香港特別行政區 訴 Singh Gurmail

HCMA1199/2007

香港特別行政區

高等法院原訟法庭

刑事上訴司法管轄權

定罪上訴

案件編號：裁判法院上訴案件 2007 年第 1199 號

(原東區裁判法院案件 2007 年第 1560 號)

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主審法官：高等法院原訟法庭暫委法官彭偉昌

聆訊日期：2009 年 4 月 23 日

裁決日期：2009 年 4 月 23 日

判 案 書

1.上訴人經審訊後被裁定一項「使用虛假文書」罪不成立，「盜竊」的交替控罪成立，處入獄6 個月。上訴人不服，現就定罪提出上訴。

控罪

2.「使用虛假文書」的控罪指上訴人在灣仔軒尼詩道71至85 號地下的滙豐銀行，知道或相信一張提款單是假的，即附有男子SINGH Manjit的僞造簽名，卻使用該提款單，把港幣99,500 元從一個SINGH Manjit及上訴人聯名的戶口，轉賬到上訴人本人的另一個戶口，對SINGH Manjit不利，違反香港法例第 200 章《刑事罪行條例》第 73 條，日期為04 年3 月4 日。

3.「盜竊」的交替控罪則指上訴人在同年同月同日，在同一銀行，偷竊一項據法權產，即滙豐銀行欠SINGH Manjit及上訴人一筆港幣99,500 元的債項，而該債項是SINGH Manjit的財產，違反香港法例第 210 章《盜竊罪條例》第 9 條。

控方説法

4.本案雖被歸類為中文審訊，但部份庭審實以英語進行，裁判官的書面判詞亦以英文撰寫。下面是他對控方案情所作的撮要(只節錄關鍵部份)：

“5.  The Defendant and PW1 were (are) cousins. PW1 came from India to Hong Kong in 1996.  PW1 knew very little English and very little Chinese.  The Defendant was able to speak both languages.  The Defendant assisted PW1 (and his family) in Hong Kong by acting as an interpreter.  The Defendant also assisted by making loans of money to PW1.  All loans from the Defendant had been repaid by monetary sums or by the Defendant taking goods from the Indian provisions shop once operated by PW1.

6.  On 15 January 2000 PW1 was injured at work at a construction site.  The Defendant introduced PW1 to Legal Aid for assistance in claiming compensation. PW1 first went to Legal Aid in 2002. Save on one occasion (5 May 2004), the Defendant always accompanied PW1 to Legal Aid.  Legal aid did not provide any interpreters and PW1 relied on the interpretation of the Defendant.  The Defendant spoke everything on behalf of PW1. 

7.  A solicitor, Miss Chan, was assigned by Legal Aid, to act for PW1.  When PW1 attended meetings with Miss Chan, the solicitor’s office provided an interpreter.  The Defendant would also be present.  The Defendant did the talking at the solicitor’s office, not PW1.  PW1 had indicated to Miss Chan that he would be satisfied with compensation in the sum of $500,000.  The correspondence address of PW1 given to solicitors was the address of the Defendant. 

8.  PW1 mainly depended on the Defendant to help with his claim for compensation.  In particular, PW1 relied on the Defendant as an interpreter.

9.  No one ever told PW1 that $100,000 (compensation) would be deposited into the Joint Account or that it was ever deposited.  

10.  The Defendant told PW1 that the Joint Account was opened so that compensation would be paid into it and fees for the lawyer deducted therefrom.  This was necessary because the solicitors did not know or trust PW1.  After opening the Joint Account, the bank passbook was kept by the Defendant. 

11.  On 2 March 2004 $100,000 was deposited into the Joint Account (as part of the compensation for PW1’s injuries). On 4 March 2004 $99,500 was transferred from the Joint Account to the Defendant’s personal bank account.  

12.  On a number of occasions PW1 asked the Defendant about the progress of his claim.  The Defendant kept saying that it was not finished.  PW1 became suspicious.  On 5 May 2004, PW1 went to Legal Aid with another friend (as interpreter).  PW1 then learned about the deposit of $100,000.  PW1 asked the Defendant about it but the Defendant said no money had been received.  PW1 went to the bank and was told that there was only a balance of $300. About a week later, PW1 obtained from the bank documents relating to the Joint Account (Exhibit P2 and page 12 of Exhibit P1).  PW1 asked the Defendant to produce the bank passbook but the Defendant did not do so.  When PW1 mentioned that he had documents from the bank, the Defendant said he would talk to PW1 later.  PW1 was not able to make subsequent contacts with the Defendant. 

13.   PW1 never authorized the Defendant to withdraw or transfer the $99,500 from the Joint Account into the Defendant’s own account.”

辯方説法

5.另一邊廂，上訴人選擇不作供，但不反對把自己的警誡會面記錄(證物P4)呈證。下面是它的撮要：

“4C.  Exhibit P4 was a statement given by the Defendant to the police on 8 April 2007.  The defence at trial was generally along the lines of Exhibit P4.  The Defendant said in the statement, inter alia, that PW1 and him were cousins.  PW1 obtained loans from the Defendant on a number of occasions.  The total amount owing from PW1 was about $110,000.  The Joint Account was opened because in February 2003 PW1 wanted to borrow from the Defendant.  The Defendant asked how PW1 could guarantee repayment.  PW1 said that he was getting compensation for his injuries and the compensation would be deposited into the Joint Account.  In this way, there would be some guarantee of repayment. PW1 and the Defendant then went to the bank and opened the Joint Account.  On 2 March 2004, PW1 informed the Defendant that compensation had been deposited into the Joint Account.  Eventually, PW1 gave the bank passbook (for the Joint Account) to the Defendant together with Exhibit P2 already signed by PW1.  On 4 March 2004, the Defendant went to the bank, added his own signature to Exhibit P2 and transferred $99,500 to his own bank account.  After that, the Defendant returned the bank passbook to PW1 along with a blank withdrawal form signed by the Defendant so that PW1 could withdraw funds remaining in the Joint Account.”

6.此外，辯方還傳召過一名法援署的職員為證人(DW1)。根據裁判官的理解，此舉的目的在：

“4A.  … As I understood it, the aim of calling DW1 was to show that PW1, contrary to his assertions, was fully cognizant of the progress of his claim for damages and, in particular, that PW1 knew (compensation) money in the sum of $100,000 was going to be deposited or was deposited on 2 March 2004 into the Joint Account.”

7.不過，裁判官始終還是認爲：

“16.   I found DW1’s evidence not helpful to the Defendant. In fact, I considered his evidence provided ammunition for Prosecution.  His evidence confirmed, inter alia, that a) PW1 was not conversant with the English or Chinese languages, b) Legal Aid did not provide any interpreters for PW1, c) PW1 relied on his friends as interpreters and d) Legal Aid brochures/leaflets explaining the rights/responsibilities of a legally-aided person and letter/s sent by Legal Aid to the correspondence address provided by PW1 were not in a language that PW1 himself could understand.  On this last point, I noted that there was no evidence indicating what correspondence address was given to Legal Aid.  Even assuming that it was PW1’s own address (and not the Defendant’s, see paragraph 7 above), PW1 could only understand what was interpreted to him by his friend/s. On PW1’s evidence, the Defendant was the interpreter.

17.DW1 gave evidence on the number of occasions PW1 attended Legal Aid. He also mentioned that PW1 was accompanied by different friends.  The number of occasions mentioned by DW1 was more than double that mentioned by PW1.  PW1’s evidence was that the Defendant always accompanied him to Legal Aid until the occasion of 5 May 2004.  Concerning the number of occasions PW1 had been to Legal Aid, I preferred the evidence of DW1 who had records to refer to.  PW1 was just mistaken on this.  I did not think DW1 would pay special attention to who accompanied PW1 on his visits to Legal Aid.  As far as DW1 was concerned, this was not really an issue.  I preferred and accepted PW1’s evidence on this score.”

一審裁決

8.最後，裁判官還是裁定上訴人「盜竊」罪成立。下面是他的理由：

“18.  The essence of PW1’s evidence was that he did not know much about the progress of his claim for compensation or that he needed to pay legal fees.  PW1 said, inter alia, that neither Legal Aid nor solicitors ever discussed with him the amount he was willing to settle for. I accepted PW1’s evidence on this his ignorance. PW1’s knowledge on such matters depended on what was told or explained to him by the Defendant. I was sure that the Defendant did not keep PW1 informed.  I had no doubt that PW1 was handicapped in his dealings with the bank, Legal Aid and solicitors because of the language barrier.  PW1 trusted and depended on the Defendant in such matters. 

19.  In chief, PW1 maintained that he had not signed Exhibit P2.  I already noted some hesitation on his part when he said that he might have signed it when the Joint Account was opened.  Suffice to say that in cross-examination, PW1 conceded that it was possible that he had signed Exhibit P2.  I had no doubt that due to such evidence, Prosecution submitted the Alternative Charge.  I did not, however, consider PW1 prevaricating or unreliable because of this part of his evidence.  He came to realize that he was not really sure about his signature and conceded so much.  

20.  In cross-examination, PW1 agreed that he and the Defendant had been treating each other like brothers.  PW1 said that he still loved the Defendant. PW1 would have allowed the Defendant to withdraw money from the Joint Account (for the Defendant’s own use) if the Defendant had asked.  PW1 even said that by the time of the trial, he was willing to forgive and forget the Defendant for the transfer out of the $99,500.  All such evidence fortified my view that PW1 would not have complained to the police or given evidence in Court against the Defendant but for the fact that he (PW1) was telling the truth. 

21.  Subject to matters stated herein, I accepted the evidence of Prosecution witnesses.  I found Prosecution’s case on the Alternative Charge proved beyond all reasonable doubt.”

本上訴

9.針對本案的定罪，上訴方提出了幾個上訴理由。

10.其中的理由(1)指「裁判官沒有考慮上訴人是否不誠實；交替地，裁判官沒有引用R. v. Gosh的測試來推斷上訴人是否不誠實」。

11.他們的意思是說，裁判官在口頭宣判時只講過一句「我 … 認爲被告咁樣提款實質上係不誠實，係進行咗盜竊」(上訴卷宗223 頁 G)，此外就再沒有觸及到這個課題。就算在後來才寫好的書面判詞，在這方面也屬完全欠奉(見上文第 8 段的所有節錄)。

12.上訴方認爲，這並非表達技巧上有瑕疵那麽簡單，而是直接反映出裁判官對下列的一項重要證供缺乏考慮 ，即PW1 (SINGH Manjit)在盤問中屢次承認不介意上訴人從他的戶口提取款項——假如上訴人能先知會他一聲的話。上訴方認爲，這個説法無可避免地把上訴人是否主觀地不誠實的課題搬到台前，不能不小心討論。

13.我在考慮過他們的論點後認爲，上訴方的投訴有理。

14.我們從PW1的盤問得知(上訴卷宗143 頁R至146 頁H)，他一家與上訴人的關係密切，甚至有點到了現代港人所罕見的地步。這是第一點。

15.事實上，PW1承認(原文為英文)：就算到了審訊當天，他仍然覺得有義務向上訴人回報他過去所給他和他家人的一切恩惠(上訴卷宗144 頁K)；他有錢時，上訴人可從他那裏扣取金錢以作那些恩惠的償還(上訴卷宗145 頁C)；他相信上訴人有權從涉案戶口拿走那99,500 元作為過去所施與的恩惠的償還(上訴卷宗145 頁Q)。換言之，裁判官指PW1和上訴人情同手足，不介意後者在問過他後把錢拿走的説法(裁判官書面判詞第 20 段)，並不完全正確。更接近事實的講法是PW1覺得上訴人有權把那筆賠償拿走，而他則有義務把那筆賠償相送。這是第二點。

16.第三點。PW1對是否簽署過涉案提款單證供飄忽。除了在主問中說過「沒有」之外，他在盤問時又表示「不記得」、「有可能」、「有可能是他(上訴人)叫我簽的」、「他(上訴人)曾叫我簽過很多文件」等，這也是裁判官選擇以交替的「盜竊」罪入罪的原因。問題是，這個證供顯示PW1對上訴人相當言聽計從。我從其他資料得悉，涉案戶口的銀行簿也確實由上訴人把持。

17.綜合以上三點，上訴人在取款時是否自覺客觀的人會認爲他不誠實，是斷案者所不能不問的，可裁判官卻把問題忽略過去。極其量 ，他也只在口頭宣判時表達過一個可能代表著客觀的旁人的看法。

18.還要一提，自覺誠實並非上訴人在一審時的辯護主線，但辯方律師在盤問PW1時既有這方面的探索，在結案陳詞時又舊事從提(上訴卷宗220 頁K至S)，裁判官就不能不警惕、不能不處理了。

19.我下一個想討論的是上訴理由(4)。這個理由指「裁判官錯誤地排除了證物P4，即上訴人的警誡供詞」。

20.上訴方所指的，是裁判官他在書面判詞第 14 段所說過的一句話：

“14.   … Despite … the Defendant’s right not to give evidence himself, I was not prepared to give weight to Exhibit P4 without it being tested in cross-examination.”

21.正如同一篇判詞的的第 4C 段顯示(見上文第 5 段的節錄)，證物P4是一份混合式供詞。既是如此，作爲事實的裁斷者，裁判官就要適用經典案例Sharp所奠定的測試，亦即是說，他可能會認爲具入罪成份的部份較可信，而具開脫成份的部份則因未經盤問的考驗而比較不可信，但最後仍得對整份供詞的可信性作出判斷。

22.然而，裁判官的判詞顯示，他因上訴人未有被盤問的機會而把整份P4完全放到一旁、不給分量，這實與Sharp所講的有莫大分別。要知道，P4是上訴人一審時的辯護主線。裁判官這樣做，就等於因上訴人未有作供、沒有被盤問而完全把他對事情的説法放到一邊、不加考慮。

23.當然，有這個情況出現，主因可能只是裁判官表達得太過籠統，有違他的原意，但落在紙上的東西卻沒有什麽可另加解釋的空間。差之毫釐，謬之千里，就是這個意思。

判決

24.光就上述兩個理由，上訴人的上訴就當得直 ，定罪撤銷。(有關的刑期已服畢。)

控方：由律政司高級檢控官吳美華代表香港特別行政區。

辯方：由潘繼洪張宗泉律師行轉聘林子勤大律師代表上訴人。