Hon Cheung JA (giving the Reasons for Judgment of the Court):
上訴法庭法官張澤祐頒發上訴法庭判案理由書：

The applicant was charged with one count of non-consensual buggery, contrary to section 118A of the Crimes Ordinance (“the Ordinance”), Cap. 200, Laws of Hong Kong.  He was convicted of the offence after trial before Barnes J and a jury.  He applied for leave to appeal against conviction.
申請人被控一項「未經同意下作出的肛交」罪，違反《刑事罪行條例》（‘《條例》’）（香港法例第 200 章）第 118(A) 條。案件經高等法院原訟法庭張慧玲法官及陪審團審理後，申請人被裁定罪名成立。申請人就定罪提出上訴許可申請。

We heard the application on 25 April 2008.  At the conclusion of the hearing, we granted leave and, treating the application as the appeal itself, allowed the appeal and quashed the conviction.  We now set out the reasons for our judgment.
本庭於 2008 年 4 月 25 日就該申請進行聆訊，審結後批准申請，並視該申請為正式上訴、批准上訴及撤銷定罪。以下是本庭的判案理由。

Prosecution case
控方案情

The particulars of offence stated that on 20 November 2005 the applicant committed buggery with a female (hereinafter called “the victim”) without her consent.
控罪詳情指申請人在 2005 年 11 月20 日在未得一名女士（以後簡稱‘女事主’）同意下與女事主進行肛交。

The prosecution’s case was that the applicant came to know the victim in 2002 through the internet.  They met afterwards and had sex for the first time at the victim’s residence.  They became sex partners thereafter.  Apart from vaginal intercourse, they both agreed to have sado-masochistic activities, which included taking turns to be tied up.
控方案情顯示申請人與女事主於 2002 年經互聯網認識，其後兩人約會及在女事主家中首次發生性關係。之後，兩人一直維持着性伴侶的關係。兩人除了進行陰道性交外還同意進行性虐待行為，包括兩人輪流被對方捆綁。

In late 2003, they had anal sex for the first time.  Before having anal sex, they had vaginal intercourse.  In the course of anal sex, the victim told the applicant that she felt pain and did not want to have anal sex.  The applicant then stopped the anal sex immediately.
2003 年底雙方進行了第一次的肛交，在進行肛交前雙方先進行陰道交，在進行肛交的過程中女事主對申請人說她感到痛楚及不想進行肛交，申請人就即時中止肛交行為。

Although the victim indicated on this occasion that she was not willing to have anal sex, they still had anal sex for four to five times afterwards.  In February 2005, they had anal sex once again.  The victim first put on a dildo bought by the applicant and then inserted it into the applicant’s anus.  Afterwards, the applicant inserted the same dildo into the victim’s anus and then had anal sex with her using his own penis.   About five minutes later, the victim said to the applicant “[the penetration is] so deep [and it was] so painful”, and the applicant then stopped the anal sex.
雖然女事主在這次事件中曾表示過她不願意進行肛交，但之後雙方仍進行了四至五次的肛交。2005 年 2 月雙方又進行了一次肛交，女事主首先帶上一個由申請人購買回來的假陽具，然後將之插入申請人的肛門內，之後申請人用同一個假陽具插入女事主的肛門內，接着用自己的陰莖與女事主進行肛交。約五分鐘後，女事主對申請人說：「好入好痛」，申請人便中止肛交行為。

The victim came to know a new boyfriend after this occasion and so did not meet the applicant again.
在這次之後，女事主認識了另外一名男朋友，因而沒有再與申請人見面。

On 19 November 2005, the victim went to the applicant’s residence and had oral sex with him.
2005 年 11 月 19 日女事主到申請人的住所及與他口交。

On the following day (i.e. the day of the offence), the victim went to the applicant’s residence again.  On her evidence, she visited the applicant because she wanted to have sexual intercourse with him.  The victim agreed to be tied up by the applicant with leather buckles, chains and ropes.  Her legs were tied up to her head and her body was folded up.  The applicant covered her mouth and eyes with kraft tapes and then they had vaginal intercourse.  Later, the applicant wanted to have anal sex with the victim, and he applied lubricant to her anus and his penis.  He also said to the victim something like “let me satisfy your needs first” and “how about penetrating [your] anus”.  Knowing that the applicant wanted to have anal sex, the victim started to put up struggle and said “No” to him.  At this moment, the tape covering her mouth was loosened, and she said to the applicant “No, [it is] so painful.”  Although she had been tied up, she still tried to twist her body in order to stop the applicant from conducting anal sex.  However, he did not stop his movement and forcefully proceeded with the anal sex.  Feeling painful and hurt, the victim kept saying “No” and twisting her body.  In the end, she managed to make the applicant pull his penis out of her anus.
翌日（即案發當日）女事主再次到申請人的住所。根據女事主的証供，她到訪申請人是因為想與他性交。女事主同意被申請人用皮扣、鎖錬和繩來捆綁。她的雙腳被捆綁到她的頭部，整個身體被摺合起來。申請人用牛皮膠紙封貼着女事主的眼睛和口。雙方之後進行陰道交。其後，申請人欲與女事主進行肛交，他將潤滑劑塗在女事主的肛門及自己的陰莖上，並對女事主說「等我滿足下你的需要先啦」、「不如插下後面」等說話，此時女事主知道申請人欲進行肛交便開始掙扎及對申請人說：「不好」。此刻貼着她嘴巴的膠紙鬆脫了，她就對申請人說：「不好，好痛。」。她雖然被綑綁，但她扭動身體以阻止申請人進行肛交，但申請人沒有停止動作，強行繼續與女事主進行肛交。由於女事主感到痛楚及難受，她不斷說：「不好」，女事主不斷扭動身體，她最終成功地令到申請人的陰莖退出她的肛門。

Thereafter, the applicant untied the victim.  She removed the kraft tape covering her mouth and left the room.  However, soon afterwards she returned to the room upon the applicant’s suggestion and had another sexual intercourse with the applicant.  This time the victim tied up the applicant and tortured him, following which they had vaginal intercourses for twice and oral sex for once.
申請人之後為女事主鬆綁，女事主撕走口部的牛皮膠紙及離開房間。但不久之後她接納申請人的建議重返房間，並與申請人進行另一次的性交，這次是女事主綁起申請人及虐待他，兩人之後進行兩次陰道交和一次口交。

Defence of the applicant
申請人的答辯

The applicant testified that originally he intended to break up with the victim on the day of the offence and was therefore apathetic to her.  However, she took the initiative to embrace and kiss him.  She requested him to tie her up and have anal sex.  The applicant then tied her up and covered her mouth and eyes with kraft tape.  He had vaginal intercourse with her and then said to her “let me satisfy your needs first”.  Then he applied lubricant to her anus and his penis.  He testified he in fact did not want to have anal sex with her at that time and that he simply wanted “to do it perfunctorily, to perform the duty”.  He denied having had anal sex with the victim by force.  He claimed that she had agreed to do it.  On his evidence, she neither cried in pain nor put up any struggle.  However, after a while he noticed that she did not look good.  He then tore off the kraft tape that covered her mouth.  She said to him, “Not too comfortable, it’s a bit painful”.  The applicant therefore stopped having sex and untied her.  Then she played the opposite role by tying up the applicant and carried out sado-masochistic activities upon him.  Afterwards, they had vaginal intercourse and oral sex.
申請人稱在案發當日他原本打算與女事主分手，所以對她態度冷淡，但女事主主動擁抱和吻他，並要求他綁起她及進行肛交。申請人於是將女事主綁起及用牛皮膠紙封貼着她的口和眼睛。他首先與女事主進行陰道交，然後對女事主說：「等我滿足下你嘅需要先啦。」，之後將潤滑劑塗在女事主的肛門及自己的陰莖上。他說他當時根本不想與女事主進行肛交，他只是想「交貨、交差了事」。他否認強行與女事主進行肛交。他稱當時女事主是同意這樣做的，她既沒有喊痛，亦沒有掙扎過，但後來他看見女事主面有難色，於是撕走她口部的牛皮膠紙，女事主對他說：「不是太舒服，有小小痛。」，申請人於是停止性行為，並為她鬆綁。接着，女事主反過來捆綁申請人，對他進行性虐待，雙方之後再進行陰道交及口交。

Directions on “genuine belief”
「真實相信」的指引

The first ground of appeal advanced by Mr. Wong, Counsel for the applicant, was that the trial judge had declined his request to direct the jury that the applicant “genuinely believed that the victim consented to the sexual intercourse”.  The standard direction to the jury provided by the Judicial Studies Board on the issue of whether the defendant charged with a sexual offence believed that the victim consented to sexual intercourse is as follows:
代表申請人的黃大律師就上訴所持的第一項上訴理由是張法官在原審時拒絕他的要求對陪審團作出申請人「真實相信女事主同意性交」的指引。「司法人員培訓委員會」提供關於性罪行中被告人是否相信受害人同意性交的標準陪審團指引是這樣的：

If it is or may be the case that the defendant believed that she was consenting, then he cannot be guilty of rape.  It is not for the defendant to prove that he believed that she was consenting; rather, it is for the prosecution to prove, so that you are sure, that he did not believe that she was consenting to sexual intercourse.  And what if he held that belief but was mistaken? Well, if it is or may be the case that he held a genuine but mistaken belief that she was consenting, then you must acquit him.  In deciding whether or not he believed or might have believed that she was consenting, you should have regard to the existence or absence of reasonable grounds for such a belief, and to all the surrounding circumstances. But the question must always be whether you are sure that he himself did not hold such a belief.1
「若情況是，或者可能是：被告相信她是同意性交的，那麼，他的強姦罪名便不成立。被告無須證明，他相信受害人是同意性交的。控方必須證明，令你們肯定：被告不相信受害人是同意與他性交的。若被告只是因為誤會才相信受害人是同意與他性交的，那又會怎樣呢？若情況是，又或可能是被告真的以為受害人是同意性交的，但其實是他誤會了，那麼，你們便須裁定他無罪。你們決定被告是否相信，或者可能相信受害人是同意性交時，除了應該考慮是否有合理的理由，令被告相信如此外，還須考慮所有的周遭情況。問題始終是：你們是否肯定，被告本人其實並無這樣相信過。」

Although this standard direction is designed for the offence of rape, it is also applicable to other offences which involve the issue of whether the victim has consented to a sexual act.
這項標準指引是針對強姦罪名而制定的，但其內容亦適用於其他涉及受害人是否同意進行性行為的控罪。

Legal principles
法律原則

The legal principles governing “genuine belief” are as follows:
以下是「真實相信」的有關法律原則：

1.In the House of Lords case of R v Morgan and others [1976] A.C. 182, Lord Hailsham of St. Marylebone held (at p. 214) that:
1.根據 R v Morgan and others [1976] A.C. 182，英國上議院 Lord Hailsham of St. Marylebone (第 214 頁)裁定：

The “actus reus” for the offence of rape is having sexual intercourse with the victim without her consent.
強姦罪的「犯罪行為」是未得女事主同意而進行的性交。

The “mens rea” for that offence is the defendant’s intention to have sexual intercourse with the victim without her consent.
這項控罪的「犯罪意念」是被告人存有未經受害人同意而與她進行性交的意念。

The prosecution has to prove that the defendant had such an intention in order to have him convicted.
控方必須証明被告人有這樣的意念才可以令被告人入罪。

If the defendant genuinely believed that the victim consented to sexual intercourse, the aforesaid intention would be negated.
若果被告人是真實相信受害人同意進行性交，這就可以否定他存有上文所述的犯罪意念。

The principles set out in Morgan can also be extended to cover other sexual intercourses without the consent of the female victims.
Morgan 一案制定的原則亦可以引申至其他未得女事主同意而進行的性行為。

2.In Morgan, the trial judge directed the jury on “genuine belief”, in the course of which he told them that if the defendant did not have reasonable grounds for proving he had such a belief, then they must convict him.  The House of Lords held that, where the defendant genuinely believed that the victim consented to sexual intercourse, the jury could not convict him on the basis that he did not have reasonable grounds for such a belief.  In other words, the test for such a belief is a subjective one, not an objective one.
2．Morgan 一案的爭議點是原審法官在向陪審團作出被告人「真實相信」的指引時對他們說，若果被告人沒具有合理的理由來証明他是這樣相信的話，他們就需要裁定被告人有罪。英國上議院法庭裁定若被告人真實相信受害人是同意進行性交的話，陪審團便不能因被告人沒有合理理由這樣相信而裁定他有罪。換句話說，這個信念是主觀的，不是客觀的。

3.As long as there is sufficient evidence for the issue of “genuine belief” to be raised, the judge has to give appropriate directions to the jury, whether such evidence or foundation comes from the prosecution or the defence.  See: Hong Kong Archbold 2007 paragraph 4-194, Morgan (at p. 214 A) and Palmer v R (1971) 55 Cr App R 223 at p. 229.
3.無論有關「真實相信」的証據或基礎是來自控方或辯方，只要有充分的証據去提出「真實相信」這個理據，法官便有需要對陪審團作出合適的指引，見：Hong Kong Archbold 2007 第 4─194 段，Morgan （214 頁 A 行）及 Palmer v. R. [1971] 55 Cr. App. R. 223 第 229 頁。

4.In R v Taylor (1985) 80 Cr App R 327, the English Court of Appeal pointed out (at p. 330) that the court was not bound to give a direction on “genuine belief” in each and every rape case.  Whether such a direction was necessary, and whether the direction as given was fair, was to be determined by reference to the facts of the case, in particular the evidence of the victim and the defendant.  The court would give such a direction only where there was room for a defence of a mistaken belief that the victim had consented to the intercourse.  Also see R v Adkins [2000] 2 All ER 185, R v Kwok Tak Ming Danny [1996] 4 HKC 395 and HKSAR v Yiu Chi Wang CACC 582/2002.
4.在 R. v. Taylor [1985] 80 Cr. App. R. 327第 330 頁，英國上訴法庭指出法庭並不是在每一宗強姦案件都必須作出「真實相信」的指引，而是要視乎案情而定，特別是要依賴受害人和被告人的証供來決定是否需要作出有關指引及裁定該項指引是否公平。案件必須存有被告人誤以為受害人同意進行性交的空間法庭才會作出該項指引。另見：R. v. Adkins [2000] 2 All ER 185, R v Kwok Tak Ming Danny [1996] 4 HKC 395 （郭德明 [譯音]）及 HKSAR v. Yiu Chi Wang [饒志宏] CACC 582/2002.

Authorities
案例

The cases cited by the parties show that, whenever the court gave a direction on “genuine belief”, there were some special elements in the case that warranted such a direction.
雙方所援引的案例都顯示當法庭作出「真實相信」的指引時，案件是存有某些特別的因素而需要法庭作出該項指引，

In Morgan, the defence put forward by the defendants was that they had been invited by the victim’s husband to have sex with the victim.  Their case was that the victim’s husband had told them the victim was consenting to sexual intercourse with them.
在Morgan 一案，被告人的答辯理由是他們是被女事主的丈夫邀請與女事主發生性行為的。他們辯稱女事主的丈夫告訴他們女事主是同意與他們性交的。

In HKSAR v Wong Shing Chung (CACC 66/1999), this Court (Leong JA, Woo J (as he then was) and Pang J) held that a direction on “genuine belief” was necessary in that case.  This Court said on page 7 of the Judgment:
香港特別行政區訴黃盛中（CACC 66/1999），本庭（上訴法庭法官梁紹中、原訟法庭法官胡國興（當時官階）、原訟法庭法官彭鍵基）裁定該案法庭是需要作出「真實相信」的指引。本庭在判案書第七頁這樣說：

We do not agree that the facts of the present case did not leave room for a belief on the part of the applicant that the victim consented [to sexual intercourse].  The applicant’s defence was that he did not have actual sexual intercourse with the victim, and that any sex-related conduct on his part had been done with the belief that the victim consented to it.  He said the victim had flirted with him, that they knew each other very well, and that on the night in question they had been massaging each other for a very long time.  They had also consumed much wine and the applicant, under the influence of alcohol, might have thought that the victim consented to further intimate behaviour.  This might well be the genuine belief of the applicant at that time.  Therefore, the facts of the present case do leave room for considering whether the applicant held or might have held a ‘genuine belief’ that the victim was consenting.
「本庭認為，本案案情並不是無可以導致申請人以為受害人同意之情況存在。申請人答辯他沒有與受害人發生實質之性行為，他所作出的行為如果與性有關的話，是在他相信受害人同意下發生的。他說受害人曾挑逗他，兩人大家都十分相熟，而當晚兩人一起互相按摩了相當長時間。同時，兩人亦飲了不少酒，申請人於酒後可能認為受害人同意更進一步的親密行為。這可能是申請人當時真實的信念。所以，本案之背景是有空間容納需要考慮申請人是否「真實相信」受害人同意或可能如此相信。」

In HKSAR v Tsang Sai Kit [1997] 3 HKC 790, the victim had known the defendant for two days, during which they went out and had fun.  On the defendant’s evidence, they kissed and the victim offered to stay overnight at the defendant’s residence where they then had sex.  This Court (Power V-P, Liu JA and Saied J) held that a direction on “genuine belief” was necessary.
在 HKSAR v. Tsang Sai Kit [1997] 3 HKC 790 (曾世傑[譯音])，女事主與被告人相識了兩天，雙方在這兩天內出外玩耍。根據被告人的証供，雙方有接吻及女事主建議到被告人的家裡過夜，之後雙方發生了性關係。本庭（鮑偉華副庭長、上訴法庭法官廖子明、原訟法庭法官沙義德）裁定「真實相信」的指引是需要的。

In R v Cheung Kin Shing and others [1995] 2 HKC 210, the victim came to know the three defendants at a bar, where they drank beer, played games and took drugs together.  Thereafter, the defendants alleged that the victim consented to sexual intercourse with them, but the victim complained she had been raped.  This Court (Yang CJ, Gall J and Stuart-Moore J (as he then was)) held that the trial judge should have given a direction on “genuine belief”.
R. v. Cheung Kin Shing and others [1995] 2 HKC 210 (張健成 [譯音])，女事主與三名被告人在酒吧相識。女事主與他們一起喝酒、玩遊戲及吸食毒品。之後，被告人稱女事主同意進行性交，但女事主指稱她是被強姦的。本庭（楊鐵樑首席法官、高等法院法官高嘉樂及司徒冕（當時官階））裁定原審法官必須作出「真實相信」的指引。

In HKSAR v Yiu Chi Wang, the victim got drunk at a bar.  When she regained consciousness, she found herself lying on the defendant’s bed and had been raped by the defendant.  She had no recollection of what happened that night save that she had got drunk at the bar.  The defendant alleged that the victim consented to sexual intercourse with him.  The trial judge gave a direction on “genuine belief”.
在HKSAR v. Yiu Chi Wang （饒志宏），女事主在酒吧喝醉酒，之後發現自己醒睡在被告人的床上和被被告人強姦。女事主除了對她在酒吧喝醉酒一事有印象外，其餘當晚發生的事情她都記不起。被告人聲稱女事主是同意與他性交的。原審法官作出了「真實相信」的指引。

On the other hand, there are cases in which the facts simply leave no room for a direction on “genuine belief”.
反過來說，有些案情根本不存有法庭須作出「真實相信」的空間。

In R v Adkins, the victim was a waitress at a bar and the defendant was one of its customers.  The victim had repeatedly turned down the defendant’s invitations to take her out or his suggestions of going to her residence.  On the day in question, the defendant forcibly entered the victim’s residence and raped her.  The defendant alleged that he had sexual intercourse with her only after he obtained her consent.  The English Court of Appeal held that it was not necessary to give a direction on “genuine belief”.
在R. v. Adkins，女事主是一間酒吧的女侍應，被告人是顧客。女事主多次拒絕被告人提出與她外出的邀請或他到訪她的住所的要求。事發當日被告人強行進入女事主的住所及強姦她。被告人聲稱他是獲得女事主的同意才與她性交的。英國上訴法庭指法庭是不需要就該案作出「真實相信」指引。

In R v Kwok Tak Ming Danny, the victim worked in a pizza shop.  The defendant had repeatedly called the pizza shop and invited the victim out, but the victim declined the invitations.  Subsequently, the defendant called the victim again and threatened to beat up her colleagues if she did not meet him.  She therefore agreed to meet the defendant.  When they met, the defendant intimidated her by saying that he was a leading member of a triad society and that he would protect the victim and her family members.  The victim had sexual intercourse with him as she was scared of him.  He was charged with rape and intimidation.  This Court (Nazareth V-P, Mortimer and Mayo JJA) held that it was not necessary to give a direction on “genuine belief”.
在R. v. Kwok Tak Ming Danny (郭德明[譯音])，女事主在一間比薩餅店工作。被告人多次致電該店，並邀請女事主出外，但被女事主拒絕。之後被告人再打電話給女事主及恐嚇她他會毆打她的同事，女事主因此同意與被告人見面。被告人與女事主會面時恐嚇她說他是黑社會高層份子和會保護女事主及她的家人。女事主因害怕被告人而與他發生性關係。被告人被控強姦及恐嚇罪。本庭（黎守律副庭長、上訴法庭法官馬天敏及梅賢玉）裁定法庭不需要作出「真實相信」指引。

The present case
本案的情況

Mr. Wong cited the aforesaid legal propositions in support of the appeal.  He submitted that, had the present case merely involved what happened on the day of the offence, he would not have invited the court to give a direction on “genuine belief”, but the facts of the present case did render it necessary to give such a direction.
黃大律師引用這些法律觀點來支持他的上訴。黃大律師表示若本案只是涉及控罪當日所發生的事情，他就不會要求法庭作出「真實相信」的指引，但本案的案情是需要法庭作出有關指引的。

We agree with the above submission.  It can be seen from the abovementioned authorities that directions on “genuine belief” were given in cases where the facts left room for such directions.  The present case falls within this category.  To sum up the facts, the applicant and victim were sex partners and had been maintaining this relationship for quite some time.  During this period, apart from having the usual sexual activities, they also did unusual sexual acts such as sado-masochistic sex and anal sex.  Although the victim had indicated that she was feeling painful and reluctant to have anal sex after she had this form of sex with the applicant for the first time in 2003, they did have anal sex for 4 or 5 times afterwards.  The incident most relevant to the charge was that, when they had sex for the last time prior to the offence, the victim obviously consented to anal sex.  Although they did not see each other for months after having sex on that occasion, they had sexual activities again on 19 and 20 November 2005, and the victim conceded that on both occasions it was she who took the initiative to visit the applicant’s residence and had sex with him.  The events on 20 November 2005 not only represented a continuation of their sexual relationship, but, more importantly, showed that they had vaginal intercourse, to which they both consented, before having anal sex.  Accordingly, the court could not rule out the need for a direction on “genuine belief” merely because both parties had given different accounts of how they had anal sex on the day in question.  In our view, the court had to consider the facts as a whole before determining whether a direction on “genuine belief” was necessary.  The present case did not involve the victim having been raped by a stranger.  Had this been the case, there would simply have been no room for such a direction.  In light of the facts and background of the case, we have no difficulty in concluding that there was room for such a direction.  This was because the applicant might, on the basis of his sexual experience with the victim in the past and on the day in question, have mistakenly thought that she consented to buggery.
本庭同意上述的法律觀點。從上述的案例可見，在每宗法庭裁定須作出「真實相信」指引的案件的案情中都確實存在法庭需向陪審團作出有關的指引的空間。本案是其中一個例子。綜觀案情，雙方是性伴侶，此關係維持了一段頗長的時間。期間，兩人除進行一般的性行為外還進行性虐待、肛交等非一般的性行為。雖然女事主在 2003 年首次與申請人進行肛交後曾對申請人表示過她感到痛楚及不願意進行肛交，但之後兩人仍進行過四至五次的肛交。與本控罪最有關連的一件事就是雙方在案發前，即最後一次進行性行為時女事主明顯是同意進行肛交的。雖然在這次性交之後，雙方多個月沒有見面，但兩人於 2005 年 11 月 19 日 及 20日再次進行性行為，而女事主承認這兩次都是她主動到訪申請人的住所，並與他發生性行為的。2005 年 11 月 20 日所發生的事除了是雙方性關係的延續外，更重要的是它顯示出雙方在進行肛交之前是會先進行雙方同意的陰道交，故此法庭不能只因雙方就當日如何進行肛交的情況持不同說法而裁定法庭沒有需要作出「真實相信」的指引的。本庭認為法庭要視乎整體的案情來裁定應否作出「真實相信」的指引。本案案情並不是一名陌生人強暴女事主的情況，若是這樣案件根本不存在法庭需要作出有關指引的空間。就本案的案情和背景，本庭毫無困難地裁定案件是存有足夠的空間讓法庭作出有關的指引。這個空間就是申請人可能是依賴雙方過往及當日所進行的性行為的經驗而誤以為女事主是同意進行肛交的。

Mr. Patrick Cheung, Senior Assistant Director of Public Prosecutions, submitted on behalf of the respondent that the victim might in the past have consented to other form of sexual activities but not anal sex, and hence the facts of the present case would not have given rise to a mistaken but genuine belief on the part of the applicant that the victim consented to anal sex.  Mr. Cheung also submitted that, given the applicant’s testimony that he did not intend to have anal sex with the victim at all and that he had sexual intercourse with her only reluctantly upon her request, the facts did not form any basis of a “genuine belief” on the part of the applicant.  With respect, we do not agree with this submission, which we consider sweeping and over-generalized.  In our view, whether the applicant believed the victim consented to anal sex was to be determined by reference to a whole range of factors, including their sexual relationship over the years and the sexual intercourse that they first had by consent on the day in question.  Even if the applicant had anal sex with the victim perfunctorily on that day, it does not mean he did not genuinely believe that she consented to anal sex.  The perfunctory act and the belief were not mutually exclusive.
代表答辯人的張維新高級助理刑事檢控專員指女事主可能從前是同意進行其他形式的性行為，但她是不同意進行肛交的，因此本案案情不會導致申請人產生一個錯誤而真實的信念，即女事主是同意進行肛交的。他更指申請人作供指他根本無意與女事主進行肛交，他只是因女事主提出要求才勉強地與她進行性交，故此案情並不存在申請人「真實相信」的理據。本庭不同意張大律師這個看法。本庭認為他這個看法太籠統及以遍概全。本庭認為申請人是否相信女事主同意進行肛交是必須根據多方面的因素來考慮，這包括雙方多年的性關係及事發當日雙方先進行同意的性交。就算當日申請人只是敷衍女事主而與她肛交也不代表他沒有真實相信她是同意進行肛交的信念。兩者是沒有抵觸的。

Mr. Cheung raised the question of whether a direction on “genuine belief” would be needed in every sexual assault case which involved dating pairs or sex partners.  We wish to stress that we consider it necessary to give a direction on “genuine belief” in the present case solely on the basis of the facts of the case.  Our ruling on the need for such a direction is not based on a dating or sexual relationship between the applicant and the victim.  We do not consider it necessary for the court to give a direction on “genuine belief” in each and every sexual assault case involving dating pairs or sex partners.  The court does not apply the law mechanically.  This is because, even where a case involves dating pairs, a married couple or sex partners, if the facts leaves no room whatsoever for a direction on “genuine belief”, the giving of such a direction would only serve to confuse the jury.
張大律師反問法庭是否就每一宗涉及男女朋友或性伴侶關係的性侵犯案件都必須作出「真實相信」的指引？本庭強調法庭認為本案有需要作出「真實相信」的指引純粹是基於本案的案情。本庭並不是因本案的女事主和申請人是男女朋友關係或者兩人有性關係而裁定必須作出有關的指引。本庭並不認為法庭就每一宗涉及男女朋友或性伴侶關係的性侵犯案都必須作出「真實相信」的指引，法庭是不會機械式地運用法律，原因是就算雙方是男女朋友、夫婦或者兩人有性關係，若案情根本不存在法庭須作出「真實相信」指引的空間，而法庭卻作出有關指引，這只會使到陪審團混淆。

Question raised by the jury
陪審團的問題

Mr. Cheung also pointed out that, in the course of their deliberations, the jury had raised the following question: if, in the course of having anal sex with the victim, the applicant came to know she did not consent to anal sex and thereupon stopped the act, was he guilty of the charge?  The question and the direction given by Barnes J were framed in the following terms:
張大律師又指陪審團在商議期間曾經提出過一個問題：若申請人在與女事主進行肛交時知道她是不同意而立即停止該行為，那麼該項控罪是否成立呢?這個問題的內容和張法官作出的指引是這樣的：

Judge: Right, members of the jury, you have a question, namely whether the defendant committed the offence of non-consensual buggery if, in the course of having anal sex with PW1 on 20 November 2005, he immediately stopped the act (that is, having anal sex) as soon as he came to know that PW1 did not consent to anal sex.  Having discussed the matter, we are of the opinion that you should be given the following directions: if you find as a fact that the defendant did not know the victim did not consent to anal sex at the moment they started to have anal sex, but soon afterwards he came to know the victim did not consent to it and thereupon he immediately stopped doing it, then he did not commit the offence of non-consensual buggery because he had no knowledge of [the lack of consent] at the outset.  It is for the prosecution to prove that he must – to prove that he knew the victim – that means, first, the victim did not consent, and secondly, the defendant knew that the victim did not consent.  In other words, the prosecution has to prove that the defendant had anal sex with the victim knowing that she did not consent to it.  Therefore, if the fact as you find it is that the defendant had no knowledge at the outset and stopped immediately once he came to have knowledge, then he did not have anal sex with the victim knowing that she did not consent to it.  But of course, we do not know what your finding of fact is, and I can only tell you that as a matter of law, if you find as a fact that [the defendant] had no knowledge at the outset and then came to have knowledge during – during the course of [anal sex] and then stopped immediately, then he did not commit the offence of non-consensual buggery.  I hope this helps.  Thank you.
「官：係，各位陪審團，你哋有一個問題就係話喺 2005 年嘅 11 月 20 日呢，第一證人同被告進行肛交嘅時候，當被告知道第一證人唔同意肛交時如果立刻停止動作（即係肛交），係唔係已經構成咗未經同意下作出肛交罪名呢個問題，咁我哋商議過之後，我哋認為畀你嗰個嘅指引應該就係咁，如果你哋裁定咗嘅事實就係當個被告即刻開始進行肛交嗰一刻佢係唔知道個女事主唔同意嘅，但係開始咗之後佢就知道咗個女事主唔同意喇，當佢知道個女事唔同意嘅時候佢就即刻停止呢，咁佢就唔構成喺未經同意下作出肛交喇，因為佢最初係唔知吖嘛，控方要證明佢一定 ─ 證明佢知悉個女事 ─ 即係一來，個女事主唔同意喇，二來，個女事主唔同意呢件事係個被告知道嘛，咁即係話控方要證明個被告人係明知個女事主唔同意之下同佢肛交。所以如果你哋裁定嘅事實係當時被告最初係唔知嘅，但係佢一知嘅時候即刻停，咁佢就冇喺明知個女事主唔同意嘅情況之下進行肛交喇。咁但係當然你哋個事實係咩嘢我哋唔知吖，即係只可以話法律上係咁喇，如果你哋裁定嘅事實最初唔知，做做下 ─ 做嘅時候即刻知道，就即刻停呢，就唔構成呢  ─ 一個未經同意下作出肛交，希望咁樣可以幫到大家。唔該」

The above question, Mr. Cheung submitted, showed that the jury did consider that the applicant did not know at the beginning whether the victim consented to anal sex and only came to know in the course of anal sex that she did not consent.  Mr. Cheung submitted that the guilty verdict returned by the jury showed that they considered the applicant went on with the anal sex upon knowing that the victim did not consent to it.  Mr. Cheung added that, as the applicant did know the victim did not consent to anal sex, the possibility of a “genuine belief” simply did not exist.
張大律師指陪審團提出這個問題可見他們是有考慮到申請人當初是不知道女事主是否同意進行肛交的，他是在過程中知道女事主是不同意的。張大律師認為陪審團裁定申請人罪名成立顯示他們認為申請人在知道女事主不同意進行肛交後仍然繼續進行該行為。張大律師又認為由於申請人是知道女事主不同意進行肛交的，所以案件根本不存有「真實相信」的信念。

The jury were not required to give reasons for their verdict, and in our view one should not second-guess why they returned a guilty verdict against the applicant.  It is true that, as suggested by Mr. Cheung, the jury might have indeed considered the point mentioned by him, but it is not for the court to second-guess whether that was the basis on which the jury found the applicant guilty in the end.  In our view, although the jury used the word “know”, as Barnes J had not given a direction on “genuine belief”, the jury, in raising the question about the applicant’s “knowledge” of the lack of consent to anal sex, were still not apprised of the legal concept of a genuine belief in consent.  Furthermore, the facts of the present case were unusual in that the victim had consented to sado-masochistic activities such as bondage.  Accordingly, even the victim had put up resistance in the course of the anal sex, we cannot be sure that the jury would still have concluded that the applicant had “knowledge” of the lack of consent to anal sex had they been directed on “genuine belief”.  For these reasons, we will not hold that the present case did not involve the issue of ”genuine belief” because of the question raised by the jury and the supplemental direction given by Barnes J.
本庭認為由於陪審團在作出裁決時不需要提供理由，故此不應該揣測他們是根據甚麼理據去裁定被告人罪名成立。無疑，正如張大律師所說，陪審團有可能考慮到他所提出的這一點理據，但法庭是不可以揣測他們最終是否根據這個理由裁定申請人罪名成立。本庭認為雖然陪審團採用「知道」兩個字，但由於張法官沒有作出「真實相信」這個指引，故此在陪審團提出申請人「知道」女事主不同意進行肛交這個問題時，他們仍然是不知道申請人是有可能真實相信女事主是同意進行肛交的法律概念。另外，根據本案的特殊案情，即女事主同意進行涉及被捆綁的性虐待行為，故此就算女事主在肛交的過程中曾作出反抗，本庭亦不能肯定若果陪審團有了「真實相信」的指引，他們仍然會裁定申請人是「知道」女事主不同意進行肛交的。因此，本庭不會因陪審團提出這個問題及張法官所作出的補充指引而裁定案件不存有申請人「真實相信」的議題。

In our judgment, the jury’s verdict is unsafe for the reason that they had not been thoroughly apprised of the principles governing the mens rea of the offence.  As Mr. Cheung took the view that it was unnecessary for Barnes J to give the relevant direction, he did not rely on the “proviso” to uphold the verdict.  Under these circumstances, we do not have to consider whether the “proviso” can be applied.  We will only say that, even if this question were to arise, we would not apply the “proviso”.  As this Court pointed out in Wong Shing-chung:
本庭裁定由於陪審團未能全面了解控罪的犯罪意念的原則，故此他們的裁決是不穩妥的。由於張大律師認為張法官是不需要作出有關的指引，所以他是不需要引用「但書」來維持判決的。在這情況下，本庭不需要考慮法庭是否可以引用「但書」這個議題。就算這是一項實質的爭議點，本庭亦不會引用「但書」。正如本庭在黃盛中一案指出：

In our view, the prosecution had to prove each and every element of the offence being charged, and one of the elements was that the defendant knew the victim did not consent to sexual intercourse or that he did not believe she consented to sexual intercourse.  The judge’s misdirection might have led the jury to think that the prosecution had discharged the burden of proving all the elements, whereas the facts of the case against the applicant did not point overwhelmingly to the conclusion that he indeed had sexual intercourse with the victim when he did not believe she consented to it.  Therefore, in our view the present case is not one in which the appeal can be dismissed by applying the ‘proviso’.
「本庭認為控方須証明控罪中每一因素，被告知道受害人不同意性交或不相信她同意性交是因素之一。法官之錯誤引導可能令陪審團認為所有因素已由控方舉証完全証實，而本案中對申請人不利之案情並不是壓倒性的指向申請人確實在他不相信受害人同意下與她發生性行為。因此，本庭不以為這是可行使「但書」駁回上訴之案件。」

Others
其他

The second ground of appeal advanced by Mr. Wong was that, in her directions to jury, Barnes J had used a number of rhetorical questions, for the purpose of deliberately and obliquely inject her own viewpoints and opinions.  Her approach, it was submitted, had affected the jury’s ability to think independently and had rendered the directions unfair.
黃大律師的第二項上訴理由是張法官在引導陪審團時使用了大量的反問句，其作用是明知故問及間接地加入她個人的觀點和意見，她的做法妨礙了陪審團的獨立思考空間，令指引欠缺公平。

As we have accepted the ground of appeal regarding “genuine belief”, it is not necessary for us to deal with the second ground of appeal.
由於本庭認同黃大律師有關「真實相信」指引的上訴理由，故此本庭不需要處理第二項上訴理由。

Mr. Patrick Cheung, Senior Assistant Director of Public Prosecutions and Ms. Winnie Lam, Senior Government Counsel (Acting), for the Respondent
答辯人：由律政司高級助理刑事檢控專員張維新及署理高級政府律師林德穎代表。

Mr. Peter Wong, instructed by K. M. Lai & Li, for the Applicant
申請人：由黎錦文李孟華律師行轉聘黃廷光大律師代表。