Hon Woo, J.A. (giving the judgment of the Court):
由高等法院上訴法庭法官胡國興宣讀上訴法庭判案書:

The applicant was the 1st accused in the original trial.  He and the 2nd accused Ms. HO Chui-yu were convicted on 30 November 2000 in the District Court by H.H. Judge Wong of the following charges:
申請人是原審時的第1被告人。他與第2被告人何翠如女士於2000年11月30日被區域法院黃永輝法官裁定以下數項控罪罪名成立：

The 1st charge was against the applicant for burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap. 210, namely, on 24 May 2000 having entered as a trespasser the 2nd Floor of No. 4 Seymour Terrace, Central, he stole therein one video camera and one clock.
第(1)項控罪，是申請人入屋犯法罪，違反香港法例第210章《盜竊罪條例》第11(1)(b)(4)條，即他於2000年5月24日作為侵入者進入中環西摩台4號2樓後，在該處偷竊一部攝錄機及一個時鐘。

The 2nd charge was against the applicant for attempted burglary, contrary to section 11(1)(a) and (4) of the Theft Ordinance, Cap. 210 and section 159G of the Crimes Ordinance, Cap. 200, namely, on 24 May 2000, he attempted to enter as a trespasser the 1st Floor of No. 4 Seymour Terrace, Central, with intent to steal therein.
第(2)項控罪，是申請人企圖入屋犯法罪，違反香港法例第210章第11(1)(a)及(4)條和第200章《刑事罪行條例》第159G條，即他於2000年5月24日，企圖作為侵入者進入中環西摩台4號 1樓，意圖在該處偷竊。

The 3rd charge was against the applicant and the 2nd accused for attempted burglary, contrary to the same provisions as referred to in the above 2nd charge, namely, on 28 May 2000, the two of them attempted to enter as trespassers the 2nd Floor of No. 20 Castle Road, Central, with intent to steal therein.
第(3)項控罪，是申請人及第2被告人企圖入屋犯法罪，同樣違反上述第(2)項控罪所指的條文，即他們兩人於2000年5月28日，企圖作為侵入者進入中環 衞城道2樓，意圖在該處偷竊。

On the applicant’s three charges, Judge Wong sentenced him to a total of four years’ imprisonment. On the 2nd accused’s charge, Judge Wong sentenced her to two years’ imprisonment.
就申請人的3 項罪行，黃法官判處他入獄共4年；就第2被告人的罪行，黃法官判處她入獄兩年。

On 11 December 2000, the 2nd accused had applied to this Court for leave to appeal against both conviction and sentence, but earlier on she already informed the Court that she would abandon all the applications.
2000年12月11日，第2被告人向本庭提出申請針對定罪及刑罰兩者的上訴許可，但她較早前已通知法庭放棄全部申請。

On 14 December 2000 the applicant applied for leave to appeal against conviction.  He submitted a total of nine grounds of appeal which alleged in broad terms that the Judge should not have rejected his evidence and accepted the prosecution witnesses’ evidence.  He also argued that the prosecution had not given any fingerprint evidence against him to support the charges.
2000年12月14日，申請人提出針對定罪的上訴許可的申請。他所提出的上訴理由共有9項，內容泛指法官不應拒絕接納他的證供而接納控方證人的的證供。他亦辯稱控方沒有提出有關他指紋的證據支持控罪。

The applicant’s above applications were made within the statutory time limit for appeal.  Moreover, on 31 May 2001, the applicant applied to this Court for leave to appeal against sentence.  These applications were made out of time.  To explain why the applications were made out of time, the applicant filed an affirmation in which he stated that he had to seek legal advice, and therefore, there was a delay in making the applications for reduction in sentence.  The applicant’s two applications were both made as per Form No. XI provided in the Criminal Procedure Ordinance, Cap. 221.
申請人上述的申請，是在法定上訴期限之內作出的。另外，申請人於2001年5月31日向本庭作出針對刑罰的上訴許可的申請。這項是逾期申請，申請人以誓章提供逾期理由，他需要徵求法律意見，故延遲作出有關減刑的申請。申請人的兩次申請都是以第221章《刑事訴訟程序條例》中的第XI號表格作出。

The applicant was assigned Counsel Mr. Wong Po Wing by the Legal Aid Department to represent him in making the applications for leave to appeal against conviction in respect of the 1st and 2nd charges, whereas he handled the other applications himself.
申請人獲法律援助署委派王寶榮大律師代表他就第(1)及(2)項判罪作出上訴許可的申請，而他自己則處理其他各項申請。

The Reminder
提點

On 18 October 2000, before hearing this case, this Court reminded the applicant and his counsel Mr. Wong Po Wing as follows:  If after hearing this case this Court was of the view that the applicant’s appeal was entirely without substance and unjustified, this Court might make a loss of time order, namely, an order that the applicant’s time spent in custody pending the determination of these applications be taken away from the counting of the service of the term of his imprisonment.  This Court’s reminder was in effect a reiteration of the content of Note 3 of the two applications as per Form No. XI submitted by the applicant.  The Chinese statement is as follows:
2000年10月18日，本庭在未開始聆訊本案前，向申請人及代表他的王寶榮大律師作出提點：如果本庭在聆訊本案後認為上訴全無理據支持，本庭可命令“扣時”，即命令申請人在本申請未裁決前在扣押中的時間，不計算為他所要服的刑期的一部分。本庭的提點其實申請人所用的兩份第XI號表格註釋3有中英雙語的陳述，如下:

(“The Court of Appeal has power under section 83W of the Criminal Procedure Ordinance to direct that the time during which you are in custody pending the determination of your appeal shall not be reckoned as part of the term of any sentence to which you are for the time being subject.”)
“根據《刑事訴訟程序條例》第83W條，上訴法庭有權指示，你在聽候上訴的裁定時在扣押中的時間，不得作為你當其時所受刑罰的部分刑期計算。”

Moreover, the content of Note 1 makes it clear that this Court has power under section 83I of that Ordinance either to increase or reduce the sentence.
另外，註釋1的內容是說明本庭有權按該條例第83I條加刑或減刑。

This Court gave time to the applicant and Mr. Wong to consider the matter. Subsequently, Mr. Wong informed this Court that the applicant had in fact decided to abandon the application to appeal against the conviction on the 3rd charge prior to appearing before this Court. After hearing the reminder of this Court he was also willing to abandon the application to appeal against the sentence.  However, he insisted that Mr. Wong should continue to proceed with the applications to appeal against the convictions on the 1st and 2nd charges.  But he hoped that even if this Court did not allow those applications, we would not order a loss of time.
經本庭給時間予申請人及王大律師考慮後，王大律師告知本庭，申請人在出庭前實已放棄針對第(3)項定罪的申請，當聽到本庭的提點後，亦願意放棄針對刑罰的申請。然而，他堅持王大律師繼續替他進行針對第(1)及第(2)項定罪的申請，但希望本庭不接納該申請時，不會命令扣時。

The Facts
案情

The facts of this case were simple.  According to the prosecution’s evidence, Sergeant 17626 and other members of his team were performing anti-burglary and anti-robbery operations in the vicinity of Caine Road, Central on 28 May 2000.  At 2.30 p.m., while patrolling in Castle Road he saw the applicant holding a black leather bag under his armpit, walking downhill along Castle Road, and looking around at the buildings nearby.  The Sergeant, therefore, summoned other team members over his beat radio to render reinforcement.  After that he saw the applicant talking with the 2nd accused for about one minute outside a McDonald’s shop. The two of them then went together to Castle Road and walked towards Seymour Road.
本案案情簡單。根據控方的證供，警長17626與其他隊員於2000年5月28日在中環堅道一帶執行反爆竊及反搶劫行動。下午2時30分，他在衛城道巡邏，看見申請人腋下夾着一個黑皮袋，在衛城道從上往下行，並向附近的大廈四週張望，於是警長用他的對講機召援其他隊員支援。其後他看見申請人在麥當勞店與第2被告人談話大約一分鐘，然後兩人一同到衛城道行向西摩道。

When the two of them reached the building of No. 20 Castle Road, the 2nd accused went towards the building’s main door. At that time a Filipino domestic helper was walking out from the inside and the main door was open.  The 2nd accused then entered the building.  The applicant continued to walk ahead and reached a rear lane further up from the building.  He looked into the rear lane for two to three minutes and then walked down Castle Road.  When he returned to that building he stood at the doorway for a while.  The main door was then opened and he also entered the building.
當兩人到達衛城道20號的大廈時，第2被告人走向該 大廈大門，當時有一名菲律賓傭人正在行出，大門是開啟着的，第2被告人就進入該大廈內。申請人則向前行，去到該大廈對上的後巷，觀看後巷2至3分鐘，然後沿衛城道行下。當他回到該 大廈時，在門口站了一會，大門其後打開，他亦進入了該大廈。

At 2.52 p.m., other police constables arrived at the scene.  The Sergeant then deployed his team members.  At 3.00 p.m., the applicant and the 2nd accused had not yet left the building, and therefore the Sergeant and PC 52949, PC 48112 and WPC 18639 entered the building to investigate.  There were no lifts but only flights of stairs.  They walked up the stairs.  When they reached the landing between the 1st and 2nd floors, the Sergeant saw that the applicant was bending down holding a crowbar with both hands and was doing something, near the lock, to the wooden door of the residential flat on the 2nd floor.  The Sergeant then dashed forwards and shouted loudly, “Police, don’t move”, and he gripped the applicant by the shoulder and ordered him to kneel down.  At that time the Sergeant saw the 2nd accused standing behind the applicant. Afterwards PC 48112 went forward to assist the Sergeant in arresting the applicant, while WPC 18639 arrested the 2nd accused.
下午2時52分，其他警員到達現場。警長吩咐他的隊員作出部處。下午3時，申請人及第2被告人還未離開該大廈，於是警長與警員52949、48112及女警18639進入該大廈內調查。那沒有電梯，只有樓梯。他們步行上樓，當抵達2樓與3樓梯間的平台時，警長見到申請人彎身用雙手拿着鐵筆，在3樓住宅的木門近鎖的地方有所動作；警長於是衝上前大喝“差人，咪郁”，及按着申請人的肩膊，令他跪下。當時警長見到第2被告人站在申請人後面。其後警員48112上前協助警長拘捕申請人，而女警18639則拘捕第2被告人。

At that time the iron door of the residential flat on the 2nd floor was already opened and the wooden door showed marks of having been prized near the lock.  The Sergeant ordered PC 48112 and WPC 18639 to arrest the applicant and the 2nd accused respectively.  The Sergeant saw that there were a crowbar, a black cloth bag and a handbag on the ground, and inside the black cloth bag there were two crowbars, two pairs of gloves and a cap.
當時該3樓住宅的鐵門已打開，而木門近鎖處有被撬的痕跡。警長指令警員48112和女警18639分別拘捕申請人和第2被告人。警長見到地上有一枝鐵筆、一個黑布袋及一個手袋，在黑布袋有兩枝鐵筆、兩對手套及一頂喼帽。

At 3.10 p.m., PC 48112 declared that the applicant was under arrest for the offence of burglary and orally cautioned him. The applicant replied,
下午3時10分，警員48112宣布拘捕申請人爆竊罪行和口頭警誡他，申請人回答說：

“As I am caught red-handed, if my girlfriend is released, I can co-operate with you.  I can tell you about the two jobs I did a few days ago.”
“我都斷正，只要放咗我條女，我可以同你合作，我早幾日我做咗兩單，我可以講比你聽。”

When the whole party returned to the Central Police Station, PC 48112 interviewed the applicant for the purpose of making a post record and asking the applicant some questions.  Having completed the post record and cautioned the applicant again, he asked the applicant the following question:
一眾回到中央警署後，警員48112接見申請人，目的是進行補錄及問申請人數個問題。在完成補錄及再次警誡申請人後，他問申請人以下的問題：

“Earlier on you told me you did two jobs a few days ago.  What does that mean?”
“你較早前同我講早幾日做咗兩單，究竟係乜嘢意思？”

The applicant replied,
申請人回答說：

“The first job was done about 4 days ago, further up from Shelley Street, Central, on Floor Two [二樓in Chinese] of the building where renovation works were going on right below that floor.  I went inside and took some foreign currency.  Later I exchanged it for about HK$1,060.  The second job was done in Seymour Terrace, on Floor Three [三樓 in Chinese] of a building, the house number of which I cannot recall. I entered the flat and took a video camera which I sold for about HK$3,000.  Then I prized with a crowbar the main door to a flat on Floor Two [二樓 in Chinese] but was not able to gain entry.”
“第一單係四日前左右，係中環些利街對上，樓下有裝修的大廈二樓，我入到屋攞咗外幣，後來我換咗港紙一千零六十鈫左右。而第2單係西摩台，但唔記得幾多號嘅大廈三樓。我入到屋攞咗一部攝錄機後，我就賣咗港幣三千鈫左右。跟住我係二樓就用鐵筆撬過大門，但入唔到屋。”

The Grounds of Appeal against Conviction
針對定罪的上訴理由

Before this Court, Mr. Wong of Counsel sought leave to appeal against conviction on the 1st and 2nd charges.  In essence he submitted the following two grounds of appeal:
在本庭前，王大律師就第(1)及(2)項判罪作出上訴許可的申請。王大律師所提出的實質理由有兩項，如下：

Judge Wong was wrong in admitting into evidence the confession statements made by the applicant to the police because the applicant gave ample and strong evidence that he had been induced by the police to sign the confessional statements.  The applicant’s evidence was that as an inducement to him to sign the confession statements, the police promised to release his girlfriend (i.e., the 2nd accused) and allow him to get a lawyer.
黃法官接納申請人向警方所作的招認口供為證據是犯錯的，因為申請人作供時說他被警方引誘而簽認該招認口供是充份而有力的。申請人的證供是警方釋放他的女朋友（即第2被告人）及容許他找律師，引誘他簽署他的招認口供。

Even if the contents of the applicant’s confession statements were accepted, it was no proof beyond reasonable doubt that he had committed the offences in the 1st and 2nd charges.
申請人的招認口供的內容不能在毫無疑點的情況下證明他犯了第(1)項及第(2)項控罪。

The 1st Ground of Appeal against Conviction
針對定罪的上訴理由

The applicant’s confession statements mentioned in paragraphs 13 and 14 above were recorded in the notebook of PC 48112 and were produced in court as exhibit P14.  Besides, after he had been interviewed by PC 48112, the applicant was further interviewed twice by another police constable at the police station.  The interviews were videotaped.  The written records of the interviews were also produced by the applicant and marked exhibits D1 and D1a.  Mr. Wong of Counsel argued that the confessions made by the applicant to the police were all made as a result of inducement on the part of the police.  He said that the contents of exhibits D1 and D1a provide strong support for this point.  The applicant said in exhibit D1a,
在上文第13及14段所述的申請人的招認口供，是載於警員48112的記事簿中，呈堂為P14號證物。另外，與警員48112會面後，申請人在警署另一警員兩次會面，會面的書面記錄，證物D1及證物D1a。王大律師辯稱申請人向警方作出招認，都是警方引誘的。他說證物D1及D1a的內容强力支持這點。在D1a中，申請人曾說：

“This was when the cop spoke to me, told me that [he] would allow me to get a lawyer.  He told me just to admit to two jobs and then he would, and let me use the telephone to get a lawyer. That is to let, that is to let me get a lawyer as well as let my girl go, release my girl on bail, that is to release my girlfriend on bail.  So I did not sign until he, after he had written, and I was not quite sure of the actual content.”
“呢度係差人同我講嘅時候呢，就佢話可以比我揾律師，佢只要叫我認咗兩單，咁佢就可以，同比我比電話我揾律師，即係比，即係比我揾律師同埋可以放咗我條女，比我條女担保，即係比我女朋友担保咁樣囉，所以佢，佢寫咗之後，我先至簽名 囉，咁實質內容我就唔係咁清楚。”

The applicant went on to say,
申請人續說：

“Because at that time I was anxious and wanted to get a lawyer.  I also just wanted my girlfriend to be bailed out, the sooner the better.  And so, we reached an agreement.  I was asked to admit to two jobs.  With [my] admission to two jobs, he would let me get a lawyer, that is, my girlfriend would be allowed bail.”
“因為當時我係心急，係想揾律師，同埋係只想我女朋友早啲担保出去，所以大家協意之下，就係叫我認兩單，認兩單佢就可以比我揾律師，即係比我女朋友担保出去咁樣。”

In his Reasons for Verdict, Judge Wong ruled as follows:
在他的裁決理由書中，黃法官有如下的：

“D1 objected to the production in court of the reply to the oral caution at the scene and of the post-recorded statement on the grounds that he had been threatened and induced.  My ruling after the hearing was that he provided the entire contents voluntarily.  In my ruling, what he said and what was recorded on videotape were entirely voluntary.  So, I accepted the evidence and allowed the production of the evidence in court.”
“第1被告對於現場口頭警誡的回應及補錄口供反對呈堂，是因為受到威逼利誘。但經聆訊後，本席判斷他是自願提供所有的內容，本席判斷他所講及錄影的內容全是自願，因此接納證供，容許證供提堂。”

Mr. Wong complained that Judge Wong had not given detailed reasons for admitting the applicant’s confession statements. However, Senior Assistant Director of Public Prosecution, Ms. Ip So Ng for the respondent submitted that there was no need for Judge Wong to give detailed reasons when ruling on the voluntariness of the applicant’s confessions.  Ms. Ip of Counsel cited R v CHAN King-hei [1995] 1 HKCLR 288, 291 in support of her view.  In that case, Mortimer JA cited R v LAM Yip-ying [1984] HKLR 419 and reiterated that there was no need for the trial judge to give the reason for the ruling when deciding whether a statement was made voluntarily.  This Court is satisfied that the legal proposition stated by Ms. Ip is correct.  The trial judge did not err when he admitted the applicant’s confession statements into evidence without giving the reasons in detail.  This does not constitute any valid ground of appeal.
王大律師的投訴，是黃法官並沒有就接納申請人的招認口供列出詳細的理由。但是，代表答辯人的高級助理刑事檢控專員葉素吾指出，黃法官裁定申請人的招認是自願作出陳述詳細的理由。葉大律師援引女皇訴陳景熹（譯音）一案。在該案中，馬天敏上訴法官引用女皇訴林葉英（譯音） 案，重申主審法官於判定一份口供自願時，是無需其裁決理由的。本庭認為，葉大律師所述的法律是正確的，原審法官接納申請人的招認口供為證據詳細理由，並沒有犯錯。

Mr. Wong of Counsel cited HKSAR v Dhillon, CACC 387/00 (24 August 2001, unreported) and submitted that the Court of Appeal would quash a conviction on the grounds that the trial judge failed to state clearly how contradictory facts in a case were ruled upon.  In that case, two facts were in issue and the relevant evidence about each fact was in conflict.  In the Reasons for Verdict, the trial judge did not mention at all how the conflicts were resolved, nor did he state why he accepted the fact which was unfavourable to the accused whilst rejecting the fact that was favourable to him.  Most importantly, those facts in conflict were both admitted by the prosecution witnesses.  The situation in the above case differs greatly from the situation in the present case.  In the present case, both the prosecution and the defence provided evidence which was at odds in respect of the voluntariness of the applicant’s confession statements, with each side sticking to its own version of the account.  Judge Wong, as did all trial judges, had the advantage of having the opportunity to hear the witnesses and observe their demeanour when they gave evidence, and by comparison the Court of Appeal was denied such an advantage and could only rely on the transcript of the testimony.  In deciding to accept the testimony of one party and reject that of the other, he did not have to state all the reasons for doing so (see HKSAR v CHOI Gin-ngon & Ors [1998] HKLRD 902 at 909-910).  In the Dhillon case there were conflicting facts that were all admitted by the prosecution witnesses.  But the situation in that case is completely different from that in this case.  The question that Judge Wong had to determine is also not the same.
王大律師援引香港特別行政區訴狄朗（譯音） 一案，上訴法庭因原審法官沒有斷案中矛盾事實而推翻判罪。該案涉及兩項有爭議的事實，每項相關的證據是互相矛盾的；原審法官在裁決理由書中完全沒有提及該等矛盾，為甚麼接納對被告人不利而不接納對他有利的事實；而且最重要的是那些相衝的事實都是控方證人所承認的。與本案的情況大大不同。在本案，控辯雙方的證供各執一詞，像所有原審法官一樣，有聆聽和觀察各證人作供時的神情舉止，上訴法庭只能審閱證詞謄本；他決定一方的證詞而拒納另一方的證詞，是不需要陳述所有理由的（見香港特別行政區訴蔡展昂（譯音）及其他人）。狄朗案中衝突事實，都是控方證 人所承認的，與本案 的情況完全不同，與黃法官要裁決的不一樣。

In addition, the contents of exhibits D1 and D1a can also show that the applicant’s allegation that his confession statements were involuntary was farfetched and without merits.  Exhibit D1 recorded that the interview began at 7.46 p.m. on 28 May.  In the Interview, the applicant posed the question to SDPC 11248 whether he could get a lawyer to represent him before the videotaped interview began.  If it was as stated by the applicant in exhibit D1a (that is, in the second videotaped interview which began at 11.24 p.m. that night) that he confessed to PC 48112 because the police constable had made a promise that he would be allowed to get a lawyer if he confessed to the other two offences, then he would not need to ask SDPC 11248 whether he could get a lawyer before the videotaped interview began.
而且，證物D1及D1a 的內容，亦可申請人招認口供並非自願理由不充份。D1所記錄的會面是於5月28日下午7時46分開始進行。在該會面中，申請人向高級探員11248提出問題，就是他是否可以找律師代表他才作錄影會面。若果如申請人在D1a（即從該晚11時24分開始的第2次錄影會面）中所說，他向警員48112所作的招認是因為該警員若他承認另外兩項罪行，就容許他找律師，他就不需要向高級警員11248發問是否可以找律師才錄影會面。

When the second videotaped interview (as recorded in exhibits D1a) was underway, the applicant’s lawyer was also present.  During the interview, the applicant was not very willing to answer most of the questions asked by the police.  Also, he often said that he was not willing to answer for the time being.  However, he did answer the following question:
第2個錄影會面（即D1a所記錄的）進行時，申請人的律師也在場。在這會面中，申請人大多不願作答，亦常說他暫時不願作答。但是，對於下列問題，他就有作答：

“Question:Well, at the time when the police arrested you, you were asked that, and you said…you had done two jobs.  You were asked what that meant.  The first job was done about 4 days ago, further up from Shelly Street in Central, on Floor Two [二樓 in Chinese] of the building where renovation works were going on right below that floor.  You went inside and took away some foreign currency which was later exchanged for about HK$1,060.  The second job was done in Seymour Terrace, on Floor Three [三樓 in Chinese] of the building, the house number of which you cannot recall. You went into the flat and took away a video camera which was later sold for about HK$3,000.  Then on Floor Two [二樓 in Chinese] I [sic] prized the main door with a crowbar but was not able to gain entry.  Well, this is how it should be read, as that is what you told the police.  Do you agree?
“問：呢個曾經响差人啦你陣時呢，咁問過你呢咁你話 …. 你做過兩單，問你咩意思，咁第一單四日前左右喺中環些利街對上樓下有裝修嘅大廈二樓，你入咗入面就攞咗外幣，後來換咗港幣一千零六十蚊左右，而第二單就喺西摩台，唔記得幾多號嘅大廈三樓，你入到屋攞咗一部攝錄機，後來就賣咗港幣三千蚊左右，跟住我喺二樓就用鐵筆撬開大門，但入唔到屋，咁樣解釋番呢度係，因為呢度係，係你同差人講，你同唔同意先？

Answer:Agree.”
答：同意。”

Although the applicant claimed that at the time of the 2nd videotaped interview, he had confessed to PC 48112 only because of the inducement and promise on the part of the police, the contents of exhibits D1 and D1a did not fully support, as suggested by Mr. Wong, the truth of the applicant’s claim.  As a matter of fact Judge Wong commented as follows:
雖然申請人在第二次錄影會面，向警員48112的招認是因為警方的引誘及承諾出，但是D1及D1a的內容並不是如王大律師所說，充份支持申請人聲稱真實。實，黃法官也有如下的：

“I also absolutely believe that the 1st accused, hoping to save the 2nd accused, mentioned of his own volition under caution his previous acts of burglary.”
“本席也絕對相信第一被告因想救第二被告，而自動在警誡後講及他先前的爆竊行[為]。”

Before this Court, Mr. Wong of Counsel submitted for the first time that the contents of the confessions in exhibit P14 alone would suffice to prove to the satisfaction of this Court that the confessions had been clearly made on account of police inducement.  The confession as quoted in paragraph 13 of this judgment is repeated for perusal:
在本庭前，王大律師首次提出單以P14號證物中的招認内容，就足以令本庭招認明顯地是警方的引誘而作出的。該招認在本判詞第13段已有陳述，現在此重覆以細察：

“As I am caught red-handed, if my girlfriend is released, I can co-operate with you.  I can tell you about the two jobs I did a few days ago.”
“我都斷正，只要放咗我條女，我可以同你合作，我早幾日我做咗兩單，我可以講比你聽。”

Mr. Wong argued that at that time the applicant made a request to the police, that is, a request for the release of his girlfriend.  However, there was no evidence as to whether the police had denied or rejected his request.  In such circumstances, any confessions he subsequently made to the police must be made involuntarily.  In our judgment, Mr. Wong’s argument is fallacious.  If his argument is correct, then in any case where a suspect makes it clear to the police that he has a request to make before he confesses, unless the police refuses his request immediately, it would amount to the police’s assenting to the request, and it would necessarily follow that any confession by the suspect would have been made on account of police inducement and not voluntarily.  We do not want to say anything further about this.  Suffice it to say that this argument is just sophistry and is extremely unreasonable.  Moreover, in the present case, before the applicant made the confessions contained in paragraph 14 of this judgment, PC 48112 reminded and cautioned him as follows: “You are not obliged to say anything unless you wish to do so….”  Having heard the reminder/caution, the applicant said that he understood and then he made the confessions.
王大律師辯稱，申請人當時向警方提出了他的要求，即要求釋放他的女朋女，又沒有證據證明警方曾否定或不接納他的要求；，他其後向警方所作的任何招認必定不是在自願的情況下作出的。本庭認為，王大律師的論調是悖理的。他的論調疑犯向警方表明他有所要求後作出招認，除非警方立刻拒絕該要求，警方已答應了他的要求，疑犯的招認必然是警方誘致而不是自願作出的。本庭不需多言，這說法只是詭辯，理。而且在本案，申請人作出在上文第14段所載的招認前，警員48112已向他提醒警誡，“唔係是必要你講嘅，除非你自己想講喇 …”，在聽到提醒警誡後説他明白，然後才作出招認。

This Court considers that Judge Wong did not err in ruling that the applicant did confess to the police of his own volition.
本庭認為，黃法官裁定申請人是自願向警方招認，並沒有犯任何錯誤。

For the above reasons, this Court finds that the 1st ground of appeal should fail for it is without merit.
基於上述原因，本庭認為第(1)項上訴理由全無理據，不能成立。

The 2nd Ground of Appeal against Conviction
針對定罪的上訴理由

With regard to the 2nd ground of appeal, Counsel, Mr. Wong vigorously asserted that the two burglaries which the applicant described in his confession statements to the police were different from those referred to by the two prosecution witnesses.
就第(2) 項上訴理由，王大律師力陳，申請人向警方招認的口供內描述的兩項爆竊，和兩名控方證人所指的不同。

In his Reasons for Verdict, Judge Wong clearly referred to the evidence of the two prosecution witnesses:
在裁決理由書中，黃法官清楚提及該兩名控方證人的證供：

“Odagiri Yuko returned home at 5.30 p.m. on 24 May 2000 to the 2nd floor of No.4 Seymour Terrace and discovered that it had been ransacked.  It was later found that a video camera and a clock were missing.
“小田切優子在2000年5月24號下午5時30分回到西摩台4號2樓家中時，發現被搜掠過，後來發現失去一部攝錄機及一個時鐘。

At 4.35 p.m. on that day, Kwong Shue Wing returned to the 1st floor of No.4 Seymour Terrace and discovered that the main door showed marks of having been prized, but there was no loss.”
鄺樹榮當天下午4時35分回到西摩台4號1樓時，發現大門有被撬過的痕跡，但無損失。”

A comparison can be made between the evidence of the two prosecution witnesses and the confession statements made by the applicant to the police (see paragraphs 14 and 22 above) as follows:
這兩名證人的證供，與申請人向警方所招認的口供（見上文第14和22段），可作出以下比較：

Time of Offences:The words “about 4 days ago” in the confession statements mean about 4 days before 28 May 2000, and this is corroborated by the testimony of the two prosecution witnesses that the burglary and the attempted burglary took place on the 24 May 2000.
案發時間：招認口供中說“四日前左右”是指2000年5月28日之前四日左右 ，與該兩控方證人所指爆竊及意圖爆竊的證供相符。

Scenes of Offences:The confession statements give Floor Three [三樓 in Chinese] and  Floor Two [二樓 in Chinese] of a building whose house number cannot be recalled in Seymour Terrace as the scenes of the offences.  These correspond with the scenes of the offences as given by the two prosecution witnesses, that is Floor Number 2 (i.e., the 2nd floor in English) and the floor below, that is, Floor Number 1 (i.e., the 1st floor) of Seymour Terrace.  Although the confession statements did not mention the house number of the building, the two residential flats mentioned in the confession statements are located on two storeys, one above the other, of the same building. This corresponds with the testimony of the two prosecution witnesses.
犯案地點：招認口供指地點為西摩台一幢不記得號數的大廈的三樓和二樓，與該控方證人所說犯案地點是在西摩台4號2字樓(即英語的2nd floor)及下一層的1字樓(1st floor)相符。雖然招認口供沒有提及該大廈的號數，但是招認所的兩所住宅是在同一大廈上下兩層卻是與該兩證 人的證供極之合。

Property Lost:The applicant confessed that he stole a video camera from Floor Three [三樓 in Chinese] and this corresponds with the testimony of Odagiri Yuko that she lost a video camera.  Mr. Kwong said that the main door of his flat showed marks of having been prized and this is corroborated by what the applicant said in his confession statements.
失去財物：申請人招認時說他三樓的樓宇盜取了一部攝錄機，與小田切優子說她失去了一部攝錄機相符。鄺先生說他住所的大門有被撬過的痕蹟，這與招認所述的也合。

However, Mr. Wong of Counsel stressed that the words “the first job was about 4 days ago” in the applicant’s confession statements meant the day of the burglary perpetrated on the 1st floor of a building in Shelley Street in Central, and it was not necessarily the day of the burglary perpetrated in Seymour Terrace; that the applicant made no mention of the house number of the building in Seymour Terrace; that he only said that he had been to Floor Three [三樓 in Chinese] and burglarized there and that he prized the main door of a residential flat on Floor Two [二樓 in Chinese] of that building; and that these confessions on the part of the applicant were not consistent with what the two prosecution witnesses said.  In support of his argument, Mr. Wong insisted that what local people call “Floor Three” [三樓 in Chinese] is not the same as what is called the 2nd floor in English (i.e., the floor which Hong Kong people sometimes call “Floor Number 2” [2字樓 in Chinese] in order to avoid ambiguity); and that what local people call “Floor Two” [二樓 in Chinese] is not the same as what is called the 1st floor in English (i.e., the floor which Hong Kong people sometimes call “Floor Number 1” [1字樓 in Chinese] in order to avoid ambiguity).  In fact these different ways of calling the floors of a building are very commonly in use.  Hong Kong people all understand them and are accustomed to them.  Mr. Wong should not resort to sophistry.  The ground he raised can hardly explain the fact that the contents of the applicant’s confession statements are corroborated by the testimony of the two prosecution witnesses.  If the applicant were not the perpetrator, there would be no reason why there is such a high degree of corroboration.  In our judgment, the 2nd ground of appeal and the argument put forward by Mr. Wong of Counsel are devoid of merit and should fail.
王大律師卻强調，申請人招認中的 “第一單係四日前左右”，是指中環些利街的大廈二樓爆竊的日期，並非一定是西摩台爆竊的日期，而且申請人没有説西摩台大厦的號數，只說曾入到該大廈三樓爆竊及撬過該大廈二樓住宅大門，都和該兩名控方證人所説的不符。為了這些論調，王大律師硬稱本地人所説的三樓並不等如英語的2nd floor(即為免有出入起見有時香港人稱之為2字樓)，和本地人所説的二樓並不等如英語的1st floor(即為免有出入起見香港人稱之為1字樓)。其實這各種叫法是極為普遍而又是香港人明白及慣用的，王大律師不應强詞奪理。他所提出的論據，都不能解釋招認的内容和兩名證人證言；若申請人是犯案者，沒有理由有這麽高度的合。本庭認為，第(2)項上訴理由及王大律師提出的，全屬無理，不能成立。

In his Notice of Application to appeal, the applicant said that Judge Wong should accept his evidence, and should not have accepted the prosecution’s evidence.  However, the applicant failed to give any reason to support that.  The applicant also asserted that there was no fingerprint evidence against him.  However, the absence of evidence of the accused’s fingerprints does not mean that he was not the perpetrator.  So long as there is ample other evidence to prove the guilt of the accused, the court may still bring in a verdict of “Guilty” even without any fingerprint evidence.  In the present case, the applicant voluntarily confessed that he had committed the 1st and 2nd charges, and the confessions have been held to be authentic and reliable.  Ample evidence has been adduced to prove the applicant’s guilt.  Judge Wong did not err in any way.  Accordingly, the applications by the applicant for leave to appeal against conviction are dismissed.
申請人在他的申請通知書說黃法官應接納他的證供，而不應相信控方的證供，但他卻提不出理由支持這說法。他又投訴沒有指紋證據指證他。但缺乏被告人指紋證據，並不表示被告人不是犯案者。只要有其他充份證據證明被告人犯案，就算沒有指紋證據，法庭也可作出定罪裁決。在本案中，申請人自願招認犯了第(1)項及第(2)項控罪罪名，且招認的內容亦被裁定為真確及可靠。證明申請人犯案的證據充份，黃法官並無犯錯，故本庭駁回申請人就其定罪提出的申請。

Conclusion
結論

For the reasons given above, this Court refuses the applications.
基於上述原因，本庭拒絕申請。

Loss of Time
扣時

Before hearing these applications, this Court reminded the applicant that if the Court finds the appeal utterly without substance and unjustified, the Court may order loss of time already spent in custody (see paragraphs 7 & 8 above).  Actually it is not necessary for us to provide such a reminder.  We provided it because we were concerned that the applicant and his counsel Mr. Wong might have forgotten the power with which this Court is vested under section 83W of the Criminal Procedure Ordinance.  Earlier in this judgment, this Court has pointed out that the present appeal is devoid of merit.  The applications were in fact a waste of the court’s resources, an abuse of public fund.  Therefore, it is ordered that the three months the applicant already spent in custody pending the hearing of these applications are not to be reckoned as part the term of sentence which the applicant is to serve.
在本案聆訊前，本庭已提醒申請人若本庭認為上訴全無理據支持，本庭可命令扣時（見上文第7、8段）。其實本庭要作出該提點，因恐怕申請人及王大律師忘記《刑事訴訟條例》第83W條予本庭的權力。本庭在上文已指出，本案所提出的上訴理由，全無理據。這申請實是浪費法庭資源，用公帑故本庭命令，申請人在聽候本申請時在扣押中的3個月，不得刑期。

As a general reminder to all appellants lodging criminal appeals or applicants seeking leave to appeal and also to their representatives in the legal profession, we would now like to point out that in normal circumstances, this Court will not in future remind them, before hearing their case, that it may exercise the power with which it is vested under section 83W or under section 83I (to increase the sentence).  We also elaborated on this point in another criminal appeal case the judgment on which we also gave today, namely, HKSAR v Yu Tai Chi CACC 476/2000 (24 October 2001).
現本庭提醒刑事上訴的上訴人或上訴許可的申請人及代表他們的法律界人士，在通常的情況下，本庭日後不會在聆訊開始時，就本庭會運用該83W條，或第83I條的權力（即加刑）去處理案件作出提點。 這點在今天宣判的另一刑事上訴案件，即香港特別行政區訴余大志  一案也有所闡述。

Ms. M. S. N. Ip, Senior Assistant Director of Public Prosecution of the Department of Justice, for the Government of HKSAR.
控方：由律政司葉素吾高級助理刑事撿控專員代表香港特別行政區政府。

Mr. Wong Po Wing assigned by the Department of Legal Aid for the Applicant in the applications relating to the 2nd and 3rd charges, of which he was convicted.
辯方：由法律援助署委派王寶榮大律師就第(2)及(3)項定罪的申請代表申請人。