Hon Chan CJHC (giving the judgment of the Court):
由高等法院首席法官陳兆愷宣讀上訴法庭判案書:

The applicant was convicted of one count of blackmail after trial by Deputy Judge Lin in the District Court and was sentenced to two years’ imprisonment.  He now applies for leave to appeal against the conviction.
申請人在區域法院經聆訊後被暫委法官練錦鴻裁定一項勒索罪罪名成立，被判入獄兩年，現申請上訴許可要求推翻原判。

The prosecution’s case is as follows: On 8 November 1996, PWI Lam Man Yam and two friends of his became acquainted with another defendant of this case Iu King Yuen, and they talked about business matters involving the importation of labour.  On 10 November, they came to know the applicant through the introduction of Iu King Yuen, and they later went on a business trip to the mainland together.  Whilst in the mainland, Mr. Lam allegedly lost 3.12 million dollars in card games. He said he was forced to write a note to instruct his family members to deliver $800,000 to him.  He was even detained in Dongguan.  On 12 November, Mr. Lam’s son (PW4) was notified by a friend and PW3 (another friend who had gone on the business trip to the mainland together with Mr. Lam) to go to the Mei Foo MTR station to meet the applicant.  PW4 was also told that he was required to pay $800,000.  At the Mei Foo MTR station, PW4 met the applicant, the first defendant in the present case, and another friend who had gone on the business trip to the mainland together with Mr. Lam (PW2).  Then they went to a podium in Mei Foo where they sat down to have a talk.  The applicant explained to PW4 how Mr. Lam came to lose heavily in gambling in the mainland, but an agreement was reached whereby he only had to pay $800,000 to settle the debt.  The applicant also produced a note in Mr. Lam’s handwriting and asked PW4 to pay the said sum.  After seeing the note, PW4 requested to talk to his father Mr. Lam over the phone.  The applicant managed to get hold of Mr. Lam on the phone, and PW4 had a telephone conversation with his father.  Mr. Lam instructed PW4 to give the applicant $800,000, but he must require the applicant to provide his ID card number.  During the conversation, Mr. Lam spoke to PW4 in Putonghua instead of the Putian dialect that they used to speak.  PW4 asked Mr. Lam over the phone why he did not speak the Putian dialect but Mr. Lam did not answer.  PW4 therefore began to suspect that his father was in jeopardy.  The telephone conversation lasted about two minutes.  After that, PW4 asked the applicant to provide his ID card number but the applicant refused, saying he only agreed to issue a receipt.
控方案情如下：於1996年11月8日，第一證人林文欽與兩名朋友認識案中另一被告姚經元，並相討輸入勞工的生意。於11月10日，經姚經元介紹認識申請人。然後數人一同前往國內洽商生意。林先生後來在國內被指稱因玩紙牌輸了312萬元，他說在威嚇之下寫了便條囑家人送上80萬元。林先生更遭拘留在東莞。於11月12日，第四證人，即林先生的兒子，經朋友和第三證人(即與林先生一同前往國內洽談生意的另一位朋友)通知前往美孚地鐵站與申請人會面，並獲告知有人要求他給予80萬元。在美孚地鐵站，第四證人與申請人、同案的第一被告及跟林先生一同前往國內商談生意的朋友(即第二證人)會面，接著一起前往美孚平台坐下商談。當時申請人向第四證人解釋有關林先生在國內如何賭錢輸掉巨款，不過跟他人協議只須付出80萬元以作清還，並拿出一張林先生親筆所寫的字條給第四證人並要求他交出該筆款項。第四證人看過該張字條後要求與他的父親林先生通電話。其後申請人打電話跟林先生聯絡上，於是第四證人父子雙方在電話上談話。林先生指示第四證人給申請人80萬元，但必須要求申請人提供身分證號碼。當時林先生跟第四證人談話時是用普通話而不是用他們慣用的蒲田話，在電話中第四證人問林先生為何不說蒲田話，但林先生沒有回答，因此引起第四證人懷疑他的父親正在身處險境。這個電話大約花了兩分鐘左右。其後第四證人要求申請人提供身分證號碼，但遭申請人拒絕。申請人只是答應寫一張收據。

During the course of the incident, PW4 had asked the applicant, “You probably have children in your home, why do you subject my father to such sufferings?”  The applicant said to PW4, “We are in an illicit business, but the illicit act will not be repeated.” The applicant further said to PW4, “You are an educated person, you should be sensible enough to know very well how the people up there will treat him if you do not pay.”  PW4 understood this to mean that, unless he acceded to the applicant’s request by giving him $800,000, his father might be in danger in the mainland.  PW4 therefore agreed to pay, and arrangements were made for the sum to be withdrawn from a bank in Central.  However, the applicant and another co-defendant were arrested at the bank by the police as PW4’s friend had informed the police earlier on.  Eventually, Mr. Lam was released in Dongguan on 17 November.
在整個過程中，第四證人曾向申請人說：「你應該屋企都有仔女，你點解要咁樣害我爸爸?」申請人對第四證人說：「我哋做偏門，一偏唔可以再偏。」其後申請人更對第四證人說：「你都係讀書人，咁你都應該明白事理，如果你唔畀錢，上高的人會對佢係點樣，你應該好清楚。」根據第四證人理解，他的父親在國內可能會發生危險，除非他答應申請人的要求給予他80萬元。在這情況下，第四證人於是答允付款。其後經過安排前往一間在中環的銀行提款，但由於較早時第四證人的朋友已通知警方，因此在銀行處申請人及同案另一被告被警方拘捕。最後，林先生於11月17日在東莞獲釋。

The applicant elected to give evidence at trial.  He admitted that he had taken a business trip to the mainland together with Mr. Lam, PW2 and PW3. At a social function, he felt tired after consuming some alcohol, so he returned to his hotel room to have a rest.  He neither knew about nor participated in any card game session that evening.  The next day Mr. Lam told him that he had lost over three million dollars in gambling and asked him to bring a note and an ATM card to PW3 in Hong Kong.  After he returned to Hong Kong, the applicant met PW2 at the Mei Foo MTR Station on the morning of 12 November. PW2 took the ATM card but refused to accept the note.  The applicant then prepared to return to the mainland, but after receiving a phone call from Mr.Lam, he returned to the Mei Foo MTR Station to meet PW4.  At the request of PW4, the applicant prepared to accompany him when he delivered cash to the mainland.  The applicant said he had not asked PW4 to give him $800,000, still less uttered any threatening words.  Throughout the incident, his only motive was to help Mr. Lam as a friend by delivering the note to Hong Kong and contacting his friends and family members; in other words, he just helped rescue Mr. Lam.  He also wished to get a commission upon striking a business deal.  Under cross-examination, the applicant said that he did not know Mr. Lam was being held in the mainland and that he only knew Mr. Lam had lost money and freedom of movement.
在審訊過程中，申請人選擇作供。他承認跟林先生和第二及第三證人回國內商討生意，其後在應酬期間因為喝了點酒感到疲倦於是回酒店房間休息。他不知道亦沒有參與當晚的牌局。到第二天林先生告訴他賭錢輸了300多萬元，並叫他帶一張字條及提款咭回香港交給第三證人。後來申請人回港後於11月12日早上在美孚地鐵站見到第二證人。第二證人取了提款咭卻拒絕接受字條。申請人便打算返回國內，但因接到林先生的電話於是再回到美孚地鐵站會見到第四證人。在第四證人的要求下打算陪他帶錢回國內。申請人說他並沒有要求第四證人給予80萬元，更沒有說過任何恐嚇語句。在整件事情中，他只是盡朋友之義替林先生帶字條回港接洽他的朋友及家人，他只是協助迎救林先生。他亦希望在生意成功後獲得佣金。申請人在接受盤問時說他並不知道林先生在國內被拘錮，他只知道他輸了錢而且行動不便。

After carefully evaluating all the evidence, the trial judge accepted the evidence of the prosecution witnesses and found the applicant guilty of blackmail.
原審法官經詳細考慮案中的所有証供，接納控方證人的供詞，並裁定申請人勒索罪名成立。

Mr. Yeung, counsel for the applicant, has advanced six grounds of appeal against the conviction.
代表申請人的楊大律師提出六點上訴理由要求推翻原判。

The first ground of appeal complains that the trial judge seriously erred in law by completely failing to direct himself on the issue of mens rea. The judge, it is said, had forgotten that the only mens rea that could constitute the offence of blackmail was “with a view to gain for himself or another or with intent to cause loss to another”.
第一項上訴理由是指法官在指引有關法律時犯了嚴重錯誤，就是完全忽略了犯罪意圖這方面的指引，遺忘了「為使自己或另一人獲益或意圖使另一人遭受損失」是構成勒索罪的唯一犯罪意圖。

In his Reasons for Verdict, the judge first quoted section 23(1) of the Theft Ordinance (Cap. 210, Laws of Hong Kong) which defines the offence of blackmail, and then set out the various elements of the offence, all of which, the judge said, had to be proved by the prosecution beyond reasonable doubt.  According to the definition of blackmail under section 23(1) of the Theft Ordinance, the prosecution must prove that the defendant made a demand, that the demand was unwarranted and made with menaces, and that the defendant made the demand with a view to gain for himself or another or with intent to cause loss to another. We are satisfied that the judge only has to give a brief account, as opposed to a detailed explanation, of the various elements of the offence in his Reasons for Verdict.  The judge in the present case had carefully considered the various elements of blackmail and could not be said to have overlooked any element of the offence.  A judge does not have to analyze whether it is actus reus or mens rea in respect of each element, because a judgment, not being a legal treatise, need not set out and examine every single point.  Furthermore, the judge is a legal professional. He only has to adjudicate on the main issues of the case.  The fact that he makes no mention of an issue does not necessarily mean that he has overlooked it.  The crucial thing is he must apply all the relevant elements as set out in the statutory definition of blackmail to the facts of the case in making his decisions.  Viewing the Reasons for Verdict as a whole, we do not think that the judge had missed out any important legal consideration in respect of the major issues in dispute.
在判決理由中，法官首先就有關勒索罪的法律定義，將香港法例第210章盜竊條例第23(1)條原文轉錄，然後列舉該控罪的幾樣元素，並要求控方在毫無合理疑點下證明各項元素。根據盜竊條例第23(1)條勒索罪的定義，控方必須證明被告人曾提出要求，而該要求是不正當和用恫嚇的方式作出的，在作出該要求時被告人的目的是使自己或另一人獲益或意圖使另一人遭受損失。本庭認為法官在裁決理由中只要就控罪的各種元素略作解釋而不須要詳盡的列明。很明顯法官對勒索罪的幾項元素已經非常清楚加以考慮，不能說他疏忽了任何犯罪的元素。法官不須要就每一項元素分析那一樣是犯罪的行為(1)，那一樣是犯罪意圖(2)，因為判詞並不是一篇法律文獻，不必逐點分開的列明來加以分析，而法官亦是法律專業人士，只須要就案中所爭議的要點作出結論，沒有提及的並不一定表示法官是忽略了。最重要的就是他必須在判案時根據該條例就勒索罪的法律定義的各項有關元素，加以應用在案情中的事實便已足夠了。本庭並不覺得在本案的整體判決理由中法官在受爭議的要點上遺漏了任何法律上的重點。

Counsel submits that, as the judge had overlooked the relevant element of the offence, he had erroneously disregarded certain issues of fact as being irrelevant to the case.  Counsel also cites two examples in an attempt to illustrate that the judge accepted without hesitation all the opinion evidence of PW4. The first example is, regarding PW4’s statement during cross-examination that he understood “illicit business” to mean “mainly involved in intimidation and extortion”, the judge failed to direct himself that it was only PW4’s own view and could not be regarded as the truth.  The second example is, regarding the phrase “his father’s life is in danger”, PW4 said he understood it to mean that his father might “lose his life”. Counsel submits that it was merely PW4’s own view and that the judge failed to take into account that loss of freedom was not the same as loss of life.  With respect, we fail to see any substantial connection between the two examples cited by counsel and his assertion that the trial judge had failed to direct himself on mens rea.  The meaning of “illicit business” as given by PW4 was plainly his own interpretation.  He was certainly concerned about his father’s safety, and so it was perfectly understandable for him to infer that his father’s life might be in danger.  The judge, being a legal professional, would definitely not have been influenced by PW4’s personal views or inferences; rather, he would only have guided himself with common sense.  Counsel also failed to point out how the findings of fact would have been affected by the personal understanding of the witness.  There is nothing in the Reasons for Verdict which suggests that the judge “accepted completely and without hesitation” PW4’s personal views and inferences.  The crucial issue in the present case is whether the applicant had uttered or used any words which amounted to menaces.  To an ordinary person, “illicit business” means shady business; that PW4 interpreted the term to mean “mainly involved in intimidation and extortion” was a sheer matter of degree.  And whether it was his father’s liberty or life which was at stake was simply irrelevant to the issue that the judge had to determine.  When his father failed to return to Hong Kong, PW4 suspected that he had lost his liberty and that his life would be in danger if the sum of $800,000 was not paid. The judge accepted PW4’s evidence and ruled that the applicant did utter the words which the judge eventually held to be menaces.  We see nothing improper here and the first ground of appeal must therefore fail.
大律師指出因為法官疏忽了有關的犯罪元素所以不當地將一些事實爭議認為與案無關而不加考慮。大律師陳列兩點指法官對第四證人的意見証供不假思索地全面接受：第一，就是第四證人在作供時經盤問後將「偏門」解作「專做恐嚇勒索」，而法官卻沒有指引自己這些只是第四證人個人的見解不可作實。第二，第四證人就有關「父親生命有危險」認定他的父親可能會「無命」。大律師說：這不過是第四證人的個人意見，因為失卻自由並不等如失卻生命，而法官卻沒有加以考慮。本庭認為大律師所指的兩點與他認為原審法官忽略了犯罪意圖的指引並沒有實質上的關連。第四證人對偏門的解釋，很明顯是他個人的推論。當然他擔心父親的處境因而推斷父親的生命可能有危險是完全值得理解的，不過法官為專業人士，必定不會接受第四證人的個人意見或他的推斷所影響，他只會用常理來引導自己。大律師亦未能指出證人的個人理解對事實裁斷起了什麼作用。在裁決理由中不見得法官是「不假思索地全面接受」第四證人這些個人見解和推論。在本案中最重要的就是申請人有沒有說過恫嚇的說話或用過該等詞語。「偏門」對普通人來說是被視為不正當生意，第四證人把它理解成為「專做恐嚇勒索」，只是程度上的問題而已。至於他的父親是失去自由還是生命有危險，對法官所要判決的問題亦是無關宏旨。第四證人認為父親目前未能回港，因此懷疑他已失卻自由，如果不付80萬款項便有生命危險，法官接納第四證人的供詞，裁定申請人確曾說過這些法官最後裁定是恫嚇性的說話。本庭認為這並無不妥善之處，第一項上訴理由並不成立。

The second ground of appeal contends that the trial judge’s direction on the onus and standard of proof was substantially flawed.  Counsel for the applicant submits that the trial judge had misunderstood the element of “unwarranted demand”; that he had failed to differentiate between legal burden and evidential burden and simply imposed all burdens of proof on the defendant; and that, in page 4 at H-J of the Reasons for Verdict, the judge had erroneously raised the evidential standard of proof that the applicant was required to meet.
第二項上訴理由是指原審法官就刑事案中的舉證責任(3)及舉證準則(4)的指引犯了實質上的錯誤。申請人的大律師指出法官就「不當的要求」的元素有錯誤的理解，未能了解舉證的法律責任(5)與證供責任(6)的分別而籠統地將全面舉證責任加於被告，並在裁決理由第4頁H至J段法官錯誤地將申請人須負上在證據上的舉證準則提升。

With regard to “unwarranted demand”, section 23(1) of the Theft Ordinance further provides that:
盜竊條例第23(1)條就有關不當的要求作出進一步規定：

“…… unless the person making it does so in the belief —
“……除非作出要求的人，在如此要求時：

相信他有合理的理由作出該項要求；及	that he has reasonable grounds for making the demand; and
(a)

相信使用恫嚇是加強該項要求的適當手段。”	that the use of the menaces is a proper means of reinforcing the demand.”
(b)

In his Reasons for Verdict, the judge construed the provision as follows:
在判決理由中，法官就這項條文作出解釋如下：

“Unless the accused can prove that such a demand falls within the ambit of [section] 23(1)(b).  In other words, once the prosecution proves that the demand is made with menaces, the demand is unwarranted.  To rebut this, the accused has to prove it is more probable that it is not so.”
“除非被控人能證實此等要求是屬於23(1)(b)中所提及的情形。換句話說，一旦控方證明此等要求，是用恫嚇方式表達，該項要求即是不當。被控要推翻這點，得要證明並非如此的可能性比較高。”

Here the judge was in fact merely repeating the relevant provisions of the Ordinance. However, judging from the last sentence of the above quote, the judge appeared to take the view that the person making the demand must prove that his demand was not made by unwarranted means.
其實在這裏法官只是覆述條例中的相關條文，不過從以上最後一句來看，法官似乎認為作出要求的人須要證明他的要求不是用不當的手段作出的。

Having considered the wording of the Ordinance and the spirit of the law, we find that the last sentence of the above quote is open to question.  Section 23(1) provides that if a demand is made with menaces, it is unwarranted.  However, if the person making the demand genuinely believes that he has reasonable grounds for making it and that the use of the menaces is a proper means of reinforcing it, the judge should take this into account before deciding whether that person is guilty of blackmail.  The prosecution is under a duty to prove beyond reasonable doubt that the person making the demand does not believe that he has reasonable grounds for making it or that the use of menaces is a proper means of reinforcing it.  The person making the demand does not have to prove that he holds such a belief.  If the judge directs that the person making the demand bears the burden of proving that it is more probable than not that he holds such a belief, then this is a misdirection (see Griew on Theft, p.229, 14-23; and Archbold (1998 Edn) p.1714, 21-266).  Nevertheless, as counsel for the prosecution has pointed out, PW4 said that, apart from producing the note by PW4’s father and asking PW4 to hand over $800,000 to him, the applicant had uttered these words: “We are in an illicit business, but the illicit act will not be repeated” and “… if you do not pay, you should know very well what the people up there will do.”  However, the applicant had in his testimony denied having ever uttered those words.  It follows that the issue to be decided was whether the prosecution had proved beyond reasonable doubt that the applicant had uttered those words.  If he had, then the demand made by him was unwarranted, and there would be no need for the trial judge to consider whether the applicant believed that he had reasonable grounds for making the demand or believed that the use of menaces was a proper means of reinforcing the demand.  Given the trial judge was satisfied that the applicant had uttered the words in question, the misdirection in a certain legal aspect would not have created any material effect.
在考慮條例所用的字句及法律的精神後，本庭認為原審法官最後一句是值得商確的。根據第23(1)條，如果一個要求是以恫嚇的方式作出，這便屬於不當，不過如果作出要求的人確實相信自己是有合理的理由作出要求而且相信用恫嚇的方式作出要求是為加強要求的適當手段，那麼法官是應該考慮這一點才裁定他是否觸犯勒索罪。控方是有責任在毫無合理疑點下證明作出要求的人並不相信自己有合理的理由去作出該要求，又或者不相信使用恫嚇是用來加強該項要求的適當手段。作出要求的人不須要證明他自己是有這種想法。如果法官須要作出要求的人負有可能性較高的舉證責任去證明他自己有這些想法，這個指引是錯誤的(7)。不過，正如控方大律師所指出，在本案中第四證人說申請人除了出示第四證人父親的便條及要求他交80萬元給他外還說過一些說話，就是「我哋撈偏門嘅，一偏唔可以再偏」和「… 你如果唔畀錢，上高啲人會點樣做，你應該好清楚。」但申請人在他作供時卻否認曾經有說過這些話，因此在本案中所要裁定的是控方可否在毫無合理疑點下證明申請人確實曾經說過這番話。如果是有，那麼申請人所作出的要求是不正當的，而原審法官就不再須要考慮申請人是否相信他作出的要求有沒有合理的理由或使用恫嚇是加強他的要求的適當手段。原審法官已信納申請人曾說過這些話，所以在一方面的法理誤導對本案並沒有起實質作用。

Counsel for the applicant submits that the prosecution had no evidence to prove that the words uttered by the applicant had heightened PW4’s fear, because PW4 had been concerned about his father’s safety even before he met the applicant.  Therefore, counsel argues, the words uttered by the applicant did not constitute menaces.  With respect, we do not agree.  The question was whether the demand for payment made by the applicant to PW4 was unwarranted and made with menaces.  In the circumstances of this case, the fact that the judge was satisfied beyond reasonable doubt that the applicant had indeed uttered those words clearly indicates that the demand was accompanied by menaces and therefore unwarranted.  Any reasonable person would no doubt have felt the same upon hearing the words uttered by the applicant.  PW4, who was already worried about his father’s safety, would certainly become even more concerned when the applicant uttered those words, and this explains why arrangements for the payment were made.  Therefore, it cannot be said that the demand made by the applicant did not constitute menaces.  The second ground of appeal falls away.
至於申請人大律師指出控方沒有證據證明申請人所說的話增加了第四證人驚慌的程度，因為第四證人在未與申請人會面時已經擔心他父親的安全，所以申請人所說的話並不構成恫嚇。本庭並不同意。問題是申請人向第四證人要求付款時，他的要求是不是不當和用恫嚇的方式作出。在本案的情況下，如果法官能在毫無合理疑點下信納申請人確曾說過那些話，這已很清楚指明申請人的要求是帶有恫嚇和不當的。任何有理性的人聽到申請人所說的那幾句說話，必定會有這種感受。第四證人本來是擔心父親的安全，經過申請人這番說話後，肯定會更加擔心，所以才作出付款的安排。因此不能說申請人所作出的要求不構成恫嚇。第二項上訴理由並不成立。

In the third ground of appeal it is contended that, in relation to the demand made by the applicant, the trial judge was wrong in concluding that “in the absence of other evidence, the only possibility was to gain for himself.”  (transcript, page 8 at M).  Counsel for the applicant submits that this was a “specific intent” and the prosecution must prove that the applicant did intend to gain for himself, and since the prosecutor had failed to do so, the inference drawn by the judge was wrong.  In our judgment, it is clear from the evidence that the applicant did ask PW4 to give him $800,000, in other words, the applicant wanted to collect this sum of money.  It is immaterial whether the applicant would then pass the money on to the people in the mainland or how the money would be distributed.  The crucial point is PW4 was actually made liable for and required to pay this sum of money and incurred loss as a result.  The third ground of appeal must fail.
第三上訴理由是，申請人大律師指法官錯誤裁定申請人所作出的要求「在沒有其他證據之下唯一的可能是為自己利益出發。」(謄本第8頁M。)大律師指出這是“特定犯罪意圖”(8)，因此控方必須證明申請人確實是有意為自己爭取利益，不過檢控官並不能證實這點，原審法官的推論便是不正確。本庭認為根據本案證供，申請人很明顯是要求第四證人交80萬元給他，即申請人要收取這筆款項。至於後來申請人是不是將它全數交給國內的人士或如何分配該筆款項並不重要，最重要是第四證人確實要承擔及付出這筆款項，因此造成損失。第三項上訴理由並不成立。

The fourth and fifth grounds of appeal are directed at the evidence given by PW4 and the applicant at trial.  Counsel for the applicant submits that the trial judge had adopted an incorrect procedure in determining the credibility of the prosecution witnesses.  Counsel points out that the judge indicated that he could believe PW4 even before he had heard all the evidence from both sides, and that, although there were discrepancies in PW4’s evidence, the judge considered that it had no bearing whatsoever on the credibility of the witness.  Counsel further submits that PW4, being a university student and hence an educated person, did not make any allegations of blackmail in the first three statements he gave to the police and made such allegations only in the fourth statement.  Furthermore, the judge accepted PW4’s demeanour in giving evidence but considered that there were discrepancies in the applicant’s evidence, for example, the judge noted that the applicant “kept a distance from the matter and returned to Hong Kong on his own” and equated confinement with loss of freedom of movement.  Counsel contends that the judge had seriously misunderstood the facts and had unfairly regarded the applicant’s lawful exercise of his right of silence as incomprehensible.
第四及第五項上訴理由是有關第四證人及申請人在庭上的供詞。申請人大律師指出原審法官就決定控方證人可信性方面所採取的程序是不正確的。他說法官在未聽完雙方證供之前已經表示他可以相信控方第四證人。而且第四證人的口供出現前後不符時，法官卻認為對證人的可信性並無絲毫影響。大律師更指出第四證人身為大學生是知識份子，卻在警方調查時最初的三份口供中竟然說不出任何勒索的指控而要到第四份口供中才有這些指控。法官並接受第四證人作供時的態度。相反申請人作供時法官卻認為證供前後不符，例如法官指申請人「置身事外，逕自回港」，又將軟禁等同行動不自由。法官對案情嚴重誤解，對申請人依法行使緘默權看作難以理解是不公平的。

In the course of trial, the judge had had the opportunity to observe the demeanour of the witnesses and consider PW4’s state of mind after the incident.  In considering the evidence of individual witnesses, the judge had also taken into account all the evidence including the testimony of other witnesses as well as the credibility and reasonableness of their evidence.  The trial judge was in a better position than the appellate court in assessing the evidence of the witnesses.
本庭認為法官在聆訊過程中有機會看見證人作供的言行舉止，又考慮到第四證人在事發後的心情。在考慮每一名證人的證供時，法官是會同時參考所有的證供包括其他證人的證言，以及他們證供的可信性及合理性。原審法官對證人作供的評估，條件比上訴庭優勝。

The applicant had never denied that he met PW4 through arrangements, and then gave PW1’s note and credit card to PW4 and related the incident to him.  These are all undisputed facts.  The applicant’s defence was that he delivered the items to PW4 upon PW1’s instruction only.  This was of course in conflict with the evidence of PW1 and PW4.  After careful consideration and analysis, the judge concluded that he believed the evidence of the prosecution witnesses.  He also appreciated why PW4 did not give a detailed account of the incident to the police.  The judge considered PW4’s evidence credible and was satisfied beyond reasonable doubt that the applicant did make an unwarranted demand to PW4 with menaces in the manner described in PW4’s evidence.  The judge found that PW4 would also understand those words to mean menaces, and hence the applicant had made the demand with a view to gain for himself or cause loss to the witness.  The judge also held that the fact that the applicant uttered those words under the given circumstances showed that he would never believe that he had reasonable grounds for making the demand or believe that those words were a proper means to reinforce the demand.  The applicant’s defence was apparently rejected by the judge, and the judge had valid reasons for disbelieving the applicant’s evidence.  We are satisfied that the judge’s verdict was correct.  The fourth and fifth grounds of appeal must also fail.
申請人並無否認是經過安排後與第四證人見面，他將第一證人的便條及信用咭交給第四證人並向他陳述過程，這些都是雙方沒有爭議的事實。申請人答辯的理由是他只是受第一證人委託才向第四證人作出傳遞。這當然與第一及第四證人的口供不相符。不過經過詳細考慮及分析後法官相信控方證人的口供，亦理解第四證人在接受警方調查時不詳細地說明事件始末的原因，因此認為第四證人的證言可信，而在毫無合理的疑點下接受第四證人的證供認為申請人確實曾經向第四證人用恫嚇方式作出不當的要求。法官認為第四證人聽了他的說話後亦是這樣理解，所以申請人的要求是意圖有所得益或令到證人蒙受損失，因為在這種情況之下說出這種說話顯示申請人根本並不會相信他的要求是有合理的理由，亦不會相信這是可以加強要求的適當手段。申請人的辯護理由，顯然並不為法官所接納，法官之所以不相信申請人的證供是有合理依據的。本庭認為法官的裁定是正確的。第四及第五項上訴理由亦不成立。

The sixth ground of appeal, which is contained in the written grounds of appeal prepared by counsel, complains that, by asking questions, making comments and interrupting for more than a hundred times, the trial judge had improperly and completely deprived the applicant of his right to cross-examine the prosecution witnesses effectively and hence his right to a fair trial.  In his submission, counsel complains that the judge asked questions, made comments and interrupted so frequently that the applicant was unable to attack the credibility of PW4 effectively.  Counsel also submits that the judge failed to consider that, even if the applicant did utter the words in question to PW4, they would have no actual influence on the witness.  As can be seen from the transcript of PW4’s evidence, the judge asked questions for the sole purpose of seeking clarification of the answers of the witnesses or the questions of counsel.  He also made fair rulings where appropriate in respect of questions put by counsel for both sides.  Furthermore, the judge repeatedly reminded PW4 to listen to and answer questions carefully.  Most importantly, after carefully going through the transcript, we do not think that the questions or interventions of the judge had affected the applicant and his counsel in questioning the witnesses or prevented the applicant from putting forward the particulars of his defence.  Nor do we think that the judge had in any way been unfair to the applicant.  The sixth ground of appeal also fails.
至於第六項上訴理由，在擬定的上訴理由中大律師指出原審法官錯誤地通過超一百次的發問，評論及阻撓，徹底地剝奪了申請人有效盤問控方證人的權力，而令他得不到公平的審訊。在陳詞時，大律師除了陳述法官曾多次發問，評論及阻撓，引至申請人未能有效地攻擊第四證人的可信性外，更指出就算申請人真是如此這般向第四證人說出這番話，實際上對證人並無影響，不過法官並沒有考慮這點。從第四證人供詞的謄本中可以看出，法官的發問只是澄清證人的答案或律師的問題，法官亦公正地就雙方律師的提問在適當時候作出裁決，此外法官亦多次提醒第四證人要聽清楚問題，不要胡亂作答等。最重要的是：經過詳細考慮謄本後，本庭並不認為法官的發問或干預有影響申請人及他的律師向證人提問及使申請人可以表達他的答辯詳情，也不覺得法官對申請人有任何不公平的地方。第六項上訴理由亦不成立。

For the above reasons, we are satisfied that the judge’s verdict had a solid factual basis and accorded with the relevant provisions.  The verdict was not unfair to the applicant.  None of the grounds of appeal is established and this application for leave to appeal falls to be dismissed.
基於上述理由，本庭認為法官的裁決是有事實的根據及遵守有關的法律條文，亦沒有對申請人不公正，因此各項上訴理由全部不成立，上訴申請必須駁回。

由楊若全大律師(卡永利，湛耀強律師行)代表	Mr Yeung Yeuk Chuen, instructed by Karbhari & Cham, for the applicant.
上訴申請人 :

由張維新(高級助理刑事檢控專員)及王詩麗(政府律師) 代表	Mr Patrick Cheung, Senior Assistant Director of Public Prosecutions and Ms Wong Sze Lai, Government Counsel, for the respondent.
上訴答辯人 :