Hon Yeung Ag CJHC (giving the Judgment of the Court):
高等法院署理首席法官楊振權頒發上訴法庭判案書：

Introduction
引言

The appellant (Lee Wai Ka) was charged with raping the victim Ms X on 19 June 2016.  The appellant pleaded not guilty to the charge and was tried before Deputy High Court Judge ST Poon (as he then was) (the Judge) and a jury.
上訴人（李偉嘉）被控在2016年6月19日強姦受害人，X女士。上訴人否認控罪，並在高等法院原訟法庭暫委法官（當時官階）潘兆童（原審法官）會同陪審團席前受審。

On 8 December 2017, the jury found the appellant guilty of the charge.  On 23 January 2018, the Judge sentenced the appellant to a term of five-and-a-half years’ imprisonment.
2017年12月8日，陪審團裁定上訴人罪名成立。2018年1月23日，原審法官判處上訴人入獄5年6個月。

The appellant applied for leave to appeal against his conviction and/or sentence. On 31 July 2018, he abandoned the application for leave to appeal sentence, which was dismissed accordingly.
上訴人不服定罪及判刑，並曾提出上訴許可申請，要求獲准就定罪及/或判刑上訴。2018年7月31日，上訴人放棄就判刑的上訴許可申請，該申請亦因而被撤銷。

On 30 October 2018, a single judge of the Court of Appeal found that the appellant’s grounds of appeal were arguable and therefore granted him leave to appeal against conviction. This court now holds the substantive hearing of his appeal against conviction.
2018年10月30日，上訴法庭單一法官認為上訴人提出的上訴理由有可爭拗的地方，故批准他就定罪提出的上訴許可申請。本庭現需處理上訴人針對定罪而提出的正式上訴。

The prosecution case
控方的立場及證據

The prosecution alleged that the appellant raped the victim on 19 June 2016 at the Viva Villa in Kowloon Tong. According to the prosecution, the victim had taken part in an online game since 2015 and joined an organisation consisting of 100 to 200 members. On 11 June 2016, the victim went to Neway in Argyle Centre to participate in a gathering of that organisation and became acquainted with the appellant there.
控方指上訴人於2016年6月19日在九龍塘漫春天精品酒店強姦受害人。控方指受害人在2015年開始參與一網上遊戲，並加入了一個有一百多至200名會員的團體。2016年6月11日，受害人前往旺角中心的Neway參加團體舉辦的聚會，並認識了上訴人。

That night, the victim drank herself into a stupor, and when she came round in the next morning, ie 12 June 2016, she found herself at home. She did not know how she had returned home, but subsequently learnt from her friend that she was taken home by one male and one female. The appellant also told her through WhatsApp that he was the man who had taken her home on the night of 11 June 2016.
當晚受害人醉酒不省人事，而在翌日即2016年6月12日早上醒來時，發現自己已身在家中。受害人不知悉自己是如何返家，但後來從朋友口中知悉是由一男一女送她回家的，而上訴人亦有透過WhatsApp向受害人表示他就是在2016年6月11日晚上送她返家的男子。

The same day, ie 12 June 2016, the appellant arranged with the victim to play online games at her home, and he did not leave until six in the evening. That night, the appellant asked the victim to see a movie, but she refused. On 15 June 2016, the appellant drove to pick up the victim after work and then went to her home for dinner before departing.
同日，即2016年6月12日上訴人相約受害人在她的家中打機，直到當天黃昏6時才離開。當天晚上上訴人再約受害人看電影，但受害人拒絕。2016年6月15日，上訴人駕車接受害人下班，並前往受害人家中晚膳後才離開。

On 19 June 2016, the appellant arranged with the victim to go to a gathering hosted by his friend at J1 Club at Carnarvon Road, Tsim Sha Tsui. They met downstairs and then went up to J1 Club together.
2016年6月19日，上訴人相約受害人出席他的朋友在尖沙咀加拿芬道J1 Club舉行的聚會。他們在J1 Club樓下相會後，便一起登上J1 Club。

The victim said that at the gathering at J1 Club, she took part in drinking games, and lost consciousness as a result of drinking a large quantity of alcohol. She claimed that when she regained consciousness, she found herself naked in bed in a hotel room with the appellant half-naked sleeping next to her. The appellant denied having had sex with her, alleging that she had hit him repeatedly and peed on the floor inside the room, and so he “could not have done it even if he had wanted to”.  The victim said that she felt ashamed and thus chose to leave the hotel and accept the appellant’s explanation. Afterwards, the appellant through his friend assisted the victim to look for her missing handbag.
受害人指在J1 Club聚會時她有參與飲酒遊戲，並因喝下大量酒精飲品而失去知覺。受害人指當她酒醒時，發現自己身處一酒店房間，一絲不掛睡在床上，而上訴人亦是赤祼上身睡在她身旁。上訴人否認有和受害人性交，並表示受害人曾不停打他及有在房間地上小便，故他“想搞都搞唔到”。受害人指她當時因為感到羞愧，故選擇即時離開酒店，及接納了上訴人的解釋。其後，上訴人有透過朋友協助受害人找尋她失去的手袋。

The victim admitted that she again went with the appellant to J1 Club on 25 June 2016 to attend a friend’s birthday party, and she could not recall how she returned home because she had been drunk. Subsequently, she learnt that the appellant had again taken her back to her home.
受害人承認有和上訴人在2016年6月25日再前往J1 Club參加朋友的生日會，而她亦因為醉酒而記不起如何返家。其後她知悉亦是上訴人送她返家的。

The victim denied having had sex with the appellant at her home on 12 June 2016 and 19 June 2016.
受害人否認在2016年6月12日及2016年6月19日有在自己家中和上訴人性交。

On 5 July 2016, the appellant found out that she was pregnant and suspected this had to do with the appellant because she had had no sex with anyone else for several months. She WhatsApped the appellant to ask him if he had “molested” her in the Viva Villa on 19 June 2016. The appellant at first denied it, but afterwards said that “it is normal for such thing to happen between boyfriend and girlfriend, and it is not that he denies it”.  It was only after the victim repeatedly questioned him and said she would make a report to the police that the appellant further softened his stance and said to the victim, “Sorry, I know it’s my fault”; “Thank you for giving me a chance, I will change”, “Will do my best to compensate for it” and “Will save money”.  However, when the victim asked him for compensation, he said, “How can I tell if I was the one,” and indicated that he would treat the victim well and even said “get married, give birth” and so on. The appellant also said that he knew it was his fault and asked the victim to forgive him. He even tried to get the victim’s bank account number so as to pay the $30,000 that she requested for an abortion and recuperation.
2016年7月5日，受害人發覺自己懷孕。受害人表示自己已有數月沒有和其他人發生性行為，故懷疑上訴人和事件有關。她以WhatsApp向上訴人查問他有否在2016年6月19日在漫春天精品酒店“搞”過她。上訴人先否認，但後來表示“男女朋友發生該些事很正常，他都冇唔認”。經受害人多番查問及表示會報警後，上訴人的態度才進一步軟化並向受害人說：“對唔住，我知道錯”、“多謝你比機會我，我會改”、“盡能力補償”及“會儲錢”。但當受害人要他賠償時，上訴人又說：“我點知係咪我”，及表示他對受害人好，更說過“結婚，生出黎”等說話。上訴人亦表示自己知錯，要求受害人原諒他。上訴人甚至要取得受害人的銀行帳戶，以支付她要求的3萬元墮胎費和調理費。

On 5 July 2016 and the following day, the victim told her friends Miki Leung and Mr Cheng that the appellant had had sexual intercourse with her in a hotel. She also approached the Family Planning Association for help as advised by Miki Leung.
在2016年7月5日及翌日，受害人有向她的朋友Miki Leung和鄭先生指上訴人在酒店和她性交。她亦有按Miki Leung的建議到家計會尋求協助。

The victim said that the appellant, upon knowing that she would make a report to the police, arranged with her to meet in the park near her home in the small hours on 7 July 2016.  The victim said that the appellant in the meeting admitted that he had sexual intercourse with her without her being aware of it, said it was his fault, pleaded in tears that he was his mother’s only son and begged her not to make any report to the police. The victim claimed that she was softhearted and decided not to take any legal action against the appellant, and he said he would be responsible for the money she needed for abortion and recuperation. The victim even said that she had taken away the appellant’s identity card and home visit permit as security, and in order to convince her to cancel the report already made to the police, he even proposed to marry her but she refused.
受害人指上訴人知悉她會報警後，在2016年7月7日凌晨和她相約在家樓下的公園見面。受害人指上訴人在會面時承認有在她不知情下和她性交，上訴人指自己做錯，並哭訴母親只有他一名兒子，及請求受害人不要報警。受害人指自己心軟，故決定不控告上訴人，而上訴人則表示會負責受害人墮胎和調理身體所需的費用。受害人更指有取走上訴人的身份證和回鄉證作擔保。受害人亦表示上訴人為了說服她去銷案，說會和她結婚，但她拒絕。

The victim confirmed that on 10 July 2016, she texted the appellant, requiring him to deposit $30,000 into her account the following day and arranging with him to meet on 11 July 2016. The following day, the appellant drove the victim to the Family Planning Association to attend a follow-up appointment and afterwards to the A & E department of the United Christian Hospital. During that time, they quarrelled, and the appellant indicated to the victim that he had already engaged a lawyer to sue her for blackmail. Consequently, the victim decided to go with her mother to make a report to the police, but the appellant knelt down at the victim’s home to beg her not to make any police report.
受害人確認在2016年7月10日有發訊息給上訴人要他在翌日存3萬元到她的帳戶，並和他相約在2016年7月11日會面。翌日，上訴人駕車送受害人到家計會覆診後，再送受害人到聯合醫院看急症。期間，兩人有爭拗，而上訴人向受害人表示已聘請律師告受害人勒索。結果，受害人決定和母親一起報警，而上訴人則在受害人家中跪在地上要求受害人不要報警。

From the moment the victim left her residence up to the time she arrived at the police station to make a report, she had recorded all the conversations between her, her mother and the appellant.  According to the audio record, the victim accused the appellant of having raped her and made her pregnant whilst the appellant repeatedly admitted his wrongdoing and also said that he was willing to take responsibility and asked her to forgive him.
受害人從離開居所一刻開始，直至她抵達警署報案，都有將整個包括她、她的母親及上訴人之間的對話過程錄音。從錄音記錄的內容顯示，受害人有指控上訴人強姦她，令她懷孕，而上訴人則多次認錯，更表示願意負責並要求受害人原諒。

The victim denied having had sexual intercourse with the appellant at home in the afternoon of 12 June 2016 or in the morning of 19 June 2016. She also denied having asked the appellant for money to repay her credit card debt.
受害人否認在2016年6月12日下午及2016年6月19日早上有在家中和上訴人性交。受害人亦否認有問上訴人要錢來清還卡數。

Apart from the victim’s evidence, the prosecution also produced the relevant WhatsApp communication records between the victim and the appellant (P12) and the audio recordings (P11) as exhibits. The victim underwent an abortion on 22 July 2016, and the DNA evidence proved that the appellant was the natural father of the victim’s foetus.
除了受害人的證供外，控方亦將受害人和上訴人的有關WhatsApp通訊記錄（P12）和錄音記錄（P11）呈堂為證。受害人是在2016年7月22日接受終止懷孕手術，而DNA證據亦證實受害人胎兒的親生父親就是上訴人。

The victim’s mother and friends, namely Miki Leung and Mr Cheng, also gave evidence which was consistent with what the victim said.  One of the prosecution witnesses testified that she had seen the victim sleeping on the sofa at around three in the morning on 19 June 2016 in J1 Club with the appellant beside her, but later there was no sign of both.
受害人的母親、朋友Miki Leung和鄭先生都有作供，他們的證供都和受害人的說法相吻合。一名控方證人作供時指她在2016年6月19日凌晨3時許在J1 Club見到受害人在梳化上睡着，而上訴人在其身旁，但其後兩人不知所終。

The prosecution also produced to the court as evidence the record of the video interview conducted by the police with the appellant, the WhatsApp communication records of the parties concerned, and some images and footage captured on the CCTV recordings of what happened when the appellant and the victim checked in at and checked out of the Viva Villa on 19 June 2016.
控方亦有將上訴人和警員會面的記錄、各人的WhatsApp通訊記錄和一些在2016年6月19日上訴人和受害人登記入住酒店和離開漫春天精品酒店時從閉路電視擷取的影像和錄影片段呈堂。

The appellant’s case
上訴人的答辯理由和證據

The defence denied that the appellant raped the victim in the Viva Villa on 19 June 2016, but said that he had had sexual intercourse with her on 12 June 2016 and 19 June 2016 in the afternoon at her home.  The defence said that at all material times, the victim was sober and consented to have sex with the appellant.
辯方否認上訴人有於2016年6月19日在漫春天精品酒店強姦受害人，但指上訴人於2016年6月12日及2016年6月19日下午在受害人家中和她性交。辯方指當時受害人是清醒的，而她亦是同意和上訴人性交的。

The appellant did not give evidence at the trial but called a witness/witnesses. He relied on what he had said when the police interviewed him on video as his defence.
上訴人沒有作供自辯，但有傳召證人。上訴人是依賴他和警員進行錄影會面時的說法，作為其答辯理據。

The appellant said in the police video interview that in the afternoon of 12 June 2016, he asked the victim to go to a movie but she said she was not feeling well. Later on, the appellant went to the victim’s home and played online games in her room. He said that they had consensual sexual intercourse. The appellant said that no condom had been used, and the victim, on knowing that he had ejaculated inside her, asked him, “What if (I) get pregnant(?)” The appellant said that he would take responsibility, and the victim said, “You’d better mean it.” The appellant said firmly that the victim was sober at the material time and consented to have sexual intercourse with him.
上訴人和警員進行錄影會面時指在2016年6月12日下午約受害人看電影，但受害人表示不舒服。其後上訴人前往受害人家，並在她的房間內打機。上訴人指他們兩人是在雙方同意下性交。上訴人指自己沒有使用避孕套，而受害人是知悉上訴人在她的體內射精後，就問他：“有咗點算”，上訴人表示會負責任，而受害人更說：“你係至好呀”。上訴人力稱當時受害人是清醒，亦是同意和他性交的。

As to what happened on 19 June 2016, according to the appellant, he and the victim both got drunk in J1 Club, and she got more drunk. When they left J1 Club at around 3 am, the appellant indicated that he would accompany the victim home, but the victim said that her mother had scolded her each time she went home drunk, and so she wished to rest at a hotel first. Eventually, they went to a hotel in Kowloon Tong by taxi. According to the appellant, after getting into the room, the victim peed on the floor, stripped off to take a shower and went to bed immediately after that. The appellant said that he himself had also gone to bed after taking a shower in the toilet and slept until nine something the next morning. After they woke up, the victim said her handbag had gone missing, and the appellant helped her look for the handbag.
就2016年6月19日發生的事件，上訴人的說法是他和受害人都因為在J1 Club喝酒而醉酒，但受害人醉的程度較深。他們在當日半夜約3時離開J1 Club時，上訴人表示會送受害人返家，但受害人則指每次醉酒返家後都被母親責駡， 故希望先到酒店休息。結果，他們乘坐的士前往九龍塘一酒店。上訴人指受害人入房後在地上小便，並脫下衣服去洗澡，並於洗澡完畢後便立刻上牀睡覺。上訴人指自己亦有入廁所洗澡後就上床睡覺至翌日早上9時多。他們睡醒後，受害人表示遺失了手袋，而上訴人有協助她尋找手袋。

The appellant admitted that he and the victim had kissed on board the taxi on the way to the hotel, but said he did not have sexual intercourse with her in the hotel room. The appellant said that they went back together to the victim’s residence after leaving the hotel on 19 June 2016, and he had sexual intercourse with her again in her room. The appellant said he also had used no condom and ejaculated inside her. After that, he continued to help the victim look for her missing handbag.
上訴人承認在乘坐的士前往酒店途中有和受害人接吻，但表示在酒店房間內並沒有和受害人性交。上訴人指兩人在2016年6月19日離開酒店後一同返回受害人的居所，並在受害人的房間再次和她性交。上訴人指他亦是沒有戴避孕套，並在受害人體內射精。其後，上訴人繼續協助受害人尋找她遺失的手袋。

The appellant said that when he had sexual intercourse with the victim on 12 and 19 June 2016, she was sober and consented to have sex. It was the appellant’s case that the victim became pregnant as a result of one of the aforesaid two sexual intercourses.
上訴人指他在2016年6月12日及19日和受害人性交時，她是清醒的，亦是同意性交的。上訴人的立場是受害人懷孕是上述兩次性交之一所導致。

The appellant said that when they met in the park in the small hours on 7 July 2016, the victim scolded him intensely. When he expressed his willingness to take responsibility, she took away his identity card and home visit permit and demanded a few thousand dollars. However, he just had about $1,000 on him and so only gave her $1,000. According to the appellant, the victim said to him, “Don’t think of ending it like this. You can’t fix this mess without spending a few ten-thousand bucks. You are doomed, prison is waiting for you.”
上訴人指兩人於2016年7月7日凌晨在公園見面時，受害人瘋狂地駡他。當上訴人表示會負責任時，受害人就取去他的身份證和回鄉證，並要上訴人給她數千元。但當時上訴人身上只有千多元，故只給了受害人1,000元。上訴人指受害人對他說：“唔好諗住就咁算，呢壇嘢冇幾皮嘢，你搞唔掂呀，你死梗呀，準備坐監呀你”。

As to the circumstances before the victim made the report to the police on 11 July 2016, the appellant said that he had phoned and WhatsApped the victim many times and intended to give her $10,000 first because she had asked him to pay $30,000 into her account, and although she had arranged with him to see a doctor that day, she said that she had to get some more sleep. Eventually, the appellant went to the victim’s place to find her. When the victim’s mother opened the door, the victim pulled him away and scolded him, “Are you playing games?  Come up here, are you out of mind?  Are you trying to make trouble?  Go ahead, play it up.” The appellant told the victim that it was only because he had not seen her after waiting for a long time that he became worried and so went to her residence to look for her.  Finally, the appellant left and waited for her downstairs.  When the victim came down about half an hour later, she complained of having severe pain and said she needed a painkilling injection.
就2016年7月11日受害人報警前的情況，上訴人指他曾多次致電受害人及WhatsApp給她，並打算先給她1萬元，原因是受害人曾要求他支付3萬元到其帳戶，並相約他當天去看醫生，但受害人表示要多睡一會。結果，上訴人前往受害人的家找她。當受害人的母親開門後，受害人扯開她，並責駡上訴人：“你係咪玩嘢呀？殺上嚟，你黐咗線呀？係咪想搞事呀？搞大件事佢囉”。上訴人向受害人表示他是因為等不到受害人而感到擔心才前往她的居所找她。結果上訴人離開上址，並在樓下等她，而受害人在約30分鐘後下來時向上訴人說她好痛，要打止痛針。

Hence, they went to a clinic in a shopping centre nearby, but since there were many people inside, the victim said, “(I’m) not going to see the doctor; going to the Family Planning Association.”
於是，兩人前往附近一商場的診所，但因為診所內人多，受害人就表示“唔睇嘞，去家計會”。

When the two arrived at the Family Planning Association in Wanchai, the victim required the appellant to buy her some sweets. Eventually, when the appellant returned to the Family Planning Association with some sweets, water and bread that he bought, he did not see the victim. He waited there for a while and then saw her come out from a room. She told him that the doctor said she might have a threatened miscarriage and needed to go to a hospital. Consequently, the appellant accompanied the victim to the United Christian Hospital, but she refused to let him accompany her during the examination and also refused to be hospitalised as instructed by the doctor. When he asked for his identity card and home visit permit back, she demanded $30,000 first. He said that he could give her $10,000 first, but she said, “It’s clearly agreed at $30,000. What is meant by the $10,000 here? Are you playing games? What do you regard me as? Thinking of going away after giving $10,000? So let’s tell the police, let’s make a police report now.” The appellant said that he became somewhat angry and so said to the victim, “Miss, so now you are simply threatening me.”
當兩人抵達灣仔家計會後，受害人要上訴人買糖給她吃。結果上訴人買了糖、水及麵包帶返家計會後，卻見不到受害人。他等了一會後，受害人從一房間走出來並向上訴人表示醫生說她可能作小產，並要前往醫院。結果，上訴人送受害人前往聯合醫院，但受害人拒絕上訴人陪同她接受檢查，亦拒絕按醫生的指示留院。當上訴人要求取回他的身份證及回鄉證時，受害人要上訴人先支付3萬元。上訴人表示可以先給她1萬元，但受害人說：“明明講好三萬鈫喎，一萬鈫算係咩嘢啫呢度？你玩嘢呀？咁你當我咩嘢呀咁樣？諗住畀完一萬鈫之後走佬呀？咁報警囉，咁而家報警囉”。上訴人表示自己有些嬲怒，故向受害人說：“阿小姐，咁你而家即係威脅緊我咋喎”。

The appellant said he raised his voice at that moment, and the victim demanded he drive her back home immediately for her to go with her mother to make a police report.
上訴人指自己當時語氣大聲，而受害人要他立刻載她返回家找她的母親一起去報警。

Consequently, the victim went back home, she and her mother changed and went together to the police station to make a report. The appellant said that the victim was very agitated at that time, and he tried to pacify her, saying that he would take responsibility and assured her that he would not run away. In the course of it, the victim also shouted at her mother loudly, accusing her mother of not standing by her. In the end, they went to the police station together.
結果，受害人返家和其母親一起換衣服後去警署報警。上訴人指當時受害人非常激動，而他有安撫她，更表示會負責任及一定不會跑掉。期間，受害人更有大聲呼喝其母親，指母親不和她同一陣線。結果，三人一起前往警署。

The appellant strongly denied having raped the victim by taking advantage of her drunken state inside a room in the Viva Villa on 19 June 2016, and claimed that they had had sexual intercourse on 12 June 2016 and on 19 June 2016 in the afternoon at the victim’s home. He asserted that the victim was sober and consented to sexual intercourse.
上訴人極力否認有在2016年6月19日在漫春天精品酒店房間內乘受害人醉酒時強姦她，並指他們是在2016年6月12日及6月19日下午在受害人的家中性交。上訴人力稱當時受害人是清醒及同意兩人性交的。

The Judge’s ruling and directions given to the jury
原審法官的裁決及對陪審團的指引

The Judge found that the contents of the audio recordings made by the victim of what happened on the way to the police station (P11) showed that the appellant did admit the victim’s allegation of rape against him. The victim, the appellant and the victim’s mother had the following conversation at that time:
原審法官認為受害人在前往警署報警途中錄音（P11）的內容顯示，上訴人有就受害人指他強姦作出招認。當時受害人、上訴人和受害人的母親有以下對話：

In relation to the appellant’s confessions as alleged by the prosecution, including the WhatsApp communications between them (P12) and the above audio recordings, the Judge gave the jury the following directions:
就控方指上訴人曾作出過的招認，包括兩人的WhatsApp通訊（P12）和上述錄音記錄，原審法官向陪審團作出了以下指引：

“Members of the jury, the prosecution alleges that the defendant had on various occasions and circumstances confessed to X, confessing that he indeed had sexual intercourse with X in the hotel on 19 June, and the prosecution says that these confessions are true. Such confessions alleged by the prosecution are the contents of certain WhatsApp messages sent to X by the defendant, what the defendant said to X in the downstairs park near where she lived in the small hours on 7 July, and the defendant’s reaction on 11 July in the audio recordings which we have heard. In relation to the WhatsApp messages sent by the defendant to X, it is the prosecution’s position that X was all along asking the defendant if he had sexual intercourse with her in the hotel on 19 June, and it understood that he sent a voice message to X saying, “And also, I have not said I deny.” So, from this, the prosecution concludes that this is a confession made by the defendant. Members of the jury, although X testified that in her view, the aforesaid meant the defendant admitted having had sexual intercourse with X that day in the hotel, this is just X’s evidence and is only her own opinion. When you consider the question of whether this can be regarded as the defendant’s confession, you do not need to take into account X’s opinion. You should consider all the circumstances and background in which the defendant sent out the message, carefully read and try to understand the context of the message concerned and then determine if the message sent out by the defendant meant he admitted having sexual intercourse with X in the hotel. As to the confession that X claimed the defendant made in the downstairs park near X’s residence, if you accept X’s evidence, being sure that the defendant had indeed admitted in front of X that he on that night in the hotel had sexual intercourse with her without her being aware of it, you may rely on what the defendant has admitted in front of X to determine the case. In relation to the defendant’s reaction on 11 July in the audio recordings, it is the prosecution’s case that after X had said that she was going to the police, the defendant kept on apologising to her and even knelt down to beg for her forgiveness; and while X told her mother that the defendant had raped her, the defendant said spontaneously, ‘Mother, I was wrong, I know I was really wrong.’ The prosecution suggests that what was said and done is sufficient to constitute the defendant’s confession. Members of the jury, likewise, you have to carefully consider the background and context in which the defendant uttered such words and behaved in such way, and then decide if what was said and done amounts to a confession[.]
“各位陪審員，控方係指被告人喺不同嘅場合同埋情況都曾經向X係作出過一啲招認，招認就承認咗佢喺6月19號確實係有同X喺酒店嗰度係性交，咁控方話而呢啲招認都係真實。控方所指嘅呢啲招認，分別就係指被告人發畀X嘅WhatsApp訊息嘅某啲內容，同埋係被告人7月7號凌晨喺X樓下公園對X所講嘅說話，以及係喺7月11號當日，大家喺錄音片段中聽到被告人嗰啲反應。咁就住被告人發畀X嘅WhatsApp訊息方面，控方嘅立場係X一直都係喺度質問緊被告人有冇喺6月19號凌晨喺酒店之內同佢性交，咁而被告人係喺呢一個理解之下係向X發出過語音訊息話「另外，我都冇話唔認。」咁，所以控方認為呢，呢一個係被告人嘅一個招認嚟嘅。各位陪審員，雖然X喺佢嘅證供裡面話，佢認為被告人咁樣樣就代表咗佢承認咗當日有喺酒店裡面同X性交，呢個係X嘅證供，但係呢個只係X自己嘅意見，你哋喺考慮呢一個算唔算係被告人嘅招認呢個議題嘅時候，唔需要理會X嘅意見，你哋應該考慮所有被告人發出嘅訊息嘅時候嘅情況同埋背景，細心閱讀同埋理解嗰啲相關訊息嘅前文後理，然後自己作出判斷，究竟被告人所發嘅訊息，是否等於承認咗佢當日有喺酒店同X性交。至於X指稱被告人喺佢樓下公園所作嘅招認，如果你哋接納X嘅證供，肯定被告人確實曾經喺X面前承認咗當晚喺酒店，喺X不知情之下同佢性交嘅話，你哋就可以以被告人喺X面前承認嘅呢啲事情作為判案嘅依據喇。而有關被告人喺7月11號嘅錄音裡面嗰啲反應，控方嘅立場係，當X話佢要去報警之後，被告人不斷咁同X道歉，仲跪地求饒，而當X向佢媽媽話被告人強姦佢，被告人即時嘅講法就係「媽咪，我唔啱，我知道真係唔啱喇。」呢啲說話行為，控方認為係足以構成被告人嘅一啲招認。各位陪審員，同樣地，你哋要細心考慮被告人嘅呢啲說話同埋行為嘅背景同埋前文後理，然後判斷究竟被告人嘅呢啲說話行為是否構成招認呢？

Members of the jury, when you decide if you can safely rely on what the defendant has admitted as the basis of your verdict, you have to consider three points: First, did the defendant in fact make these confessions[?] If you are not sure whether he did, you may disregard them; however, if you are sure that he did make such confessions, then, secondly, you have to consider the second point: can the confessions which the prosecution alleged were made by the defendant be regarded as confessions? If you are not sure, then you do not need to pay any regard to these so-called confessions; however, if you are sure, you have to go further and consider the third point, which is: are you sure that the contents of the confessions were true? When you consider this point, ie whether the defendant’s confessions are true, you have to pay special regard to whether the defendant just went along or might have gone along with X so as to prevent her from complaining to the police, and hence he made the confessions and therefore they are not truthful? Irrespective of the reasons, if you are not sure whether these confessions are true, you must disregard them; if you are sure that these confessions made by the defendant are true, then you can rely on them as the basis of your verdict.
各位陪審員，你哋決定是否可以穩妥地，以被告人承認嘅事情作為判案嘅依據時候，必須考慮三點：第一，就係被告人事實上有冇作出呢啲招認，如果你哋唔肯定佢有作出呢啲招認，就不需理會呢啲招認，但係如果你哋肯定佢有作出呢啲招認嘅話，咁樣，第二點，你哋要考慮第二點，控方所指嘅被告人嘅招認，是否可以被視為招認呢？如果你哋唔肯定，就唔需要理會呢啲所謂招認；但如果你哋肯定嘅話，你哋就要進而考慮第三點，就你哋是否肯定嗰啲招認嘅內容係屬實呢？你哋喺考慮呢一點嘅時候，即係話被告人嗰啲招認內容是否屬實嘅時候，你哋要特別考慮，被告人嘅招認是否或者可能只係因為被告人為免X報警，而去迎合X嘅呢？所以就並非真實嘅呢？不論咩嘢原因，如果你哋唔肯定呢啲招認內容係真嘅話，你哋就必須棄之不理；如果你哋肯定被告人呢啲承認嘅事情係真嘅話，就可以將佢哋作為斷案嘅依據喇。

Members of the jury, please bear in mind the directions that I have just given you in respect of confessions as evidence. Now we return to X’s evidence. Under cross-examination, X said that she was not working before June and July 2016 because she was not happy and had emotional problems. Previously she had a habit of taking cocaine. From March 2016 onwards, she began to receive treatment, and has successfully kicked the habit. Since June 2016, she has worked with CSL. She has agreed that she often goes out for fun and drinks, which ends up in “a blackout” almost each time, and is required to be taken home by friends.” (emphasis added)
各位陪審員，請你哋謹記我剛才畀你哋有關招認作為證據嘅一啲指引，而家係返番去X嘅證供。盤問嘅時候，X就話佢喺2016年6、7月之前係冇工作，因為佢係唔開心，有情緒病，佢之前有服用可卡因嘅習慣，但係喺2016年3月開始就戒毒，之後係成功戒除，佢喺2016年6月開始就喺CSL工作，佢同意佢有經常出街玩、飲酒，差唔多每次都飲到「斷片」，係要由朋友係送佢返屋企。” （強調後加）

Grounds of appeal
上訴理由

Ms Priscilla Lam of counsel for the appellant first pointed out that at the trial the defence had had no objection to the admission of P12 as evidence but had challenged the admissibility of P11. She contended that the contents of P11 did not constitute any confession whereas the prejudicial effect caused to the appellant far outweighed its probative value, and hence it should not have been admitted as evidence. Ms Lam asserted that the Judge had been wrong in not excluding P11 from the evidence, and this had rendered the conviction of the appellant unsafe and unsatisfactory.
代表上訴人的林芷瑩大律師先指出在原審時，辯方不反對P12呈堂，但有反對P11呈堂為證。林大律師認為P11的內容不構成招認，但其內容對上訴人造成的偏見遠較其舉證價值高，故不應獲准呈堂為證。林大律師力稱原審法官沒有剔除P11為證是錯誤的決定，導致針對上訴人的定罪裁決不穩妥。

Ms Lam stressed that what the appellant said in the conversations with the victim and her mother was ambiguous. What he said might be in response to his previous reference to engaging a lawyer about the victim blackmailing him with her pregnancy.
林大律師強調上訴人和受害人及其母親對話時所說的說話含糊不清。她指上訴人的說話可能是回應他曾說過找律師指控受害人以有身孕來勒索上訴人有關。

Ms Lam also pointed out that the Judge, in directing the jury to consider whether P11 and P12 constituted confessions, failed to sufficiently analyse the contents of P11 and P12 or identify to the jury what they should pay attention to but merely requested them to read P11 and P12 by themselves.
林大律師亦指原審法官在指引陪審團考慮P11和P12是否構成招認時，沒有充分分析P11和P12的內容，亦沒有向陪審團指出他們應注意的事項，而只是要求陪審團自行閱讀P11和P12。

Ms Lam emphasised that the contents of P12 did partly support what the appellant had said, however, the Judge in his directions did not tell the jury that they had to take into account his explanations in the record of video interview as well, in considering whether he had confessed.
林大律師強調P12的內容部分支持上訴人的說法，但原審法官沒有指示陪審團在考慮上訴人是否有作出招認時，亦要考慮他在錄影會面時所作出過的解釋。

Ms Lam asserted that there was material showing that the “confessions” made by the appellant were a result of unfair and oppressive means, but the Judge failed to direct the jury properly, in particular, he did not point out that X was lying when she claimed that she would go to the police station to cancel the report whilst in fact no report had ever been made. Ms Lam also pointed to the Judge’s failure to remind the jury to take into account the appellant’s explanations given in the course of the video interview.
林大律師力稱有資料顯示上訴人作出的“招認”是受害人對他的不公平及威逼手段所導致，但原審法官卻沒有適當地引導陪審團，特別是沒有向陪審團指出X有說謊，指她會到警署銷案，而事實上當時她仍未報案。林大律師亦指原審法官沒有提醒陪審團要考慮上訴人在錄影會面時所作出過的解釋。

Ms Lam contended that there was evidence showing that the victim had used improper means to force the appellant to confess, and although she was not a person in authority, it was still necessary for the Judge to give the jury the Mushtaq direction, namely, directing the jury that if they concluded that the confession concerned was or might have been obtained as a result of oppression or anything said or done improperly, they should disregard such confessions.
林大律師認為有證據顯示受害人有作出過不當手段逼使上訴人作出招認，而雖然她並非是一名有權力的人（Person in Authority），但原審法官仍需要給予陪審團Mushtaq Direction（Mushtaq指引），即要指示陪審團如認為有關招認是或可能是以威逼手段或因為某些不當的說話或行為所導致，則陪審團應不要理會該些招認。

Ms Lam has also cited HKSAR v Pang Hiu San (2014) 17 HKCFA 545 (sic), emphasising the importance of an accused’s entitlement to the right to silence and the right to have a fair trial.  It was Ms Lam’s position that the Judge’s failure to give the jury the Mushtaq direction infringed the appellant’s right to silence and rendered the trial unfair.
林大律師亦援引HKSAR v Pang Hiu San (2014) 17 HKCFA 545案，強調被告人享有緘默權及公平審訊權利的重要性。林大律師的立場是原審法官沒有給予陪審團適當的Mushtaq指引，是違反了上訴人的緘默權而引致審訊不公。

Discussion
討論

It is indisputable that the appellant and the victim had sexual intercourse, causing her to become pregnant.  The victim said that during the relevant period, she was not aware of having sex with anybody. Therefore, the only possibility was that the appellant raped her after she became drunk and unconscious and was taken to the Viva Villa on 19 June 2016, which resulted in her pregnancy.
上訴人曾和受害人性交，導致她懷孕是不爭的事實。受害人指在有關時段，她沒有意識到曾和任何人性交。因此，唯一的可能是當她在2016年6月19日被帶到漫春天精品酒店及醉酒不省人事時，遭到上訴人強姦後懷孕。

The appellant admitted that he had gone to the Viva Villa with the victim in the small hours of 19 June 2016, but denied having sexual intercourse with her in the hotel room.
上訴人承認他在2016年6月19日凌晨有和受害人前往漫春天精品酒店，但他否認有在酒店房間內和受害人性交。

It was the appellant’s case that he and the victim had sexual intercourse at her home on 12 June 2016 and 19 June 2016 in the afternoon while she was sober and she consented, which caused her to become pregnant.  He alleged that she lied to falsely accuse him so as to hide the fact that they had had sex twice at her home and she was unhappy with his blackmail allegation.
上訴人的立場是於2016年6月12日和2016年6月19日下午在受害人的家中，並在受害人清醒及同意下和她性交而導致她懷孕。上訴人指受害人是為了隱瞞兩人兩次在她家中性交及不滿他的勒索指控而說謊來誣告他。

The prosecution evidence against the appellant mainly came from the victim and also relied on the victim’s complaints to Miki Leung and Mr Cheng shortly after the incident. Those complaints were consistent with the victim’s allegations against the appellant, showing her to be an honest and reliable witness.
控方針對上訴人的證據主要源自受害人，但控方亦有依賴在事發後不久受害人向Miki Leung和鄭先生作出的投訴。該些投訴和受害人指控上訴人的說法是一致的，故顯示她是一名誠實及可靠的證人。

The prosecution also relied on P11 and P12. According to the prosecution, those WhatsApp communication records and audio recordings showed that the appellant admitted the victim’s allegations against him, namely that he raped her while she was drunk and unconscious in a room at the Viva Villa on 19 June 2016.
控方亦依賴有關的P11和P12。控方的立場是該些WhatsApp通訊記錄及錄音記錄顯示了上訴人承認受害人對他的指控，即上訴人於2016年6月19日在漫春天精品酒店房間內趁她酒醉不省時強姦了她。

According to the contents of P11 and P12, faced with the victim’s clear allegation of rape against him, the appellant repeatedly said he knew that it was his fault, apologised and begged her for forgiveness.
根據有關的P11及P12的內容，上訴人面對受害人明確指控他強姦時，曾多次表示知錯及歉意，並要求受害人原諒。

The appellant said that he had accused the victim of threatening and blackmailing him and demanding money, which made the victim angry, and it was only for those disgraceful words that he apologised to her and requested her forgiveness. However, the contents of P11 and P12 were not consistent with the appellant’s version. Had he had sexual intercourse with the victim with her consent on 12 and 19 June 2016 in the afternoon, he would not have possibly responded to her accusations as he did in P11 and P12. In view of the contents of P11 and P12 as a whole, a reasonable jury could conclude that the appellant indeed admitted the rape accusation against him. Therefore, P11 and P12 could constitute the appellant’s confessions in response to the accusation against him.
上訴人指自己曾指控受害人威脅勒索他，要他支付金錢，該做法令受害人不滿，而他只是就該些令受害人不滿的言詞向她致歉及要求她原諒。但P11及P12的內容和上訴人的說法不符。如他在2016年6月12日及19日下午是在受害人的同意下和她性交，他不可能就受害人的指控而作出P11及P12所顯示的回應。根據P11和P12的整體內容，合理的陪審團是可以認定上訴人確有承認受害人指他強姦她的指控。因此，P11及P12可以是上訴人就針對他的指控而作出的招認。

In our view, the above-mentioned confessions made by the appellant have extremely high probative value. Ms Lam contended that the Judge should have refused to admit P11 as evidence because its contents were ambiguous and could not constitute a confession, and that the prejudice created against the appellant far outweighed its probative value. This contention is unrealistic, and this court does not agree.
本庭認為上訴人的上述招認是極具舉證價值的證據。林大律師指P11的內容含糊不清並不能構成招認，而其對上訴人造成的偏見遠較其舉證價值為高，故原審法官應拒絕採納它為證的說法是不設實際的，本庭不認同。

Whether what the appellant said in P11 was ambiguous and whether those apologies were made merely in response to having angered the victim with the blackmail accusation against her, and whether the jury should rely on those audio recordings, and the weight to be accorded to those records are all factual issues to be decided by the jury.
上訴人在P11的說法是否含糊不清，是否只是因為他曾指控受害人勒索他，令受害人不滿而作出的道歉回應;陪審團應否依賴該些錄音記錄及應給予該些記錄的比重，都是陪審團要作出的事實裁決。

In directing the jury, the Judge did make clear to them that they had to consider the contents of the audio recordings in question and the explanations given by the appellant in the video-recorded interview.
原審法官在指引陪審團時，有表明他們要考慮有關的錄音內容及上訴人在錄影會面時作出過的解釋。

Whether the contents of P11 and P12 show the appellant actually admitted the victim’s rape accusation against him, or whether it supports the appellant’s position are also facts to be determined by the jury. The Judge did not need to direct the jury to pay particular attention to certain matters or conduct an excessive analysis on certain matters. Otherwise, the Judge would be at risk of being seen as usurping the jury.
P11及P12的內容是否顯示上訴人確有承認受害人針對他的強姦指控，或是否支持上訴人的立場，亦是陪審團要作出的事實裁決。原審法官無需亦不適宜指示陪審團要特別注意某些事項或對某些事項作出過份的分析。否則，原審法官亦有篡奪陪審團職能之嫌。

The Judge reminded the jury that they were not bound to accept the opinion on facts given by the two counsel or the Judge, and that he would not repeat all the evidence but would only highlight the main points. The Judge did stress to the jury that they must consider all the evidence, including the parts which neither counsel nor the Judge had referred to.
原審法官有提醒陪審團，他們不一定要接受雙方大律師或法官就事實所表達的意見，而他亦不會複述全部的證據，而只會複述重點。原審法官有向陪審團強調，他們必須考慮所有證據，包括雙方大律師及原審法官都沒有提及的證據。

In our view, in respect of the background in the present case, it was reasonable and proper for the Judge to direct the jury that they had to take into account all the evidence, including having to read and analyse the relevant WhatsApp communication records and audio recordings in detail.
本庭認為以本案的背景而言，原審法官指示陪審團要將全部證據考慮在內，包括要詳細閱讀和分析有關的WhatsApp通訊記錄和錄音記錄是合理和適當的做法。

According to the victim, which is confirmed by the relevant WhatsApp communication records, the victim asked the appellant if he had “molested” her in the hotel on 19 June 2016. The appellant denied it and even said that he “ could not have been done it even if he had wanted to”. Although the victim did not accept what the appellant said, she did not actively pursue the matter. When the victim found out she had become pregnant, she asked the appellant again by way of WhatsApp. Initially, the appellant still denied it, but since the victim firmly believed that he was the one who had got her pregnant, she kept on asking him about related matters and even indicated that she would report it to the police. The appellant insisted and even said, “How I can know if I was the one.”
根據受害人的說法，而該說法亦和有關的WhatsApp通訊記錄相確認。受害人向上訴人查問於2016年6月19日在酒店是否有“搞”她時，上訴人否認，更指“想搞都搞唔到”。雖然受害人不接納上訴人的說法，但她沒有積極追究事件。當受害人發現自己懷有身孕後，再以WhatsApp向上訴人查問。初時上訴人仍否認，及後由於受害人深信上訴人有導致她懷孕，便不停向上訴人追問有關事件，更表示會報警。上訴人仍堅持更表示“我點知係咪我”。

The victim felt humiliated and further questioned the appellant, only by then did the appellant soften his stance. He first expressed regret to the victim and further indicated that he was willing to take responsibility and marry her. The appellant’s suggestion that the victim was sober and consented to having sexual intercourse with him at the time is essentially inconsistent with the content of the WhatsApp communication records.
當受害人感到受侮辱並再追問上訴人時，上訴人的態度才開始軟化。他先向受害人表示歉意，更表示願意承擔責任及和受害人結婚。上訴人指受害人是在清醒狀態及同意下和他性交的說法根本和WhatsApp通訊記錄的內容不符。

The victim demanded from the appellant a payment of $30,000 for an abortion and recuperation. She even said that he had to explain to the police and reiterated that a report had already been made and she would make a report to the police again. Obviously, the appellant worried the matter would alert the police and hence made every effort to persuade her not to make any police report and to cancel any report made.
受害人要求上訴人支付3萬元作為墮胎及調理費用。受害人更表示上訴人要向警察解釋，並重申已報警及會再去報警。上訴人明顯是害怕事件會警動警方，故盡量企圖說服受害人不要報警，及如她已報警就去銷案。

In fact, the victim had not made any police report. It was only when she was discontented with the appellant’s blackmail accusation against her that she decided to go to the police station with her mother. The victim said the appellant knelt down to beg her not make any report, which showed his extreme fear of her making any report to the police.
事實上，受害人當時仍未報警。她是到後期不滿上訴人指控她勒索時，才決定和母親前往警署報案。受害人指當時上訴人曾跪在地上要求她不要報警，顯示他極害怕受害人會報警一事。

Although the appellant did not say that his confessions were made under oppression, in view of the contents of P11, he might be in fear that the victim would make or had made a police report, and so he admitted her accusations in the hope of persuading her not to make any report or to cancel any report made.
雖然上訴人沒有指自己是在壓迫下而作出招認，但根據P11的內容，上訴人可能是因為害怕受害人會報警或已報警，而承認受害人的指控，以冀說服受害人不要報警或銷案。

The Judge asked the jury to consider three points: (1) whether the appellant had uttered any words which could be regarded as constituting a confession; (2) whether those words could be regarded as a confession; and (3) whether the contents of those confessions were true.
原審法官要求陪審團考慮三點：(一) 上訴人是否有說過可以視為構成招認的說話；(二) 該些說話是否可視為招認；及(三) 該些招認的內容是否屬實。

The Judge did stress to the jury that even if they thought the relevant WhatsApp communication records and audio recordings amounted to the appellant’s confessions to X’s accusations, they were still required to consider the appellant’s confessions as to “whether it was possible that the accused might have just tried to go along with X so as to prevent her from making any police report, and hence they were not true!” The Judge also went further and made it clear to the jury that if they were not sure that the appellant’s confessions were true, they must disregard those confessions. The Judge directed the jury to consider if the appellant’s confessions were true, and in case they were not sure, they must ignore and disregard those confessions.
原審法官有向陪審團強調，即使他們認為有關的WhatsApp通訊記錄及錄音內容構成上訴人有對X的指控作出招認，他們仍要考慮上訴人的招認“是否或者可能只係因為被告人為免X報警，而去迎合X嘅呢？所以就並非真實嘅呢！”原審法官更有進一步向陪審團表明，如他們不能肯定上訴人的招認是真確的，他們就必須不理會該些招認。原審法官是指示陪審團要考慮上訴人的招認內容是否真確，而如他們不能肯定上訴人的招認內容真確，他們就必須將有關招認棄之不理。

Of course, the truthfulness of an accused’s confession is one of the issues that a jury must consider. In considering if the confession made by an accused is true, they have to take into account the accused’s allegation that the confession was made as a result of oppression.  If the jury finds that the accused’s confession was made as a result of oppression, it should be excluded from evidence because the content of a confession obtained by oppression may not be true and is therefore not reliable. Not only because such confession is not reliable but also because no one should be compelled to incriminate oneself by confessing and any confession obtained as a result of oppression has to be rejected. (See R v Mushtaq [2005] 1 WLR 1513 at p1530 E-G).  Therefore, if the confession made by an accused is, or may have been, obtained as a result of oppression, the trial judge should direct the jury to exclude such confession from the evidence. The trial judge should not direct the jury that they have to decide whether the contents of the confession concerned are true before deciding whether such confession should be disregarded. This is the principle laid down in the above case of Mushtaq.
當然被告人的招認內容是否真確是陪審團必須考慮的議題之一，而在考慮一名被告人的招認內容是否屬實時，他們必須將被告人聲稱招認是在受到壓迫下作出的說法考慮在內。假若陪審團認為被告人的招認是在受壓迫下作出，則他們應摒棄被告人的招認為證據，原因是在受壓迫下的招認，其內容可能並非屬實，故不可靠。要否決一些在壓迫下作出的招認為證，除了是因為在壓迫下作出的招認是不可靠外，亦有另一原因，就是任何人士都不應被強制去作出對自己不利的招認。（見R v Mushtaq [2005] 1 WLR 1513 at P. 1530 E-G）。因此，假若一名被告人的招認是或可能是在壓迫下作出的，主審法官應指示陪審團要摒棄被告人的招認為證。主審法官不應指示陪審團要決定有關的招認內容是否屬實才決定應否摒棄有關招認。這是上述Mushtaq案定下的原則。

The Hong Kong Court of Final Appeal has held in the case of HKSAR v Pang Hiu San (2014) 17 HKCFAR 545 that the principle laid down in Mushtaq is applicable to Hong Kong, and has made clear that a trial judge is required to give the jury the Mushtaq direction under the following circumstances:
香港終審法院在HKSAR v Pang Hiu San (2014) 17 HKCFAR 545案裁定Mushtaq案定下的原則適用於香港，並表明在下述的情況下，主審法官需要給予陪審團Mushtaq指引：

Although the victim was not a law enforcement officer, since she suspected that the appellant had taken advantage of her drunkenness and raped her, she questioned the appellant many times in order to find out the truth. In the course of questioning, not only had she lied to the appellant that she had made a report to the police, she had also threatened him by saying that she would complain to the police again if he insisted on denying it.
雖然受害人並非執法人員，但她因為懷疑上訴人乘她醉酒而強姦她，而為了尋找真相，她多次向上訴人查問。在查問過程中，她不但有向上訴人訛稱已報警，亦有威嚇被告人如他仍然否認，她會再向警方投訴。

It was under such circumstances that the appellant admitted having “raped” the victim. It was also obvious that the Judge also thought the appellant’s confessions might have been made to go along with the victim so as to prevent her from making any police report.  The Judge also found that what the victim had done might amount to oppression.
上訴人是在上述情況下承認有“強姦”受害人，而原審法官亦明顯認為被告人作出的招認可能是因為要避免受害人報警而去迎合受害人。原審法官亦認為受害人的做法可以構成壓迫行為。

However, the Judge in directing the jury still emphasised that they had to consider if the appellant’s confessions were true. The jury was directed that if they were not sure of the truthfulness of the appellant’s confessions, they must disregard those confessions.
但原審法官引導陪審團時仍然強調，他們要考慮上訴人的招認的真確性。原審法官指示陪審團如他們不能肯定上訴人招認的內容是真確時，他們必須將上訴人的招認棄之不理。

The directions given by the Judge to the jury did not meet the requirements of the Mushtaq direction. The Judge should have directly made it clear to the jury that if they thought the appellant’s confessions were or might have been obtained by oppression or in consequence of anything improperly done and/or said, they must disregard such confessions.
原審法官給予陪審團的指引不符合Mushtaq指引的要求。原審法官應直接向陪審團表明，如他們認為上訴人的招認是或可能是受壓迫或其他不當行為及/或說話所引致 的，他們就必須摒棄有關的招認。

In view of the above circumstances, the conviction of the appellant is not safe or satisfactory.
在上述情況下，針對上訴人的有罪裁決是不穩妥的。

Mr Eddie Sean, SADPP, for the respondent asked this court to apply the “proviso” to uphold the guilty verdict against the appellant.  However, in our view, if the appellant’s confessions in P11 and P12 were excluded, the victim would become the only source of evidence against the appellant, and it should be open to the jury to determine whether they would accept her evidence and convict the appellant. Although the appellant’s defence is extremely incredible, this is not a ground sufficient to enable this court to apply the “proviso”.
代表答辯人的高級助理刑事檢控專員單偉琛要求本庭使用“但書”來支持針對上訴人的有罪裁決。但本庭認為如上訴人在P11和P12作出的招認被摒棄，則唯一針對上訴人的證據只源自受害人，而陪審團是否接納她的證供來裁定申請人罪名成立應由陪審團決定。雖然上訴人的答辯理由極不合信，但這並非容許本庭行使“但書”的足夠理由。

This court grants the appellant leave to appeal against conviction and allows his appeal. The conviction is quashed, and at the same time it is ordered that should the respondent apply for a retrial, the application should be made within 14 days after this judgment is handed down. It is also ordered that the appellant should continue to be remanded in custody pending further direction from the court.
本庭批准上訴人就定罪上訴，並裁定上訴人上訴得直。本庭撤銷針對上訴人的定罪裁決，並同時下令如答辯人作出重審申請，需要在本判案書頒下後14天內作出。本庭亦下令上訴人須繼續還押，等候法庭的進一步指示。

Ms Priscilla Lam, instructed by Messrs Morley Chow Seto, assigned by the Legal Aid Department, for the Appellant.
答辯人：由律政司高級助理刑事檢控專員單偉琛代表。

Mr Eddie Sean, Senior Assistance Director of Public Prosecutions of the Department of Justice, for the Respondent.
上訴人：由法律援助署委派麥樂賢周綽瑩司徒悅律師行轉聘大律師林芷瑩代表。