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：

Background
背景

The applicant was charged with seven counts of sexual assault offences.  The victims were two 12-year-old boys X and Y, who were both 12-year-old secondary school students.  The charges were:
申請人被控七項性侵犯罪，事主是兩名12歲男童X及Y。他們是中學生。有關的控罪為：

three counts of “indecent conduct towards a child under the age of 16” (Charges 1 to 3);
三項「向年齡在16 歲以下的兒童作出猥褻行為」罪（控罪一至三）；

one count of “non-consensual buggery” (Charge 4);
一項「未經同意下作出的肛交」罪（控罪四）；

one count of “procuring another person, by threats or intimidation, to do an unlawful sexual act” (Charge 5); and
一項「以威脅或恐嚇手段促致他人作非法的性行為」罪（控罪五）；及

two counts of “indecent assault on another person” (Charges 6 and 7).
二項「猥褻侵犯另一人」罪（控罪六和七）。

Charges 1 to 3 involved Boy X (Group 1 charges), and Charges 4 to 7 involved Boy Y (Group 2 charges).
控罪一至三涉及男童 X（第一組控罪），控罪四至七涉及男童 Y（第二組控罪）。

The case was heard before High Court Judge Maggie Poon sitting with a jury.  The applicant initially pleaded not guilty but changed his plea after the voir dire.  Judge Poon imposed a total sentence of 7 years’ imprisonment for the Group 1 charges (Charges 1 to 3) and a total sentence of 9 years’ imprisonment for the Group 2 charges (Charges 4 to 7), and the two sentences were ordered to run concurrently, making a total term of 9 years.  The starting points adopted by Judge Poon for individual charges and the sentences after giving one-fourth discount for the guilty plea are set out below:
案件由高等法院原訟法庭法官潘敏琦與陪審團審理。申請人最初不認罪，但在「案中案」審結後改為承認控罪，潘法官就第一組控罪（控罪一至三）判申請人總刑期7年，就第二組控罪（控罪四至七）判總刑期9年，兩組刑期同期執行，總刑期為9年監禁。潘法官判處的個別控罪的量刑基準及因認罪扣減四分之一之後的刑期如下：

The applicant applied for leave to appeal his sentence.  At the conclusion of the hearing, we dismissed the application for reasons which we now give.
申請人就刑期提出上訴許可申請。本庭在聆訊後駁回申請，以下是判決理由。

Facts
案情

The present case happened between May and July 2011 when the applicant was aged 20.  In early 2011, the applicant became acquainted with X in a park, and through X, he also became acquainted with X’s friends, including Y.  The applicant came to know the age of X and Y and which level(s) they were studying at school.
本案發生於2011年5月至7月期間，當時申請人的年齡為20歲。X於2011年初在一個公園結識申請人，申請人亦透過X認識了X的其他朋友，包括男童Y。申請人亦得悉X及Y的年齡及在學校就讀的班級。

Charge 1 (Indecent conduct towards a child under the age of 16)
第一項罪名（向年齡在16歲以下的兒童作出猥褻行為）

One night in May 2011, the applicant without prior notice visited X who was at home playing computer games with a boy who was of the same age (E).  At X’s home, the applicant suddenly pulled down his pants, exposing his private parts, and took X’s hand to touch his penis, and then masturbated by himself.  He requested X and E to try to perform oral sex on him.  E refused.  X eventually licked the applicant’s penis once and then immediately left the room for the toilet to rinse his mouth.
於2011年5月某晚，X正在家中與一位同齡的男童E以電腦玩遊戲，申請人忽然到訪。申請人後來突然拉下褲子露出下體，並捉着X的手去觸摸申請人的陰莖，再自行手淫。申請人要求X及E嘗試替申請人口交，E拒絕，X最後以舌頭舔了申請人的陰莖一下，便立刻離開房間到洗手間漱口。

Charge 2 (Indecent conduct towards a child under the age of 16)
第二項罪名（向年齡在16歲以下的兒童作出猥褻行為）

One evening in May 2011, the applicant and X met at a park.  The applicant pulled X’s hand to touch his lower parts over the pants.  X tried to withdraw his hand but it got caught again.  The applicant then pulled down his pants, exposing his private parts, and requested X to perform oral sex on him.  X licked the applicant’s penis once.
於2011年5月某天傍晚，申請人與X在一個公園見面。申請人拉着X的手隔着褲子觸摸申請人的下體，X試圖縮開手但遭捉着。接着申請人拉下褲子露出下體，要求X替他口交，X以舌頭舔了申請人的陰莖一下。

Charge 3 (Indecent conduct towards a child under the age of 16)
第三項罪名（向年齡在16歲以下的兒童作出猥褻行為）

One day in early June 2011, the applicant visited X’s home and requested X to masturbate with him together.  X agreed and the two of them masturbated, and then the applicant requested X to let him ejaculate in his mouth and promised X that no such acts would be done anymore.  X agreed to let the applicant ejaculate into his mouth and afterwards went to the toilet immediately to spit out the semen.
於2011年6月初的某一天，申請人到X的家，要求和他一起手淫。X同意，兩人進行手淫，接着申請人要求X讓申請人在X口中射精，申請人向X承諾這將是最後一次進行這些行為。X同意申請人把精液射進X的口中，之後X立刻到洗手間把精液吐出。

On the above three occasions, X involuntarily did the acts of masturbation or oral sex.  However, as the applicant had on a certain day in April 2011 threatened X and X’s friend(s) with a fruit knife at X’s home, and as X had also noticed that the applicant often carried a cutter with him, X was afraid of being beaten up if he did not do as instructed by the applicant.
X是在不自願的情況下進行上述三次的手淫、口交等行為，但因為申請人曾經在2011年4月某一天，在X家中以生果刀指嚇X和X的朋友，X又留意到申請人時常帶着一把刀，所以恐怕不依照申請人的指示做，會遭申請人毆打。

Charge 4 (Non-consensual buggery)
第四項罪名（未經同意下作出肛交）

In mid-2011, Y became acquainted with the applicant through X.  The applicant suggested having homosexual anal sex with Y, but Y refused.  The applicant threatened to get someone to beat Y up.  Y felt very disturbed after hearing that.
於2011年中，Y透過X認識了申請人，申請人向Y提議進行同性肛交，但Y拒絕，申請人恐嚇會找人打Y，Y聽到後感到很不安。

On the afternoon of 24 June 2011, the applicant invited Y to the applicant’s residence to play video games.  The applicant pinned Y down on the bed and forcibly kissed him and removed all his clothing.  Y tried to push away the applicant and resist but in vain because he did not have enough strength.  The applicant performed oral sex on Y, and Y told him to stop, but he threatened to bite Y’s private parts.  The applicant then turned Y over and pinned him down on the bed, and then inserted his penis into Y’s anus.  This lasted about two minutes, during which Y kept on shouting and saying he felt pain and asking the applicant to stop.  Finally Y burst into tears.  The applicant did not use a condom during the anal intercourse.  Y managed to push away the applicant once or twice but was immediately pinned down again.  Afterwards the applicant told Y not to disclose what happened, otherwise he would get someone to beat Y up.
2011年6月24 日下午，申請人約Y到申請人的住所玩遊戲機。申請人把Y按在床上，強行與Y接吻及脫去Y的所有衣服，Y試圖推開申請人及反抗，但因為不夠力氣而不成功。申請人替Y口交，Y叫申請人停止，但申請人恐嚇會咬Y的下體。申請人接着將Y反按在床上，以陰莖插入Y的肛門，維時大概兩分鐘。期間Y不停向申請人叫喊表示痛楚及叫申請人停止，最後並哭了起來，過程中申請人並沒有使用避孕套。Y曾有一兩次把申請人推開，但立刻又遭申請人按住。申請人接着要Y不要將事情說出來，否則會找人毆打Y。

Charge 5 (Procuring another person, by threats or intimidation, to do an unlawful sexual act)
第五項罪名（以威脅或恐嚇手段促致他人作非法的性行為）

After doing the act of anal sex on Y, the applicant requested Y to do the same to him and indicated that if Y did not do as he wished, he would get someone to beat Y up.  Y was frightened and, having no choice, acceded to the applicant’s request and tried to perform anal sex on the applicant.  Y’s penis touched the applicant’s anus for 5 to 6 seconds, but as his penis was not erect, Y pretended to have anal sex by inserting his forefinger into the applicant’s anus instead.  The applicant ejaculated and wiped the semen with a piece of tissue paper.  He demanded Y to swallow the semen but Y refused.  Y threw the tissue paper into the dustbin when the applicant went to the toilet, and then lied to the applicant that he had already swallowed the semen.
申請人與Y進行肛交之後，要求Y對申請人同樣進行肛交 ，並表示假如Y不按申請人的意思做 ，會找人毆打Y。Y感到驚怕，只好應申請人的要求嘗試替申請人進行肛交。Y以陰莖接觸申請人的肛門5-6秒，但因為Y的性器官沒有勃起 ，所以改以食指插入申請人的肛門 ，假裝進行肛交。申請人有射精，並將精液抹在一張紙巾上，要Y將精液吃下但Y拒絕，Y趁申請人進洗手間時把紙巾丟進垃圾桶，向申請人訛稱已經吃了。

Charge 6 (Indecent assault on another person)
第六項罪名（猥褻侵犯另一人）

On 17 July 2011, the applicant invited Y and another boy (D) to go to a movie.  When waiting for transport, the applicant took Y to a staircase nearby for smoking and suddenly touched Y’s private parts over the pants.
2011年7月17日，申請人約Y及另一男童D，一起看電影。在候車期間，申請人帶Y到附近的樓梯吸煙，申請人突然隔着褲子觸摸Y的下體。

Charge 7 (Indecent assault on another person)
第七項罪名（猥褻侵犯另一人）

The three of them went into the cinema.  Halfway into the movie, the applicant suddenly touched Y’s private parts over the pants and attempted to kiss Y, but Y lowered his head to dodge, and the applicant immediately grabbed Y’s shoulder with his hand.
三人進入影院，電影播放至中段時，申請人突然用手隔著褲子觸摸Y的下體，並試圖以嘴吻向Y，但Y低頭避開，申請人隨即以手擁著Y的肩膊。

Y was not voluntary when the four abusive acts involved in the above incidents were performed.
在以上事件涉及的四項侵犯行為，全都是在Y不自願的情況下進行。

Grounds of appeal
上訴理據

Mr Poon, Counsel for the applicant, complained that the starting points adopted by Judge Poon for Charges 1 to 5 as well as the overall sentence were manifestly excessive.  He referred to the case of HKSAR v CHAU SHU HO (CACC 228/2007).  The appellant in that case was found guilty by the jury on four counts of “indecent assault” and one count of “common assault” on a boy aged 10.  The four counts of “indecent assault” all involved the appellant putting his penis into the boy’s mouth.  Specifically, Charge 3 alleged that the boy had all his clothes removed after he went asleep and was molested by the appellant.  The facts of Charge 4 alleged that the boy cried out for pain when the appellant was sucking his penis, but the appellant ignored him and even told him that he would take away the presents that had been given to him if he did not cooperate.  Charges 4 and 5 both involved the appellant rubbing his penis against the boy’s exposed buttock and the area outside his anus until ejaculation.  The trial judge adopted starting points of 3 years for the first two charges and 4 years for the last two charges (involving rubbing the penis against the victim).  The Court of Appeal did not consider those starting points excessive and even took the view that they were on the low side (see paragraph 43 of the judgment).
代表申請人的潘展平大律師指潘法官就控罪一至五所定的量刑基準明顯過重及整體刑期明顯過重。他引用HKSAR v. CHAU SHU HO（周樹壕）（CACC 228/2007）。在該案，上訴人被陪審團裁定共四項對一名10歲男童「猥褻侵犯」及一項「普通襲擊」罪名成立。該四項「猥褻侵犯」罪均涉及上訴人把受害男童陽具放入口中的行為。其中，控罪三指受害男童在睡着後被上訴人脫光衣服侵犯。控罪四的案情是男童在被上訴人吸吮陽具時叫痛，但上訴人沒有理會。上訴人更對男童說如果他不合作，便會把送給他的禮物拿走。控罪四及五均涉及上訴人把自己的陽具，在受害男童裸露的臀部及肛門外圍的地方磨擦，直至射精。上訴法庭認為，原審法官就首兩項控罪以3年，後兩項控罪（有用陽具磨擦受害人）以4年作起點，並無過重，且屬輕判（見判詞第43段）。

Mr Poon contended that even if the starting points in the above case were enhanced by 25%, they would still only come to 4½ years and 5 years respectively, which were still considerably lower than the starting points of 6 years and 7 years adopted in the present case, and therefore the individual sentences for Charges 1, 2 and 3 in Group 1 were manifestly excessive.
潘大律師認為，即使把上述案例量刑基準提升百分之廿五，結果也只是4年半及5年，與本案的6年及7年基準仍有明顯距離，因此第一組控罪的第一、第二及第三項控罪的個別刑期，明顯過重。

In respect of Charge 4 (involving buggery) in Group 2, Judge Poon had considered the case of HKSAR v CHOW YUEN FAI [2010] 1 HKLRD 354, in which the 11th and 13th charges involved non-consensual buggery with boys aged 13 and 12.  The trial judge adopted a starting point of 7 years for each of those two charges, but the Court of Appeal increased the starting points to 10 years and 8 years respectively.
就第二組控罪的第四項控罪（涉及肛交罪行），潘法官曾考慮過香港特別行政區訴周遠輝 [2010] 1 HKLRD 354 一案的情況，該案的第11及13 項控罪，亦是作出對13及12歲男童未經同意下的肛交罪。上訴法庭將原審法官就上述兩項肛交罪所定的7年的量刑基準分別上調至10年及8年。

In addition, in R. v CHAN CHI WA (CACC 559/1996), the victim, a woman was aged 17, was luring into a guesthouse where the appellant, using violence, raped her twice and had non-consensual buggery on her once.  The appellant was convicted after trial and sentenced to 10 years’ imprisonment for each of the offences, with the sentences ordered to run concurrently.  The Court of Appeal considered the sentences appropriate.  The appellant had a previous conviction record for “rape”.
另外，在R. v. CHAN CHI WA (CACC 559/1996) 一案中，受害的17歲女士，在被騙到公寓後，遭該案上訴人武力對待，並被強姦兩次及未經同意下肛交一次，經審訊後定罪，每項控罪判刑10年監禁同期執行，上訴法庭認為判刑適當。上訴人是有「強姦」罪的前科。

In respect of Charge 5, the applicant referred to the case of HKSAR v LAM YAT TUNG (CACC 131/2007).  In the case, the appellant lured a Form Two female student under the age of 16 to a staircase where he indecently assaulted her and twice forced her by intimidation to have sex with him.  The appellant was convicted after trial on (inter alia) two counts of “procuring another person by threats to do an unlawful sexual act” and sentenced to imprisonment for 4 years and 2½ years respectively for those two offences.  Taking into account the sentences imposed on him for other offences in the same case, the appellant was sentenced to imprisonment for a total term of 5 years.  The appellant’s appeal against sentence was dismissed by the Court of Appeal, which held that the sentences for individual convictions and the overall sentence were all on the low side and that there was no room whatsoever for reduction of sentence.
就第五項控罪，申請人引用在香港特別行政區訴林 日 東 (CACC 131/2007) 一案。該案上訴人在哄騙了一名不足16歲的中二女生到梯間非禮後，先後兩次以恐嚇手段迫使受害女生與他性交。上訴人否認控罪，經審訊後被定罪，兩項「以威脅手段促使他人作非法性行為」罪分別被判處4年及2年半監禁。連同其他同案罪名，一共被判監5年。上訴人不服判刑上訴，上訴法庭駁回上訴，並認為各項定罪個別及總刑期均屬輕判，絕無扣減餘地。

Mr Poon submitted that, compared with the above two decided cases, the starting points of 12 years and 8 years adopted for Charge 4 and 5 respectively in the present case were manifestly excessive.  The circumstances of the offences in CHOW YUEN FAI were even more serious: the appellant in that case became acquainted, by means of playing online games, with six boys aged between 8 and 13, and he sexually assaulted them in various appalling ways and also took and kept disgusting pictures and videos.  That case involved more victims than the present case did (6 vs 2), and some of the victims in that case, aged below 12, were even younger than X and Y in the present case (both aged 12).  The facts of that case (eg pornographic photos of children were taken and kept, and the appellant was a sexual predator with a fairly high risk of re-offending) were obviously more serious than those in the present case (no photo was taken and kept, no evidence that the applicant was a sexual predator, and the risk of re-offending being moderate to high).  However, the sentence imposed in CHOW YUEN FAI was even more lenient than that in the present case.
潘大律師說比較上述兩宗案例，本案第四、五項控罪的12年及8年量刑基準明顯過高。周遠輝 案的情節更為嚴重，上訴人透過玩網上遊戲，結交了六位分別年齡由8歲至13歲的男童，對他們作出不同方式令人髮指的性侵犯，亦有拍下不堪入目的照片及錄像，並且積存。該案中受害人人數（6 位）較本案（2位）多，部分受害男童年紀(12歲以下)較本案受害男童X及Y(同為12歲)更為幼小，而案情(如拍兒童色情照存錄、上訴人是一名性罪行捕獵者、重犯風險頗高)亦明顯較本案嚴重(本案無拍照存錄、無證據顯示申請人是一名性罪行捕獵者、重犯風險中至高度)。但周遠輝 案的判刑反較本案為輕。

In LAM YAT TUNG, the appellant’s misdeeds included forcing the victim to take nude photos and even posting them on the internet.  The applicant had also performed some extremely humiliating sexual acts on the victim.
在林日東 案，上訴人的惡行包括強迫受害人拍裸照，更將照片登上互聯網。申請人亦對受害人作出一些極為羞辱的性行為。

In respect of the overall sentence, Mr Poon submitted that the total term of 7 years for the Group 1 charges was manifestly excessive.  As for the Group 2 charges, the decision of Judge Poon indicated that the overall sentence was dictated by Charge 4 for which a starting point of 12 years was adopted, and this was also the major factor leading to the final overall sentence of 9 years’ imprisonment.  This was (it was submitted) also manifestly excessive.
就整體刑期而言，潘大律師指第一組控罪的7年總刑期是明顯過重。而第二組控罪，依照潘法官的判決，主導整個刑期的是以12年作為量刑基準的第四項控罪，而這亦是令到最終整體刑期定為9年監禁的主要因素。這亦是明顯過高。

Our views
本庭的意見

In HKSAR v TSANG CHIU TAK (CACC 386/2011) the Court of Appeal laid down the following guidelines on sentencing principles for cases involving sexual assaults by adults on children.  In essence, the court must impose deterrent sentences:
上訴法庭在香港特別行政區訴曾昭德CACC 386/2011一案就成年人性侵犯兒童案件的量刑原則作出以下的指示，其重點是法庭必須採用具阻嚇性的刑罰：

“The Sentencing Principle
「量刑原則

8.The Court of Appeal reiterated in many recent cases that the Court had to protect innocent trusting children and prevent these vulnerable persons from sexual abuse which would cause them physical and psychological trauma. In cases involving sexual assault on a child, it was necessary for the Court to adopt deterrent sentences to deter others from committing similar offences. Such deterrent sentences were to show the abhorrence of members of the public to crimes of this nature and to redress the grievance suffered by the victims and their families.
8.  上訴法庭在多宗近期的案件中重申法庭必須保護無辜及容易信賴別人的兒童，避免這些易受傷害的人士被人性侵犯，以致身體及精神受到創傷。在涉及性侵犯兒童的案件中法庭有需要採用具阻嚇性的刑期來防止其他人士干犯這類罪行。這些具阻嚇性的刑期是表達公眾對這些罪行的厭惡及為受害者及其家人伸冤。

9.The Court of Appeal pointed out that when the Court dealt with offences of sexual assault on a child, the factors that it needed to take into consideration included:
9.  上訴法庭指出法庭在處理性侵犯兒童罪行時就量刑所需要考慮的因素包括：

(1)The age difference between the defendant and the victim;
(1)  被告人與受害人的年紀差異；

(2)The relationship between the defendant and the victim, including whether the defendant had taken advantage of his position or status to commit the offence and whether there was a breach of trust in the case;
(2)  被告人與受害人的關係。被告人是否利用自己的地位干犯罪行及案件是否存在破壞信任的成份；

(3)Whether the defendant had used threats or inducements to make the victim succumb;
(3)  被告人有否利用恐嚇、利誘的手段來令受害人就範；

(4)The number of occasions of committing the offences and the duration of the offences;
(4)  犯罪的次數及時間；

(5) Whether inappropriate and unnecessary violence was used by the defendant to cause harm or discomfort to the victim;
(5)  被告人有否使用不適當及不必要的暴力來令受害人受傷、不適；

(6)Whether any safety measures were taken by the defendant in sexually abusing the victim in order to avoid transmitting any venereal disease to the victim or getting her pregnant;
(6)  被告人在性侵犯受害人時有否採用安全措施來防止傳染性病給受害人或令受害人受孕；

(7)Whether the sexual abuses have caused physical or psychological trauma to the victim;
(7)  受害人是否因被性侵犯而受到肉體或精神的創傷；

(8)Whether the offences have impact on the family members of the victim;
(8)  有關的罪行有否影響受害人的家庭；

(9)Whether the defendant was involved in other inappropriate behaviours such as inviting other people to watch or take photos or videos of the offence he committed; and
(9)  被告人有否同時涉及其他不當的行為，例如邀請其他人士觀看其罪行或拍攝或錄影；

(10)Whether the defendant is psychologically imbalanced and paedophilic and the likelihood of re-offending.
(10)  被告人是否精神不正常及患有戀童癖及其重犯的機會率。

See HKSAR v Chow Yuen Fai [2010] 1 HKC 181, HKSAR v Lee Hon Wah [2011] 4 HKLRD 319, HKSAR v Ng Ka Kin (CACC 328/2010) and HKSAR v Lee Kwok Wai (CACC 199/2011).”
見：HKSAR v. Chow Yuen Fai [2010] 1 HKC 181, HKSAR v. Lee Hon Wah [2011] 4 HKLRD 319, 香港特別行政區對吳家健Ng Ka Kin (CACC 328/2010) 及HKSAR v. Lee Kwok Wai李國偉(CACC 199/2011)。」

The Court of Appeal applied the above principles in HKSAR v LEE KWOK WAH FRANCIS (CACC 30/2011).  See also HKSAR v HCT (CACC 372/2012).
上訴法庭在香港特別行政區訴李國華 CACC 30/2011 亦引用上述原則。另見：香港特別行政區訴HCT CACC 372/2012。

We would like to reiterate what Ma CJHC (as he then was) said in his judgment in HKSAR v CHOW YUEN FAI: in relation to the offences of buggery and indecent assault, as the circumstances of the offences vary from case to case, it is neither possible nor practicable to lay down tariffs or guidelines for these offences; for this reason, references to sentences imposed in previous decided cases are often of limited assistance (see paragraph 27 of the judgment).
本庭重申高等法院首席法官馬道立（當時官階）在HKSAR v Chow Yuen Fai（周遠輝）一案的判詞中所說，有關肛交和猥褻侵犯的罪行，由於每件案件案情不同，要定立量刑準則或指引是不可能和不可行的；故此，以過往案件的刑罰作參考的作用亦有限（見判詞第27段）。

In the present case Judge Poon considered the following features which in her view constituted aggravating factors:
潘法官所考慮並認為於本案存在加重案情嚴重性的因素如下：

There was a significant age difference between the applicant and the victims, in that the victims were only 12 and the applicant was 20 at the material time;
申請人與受害男童年齡有一定距離，兩男童於案發時只是12歲而申請人是20歲；

The applicant was definitely an attacker or invader, and there existed the evil situation of an adult oppressing children by means of violence and threats;
申請人絕對屬於侵襲者或侵略者，存在成年人以暴力及恐嚇欺壓兒童的腐化情況；

No safety measures were taken during sexual intercourse;
本案存在缺乏安全措施的性行為；

The present case was not an one-off single incident; and
本案並非單一事件；及

Oral sex, ejaculating into the victim’s mouth, procuring the victim to swallow semen, causing physical and psychological trauma to the two victims and so on, were aggravating factors.
口交、在男童口內射精、促使男童吞掉精液、令兩男童身心受創等是令案情嚴重的因素。

In addition, the following two aggravating factors exist in the present case:
另外，以下兩點亦是加重本案嚴重性的因素：

The applicant has shown no remorse and there is a substantial risk of re-offending: at the interview with the psychologist and psychiatrist, the applicant denied the circumstances of the case and tried to shove responsibilities, hence the experts’ assessment that the applicant had a “moderate to high” risk of re-offending; and
申請人缺乏悔意並大有機會重犯：申請人在與心理學家和精神科醫生會面時否認案惰，推卸責任，故其重犯機會被專家評為「中至高」；及

The grave impact of the incident on the two victims: as the boys were involuntarily molested by the applicant, during which violence and threats were used, the psychological trauma caused to the boys is easily imaginable.  This is particularly so for X, who is living in a constant state of fear because the applicant knows where he resides and he is worried about the applicant looking for him and causing him trouble after release from prison.
事件對兩受害男童的嚴重影響：基於申請人對兩男童的侵犯是在他們不願意下進行，其中涉及暴力威嚇，對兩男童的心理傷害可想而知。特別是男童X，由於申請人知其住所，故他恐怕申請人出獄後會找他麻煩，終日活在惶恐之中。

We do not agree with Mr Poon’s submission that the starting points for Charges 1 to 5 are manifestly excessive.  For the first three charges, the most important aggravating feature is that the applicant had intimidated X verbally and shown him a fruit knife, forcing him to allow the applicant to perform those sexual acts on him.
本庭不同意潘大律師所說第一至五項的量刑基準明顯過高。就前三項控罪，最重要的加刑因素是申請人持生果刀及以言語恐嚇X，迫使他讓申請人作出這些性行為。

As to the sentence for Charge 4, in CHOW YUEN FAI the Court of Appeal adopted starting points of 10 years and 8 years respectively for the two offences of “commits homosexual buggery with a man under the age of 21”.  The appellant in that case committed buggery on two boys aged 13 and 12 respectively.  No condom was used on either occasion.  The Court of Appeal imposed a term of 10 years for the 1st charge on the ground that the appellant had taken photos and videos when molesting the victim, and imposed a term of 8 years for the 2nd charge in the absence of other aggravating factors.  The maximum sentence for the above offence is one of life imprisonment, which is the same as that for “non-consensual buggery” with which the applicant in the present case was charged.  However, what distinguishes the present case from CHOW YUEN FAI is that Y did not consent to the buggery and put up resistance, but was subdued by the applicant.  The applicant imposed violence when committing buggery on Y forcibly, and in the course of the offence Y kept on crying out for pain but the applicant just ignored the child’s imploration.  The applicant even threatened to get someone to beat Y up.  In these serious circumstances, we see nothing wrong for Judge Poon to adopt, as she did, a higher starting point (ie 12 years) for Charge 4.  Similarly, Charge 5 also involved intimidation by the applicant on Y.
就第四項刑期，上訴法庭在周遠輝 案就二項「與21歲以下男子作出同性肛交」罪定出分別10年及8年的量刑基準。該案的上訴人在沒有使用安全套的情況與兩名分別13及12歲的男童肛交。上訴法庭所定的第一項的10年刑期是因為上訴人在侵犯事主時拍照及錄影，而第二項所定的8年刑期是基於沒有其他加刑因素。上述控罪的最高刑罰是終身監禁，這與本案申請人被控的「未經同意下作出的肛交」罪的最高刑罰相同。但本案與周 遠 輝 案不同之處是Y不同意肛交的及作出反抗，但被申請人制服。申請人強行與Y肛交時使用武力。Y在肛交時是不停叫喊表示痛楚，但申請人漠視小童的哀求。申請人更恐嚇會找人毆打Y。在這些嚴重的情況下，潘法官就第四項控罪採用較高的量刑基準（即12年）並無不妥。同樣地，第五項控罪亦涉及申請人恐嚇Y。

For the sake of discussion, even assuming that the individual terms of sentence in the two groups of offences are too long, the overall sentence for each group is not manifestly excessive whether viewed against the relevant facts themselves or compared with other cases.  More importantly, as the Court of Appeal reiterated in HKSAR v NG MAN YEE (CACC 278/2013), it is in light of the facts of the particular case that the court has to consider whether the sentence imposed in that case is proper.  That defendants in cases of a similar type may have received more lenient sentences is not a reason which warrants or requires the adoption of the same sentencing approach in the present case, because each case presents its own circumstances and sentencing is not a mechanical exercise.
本庭認為就算為了討論而假設兩組的個別刑期是過高，但這兩組控罪各自的總刑期，不論是根據本身案情或與其他案例比較也不是明顯過重。更重要的是正如上訴法庭在HKSAR v Ng Man Yee (吳敏兒) (CACC 278/2013) 一案重申，法庭需要考慮的是，以案情而言，本案的刑期是否正確。就算同類型案件的被告人可能被判處較輕刑期，這也不是法庭在本案需要採用同一的量刑的理據，這是因為每宗案件案情不同，量刑也不是機械式的作為。

Conclusion
總結

For the above reasons, we have dismissed the application.
基於上述原因，本庭駁回申請。

Mr Edmond Lee, Senior Assistant Director of Public Prosecutions 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李俊文代表。

Mr Jackson Poon, instructed by Damien Shea & Co. and assigned by the Legal Aid Department, for the applicant
申請人：由法律援助署委派佘英輝律師行轉聘潘展平大律師代表。