Hon Poon J (giving the Reasons for Judgment (application for leave to appeal against conviction) and Judgment (application for leave to appeal against sentence) for the Court):
高等法院原訟法庭法官潘兆初頒發上訴法庭判案理由書（定罪申請）及判案書（刑期申請）：

Introduction
引言

The applicant was charged with three offences:
申請人被控三項控罪：

(i)Robbery, contrary to section 10 of the Theft Ordinance, Cap 210, Laws of Hong Kong;
（一）搶劫罪，違反香港法例第210章《盜竊罪條例》第10條；

(ii)Indecent Assault, contrary to section 122(1) of the Crimes Ordinance, Cap 200, Laws of Hong Kong;
（二）猥褻侵犯罪，違反香港法例第200章《刑事罪行條例》第122(1)條；和

(iii)Assault Occasioning Actual Bodily Harm, contrary to the Common Law and punishable under section 39 of the Offences Against The Person Ordinance, Cap 212, Laws of Hong Kong.
（三）襲擊他人致造成身體傷害罪，違反普通法並可根據香港法例第212章《侵害人身罪條例》第39條予以懲處。

In summary, the Prosecution alleged that on the 3rd day of January, 2013, outside Buddhist Tai Kwong Chi Hong College (“College”) at Chui Yi Street, Tai Po, New Territories, Hong Kong, after robbing a girl (“X”) of a mobile phone, a wallet, cash of $160 Hong Kong currency, one Hong Kong Identity Card, one student card, one medical card, one personal octopus card and some photographs, the applicant took X to a secluded hillside nearby and assaulted her sexually and physically.  X was a Form 3 student of only 14 years and 8 months old at the time of incident.
扼要說來，控方指於2013年1月3日，申請人在香港新界大埔翠怡街佛教大光慈航中學（“中學”）外，搶劫一名女童（“X”）一部流動電話、一個銀包、現金港幣160元、一張香港身份證、一張學生證、一張醫療卡、一張個人八達通卡及一些照片；之後，申請人帶X到附近一個僻靜的山坡猥褻侵犯和襲擊她。案發時X只有14歲8個月大，就讀中三。

The applicant denied all the charges.  He did not dispute that X had been robbed, assaulted sexually and physically but he asserted that X had misidentified him as the culprit.
申請人否認所有控罪。他不爭議X曾被搶劫、猥褻侵犯和被毆，但指X認錯了他是犯案者。

The case was tried in the Court of First Instance before High Court Judge Andrew Chan (the trial Judge) and a jury.
案件在原訟法庭法官陳慶偉（原審法官）會同陪審團席前審理。

On the 5th of March, 2014, the jury found the applicant guilty of all three charges.  On the 8th of April, 2014, the trial Judge sentenced the applicant to an imprisonment of four years for the first offence, ten years for the second offence and two and a half years for the third offence.  Three years in respect of the first offence were to run consecutively to the ten years’ imprisonment in respect of the second offence; and two years in respect of the third offence were to run consecutively to the ten years’ imprisonment in respect of the second offence, making a total of 15 years’ imprisonment.
2014年3月5日，陪審團裁定申請人三項控罪全部罪名成立。2014年4月8日，原審法官判處申請人就控罪一入獄4年、控罪二入獄10年、及控罪三入獄2年半；控罪一其中的3年監禁與控罪二的10年監禁分期執行，而控罪三的其中2年監禁與控罪二的10年監禁分期執行，總刑期為15年監禁。

On the 23rd of April, 2014, the applicant filed application for leave to appeal against conviction.  He was denied legal aid and acted in person for the application for leave to appeal against conviction.
2014年4月23日，申請人不服定罪，提出上訴許可申請。他不獲准法援，就定罪申請親自行事。

On the 29th of July, 2014, the applicant filed application for leave to appeal out of time against sentence.  Mr Y. K. Tze, James was assigned by the Legal Aid Department as counsel representing the applicant.
2014年7月29日，申請人就判刑提出逾時上訴許可申請，由法律援助署委派謝英權大律師代表。

Prosecution Case
控方案情

(I)The Course of the incident
（一）事發經過

X’s evidence can be summarised as follows.
X的證供可撮要如下。

At around 7:15 on the night in question, X was on her way alone to her paternal grandmother’s.  When she was passing a secondary school, she saw a man walking in her direction.  The man was wearing a red cap, a black-white-grey striped jacket, a pair of light blue jeans and white clogs.  The man was the applicant.  The applicant suddenly grabbed her by the neck from behind with his left arm saying that it was a robbery and he had a knife in his hand.  After robbing X of the aforementioned items, the applicant kept grabbing X and took her to a gazebo by the side of a pond after walking through a park.  While they were there, the applicant smoked and talked with X at the same time for as long as 20 minutes.  Among other things, he said that he had a son and he only resorted to robbery because of financial difficulties.  During the time, he threatened X that he would give her a cut on the neck if she shouted for help.  But he also said that he could not bear to give a cut on her face and kill her.  After saying that, the applicant took X to walk through an alley before eventually reaching a secluded hillside in the vicinity of Tai Ping Industrial Centre.  There and then, the applicant dragged X to a staircase forcefully and ferociously.  X was very scared.  She resisted in vain.  The applicant once demanded X to raise her head and gave him a cheerful smile.  The applicant remarked that X was quite pretty and cute.  He would not bear to give her a cut on the face.
案發當晚約7時15分，X獨自前往她嫲嫲的居所。她途經中學門外，迎面看見一名頭戴紅色帽、身穿黑白灰間條外套、淺藍色牛仔褲、白色木拖鞋的男子，即申請人。申請人突然從後用左手箍着她的頸項聲稱打劫，並表示他手上有刀。申請人劫去上述的物品。申請人繼續箍着X，帶她經過一個公園，繼而到達一個水池旁的涼亭。在那裏，申請人一邊抽煙一邊與X交談長達20分鐘，內容包括他育有一名兒子，因陷入財困才打劫。期間，他恐嚇X，假若她呼叫求救，他便會在她的頸上割一刀，但又說不捨得在她的面上𠝹一刀及殺死她。說罷，申請人帶X行經一條巷，輾轉到達太平工業邨附近的一個僻靜的山坡。此時，申請人猛力地和兇惡地拉扯X到一條樓梯，X感到非常驚怕，她反抗，但不成功。申請人曾叫X抬頭向他寬容地微笑。申請人讚X樣子幾漂亮和得意，不捨得在她面上𠝹一刀。

The applicant then took X to a path in the hillside and ordered X to take off her clothes, socks and shoes.  When X resisted, the applicant immediately hit her head once.  X had no choice but to obey.  She was crying while taking off her clothes.  She was very scared and begged the applicant not to kill her, rape her or sexually assault her.  The applicant then ordered X to squat down, spread her legs and use her finger to masturbate before him.  When X refused, the applicant immediately hit her head two, three times, kicked her back and hit her shoulders.  X had no choice but to obey after having been beaten up.  After X had masturbated, the applicant wrapped his finger with X’s clothes and worked it in and out of X’s vagina and anus.  He further molested X’s breasts over the clothes and asked X how large were her breasts.
申請人帶X走進在山坡裡的一條小路，命令X脫去衣服和鞋襪。X反抗，申請人便立即打她頭一下，X只好聽從。她一邊哭泣，一邊脫去衣服。她感到非常驚怕，哀求申請人不要殺她、強姦和非禮她。之後，申請人命令X蹲下，把雙腿張開，用手指在他面前作出自慰的動作。X拒絕，申請人隨即打了她的頭兩、三下，踢她的背脊，和打她的膊頭。X被打之後，只好就範。X做完自慰的動作後，申請人以X的衣服包住自己的手指，在X的陰部和臀部進出。接著，他隔住衣服撫摸X的胸部，又問她胸部有多大。

After having sexually assaulted X, the applicant pulled her hair and banged her head against the railings in the hillside.  X fell onto the ground because her head was hurting.  The applicant pulled X’s hair again and banged her head against the concrete barrier and the ground.  He then went on to kick X causing her to fall down into a gully nearby.  X’s head was very painful.  She thought of pretending to faint but the applicant said he would drown her in mud if she did not respond.  So X had to get up.  Shortly afterwards, the applicant allowed X to leave.  X testified that the duration of her being kept in the hillside and the course of the assault lasted for 40 to 45 minutes.  She was only allowed to leave after another 10 minutes.  X made a complaint to her mother about the ordeal when she returned home and called the police for assistance.
在侵犯X之後，申請人手扯她的頭髮，將她的頭撞向山坡上的欄杆。X因頭痛墮地，申請人再次扯X的頭髮，把她的頭撞去石壆及地面。其後，他更腳踢X，把她踢落附近坑渠，X感到頭部非常痛楚，本想裝作暈倒，但申請人說如她不回應，便用泥土淹死她。X便起身。未幾，申請人准許X離開。X指在山坡逗留及被侵犯過程歷時40至45 分鐘，然後過多十分鐘她才可離開。X回家後告訴母親她的遭遇，並報警求助。

(II)Examination findings of X’s forensic medical report
（二）X身體檢查結果

Upon agreement made by both the Defence and the Prosecution, the forensic medical report of X was admitted into evidence.  The particulars are as follows:
控辯雙方同意有關X身體檢查的證據，詳情如下 ：

“3.At 2255 hours on 3rd January 2013, Dr Hui Yuet Yum conducted a physical examination on X in the Accident and Emergency Department of Alice Ho Miu Ling Nethersole Hospital.  The findings were as follows:
“3.2013年1月3日2255時，許月吟醫生在雅麗氏何妙齡那打素醫院急症室替X進行身體檢查。檢查結果如下：－

(i)X was fully conscious during the examination;
(i)檢查時X完全清醒；

(ii)scalp haematoma was seen without neurological deficit;
(ii)其頭皮有血腫，沒有神經錯亂；

(iii)no external wound was noted on X’s vulva and anus;
(iii)X外陰及肛門沒有發現外在傷口；

(iv)CT brain scan was unremarkable;
(iv)腦部掃瞄顯示沒有異常；

(v)X was admitted to the paediatric ward for further management.
(v)X被送到兒科病房接受進一步治療。

4.On 4th January 2013, Dr Mak Kiu Yan conducted a physical examination on X in Alice Ho Miu Ling Nethersole Hospital.  The findings were as follows:
4.2013年1月4日，麥健欣醫生在雅麗氏何妙齡那打素醫院替X進行身體檢查。檢查結果如下：－

(i)multiple superficial abrasions over X’s four limbs were revealed;
(i)檢查顯示X四肢多處有表面擦傷；

(ii)there were bruises, redness and swelling over both wrists of X;
(ii)X雙手手腕有瘀傷及紅腫；

(iii)small right forehead and postero-lateral scalp haematomas were seen;
(iii)右額一小處及後側頭皮發現有血腫；

(iv)perineal examination showed no bleeding and no obvious external injury;
(iv)會陰檢查顯示沒有出血及明顯外在傷痕；

(v)pre-rectal examination was slightly tender;
(v)前直腸檢查發現有少許觸痛；

(vi)respiratory, cardiovascular, abdominal and neurological examinations were normal;
(vi)呼吸、心血管、腹部及神經檢查顯示正常；

(vii)blood tests including complete blood picture and clotting profile were normal;
(vii)血全圖及凝血測試的血液測試結果正常；

(viii)urgent CT brain scan showed no skull fracture or intracranial bleeding;
(viii)緊急腦部掃瞄顯示頭顱沒有骨折或顱內出血；

(ix)urine culture, multistix and pregnancy test were all negative;
(ix)尿培養、尿拭紙及妊娠測試結果均為陰性；

(x)X-ray of the wrists showed no fracture.
(x)手腕X光顯示沒有骨折。

...
…

5.At 1530 hours on 4th January 2013, inside the Forensic Pathologists’ Office of Regional Police Headquarters, New Territories North, in the presence of Woman Detective Senior Police Constable 56106 and with the consent of X and X’s mother Y, Dr Mak Kwok Shing medically examined X.  The medical findings were as follows:
5.2013年1月4日1530時，麥國成醫生在新界北總區警察總部法醫官辦公室內，在女偵緝高級警員56106面前，在X及X母親［ Y ］同意下替X進行身體檢查。檢查結果如下：－

...
…

(v)a bluish birth mark, 2 cm in diameter, on the outer part of left upper arm.
(v)左上臂外側有一個直徑2厘米、呈藍色的胎記。

(vi)an area of swelling, 2.5 cm x 1.5 cm, on the right forehead with surrounding erythema.
(vi)右額腫起，大小為2.5厘米x 1.5厘米，周邊有紅疹。

(vii)a purplish bruise, 1.5 cm x 1.5 cm, on the outer part of left wrist.
(vii)左腕外側有一處呈紫色的瘀傷，大小為1.5厘米x 1.5厘米。

(viii)multiple parallel short linear scabbed abrasions with surrounding erythema, covering an area of 2 cm x 1 cm, on the back of the right elbow.  They were covered by dressing.
(viii)右手肘背有多條短小線狀、平行、已結痂的擦傷，周邊有紅疹，所佔範圍2厘米x 1厘米，上面有敷料。

(ix)multiple parallel linear abrasions with surrounding erythema, covering an area of 9 cm x 4 cm, on the inner part and back part of right upper arm.  They were covered by dressing.
(ix)右上臂內側及後方有多條平行線狀的擦傷，周邊有紅疹，所佔範圍9厘米x 4厘米，上面有敷料。

(x)multiple parallel oblique abrasions with surrounding erythema, covering an area of 4 cm x 2 cm, on the outer part of left forearm.
(x)左上臂外側有多條斜向、平行的擦傷，周邊有紅疹，所佔範圍4厘米x 2厘米。

(xi)multiple parallel oblique abrasions with surrounding erythema, covering an area of 3 cm x 2 cm on the right loin.
(xi)右腰有多條斜向、平行的擦傷，周邊有紅疹，所佔範圍3厘米x 2厘米。

(xii)multiple parallel linear abrasions with surrounding erythema on the back of right thigh.
(xii)右邊大腿後有多條平行線狀的擦傷，周邊是紅疹。

(xiii)a purplish bruised abrasion, 2.5 cm x 2 cm, on the left knee.
(xiii)左膝有一個呈紫色、瘀腫的擦傷，大小為2.5厘米x 2厘米。

(xiv)a small scabbed abrasion, 1 cm x 1 cm, on the right knee.
(xiv)右膝有一個細小、已結痂的擦傷，大小為1厘米x 1厘米。

(xv)a small abrasion, 1 cm x 1 cm, on the outer part of right ankle.
(xv)右腳踝外側有一個細小擦傷，大小為1厘米x 1厘米。

(xvi)a small purplish bruised abrasion on the knuckle of left 2nd toe.
(xvi)左腳第二隻腳指的關節有一個細小、呈紫色，瘀腫的擦傷。

(xvii)private parts:
(xvii)私處：

(a)no recent external injury.
a.沒有新造成的外傷。

(b)hymen was of annular type with fleshy hymenal tissues as well as thin and smooth edge.  No abnormality or injury found.
b.處女膜呈環形，帶有多肉的處女膜組織及細薄平滑的邊緣。沒有發現異常或損傷。

(c)speculum examination was not performed.
c.沒有進行窺鏡檢查。

(xviii)anus and perineal region: no injury or abnormality found.”
(xviii)肛門及會陰部位：沒有發現損傷或異常。”

On 9th January 2013, the physical examination conducted on X by a gynaecologist was unremarkable.
2013年1月9日，X接受婦科醫生檢查，檢查顯示沒有異常。

(III)The applicant had appeared in the vicinity of the robbery scene
（三）申請人曾在打劫現場附近出現

The defence admitted that at around 5:15 pm on the 3rd of January 2013, the applicant did appear in the food court at Fu Hang Estate, Tai Po.  At that time, he was wearing a black-white-grey striped top, a pair of blue jeans and a black and white cap with a red brim.  The defence also admitted to the content of a video clip provided by “Mans Auto Repair Shop”（猛士專業汽車美容護理公司）.  The shop was across the crime scene where X was robbed.  The video clip recorded the situation outside the shop between 1900 hours and 1930 hours on the 3rd of January 2013.  A man in black-white-grey striped top was seen walking past a secondary school in the video.  He was the applicant.
辯方同意申請人在2013年1月3日下午5時15 分左右出現於大埔富享邨的美食廣場。當時，他身穿黑白灰色間條上衣及藍色牛仔褲，戴黑白色及帽咀為紅的帽子。另外，辯方同意一段影片，由“猛士專業汽車美容護理公司”提供。該公司位於X被劫的現塲的對面。該影片記錄2013年1月3日1900時至1930時店外的情況。影片可見有一名身穿黑白灰色間條衫的男子行經中學門外，他就是申請人。

The defence further admitted that a photo was provided by the police for X’s identification on the 7th of January 2013.  The photo was retrieved from the aforementioned video clip and the defence admitted that the man in the photo was the applicant.
辯方同意，2013年1月7日，警方提供一張照片給X辨認。那張照片是從上文提到的影片提取，而辯方同意照片中的男子就是申請人。

(IV)The arrest of the applicant
（四）拘捕申請人

At 7:10 pm on the 31st of May 2013, the police arrived at the residence of the applicant in Kwai Chung and arrested the applicant.  At the time, the applicant was at home together with three women and a child.  Under caution, the applicant said, “on that day I did rob her of her phone and wallet before taking her to a hill.  But I had no idea of what I had done because I was short-circuited that day.”  The applicant was then taken to the police station for investigation.
2013年5月31日晚上7時10分，警方到達申請人位於葵涌的住所拘捕申請人。當時，申請人和三名女士和一名小童在家。警誡下，申請人說：「我果日係有笠佢部電話同銀包，之後夾咗佢上山，做過乜我唔知，因為我嗰日跳咗掣。」申請人被帶返警署調查。

(V)X recognised the applicant
（五）X認得申請人

On the 4th of June 2013, X positively identified the applicant as the culprit in an identification parade conducted in Tai Po Police Station.
2013年6月4日，在大埔警署的認人手續中，X認出申請人為犯案者。

Defence Case
辯方案情

The applicant elected not to give evidence.  His defence was that X had mistaken him for the culprit.  As regards the verbal admission he made on the night of the arrest, the applicant asserted that he was drunk and did not have a clear mind at that time.  He was coerced into signing his name on the police notebook.  In addition, the admission made under caution was fabricated by the police officer.
申請人選擇不作供。他的辯護理由是X錯誤地認出他為犯案者。至於被補當晚的口頭招認，申請人的說法是當時因酒醉神志不清，被逼在警員記事冊上簽名；另外，警員揑造警誡下的招認。

The applicant called Dr Wong Suk Kwan to testify for him.  Dr Wong conducted a physical examination on the applicant on the 31st of May 2013.  She testified in evidence that no superficial injuries or marks were found on the applicant.  His heart, lungs, chest and abdomen were normal.  His blood alcohol content was 18.7.  According to normal standard, blood alcohol content between 10.9 and 21.7 would have an impact on a man’s ability to react.  Dr Wong pointed out that the applicant was sober at the time.  He was coherent and did not have a strong smell of alcohol.
申請人傳召黃淑筠醫生作證。黃醫生在2013年5 月31日替申請人驗傷。她作供指申請人沒有表面傷痕、心肺腹和肚檢查正常、酒精濃度為18.7。根據指標當血液酒精濃度達10.9至21.7時會影響人的反動作用。黃醫生指申請人當時清醒，對答清晰，沒有明顯酒氣。

Issue
爭議

In the original trial, the issue was whether the applicant was the man described by X who had robbed her, sexually and physically assaulted her.
原審時的爭議是，申請人是否就是X所描述搶劫、猥褻侵犯和襲擊她的人。

Verdict
裁決

The jury found the applicant guilty of the offence of robbery by 5 to 2 and they found the applicant guilty of the offence of indecent assault and the offence of assault occasioning actual bodily harm unanimously.
陪審團以5比2的比數裁定申請人搶劫罪罪名成立，又一致裁定猥褻侵犯和襲擊致他人身體傷害兩項控罪罪名成立。

Reasons for Sentence
判刑理由

On the 5th of March 2014, the trial Judge ordered a clinical psychological assessment report in respect of X.  At the same time, he pointed out that the facts of the case were extremely vile.  He intended to impose the maximum penalty, that is, ten years’ imprisonment, on the applicant and he invited the defence counsel to make submission in this regard.  On the 1st of April 2014, the trial Judge heard further submission on mitigation.  The defence counsel submitted that X did not require any psychological counselling treatment quoting the psychological assessment report.
2014年3月5日，原審法官下令索取由臨床心理學家為X撰寫的心理評估報告。同時，他指出本案案情非常惡劣，他有意判處申請人最高的刑罰，即10年監禁。他邀請辯方大律師就這方面作陳詞。2014年4月1日，原審法官聽取進一步的求情陳詞。辯方大律師引用心理評估報告的內容，陳述X不需接受任何心理輔導的治療。

During sentencing on the 8th of April 2014, the trial Judge pointed out that the applicant was thirty six years old with fifteen criminal convictions of which one was for robbery, several for theft and four for wounding/assault.  There was also one criminal conviction of attempted rape in 1996.  The victim of the case was only 13 years old.  The trial Judge considered that the applicant was an extremely violent and dangerous person.
2014年4月8日，原審法官在判刑時指出申請人36歲，有15次刑事定罪記錄，其中有一項搶劫罪記錄、數項盜竊罪記錄、四項傷人／襲擊定罪記錄，還有一項在1996 年企圖強姦罪記錄，該案受害人年僅13歲。原審法官認為申請人是一個極為暴力和危險的人。

In respect of the offence of robbery, the trial Judge pointed out that no weapon was used in committing the crime.  He therefore followed the sentencing guidelines laid down by the Court of Appeal and sentenced the applicant to four years’ imprisonment.
就搶劫罪，原審法官指出申請人沒有使用武器。故此，他跟從上訴庭的判刑指引，判處申請人入獄4年。

In respect of the offence of indecent assault, he considered that the facts of the case were very serious.  X was forced to perform acts that seriously hurt her dignity.   What the applicant did made no difference from rape or unlawful buggery.  He pointed out that the sentence must have a deterrent effect and also to show the abhorrence of members of the public to crimes of this nature and also to redress the grievance suffered by X and her family.  He therefore imposed the maximum penalty of ten years’ imprisonment on the applicant for this offence.
至於猥褻侵犯罪，他認為案情非常嚴重。X被逼要做一些嚴重損害自尊的行為。申請人的所作所為與強姦或非法肛交無異。他指出判刑要具阻嚇性；又要表現出社會大眾對這類行為的厭惡；也要對X和她的家人作出補償。他判處申請人此罪行的最高刑罰，即監禁10年。

Lastly, since the acts committed in the offence of assault had not caused severe permanent physical injuries to X, the trial judge therefore sentenced the applicant to two years and six months’ imprisonment.  As aforementioned, he had taken into consideration the totality principle and ordered part of the sentences to be served concurrently making a total of fifteen years’ imprisonment.
最後，基於襲擊罪的行為沒有導致X受到永久嚴重身體傷害，故原審法官判申請人2年6個月監禁刑期。正如前文所述，他考慮了總刑期原則，把部份刑期同期執行，總刑期為15年。

Grounds of appeal (against conviction)
上訴理由（定罪）

As regards conviction, the applicant failed to set out any grounds of appeal in his notice to appeal.
就定罪方面，申請人在他的上訴通知書裡沒有列出任何上訴的理由。

The Vice President of the Court of Appeal issued a written direction on the 24th of October 2014 asking the applicant to file written submission to the Court in 28 days before this hearing.  But the applicant had not complied with the direction.
2014年10月24日，上訴庭副庭長發出書面指示，要求申請人在本聆訊前28天向法庭呈交書面陳詞，但是他沒有依指示行事。

It was not until the 13th of February 2015 that the applicant submitted a 5-page written submission to this Court in the process of the hearing setting out eighteen grounds of appeal therein, inter alia, allegations of incompetence on the part of his defence counsel at trial and unfair handling of the case by the trial judge.  When this Court asked the applicant why did he not conduct his appeal in accordance with the written direction issued by the Court earlier but rather submitted a written submission only in the process of the hearing, he was unable to give a satisfactory answer.  Regardless, this Court still had to give an opportunity for the applicant to present his grounds of appeal to this Court.  In that case, adjournment of the hearing would become inevitable.  This Court therefore explained the situation to the applicant and gave him a warning: if his appeal is dismissed eventually by virtue of S83W of the Criminal Procedure Ordinance, the Court might direct that the time during which he is in custody pending the determination of his appeal shall not be reckoned as part of the term of any sentence to which he is for the time being subject because his action has wasted the time and resources of the Court.  This Court therefore adjourned the hearing briefly for the applicant to consider thoroughly.  When the Court resumed, the applicant submitted to this Court that he would abandon his application for leave to appeal against conviction.  This Court then explained to him that once the application was abandoned, he would be unable to re-apply for leave to appeal against conviction.  The applicant indicated that he understood.
直至2015年2月13日聆訊時，申請人才向本庭呈上一份長5頁的書面陳詞，其中列出18個上訴理由，包括原審時代表他人的大律師失職、原審法官處理案件手法不公等指控。本庭問申請人為何沒有依法庭較早時的書面指示行事，卻在聆訊時才提交書面陳詞，他未能給予令人滿意的答案。雖然如此，本庭認為仍需給予申請人機會向本庭陳述其上訴理由，但這無可避免將要把聆訊押後，本庭於是向申請人解釋情況，亦給予他忠告：若最終其上訴失敗，因他的舉措浪費法庭的時間和資源，法庭有可能根據《刑事訴訟程序外條例》第83W條，命令他在聽候對其定罪上訴作裁定時在扣押的時間，不作為他當其時所受刑罰的部分刑期計算。之後，本庭短暫押後聆訊讓申請人考慮清楚。當恢複聆訊時，申請人向本庭表示放棄其定罪上訴申請，本庭向他解釋，一經放棄，他便不能再就定罪上訴，申請人表示明白。

Since the applicant abandoned the application himself, this Court refused his application for leave to appeal against conviction.
由於申請人自己放棄，本庭拒絕其上訴定罪的申請。

Grounds of appeal (against sentence)
上訴理由（判刑）

The applicant asked for extension of time for issuing the notice of application for leave to appeal on 29 July 2014.  In other words, his application was two and a half months out-of-time.  Mr Tze, counsel for the applicant, only applied for leave to appeal out-of-time against sentence in respect of the second offence.  He advanced three grounds of appeal:
申請人於2014年7月29日提出延展發出申請上訴許可通知書。換言之，他的申請逾時兩個半月。謝大律師只針對控罪二提出逾時判刑的上訴許可申請。他提出三項上訴的理由：

(1)it was manifestly excessive to take the maximum penalty of ten years’ imprisonment as the starting point for sentencing in respect of the second offence especially when it was pointed out in X’s impact assessment report that there were no severe symptoms indicative of traumatisation and X was able to resume normal functioning within a short period of time;
(1)控罪二以該控罪的最高刑罰，即10年監禁作為量刑起點為明顯過重，尤以X的創傷報告中指出，X並無重大後遺症，X可於短時間內回復正常生活；

(2)considering the facts and circumstances of the applicant’s case, all three offences happened at the same time, the imposition of 15 years’ imprisonment was manifestly excessive taking into account the totality principle; and
(2)就申請人的個案及情況而言，三項控罪同時發生，在總量刑原則下，15年監禁為明顯過重；及

(3)the overall sentence was manifestly excessive.
(3)整體而言，判刑明顯過重。

Discussion
討論

There is no sentencing tariff or guidelines for the offence of indecent assault.  The facts of individual cases must be taken into account in considering the appropriate punishment.
猥褻侵犯罪沒有量刑準則或指引，須根據每件案件個別案情考慮適當刑罰。

The maximum penalty for the offence of indecent assault is ten years’ imprisonment.  In other words, the trial judge had imposed the maximum penalty under the law on the applicant.  The maximum penalty prescribed by the law was only reserved for the worst possible example of the offence concerned (see para 17 of the judgement of The Attorney General v Dominic Cheung Kai Man, Application for Review No. 1 of 1987 (unreported) dated 2 April 1987).  Therefore, the issue for discussion of this Court is whether the facts in this case are the worst possible example of the offence of indecent assault.
猥褻侵犯罪最高的刑期是監禁10年，換句話說，原審法官判處申請人的刑期是法例下最高的刑期。法例所訂下的最高刑期只是為著該罪行中情節最壞的案件類別而設：見上訴庭在The Attorney General v Dominic Cheung Kai Man，Application for Review No.1 of 1987（未經彙編），1987年4月2日的判詞第17段。因此，本庭需要處理的議題是，本案的情節是否屬於猥褻侵犯罪這種罪行中最壞的類別。

One of the aggravating features in this case is that victim X was only a girl.  This Court has repeatedly emphasized in similar cases that sexual assault on children is a serious offence.  The Court must impose a severe punishment on the offenders based on the actual situation of the case.
本案情節其中一個嚴重之處是受害人X只是一名女童。本庭在類似的案件中再三強調，性侵犯兒童是嚴重的罪行，法庭必須根據案件實際的情況對犯案者予以嚴厲懲處。

In HKSAR v Tsang Chiu Tak [2013] 1 HKLRD 422, this Court (differently constituted) had pointed out the sentencing principles for offences of sexual assault on children as follows:
本庭（不同組成）在香港特別行政區 訴 曾昭德 [2013]1 HKLRD 422指出有關性侵犯兒童罪行量刑的原則：

“8.The Court of Appeal reiterated in many recent cases that the Court had to protect innocent trusting children and prevent those vulnerable persons from sexual abuse which would cause them physical and psychological trauma.  In cases involving sexual assault on a child, it was necessary for the Court to adopt deterrent sentences to deter others from committing similar offences.  Such deterrent sentences were to show the abhorrence of members of the public to crimes of this nature and to redress the grievance suffered by the victims and their families.
“8.上訴法庭在多宗近期的案件中重申法庭必須保護無辜及容易信賴別人的兒童，避免這些易受傷害的人士被人性侵犯，以致身體及精神受到創傷。在涉及性侵犯兒童的案件中法庭有需要採用具阻嚇性的刑期來防止其他人士干犯這類罪行。這些具阻嚇性的刑期是表達公眾對這些罪行的厭惡及為受害者及其家人伸冤。

9.The Court of Appeal pointed out that when the Court dealt with offences of sexual assault on a child, the factors that it needed to take into consideration included:
9.上訴法庭指出法庭在處理性侵犯兒童罪行時就量刑所需要考慮的因素包括：

(1)The age difference between the defendant and the victim;
(1)被告人與受害人的年紀差異；

(2)The relationship between the defendant and the victim, including whether the defendant had taken advantage of his position or status to commit the offence and whether there was a breach of trust in the case;
(2)被告人與受害人的關係。被告人是否利用自己的地位干犯罪行及案件是否存在破壞信任的成份；

(3)Whether the defendant had used threats or inducement to make the victim succumb;
(3)被告人有否利用恐嚇、利誘的手段來令受害人就範；

(4)The number of occasions of committing the offences and the duration of the offences;
(4)犯罪的次數及時間；

(5)Whether inappropriate and unnecessary violence was used by the defendant to cause harm or discomfort to the victim;
(5)被告人有否使用不適當及不必要的暴力來令受害人受傷、不適；

(6)Whether any safety measures were taken by the defendant in sexually abusing the victim in order to avoid transmitting any venereal disease to the victim or getting her pregnant;
(6)被告人在性侵犯受害人時有否採用安全措施來防止傳染性病給受害人或令受害人受孕；

(7)Whether the sexual abuses have caused physical or psychological trauma to the victim;
(7)受害人是否因被性侵犯而受到肉體或精神的創傷；

(8)Whether the offences have impact on the family members of the victim;
(8)有關的罪行有否影響受害人的家庭；

(9)Whether the defendant was involved in other inappropriate behaviours such as inviting other people to watch or take photos or videos of the offence he committed; and
(9)被告人有否同時涉及其他不當的行為，例如邀請其他人士觀看其罪行或拍攝或錄影；

(10)Whether the defendant is psychologically imbalanced and paedophilic; and the likelihood of his re-offending.”
(10)被告人是否精神不正常及患有戀童癖及其重犯的機會率。”

Recently, the Hon Yeung VP of the Court of Appeal in HKSAR v Tsang Chiu Yu [2012] 3 HKLRD 561 emphasised that:
最近，上訴庭副庭長楊振權在香港特別行政區 訴 曾昭宇 [2012] 3 HKLRD 561強調：

“50.In our view, in considering the appropriate sentence, the interest of the society at large is a factor of paramount importance (see our observations in paragraph 23 of the judgment in HKSAR v Cheung Kwok Yip Peter [2013] (sic) 3 HKC 470).”
“50.本庭認為考慮案件的判刑時，應以社會利益為首要。（見本庭在HKSAR v Cheung Kwok Yip Peter [2013] 3 HKC 470案判案書第23段的討論。）”

The interest of the society emphasized by the Hon Yeung VP refers to the Court’s duty to protect the public when imposing sentence on sexual offenders against children.
楊副庭長所強調的社會利益是指法庭在判處性侵犯兒童的罪犯時有責任保護社會大眾。

In his submission, Mr Edmond Lee, Senior Public Prosecutor of the Department of Justice representing the Respondent, pointed out that there were multiple features in this case that enhances the culpability of the offender:
正如代表答辯人的高級助理刑事檢控專員李俊文陳詞時指出，本案的案情有多項加重刑責的因素：

(a)At the time of incident, the applicant was 36 years of age whereas the victim was 14 odd.  There was a huge age difference between the two of them.  The victim was at an age incapable of protecting herself and vulnerable to any harm done to her;
(a)事發時申請人36歲，受害人14歲多，兩人年齡差距甚大，而受害人亦處於不能保護自己和容易受傷的年齡。

(b)The applicant threatened to cut the victim’s neck and even kill her if she dared to leave and refused to do what she was told to do.
(b)申請人利用恐嚇手段威嚇受害人不可離開和就範，否則會用刀割她的頸甚至殺害她。

(c)The whole ordeal of robbery, sexual assault and assault lasted for more than one hour.  During the time, the applicant forced the victim to take off all her clothes in a very cold winter day and spread her legs to masturbate before him.  Then the applicant worked his finger in and out of the victim’s vagina and anus and molested the victim’s breasts.  This was a series of abhorrent violation against the victim.  The applicant’s behaviour was extremely vile.
(c)整個搶劫、猥褻侵犯和襲擊的過程歷時超過一個小時，中途申請人曾強迫受害人在嚴冬下脫光所有衣服在他面前張開雙腿自慰，之後申請人用手指進出受害人的陰部及臀部，摸受害人的胸部，是一連串可佈的侵犯行為，申請人的行為極為卑劣。

(d)The applicant repeatedly used inappropriate violence occasioning injuries to the victim.  The victim was hit on the head for any disobedience.  Even after she had been violated, the applicant still assaulted her with fists and kicks, banged her head against the concrete barrier and kicked her down into a gully for no reason.  Although the victim did not suffer permanent physical injuries, she was battered and injured all over.
(d)申請人多次使用不當的暴力令受害人受傷，受害人稍不服從，便被打頭，甚至在被侵犯後亦無故地被申請人拳打腳踢，被捉着頭撞向石壆和被踢落溝渠。受害人雖然沒有永久性的身體傷害，但遍體鱗傷，飽受皮肉之苦。

(e)Although the victim’s assessment report indicated that she did not suffer serious Post Traumatic Stress Disorder, it pointed out that the victim experienced intense distress in her court attendance to testify.  When she was asked about the stress, the victim could not help but burst into tears.  She also became emotionally unstable after she had testified in Court.  The life of the victim was seriously disturbed by the assault and it created difficulties in adaptation.  Besides, the fright and pain the victim had suffered in the course of the robbery and assault could be envisaged even without the expert report.
(e)雖然受害人的評估報告顯示她沒有嚴重的心理創傷後遺症，但報告亦指出受害人為需要到法庭作供而深感壓力，而且當被問及有關壓力時，受害人不能自己地痛哭，於庭上作供後亦有情緒不穏的情況出現，是次侵犯事件對受害人生活有相當大困擾而帶來適應上的困難。而受害人在遇劫和遭侵犯的過程中所受的驚嚇和痛苦，更是無需專家報告也能想像。

Although this Court is of the view that the facts of this case were indeed extremely vile, they were still a little bit short of falling into the category of the worst example.  This Court is concerned with the following two aspects.
本庭認為，本案的情節雖然實在十分惡劣，但還是差一點點才跌入最壞的類別之中。本庭所關注的是下面兩點。

First, although the applicant was sentenced to four and a half years’ imprisonment for attempting to rape a girl of 13 years old with another two men in 1996, it should not be given too much weight in sentencing since he was only 18 years old at the time.  In addition, that case happened seventeen years apart from this case.  We would have considered otherwise if the applicant has more recent and more previous convictions for sexually assaulting girls, because such previous convictions indicate D’s recidivism and that previous sentences have had no deterrent effect on him.  In order to protect the public, the Court must impose a more severe punishment.  (See para 23 of HKSAR v Cheung Kwok Yip Peter [2010] 3 HKC 470).
第一，雖然申請人在1996年曾因和其他兩名男子企圖強姦一名13歲女童而被判入獄4年半，但在量刑時不能給予太大的比重，因為當時他只有18歲，而該案跟本案事隔亦有17年之久。若申請人有較近期或較多的性侵女童前科，則作別論，因為這樣的前科說明被告執意犯案，而從前的判刑對他亦沒有阻嚇力；為了保護社會大眾，法庭必須施予更嚴厲的懲處：見HKSAR v Cheung Kwok Yip Peter [2010] 3 HKC 470，第23段。

Second, although the modus operandi of the applicant was extremely vile, it did not involve other inappropriate behaviour such as taking photos or videos of the offence he committed.
第二，雖然申請人的犯案手法十分卑劣，但沒有涉及其他不當的行為如拍攝或錄影犯案經過。

This Court is of the view that the appropriate sentence is nine years instead of the maximum ten years.
本庭認為，合適的刑期是9年，而非最高刑期10 年。

In order to avoid unnecessary misunderstanding, this Court must emphasise that although there are two mitigating factors in this case, namely the applicant does not have any recent similar conviction or performed other inappropriate behaviour, it does not mean that the Court cannot impose the maximum ten years’ imprisonment on defendants in other cases with similar circumstances.  The sentencing all depends on the actual facts of the case.  If the facts of the case are extremely vile, the Court can still impose the maximum penalty on the defendant in the absence of similar previous or other inappropriate behaviour.
為免惹起不必要的誤會，本庭需要強調，雖然在本案中，申請人沒有較近期的同類前科和沒有其他的不當行為這兩點是對他有利的因素，但這不是說，若其他案件中的被告有相同的情形，法庭便不能處以最高的10年刑期；一切都須視乎實際的案情而定。若案情的確極其惡劣，即使被告沒有同類前科或其他不當行為，法庭仍可判他最高的刑期。

This Court also has to point out that although this Court is of the view that the appropriate sentence for the second offence is nine years, we are only saying that the culpability of the applicant is not as serious as to warrant the maximum penalty. His modus operandi was still extremely vile.  He also does not appear to have a scintilla of remorse.  This Court seriously condemns the applicant.
本庭亦需指出，本庭雖然認為控罪二的合適刑期是9年，但這只不過是說申請人的罪責不至重到招來最高的刑期而已。他的犯案手法仍屬十分卑劣，而他亦似乎毫無悔過之意，本庭對申請人予以嚴厲譴責。

As regards the total term of imprisonment, Mr Tze, the counsel submitted that since all three offences were committed at the same time and the second and third offence happened in the same place, under the totality principle, fifteen years’ imprisonment is manifestly excessive.
就總刑期而言，謝大律師指三項控罪均在同一時間犯下，控罪二和三也在同一地點，因此，在總刑期原則下，15年的監禁是明顯過重。

This Court does not agree with Mr Tze.  This Court is of the view that trial judge’s handling of the total term of imprisonment is correct.
本庭不同意謝大律師的陳詞。本庭認為，原審法官就總刑期的處理方法正確。

Conclusion
結論

For the above reasons, this Court grants the applicant’s application for leave to appeal out-of-time against sentence and treating the hearing of the application as the appeal.  Appeal allowed and the sentence for the second offence is reduced to nine years making a total imprisonment of fourteen years.
基於上述理由，本庭准許申請人就刑期提出逾期上訴，視之為正式上訴，並判上訴得直，把控罪二的刑期減為9年，總刑期則減為14年。

Mr Edmond Lee, SADPP of the Department of Justice for the Respondent
答辯人：由律政司高級助理刑事檢控專員李俊文代表。

Mr Y.K.Tze, James, instructed by Chan & Co., S H, assigned by Director of Legal Aid for the Applicant (appeal against sentence)
申請人（刑期申請）：由法律援助署委派陳淑雄律師行轉聘謝英權大律師代表。

Applicant, acting in person (appeal against conviction)
申請人（定罪申請），親自出庭應訊