Hon Yeung VP (giving the reasons for judgment of the court):
高等法院上訴法庭副庭長楊振權頒發上訴法庭判案理由書：

Introduction
引言

This is an appalling case of child sexual abuse.  The applicant is a young mother who gave birth to a boy P, the victim, on 27 January 2007.
本案是一宗駭人聽聞的性侵犯兒童案件。申請人是一名年輕母親，在2007年1月27日誕下案件的受害男童“P”。

Between 11 April 2011 and 5 July 2012, the applicant was a clerk in the employ of a textile company.  After the applicant had left the employment, the person in charge of the company found some MSN dialogues relating to sex and child sexual abuse on the computer used by the applicant, and the matter was reported to the police.
2011年4月11日至2012年7月5日，申請人受僱於某紡織公司，任職文員。申請人離職後，公司的負責人發覺申請人使用的公司電腦上有一些與性愛和性侵犯兒童有關的MSN對話後，知會警方。

Police investigation revealed that the applicant had offered her son, who had then just reached the age of five, to a perverted male “Mr Tong” for the purpose of sexual gratification in return for pecuniary advantage.  As a result of the incident, the applicant was charged with the first count of conspiring with “Mr Tong” to commit homosexual buggery with P, and the second count of conspiracy to commit indecent assault on P which was an alternative charge to the first count.
警方的調查顯示申請人為了獲得金錢得益，將當時年紀剛5 歲的“P”供給一名變態男子“唐某”淫辱。事件導致申請人被控第一項和“唐某”串謀與“P”作出同性肛交罪及第二項串謀猥褻侵犯“P”的交替性控罪。

The applicant denied the charges, and she was tried before Tong J (the trial judge) sitting with a jury in the High Court.
申請人否認控罪，並在高等法院原訟法庭法官湯寶臣（原審法官）會同陪審團席前受審。

After trial, the applicant was found guilty by the jury of the first count on 23 May 2013, and she was sentenced to 11 years’ imprisonment by the trial judge on 18 July 2013.
2013年5月23日，經審訊後，申請人遭陪審團裁定第一項控罪罪名成立，並於2013年7月18日被原審法官判處入獄11年。

The applicant was aggrieved by the conviction and the sentence and applied for leave to appeal against both.  On 6 January 2014, the applicant notified the court of her abandonment of the application for leave to appeal against conviction out of time, and it was dismissed accordingly.  Mr Bernard Yuen, Counsel for the applicant, asked for leave to appeal against the sentence.  After hearing, we granted leave to appeal against sentence to the applicant and treated the application as the appeal proper.  We allowed the appeal and reduced the term of sentence to 10 years and 6 months.  Here are our reasons for the judgment.
申請人不服定罪及判刑，曾提出上訴許可申請，要求獲准就定罪及判刑上訴。2014年1月6日，申請人知會法庭，會放棄就定罪的逾期上訴許可申請，該申請亦被撤銷。申請人由袁國華大律師代表，要求獲許可就判刑提出上訴。經聆訊後，本庭批准申請人就判刑上訴，並視其申請為正式上訴。本庭裁定申請人上訴得直，並將其刑期減至10 年 6 個月。以下是本庭的判案理由。

The Facts
案情事實

The applicant was born in January 1981, and she was about 30 years old at the time of the offence.  After Form 5 graduation, the applicant at one time cohabited with her boyfriend and gave birth to P.  The applicant broke up with her boyfriend later on, and then P was taken care of by his paternal grandmother, maternal grandmother and the applicant in turn.  The applicant was a clerk with limited income.  In 2005, the applicant came to know a “Mr Tong” and became his sex partner.  The applicant agreed to have sex with “Mr Tong” in return for his financial assistance.  In order to obtain further financial assistance from “Mr Tong”, the applicant had taken P to the residence of “Mr Tong” on three occasions between April 2011 and July 2012, for him to perform perverted sexual acts including buggery on P.
申請人在1981年1月出生，案發時約30歲。中五畢業後申請人曾和男朋友同居，並誕下“P”。其後申請人和男朋友分手，而“P”則由其嫲嫲、婆婆和申請人輪流照顧。申請人任職文員，收入不多。2005年申請人認識“唐某”，並成為他的性伴侶。“唐某”會經濟上協助申請人，而申請人則同意和“唐某”性交作為交換條件。為了進一步獲得“唐某”的經濟協助，申請人在2011年4月至2012年7月期間三次帶“P”前往“唐某”的居所，以便“唐某”對“P”作出性變態行為，包括肛交。

According to the MSN dialogues between the applicant and “Mr Tong”, the applicant knew that “Mr Tong” was a paedophile, and “Mr Tong” requested the applicant to take P to his residence so that he could sexually abuse P, which included what “Mr Tong” referred to as “playing with mother and son”.
根據申請人和“唐某”的MSN對話內容，申請人知悉“唐某”有孌童癖，而“唐某”要求申請人將“P”帶往其居所，令他能性侵犯“P”，包括“唐某”所指的“玩母子”。

It was revealed that prior to sexually assaulting P, “Mr Tong” would have fed P with certain drugs to make him sleep before performing sexual acts on him, and the applicant would agree with “Mr Tong” beforehand on the arrangements of money and the administration of drugs.
資料顯示“P”遭“唐某”淫辱前，“唐某”將某些藥物給“P”餵食，令“P”睡覺，才和“P”進行性行為。事前，申請人會和“唐某”達成金錢和用藥的安排。

The applicant admitted that when she was together with P and “Mr Tong”, she had on occasion(s) had oral sex with “Mr Tong” and then kissed P, which caused physical injuries to P and made him feel painful.
申請人承認和“P”及“唐某”一起時，試過先和“唐某”口交再錫“P”。事件導致“P”身體受損，令他感到痛楚。

Reasons for sentence of the trial judge
原審法官的判刑理由

The trial judge emphasized that the applicant had no psychological problem, and she took her young son to the residence of “Mr Tong” for him to gratify his sexual desire simply for pecuniary advantage.  The applicant should have known that “Mr Tong”, apart from assaulting P indecently, would also perform buggery on P.  The trial judge took the view that the applicant might also have been drugged by “Mr Tong” and became sound asleep.  Therefore, she might not have witnessed the evil deeds “Mr Tong” had done to P.  However, the applicant must have knowledge of the matter as she had discussed about the arrangements with “Mr Tong” beforehand, and she also had some discussions with him afterwards.
原審法官強調申請人沒有心理問題，而她全是為了金錢得益而將年幼兒子帶往“唐某”的居所，供他淫辱。申請人應知悉“唐某”除了非禮“P”外，更會和“P”肛交。原審法官認為申請人可能亦遭“唐某”施藥，令她昏睡，故未必能親眼目睹“唐某”對“P”做出的惡行，但申請人必然對事件知情，原因是申請人事前有和“唐某”商討安排，事後亦有和他商談事件。

The trial judge said that there was no evidence to show that P suffered mentally or physically from the aftermath of the incident, and therefore the criminality of the applicant is lower than that of the defendant in HKSAR v Kwan Hoi (CACC 415/2002).
原審法官指沒有證據顯示事件令“P”有任何精神或身體的後遺症，故申請人的罪行較香港特別行政區 訴 關海（CACC 415/2002）案被告人罪行的嚴重性為低。

The trial judge pointed out that the applicant has given up the chance to meet P until he becomes a grown-up, it is therefore not possible for the applicant to re-offend, but the sentence must, in his view, carry a deterrent effect.  At last, the applicant was sentenced to 11 years’ imprisonment by the trial judge.
原審法官指出雖然申請人已放棄和“P”見面的機會，直至他長大，故申請人不可能再干犯相同罪行，但認為刑期要帶出阻嚇作用。原審法官最終判申請人入獄11年。

Grounds of appeal
上訴理由

Mr Bernard Yuen, Counsel for the applicant, pointed out that the criminality in the present case was much lower than that in the case of Kwan Hoi.  In his written submissions, Mr Yuen emphasized that the following aggravating factors could be found in the case of Kwan Hoi, which included:
代表申請人的袁國華大律師指本案遠較關海案的嚴重性為低。在其書面陳詞，袁大律師強調關海案有以下加重罪責的因素，包括：

The case involved sexual offences against a girl, namely two counts of buggery and one count of having sexual intercourse with a girl under the age of thirteen;
案件涉及針對女童的性侵犯控罪，即兩項肛交罪及一項與13歲以下女童性交罪；

the victim girl was required to relive the ordeal by recounting the same in the witness-box;
受害女童要作供及憶述慘痛經歷；

the victim girl indicated the feeling of pain and fear, but the defendant still scolded her fiercely and told her not to make a noise;
受害女童表示感痛楚和驚恐，但被告人仍兇惡地責駡她及叫她不可作聲；

medical evidence showed that the hymen of the victim girl was ruptured; and
醫學證據顯示受害女童處女膜破裂；及

the defendant showed no remorse, and he even alleged that his sexual acts were only responding to the girl’s sexual advances made to him.
被告人毫無悔意，更指受害女童主動引發他作性行為。

Mr Yuen emphasized that in the case of HKSAR v Loke Yat (CACC 79/1997) where the defendant was charged with five counts of homosexual buggery and three counts of aiding and abetting another person to commit homosexual buggery, the Court of Appeal held that the starting point adopted for the three counts of aiding and abetting another person to commit homosexual buggery should be 6 years.
袁大律師強調在HKSAR v Loke Yat (CACC 79/1997)案，被告人被控五項同性肛交罪及三項協助教唆他人干犯同性肛交罪。上訴法庭裁定三項協助教唆他人干犯同性肛交罪的量刑基準應為6年。

Mr Yuen also contended that there was no clear evidence to show that “Mr Tong” had committed buggery on P.  Even if there was such evidence, it was not sufficient to prove the applicant’s presence and knowledge.  Mr Yuen suggested there was no evidence to show that “Mr Tong” had intimidated or forced P with violence, and no evidence that P suffered pain or injuries, and hence the trial judge should not have adopted the sentence in the case of Kwan Hoi as the starting point.
袁大律師亦指證據未能明確顯示“唐某”有和“P”進行肛交，而如有的話，證據亦不足以證明申請人在場及知情。袁大律師認為沒有證據顯示“唐某”有用暴力威嚇或強迫“P”，亦沒有證據顯示“P”有痛楚或受傷，因此原審法官不應以關海案的判刑為量刑基準。

Mr Yuen submitted that there were mitigating factors in the present case, including the confession made by the applicant and her provision of information to the police to assist in tracking down “Mr Tong”, for which, however, the trial judge did not give any discount to the applicant when passing the sentence.
袁大律師認為本案有減刑因素，包括申請人作出招認及已向警方提供資料，協助警方追捕“唐某”，但原審法官並沒有給予申請人刑期扣減。

Discussion
討論

As this court has pointed out in the case of HKSAR v Lee Hon Wah and another person (CACC 54/2010), different cases of homosexual buggery and indecent conduct with or towards a child under the age of 16 years involve offenders and victims of different age, background and relationship.  The severities of respective circumstances of offences could also vary widely.  It is therefore very difficult to give suitable sentencing guideline.  Besides, sentences in similar cases are of limited assistance as a guide to sentencing in individual cases.  As the nature of this case is extremely special, sentences in other similar cases are of no assistance as a sentencing guideline.  Although the victims in the case of Loke Yat were not adults yet, they were capable of thinking independently, and they even consented to have anal sex with the defendant of that case.  For this reason, the sentence in that case is of no relevance to that in the present case.
誠如本庭在香港特別行政區訴李漢華及另一人(CACC 54/2010)案指出，在同性肛交及與16 歲以下兒童作出猥褻行為的罪行的案件，犯罪人和受害人的年齡、背景及關係各有不同，犯案情況之嚴重性之差別亦可能很大，因此很難作出適當之量刑指引。其他同類案件之判刑，對個別案件判刑之指導作用亦有限。本案性質極為特殊，其他同類案件的判刑不具任何指導性。Loke Yat案的受害人雖然並非成年，但有獨立思想，而他們更是同意和該案的被告人進行肛交行為。因此，該案的判刑和本案的判刑無關。

We agree that the harm, whether physical or psychological, done to the victim in the case of Kwan Hoi, is far more serious than that suffered by P.  P was still under six when the incident took place, and “Mr Tong” had administered drugs to make him sleep before assaulting him indecently.
本庭同意關海案的受害人受到的傷害，不論是身體上或精神上的傷害都遠較“P”所受的傷害為深。案發時，“P”不足6歲，而“唐某”對他作出猥褻侵犯行為前，更向他施用藥物，令他睡覺。

The severity of the present case does not lie in the physical or mental harm done to P, but the applicant’s inhuman behaviour.  Being the biological mother of P, the applicant has the responsibility to look after and protect him.  Nevertheless, not only did the applicant fail to discharge her duty, but she even “put the cat near the goldfish bowl” for pecuniary advantage.  Although she knew full well that “Mr Tong” was a paedophile, she took P to the residence of “Mr Tong” for him to gratify his sexual desires.  At the time of the offence, the applicant even agreed with “Mr Tong” to administer drugs to P first to make him sleep before he could assault him sexually.
但本案之嚴重性不在乎“P”所受的身體或精神傷害，而是申請人滅絕人性的行為。申請人是“P”的生母，有責任去照顧及保護他。但申請人不但沒有履行其責任，更為了獲得金錢得益，“送羊入虎口”。她明知“唐某”有孌童癖，卻將“P”帶往“唐某”的居所，供他淫辱。事發時，申請人更和“唐某”協議，先向“P”施藥，令他睡覺，以方便他淫辱“P”。

The conduct of the applicant is evil, in breach of trust and against humanity, which is not acceptable in any civilized societies.  This court has to give a clear message that anyone who commits such immoral and abhorrent crime will receive a heavy sentence from the courts.
任何文明社會都不可能接受申請人的邪惡、違反誠信及有違天性的行為。本庭亦必須發出明確訊息，任何干犯這類無良、天理不容罪行的人都會遭法庭重判。

We agree that when considering sentence, apart from the severity of the offence that the applicant has committed, we should also take into account factors such as the harm done to P in this incident, the impact on the victim and the victim’s family, and the risk of re-offending by the applicant.  We note that according to the medical report, one year after the incident, P’s physical condition is normal, and there is neither old nor new injury with his genital or anal area.
本庭同意，在處理案件的判刑時，除了考慮申請人罪行的嚴重性外，亦要考慮事件對“P”造成的傷害、事件對受害人和其家人的影響及申請人會否重犯等因素。本庭知悉根據醫生報告，事發後一年，“P”的身體狀況正常，性器官和肛門並沒有新或舊的傷痕。

We also agree that the trial judge has a basis to find that the incident has not caused any serious physical injury to P and that it will not cause any continuous serious adverse effect to him mentally or psychologically.
本庭亦同意原審法官有基礎認為事件沒有對“P”造成嚴重的身體傷害，亦不應會對他有任何持續性的精神或心理的嚴重負面影響。

The severity of the present case lies in the serious breach of trust on the part of the applicant by offering her biological son to a paedophile to gratify his sexual desires for pecuniary advantage.  As the conduct of the applicant is inhuman and unscrupulous, the sentence imposed by the court must mark the public abhorrence of the offence.  (See paragraph 25(3) of the judgment of HKSAR v Chow Yuen Fai [2010] 1 HKC 181)
但本案的嚴重性是申請人嚴重違反誠信，為了金錢得益而將親生兒子供應給一名孌童癖患者淫辱。申請人的行為泯滅良知、有違天理，而法庭的判罰亦必須表明社會大眾不能容忍她的罪行 (見HKSAR v Chow Yuen Fai [2010] 1 HKC 181案判案書第 25(3) 段)。

There is information showing that after being arrested, the applicant indicated to the prosecution she was willing to testify against “Mr Tong”, and she has given witness statements to the police on two separate occasions.  The applicant also took the police to the residence of “Mr Tong” so that the police could arrest him and search his place.
有資料顯示被拘捕後，申請人向控方表示願意協助控方指控“唐某”，並前後兩次向警方提交證人供詞。申請人亦有帶領警員前往“唐某”的居所，令警員能拘捕他及搜查他的居所。

Although the police could not charge “Mr Tong” for assaulting P sexually, further evidence of sexual abuse on other teenagers by “Mr Tong” was retrieved from the computer found at his residence.  Eventually, “Mr Tong” was sentenced to a total of 9 years’ imprisonment for committing a number of offences involving possession and manufacturing of child pornography and three counts of unlawful sexual intercourse with a girl under the age of 16.
雖然警方未能檢控“唐某”性侵犯“P”，但從“唐某”居所搜得的電腦中，警方發現更多“唐某”淫辱其他青少年的罪證，最終“唐某”亦因為干犯數項涉及管有及製作兒童色情物品罪及三項與16歲以下的女童非法性交罪而被判入獄共9 年。

We agree that even without the assistance of the applicant, the police could still find out the address of “Mr Tong” though it might take a longer time.  Had the police not arrested “Mr Tong” and searched his residence as soon as possible, he would have had the opportunity to destroy the evidence against him and been able to go off scot-free.  For the above reason, as far as the conviction of “Mr Tong” is concerned, the assistance given to the police by the applicant should be recognized.
本庭同意即使沒有申請人的協助，警方亦可以追查到“唐某”的地址，但需要時間可能較長。如警方未能盡快拘捕“唐某”及搜查其居所，則“唐某”會有機會銷毀對他不利的證據，令他能逍遙法外。因此，對“唐某”被定罪，申請人向警方提供的協助亦應予肯定。

We have considered the sentences of other similar offences, and find that having regard to the relevant factors of the case as a whole, a starting point of 11 years is not manifestly excessive.
本庭有考慮過其他同類罪行的判刑，本庭認為以案件的整體有關因素而言，11 年的量刑基準並非明顯過重。

However, in our view, it is also a mitigating factor that the applicant has assisted by providing information of “Mr Tong” to the police and taking the police officers to his residence for a search, which finally led to the conviction of “Mr Tong”.  We are of the view that a reduction of 6 months in the term of sentence should be given to the applicant.
但本庭認為申請人向警方提供關於“唐某”的資料及親自帶領警員前往“唐某”居所搜查，令“唐某”最終被定罪一事亦是減刑因素。本庭認為應給予申請人減刑的幅度為6 個月。

For the above reason, we allow the applicant’s application for leave to appeal against sentence and treat it as the appeal proper.  The appeal is allowed and the sentence is reduced from a term of 11 years’ imprisonment to one of 10 years and 6 months.
因此，本庭批准申請人就判刑上訴，並視其申請為正式上訴。本庭裁定申請人上訴得直,並將其刑期由11 年減至10 年 6 個月。

Mr Eddie Sean, 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單偉琛代表。

Mr Bernard Yuen, instructed by Yam Johnnie, Jacky Lee & Co, assigned by the Legal Aid Department, for the applicant
申請人：法律援助署委派任其昌李鴻生律師行轉聘大律師袁‍國華代表。