Hon Barnes J (giving the judgment of the Court):
原訟法庭法官張慧玲頒發上訴法庭判案書 ：

The applicant was charged with two counts of common assault, contrary to common law and punishable under section 40 of the Offences against the Person Ordinance, Cap. 212 of the Laws of Hong Kong (Charges 1 and 2), and four counts of indecent assault, contrary to sections 122(1) and 153P of the Crimes Ordinance, Cap. 200 of the Laws of Hong Kong.
申請人被控兩項「普通襲擊」罪，違反普通法並可根據香港法例第212 章《侵害人身罪條例》第40 條予以懲處 (控罪一及二)；及四項「猥褻侵犯」罪，違反香港法例第200 章《刑事罪行條例》第122(1) 及153P 條。

The applicant pleaded not guilty but was convicted on all the charges after trial by Deputy District Judge Gary Lam (hereinafter referred to as “the Deputy Judge”) and was sentenced to imprisonment for a total term of three years and two weeks.  The applicant now applies for leave to appeal his convictions.
申請人否認控罪，被區域法院暫委法官林‍嘉‍欣 (下稱「林‍法官」) 裁定全部罪名成立，判以監禁總刑期3 年及2 個星期。申請人就定罪提出上訴。

Prosecution case
控方案情

The undisputed facts were that the applicant and witness Y were husband and wife.  They married each other in Hong Kong in 1998.  They were both university graduates.  Since 1992 Y had worked as a registered nurse at a public hospital and was required to work in shifts.  The applicant and Y have a daughter X, who is their only child.  X was born in October 2000.  The applicant, Y and X resided together at a unit in Kowloon City.  In October 2009, Y went away from home.
不爭的事實是申請人與證人Y是夫婦，於1998 年在港結婚。兩人同是大學畢業生。Y自1992 年起在公立醫院任職註冊護士，須輪班工作。申請人與Y育有一名獨生女兒 X，X在2000 年10 月出生。在2009 年10 月Y離家前，申請人與Y及X一家三口住在九龍城某單位。

The prosecution case was that the applicant assaulted Y and indecently assaulted X.
控方案情指申請人襲擊Y及猥褻侵犯X。

Y’s evidence was that the applicant had been out of work since May 2000.  After their daughter X was born, the applicant stayed at home to take care of X on a full-time basis.  Y was the sole breadwinner of the family.  Starting from 2006, the applicant behaved strangely.  He would remain seated in front of the computer for a whole day and incessantly press the keys.  He would pass several days in a row without sleeping, eating, drinking or bathing.  His emotions would swing from one extreme to the other.  Y repeatedly urged him to seek medical treatment but he refused.
根據Y的證言，申請人自2000 年5 月起便沒有工作。自女兒出生後，申請人全職留在家中照顧X。Y是家庭的唯一經濟支柱。申請人自2006 年起行為異常，包括晝夜不停留坐電腦前，不停按鍵；數天不睡覺、不進食、不喝水、不洗澡，情緒兩極化。Y不斷要求申請人求醫，但申請人不肯。

One day in March 2008, Y again urged the applicant to visit a doctor but was suddenly slapped by him.  She asked him why he did that, and he did not answer.  He just sat in front of the computer as if nothing had happened.  On that occasion, Y considered the matter trivial and did not call the police (Charge 1).
在2008 年3 月某天，Y再次要求申請人求醫，申請人突然掌摑Y。當Y問申請人為何打她時，申請人沒有回應。其後申請人若無其事般坐在電腦前。Y當時認為是小事，沒有報警 (控罪一)。

About 4 a.m. on 13 October 2009, the applicant woke Y up by slapping her on the face.  He wanted to make love to her.  She did not accede because she was too tired.  Later, she went to work.  She returned home around 4 p.m. the same day.  When she was in the kitchen, about to prepare dinner, the applicant kept railing at her and pushed her onto the floor. When Y tried to get up, he pushed her down again and shouted out abuse in an insensible manner (Charge 2).
在2009 年10 月13 日凌晨約4 時，Y遭申請人摑醒。申請‍人‍要求與Y歡好，Y因太倦而不願配合。其後Y上班，在同日下午4 時左右返家。當Y在廚房打算煮飯時，申請人不斷罵她，並將她推跌地上。當Y嘗試站起來，申請人再次推跌她，並且無意識地大罵 (控罪二)。

The applicant threw Y’s handbags and shoes out of the flat.  When Y went out to pick them up, the applicant locked the metal entrance gate from the inside.  Being prevented from entering the flat, Y could not but return to the hospital where she worked.  From that day onwards, she did not live in that flat any more.
申請人將Y的手袋及鞋扔出單位外，當Y出外執拾時，申請人將單位鐵閘鎖上，Y不得其門而入，唯有返回醫院。自該天起，Y便沒有在上述單位居住。

According to Y, X had slept with the applicant on the same bed since childhood, until one to two years ago when X began to sleep on a foldaway bed.  Y said X did not like to sleep alone.  After the relationship between Y and the applicant turned sour, Y would sometimes deliberately have X sleep between her and the applicant.
Y指稱X自幼便與申請人同睡一床，直至最近一兩年X才開始睡在摺床上。Y指X不喜歡獨睡，而當Y與申請人的關係變壞後，‍Y‍有時會刻意邀請X睡在她與申請人中間。

On 14 October 2009, Y instructed solicitors to file a petition for divorce.  Because of the petition, the court had to deal with the custody of X, and one Mr. Lau, a social worker of the Social Welfare Department, was directed by the court to prepare a report on the issue.  On 17 February 2010, when X alone was being interviewed by Mr. Lau, she for the first time disclosed that the applicant had on many occasions “rubbed” and “kneaded” her chest and private parts.  Mr. Lau informed the police.  The police conducted video-recorded interviews with X on 17 and 18 February and 23 April 2010 respectively.
Y在2009 年10 月14 日委託律師，向法庭申請與申請人離‍婚。由於Y申請離婚，法庭須處理X的撫養權問題。法庭指派社署社工劉‍先生撰寫有關報告。在2010 年2 月17 日，當X與劉‍先生單獨會面時，X首次透露申請人曾多次用手「搓」及「捽」她的胸部及私處。劉‍先生通知警方，警方分別在2010 年2 月17 日、2 月18 日‍及4 月23 日替X進行錄影會面。

X’s evidence was that after Y left home, the applicant molested her when he slept with her.  The pattern of the molestation was that he rubbed her breasts with his hand by drawing circles like the figure 8 on her skin, and then he stroked her private parts in circular movements with his hand outside her underpants, and he also stroked her buttocks with his hand in circular movements similar to the figure 8.  At first X alleged that the applicant molested her every day; then she said he did that about six days a week; and still later she said he sometimes touched her and sometimes he did not but most of the times he did. As regards at what time of the day these incidents happened, X said they happened between 9.30 p.m. and 10 p.m. when she went to bed to sleep after washing herself.
X的證言是自Y離家後，當申請人與她睡在一起時，申請人便侵犯她。方法是以8 字型繞圈動作接觸到肌膚的形式磨擦她的乳房，接著是隔著內褲以圓圈動作觸摸她的私處，及以8 字型繞圈動作摸她的臀部。X最初指申請人每天都侵犯她，其後指1 星期約有6 天，及後則說有時摸、有時唔摸，不過大多數會摸；而時間則是在她梳洗後上床睡覺時，即晚上9 時半至10 時。

X testified that there was a lapse of four months from the time when her mother Y went away from home to the time when she told Mr. Lau that the applicant had molested her.  She agreed with the estimate that she had been molested more than 90 times (line N on page 230 of the appeal bundle).  During the first video-recorded interview, she said that on every occasion she was wearing a full set of pyjamas and the applicant put his hand into her pyjama jacket and touched her breasts directly.  However, during the video-recorded interview conducted in April 2010, X for the first time said that sometimes she pulled up her pyjama jacket because she felt “hot” or “stuffy”, and that the applicant told her to pull her pyjama jacket away from her body ——  sometimes he even did that himself ——   so that her upper body was naked and then touched her breasts.
根據X的證言，自其母親Y離家後，直至她向劉‍先生提及她被申請人侵犯，為期4 個月。她同意有可能被侵犯90 多次 (上訴文件第230 頁N 行)。雖然X在首次錄影時指每次她都身穿睡衣及睡褲，申請人是伸手入她睡衣直接摸她的乳房，但在2010 年4 月的錄影會面，X則首次指稱有時她因「熱」或「焗」而將睡衣拉高，申請人要她或有時甚至動手將她的睡衣拉離身體，令她上身赤裸而被申請人摸她的乳房。

As X was able to give specific descriptions of the first assault (Charge 3), the last assault (Charge 6) and the assaults which occurred on two nights in a hotel when she and the applicant went to Qing Yuan together on a help-the-poor trip (Charges 4 and 5), the applicant was in the end charged with four counts of indecent assault.
由於X對第一次被侵犯 (控罪三)、最後一次被侵犯 (控罪六) 及她與申請人同往清遠扶貧、住在酒店的兩晚被侵犯 (控罪四及五) 有較具體的描述，申請人最終被控四項猥褻侵犯罪。

The applicant was arrested.  Under caution, he denied all the charges.
申請人被捕後，在警誡下，他否認所有控罪。

Defence case
辯方案情

The applicant elected to give evidence.
申請人選擇作證。

He explained that as he had completed some work under a contract and Y was pregnant, he and Y jointly decided that he should stay at home to take care of their daughter X instead of going to work.  He said it was not the case that he failed to secure renewal of the contract by reason of unsatisfactory performance.
申請人指他純粹是因為合約完成，而Y有身孕，他與Y共同決定他不工作，留在家中照顧女兒X，他並非工作表現不濟而不獲續約。

The applicant said that he looked after X with comprehensive care, personally taking her to school to attend classes, picking her up at school when classes were over, taking her to extra-curricular activities and picking her up when the activities had finished.  He said he loved X and would never sexually abuse her.  He denied having assaulted Y or thrown her belongings out of the flat.  He said Y simply left without saying anything and it was only some time later, when he indirectly learned that she was still going to work, that he realized she had not gone missing.  He admitted that he had changed the door lock, but he did that merely because some construction work was being carried out near his flat.  He maintained that he had never committed the offences with which he was charged.  He believed that X fabricated such serious allegations against him only because she had been misled by someone into doing so.
申請人說他對X照顧週全，上學、放學、參加課外活動申請人都管接管送。申請人指他愛錫X，不會侵犯她。申請人否認曾襲擊Y，否認將Y的物品扔出單位外。他指Y不辭而別，申請人祇是後來間接知悉Y仍有上班才知Y並非失踪。申請人指他曾更換門鎖，但祇是因為單位附近有工程才這樣做。申請人指他絕無干犯他面對的控罪，他認為X是受人誤導，才虛構如此嚴重的指控。

Findings made by the Deputy Judge
法官的裁斷

In his Reasons for Verdict, the Deputy Judge set out his assessment and analysis of the evidence as follows:
林‍法官在裁決理由書列出他對理據的評估及分析如下：

“Assessment and analysis of the evidence
「證據評估及分析

28.The prosecution bears the burden of proving beyond reasonable doubt each and every element of each of the offences charged.  I bear in mind that the evidence given by each witness in respect of each charge must be separately considered.  I have given myself directions as to the elements of the offence of indecent assault in accordance with the principles laid down in R v Court [1989] AC 28.
28.舉證責任在控方，控方必須在毫無合理疑點下，證明每項控罪的每一元素。本席謹記，必須獨立考慮每位證人所作關於每項控罪的證供。關於『猥褻侵犯』的罪行元素，本席已按照R v Court [1989] AC 28一案的法律原則，對自己作出指引。

29.The defendant has a clear record, and I have given myself appropriate directions as to his good character.  I understand that the evidence in this case is essentially in a state of “one against one”.  I also bear in mind that allegations concerning indecent assault are easy to make up but difficult to refute.
29.被告人過往沒有刑事紀錄，關於他的良好品格，本席已對自己作出適當的指引。本席明白，本案的證據基本上是『一對一』的情況。本席也謹記，『非禮』這類指控，容易捏造，但難於反駁。

30.I have carefully considered the evidence given by girl X and Madam Y and have observed their demeanour during the video-recorded interviews and when they were testifying at trial.  I find that they are frank, veracious and reliable witnesses.  I am satisfied that they have told the court the facts and the truth.
30.本席細心考慮了女童X和Y女士的證供，亦觀察了她們在錄影會面及庭上作供時的神情舉止。本席認為，她們均是實話實說、誠實可靠的證人。本席信納她們的證言道出了事實和真相。

31.On Charges 1 and 2, Ms. Yew, counsel for the defence, criticized Madam Y for being biased against the defendant, and submitted that in these incidents she harboured ulterior motives.  Discharging the functions of a juror, I take the view that [Madam] Y’s evidence is reasonable, logical and by no means exaggerated.  Although the husband and wife relationship between Madam Y and the defendant has clearly broken down, I do not see why Madam Y had to make up the allegations in order to strengthen her case in the proceedings for divorce and child custody.  She is a nurse by profession.  Indeed, as far as the custody of X, who is soon approaching puberty, is concerned, the fact that Madam Y is a nurse by profession, has a stable source of income, is the mainstay of the family and is a female, does prima facie give her an advantage over the defendant.  At trial, in response to my question of whether she had thought of calling the police on 13 October 2009, Madam Y said, ‘No, because it was not the first time.  I did not think that the police could help me.  I just thought that the defendant had to see a doctor.’  While Madam Y is not a psychiatric expert, she certainly possesses more medical knowledge than an ordinary housewife does (even more than I do).  I endorse her observation and the way she dealt with the incident.
31.關於控罪一和二，辯方姚大律師批評，Y女士對被告人存有偏見，並在相關事件中，存有其他動機（ulterior motive）。身為陪審員，本席認為，Y女[士]的證言合情合理，絕無半點誇大。無疑，Y女士與被告人的夫妻關係已破裂，但本席相信，Y女士無須虛構一些指控，來鞏固自己在離婚案和撫養權的利益。她既是專業護士，又有穩定工作和收入，一直是家庭經濟支柱，還是女性，從撫養快將步入青春期的女童X的角度而言，表面上的確較被告人優勝。本席曾在庭上詢問Y女士，2009年10月13日當天，有沒有考慮報警求助。Y女士回答：『沒有，因為不是第一次。我不覺得警察能幫助我，我只認為，被告人需要見醫生。』雖然Y女士並非精神科專家，但她的醫學知識，肯定較一般家庭主婦（甚至本席）豐富。本席認同Y女士的觀察及處事手法。

32.As for Charges 3 to 6, Ms. Yew made extensive adverse comments about the hidden motives of girl X and Madam Y.  In brief, Ms. Yew submitted that girl X, abetted by Madam Y and in hopes of leading a more pleasant life and enjoying more ease and comfort, fabricated the stories to frame up the defendant.  The interview of girl X alone by the social worker Lau, in which she for the first time made the relevant complaint, was (Ms. Yew said) ‘a meticulously designed arrangement’.  Ms. Yew was undoubtedly performing her duty as a responsible counsel, but I think her proposition is grossly exaggerating the self-interests (if any) of girl X and Madam Y and their bias (if any) against the defendant, and is in lack of factual support.  Discharging the functions of a juror, I consider that, however desirous girl X might be of living with her mother, it would suffice for her to express her wish to the social worker Lau (or even to a judge of the Family Court).  There was absolutely no need for her to weave such stories to drive her own father into this hopeless predicament.  No matter how scheming and calculating Madam Y might be, would X, who was only nine years old at the time of the offences, have the ability to coordinate her actions with her mother’s? Would she be capable of telling the same lies consistently on various occasions?  I have observed X’s behaviour and heard what she said during the video-recorded interviews and at trial.  Unless she was an extraordinarily skilful actress, her sincere attitude and her evidence were not things that she could feign.
32.關於控罪三至六，姚大律師對女童X和Y女士背後的目的，作出了很多批評。簡單說，姚大律師認為，女童X是受了Y女士的唆擺，為了能過一些較舒適的生活和獲得較好的享受，才砌詞誣捏被告人。而安排女童X與劉社工單獨會面時，首次作出相關投訴，更是『一次精心的設計』。本席認為，姚大律師無疑盡責，但她的理論，未免把女童X和Y女士的私心和對被告人的偏見（如有的話）無限上綱了，亦欠缺事實支持。身為陪審員，本席認為，無論女童X何其希望能與母親同住，她只須向劉社工（甚至家事法官）表達其意願，便十分足夠了，絕對沒有必要無中生有，把親生父親陷於萬劫不復之地。即使Y女士如何攻心計，如何精於計算，案發時只有9歲的女童X，有能力配合母親嗎？有能力貫徹始終在不同場合重複地說同一謊話嗎？本席耳聞目睹女童X在錄影會面及庭上的表現，除非她具超凡演技，否則她真誠的態度和證言，是裝不出來的。

33.I do not consider the defendant’s evidence credible.  Just by looking at the reason he gave for Madam Y’s unexplained desertion of her husband and daughter and her running away from home, one can see he was hiding something or making up a story.
33.關於被告人的證言，本席認為不可信。單是他指稱Y女士無故拋夫棄女，離家出走的原因，便可顯出他有所隱瞞或砌詞狡辯。

34.On 24 September (Friday) of this year, before adjournment of the trial I asked the defendant whether he, up to that moment, knew why Madam Y left him and their family.  His instant reply was: ‘I’m not sure about the exact reason, but I have my views on that.’  After the weekend, on 27 September (Monday), once the trial resumed the defendant talked ceaselessly, supplying a whole lot of reasons for his suspicion that Madam Y had an extra-marital affair.  Ms. Yew criticized Madam Y for deliberately vilifying the defendant in the course of testifying.  However, in my view exactly the opposite happened.  In fact Madam Y showed great restraint when she was giving evidence.  She just frankly described what happened, calling a spade a spade and using words which were direct and to the point.  On the other hand, I feel that the defendant had tried to deliberately vilify Madam Y by describing her as a vicious woman who deliberately planned to abet his daughter in framing him up.  He also made a seriously wrong move by changing the door lock of the flat.  If he was longing so much for her wife to change her mind and to return home, why did he change the door lock?  Furthermore, although he was in financially dire shape, he still paid about $2,000 so that he and his daughter could go to the Mainland to help the poor.  I find this  difficult to understand.
34.本席於本年9月24日（星期五）散庭前曾詢問被告人，直至該刻，他知否為何Y女士要離開他或這個家。他即時的回應是：『確實原因未必知，但我有諗法。』過了周末，9月27日（星期一）剛開庭，被告人便滔滔不絕，自行補充了一大堆他懷疑Y女士有外遇的理由。姚大律師曾批評Y女士，作供時刻意詆譭被告人。但本席認為，實情剛剛相反。Y女士作供時其實十分克制，有碗話碗，有碟話碟，措詞亦相當中肯。反而，本席感到被告人刻意在庭上抹黑Y女士，把她形容為如何處心積慮地唆擺女兒去誣捏他的歹毒婦人。此外，把家門的鎖換了也是一大敗筆。既然無比渴望妻子回心轉意返家，又何故把門鎖換掉？還有，即使經濟拮据，也要支付約2,000元，讓父女二人一起到內地扶貧。這一點，亦難以理解。

35.For the above reasons, I harbour doubts about the credibility of the defendant’s evidence, which I reject accordingly.
35.基於上述各項理由，本席對被告人證供的可信性存疑。本席拒絕信納被告人的證言。

36.I firmly believe that girl X and Madam Y had been molested or assaulted by the defendant at the times and places specified in the six charges and in the way and manner as described by them in their respective evidence.  Discharging the functions of a juror, I find that the assaults in relation to Charges 3 to 6 are plainly indecent.  In other words, the prosecution has proved the six charges beyond reasonable doubt.  The defendant is convicted on Charges 1 to 6.”
36.本席深信不疑，女童X和Y女士的確分別於6項控罪所指的日期及地點，遭被告人侵犯或襲擊，過程和手法就如她們各自的證供所描述。身為陪審員，本席認為，控罪三至六的侵犯行為，明顯全屬『猥褻』。換句話說，控方已就6項控罪舉證至毫無合理疑點。本席裁定，被告人就控罪一至六，罪名成立。」

Grounds of appeal
上訴理據

Ms. Sylvia Lee, counsel for the applicant, put forward three grounds of appeal to support the contention that the convictions are unsafe and unsatisfactory.  In essence, her complaints are that the Deputy Judge erred in assessing the evidence of X and Y and failed to sufficiently consider the applicant’s evidence, as a result of which the Deputy Judge  erroneously drew inferences adverse to the applicant and rejected his evidence.
申請人代表李‍曉‍華大律師共提出三項上訴理據指定罪不安穩。基本上申請人指原審法官一方面錯誤處理X及Y的證供，另一方面未有充分考慮申請人的證供而錯誤對申請人作出不利的推論，並因此不接納申請人的證供。

Referring to X’s video-recorded interviews and her testimony, Ms. Lee pointed out that, in respect of her allegations of having been molested by the applicant, there were discrepancies as to how many occasions of such molestations there had been, when they happened and whether she was wearing a pyjama jacket, but the Deputy Judge did not address such discrepancies.
李‍大律師引述X的錄影會面及在庭上的證言，指X就她指稱被申請人侵犯的事宜，不論在次數、時間及有否穿上睡衣方面有分歧，但法官並無處理有關分歧。

Ms. Lee also submitted that the Deputy Judge paid no regard to the fact that the person to whom X made her complaint for the first time was a male social worker, not her mother Y.  She said that this part of her evidence was irrational ——   particularly so because X had read about and was aware of the story of “Little Butt Butt”, a victim of sexual assault.
李‍大律師亦指法官無考慮X首次作出投訴是向一名男性社工，而非向她母親Y，此部份的證供不合情理——尤其是X當看過及知道「小畢畢」的故事，有關故事是關乎小畢畢被性侵犯的。

Furthermore, X said in court that, as requested by the applicant, she  “put on a show” in front of the social worker Mr. Lau by pretending to look happy, when in fact she was not happy.  Ms. Lee submitted that the Deputy Judge did not sufficiently consider the possibility that X might have been influenced by Y or a third person to “put on a show” and make up the incidents of her having been molested by the applicant.
另外，由於X在庭上聲稱她因應申請人要求而在社工劉‍先生面前「做戲」，表現開心，但其實她並不開心，李‍大律師指法官無充分考慮X亦有可能在Y或第三者影響下「做戲」，虛構被申請人侵犯此事件。

With reference to Y’s evidence, Ms. Lee argued that the Deputy Judge erroneously inferred that it was “not necessary” for Y to make up allegations as she had certain advantages over the applicant as far as X’s custody was concerned.  The Deputy Judge did not have all the information about the divorce between Y and the applicant, and it was not the case that the Family Court would certainly give judgment in favour of Y.   It was therefore not certain that it would not be “necessary” for Y to invent the allegations in order to strengthen her interests.
就Y的證供，李‍大律師指林‍法官錯誤推斷Y在就X的撫養權問題較申請人優勝而「無必要」虛構一些指控。在案中，法官並沒有關乎Y與申請人離婚的所有資料，Y在家事法庭的勝算並非必然，故此Y亦不一定「必然」無須虛構指控以鞏固她本人的利益。

Ms. Lee complained that the Deputy Judge erred in accepting, on the basis that Y had medical knowledge, Y’s way of dealing with the assault by the applicant ——  i.e. neither calling the police nor seeking medical treatment ——   as correct.
李‍大律師亦投訴林‍法官錯誤以Y有醫學知識而錯誤接納Y就據稱曾被申請人打仍不報警或就醫此方面的處理方法。

As to Y’s conduct, namely that for 10 odd days after she left home she did not contact the applicant or call the police and was content to leave her daughter X alone with the applicant, Ms. Lee submitted that Y’s explanation did not make sense, but that the Deputy Judge failed to consider and properly deal with Y’s testimony in that regard.
李‍大律師指Y在離家後十多天不聯絡、不報警及放心留女兒X與申請人一起所作的解釋不合情理，但林‍法官無考慮及適當處理Y的證言。

As for the applicant’s evidence, Ms. Lee’s complained that the Deputy Judge had been unfair to him by giving weight to the elaborations the applicant made at the post-weekend resumed hearing on the reasons for Y’s going away without saying anything.
就申請人的證供，李‍大律師投訴林‍法官著重申請人在週末後再開庭時給予更詳盡的理由為何Y不辭而別此方面的證供，對申請人不公平。

Ms. Lee also submitted that the Deputy Judge improperly relied on the fact that the applicant and X had gone to Qing Yuan to help the poor as a reason for finding that the applicant’s evidence was incredible.
李‍大律師亦指林‍法官以申請人與X曾往清遠扶貧此事件作為申請人不可信的理由是不妥當的。

Ms. Lee also said that even if the Deputy Judge considered, from a broad perspective, that the applicant’s changing the door lock was “a seriously wrong move”, it was not a sufficient reason for finding that the applicant’s evidence was wholly incredible.
李‍大律師亦指即使林‍法官以宏觀角度來看，認為申請人將門鎖換了是「一敗筆」，但此理由不足以裁定申請人的證言全不可信。

Discussion
討論

With respect, the Deputy Judge’s Reasons for Verdict are in our view too brief.  Having set out the prosecution case and the defence case, he simply remarked in paragraph 30 that having carefully considered the evidence of X and Y and had observed their demeanour in giving evidence, he considered them frank, veracious and reliable witnesses.  The Reasons for Verdict were silent on X’s accounts (as given in her two recoded interviews in February and April 2010 respectively and in her testimony at trial) of how many times she had been molested, when the molestations took place and whether she was wearing a pyjama jacket.  Nowhere in the Reasons for Verdict did the Deputy Judge indicate how he dealt with the discrepancies in what X said.
本庭認為林‍法官的裁斷理由太簡單。基本上林‍法官在描述控辯雙方案情後，祇是在第30 段說他細心考慮了X及Y的證供及觀察她們作供時的神情舉止，認為她們均是實話實說，是誠實可靠證人。林‍法官對X曾在2010 年2 月及4 月的兩次錄影會面紀錄及在庭上的證言就被侵犯的次數、時間及有否穿上睡衣確是一字不提，完全無顯示他如何處理有關分歧。

In Zhuo Cui Hao v Ting Fung Yee, Chan CJHC (as he then was) had this to say about the duty of a judge to give reasons for his decision (at 632H):
在周翠好訴丁鳳儀一案，高等法院首席法官陳‍兆‍愷 (當時官階) 就法官須給予判決理由如此說 (第632 頁H 行) ：

“Generally speaking, a professional judge is under a duty to analyse in his judgment the material points in the evidence of the case and give reasons as to why he has reached a particular conclusion or decision.  This is the only way to make people understand why their evidence is not accepted by the court and why they lose in a case.  Only by this can justice be seen to be done.  Furthermore, the losing party needs to be clear on whether there is any error in the reasons for the decision given by the court before he can decide whether to appeal or not, and, at a later stage, submit to the Court of Appeal his grounds of appeal in order to seek to set aside the original decision.  A professional judge is under a duty to give adequate reasons for any decision which he has made.  This is a principle of paramount importance in the common law system.  This principle is quite clear. ….”
「一般來說，一位職業法官有責任在判詞中分析案中証供的要點，並提出理由解釋為何達到某一個結論或裁決。只要這樣做才能使人明白為何自己的証供不受法官接納，自己的案件為什麼不能成功。這樣才可以彰顯司法公正。再者，敗訴一方是需要清楚知道法官判決的理由有什麼地方出錯，才可以決定是否提出上訴，及其後向上訴法院提出理據進行上訴以求推翻原來的判決。職業法官是有責任就他所作出的判決提出充份的理由，這是普通法制上一個十分重要的原則。這個原則是非常明確的。….」

Although Zhuo Cui Hao is a civil case, the above passage is in our view also applicable to criminal cases.
雖然上述案件是一宗民事案件，但本庭認為上述判詞適用於刑事案件。

In HKSAR v Kevin Egan, Litton NPJ expressed his views, with which Bokhary PJ agreed, on how a judge should approach the task of fact finding.  Litton NPJ quoted (at paragraph 303 of his judgment) the following passage from the judgment of Blair-Kerr SPJ in Kowloon Motor Bus Co. (1933) Ltd v Kong Tung (a civil suit which is also applicable in a criminal case):
在HKSAR v Kevin Egan一案，終審法院非常任法官列‍顯‍倫就法官應如何處理事實裁定給予他的看法，而常任法官包‍致‍金亦認同有關看法。列‍顯‍倫法官引述前香港高級副按察司百‍里‍渠在Kowloon Motor Bus Co. (1933) Ltd v Kong Tung (一宗民事案件，但適用於刑事案件) 的判詞 (判詞第303 段) ：

“I cannot leave this case without repeating what I have said on numerous occasions during the last 10 years viz. that it is of the first importance that every judge of fact should indicate clearly in his judgment not only his findings of fact - primary and inferential - but, as regards his findings of primary fact, to what extent these are based on the view which he has formed of the witnesses’ demeanour and on what he regards as the inherent probabilities and improbabilities of the conflicting stories.”
“I cannot leave this case without repeating what I have said on numerous occasions during the last 10 years viz. that it is of the first importance that every judge of fact should indicate clearly in his judgment not only his findings of fact - primary and inferential - but, as regards his findings of primary fact, to what extent these are based on the view which he has formed of the witnesses' demeanour and on what he regards as the inherent probabilities and improbabilities of the conflicting stories.”

In short, Blair-Kerr SPJ was trying to emphasize  this salient point:  The trial judge should not only clearly state the facts, whether primary or inferential, which he finds to be proven.  As regards primary facts, he should spell out to what extent his views are based on the witnesses’ demeanour and to what extent they are based on inherent probabilities and improbabilities of the conflicting stories.
簡而言之，前香港高級副按察司百‍里‍渠強調以下重點：主審法官不單要將他裁定為事實的事實清楚道出——不論是基本事實或推論而得的事實，就基本事實，法官的看法究竟有多少是基於證人的神態舉止，有多少是基於分歧版本的潛在可能性或不可能性，法官亦須明言。

Litton NPJ also described (at paragraph 304 of the judgment) the procedures to be followed by the judge in making findings of fact :
列‍顯‍倫法官亦就法官作出事實裁定的步驟為何 (判詞第304 段)說 ：

“304.Fact finding by a tribunal is a forward moving process.  At the starter’s line are the primary facts relevant to the indictment (or to the pleadings in a civil suit).  Most of these, generally speaking would be non-controversial.  From these, a picture of the inherent probabilities will often emerge … the tribunal would then move on to evaluate the disputed evidence.  ‘Evaluate’ means just that: To measure, to weigh.  Not every piece of evidence has equal weight. … When a tribunal in giving judgment recites the testimony of a witness and says ‘I accept him as a truthful witness’, this is not evaluation:  It is a conclusion which might be reached at the end, after weighing the relevant evidence.”
“304.Fact finding by a tribunal is a forward moving process.  At the starter’s line are the primary facts relevant to the indictment (or to the pleadings in a civil suit).  Most of these, generally speaking would be non-controversial.  From these, a picture of the inherent probabilities will often emerge … the tribunal would then move on to evaluate the disputed evidence.  ‘Evaluate’ means just that: To measure, to weigh.  Not every piece of evidence has equal weight. … When a tribunal in giving judgment recites the testimony of a witness and says ‘I accept him as a truthful witness’, this is not evaluation: It is a conclusion which might be reached at the end, after weighing the relevant evidence.”

The gist is that fact finding is a forward moving process, which starts with the primary facts relevant to the indictment.  On the basis of these facts, views on inherent probabilities are formed.  The judge should then evaluate the disputed evidence, which means to measure and weigh the evidence.  Not every part of the evidence carries equal weight.  When the judge simply recites the evidence of a witness and says he finds the witness to be a truthful witness, he is just stating the conclusion he has reached after the evaluation.
大意是事實裁定是一項前進的步驟，起點是與公訴書有關的基本事實，從基本事實便引伸潛在可能性的事宜。法官繼而須評估證供分歧之處。評估是指權衡輕重，並非每部份的證言都具同等份量。當法官祇是將證人證言道出，然後說他信納該證人是真誠的證人，法官祇是道出評估後的結論。

At paragraph 386 of his judgment, when commenting on the adequacy of reasons given by the judge, Gleeson NPJ quoted the dictum of the then Li CJ in Oriental Daily Publisher Ltd v Commissioner for Television & Entertainment Licensing Authority:
而終審法院非常任法官紀‍立‍信就裁決理由是否充足此範疇有以下的看法。紀‍立‍信法官引述Oriental Daily Publisher Ltd v Commissioner for Television & Entertainment Licensing Authority前終審法院首席法官李‍國‍能的判詞 (判詞第386 段) ：

“Where there is a duty to give reasons, it must be discharged by giving adequate reasons.  What would amount to adequate reasons for a decision would depend on the context in which the decision maker is operating and the circumstances of the case in question.”
“Where there is a duty to give reasons, it must be discharged by giving adequate reasons.  What would amount to adequate reasons for a decision would depend on the context in which the decision maker is operating and the circumstances of the case in question.”

The gist is that if the judge is obliged to give reasons, he must give adequate reasons.  Whether the reasons are adequate is to be determined in light of the context in which the decision is made and all the circumstances of the case in question.
大意是若有需要給予理由，則理由必須充分。理由是否充分要因應作出裁斷者是在何範疇作出裁斷及有關案件的所有情況而決定。

At paragraph 387 of his judgment, Gleeson NPJ also cited the Australian case of AK v State of Western Australia and said:
紀‍立‍信法官亦引用澳洲案例AK v State of Western Australia說 (判詞第387 段) ：

“387.The adequacy of reasons in the circumstances of a particular case is to be considered in the light of the purposes that are served by the obligation to give reasons.  It promotes good decision-making, and the acceptability of decisions to the public.
“387.The adequacy of reasons in the circumstances of a particular case is to be considered in the light of the purposes that are served by the obligation to give reasons.  It promotes good decision-making, and the acceptability of decisions to the public.  It means that the parties are given an explanation of the outcome.  It serves the interests of the parties and the public by facilitating appropriate appellate supervision.”

It means that the parties are given an explanation of the outcome.  It serves the interests of the parties and the public by facilitating appropriate appellate supervision.” The gist is that whether the reasons given are adequate is to be judged according to the purpose for which the duty to give reasons is imposed.  Adequate reasons help develop the correct decision making process, thereby enhancing the acceptability of decisions to the public.  It serves the interests of the parties, who are given an explanation of the outcome.  It also serves the interests of the public by facilitating supervision by the appellate court.
大意是理由是否充分會因應有需要給予理由此責任的目的為何？給予充分理由有助於培養正確的作出決定的思維過程，令有關決定更能為大眾接受。涉案各方亦獲得解釋為何有該結果。此做法對涉案各方有利，亦因方便上訴法庭作出監察而令公眾得益。

It is not necessary for us to detail here the discrepancies in the evidence in the present case.  However, as a matter of fact, there are differences between what X said in her video-recorded interviews in February and April 2010 and what she said in testimony at trial: Did the applicant molest her every night; or about six nights a week; or sometimes he did, sometimes he did not, but most of the times he did molest her?  Did he molest her between 9.30 p.m. and 10 p.m. or at a later time by reason of her swimming lessons or otherwise?  And significantly, why did she say during the video-recorded interview in February 2010 that every time the appellant put his hand into her pyjama jacket and touched her breasts, but allege during her second video-recorded interview that sometimes the appellant touched her when her upper body was naked?
本庭認為無須在此詳細列出本案中證供的分歧。但事實上X在2010 年2 月及4 月的錄影會面及其後在法庭的證供曾給予不同版本：究竟是每晚都侵犯她？抑或是1 星期約6 晚？抑或是有時無，但大多數會有侵犯她呢？究竟是在晚上9 時半至10 時，抑或有時因游泳訓練或其他情況而在稍後時間才侵犯她呢？或重要的是，為何她在2010 年2 月的錄影會面祇說每次申請人都伸手入她睡衣摸她的乳房，但在第二次錄影會面便指稱有時她是上身赤裸被申請人摸呢？

At trial, counsel for the applicant had brought out all the above discrepancies when she was cross-examining X, but the Reasons for Verdict were silent on this matter.
上述範疇在審訊時申請人的代表律師在盤問X時已將分歧處一一帶出，但林‍法官完全無在裁決理由書處理上述事宜。

There are special features which set the present case apart from other sexual assault cases.  The undisputed facts were that ever since the birth of X, the applicant had been her principal carer.  He took care of her daily life, took her to school and other activities and picked her up after school and when such activities were over; whereas Y was the sole breadwinner of the family and worked irregular hours.  X had been sleeping with the applicant on the same bed since childhood.  It is not the case that the applicant suddenly wanted X to sleep with him after Y left home.
本案的案情較其他性侵犯事件有其獨特之處。不爭的事實是申請人自X出生以來便是X的主要照顧者，負責X的起居飲食，管接管送；而Y是家庭唯一的經濟支柱，工作不定時。X自幼已經與申請人同床睡覺，而並非在Y離開後申請人才突然要求X與他同睡的。

Admittedly, X was only a nine year old girl.  Of course, the Deputy Judge might have thought that for X, a girl aged no more than nine who had been repeatedly assaulted by the applicant, it was not surprising for there to be some confusion in her evidence.  Still, he should have indicated in his Reasons for Verdict that he had taken the discrepancies into account and explained how he dealt with them.
誠然，林‍法官可能認為X祇是一名9 歲女童，而根據X的證言，‍她被申請人侵犯多次，其中有混淆並不奇怪，但法官應在裁決理由書中顯示他曾作考慮及如何處理有關分歧。

Furthermore, the picture which X painted was that she did not see her mother X for a few days and then the applicant suddenly assaulted her, and thereafter went on to assault her many more times.  Sometimes he even touched her breasts when her upper body was naked.  This being the case, why did she say during the first video-recorded interview that “every time” the applicant put his hand into her pyjama jacket and touched her, without making any mention of her clothes being taken off?  The Deputy Judge never addressed these contradictions.
再者，從X的角度來看，申請人在她沒有見到媽媽Y幾天後突然侵犯她，其後甚至多次侵犯她，甚至有時在她上身赤裸情況下摸她的乳房，為何她在首次錄影會面說申請人「次次」都是伸手入她睡衣內摸她，而完全不提及有脫衣的情況呢？林‍法官完全沒有處理此方面的矛盾。

The evidence showed that notwithstanding Y’s departure, X and Y had met and had even stayed together for a short period of time, but X had never told Y —— Y being her mother whom she trusted and loved very much  —— that after Y left, X’s father (the applicant) unexpectedly began to repeatedly assault her.  Although X was aware of the story about Little Butt Butt (“Don’t let others touch your private areas.  If anyone does that to you, you must immediately inform someone you trust”), she did not tell her mother Y what had happened to her, but instead made her first complaint only when she was interviewed by a man, i.e. the social worker Mr. Lau.  It appears that the Deputy Judge did not sufficiently consider whether X’s evidence was credible and reliable.
證供顯示自Y離開後，X與Y有見面，亦曾試過與Y一齊住宿短時間，但X從無將其父 (即申請人) 突然在母親Y離開後開始多次侵犯她一事，告知母親Y——而母親Y是她信任及深愛的人。X知悉「小畢畢」故事 (不要讓他人摸私人地方，遇事立刻告知信任的人)；她不向媽媽Y道出，反而是在會見社工劉‍先生 (一名男子) 時才首次向他道出。林‍法官看來沒有充分考慮X所言是否可信可靠。

In court, X addressed the applicant as “that bad guy”, the reason being that the applicant kept asking Y for maintenance instead of going to work (line E on page 232 of the appeal bundle).  X had some hate for the applicant (line U on page 336 of the appeal bundle).  X admitted that she felt a bit embarrassed because she was accompanied by her father in extra-curricular activities, whereas most of her schoolmates were accompanied by their mothers.  She was also somewhat sensitive to the difference between her family conditions and those of other children, in that the fathers of other children went to work and their mothers stayed at home, but in her case it was the opposite (line M on page 228 of the appeal bundle).  The applicant, being out of work, had more time to urge her to take part in extra-curricular activities, and for this reason she slightly felt that she was forced to do so (line G on page 201 of the appeal bundle).  It was against this background that she made her first complaint to the social worker Mr. Lau.  The Deputy Judge had to seriously consider whether X had made up the stories with a motive  to get what she wanted, i.e. to live with her mother Y.
X在庭上用「嗰個衰人」來形容申請人，理由是申請人不去工作，靠問Y拿贍養費 (上訴文件第232 頁E 行)，X有點憎恨申請人 (上訴文件第336 頁U 行)。X‍承認她本人因父親與她一起參加課外活動，而其他同學則多數與母親前往，令她感到有點兒尷尬。她亦覺得其他小朋友的父親工作，母親留在家，而她則剛剛相反而有少少感到她家中情況與人不同 (上訴文件第228 頁M 行)。她有少少覺得申請人無工作，有較多時間去要她參加活動，覺得被逼 (上訴文件第201 頁G 行)。在此背景下，她首次作出投訴是向社工劉‍先生，林‍法官須認真考慮X是否有動機虛構事件，好讓她得償心願，與母親Y同住。

In this regard, the Deputy Judge said:
林‍法官在此範疇說：

“32..… however desirous girl X might be of living with her mother, it would suffice for her to express her wish to the social worker Lau (or even to a judge of the Family Court).  There was absolutely no need for her to weave such stories to drive her own father into this hopeless predicament. ….”
「32.…. 無論女童X何其希望能與母親同住，她只須向劉‍社工 (甚至家事法庭) 表達其意願，便十分足夠了，絕對沒有必要無中生有，把親生父親陷於萬劫不復之地。….」

In the present case, there was no evidence that X knew or believed that it would suffice for her to express her wish to the social worker.  Given the special circumstances of the case, the Deputy Judge should have considered whether it was possible for X to make up stories in order to fulfill her hope of living with her mother, and not whether there was “no need” for X to fabricate such stories.  It must be noted that there was no evidence to corroborate X’s allegations.  We are of course aware that the prosecution was not required to adduce corroborative evidence.  However, it would have been easy for X to make the allegations in question; in particular, according to her, the circumstances of each incident of assault were essentially the same, the only difference being that sometimes her upper body was naked.  In these circumstances, the Deputy Judge must be even more careful in considering whether X’s evidence was reliable and credible.
在本案，無證據顯示X知悉或相信她祇要將其意願向社工表達便足夠。以本案的特殊背景，林‍法官應考慮是否有可能X為了達到能與母親同住而作出虛假指控，而非X是否「沒有必要」無中生有。須知X的指控是無任何佐證的。本庭當然知曉控方無須提供佐證，但事實上X要作出指控亦很容易：尤其是以她所言，基本上每次侵犯的情況完全一樣，祇是有時上身赤裸。在此情況下，林‍法官須更加小心考慮X的證言是否可靠可信。

Moreover, as X admitted that she had “lied” and that she had “put up a show” in front of the social worker Mr. Lau by pretending to look happy, the Deputy Judge should have indicated in his judgment that he had considered whether X might have made false statements in the present case.
再者，既然X承認她曾「說謊」，曾在社工劉‍先生面前「做戲」、假作開心，林‍法官應在判詞顯示他曾考慮X會否在本案亦是作出虛假陳述。

In relation to Y’s testimony that the applicant had twice assaulted her, we think that the Deputy Judge wrongly took into account the factor that Y had a greater prospect of success than the applicant did (paragraph 31 of the Reasons for Verdict).  There was no evidence that Y knew or believed she was in a more advantageous position than the applicant was.  In fact, Y gave evidence that her solicitor had advised her that she “must have a stable and secure home, and a well thought-out proposal for the care of your child” before the court would consider “granting [custody of] the child” to Y (lines O to Q on page 247 of the appeal bundle).
就Y有關申請人兩次襲擊她的證言，本庭認為林‍法官錯誤考慮Y的勝算較申請人高此範疇 (裁決理由書第31 段)。無證據顯示Y知悉或相信她較申請人有優勢。事實上Y作證時曾表示她的律師曾告知她，她「要有安定居所、有完善照顧小朋友方案」，法庭才會考慮「判小朋友」給Y (上訴文件第247 頁O至Q 行)。

X had been in the care of the applicant since birth.  Y said in the witness box that the legal advice she obtained was that she had to prepare her case properly in order to have a chance to be granted custody of X. The factual basis relied on by the Deputy Judge in ruling out the possibility of Y having made up allegations against the applicant, namely that Y enjoyed certain advantages over him, was unsound.
X自出娘胎已由申請人照顧，Y在作證時亦表示以她得到的法律意見是她要做好工夫才有機會成功獲得X的撫養權，林‍法官以Y較申請人優勝此理由來否定Y有可能虛構指控，他所用的事實基礎並不穩妥。

In the present case, the applicant elected to give evidence.  His case was in essence a categorical denial of the allegations of X and Y.  He did not have any solid evidence that X and Y falsely accused him.  He only surmised that X and Y had fabricated the allegations by reason of the issue of X’s custody.
在本案，申請人選擇作證。基本上申請人是全盤否認X及Y的指控。申請人無任何實質證據顯示X及Y誣告他，他祇是猜測X及Y是因為X的撫養權問題而虛構有關指控。

The burden of proof was on the prosecution.  If what the applicant said was true or might be true, then the prosecution had not successfully discharged that burden.
舉證責任在控方，若申請人所言屬實或有可能屬實，控方便未能成功舉證。

In rejecting the applicant’s evidence, the Deputy Judge did specifically mention the fact that the applicant had taken X to Qing Yuan to help the poor.  He considered such behaviour of the applicant “difficult to understand” (paragraph 34 of the Reasons for Verdict).
林‍法官在拒納申請人的證言時，確是特別提及申請人帶X前往清遠扶貧此行，認為他此舉「難以理解」(裁決理由書第34 段)。

The applicant and X’s trip to Qing Yuan was an admitted fact.  Even before Y went away, the applicant had already been performing voluntary work.  The fact that he had taken X to Qing Yuan had nothing to do with whether he had assaulted X.  Had the facts shown that the assaults were committed only in places outside Hong Kong and that the applicant had taken X out of Hong Kong on a pretext in order to create an opportunity to molest her, the situation might well have been different.  However, on the facts, X slept with the applicant most of the time, and according to X, most of the assaults took place at her home in Hong Kong.  Whether the applicant had taken X to do help-the-poor work notwithstanding his financial difficulty was not a factor that the Deputy Judge should take into consideration.  As the Deputy Judge wrongly considered whether the Qing Yuan trip was “understandable” in terms of its financial impact, we cast doubt as to the propriety of his rejection of the applicant’s evidence.
申請人帶同X前往清遠是承認事實。申請人在Y離家前已參與義工活動，他帶X前往清遠與他曾否侵犯X根本無關。若案情顯示侵犯事件祇是在香港以外的地方發生，申請人借故帶X外遊，藉以製造機會侵犯她，情況會有不同。但在本案，X根本大部份時間是與申請人同睡，而根據X所言，絕大部份的侵犯事宜亦在香港家中發生。申請人是否在經濟拮据下仍帶X前往扶貧，林‍法官根本不應納入考慮之列。由於林‍法官錯誤考慮了清遠之行在經濟方面是否「可理解」，令本庭質疑林‍法官是否恰當拒納申請人的證言。

In our judgment, the Deputy Judge had not properly considered the evidence in the present case.  It was on unsound bases that he accepted the evidence of X and Y and rejected the applicant’s evidence.  It follows that the convictions are unsafe and unsatisfactory.
本庭認為林‍法官無恰當考慮本案的證據，他信納X及Y證供的基礎及他拒納申請人證供的基礎不當，定罪的基礎因而不安穩。

For the above reasons, we grant leave to appeal and, treating the application as the appeal proper, we allow the appeal, quash all the convictions and set aside all the sentences.
基於上述理由，本庭批准上訴許可申請，並視之為正式上訴。上訴得直，所有定罪及判刑撤銷。

Ms. Virginia Lau, Senior Public Prosecutor of the Department of Justice, for the HKSAR.
答辯人：由律政司高級檢控官劉少儀代表香港特別行政區。

Ms. Sylvia Lee, instructed by Messrs. Lee Wong & Co., for the Applicant.
申請人：由李氏律師行轉聘李曉華大律師代表。