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 charged with having unlawful sexual intercourse with a girl under the age of 13, contrary to Section 123 of the Crimes Ordinance (Cap. 200).  He was convicted after trial in the District Court and sentenced to imprisonment for 12 months.  The Applicant now applies for leave to appeal against conviction.
上訴申請人被控一項與年齡在13歲以下的女童非法性交罪，違反香港法例第200章《刑事罪行條例》第123條，在區域法院經審訊後，被裁定罪名成立，入獄12個月。現申請上訴許可，要求推翻原判。

The complainant was a girl aged 11 years and 11 months at the material time.  She and the Applicant knew each other.  One day in July 1997, the complainant arrived at the Applicant’s residence in Fanling in the afternoon.  The entrance door of the premises was not locked, and the Applicant was sleeping in the bedroom.  The complainant took a seat in the living room and stayed there.  Later, the Applicant woke up and asked the complainant to go into his bedroom.  After the complainant entered the bedroom, the Applicant locked the door.  He then kissed the complainant in the bed.  She was at first unwilling to be kissed but in the end did not resist.  Then the Applicant and the complainant had sexual intercourse, after which she left the Applicant’s house.  But she did not tell anyone about the incident.  In January 1998, the Social Welfare Department obtained from the court a child protection order, pursuant to which the complainant had to reside at a home for the children.  When she was residing there, the above incident was discovered.   The complainant told a social worker that she had been raped by the Applicant.  A report was then made to the police.
於1997年7月，女事主為一名11歲11個月的女童，與申請人是認識的。根據女事主聲稱，於7月某日下午她來到申請人在粉嶺的住所內。當時屋門是沒有上鎖的，而申請人則在睡房內睡覺。女事主在客廳坐下逗留。其後申請人睡醒，着女事主進入他的睡房內。當女事主在房中時，申請人將門反鎖。稍後他在床上親吻女事主。女事主起初不願意但後來並沒有拒絕。其後申請人與女事主發生性行為，事後女事主離開申請人的住所。不過她並沒有將此事告訴任何人。直至1998年1月，社會福利署向兒童法庭取得保護兒童令，女事主須在兒童院居住。期間揭發此事。女事主曾向社工透露她曾被申請人強姦。於是報警。

On 2 February of this year, when the police took a written statement from the complainant, she mentioned that she was raped by the Applicant at the material time.  However, when she was interviewed again by the police the following day, she admitted that she voluntarily had sexual intercourse with the Applicant and that the Applicant had not raped her.  As to what she told the police the previous day, namely that some time in October 1997 the Applicant pushed her onto a white goods vehicle and gave her some drink that she took, following which she fainted and was raped by the Applicant, she said that it was a story that she made up.
在本年2月2日，女事主向警方錄取一份書面口供時，提及案發時被申請人強姦。不過翌日在接受警方第二次會面時，女事主向警方承認當時她是自願與申請人進行性行為的，並沒有被申請人強姦。至於她日前向警方說於1997年10月被申請人推上一輛白色貨車和喝了一杯申請人給她的飲料後暈倒而被申請人強姦也是她虛構出來的。

At trial, when she was asked why she made up the story of having been raped by the Applicant, the complainant replied that the Applicant was “loathsome” because he had asked her “There is business and I have customers. Do you want to do it?”, which suggested that he wanted her to provide prostitution services.  She also admitted that it was at the suggestion of her friends at the home for the children that she told the social worker and the police that she had been raped.  For fear of discontentment from her mother or family members, she made up the story of having been raped.  But then she feared that the police would “uncover” her lie, and therefore she admitted at the second interview that she had made up the story.  At the same time, she once and again asserted that she had sexual intercourse with the Applicant in July of last year.
在審訊時，女事主被問及為甚麼她虛構遭申請人強姦一事，她解釋說她感到申請人是「乞人憎」，因為申請人曾向她詢問：「有生意做，有客，問我做唔做」，意思是暗示女事主去賣淫。女事主又承認是她在兒童院的朋友建議下才對社工及警方說遭人強姦。她因為恐怕母親或家人對她不滿，因此才虛構被申請人強姦。不過後來因恐怕被警方「拆穿」她說謊，所以才在第二次會面時坦白承認有關強姦的事是虛構的。但是女事主一再肯定她是在去年７月與申請人發生性行為。

The Applicant, giving evidence in court, denied having had sexual intercourse with the complainant.  He admitted that he and the complainant knew each other.  He also said he used to borrow a friend’s car to drive her girlfriend and a few other youngsters (including the complainant) to his house to play and to carry out other activities such as swimming and fishing.  However, he said that the entrance door of his house was always locked because he lived rather far away from the city proper and it was necessary to prevent strangers from entering his house.  He said he and his girlfriend were on holiday in July 1997 and that they were together every day.  He also said that during that period the complainant had never been to his house, and that whenever he was outside, no one including the complainant could enter his house.
申請人在庭上作供時否認曾與女事主發生性行為。他承認與女事主認識。他又曾經向朋友借了一部車接載他的女朋友和數位青少年包括女事主往他的住所玩耍及進行其他活動，如游泳和釣魚等。不過他說他住所的大門是經常上鎖的，這是因為他住的地方比較偏僻，所以要防範閒雜人等進入。他說在1997年7月期間他正與女朋友一同請假，而且每天在一起。申請人說在該段時間內，女事主並沒有到他的家中玩耍，而且假如他不在住所內，其他人包括女事主是不能進入的。

Having considered and analysed at length the evidence of the complainant and the Applicant, the trial judge commented that, although the complainant was more mature than her female peers, she still retained much of her childlikeness.  The judge also observed that the complainant was firm and confident when testifying in court, and apart from her admission of having fabricated the story to the social worker and the police of her having been kidnapped and raped, her evidence was consistent with what she had told the police.  The judge concluded that: “From her demeanour and countenance, I am sure that the complainant is a veracious witness.  Her evidence in court is reliable and credible, and I accept her evidence as true and accurate.”  On the other hand, the judge considered the Applicant’s evidence in court incredible and said that “what he said in court is often self-contradictory and inconsistent, and he often made thoughtless statements.  He is hardly a reliable witness.”  In the end, the judge accepted and believed the complainant’s evidence and, having satisfied beyond reasonable doubt that the Applicant was guilty, convicted him of the offence.
原審法官詳細考慮和分析女事主及申請人的証供後，認為女事主雖然較同年齡的女孩子成熟，但仍是一片童真，而且在庭上作供時表現堅定和自信，除了承認曾向社工及警方虛構遭綁架及強姦外，她的証供與向警方所說的是前後一致。法官的結論是：「觀察她的言行，神態，本席可以肯定她是一位可靠的証人。而她在庭上所作之証供是誠實可信的，因此本席接受她的証供是真確的事實。」相反，法官認為申請人在庭上的作供是不可信，而且「他的表現經常前後自相矛盾，前言不對後語，而且經常信口開河，是一個不可靠的証人。」最後法官接納及相信女事主的証供，因此在毫無合理的疑點下判申請人罪名成立。

Mr Chan, Counsel for the Applicant, puts forward four grounds of appeal.  The first to third grounds relate to corroborative evidence and can be dealt with together.  Counsel submits that the trial judge had failed to warn herself of the dangers of convicting a defendant in the absence of corroborative evidence.  Counsel refers to the decision of the Full Court in R v. CHAN Siu-wong [1970] HKLR 61 and the decision of the High Court in R v. CHAN Yuet-shing Mag. App. 1009/1985.  It was held in these cases that, where an accomplice gives evidence or where a sexual offence is involved, the judge must, according to an established legal rule, warn the jury (or himself, as the case may be) of the dangers of convicting the defendant on uncorroborated evidence; and where such a warning has not been given, the conviction is unsafe.  Counsel submits that, on the basis of these authorities, where a case was tried by a judge without a jury, and the judge did not expressly state in his Reasons for Judgment whether he had given himself the above warning, the appellate court will not know whether the judge actually did so, and in such circumstances, the conviction must be quashed.  Counsel contends that in the present case, in view of the fact that the complainant had made serious allegations against the Applicant and had subsequently admitted that they were false, it was all the more important for the trial judge to seek corroborative evidence.  As the judge did not indicate that she had warned herself as aforesaid, the Applicant’s conviction is, in Counsel’s submission, neither safe nor correct.
代表申請人的陳大律師提出四點上訴理由。第一至第三項理由與輔助証據有關，可以一併處理。大律師認為原審法官在判案時未有警告自己在缺乏佐証下定罪的危險性。大律師引用合議庭於R v. CHAN Siu-wong [1970] HKLR 61及高等法院在R v. CHAN Yuet-shing，裁判署上訴案1985年第1009號兩案的案例。案中法庭指出在有從犯作証或性犯罪案中，法律上有一條成規要求法官向陪審團或自己提出警告在沒有佐証下定罪是危險的；如果法官沒有向陪審團或自己提出警告而判被告有罪，這項定罪是不穩當的。大律師謂根據這些判例，在沒有陪審團的案件中，如果法官在判決書中沒有明言他有沒有對自己作出警告，上訴法庭便不知道他有沒有這樣做，那麼定罪的裁決必須撤銷。大律師並指出女事主曾承認對申請人作出嚴重的虛假指控，因此尋求佐証便更為重要。原審法官沒有提及她曾向自己提出警告便作出裁決，這個判決便不穩當，而且是錯誤的。

Mr Leung, Counsel for the prosecution, concedes that there was no independent evidence in the present case to corroborate the complainant’s evidence and submits that, for this very reason, no purpose would be served in requiring the trial judge to look for corroborative evidence.  Counsel submits that the judge’s failure to warn herself of the dangers of convicting the Applicant in the absence of corroborative evidence was not fatal to the conviction.  Her Judgment shows that she had considered all the evidence in detail and had evaluated all the evidence with special care.  She had good reasons for accepting the evidence of the complainant and rejecting that of the Applicant, and no injustice had been caused.  The judge very well knew and had carefully considered the complainant’s admission that she had fabricated a story.  In the circumstances, the Applicant’s conviction is legitimate and proper.  Counsel submits that the crux of the matter is not whether the trial judge stated in her Judgment that she had warned herself as aforesaid, but is whether she had in fact considered the evidence with extra caution.  The Judgment shows that she had indeed been particularly careful in approaching the evidence.  It would have been pointless for her to make mention of a warning in her Judgment if she had not in fact been particularly careful.  Counsel also points out that there have been gradual changes to the legal rules regarding the requirements of corroborative evidence and the need for the judge to warn the jury or himself of the dangers of convicting without such evidence.  The rule regarding corroboration of an accomplice’s evidence has been abolished by Section 60 of the Criminal Procedure Ordinance (Cap. 221), whereas the rule regarding corroboration of a child’s evidence has been abrogated by Section 4A of the Evidence Ordinance (Cap. 8).  As for the rule regarding corroboration of evidence in respect of sexual offences, it was abolished in England in 1994, and the Hong Kong government is currently formulating proposals to amend the relevant legislation with a view to abolishing the rule, and the proposals will be tabled with the Legislative Council in March 1999.  In light of the above, the fact that the trial judge did not mention in her Judgment that she had warned herself as aforesaid does not necessarily mean that the conviction must be quashed.
代表控方的梁大律師承認，在本案中並無任何獨立的証據作為女事主証供的佐証，因此要求原審法官尋求輔助証據只屬徒然。大律師認為法官沒有提醒自己缺乏佐証而定罪的危險性便判申請人有罪，並不會構成對裁決產生致命的後果。原審法官的判詞顯示她曾詳細考慮及加倍小心研究所有証供及証據，她是有足夠理據接納女事主的証供和拒絕接納申請人的証供，因此並沒有做成不公平的情況。原審法官對女事主曾經承認虛構故事亦已很清楚，並且加以仔細考慮。所以申請人的定罪裁決是合乎法理及並無不妥之處。大律師認為最重要的是法官有沒有確實加倍慎重考慮証供而不是有沒有在書面上寫出他曾經對自己作出警告。根據判決書，原審法官實際上已經做到了特別小心。如果法官只是在書面上提及警告但事實上卻沒有加倍小心，這亦是徒然的。大律師更指出對於輔助証供的需求及法官向陪審團或自己就沒有輔助証供而定罪的危險性作出警告的這些法律上的成規，已經逐漸有所改變。根據《刑事訴訟程序條例》第221章第60條，有關從犯証供佐証的成規已經廢除。有關兒童証供佐証的成規也被《証據條例》第8章第4A條所取消。至於有關性犯罪案中証供佐証的成規在英國亦於1994年予以廢除。政府目前正進行修改條例將有關性犯罪案中証供佐証的成規取消，這些修訂法案將會在1999年3月提交立法會審議。因此如果法官在判決書中沒有提及對自己提出警告而判被告有罪，並不一定須要把裁決撤銷。

In our view, as far as sexual offences are concerned, it is easy for the complainant to make an allegation but difficult for the accused to refute it, and from time to time complainants may, for reasons unbeknown to the judge or jury, give false evidence.  To deal with these problems, the law has laid down a requirement that the judge, in directing the jury or himself, has to issue a warning of the dangers of convicting a defendant on the uncorroborated evidence of a complainant.  However, if, having been so warned, the jury or judge still firmly believes the complainant’s evidence, they are still entitled to convict the defendant on the uncorroborated evidence.  In the absence of such a warning, the conviction will normally be overturned.  In cases tried by a judge with jury, it is usually easy to ascertain whether the judge has issued such a warning.  On the other hand, in cases tried by a judge sitting alone without a jury or in cases tried by a magistrate, it is often not clear whether the judge or magistrate warned himself as aforesaid before he arrived at the verdict.  Almost all of the judicial precedents in the UK involve convictions being overturned by reason of the judge’s failure to warn the jury, and there are fewer precedents which involve the judge failing to mention in the judgment that he had warned himself.
本庭認為，在性犯罪案件中，投訴人的指控通常是易於提出但是難以反駁，而且投訴人不時因為一些原因可能作出虛假的証供，而這些原因未必是法官或陪審團能夠知道的。因此，在法律上有成規要求法官在引導陪審團或在自己判案時需要提出警告，就是在沒有輔助証據的支持下，單靠事主的証供而判被告有罪是危險的，不過如果陪審團或法官經過警告以後，仍然對投訴人所作出的証供深信不疑，他們是可以在沒有佐証的情況下判被告有罪的。如果沒有提出這樣的警告，那麼有罪的裁決通常是會被推翻的。在有陪審團的案件中，法官有沒有作出這種警告，通常是一目了然。不過在沒有陪審團的案件中，就是只有法官或裁判官一人審訊時，在作出判決前，有沒有對自己提出警告，便沒有那麼清楚了。差不多所有的英國判例都是法官沒有向陪審團提出警告以致有罪的裁決被推翻。有關法官沒有在判案時或在判決書中沒有提及曾向自己提出警告的先例則較少。

In our view, however, it is one thing to say that the judge failed to warn himself of the dangers of convicting an accused on uncorroborated evidence before he delivered the verdict, and it is quite another thing to say that the judge did or did not mention in his Judgment that he had so warned himself.  Closely related as they are, these two scenarios pose distinct issues.  In R v. CHAN Siu-wong, Rigby CJ, after emphasizing the importance of issuing the warning to the jury or to the judge himself, came to the following conclusion:
不過，本庭認為法官在判案前有沒有對自己提出警告有關缺乏佐証定罪的危險性是一回事，但是在裁決書中有沒有提及曾向自己提出警告則是另一回事。雖然兩者有很大的關連，但却是兩個不同的問題。在R. v. CHAN Siu-wong一案中，首席法官李比爵士曾強調法官向陪審團或自己作出警告的重要性，然後作出以下評論：

“ In so far as Magistrates Courts are concerned, we are fully satisfied that it remains the duty of a magistrate to make it apparent in his judgment or grounds of decision that he has warned himself of the danger of convicting upon the uncorroborated testimony of an accomplice.”  (at page 67)
「就裁判法院而言，本庭確實認為裁判官是有責任在他的判詞或裁決理由中明確表明他曾經向自己警告有關在缺乏佐証下依靠從犯的証供而定罪的危險性。」（第67頁）

“The learned trial judge having failed to record that he gave himself, in any terms whatsoever, the warning which in our view was, and is, essential in such cases, we are satisfied that the conviction on this count must be quashed.”  (at page 68)
「原審法官卻沒有記載他曾以任何方式向自己提出警告。本庭認為這項警告在該等案件中是必要的，本庭認為就這項控罪上的定罪必須被撤銷。」（第68頁）

In R v. CHAN Yuet-shing, Jones J made the following observations:
在R. v. CHAN Yuet-shing一案中，鍾士法官有以下的判詞：

“The necessity for a warning to be given is because a sexual complaint can easily be made, but it is difficult to refute.  It is abundantly clear that it is essential for a magistrate to make a specific reference in his findings to the fact that he has warned himself of the dangers of convicting without corroboration when he is trying a sexual offence.  Although the magistrate in the instant case may have had the matter of corroboration in his mind he does not say so.  Accordingly upon his failure to deal with this issue the conviction must be quashed.”
「需要提出警告是因為性犯罪的投訴容易提出但很難反駁。很明顯的，在審理性犯罪案件時，裁判官必須在他的事實裁決書中特別提及他曾經向自己提出警告沒有佐証而定罪是危險的。雖然裁判官在本案中可能有顧及佐証的問題，但是他並沒有說明。因為他沒有處理這點，所以定罪必須撤銷。」

From this, it can be seen that Rigby CJ equated the fact that the Judgment made no mention of the judge having warned himself with the assertion that the judge had in fact not warned himself.  The conviction must, for this reason be quashed.  Similarly, Jones J took the judge’s duty to warn himself to mean that the judge must mention in the Judgment that he had warned himself.
由此可見，李比爵士把法官在判決書上沒有提及曾經對自己提出警告等同法官對自己沒有提出警告，因此有罪的裁決必須被撤銷。同樣可以看出鍾士法官將裁判官必須向自己提出警告的責任，變成為裁判官必須在判決書中提及他曾經對自己作出警告。

In our view, whether the judge has warned himself is distinct from whether the Judgment makes mention of the judge having warned himself.  There is no hard-and-fast rule that a guilty verdict must be set aside where the judge did not mention in his Judgment that he had warned himself.  The core issue is whether the judge warned himself before he delivered his verdict and whether he took extra care in evaluating the case so as to avoid the risk of arriving at a wrong verdict.  If the Judgment shows that the judge has not dealt with the complainant’s evidence with extra caution, the mere mention of his having warned himself will not serve any purpose apart from being unfair to the defendant.  We do not think the appellate court is required to quash a conviction solely because the judge or magistrate did not mention in his Judgment that he had warned himself.  Rather, the appellate court should consider the case as a whole, as well as other factors, including whether the judge or magistrate has dealt with the prosecution evidence, particularly the complainant’s evidence, with special care.  Where the judge or magistrate has in fact dealt with the prosecution evidence and other circumstances with special care and attention, and the evidence is overwhelming, then the appellate court should not assume that, if the Judgment is silent as to whether the judge has warned himself, then the judge must have failed to warn himself.  In other words, whether the Judgment makes mention of the judge having warned himself is not in itself decisive.
本庭認為法官有沒有對自己作出警告與在判決書中有沒有提及他曾經對自己作出警告是有不同的，不能因為法官在判決書中沒有提及曾經對自己提出警告，便一成不變地必須把有罪的裁決撤銷。最重要的是法官在作出判決前有沒有向自己提出警告，在衡量案情的時候有沒有加倍小心提防有錯判的危險。如果法官只是事後在判決書上提出曾經警告自己，但整個判詞却顯示出他並沒有加倍小心處理投訴人的証供，那麼空言曾經向自己提出警告，只是自欺欺人，反而會對被告做成不公平的後果。本庭認為上訴法庭不必只因為法官或裁判官沒有在判決書中提及他曾經向自己提出警告便一定要把有罪的裁決撤銷，而是應該考慮整件案情及其他因素，包括法官或裁判官有沒有特別小心考慮控方的証據尤其是投訴人的証供。如果法官或裁判官確實對控方的証據及其他因素有特別小心詳細考慮，而當中証據又非常充足，上訴法庭是不應該假定如果法官或裁判官沒有在判決書中提及對自己提出警告，便必定沒有向自己提出警告。換一句話來說，在判決書上有沒有提及曾向自己作出警告不一定是有決定性的。

Nevertheless, in cases involving sexual offences, whether the complainant’s evidence is corroborated is a question that the judge or magistrate has to take note of at the outset.  This is not only highly relevant to the guilt or otherwise of the defendant, but is, indeed, virtually the most fundamental question in the whole case.  This question, therefore, must be very much alive in the judge’s or magistrate’s mind throughout the trial.  It follows that the judge or magistrate must specifically warn or remind himself of the importance of corroborative evidence and the dangers of convicting the defendant on uncorroborated evidence.  Precisely for this reason, the judge or magistrate will certainly have this question in mind when he delivers judgment or prepares the written judgment thereafter.  If he has dealt with the case properly, then there is no reason why he will not specifically address that question in his verbal or written judgment.  Accordingly, if a judge or magistrate makes no mention, whether in the verbal judgment or in the Reasons for Verdict, of the importance of corroborative evidence and the dangers of convicting without such evidence, then generally speaking this probably suggests that he has omitted this fundamental question, because any reasonable judge or magistrate would certainly have applied his mind to and addressed the question.  Therefore, if no mention is made of this question in the verbal or written judgment, then, unless there are special reasons or circumstances, the appellate court should have no difficulty in inferring that the judge or magistrate concerned did not have that question in mind when he was arriving at his verdict.  This conclusion is also reasonable.   This was also the conclusion of Rigby CJ in R v. CHAN Siu-wong and of Jones J in R v. CHAN Yuet-shing, although neither of the two learned judges stated the reasons behind.
不過，在性犯罪案件中，對於投訴人的証供有沒有輔助証據，是法官或裁判官從開審時便應注意的問題。這個問題對於被告有沒有罪不單是非常重要，而且差不多是整件案件中最基本的問題。因此這個問題在整個審訊過程中，必須是在法官或裁判官的腦海裡經常浮現的問題。所以法官和裁判官應該特別警惕和提示自己佐証的重要性和沒有輔助証據而定罪的危險性。正因如此，法官或裁判官在判案時或在判案後寫判決書的時候，必會注意到這個問題。假如他是正確地處理案件的話，沒有理由會不特別在判案時及裁決書中提及。因此如果一位法官或裁判官在口頭判詞或判決書中沒有提及輔助証據的重要性和警告自己缺乏佐証而定罪的危險性的話，在一般的情況下，很大可能這顯示出他可能忽略了這個基本的問題。因為如果是這樣一個基本的問題，一位合理的法官或裁判官是必然會注意到和提及到的。所以如果真的在口頭判詞或書面裁決書中沒有提及，除非有特別的理由或在特殊的情況之下，上訴法庭很容易便會作出推論，這個法官或裁判官在判案的時候沒有把這個基本的問題牢記在心中。這個結論亦是合理的。這便是李比爵士在CHAN Siu-wong一案和鍾士法官在CHAN Yuet-shing一案中所作的結論，只不過他們沒有詳細道出箇中原因來。

In the present case, the trial judge had not in her written judgment referred to corroborative evidence or the dangers of convicting without such evidence.  It is true that she had closely examined the complainant’s evidence, but it is by no means clear whether she had taken special care or had reminded herself to do so.  In the present case, the complainant’s evidence against the Applicant was uncorroborated.  She had told the police that she had been raped by the Applicant, but then admitted to the police and in court that it was untrue.  She also pointed out the circumstances in which the alleged sexual intercourse was discovered, namely when she was residing at the home for the children, and her father had asked her to undergo a physical examination before making any allegation against the Applicant.  The complainant from time to time went to and stayed at the Applicant’s premises with other children.  There was also evidence that the complainant had previously run away from home and stayed at the home of a married couple.  These facts made it very dangerous to convict the Applicant in the absence of corroborative evidence.  The trial judge should have exercised special care.  In the circumstances, it was absolutely necessary for her to warn herself accordingly.  Rather surprisingly, her written judgment was silent on this point, and one is concerned about whether she had properly warned herself of the dangers of convicting on uncorroborated evidence.  In such circumstances, we take the view that there are lurking doubts about the Applicant’s conviction, which is thereby rendered unsatisfactory.
在本案中原審法官在書面裁決書中並沒有提及輔助証據或缺乏佐証定罪的危險。無可否認，她對於女事主的証供已經詳細的加以分析。不過有沒有特別小心或提醒自己需要特別小心則不得而知。在本案中女事主指控申請人的証供並無佐証。她又曾向警方聲稱被申請人強姦，其後向警方及在法庭上坦然承認這是虛構的。女事主並指出本案所指的性行為是在甚麼情況下揭發的，就是她是在兒童院內的期間，她的父親要求她進行身體檢驗後才對申請人作出指控。女事主亦經常與其他青少年到申請人住所玩耍及逗留。又有証據顯示女事主曾離家出走，及在一對夫婦家中居住。正因為有了這些事實，沒有佐証而定罪的危險性是很大的。原審法官更應特別留意加倍小心。因此在本案的上述各情況下向自己提出警告是絕對需要的。原審法官在她的判決書中竟然沒有提及這一點，實在使人覺得有點不安，懷疑她究竟有沒有有效地提醒自己缺乏佐証定罪的危險性。因此本庭認為在這種情況下，有罪的裁定是具有值得懷疑的地方，並且是不穩當的。

In the present case, apart from the complainant’s evidence against the Applicant, there was no other evidence to show that the two of them had had sexual intercourse.  In such circumstances, we do not consider it appropriate to apply the proviso to Section 83(1) of the Criminal Procedure Ordinance (Cap. 221).
在本案中只有女事主的証供對申請人不利，沒有其他証據顯示申請人與女事主發生性行為。在這種情況下，本庭認為運用《刑事訴訟程序條例》香港法例第221章第83（1）條的「但書」是不適合的。

Turning to the fourth ground of appeal, Counsel submits that the trial judge had misinterpreted a response given by the Applicant to the police in his cautioned statement.  When asked whether the complainant had been to his residence in July 1997, the Applicant answered “She has been there many times, I can’t remember.”  At trial, however, he said the complainant had not been to his residence.  The trial judge considered this inconsistent and, on that basis, concluded that the Applicant was unreliable.  In our view, there might have been some ambiguity in the aforesaid answer that the Applicant gave to the police, but that answer and what he said at trial were, respectively, the evidence he provided to the police and to the court, and if there were ambiguities, it was for him to provide an explanation and clarification.  If there had been any misunderstanding, it was caused by nothing other than his failure to express himself clearly.  Furthermore, in light of the evidence, the aforesaid answer could not have been the sole basis upon which the trial judge cast doubts on the credibility of the Applicant’s evidence.  Accordingly, this ground of appeal must fail.
至於第四項上訴理由，大律師說原審法官曲解了申請 人在警誡詞中向警員的一個回答。申請人被警員查問女事主在1997年7月有沒有到過他家裡，申請人答覆說「佢去過好多次，我都唔記得了」。不過在法庭上，他却說女事主沒有到過他的住所。法官認為這是前言不對後語，因此申請人並不可信。申請人向警方作出的這個答案可能是有些不清楚的地方，但是這一個答案和在庭上的答案是申請人給警方及法庭的口供，如果有任何含糊不清的地方，是應該由他自己解釋及加以澄清的，如果引起任何誤會，這是他自己沒有表達清楚的原故。而且根據本案的証供，本庭認為原審法官不是單憑這一個答案便懷疑申請人的証供的可信性。因此第四項上訴理由並不成立。

For the above reasons, we are satisfied that the Applicant’s conviction is unsatisfactory.  We therefore grant leave to appeal and, treating the hearing of the application as the appeal, allow the appeal.  The trial judge’s verdict is set aside and the Applicant is acquitted.
基於上述各種理由，本庭認為申請人的有罪裁決並不穩當，因此批准申請人上訴，把上訴申請的聆訊視為上訴聆訊，並判他上訴得直，原審法官的裁判予以推翻，上訴人無罪釋放。

Mr Chan Siu Ming, assigned by the Legal Aid Department, for the Applicant.
上訴申請人 :由法律援助署委派陳銚明律師代表

Mr S K Leung, Deputy Director of Public Prosecutions and Mr Stanley Chan, Senior Government Counsel, for the Respondent.
上訴答辯人 :由梁兆基(副刑事檢控專員)及陳廣池(高級政府律師)代表