區。

Mr. Alex Lee, Senior Assistant Director of Public Prosecutions of the Department of Justice, for the Respondent.
申請人：由張達成葉祺智律師事務所轉聘吳政煌大律師代表申請人。