Barnes J (giving the reasons for judgment of the Court):
原訟法庭法官張慧玲頒發上訴法庭判案理由書 ：

The Applicant was charged with a single charge of unlawful sexual intercourse with a girl under the age of 16 years, contrary to section 124(1) of the Crimes Ordinance (Cap. 200).  He pleaded not guilty to the charge and was convicted after trial by Judge Poon in the District Court.  Judge Poon sentenced the Applicant to four years’ imprisonment.  The Applicant sought leave to appeal against conviction and sentence.
申請人被控一項「與十六歲以下的女童進行非法性交」罪，違反香港法例第200 章《刑事罪行條例》第124(1) 條。申請人否認控罪，經審訊後被區域法院法官潘‍兆‍童裁定罪名成立。潘‍法官判處申請人監禁4 年。申請人就定罪及判刑提出申請上訴許可。

At the conclusion of the hearing, we dismissed the application for leave to appeal.  Here are our reasons for judgment.
本庭在聆訊後駁回上訴申請許可。以下是本庭的判案理由。

Prosecution Case
控方案情

In the early evening of 17th October 2009, Girl X, who was then 13, was accosted by a man when she was alone in a park.  Later, Girl X went with the man to his home, where the man forcibly had sex with her.  Afterwards, the man gave $300 to Girl X, who, despite her refusal to accept it, eventually took the money and left.
在2009 年10 月17日傍晚，當時年13 歲的女童 X獨自在一公園內時，一名男子上前搭訕。其後女童 X與該男子前往該男子的住所。在單位內，該男子強行與女童 X性交。該男子事後給予女童 X $300。女童 X雖拒絕接納，最終她收了錢後離去。

When Girl X and the man were in the park, he got Girl X’s mobile phone number by calling his own mobile phone using Girl X’s mobile phone.  He subsequently phoned Girl X.
在該男子與女童 X在公園期間，該男子曾用女童 X的手提電話致電他本人的手提電話，因而得悉女童 X的手提電話號碼。該男子其後亦曾致電女童 X。

Thereafter, Girl X, whilst going shopping with her friend Z, suddenly whispered to Z that she had traded her body for the money she had.   Girl X explained to Z that in a park, she met a man who, upon learning that she needed money, offered to pay her if she allowed him to stroke her body.  Girl X agreed to it.  After Girl X had followed the man to his home, he not only stroked Girl X, but also forcibly had sex with Girl X until he ejaculated.  The man gave $300 to Girl X, who left after taking the money.
其後，女童 X與朋友Z逛街時，突然悄悄告訴Z她的錢是用肉體換來的。女童 X向Z解釋她在公園遇到一名男子，該男子知她需要錢用，便建議女童 X讓他撫摸身體，他會給予女童 X金錢。女童 X同意。但當女童 X跟該男子返回該男子家中後，該男子不單撫摸女童 X，更強行與女童 X發生性行為，直至射精為止。該男子給予女童 $300，女童 X收錢後便離開。

As Girl X was afraid of getting pregnant, Z obtained a pregnancy tester for Girl X.  When they were subsequently in a washroom where Girl X was about to take the pregnancy test, their friend, Y, happened to see it.  When pressed by Y for the reason, Girl X cried and became very emotional.   Girl X said that on 17th October, in a park, she had come to know a man who later dragged her to his flat and raped her.
女童 X因害怕懷孕，Z協助取了一支驗孕棒給女童 X。其後，當她們在一洗手間內，女童 X準備驗孕時，剛巧被她們的朋友Y看見。Y追問理由，女童 X便哭起來，表現得非常激動。女童 X稱她在10 月17 日在公園內認識了一名男子，後遭該男子拉到他寓所強姦。

On 22nd October 2009, the man phone Girl X, asking to see her.  Girl X, Y and Z brought with them cleaning agent and cutters to the downstairs of where the man lived, intending to see the man and carry out a revenge plan.
約在2009 年10 月22 日，該男子致電女童 X，要求與她見面。女童 X與Y和Z帶備清潔劑、刀前往該男子的寓所樓下，準備與該男子見面及進行復仇計劃。

They got scared during the wait.  Someone texted others to ask them to come for support.  In the end, the man did not show up and they parted.
在等候期間，各人害怕起來；有人發短訊通知其他人到場支援。該男子最終沒有出現，各人散去。

Girl X’s school subsequently learnt of this and reported it to the police.  Girl X was sent to a hospital for examination.  She provided the police with the mobile phone number of the man in question and gave the police a description of the man’s appearance.
其後女童 X就讀的學校得悉此事，報警處理。女童 X被送往醫院接受檢驗。女童 X將涉案男子的手提電話號碼提供給警方，她亦將該男子的外貌告知警方。

On 23rd October 2009, Girl X was asked by the police to take them to find the flat concerned.  Girl X brought the police to Rooms 3 and 4, 1st Floor, No. 127 Yee Kuk Street.  She hesitated briefly before pointing out Room 3 to the police.
在2009 年10 月23 日，警方要求女童 X帶領他們找出涉案單位。女童 X將警員帶到醫局街127 號1 樓3 號及4 號室門前，稍作遲疑後向警方指出是3 號室。

On the following day, police officers went to Room 3, 1st Floor, No. 127 Yee Kuk Street and knocked on the door.  An old couple whose appearance did not match Girl X’s description answered the door.  The police officers then went to Room 4 and knocked on the door, which was answered by the Applicant, whose appearance was consistent with the description given by Girl X.  Thus, the police made inquiries of the Applicant.  The police officer asked the Applicant, “Hey, what happened to a girl a few days ago?”  The Applicant responded at the time, “I did not rape her, Ah sir, I did not rape her.”  The police officer immediately arrested and cautioned the Applicant.  The police officer arrested the Applicant for rape and told the Applicant Girl X’s name as well as the date of offence.  Under caution, the Applicant said, “I did not rape her.  I came across the girl in a park when I was on my way home.  She told me she had no money and wanted to go to my place to wait until dawn when she would go home after her father had gone to work.  I then brought her (to my) place so that she would not need to stay in the street until dawn.”
翌日，警員前往醫局街127 號1 樓3 號室敲門，應門的是一對老夫婦，外貌與女童 X所描述的不符。警員遂前往4 號室叩門，應門的是申請人。由於申請人的外貌與女童 X的描述吻合，警員便向申請人展開調查。警員向申請人說：「喂，早幾日個女仔發生啲咩嘢事呀？」申請人當時的回應是：「我冇強姦佢，阿sir，我冇強姦佢。」警員隨即拘捕及警誡申請人。當時警員是以強姦罪拘捕申請人，並向申請人指出女童 X的姓名及案發日期。警誡下，申請人說：「我冇強姦佢。我返屋企時响公園撞到個女仔，佢同我講冇錢，想到我屋企等到天光阿爸返咗工就返屋企，我於是就帶佢返屋企，唔駛佢响街等天光囉。」

The facts of the case disclosed that the Applicant occupied the said Room 4, which was rented by him.  The mobile phone number provided by the Applicant to the landlord of the flat was the same as that of the man in question as supplied by Girl X to the police.
案情顯示，申請人租住上述4 號室。申請人提供給單位業主的手提電話號碼與女童 X提供給警方有關涉案男子的手提電話號碼相同。

Girl X was unable to identify the man in question in a subsequent identification parade held by the police.  The forensic pathologist’s report stated that there were no recent injuries to Girl X’s vulva, vagina or cervix and that there were no recent injuries to her hymen.
女童 X其後在警方舉行的認人手續中未能認出涉案男子。法醫報告亦顯示女童 X的外陰、陰道及子宮頸無新近造成的損傷，處女膜亦無任何新近造成的損傷。

Defence Case
辯方案情

The Applicant did not dispute voluntariness or accuracy of what he said under caution.  He elected not to give evidence or call any witnesses.
申請人並不爭議警誡供詞的自願性及準確性。申請人選擇不作供，亦不傳召證人。

Grounds of appeal (against conviction)
上訴理由(定罪)

Mr. Khattak, Counsel for the Applicant, put forward four grounds of appeal against conviction:
申請人代表林‍沙‍文大律師就定罪提出4 項上訴理由：

In evidence, Girl X said that she was uncertain whether she had had sex and that she was not sure if she was still a virgin.  It was unsafe and unsatisfactory to convict the Applicant on this basis.
女童 X作供聲稱，不確定曾否有過性行為，也不肯定自己是否仍是處女。在此基礎下，申請人被定罪是不安全、不穩妥的。

The trial judge did not deal with the parts where the evidence of Girl X, Z and Y differed substantially.  Girl X was not an honest witness.  The court should not have relied on her evidence to convict the Applicant.
原審法官沒有處理女童 X、Z及Y在證供上嚴重分歧的地方。‍女童 X並非誠實證人，法庭不應倚賴她的證供來將申請人定罪。

Girl X clearly could not identify the Applicant in the identification parade as the man in question.  The Prosecution failed to prove beyond reasonable doubt that the Applicant was the man in question.
女童 X在認人手續中，清楚不能辨認到申請人為涉案的男子。控方未能在毫無合理疑點下證明申請人就是涉案男子。

Girl X and Y looked relaxed and smiled when giving evidence.  In particular, Girl X frequently giggled and did not take the matter seriously.  The trial judge, however, failed to properly consider their demeanour.
女童 X和Y在作供時神態輕鬆、展露笑容；尤其女童 X經常發笑、態度不認真，但原審法官對她們的行為舉止沒有給予適當的考慮。

Ground of Appeal (1)
上訴理由 (1)

Mr. Khattak, citing the transcript of the evidence, submitted that Girl X was not sure whether she was still a virgin or whether she had had sex.  The contact between the man and her took place with the lights off and senses were all that could be relied upon.  Further, the forensic pathologist’s report contained various parts favourable to the Applicant in that it showed the absence of any superficial injuries to Girl X’s body, of any mark of recent tears at her private parts and of any sign of recent sexual intercourse.
林‍大律師引述證供謄本，指出女童 X不肯定自己是否仍是處女，亦不肯定是否曾經進行性行為。她與該男子的接觸是在關燈之下進行，一切全憑感覺。除此之外，法醫報告顯示多處對申請人有利的地方，顯示女童 X身體無任何外傷、下體無新近撕裂的痕跡，亦無新近性行為的跡象。

Discussion
討論

According to the evidence, Girl X said that she had sat on the bed upon arrival at the man’s flat.  The man pushed her onto the bed, grabbed both of her hands with one of his hand, pressed his legs on Girl X’s legs, removed her top, shorts as well as knickers and had sex with her.  Girl X said that sexual intercourse referred to the penetration into a woman’s private parts with a man’s private parts.  She stated that she had a nasty feeling at her private parts at that time and that she had seen the man’s private parts.  According to Girl X, the sexual intercourse lasted for about 20 to 30 minutes. The man inserted his private parts into her private parts and ejaculated, but she could not see the colour of the semen due to the lack of light.
根據證供，女童 X指當她去到該男子單位後坐在床上，該男子將她推倒在床上，用一隻手捉著她雙手，並用他的腿壓在女童 X的腿上、脫去她的衣服、短褲和內褲，然後跟她發生性行為。女童 X指性行為是男性的下體放入女性的下體內。她說她當時覺得下體很難受。她說看到該男子的下體。據女童 X所指，發生性行為的時間大約20至30 分鐘。該男子將他的下體放入了她的下體內並射了精，但因沒有燈光，所以她看不到精液的顏色。

Mr. Khattak put it to Girl X in cross-examination that she could not possibly see what the man had done in the dark.  Girl X agreed that the lights were off then, but stated that something believed to be semen came out from her vagina afterwards.  She admitted that she had never seen semen prior to that.  Mr. Khattak put it to her that she only felt something enter her private parts, but she was not sure what that was, with which Girl X agreed.  She also agreed that the man had put his fingers into her private parts.
在盤問時，林‍大律師向女童 X指，在黑暗的環境中，她是應該看不見該男子做過甚麼。女童 X同意當時是熄了燈，但她反而指事後在她的陰道內有相信是精液的東西流出來。她承認之前未見過精液。林‍大律師向她指出，她祇是感覺到有東西進入下體，但不肯定是甚麼。女童 X同意。她亦同意該男子曾經用手指進入她的下體。

Towards the end of cross-examination, Mr. Khattak put it to Girl X that she could not be sure whether she was still a virgin and whether she had formally had sex.  Girl X initially said that she had no idea, but later agreed.
在盤問尾段，林‍大律師向女童 X指出，女童 X不敢肯定自己是否仍是處女和是否有過正式的性行為。女童 X起初說不知道，後來同意。

On whether Girl X had sex with the man, the trial judge found that:
原審法官就女童 X與該男子是否曾經進行性行為這方面有以下的裁斷：

“42.… As to whether it further developed into sex, I find that X fully understands what sexual intercourse is.  She gave evidence that the defendant’s private parts had penetrated into her private parts, that she had seen the defendant’s private parts and that she had seen semen coming out from her private parts afterwards.  The pregnancy test she subsequently took demonstrated her then belief that sexual intercourse had actually taken place.  In spite of X’s acknowledgment at some stage under cross-examination that she was unsure whether what had entered her private parts were the defendant’s private parts, I observed that by that time, X had lost her patience with continuing cross-examination.  This answer is insufficient to overturn her previous evidence, much less capable of casting doubt upon her evidence.”
「42.… 就是否有進一步至發生性行為方面，本席認為X是充分了解甚麼是性行為的，她在證供中亦指出了被告人的下體曾進入了她的下體，她有看見被告人的下體，而事後亦見到有精液由她的下體流出，而她之後的驗孕行為亦印證了她當時是相信確實有性行為發生的。雖然X在被盤問時的某階段曾同意她不肯定進入她下體是否被告人的下體，但本席的觀察是當時X對繼續接受盤問已失去耐性，此答案不足以推翻她之前所作的證供，甚至不能對她的證供構成疑點。」

The relevant questions and answers during the trial are as follows:
在審訊時有關的問題和答案如下：

“Q:So (we) have heard so much evidence (and) read the medical report.  Is it true that you are uncertain to this day whether you have formally had sex (and) cannot be sure whether you are still a virgin?
「問：所以聽番咁多嘅證據，睇番個醫學報告，時至今日妳自己都唔能夠確定自己係咪曾經進行過正式性行為嘅，唔敢肯定自己仍然係唔係處女，係咪?

A:Pardon me.  Can’t hear (you) clearly.
答：咩嘢話？聽唔清楚。

Q:(We) have heard so much evidence and read so many medical reports.  Do (you) agree that you are uncertain to this day whether you are a virgin, a virgin who has not formally had sex?
問：聽番咁多證據，睇番咁多醫學嘅報告，時至今日，妳自己都唔能夠確定自己係咪一個處女，未經一個正式嘅性行為嘅處女，同唔同意？

A:No idea.
答：唔知喎。

Q:Does that mean (you) are not sure?
問；即係唔肯定，係咪？

A:Yes.”  [Emphasis added by this court.]
答：係。」[本庭加以強調]

Mr. Khattak asked Girl X whether she could be sure she was a virgin who “had not formally had sex”.  What did “formally having sex” mean?  The question itself was not clear.
林‍大律師問女童 X她是否能夠肯定自己是一個「未經正式性行為」的處女。何謂「正式性行為」？問題根本不清晰。

Mr. Khattak cross-examined the witness for the whole afternoon.  As observed by the trial judge, who had the opportunity to hear and see the witness, Girl X had lost patience with continuing cross-examination.  We could not see any reason to interfere with Judge Poon’s findings.  This ground of appeal failed.
林‍大律師盤問了證人整個下午，原審法官有機會耳聞目睹證人。根據他的觀察，女童 X對繼續接受盤問已經失去耐性。本庭並無理據去干預潘‍法官的裁定。此上訴理由不成立。

Ground of Appeal (2)
上訴理由 (2)

On this ground of appeal, Mr. Khattak, citing the contents of the transcript, submitted that as shown by the evidence, after the offence, Girl X, bringing along with her Y, Z and some people with triad background, returned to the flat where the offence had taken place to find the man; however, Girl X denied any revenge plan.  Y revealed that Girl X and she had gone together to carry out a planned revenge, bringing along cutters and cleaning agent.  Girl X’s evidence and the recent complaint she had made to Y both indicated that Girl X went with a male stranger to his home unwillingly or half willingly.  Nonetheless, according to Z’s evidence, Girl X told Z that she willingly sold her body for money.  Girl X responded to all the allegations about her having said so to Z by saying she “could not recall”.
就此上訴理由，林‍大律師引述謄本內容，指證供顯示女童 X於案發後帶同Y、Z和一些有黑社會背景的人返回案發單位找尋該名男子，但女童 X卻否認有任何報復的計劃。Y透露她與女童 X是有計劃地一起去尋仇，並帶同刀和清潔劑。女童 X的證供及她向Y作出的「新近投訴」均指女童 X是不自願或半自願跟一名陌生男子回家；但根據Z的證供，當時女童 X告知Z是她自願出賣肉體賺取金錢的。女童 X對她曾向Z如此說全部以「唔記得」回應。

Discussion
討論

The trial judge was fully aware of the differences in the evidence of Girl X, Y and Z.  He briefly stated such differences when setting out the facts.  In reaching his verdict, Judge Poon found Y and Z to be honest and reliable witnesses and that they remained unshaken under cross-examination.  Specifically, when asked about what happened on the day they went to seek revenge on the man, Y revealed all the details without the slightest sign of hiding anything.
對於女童 X與Y及Z證供之間分歧之處，原審法官完全知曉。他在列舉案情時已簡略地提出了不同的地方。潘‍法官在作出裁決時，裁定Y和Z都是誠實可靠的證人，被盤問時完全沒有動搖，尤其是Y，當被問及前往向該男子尋仇當天的情節時，細節是和盤托出，毫無隱瞞的跡象。

Whilst accepting that Girl X was hiding something with respect to her evidence on whether she had consented to being touched by the man in exchange for money, Judge Poon did not find Girl X to be untruthful in aspects other than this.  Given the context, Judge Poon accepted Girl X’s evidence as credible in relation to what happened between Girl X and the man on the material day, except whether or not she consented to being touched by the man in exchange for money.
潘‍法官同意有關女童 X是否同意被該名男子撫摸以換取金錢這方面的證供有所隱瞞，但他裁定除此之外，他看不到女童 X在其他地方有任何不盡不實之處。根據上文下理，潘‍法官就當日女童 X與該男子究竟發生了甚麼事情，除了是否同意被該男子撫摸以換取金錢這情節外，他接納女童 X的證供是可靠的。

Judge Poon was the judge of facts.  He had the opportunity to hear and see all the witnesses.  He was perfectly entitled to accept parts of the evidence of a particular witness while rejecting other parts of his/her evidence.  We could see no reason to interfere with Judge Poon’s findings of fact.  This ground of appeal failed.
潘‍法官是事實的裁斷者。他有機會耳聞目睹所有的證人，他亦絕對有權接納證人部分的證供和拒納其他部分的證供。本庭沒有理據去干預潘‍法官就事實方面的裁斷。此上訴理由不成立。

Ground of Appeal (3)
上訴理由 (3)

28.Mr. Khattak submitted that Girl X clearly could not identify the Applicant in the identification parade as the man in question.  Girl X said that the man in question had on his arm a conspicuous red scar and that such person was not in the line-up.  Mr. Khattak further submitted that Girl X and Y had pointed out to the police that the crime scene was at 125 Yee Kuk Street.  The police officer’s evidence was that Girl X had pointed out 1st Floor, 127 Yee Kuk Street as the crime scene and, at one stage, pointed out Room 3.  Police officers later made inquiries at Room 3 and found a 60-odd-year-old male occupant who did not match the description Girl X gave.  They then proceeded to knock on another door to make inquiries.  The Applicant was precisely the occupant of Room 4.  Mr. Khattak complained about the police officers’ failure to make inquiries at No. 125.
林‍大律師指出，女童 X在認人過程中清楚不能辨認申請人就是涉案男子。女童 X指涉案男子的手臂上有明顯紅色疤痕，而該人不在認人的行列。此外，林‍大律師指女童 X及Y曾經向警方指出案發現場是醫局街125 號，警員的證供是女童 X指出案發地點是醫局街127 號1 樓，並曾經指出3 號室。警員其後到3 號室調查，發現60 多歲的男住客不符合女童 X的描述，他們才去拍其他門作調查，而申請人正住在4 號室。林‍大律師投訴警員並無去125 號作出任何調查。

In respect of the phone number referred to in the present case, Mr. Khattak submitted that the landlord merely said that the Applicant had provided the phone number for contact purpose, but there was no evidence as to who the user of that number was and whether the Applicant was the only occupant of the room.
就有關案中所提及的電話號碼，林‍大律師指業主祇是說申請人曾提供該電話號碼作聯絡用途，但究竟是誰人用該號碼及申請人的房間是否祇有申請人居住，則沒有這方面的證供。

For the reasons set out above, Mr. Khattak submitted that the Prosecution had failed to prove beyond reasonable doubt that the Applicant was the man who had allegedly violated Girl X.
林‍大律師指，綜合上述理據，控方未能在毫無合理疑點情況下證明申請人就是涉嫌侵犯女童 X的男子。

Discussion
討論

The evidence showed that No. 125 and No. 127 shared the same entrance.  In reaching his findings, the judge took the view that there was nothing surprising or suspicious about the two girls’ mixing up the house numbers and addresses, thus saying it was No. 125 when in fact, it was No. 127.
證據顯示，125 號同127 號是共用同一個入口的。法官在作出裁斷時，認為兩名女童是混淆了門牌地址，所以她們說了125 號而事實上是127 號，這點不足為奇，並無可疑之處。

This we agreed with Judge Poon.  There was evidence that Girl X brought the police to the units on the first floor of No. 127 but she was somewhat hesitant as to which room it was.  She hesitated before saying it was No. 3.  When the police officer went there for investigation on the following day, he found that the door was answered by an old couple of whom the man had an appearance that was inconsistent with the description Girl X gave.  He then proceeded to Room 4 and knocked on the door, which was answered by the Applicant.  What was important was that the Applicant’s appearance matched the description given by Girl X.
本庭同意潘‍法官的看法。證供顯示，女童 X帶同警員到達127 號1 樓單位，但她對於是哪個房間則有點猶豫。她在猶豫後說是3 號。警員翌日往調查時，發覺應門者是對老夫婦，男子的外貌與女童 X所描述的不符，於是他便前往敲4 號房的門，應門者是申請人。重要的是，申請人的外貌與女童 X所描述的吻合。

The police officer asked the Applicant during inquiries, “Hey, what happened to a girl a few days ago?”  The Applicant immediately replied, “I did not rape her, Ah sir, I did not rape her.”  After the police officer had arrested and cautioned the Applicant, stating Girl X’s name and the date of offence, the Applicant said, “I did not rape her.  I came across the girl in a park when I was on my way home.  She told me she had no money and wanted to go to my place to wait until dawn when she would go home after her father had gone to work.  I then brought her (to my) place so that she would not need to stay in the street until dawn.”  It was Girl X’s evidence that on the day of offence, a man brought her from the park to his home.  That being the case, the Applicant clearly was the man who took her to his home although Girl X did not directly point out the Applicant as the man who had brought her to his home.
當警員向申請人調查時問：「喂，早幾日個女仔發生啲咩嘢事呀？」申請人即時回應：「我冇強姦佢，阿sir，我冇強姦佢。」當警員向申請人作出拘捕警誡，說出女童 X的姓名和案發日期後，申請人說：「我冇強姦佢。我返屋企時响公園撞到個女仔，佢同我講冇錢，想到我屋企等到天光阿爸返咗工就返屋企。我於是就帶佢返屋企，唔駛佢响街等天光囉。」女童 X的證供是案發當日，一名男子由公園帶她回家。在這情況下，雖然女童 X沒有直接指出申請人便是帶她回家的男子，但明顯地申請人便是帶她回家的男子。

A more compelling piece of evidence was that the phone number given by the Applicant to the landlord for contact purpose was precisely the man’s phone number provided by Girl X to the police.  Judge Poon made the following findings in this regard:
另一項更為強而有力的證據，便是申請人給他的業主用作聯絡的電話號碼正正是女童 X提供給警方該男子的電話號碼。潘‍法官就這方面作出以下的裁定：

“40.In respect of whether the defendant was the man, I take the view that despite the absence of direct identification by X of the defendant as the man who had had sex with her, the defendant admitted under caution that he had brought X to his home.  Notwithstanding the absence of any evidence to prove that the defendant knew X’s name, the detective police constable stated the date of offence when administering the caution.  This proved that the defendant had admitted having brought the girl to his home on the material day.  Additionally, the defendant lived in the said unit and the mobile phone number he gave to the landlord for contact purpose was consistent with the mobile phone number the man used to contact X.  All such evidence established beyond reasonable doubt that the defendant was the man who took X to his home on the material day.”
「40.本席認為，就被告人是否該男子方面，雖然X沒有直接認出被告人就是與她發生性行為的男子，但是被告人在警誡後承認了他曾帶X回家，雖然沒有證據證明被告人知道X的名字，但是探員在施行警誡時說出了事發日子，這證明了被告人承認了在當天曾帶女童回家，加上被告人在該單位居住，他給業主作為聯絡的手機號碼與該男子與X聯絡的手機號碼相符。這種種證據，經已在毫無合理疑點下證明了被告人便是當日帶X回家的男子。」

This ground of appeal failed.
此上訴理由不成立。

Ground of Appeal (4)
上訴理由 (4)

Mr. Khattak submitted that Girl X and Y looked relaxed and smiled when giving evidence.  In particular, Girl X did not take the matter seriously.  The trial judge, however, failed to properly consider her demeanour.
林‍大律師指，女童 X和Y作供時神態輕鬆、展露笑容，尤其女童 X的態度不認真，但法官對她的行為舉止沒有給予適當的考慮。

Discussion
討論

We had read the relevant transcript.  Girl X did smile when giving evidence.  She also agreed that she looked relaxed.  Even so, there were also occasions when Girl X was impatient.  The demeanour of a witness in giving evidence is simply something the trial judge had to note but it is not the main issue.  Whether one’s evidence is reliable and credible is not merely determined by his demeanour.
本庭參閱有關謄本，女童 X的確在作證期間有展露笑容，她亦同意她的神態輕鬆，但亦有顯得女童 X不耐煩的情況。證人作供時的神態舉止祇是一些原審法官須要留意的事項，但並非是主要事項。畢竟一個人作供是否可靠、可信，不是單從他的神態舉止作出決定的。

Mr. Khattak submitted that Girl X was supposed to give evidence in a very solemn manner in court.  We noted that Girl X actually did not give her evidence in court; rather, she testified in another room via CCTV link.  Under cross-examination, Girl X smiled, her manner relaxed.  Be that as it may, during the video recorded interviews with the police, she not only looked embarrassed when she described what had happened, but was in tears at some stage.  After all, Girl X and Y were children who had just reached 14.  When considering their demeanour in giving evidence, regard had to be given to their age and life experience.  This ground of appeal failed.
林‍大律師指，女童 X在庭上作證時態度應該會很嚴肅。本庭注意到女童 X其實並非在法庭作證，而是在另一個房間，透過電視錄像作證。雖然女童 X被盤問時有展露笑容、態度輕鬆，但當她接受警方會面錄影，在描述發生事件時，她不單露出尷尬的表情，同時更曾落淚。畢竟女童 X和Y當時祇是剛滿14 歲的兒童，在考慮到她們在作供時的神態舉止時，必須顧及她們的年紀及人生經驗。此上訴理由不成立。

Grounds of Appeal (against sentence)
上訴理由(判刑)

It was submitted by Mr. Khattak that the 4 years’ imprisonment was excessive.  The special mitigating circumstances in the present case, as he pointed out, were that Girl X was hanging around by herself in the park and she willingly sold her body for money.  The Applicant should not have been sentenced to 4 years’ imprisonment even if he was convicted of having unlawful sexual intercourse with a girl under the age of 16 years.  Mr. Khattak cited the following three cases for the court to consider:
林‍大律師指4 年刑期是過重。他指本案的特別求情理由是女童 X獨自在公園徘徊，並自願以肉體作金錢的交易。即使申請人被判與未滿16 歲的女童性交罪名成立，亦不應判處4 年監禁。林‍大律師引用下列三宗案例供本庭參考：

(1)HKSAR v Chan Kwong Pui [2003] 4 HKC 208, where a 34-year-old man had sex with a girl under 16 and was sentenced to 16 months’ imprisonment following his guilty plea.
HKSAR v Chan Kwong Pui [2003] 4 HKC 208。該案中，34 歲男子與16 歲以下的女子發生性行為，認罪後被判刑16 個月。

(2)HKSAR v Lai Yip Sing [2001] 2 HKLRD 601, where a 24-year-old man met a 14-year-old girl via an online phone chat line and had sex with her on two occasions.  The total sentence was one of 3 months’ imprisonment.
HKSAR v Lai Yip Sing [2001] 2 HKLRD 601。該案中，24 歲男子透過網上電話交談，認識一名14 歲女子，與她兩度發生性行為，總刑期是3 個月監禁。

(3)HKSAR v Lau Chi Cheung [2008] 4 HKLRD 432, where a 22-year-old university student met on the internet a 12-year-old girl with whom he had sex.  He received a sentence of 13 months’ imprisonment.
HKSAR v Lau Chi Cheung [2008] 4 HKLRD 432。該案中，22 歲大學生在網上認識了12 歲女童，與她性行為後被判刑期13 個月監禁。

Reasons for sentence
判刑理由

In sentencing, the trial judge had considered the following:
原審法官在判刑時作出以下的考慮：

“13.Unlawful sexual intercourse with a girl under the age of 16 years is a serious offence that carries a maximum penalty of 5 years’ imprisonment.  As the Court of Appeal clearly stated in Chan Kwong Pui , the court had no sentencing guideline for cases of this type and the creation of this offence was to protect underage girls; therefore the age of the girl was an important consideration in sentencing.  The age gap between a defendant and a victim was also an important consideration.
「13.與16歲以下女童非法性交，是嚴重罪行，最高刑罰是5 年的監禁。上訴庭在陳廣培(譯音)一案中指明，法庭就此類案件並無判刑指引，而訂立此罪行是為了保護未成年少女，所以在判刑時，女童的年齡是一項重要的考慮因素。被告人與受害人的年齡差距，也是重要的考慮因素。

14.At the time of the incident, X was only 13 years and 7 months old whilst the defendant was 49.  X is within the lower end of the age category for this offence.  Had she been under the age of 13, the defendant would have faced a graver offence carrying a maximum sentence of life imprisonment.  The age gap of 35 years in the present case is relatively large among similar cases.  This is very serious.
14.事發時，X只有13歲另7個月，而被告人已經是49歲。X的年齡可歸類為相同控罪裡較少的，因為若年齡低於13歲的話，被告人所面對的控罪便會更嚴重了，最高刑罰將會是終生監禁。此案的年齡差距，亦屬同類案件中較大的，達到35年之差，非常嚴重。

15.As previously stated, X did cry and tell the defendant to stop during the sexual intercourse, but was still ignored by the defendant.  This was close to rape.  Had the defendant used violence, it would have been an aggravating feature.  The absence of violence, on the other hand, would not mitigate the severity of the case.  In Chung Yi Hung, the Court of Appeal, upon considering the facts of that case, took the view that the victim was extremely unwilling at the time of the offence and adopted a starting point of 5 years’ imprisonment.  Although the offences in that case concerned the more serious unlawful sexual intercourse with a girl under the age of 13 years, the Court of Appeal had clearly established that this was an important consideration.
15.正如先前所述，X在性交時有哭泣和叫被告人停止，但被告人仍然不理，幾近強姦。若果被告人有使用暴力，這只會令案情更加嚴重，而沒有使用暴力，卻不能減輕案件的嚴重性。在鍾銳洪一案中，上訴庭考慮了該案案情，認為受害女童在案發時極不情願，採納了5年的監禁為判刑起點，雖然該案的控罪是較嚴重的與13歲以下女童非法性交，但上訴庭已清楚確立了此為一項重要的考慮因素。

16.I observed X’s appearance and demeanour during the trial and I do not think she looked older than 16.  She spoke in a childish manner.  It was impossible not to notice that she was far younger than 16 after a conversation with her. I do not agree with Mr. Khattak’s comments on X’s appearance; nor do I accept the defendant’s version that he thought X was 17 or 18.
16.本席在審訊時觀察了X的外貌及言行，不認為她看似高於16歲，而她的談吐幼稚，與她對話後不可能不知她遠少於16歲，本席不同意林大律師就X外表的評論，亦不接受被告人以為X是17、18歲的說法。

17.The fact that money was involved, in my view, not only failed to lessen the defendant’s culpability, but made the case more serious.  I do not believe that X was to blame in any way for this matter.  She was only a pliable 13-year-old girl.  It is highly irresponsible for the 50-year-old defendant, a father himself, to say that the girl was to blame.
17.本席有金錢交易的成份，這不但不能減輕被告人的罪責，還令案情更加嚴重。本席不認為X就事件要負上任何責任，她只是一名13歲的女童，容易受人影響，而被告人已步入50歲，為人父親，要說女童須負上責任本身是極不負責任的。

18.This incident has caused psychological trauma to X, affecting her future development.  The defendant’s failure to use any condom caused her to worry that she might become pregnant and the anxiety arising therefrom is conceivable. The fact that the defendant showed no remorse after the incident and even asked to see X was nothing less than shameful.  The defendant, with a view to smearing X and without having any regard for her feelings, gave instructions to his counsel with respect to the cross-examination of X during the trial.  This can be said to be rubbing salt into her wounds.
18.此事令X受心理創傷，影響了她將來的發展。被告人沒有使用避孕套，令她擔心自己可能會懷孕，當中的焦慮，可想而知。事發之後，被告人毫無悔意，還邀約X見面，實在是厚顏無恥。審訊時被告人指示他的大律師向X盤問，意欲抹黑她，完全不考慮她的感受，可說是在她的傷口上撒鹽。

19.For the factors given above, I find that this is an extremely serious case.  Only a substantial period of incarceration can reflect its seriousness and exert a deterrent effect on the defendant and members of the public.
19.基於以上因素，本席認為本案案情極之嚴重，只有長期監禁才能反映它的嚴重性，對被告人及社會產生阻嚇作用。

20.The appropriate starting point, in my view, is one of 4 years’ imprisonment.  I do not see any mitigating factors.  The defendant is sentenced to 4 years’ imprisonment.”
20.本席認為，適當的判刑起點是4年的監禁。本席看不到有任何可減刑的因素。被告人判監4年。」

Discussion
討論

As pointed out by the trial judge, the Court of Appeal stated in Chan Kwong Pui that there was no sentencing guideline for cases of this type and that this offence was created to protect underage girls; therefore, the age of the girl was an important sentencing factor.  The age gap between the Applicant and Girl X in the present case was also an important consideration.  There was a huge gap in age in that at the time of the incident, Girl X was only 13 years and 7 months old whereas the Applicant was 49.
正如原審法官指出，上訴庭在陳廣培(譯音)一案已經指出，這類案件並無判刑指引，而訂立罪行的目的是要保護未成年的少女，所以在判刑時，女童的年齡是一項重要的因素。本案申請人與女童 X的年齡差距亦是重要考慮的因素。事發時，女童 X祇得13 歲7 個月，而申請人已是49 歲，年齡相距非常大。

While Mr. Khattak cited the facts and the sentences of the three cases above, we were of the view that the facts of Chung Yui Hung were more similar to those of the present case.  In Chung Yui Hung, a teacher met a 12-year-old student through the internet.  On the day of the offence, the teacher visited the girl’s home and had sex with her, the circumstances of which were extremely close to rape.  The Court of Appeal considered that a starting point of 5 years’ imprisonment was appropriate.
雖然林‍大律師引述了上述三宗案例的案情及量刑，但本庭認為鍾銳洪(譯音)案件與本案的情節較為接近。鍾銳洪一案涉及一名教師透過互聯網認識了一名12 歲學生。案發當日，教師前往女童的住所與女童發生性行為，當時的情況幾乎等同強姦，上訴庭認為恰當的量刑基準是監禁5 年。

In the light of the facts of the present case, 4 years’ imprisonment was by no means manifestly excessive.
以本案案情而言，4 年監禁絕非明顯過重。

We would like to mention in passing that the Applicant initially sought a reduction in sentence by reason of his health condition.  This ground of appeal was withdrawn by the Applicant in the course of this application.
本庭順帶一提，申請人原本以身體健康狀況為理由，要求減刑，但在進行申請時，申請人撤回該項上訴理由。

For the reasons set out above, we dismissed the application for leave to appeal.
基於上述理由，本庭駁回上訴申請許可。

Agnes Chan, Assistant Director of Public Prosecutions of the Department of Justice, for the Respondent.
申請人：由法律援助署委派鄭氏律師行延聘林沙文大律師代表。

S. K. Khattak, instructed by May Cheng & Co., assigned by Legal Aid Department, for the Applicant.
答辯人：由律政司助理刑事檢控專員陳詠嫻代表香港特別行政區。