The Applicant (YHN) was the brother of the three victims (X,Y,Z).
申請人（YHN）是三名受害人（X、Y、Z）的哥哥。

The Applicant was born on 24 June 1994, and X,Y,Z were triplets born on 10 May 1995.  X,Y,Z were taken away by the Social Welfare Department since their early childhood and placed to live in different Children’s Homes.
申請人在1994年6月24日出生，而X、Y、Z是三胞胎，在1995年5月10日出生。X、Y、Z自小被社會福利署接走，並分配在不同兒童之家生活。

In the summer vacation of 2005, X was permitted to return to her parents’ home and to live with the parents, the Applicant and an Indonesian maid.  X was admitted to the New Comers’ Ward in 2006, and in the same year sent to the Po Leung Kuk where she lived till the summer vacation of 2010.  X subsequently returned home to live with her parents and the Applicant.
2005年暑假，X獲准回到父母的住所和父母、申請人及一名印尼傭工一起居住。2006年，X入住“新生家”，並在同年搬到保良局生活至2010年暑假。其後，X返回家中和父母及申請人居住。

Y was admitted to the New Comers’ Ward in 2004, and in the same year sent to the Po Leung Kuk where she lived till the summer vacation of 2008.  Y subsequently returned home to live with her parents and the Applicant.
2004年，Y入住“新生家”，並在同年搬到保良局生活至2008年暑假。其後Y返回家中和父母及申請人居住。

In 2004, Z was permitted to return to her parents’ home and live with the parents, the Applicant and an Indonesian maid.
2004年，Z獲准返回家中和父母、申請人及一名印尼傭工一起居住。

It was the prosecution case that on multiple occasions between 1 October 2005 and 31 August 2008, the Applicant sexually abused X, Y and Z at home, for which the Applicant was charged with 8 charges.
控方指申請人在2005年10月1日至2008年8月31日期間，在家中多次性侵犯X、Y和Z，於是檢控申請人共8項控罪。

The 1st and the 4th counts of indecent assault involved X.  It was alleged that the Applicant on two occasions between 1 October and 3 October 2005, and between 29 July and 25 November 2006, indecently assaulted X.
第一項和第四項猥褻侵犯（即非禮罪）涉及X。控方指申請人在2005年10月1日至3日及2006年7月29日至11月25日期間兩次非禮X。

The 6th and the 7th counts of indecent assault and the 8th count of attempted rape involved Y.  It was alleged that the Applicant on two occasions between 1 January 2007 and 31 December 2007 indecently assaulted Y, and that he attempted to rape Y between 1 July and 31 August 2008.
第六、七項非禮罪和第八項企圖強姦罪涉及Y。控方指申請人在2007年1月1日至2007年12月31日期間兩次非禮Y及在2008年7月1日至8月31日期間企圖強姦Y。

The 2nd, 3rd and 5th counts of indecent assault involved Z.  It was alleged that the Applicant on three occasions between 1 January  and 31 December 2006, and between 1 January and 31 January 2007, indecently assaulted Z.
第二、三和五項非禮罪涉及Z。控方指申請人在2006年1月1日至12月31日及2007年1月1日至1月31日期間三次非禮Z。

The Applicant was under the age of 14 at the time of offences as alleged in the 1st to 7th counts and just turned 14 at the time of offence as alleged in the 8th count.
在第一至第七項控罪所指的案發時，申請人不足14歲，而在第八項控罪所指的案發時，申請人剛滿14歲。

The Applicant pleaded not guilty to all charges and stood trial before Mr Justice Li (the Judge) with a jury in the Court of the First Instance of the High Court.
申請人否認全部控罪，並在高等法院原訟法庭法官李瀚良（原審法官）會同陪審團席前受審。

On 3 June 2014, the jury convicted the Applicant of all eight counts.  On 30 June 2014, the Judge sentenced the Applicant to a total of 5 years’ imprisonment.
2014年6月3日，陪審團裁定申請人8項控罪罪名全部成立。2014年6月30日，原審法官判申請人入獄共5年。

On 24 July 2014, the Applicant made an application for leave to appeal against conviction on all counts.
2014年7月24日，申請人提出上訴許可申請，要求獲准就全部定罪上訴。

On 12 February 2015, the Applicant informed the court that he abandoned his application and consequently his application was dismissed.
2015年2月12日，申請人知會法庭放棄申請，其申請亦因而被撤銷。

On 5 March 2015, the Applicant asked the court to treat his Notice of Abandonment as a nullity and to grant him leave to appeal against conviction.
2015年3月5日，申請人要求法庭視其放棄申請的通知書無效，並希望能獲准就定罪提出上訴。

The Applicant stated the following in his affirmation in support of the application:
在其支持申請人的確認書，申請人有以下表述：

“It was because (1) I heard people say in the Correctional Institution that if my appeal failed, the term of imprisonment would be lengthened, (2) if I cancelled my appeal after a date had been fixed, the term of imprisonment would be lengthened as I would be deemed by the court to have wasted the public funds, so I cancelled the appeal before a date had been fixed for the appeal, (3) my family mentioned to me that it was commented on the newspapers that the sentence in the case was too lenient, (4) for the reasons above, I cancelled the appeal before counsel assigned by the Legal Aid Department came to see me.”
“因為（一）在懲教所聽人說若上訴失敗我的刑期會加長、（二）若我在上訴有期後才取消[，]我的刑期會加長，因為法庭會認為我浪費公堂[帑]，顧[故]在沒有上訴期之前就取消上訴、（三）家人曾對我說報張[章][指]案件刑期過輕、（四）機以[基於]上述原因我在法援批發之大律師還沒有前來見我就取消上訴。”

Grounds of appeal
上訴理由

In respect of the Applicant’s abandonment of appeal, Mr Cheung, counsel for the Applicant, laid emphasis on the fact that by the time the Applicant served the Notice of Appeal, he had already filed with court the grounds of appeal and written submissions, and that the Applicant filed the Notice of Abandonment of Appeal without obtaining any legal advice or knowing his chance of success on appeal.  Mr Cheung also highlighted the fact that the Applicant applied to have his Notice of Abandonment of Appeal treated as a nullity extremely briefly after such notice had been filed.  Mr Cheung contended that the court should therefore, as sought by the Applicant, treat his Notice of Abandonment of Appeal as a nullity and examine the conviction afresh to decide whether the convictions against him were safe.
就申請人放棄上訴一事，代表申請人的張民輝大律師強調申請人發出上訴通知時，他已向法庭提交上訴理由及書面陳詞。申請人發出放棄上訴通知書時，並未取得法律意見，亦不知其上訴成功率。他強調申請人在發出放棄上訴通知書後極短時間內已申請要求法庭視其放棄通知書無效。他力稱法庭應按申請人的要求，視其放棄上訴通知書無效，並重新審議針對他的定罪是否穩妥。

Mr Cheung submitted that the Applicant was under the age of 14 at the time of offence as alleged in the 1st to 7th counts of indecent assault.  He argued that the Applicant was therefore protected by a rebuttable presumption of Doli Incapax.  He also stressed that a person over 10 but under 14 years of age is presumed to be not able to tell right from wrong and hence incapable of committing crime.  The burden is on the prosecution to prove not only that the Applicant had committed an actus reus with the requisite mens rea, but also that he was Doli Capax when the act constituting the offence was committed, in other words, he knew right from wrong and that the particular act he committed was seriously wrong as opposed to merely naughty or mischievous.
就第一至第七項非禮罪，張大律師指出，根據控方的說法，申請人在案發時不足14歲，故受一項可被推翻的法理推定Doli Incapax (無犯罪能力)的保障。張大律師強調根據該推定，一名10歲以上但低於14歲之人士，並無是非之識別能力，故無犯罪能力。因此，控方有舉證責任，不但要證明申請人有意圖干犯有關罪行及有作出過構成罪行的行為，更要進一步證明申請人在作出構成罪行的行為時，有犯罪能力，即他能辨別是非，知悉他的行為是嚴重的不正當行為，而並非是純粹屬搗蛋性或惡作劇性的行為。

Mr Cheung contended that in order to show that the Applicant knew his own act was seriously wrong, it was necessary for the prosecution to adduce substantial evidence other than that in support of actus reus, without which the prosecution would have failed to rebut the presumption of Doli Incapax in law and the Applicant would have no case to answer on the charges against him.
張大律師力稱控方必須提出支持控罪行為之外的實據，以顯示申請人知悉其行為是嚴重及不正當，否則控方未能推翻申請人無犯罪能力的法理推定，而申請人便無需就指控他的罪行答辯。

Mr Cheung submitted that the prosecution did not adduce any other evidence to show that the Applicant knew his own acts of indecent assault in the 1st to 7th counts were seriously wrong, and that the Judge in his direction to the jury did not tell the jury how they should approach the evidence in that respect, if any, based on which the jury had to decide whether the Applicant knew right from wrong and hence whether he was capable of committing crime.  Mr Cheung was of the view that with this being the case, the convictions of the Applicant on the 1st to 7th counts were unsafe.
張大律師認為控方並沒有提出其他證據來顯示申請人知悉他干犯第一至第七項非禮罪時所作的行為是嚴重及不正當的行為，而原審法官在引導陪審團時，亦沒有指示他們應如何處理該些證據（如有的話），以決定申請人是否有是非識別的能力，即他是否有犯罪的能力。張大律師認為在上述情況下，裁定申請人第一至第七項控罪有罪是不穩妥的裁決。

In respect of the 8th count, Mr Cheung conceded that the Applicant was already over 14 years of age at the time of offence, and hence the principle of Doli Incapax did not apply.  However, Mr Cheung pointed out in his written submissions that the Judge, in directing the jury, dealt with the elements of the offence of indecent assault immediately after he dealt with the elements of the offence of attempted rape, and that the judge pointed out to the jury that as Y was under 16 years of age, she could not consent to the Applicant’s indecent assault on her.  Mr Cheung further submitted that the Judge’s approach would have confused the jury, having misled them into believing that Y as a child under 16 years of age could not give consent to sexual intercourse with the Applicant, and that it was unnecessary for them to take into consideration the issue of whether Y did give consent to sexual intercourse when they dealt with the offence of attempted rape.
就第八項控罪，張大律師同意案發時，申請人已超過14歲，因此，上述的Doli Incapax（無犯罪能力）的原則不適用，但在其書面陳詞，張大律師指原審法官指引陪審團時，在處理完企圖強姦罪的犯罪元素後，便立刻處理非禮罪的犯罪原素，並向陪審團指出因為Y年齡不足16歲，故不可以同意申請人向她作出的非禮行為。張大律師認為原審法官的做法會混淆陪審團，令他們誤認不足16歲的Y是不可以同意和申請人性交的，因此在處理企圖強姦罪行，無需考慮Y是否同意性交這議題。

Mr Cheung also submitted that the Judge failed to direct the jury to consider whether the Applicant had mistakenly believed that Y consented to sexual intercourse with him.  Mr Cheung stressed that at the material time, Y did not struggle or ask for help while Z was also present.  Mr Cheung was of the view that those were pieces of evidence in support of the suggestion  that the Applicant could have believed that Y consented to sexual intercourse.
張大律師亦指原審法官沒有引導陪審團考慮申請人是否有錯誤地相信Y是同意和他性交的。張大律師強調事發時Y沒有掙扎，亦沒有求助，而當時Z亦在場。張大律師認為該些證據都能支持申請人可能會相信Y是同意性交的說法。

The Judge directed the jury in respect of the evidence given by X as follows:
原審法官就X所作的證供向陪審團作出以下指引：

“In making his final submissions, defence counsel pointed out that according to what Ah Ching [transliteration] said, the sex abuse happened four or five times a week lasting for a year.  What Mr Lam of counsel took issue with was that given the defendant’s age, whether he would have sexual capacity as such. Well, in the first place, the sex abuse alleged by Ah Ching took place during the time she was back home on summer vacation, instead of taking place continuously.  In respect of the issue of sexual capacity, the offence which the defendant is now facing is actually indecent assault, which does not necessarily involve the act of sexual intercourse or relate to sexual capacity.  After all, sexual capacity varies individually.  We have to refrain from over-speculation; and indecent assault is not directly relevant to sexual capacity.  You all understood, right? You should all remember what I am saying: elements constituting indecent assault are some acts done and those acts are indecent, and that would be indecent assault, understood?”
“辯方大律師喺結案陳詞嘅時候提出，佢話根據阿靜所講，性侵犯每星期四、五次，持續一年。咁林大律師就質疑，當時被告人會唔會因為咁嘅年紀而有咁嘅性能力呢？咁首先就阿靜所講嘅性侵犯係當佢返屋企暑假嘅時候發生嘅，唔係連續咁樣發生嘅。至於性能力嘅問題，被告人所面對嘅其實係非禮罪，未必一定要有性交嘅行為嘅，同性能力亦都未必有關係嘅。何況性能力就因人而異喇，大家切忌係太多揣測。因為非禮就同性能力冇直接關係嘅，大家明白喇嘛？大家記住我所講，非禮，構成非禮嘅因素就係做咗一啲行為，而嗰啲行為係猥褻嘅，就係㗎喇，明白喇嘛？”

Mr Cheung argued that the above direction given by the Judge was unfair, because except for the 5th count, the rest of the counts all involved sexual intercourse or anal sex, the allegations of which were all necessarily relevant to the Applicant’s sexual capacity.
張大律師指原審法官的上述指引不公平，原因是除了第五項控罪外，其餘控罪都有涉及性交或肛交的指控，而該些指控和申請人的性能力必然有關。

The last complaint made by Mr Cheung was relevant to the letter of complaints written by X to her parents in April 2012.  Mr Cheung submitted that the Judge had mistakenly accepted the letter as evidence, as the letter was hearsay evidence, which was compiled not until half year after the offence.  Mr Cheung contended that the letter was not contemporaneous and therefore insufficient to constitute a recent complaint being admissible into evidence.
張大律師的最後投訴和X在2012年4月寫給其父母的投訴信有關。張大律師認為原審法官錯誤地接納該封信為證，原因是該封信屬傳聞證供，是在事發後半年才編寫的。張大律師力稱該封信不具同步性，不足以構成新近投訴而令它可以被採納為證。

Although Mr Cheung had put forward various arguments, he focused on dealing with the issue of whether the Applicant was Doli Incapax, without making reference to the rest of his grounds of appeal when he presented his submissions to the court.
雖然張大律師提出多項論據，但向法庭陳述時，他只是集中處理申請人是否有犯罪能力一事，而沒有著墨在其餘的上訴理由。

The Respondent’s Position
答辯人的立場

Mr Franco Kuan, Senior Public Prosecutor, for the Respondent, pointed out in his written submissions that the application made by the Applicant was one for treating his Notice of Abandonment of Appeal as a nullity.  Mr Kuan emphasized that when signing the Notice of Abandonment, the Applicant must have understood the nature of the document and be aware of the consequences that must come along with the signing of the Notice of Abandonment.  Therefore it was by no means necessary for the court to consider the merits of the present case before dismissing the application.
在其書面陳詞，代表答辯人的高級檢控官關百安指出，申請人提出的是把放棄上訴通知書當作無效的申請。關高級檢控官強調申請人簽署放棄通知書時，必然理解通知書的性質，亦知悉簽署放棄通知書的必然後果，因此，上訴法庭根本無需要考慮本案事件的是非曲直，便可駁回申請。

Mr Kuan cited a number of cases in support of his position.
關高級檢控援引多宗案例，支持他的立場。

Mr Kuan further submitted that there was sufficient evidence to show that the Applicant knew his acts were extremely wrong and serious at the time he committed the offence, and that there was also evidence to show that he had sophisticated sexual knowledge.
關高級檢控官亦認為案件有充份證據顯示申請人在犯案期間是知悉其行為是極為嚴重及不正當的，而亦有證據證明他在性方面有成熟的認知。

Mr Kuan argued that on the said evidence, any reasonable jury would have come to the only conclusion that the Applicant was capable of committing crime, although he was below 14 years of age at the time of offences.  Mr Kuan was of the view that the court could uphold the convictions on the 1st to 7th counts by applying the proviso.
關高級檢控官認為，根據該些證據，任何合理的陪審團都必然會得出唯一的結論，就是申請人在案發時段，雖然不足14歲，但他具犯罪能力。關高級檢控官認為法庭可使用但書來維持第一至第七項控罪的定罪。

Mr Kuan also submitted that the Judge’s direction to the jury was sufficient and reasonable.  He stressed that at the trial of first instance, at no time did the Applicant raise any argument that he mistakenly believed that Y consented to sexual intercourse with him, and that the Judge did not have to direct the jury on the Applicant’s position that he could have mistakenly believed that Y consented to sexual intercourse with him.
關高級檢控官認為原審法官對陪審團的指引充份和合理。他強調原審時，申請人根本沒有提出他會錯誤地相信Y同意和他性交的說法，因此原審法官無需就申請人可能錯誤地認為Y是同意和他性交的立場指引陪審團。

Mr Kuan’s position is that even if the merits of the case had to be taken into consideration, none of the grounds of appeal put forward by the Applicant was sufficient to merit the quashing of the convictions against the Applicant.
關高級檢控官的立場是即使要考慮事件的是非曲直，申請人提出的上訴理據全部都不足以推翻有關的定罪裁決。

Discussion
討論

The Court of Appeal has long determined whether a convicted person, having abandoned an appeal, is entitled to have an application for leave to appeal restored.
就一名放棄上訴的被定罪人士是否有權再提出上訴許可申請，上訴法庭早有定奪。

We wish to repeat the decision made in HKSAR v Leung Yu Hin (CACC 357/2009):
本庭再重申在香港特別行政區訴梁宇軒（CACC357/2009）案作出的以下裁決：

“The Applicant had abandoned his application for leave to appeal, which has accordingly been dismissed by the Court of Appeal.  It is the principle established by this court in various cases that only where the Applicant’s act of abandonment has been treated as a nullity that the court of appeal has jurisdiction to entertain the reopening of an application for leave to appeal.  It has been stressed by the court time and again that in order to persuade the court to treat the abandonment of application as a nullity, it is necessary for the Applicant to adduce sufficient evidence to prove that his act of abandonment was not the result of an informed decision, in other words, the mind of the Applicant did not go with his act of abandonment. (See cases such as HKSAR v Lai Siu Cheung [2005] HKLRD 1, HKSAR v Law Sui Kei [2007] 3 HKLRD 114)”
“申請人放棄了上訴許可申請而上訴法庭亦因此已撤銷了該申請。根據本庭在多宗案件確立的原則，申請人放棄申請的行為需被視為無效，法庭才有司法管轄權重新處理其上訴許可申請。法庭亦屢次強調要說服法庭視放棄申請的行為無效，申請人必需提出足夠的證據證明他是在不知情的情況下作出放棄行為，即其意願和其放棄行為是不相稱的（見HKSAR v Lai Siu Cheung [2005] HKLRD 1，香港特別行政區訴羅水基[2007] 3 HKLRD 114等案）。”

As stated in the Applicant’s affirmation, he abandoned the appeal for only one reason, which was for fear of an increased sentence after appeal.  The Applicant however had never mentioned that he did not understand the nature of the Notice of Abandonment of Appeal or the consequence that must follow.  Actually, given the fact that the Applicant deliberately decided to abandon the appeal for fear of an increased sentence, his abandonment of appeal must have been a deliberate decision made only after thorough consideration.
根據申請人在其誓章的說法，他放棄上訴的原因只有一個，就是害怕上訴申請會導致加刑，但申請人從來沒有說過他不理解放棄上訴通知書的性質及簽署該通知書的必然後果。事實上，申請人既然是害怕加刑而故意作出了放棄上訴的決定，該決定必然是經過深思熟慮後才作出的。

The Applicant failed to adduce any evidence to show that his abandonment of appeal was not the result of an informed decision.  He has expressed his obvious intention of abandoning the appeal.
申請人未能提出任何證據證明他是在不知情的情況下作出放棄上訴的決定。申請人表達的明顯意願是放棄上訴。

We consider that there is simply no basis for the Applicant to make his application for treating the abandonment of appeal as a nullity, and that there is no need for us to consider the merits of the application for leave to appeal before we dismiss it.
本庭認為申請人沒有任何基礎要求法庭將其放棄上訴申請的通知書視為無效，本庭無需考慮上訴許可申請的是非曲直就能駁回其申請。

That said, for the sake of completeness, we will briefly deal with the other grounds of appeal put forward by the Applicant.
但為了全面處理案件，本庭亦會簡單處理申請人提出的其他上訴理由。

The Applicant was under 14 years of age at the time of offences in the 1st to 7th counts.  Section 3 of the Juvenile Offenders Ordinance provides that it shall be conclusively presumed that no child under the age of 10 years can be guilty of an offence as they are Doli Incapax.  It is also a presumption, yet rebuttable, under the common law that a child between 10 to 14 years of age is Doli Incapax. It can be rebutted only where there is positive and unequivocal evidence to show that the child involved knew his act was seriously wrong.
申請人干犯第一至第七項控罪所指的罪行時，年齡不足14歲。根據《少年犯條例》第3條，法律有一項不可推翻的推定，就是一名10歲以下兒童不具犯罪能力，故不能犯罪。根據普通法，一名10至14歲的兒童亦會被假設不具犯罪能力。但該假設是可推翻的假設，而要推翻該假設則要有正面及不含糊的證據，顯示涉案的兒童知悉其行為是嚴重不正當行為。

Lord Lowry made the following comments in C v DPP [1995] 2 Cr App R 166, at 187 B-E：
在C v DPP [1995] 2 Cr App R 166 Lord Lowry 法官在判案書第187頁B-E行，有以下評論：

“A long and uncontradicted line of authority makes two prepositions clear.  The first is that the prosecution must prove that the child defendant did the act charged and that when doing that act he knew that it was a wrong act as district from an act of mere naughtiness or childish mischief.  The criminal standard of proof applies…
“長久確立及從未被駁斥的案例作出兩項明確的主張。第一，控方必須證明被控的兒童被告干犯了指控他的行為，而作出該行為時，他是知悉該行為是錯誤的，而並非單單是純屬頑皮搗蛋或幼稚的惡作劇行為。適用的裁決標準是刑事的標準…

The second clearly established proposition is that evidence to prove the defendant’s guilty knowledge, as defined above, must not be mere proof of the doing of the act charged, however horrifying or obviously wrong that act may be.”
第二項確立的主張是，要證明如上文所指被告對犯罪行為的認知，不能單靠證實控罪所指的行為，不論該些行為是如何令人震驚或是如何明顯地是錯誤的。”（非官方翻譯）

Although evidence to prove a child defendant’s knowledge of his act being wrong must not be mere proof of the doing of the act charged, in considering the question of whether the child defendant has the guilty knowledge, the surrounding circumstances of the offence, the child defendant’s behaviour and demeanour both before and after committing the act are evidence all relevant to determining whether he was capable of committing crime.
雖然控方不能單憑控罪所指的行為來證明一名兒童罪犯知悉其行為是錯誤的，但考慮他是否具備有關認知時，環繞有關罪行的證據及該名兒童罪犯在干犯罪行前後的行為及態度都是有關的證據，以決定他是否具犯罪能力。

In determining whether a child defendant has the guilty knowledge and in proving his awareness of the criminal acts he committed being seriously wrong, evidence such as the following would be relevant: a child defendant took a victim to a remote place where intervention by others was unlikely and subjected her to assault; the child defendant threatened the victim before the assault and used violence against her in the course of it, which brought obvious distress to the victim; a child defendant uttered threats to a victim after assaulting her in order to prevent disclosure; repetition of the same offence; the sexual sophistication the child defendant demonstrated and the sex education he had received at the time of committing the offence (See cases such as A v DPP [1997] 1 Cr App R 27, L and B v DPP [1998] 2 Cr App R 69, and R v ML [2013] NICA 23).
一名兒童罪犯將受害人帶到偏遠及不易被干擾的地方侵犯受害人；在侵犯受害人前威嚇她及侵犯她時施以暴力，明顯令她受苦楚；在侵犯受害人後恐嚇受害人避免事件曝光；多次干犯同樣罪行；犯案時，兒童罪犯表現的性成熟程度及其受過的性教育等等都是有關證據，以決定該名兒童罪犯是否具備有關認知及證明他知悉其犯罪行為是嚴重的不當行為。（見A v DPP [1997] 1 Cr App R 27、L and B v DPP [1998] 2 Cr App R 69、R v ML [2013] NICA 23等案）

X, Y and Z gave evidence that when committing assault on them, the Applicant would usually choose to do it in his own room and when the parents were not at home or already at sleep.  The Applicant sometimes would lock the door and when someone knocked on the door, the Applicant would immediately stop the acts.  Obviously, the Applicant was afraid that his acts of offence would be detected.
根據X、Y、Z的證供，申請人侵犯她們時，一般會選擇在其房間及父母不在家或已入睡等時間進行。申請人有時會鎖上門，而當有人敲門或出現時，申請人會立刻停止其犯罪行為。申請人明顯是害怕被人發現其罪行。

The Applicant threatened the victim before and after the offence so that they would submit to him and that his acts would not be disclosed.  When assaulting the victims, the Applicant also used violence against them, for which the Applicant had been punished by his father.  Besides, the victims showed fear and distress on numerous occasions where they were being assaulted.
申請人在犯案前後都會威嚇受害人，令她們就範及避免其罪行曝光。在侵犯受害人時，申請人亦會對她們施以暴力，而申請人亦曾因此而受父親責罰。受害人被侵犯期間亦多次表現痛苦及恐懼的神情。

Even it was the first time that the Applicant had assaulted X (the 1st count), the Applicant had demonstrated that he was quite sexually sophisticated.  He made X and Z watch a pornographic film in his room before instructing Z to take off her clothes and inserting into Z’s vagina a pencil and his finger respectively.  When Z said it was painful, the Applicant tried to insert his penis into her vagina.  Subsequently, he made X enter the bathroom to perform oral sex on him.  After the oral sex, the Applicant told X to rinse her mouth.  The Applicant made X and Z enter his room again, where he made X take off her clothes and he lied on top of X, thrusting his penis towards her vagina.  When X said it was painful and pushed the Applicant away, he pinned down both X’s arms and told her not to make any noise.
即使申請人首次侵犯X（即第一項控罪），申請人的表現已顯示他是一名性成熟程度甚高的人。他要X和Z入房觀看成人電影，看完之後，指示Z脫去衣服，而且先後以鉛筆、手指插Z的陰道。當Z叫痛時，申請人試圖用陽具去插她的陰道。其後，他要X入洗手間替他口交。口交完後，申請人叫X漱口。申請人再要X和Z入房及要X脫去衣服。他隨後壓在X身上，用陽具插她的陰道。當X說痛並推開申請人時，他“”着X雙手，叫她不要嘈吵。

The verdict returned by the jury obviously showed that they had accepted the allegations made against the Applicant by X, Y and Z; and according to their evidence, the Applicant was capable of committing crime during the material time period.
根據陪審團的裁決，他們明顯是接納了X、Y和Z對申請人的指控；而根據她們的證供，申請人在有關時段是具犯罪能力的。

We agree with Mr Kuan on the respondent’s position.  We are of the view that on the facts of the case, any reasonable jury properly directed must have found the Applicant to have known what he was doing at the time of offence to be seriously wrong, and thus finding him to be capable of committing crime.  Although the Judge should have directed the jury in respect of the issue of whether the Applicant was Doli Incapax, his failure to do so does not constitute the basis for quashing the convictions in the circumstances of the present case and we find the convictions safe and satisfactory.
本庭同意關高級檢控官的立場。本庭認為以本案的案情而言，任何合理的陪審團在恰當的指引下，必會裁定申請人在案發時知悉他的行為是嚴重的不正當行為，並因此會認定他具犯罪能力。雖然原審法官應該就申請人是否具有犯罪能力這議題向陪審團作出指引，但以本案的背景而言，原審法官沒有這樣做不構成推翻有關定罪的理據，本庭認為有關定罪是穩妥的。

The present case involved multiple counts of indecent assault and one count of attempted rape.  It certainly followed that the Judge should have directed the jury properly in respect of all various counts.
本案涉及多項非禮罪和一項企圖強姦罪。原審法官當然要就該些不同控罪向陪審團作出適當指引。

In directing the jury in respect of the charge of attempted rape, the Judge made it clear to the jury that the charge involved Y only and that Y did not consent to sexual intercourse with the Applicant.  The Judge emphasized that the jury must consider whether Y consented to sexual intercourse with the Applicant at the time of offence, and that if they did not accept Y’s evidence or they had any doubts in her evidence, they had to find the Applicant not guilty.  The main issue in that count was whether Y’s version of events was reliable.
當原審法官就企圖強姦罪指引陪審團時，有明確向他們表示該項控罪只涉及Y，而Y是不同意和申請人性交的。原審法官強調陪審團必須考慮案發時Y是否同意和申請人性交，及如他們不接納Y的證供或對她的證供有懷疑時，他們要裁定申請人無罪。該項控罪的最主要爭議是Y的說法是否可信。

The Judge then turned to direct the jury in respect of the seven counts of indecent assault.  He first indicated to them that the allegations involved indecent assault on the three of them, ie X,Y, Z.  The Judge put emphasis on the fact that “the three victims were all under 16 years of age”, and that “in law, a person under 16 cannot consent to assault in any form...”.
原審法官隨後就七項非禮控罪引導陪審團，他先向他們表示指控涉及和X、Y、Z三人有關的非禮罪。原審法官強調“三個事主係細過16歲”，而“法律上一個年歲細過16歲嘅人不可以同意任何侵犯行為…”。

We do not find that the Judge’s approach would have confused the jury, causing them to mistakenly believe that they were not required to consider whether Y consented to sexual intercourse with the Applicant in deciding whether the Applicant had committed attempted rape in the 8th count.
原審法官的處理方法不會混淆陪審團，令他們誤認在考慮申請人是否有干犯第八項企圖強姦罪時，他們無需考慮Y是否同意和申請人性交一事。

The Applicant denied attempting intercourse with Y, saying Y was lying and framing him.  In the above circumstances, the issue of whether the Applicant would have mistakenly believed that Y consented to sexual intercourse with him did not even exist.  There was also no evidence to show that the Applicant had the basis to base his defence on such argument.
原審時，申請人否認有企圖和Y性交，他指Y是說謊誣告他。在上述情況下，申請人是否會誤信Y同意和他性交這議題根本沒有出現，亦沒有證據顯示申請人有基礎以該論據作為答辯理由。

In our judgment, the Judge’s approach of not directing the jury on the issue was proper and correct.
本庭認為原審法官沒有就該議題引導陪審團是恰當和正確的處理方法。

Mr Cheung made some other complaints in his written submissions, including one against the Judge’s comments on the Applicant’s sexual capacity and one concerning X’s letter of complaints to her parents.  We are of the view that, given the circumstances of the present case, the complaints are all trivial and irrelevant to the question of whether the conviction was safe and satisfactory.
張大律師在其書面陳詞有作出其他投訴，包括原審法官就申請人性能力的評語及X寫給父母的投訴信。本庭認為以本案的背景而言，該些投訴都是微不足道，更和有關定罪的穩妥性無關。

Even if we treat the Notice of Abandonment of Appeal as a nullity and take into account the merits of the case, we would have arrived at the decision that the convictions against the Applicant are all safe and satisfactory.  We would grant him leave to appeal against the convictions on the 1st to 7th counts, but would apply the proviso to uphold the same convictions.  In respect of the conviction on the 8th count, the application was dismissed and conviction upheld.
即使本庭將申請人放棄上訴申請的通知書視為無效，並考慮事件的是非曲直，本庭亦會認定針對申請人的全部定罪都屬穩妥的。本庭會批准他就第一至第七項控罪的定罪提出上訴，但會使用但書，維持定罪裁決。就第八項控罪的定罪，本庭會駁回他的申請，維持原判。

However, the Applicant failed to prove that his abandonment of appeal was not an informed decision and we are satisfied that the mind of the Applicant went with his act of abandonment.  On this basis, the application was dismissed and convictions upheld.
但由於申請人未能證明他是在不知情下作出放棄上訴的決定，而本庭信服他放棄上訴的行為是和他的意願相稱。本庭以該基礎駁回申請人的申請，並維持針對他的有罪裁決。

由律政司高級檢控官關百安代表。	Mr Franco Kuan, Senior Public Prosecutor of the Department of Justice, for the Respondent.
答辯人：

由法律援助署委派大律師張民輝代表。	Mr Jeremy Cheung, assigned by the Legal Aid Department, for the Applicant.
申請人：