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HCMA000303/2002
HCMA 303/2002
香港特別行政區
高等法院原訟法庭
刑事上訴司法管轄權
判罪及減刑上訴
案件編號：高院裁判法院上訴案件2002年第303號
（原西區裁判法院案件2001年第10194號）
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主審法官： 高等法院原訟法庭暫委法官王見秋
聆訊日期： 2002年11月15日
裁決日期： 2002年11月15日
判案書日期： 2002年12月9 日
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判案書
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1．本庭於2002年11月15日批准上訴人的上訴，將原來的企圖入屋犯法罪改判外出時備有偷竊用的物品罪罪名成立。裁判官所頒的勞教所命令改為感化令，為期12個月。本庭現在頒布理由。
2．上訴人潘廣俊在裁判法院經審訊後原本被裁定企圖入屋犯法和外出時備有偷竊用的物品兩項控罪罪名成立。其實兩項控罪是交替性，故此，裁判官在覆核時，裁判官把“外出時備有偷竊用的物品”定罪擱置，而就“企圖入屋犯法”罪的定罪及“勞教所命令的刑罰，則維持不變。
3．實惠家居乃一售賣家居用品店舖，位於香港西環卑路乍街176-122號地下後巷。控方案情顯示於2001年8月30日晚上11時57分，兩名警員因接獲指示，到場處理一宗防盜鐘響動事件。當該兩名警員從一座建築物旁的後巷入口進入該後巷查看，該後巷是一掘頭路，即時上訴人正從後巷跑出，雙方打了個照面後，上訴人馬上把背於右膊的背囊和手持的罐裝飲品拋於地上，並轉身逃跑，警員將他喝止及截停。在被查問有甚麼事情發生時，上訴人說：「剛才我曾拉過一道門，想看該門有沒有鎖着，如果沒有（鎖）的話，便打算入內，如有合適的東西便拿取返家（用）。」隨着警員警誡上訴人，上訴人懇求給他一次機會。在上訴人棄置地上的背囊，警員打開看到一把黑色和一把紅色手柄的鉗，上訴人承認鉗乃打算用作撬門鎖用的。
4．上訴人選擇作供，並傳召數名證人。
5．裁判官接受控方證人證供，不接納辯方證供。所以並不需要對辯方證供重覆。
6．代表上訴人的駱應淦資深大律師質疑審訊以兩項不同的控罪作為基礎是否適當，這個問題已經不存在，因為在覆核時，裁判官已作出相應的更正。現在的問題是有沒有足夠證據可以支持“企圖入屋犯法”的控罪，如果沒有又有沒有足夠證據可以支持擱置了的“外出時備有偷竊用的物品”的交替罪，駱大律師認為證據可以支持第二項控罪，也不反對這樣做法。
7．《刑事罪行條例》第159G（1）條這樣陳述：
“如任何意圖犯本條所適用的罪行的人作出的某項作為己超乎只屬犯該罪行的預備作為者，則該人即屬企圖犯該罪行。”
值得注意的是“已超乎”這三個字。
8．駱大律師又倚賴R v Geddes (1996) Criminal Law Report 894一案的判例：
“Court of Appeal (Criminal Division): Lord Bingham C.J., Ognall and Astill JJ.: June 25, 1996.
The appellant was convicted of attempted false imprisonment contrary to section 1(1) of the Criminal Attempts Act 1981. He had been seen by a teacher in the boys' lavatory block of a school. He had no connection with the school and no right to be there. He had a rucksack with him. A woman police officer who was, by chance, on the premises saw him and shouted at him, but he left. In a cubicle in the lavatory block there was a cider can which had belonged to the appellant. His rucksack was later found in some bushes. Its contents included a large kitchen knife, some lengths of rope and a roll of masking tape. The appellant was arrested and identified by the teacher and some pupils. The prosecution alleged that the presence of the cider can showed that the appellant had been inside a lavatory cubicle, and that the contents of the rucksack could have been used to catch and restrain a boy entering the lavatory. The defence was that the prosecution case was based on speculation. At the start of the trial the Crown had intended to rely on the evidence of a local authority housing officer who had a series of conversations with the appellant in which he had revealed that he harboured designs against young boys and wished to kidnap a child for sexual purposes. The judge ruled that that evidence was inadmissible, and the trial continued with very limited evidence called for the prosecution, a series of written admissions as to the factual basis of the Crown case having been agreed by counsel on both sides. At the close of the prosecution case the defence submitted that there was insufficient evidence to leave to the jury to support the allegation that the appellant was guilty of attempted false imprisonment. The judge rejected that submission, and the appellant called no evidence. The appellant appealed on the ground that the evidence, almost entirely contained in the factual admissions made on his behalf, did not permit the jury to conclude that he had done any act which was more than merely preparatory to the commission of a crime.
Held, allowing the appeal, that the authorities showed that the line of demarcation between acts which were merely preparatory and acts which might amount to an attempt was not always clear or easy to recognize. There was no rule of thumb test, and there must always be an exercise of judgment based on the particular facts of the case. It was an accurate paraphrase of the statutory test to ask whether the available evidence, if accepted, could show that a defendant had done an act showed that he had actually tried to commit the offence in question, or whether he had only got ready or put himself in a position or equipped himself to do so. In the present case there was not much room for doubt about the appellant's intention, and the evidence was clearly capable of showing that he had made preparations, had equipped himself, had got ready, had put himself in a position to commit the offence charged. It was true that he had entered the school, but he had never had any contact or communication with, nor had confronted, any pupil at the school. The whole story was one which filled the court with the gravest unease, but on the facts of the case the court felt bound to conclude that the evidence was not sufficient in law to support a finding that the appellant had done an act which was more than merely preparatory to wrongfully imprisoning a person unknown."
9.如果一個人在街上用手試圖打開停在街上的汽車的車門，但是不成功，因為車門是鎖實了。這個人可以被控企圖從汽車盜竊嗎？答案應該是不可以。在存有犯罪意圖遊蕩（loitering with intent）的罪行被廢除前，這是唯一可以檢控的控罪。
10．基於上述理由，本庭批准上訴，撤銷“企圖入屋犯罪”的定罪，改判上訴人“外出時備有偷竊用的物品”罪罪名成立，並取銷勞教所命令，以感化令代之，為期12個月。
控方：由律政司梁燊頤高級政府律師代表香港特別行政區政府。
辯方： Mr Lawrence Lok SC, instructed by Messrs Nie & Company, for the Appellant。
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