Hon Pang JA (giving the Reasons for Judgment of the Court):
上訴法庭法官梁紹中宣讀上訴法庭判案書:

This is an appeal from the Court of First Instance of the High Court. The applicant was convicted after trial of one count of trafficking in dangerous drugs involving 1,008 grammes of a crystalline solid containing 997 grammes of ICE, 95 tablets containing 1.38 grammes of methamphetamine and 3.31 grammes of herbal cannabis. He was sentenced to 22 years’ imprisonment by the trial judge (Deputy High Court Judge D Yau). He applied for leave to appeal against conviction.
上訴許可申請人曾震宇於本年1月4日在高等法院原訟法庭承認兩項強姦罪名，即控訴書上的第一項和第十項控罪。申請人原本是被控十項強姦罪名。高等法院原訟法庭彭鍵基法官判申請人每罪入獄8年，同期執行，即共入獄8年。申請人現申請上訴許可，要求減刑。

The Facts
根據申請人承認的事實，他犯案的經過是這樣：

The detailed facts of this case are of little significance.  Broadly speaking, on the night of 7 August 2015, the applicant returned to Hong Kong from the Mainland, and at Lo Wu Control Point, Customs officers found in his underpants and his sling bag the dangerous drugs in question. Under caution, he admitted that he delivered ICE for others for a reward of $500, and that he would telephone a person called “Wong Sam” upon his return to Hong Kong. On the night of 8 August of the same year, the applicant made further admissions under caution.
本案的受害人是一名14歲的女童，她和母親及申請人同住於屯門山景邨一單位，申請人是女童母親的男朋女，女童視申請人為長輩。1998年7月某日早上，女童的母親已上了班，但女童還未起床，因為當時正是學校暑假。申請人趁女童的母親不在家，叫女童到他的床上與他同睡，女童依吩咐上申請人床上跟申請人同睡。期間，申請人先撫摸她的胸部並且告訴她，這是申請人與她母親同睡時的習慣。後來申請人叫女童和他性交，但遭女童拒絕。於是申請人要女童脫去衣服，隨後，申請人在女童不願意的情況下，強行與女童發生了性關係。

Prosecution and defence cases
到1998年10月間的一個早上，申請人叫女童到他的房間，在那裡，申請人在未經女童同意及知道她不會同意的情況下，與女童發生性關係。女童事後離家出走。後來被警方尋回。申請人向她承諾不會再侵犯她，叫她不要將事情告訴別人。女童沒有向她母親投訴，只是與同學提及這事。同學將這事告訴學校的社工。社工知悉後，報警將申請人拘捕。申請人在警誡供詞中承認強姦女童。

The prosecution submitted that the applicant brought dangerous drugs into Hong Kong without lawful authority. Such an act constituted trafficking. His admission that he would be handing over the dangerous drugs to others made this more so. The mentioning of ICE, in particular, in his cautioned statement, proved that he knew he was conveying dangerous drugs.
法官判刑時指申請人在女童家中的身分形同女童的長輩，以長輩強姦後輩實屬可恥。法官對強姦案的判刑有以下的解說：

The applicant testified that he thought he was “travelling with parallel goods” or “carrying electronic parts across checkpoints” for Wong Sam, and he would return the stuff to that man upon his return to Hong Kong. He testified that when being searched, he only said, “Got busted this time”, but he never mentioned carrying ICE for others for a reward. Conversely, he claimed that he had asked the Customs officer what had been found and the latter answered, “It might be ICE”.
『強姦嘅案件 ─ 尤其是強姦兒童嘅案件係非常嚴重嘅案件，法庭喺宣判呢一類型嘅案件係絕不會姑息、手軟。本席考慮到呢一件案件嘅背景同埋特殊嘅情況，就將起點定為8年。但係亦都考慮到你喺呢段時間（3個月裡面）係多次強姦呢位女孩，同埋亦都係以長輩身分欺騙呢個女童話只此一次，當然，事實上發生之後唔係，仲有好多次添。對呢個女童嘅打擊不言而喻，因為經過你嘅侵犯之後，佢亦都曾經離家出走。

The applicant went on to explain in court that Wong Sam and he were parallel goods traders. They had known each other for some time. He, on this occasion, at the request of Wong Sam, went to meet with the latter in Shenzhen. During this time, Wong Sam made him drink a canned drink. After that, the applicant became confused and felt someone tying something underneath his underpants. In confusion, he was then taken to the entrance of the checkpoint and was told to take the sling bag in question to Hong Kong.
至於你話你個女朋友喺信方面原諒你，呢個本席亦都完全唔考慮，點解呢？因為受害人係佢個女，唔係佢個媽媽，你寫信畀受害人要求佢原諒只不過本席睇嚟係一個事後方面作出嘅補救，於事無補。

The applicant said that he did unzip the sling bag to take a look but only saw melon seeds for human consumption. He had put his hand over his underpants briefly but felt nothing different from the usual electronic parts. As regards his admissions under further caution (in the video-recorded interview) and all the details relating to the actual smuggling of ICE, they were fabricated by the Customs officer(s) and forced on him by various improper means. In any case, he was still confused then and did not recover until two days later in Lai Chi Kok Reception Centre.
有鑑於本案存在咗一啲特殊嘅因素，本席將起點由8年增加至12年。

Course of the trial
至於你大律師指出你深感後悔，同埋亦都係坦白承認控罪，本席當然需要畀你一個折扣，而呢個折扣就係一個三分一嘅折扣。除此之外，本席睇唔到有其他嘅求情因素或者有其他因素需要令本席再將刑罰遞減，本席就宣判你係需要入獄8年。』

Given the simple facts of this case, though the prosecution called eight prosecution witnesses (who were all Customs officers) and the applicant elected to give evidence, the entire course of the trial proper (from empanelment of the jury to the completion of the trial judge’s summing-up)  only lasted for about two and a half days (from 10 am on 14 December to 11:30 am on 16 December 2016).
上訴理由是：

As for the jury, they did not reach a verdict the day they retired. They retired at 11:34 am on 16 December 2016 (Friday) and stopped at 8:03 pm the same day; they resumed deliberation at 9:38 am on 17 December (Saturday) and returned a guilty verdict against the applicant at 12:19 pm the same day. The guilty verdict was by a majority of five to two.
12年作為量刑的起點實屬過高；

Ground of appeal
法官採納8年為起點時已將本案的背景和特殊情況列入考慮之內，所以沒有其他特殊理由，可以使他把起點增加至12年。而且法官將起點遞增兩次，因此犯了雙重增加量刑起點的錯誤。

9.Mr Ng, who acted for the applicant in the trial, only put forward one ground of appeal which reads:
法官不是按申請人所承認的兩項控罪量刑，而是按他被控的罪名數目量刑，因此法官犯錯。

“The applicant seeking leave to appeal was found guilty of one charge of trafficking in dangerous drugs by the jury who reached a majority verdict of five to two. The jury took a long time to deliberate. The trial judge did not enquire of the jury at an appropriate time as to any prospect of their reaching any verdict, nor did he remind them to inform the judge if they failed to reach a verdict. In all the circumstances, the trial judge did not exercise his discretion appropriately to inform the jury of the time control of the court and that they were not to deliberate indefinitely until a verdict was returned. There was a real risk that the conviction was reached by the jury being put under pressure of time.
法官認為受害人的年齡是13歲而她的真實年齡是14歲半，法官採納12年為刑期起點是受他錯誤認為受害人的年齡是13歲所影響。

10.Mr Ng contended that in this case, the evidence took a total of eight and a half hours, and the prosecution and defence’s closing submissions and the trial judge’s summing-up another three hours. Minus the time for meals and rest at night, the jury still spent about ten hours in deliberating their verdict and finally only brought in a barely sufficient result of five to two. Therefore, they must have encountered difficulties in the course of their discussions. Nevertheless, the trial judge did not provide them with prompt and/or appropriate assistance or guidance.
代表申請人的王大律陳詞稱香港法庭就強姦案的判刑一向以來都是跟隨女皇訴比林（1）（譯音）一案的指引。王律師引用多個案例支持他的說法。指出跟據比林案例就強姦案一般刑期起點的指引，以本案情況而言，12年的刑期起點實在是太高。

11.For instance, as Lord Lane CJ said in R v Rose [1982] 1 WLR 614, 620 (which the Court of Appeal of the United Kingdom quoted in R v Payne [2001] EWCA Crim 274), depending on the circumstances of the case and the time spent in discussions, the judge should re-assemble the court in due course to make enquiry of the jury as to whether there is any chance of their reaching an agreement in considering whether it is necessary to discharge the jury or to ask them to continue with their discussions on the case. Nevertheless, the trial judge in the present case did not do so.
王律師引用的判例有女皇訴張銘廉（2）（譯音）、女皇訴廖炳堅（3）（譯音）和香港特別行政區訴王光益（4）（譯音）等案。

12.The Court of Appeal in the United Kingdom expressed the view in Payne that without making the aforesaid enquiry, the jury might have mistakenly thought that they were left to discuss the case indefinitely and felt under pressure which they ought not to have. Also, in the opinion of Mr Ng, this was more than likely to have happened in the present case.
本庭認為即使根據比林一案所定出的刑期指引，本案的情況當中，亦有許多可以加重刑罰的因素。該案定出如果無加重刑罰因素存在，一般強姦案的刑期是5年。如果犯案者對受害人負有責任的話，例如是受害人的監護人，起點是8年。如果有其他的因素，例如在強姦過程中使用暴力對待受害人，或多次重覆強姦受害人；或強姦是經過週詳計劃才實行；或受害人年幼或是年紀很大的；刑期的起點應該是高於8年。

13.Mr Ng further contended that the Court of Appeal in the United Kingdom pointed out in R v Court [1995] Crim LR 310 that as a matter of general observation, the judge should keep the jury informed about the timetable and possible implications of the procedures. This principle applies when the jury’s verdict is pending and the judge should intervene in due course.
本庭要指出王大律師引用的張銘廉一案，並無裁定比林一案的刑期指引，是法庭判罰強姦犯時，必須遵從的指引。麥道高法官於該案只認為比林所定出的強姦刑期指引是可以幫助香港法庭决定如何就強姦案量刑。廖炳堅一案亦是王大律師引用案例之一。上訴庭在該案認為在未有其他因素証明比林一案的指引有需要改變，比林一案設立的強姦罪的一般刑期起點仍然需要維持。王光益一案則沒有討論一般強姦罪的刑期是否應該繼續跟隨比林一案所定下的。王光益一案的裁决是以該案的情況，3年半的刑期是明顯的過低，而適當的刑期應為5年。

14.Taking Lincoln De Four v The State [1999] 1 WLR 1731 (PC) as another example, Mr Ng contended that the jury should be explicitly told that in the event of an irreconcilable disagreement over the case, it was their duty to inform the court of it .
本庭於4月7日裁决的律政司司長訴沙曼打星（5）（譯音）一案中，就比林一案的刑期指引，亦有評述。本庭提出雖然比林一案可以提供一些幫助，但該案指引建議的5年起點，不一定適用於香港。在某些個案的特殊情況下，法庭會認為一個較高的刑期起點是適當的量刑。因此，本庭認為彭法官在量刑時是不須要跟隨比林一案所定下的刑期指引。

15.Finally, by citing a case of the Court of Appeal of Hong Kong R v Tam Chi Pang [1986] HKLR 1122, Mr Ng contended that the long period of retirement of the jury is clearly not, of itself, a ground for upsetting a conviction, though there clearly must come a time when this by itself may be sufficient.
本庭認為在量刑時有兩點事實可能引致原審法官錯誤地把刑期起點增至12年。第一點是原審法官，可能錯誤認為申請人雖然承認兩項強姦罪名，但事實上曾多次同樣侵犯受害人。因此，以此為他增加刑罰的考慮。第二點是原審法官可能受他認為受害人的年齡是13歲而不是14歲半的影響，以此為增加刑罰的基礎。因此，可能導致原審法官，由8年增加至12年。本庭認為受害人的年齡對刑罰之輕重有直接的影響，如果受害人是13歲，刑期必然是較受害人是14歲半重。

16.To conclude, Mr Ng submitted that the indifference of the trial judge in the present case left the jury, who were not able to return a valid verdict after long deliberations, unsure of what to do, rendering their verdict of five to two, which was not reached until the following day, unsafe and unsatisfactory.
以本案的情況整體而言，本庭認為12年的起點是明顯的過重，而適當的刑期應為10年，在達至該結論，本庭亦有考慮沙曼打星一案的刑期。考慮到申請人認罪，因此，可獲得三分一的減刑，所以本庭認為申請人應服的刑期是6年8個月。基於以上原因，本庭批准上訴許可申請。以本申請作為上訴的聆訊接納上訴，將刑期由8年減為6年8個月。

Discussion
答辯人：由羅君偉署理副首席政府律師代表

17.The authorities cited by Mr Ng are of no material assistance to the applicant.
上訴許可申請人：由法律援助署委派王熙曜大律師代表