Hon Yeung JA (giving the reasons for judgment of the Court):
上訴法庭法官楊振權頒發上訴法庭判案理由書：

Introduction
引言

The Applicants Lee Hon Wah (“Lee”) and Yan Tsz Ho (“Yan”) were charged with various counts of sexual abuse on a boy aged 14. The charges against Lee included indecent conduct with or towards a child under the age of 16 years (count 2), buggery with a man under 21 (count 3) and, alternative to count 3, another count of indecent conduct with or towards a child under the age of 16 years (count 4). The charges laid against Yan were two counts of buggery with a man under 21 (counts 1 and 5).
申請人李漢華（“李”）和甄梓豪（“甄”）被控多項性侵犯一名14歲男童的控罪。針對李的控罪包括第二項與或向16歲以下兒童作出猥褻行為罪，第三項與21歲以下男子肛交罪及和該項控罪交替之第四項與或向16歲以下兒童作出猥褻行為罪。針對甄的控罪則包括第一項及第五項與21歲以下男子肛交罪。

Lee pleaded guilty to indecent conduct with or towards a child under the age of 16 years (count 2) but denied buggery with a man under 21 (count 3) and the other count of indecent conduct with or towards a child under the age of 16 years (count 4), which was alternative to count 3. After trial, he was found not guilty of count 3 but guilty of the alternative charge of indecent conduct with or towards a child under the age of 16 years (count 4). On counts 2 and 4, the trial judge, Maggie Poon J, sentenced Lee to respective prison terms of 20 months and 2 years and 6 months. The sentences were to run concurrently and Lee was to serve a total term of 2 years and 6 months.
李承認第二項與或向16歲以下兒童作出猥褻行為罪，但否認第三項與21歲以下男子肛交罪及和該項控罪交替之第四項與或向16歲以下兒童作出猥褻行為罪。經審訊後李被裁定第三項控罪不成立，但交替性之第四項與或向16歲以下兒童作出猥褻行為罪則成立。就第二及第四項定罪，主審法官潘敏琦判李分別入獄20個月及2年6個月，同期執行。李的總刑期為2年6個月。

Yan pleaded guilty to counts 1 and 5 and was eventually sentenced to 40 months’ imprisonment. Maggie Poon J took 4 years as the starting point for each of these two offences and reduced the terms by one-third to 32 months. 8 months out of these terms were to run consecutively, making a total term of 40 months’ imprisonment against Yan.
甄則承認第一及第五項控罪，結果被判入獄40個月。潘法官以4年為每項控罪之量刑基準，並因甄承認控罪，將刑期扣減三份一至32個月。潘法官下令兩項定罪之刑期中8個月要分期執行而導致甄被判之40個月總刑期。

Yan was aggrieved by the sentences whereas Lee was aggrieved by his conviction on count 4 and the sentences on the two counts concerned. They have lodged applications for leave to appeal respectively against the sentences as well as conviction and sentences.
甄不服判刑，而李則不服第四項控罪之定罪決定及兩項控罪之判刑。他們提出申請，要求獲准就判刑及定罪或判刑上訴。

After hearing the case, we grant leave to appeal to the Applicants. Treating their applications as the appeals, we allow all the appeals herein. We quash the conviction and sentence against Lee on count 4 and reduce his sentence on count 2 from 20 months to 12 months. We also reduce the total term of imprisonment against Yan on counts 1 and 5 by half from 40 months to 20 months. Our reasons appear below.
經聆訊後，本庭批准申請人就定罪及判刑上訴，並視他們的申請為正式上訴。本庭裁定他們的上訴都得直。本庭撤銷針對李的第四項控罪之定罪及判刑，亦將第二項定罪的刑期由20個月減至12個月。本庭同時將針對甄的第一及第五項定罪的總刑期由40個月減半至20個月。以下是本庭的裁決理由。

Prosecution’s Evidence against Lee
控方指控李的證據

X, the boy involved in the present case, was born on 3 June 1994 and was aged 14-15 at the time of the offences. He resided with his parents and an elder brother in a private housing estate in Kwun Tong and was studying in Form 3 in Kowloon.
涉案男童X在1994年6月3日出生，案發時14-15歲。他和父母及兄長在觀塘一私人屋苑居住，及在九龍一中學就讀中三。

According to X, having got acquainted with Lee through the Internet sometime in January or February 2009, he indicated to Lee that he was in need of money and hinted that he would agree to have certain sexual acts with him. They had contact and agreed on a price of $500 for the sexual transaction. Lee asked X to meet him in a bus terminus in Kwai Chung and they exchanged telephone numbers. Sometime between 9pm and 10pm on the same day, they met in the bus terminus and walked to a toilet for the disabled near a football pitch on On Chit Street. Inside the toilet, X performed oral sex on Lee. He then gave X $100 as remuneration.
X指在2009年1月或2月透過互聯網認識李後向他表示需要金錢並暗示同意和他進行某些性行為。雙方聯絡並同意以500元作為性交易的代價。李相約X在葵涌巴士總站見面，並交換電話號碼。同日晚上9-10時，兩人在巴士總站會合後步行前往安捷街足球場附近之一傷殘人士廁所內由X替他進行口交後，李支付100元給X作酬金。

Subsequently, Lee took X to his residence in Kwai Chung (“the residence”). X performed oral sex on Lee who then offered to give X $250 as the price for anal sex. X said he was in need of money and therefore indicated that he agreed. After that, Lee had anal sex with X and required X to perform other sexual acts on him, but he only paid X $200.
其後李帶X返回其位於葵涌的居所（“該居所”）。X先替李口交而李則提議給X 250元，作為肛交的代價。X指自己因等錢用，故表示同意。其後李和X肛交及要X替他進行其他性行為，但只支付了200元給X。

Lee’s Defences
李的答辯理由

Lee admitted that X did perform oral sex on him in the toilet for the disabled. However, as X was not his type, he agreed to it only because X begged him for it. Lee also admitted to have put his finger(s) into X’s anus during the oral sex. He denied having any sexual act with X in “the residence”. According to him, the sole purpose of taking X to his home was to get some money to pay X and X also left immediately after receiving the money. Lee’s case was that X was not happy with receiving only $200 and therefore was seeking revenge. Before leaving his home, X had said to him, “I’ll remember you”.
李承認X曾在傷殘人士廁所替他口交，但指是在X哀求下他才答應的，原因是X並非他喜歡的類型。李亦承認在X替他口交期間，他有用手指插他的肛門，但否認有在“該居所”和X進行任何性行為。他指帶X返家唯一目的是拿錢給X而取錢後X便立刻離開。李的立場是X因不滿意只收取到200元，故要報復。李指X離開前向他表示“我會記住你”。

Lee said to the Police after his arrest, “I only poked him with my finger(s) and he performed oral sex on me, there was nothing else”. The police officer claimed that at that time he was arresting Lee for having anal sex with a boy aged about 14 in a public housing unit in Kwai Chung sometime between 9 pm and 10 pm on a certain day between January and February 2009.
被捕後李向警員表示，“我凈係用手指插佢，同埋佢幫我口交，無其他嘢”。當時警員聲稱是以李在2009年1至2月期間某日晚上9至10時在葵涌區某一公屋單位內與一名年約14歲男童肛交而拘捕他的。

Grounds of Appeal
上訴理由

Mr. Selwyn So, counsel for Lee, contended in his written submission that the fact that the jury found his client not guilty on count 3, the buggery charge, indicated that they did not believe in X’s account of what had taken place in “the residence”. According to Mr. So, X’s evidence about “the residence” concerned wholly and only the allegation of anal sex. Therefore, as the jury declined to accept X’s evidence on that aspect, there was no other evidence to support the alternative charge of indecent conduct with or towards a child under the age of 16 years (count 4). In making his oral submission before us, Mr. So agreed that the standpoint in his written submission was not correct.
在其書面陳述，李的代表大律師蘇啟明指陪審團裁定第三項肛交罪罪名不成立，顯示他們不相信X指在“該居所”內發生的事。蘇大律師指X說及在“該居所”之證供，完全只和肛交有關，因此陪審團否定X的證供後便沒有任何其他證據支持交替性之第四項與或向16歲以下兒童作出猥褻行為罪。向本庭作口頭陳述時，蘇大律師同意其書面陳述的立場並非正確。

Nonetheless, Mr. So stressed it was possible that Lee’s admission to the Police after his arrest was only about the things that had taken place in the toilet for the disabled, that is, the incidents referred to in count 2. He further stressed that although Lee agreed during cross examination that the police officer, in cautioning him, was referring to the things that had happened in “the residence”, in light of the background of this case, it was extremely likely that Lee gave that answer because of misunderstanding the question. He submitted that the trial judge, however, in addition to forbidding the Defence from seeking clarifications in re-examination, even made an assertion that Lee’s answer under cross examination was clear and there was nothing confusing or unclear, and therefore withdrew Lee’s answer that he was not clear about the location that the police officer was referring to.
但蘇大律師強調李在被捕後向警員承認的說話有可能只是和傷殘人士廁所內發生，即第二項控罪所指的事有關。蘇大律師強調，雖然李在盤問時同意警員警誡他時所指的是在“該居所”發生的事，但以本案的背景而言，李極可能是在誤解問題下作出該回應，但主審法官不但禁止辯方在覆問時作出澄清，更強指李在盤問時的答案清楚，並無混亂不清之處，故撤回了李指不清楚警員所指的地點之答案。

Mr. So submitted that the way in which the trial judge handled that matter did cause unfairness to the Applicant.
蘇大律師指原審法官的處理方法對申請人做成不公。

Discussion (Conviction)
討論（定罪）

Mr. So once contended that X’s account of what had taken place in “the residence” concerned wholly and only the allegation of anal sex and therefore the fact that the jury found the 1st Applicant not guilty on count 3, the buggery charge, indicated that they completely declined to accept X’s account of what had taken place in the “residence”. Mr. So has already admitted that such a standpoint was incorrect.
蘇大律師曾指X說及在“該居所”發生的事，完全只和肛交有關，因此當陪審團裁定申請人第三項肛交罪罪名不成立時，表示陪審團完全否定X所指在“該居所”發生的事情。蘇大律師已承認該立場不正確。

X’s evidence indicated that, in addition to anal sex, oral sex and other sexual acts had also taken place in “the residence”. Such sexual acts other than anal sex were sufficient to constitute an allegation against the 1st Applicant on an alternative charge of indecent conduct with or towards a child under the age of 16 years.
X的證供顯示他指在“該居所”發生事，除了肛交外，亦有口交和其他的性行為。該等肛交以外的性行為足以構成指控申請人的交替性與或向16歲以下兒童作出猥褻行為罪。

In addition to X’s evidence, the offence for which the Police arrested Lee was that he had anal sex with a boy aged 14 in a public housing unit in Kwai Chung sometime between 9 pm and 10 pm on a certain day between January and February 2009. The matters referred to by the police took place in “the residence”, not in the toilet for the disabled. The admission Lee made under caution also constituted sufficient evidence for the jury to find him guilty of the alternative charge of indecent conduct with or towards a child under the age of 16 years.
除了X的證據外，警員是以李在2009年1月至2月期間某日晚上9至10時在葵涌某一公屋單位內與14歲男童肛交而拘捕他的。警員所指的事發生在“該居所”，而非在傷殘人士廁所內。李在警誡下，所作之招認亦構成足夠證據，導致陪審團裁定他交替性與或向16歲以下兒童作出猥褻行為罪罪名成立。

Mr. So, however, averred that the trial judge had inappropriately disallowed the Defence’s clarification as to whether Lee was, in admitting to certain acts under caution, referring to the matters that had taken place in the toilet for the disabled or in “the residence”. Mr. So contended that the very reply given by Lee under cross examination obviously stemmed from misunderstanding and yet he did not have the opportunity to clarify on that during re-examination, the trial was therefore conducted unfairly.
但蘇大律師力指原審法官拒絕批准辯方澄清李在警誡下承認的行為究竟是發生在傷殘人士廁所或是發生在“該居所”是不恰當的。蘇大律師認為李在盤問時所作的回應明顯是因誤會所導致，但他卻沒有機會在覆問時澄清，因此審訊過程是不公平的。

On the other hand, Mr. Martin Hui, Senior Public Prosecutor acting for the Respondent stressed that Lee, during cross examination, indicated in a straightforward, clear and unmistakable manner that when the police officer cautioned him, he understood that the officer was referring to things that had happened in “the residence”. The approach adopted by the trial judge in disallowing Mr. So’s re-examination on Lee as to whether he was clear about the place of offence the police officer was referring to in the caution was therefore, in his view, not inappropriate, much less had caused unfairness.
代表答辯人的高級檢控官許紹鼎則強調李在盤問時有直截了當、清晰無誤地表明警員警誡他時，他是理解警員所指是發生在“該居所”的事。因此原審法官不批准蘇大律師在覆問時就李是否清楚警員警誡他時所指的犯罪地點的做法並無不妥，更沒有導致不公。

The cross examination referred to by Mr. Hui is recorded on page 158 line G to page 160 line A of the transcript of the trial. The questions and answers are cited as follows:
許高級檢控官所指的盤問在審訊謄本第158頁G至160頁A出現，現將該對答及覆問詳情複述如下：

“Q:My question is, at that time, the caut – I mean, the relevant caution – he has also testified, I mean, DPC52634, did say to you the reason for arresting (you), right?
“問：我問題就係當時警--即係有關嘅警誡喇，佢都有嚟呢個作供喇，即係呢個探員52634，有同你講即係嗰個拘捕嘅理由，對唔對？

A:(He) did.
答：有。

Q:The reason was unlawful buggery with a man under the age of 21, because I have reason(s) to believe you had anal sex with a boy (name of the victim) aged about 14 in a public housing unit in Kwai Chung sometime between 9pm and 10pm on a certain day between January and February 2009. That was the reason for arresting you, he did say that to you, is that right?
問：個理由就係非法與呢個21歲以下男子進行肛交，因為我有理由相信你喺2009年1月至2月期間某日晚上9時至10時喺葵涌區或者公屋單位內與一名年約14歲男童（受害人名字）進行肛交。呢個就係個拘捕理由，佢有咁講畀你聽㗎，對唔對？

A:Right.
答：係。

Q:Well, later, under caution, you gave this reply: “Ah Sir,  I only poked him with my finger(s) and he performed oral sex on me, there was nothing else”. Is that correct?
問：咁後期就喺警誡下，你嘅回應就係話「阿Sir，我凈係用手指插佢，同埋佢幫我口交，冇其他嘢」，對唔對？

A:Disagree.
答：唔同意。

Q:What you mean is – by saying that you disagree, are you saying that you did not say those words?
問︰你嘅意思係咪，你唔同意意思即係話你冇講過呢句嘢？

A:I said not only those words.
答：我唔凈只講過呢句嘢。

Q:So, did (you) say these words?
問：即係呢句嘢有冇講先？

A:(I) did say that.
答：有講。

Q:(You) did say that. Well, in addition to these words, what else did you say?
問：有講。咁除咗呢句嘢之外，你仲有講過咩嘢其他嘢？

A:The whole of what I said was: “I didn’t, Ah Sir, I only poked him with my finger(s), he performed oral sex on me, there was nothing else”.
答：我全句係講「我冇呀，阿Sir，我凈係用手指插佢肛門，佢幫我口交，冇其他嘢」。

Q:That’s all?
問︰就係咁多？

A:Hm.
答：唔。

Q:Put it to you that at that time you were very clear that (he) was talking about the acts that had taken place in your home, the oral sex and the anal sex that had taken place in your home. Do you agree?
問：向你指出，當時你係好清楚講緊嘅就係喺你屋企裡面發生嘅行為，你屋企裡面發生嘅口交同埋呢個肛交。同唔同意？

A:Whom do you mean was talking about that?
答：你講邊個講緊？

Q:I now put it to you that, at that time when you were being cautioned, that is, when being cautioned by DPC52634, you were well aware that the incident the detective was talking about with you, the incident for which you were cautioned, the incident for which you were arrested -- he was talking about the acts that had taken place in your home (that is, Room 1006). Is that right?
問：我而家向你指出，當時你被警誡，即係被呢個探員52634警誡嗰陣，你好清楚知道探員同你講緊嗰件事，警誡你嗰件事，拘捕你嗰件事係講緊你屋企（即係1006室）裡面所發生嘅行為。對唔對？

A:Right.
答：係。

Q:After that, you also had the opportunity to read it once by yourself, is that right? The record.
問︰然之後亦都有機會你自己睇過一次㗎嘛，對唔對？呢個紀錄。

A:Right.
答：係。

Q:DPC52634 also read it to you once, is that right?
問：佢呢個探員52634亦都有向你覆讀過一次㗎喇，對唔對？

A:Right.
答：係。

Q:Well, you were also asked, you were asked whether there was the need to make any amendment, correction or addition, is that right?
問：咁亦都問你，問過你就係需唔需要呢個修改、更正或者係增補咁，對唔對？

A:Right.
答：係。

Q:Well, you yourself also said there was no need, right? No need to make amendment, correction or addition, is that right?
問︰咁你自己亦都話係冇需要吖嘛，係咪？冇需要呢個係修改、更正、增補吖嘛，對唔對？

A:Right.
答：係。

Q:And then you wrote down this declaration by yourself, that is, on the – on pages 42 and 43 of the notebook, is that right?
問：然後亦都係由你自己親手寫低咗呢段聲明嘅，即係喺呢個--嗰個記事冊嘅第42頁同埋43頁，對唔對？

A:Yes.
答：係。

Q:This record is accurate, I suppose, agree?
問：準確嘅，呢個紀錄應該，同唔同意？

A:He wrote down roughly what I meant.
答：佢寫咗我大概嘅意思出嚟囉。

Q:Put it to you that it is an accurate record. Agree?
問︰向你指出，呢個係一個準確嘅紀錄喇。同唔同意？

A:Disagree.
答：唔同意。

Mr. Lo:  Thank you, Mr. Lee. Your Ladyship, that’s all for my cross examination.
盧先生：唔該，李生。法官閣下，我嘅盤問係咁多。

Court:Mr. So?
官：蘇大律師？

Mr. So:Yes, got one question.
蘇先生：係，有一個問題。

Re-examination by Mr. So
蘇先生補問

Q:Just now you were…
問：啱啱你係畀...

Mr. So:Yes, still need the notebook.
蘇先生：係，嗰本note book仲要。

Q:Just now the Prosecutor’s question to you, that is, this – the question to you was that you were clear the police officer – whether (you) were clear that the police officer was talking about your acts in room 1006 – in your home in room 1006, and your answer was (“)right(”). What did you mean you were clear about?
問：啱啱主控問你，就係喺呢個--問你係清楚呢個警員--係咪清楚警員講緊係關於你喺1006室--喺你屋企1006室嘅行為，你嘅答案係嘅，你話你清楚啲乜嘢？

A:That he was talking about anal sex.
答：佢講肛交囉。

Court:Hang on, there is already – there is nothing ambiguous that requires clarification, this question is withdrawn, disallowed.
官：等等，嗰度已經--嗰度冇任何嘅含糊之處需要澄清，呢個問題撤回，唔准問。

Mr. So:Your Ladyship, why? You see, the question put was he said that you (sic) were clear about …
蘇先生：法官閣下，點解呢？因為嗰個問題佢話你清楚係...

Court:At that time he was clear that, as for the case being investigated, the police officer was talking about the oral sex and anal sex that took place in his home, and his answer was “right”. I don’t think there is anything that requires clarification. I have made my ruling, right.
官：佢當時係清楚警員調查緊嘅案係講你喺屋企中嘅口交同埋肛交，佢個答案係「係」，我唔認為有咩嘢需要澄清嘅地方，我已經作出咗裁決喇，係。

Mr. So:That question itself consists of two…
蘇先生：嗰個問題本身有兩個...

Court:Ruling already made, hm.
官：已經作出咗裁決喇，唔。

Q:The offence for which the police officer cautioned you was buggery, you were clear about that, right?
問：對於警員警誡你個罪名係講肛交，你清楚㗎喇？

A:Right.
答：係。

Q:Were you clear about the place?
問︰個地點你清唔清楚？

A:Not clear.
答：唔清楚。

Mr. So:No further questions.
蘇先生：冇其他問題。

Court:Please withdraw the last question. Just now I – that concerns what I have already ruled on just now.
官：最後嗰個問題請你撤回，我剛才--呢個已經係我剛才作出裁決嘅地方。

Mr. So:But the police officer said …
蘇先生：但係警員講...

Court:That was a leading question, I have made a ruling, the last answer should be ignored, the last answer is deleted. Thank you, please return to your seat.”
官：呢個係一個leading question，我已經作出咗裁決，最後嗰個答案唔需要顧及，剔除最後嗰個答案。唔該晒，請你返去你原先嘅座位。”

It can be seen from the above exchange that, when Lee was cautioned by the police officer, it was possible that his focus was only on the acts mentioned in the allegations, not the place.
從上述對答可見，李遭警誡時集中注意的可能只是警員指控他的行為，而非事發地點。

Under cross examination, the Prosecutor put to Lee that when he was cautioned, he was “well aware that the incident the detective was talking about with you, the incident for which you were cautioned, the incident for which you were arrested -- he was talking about the acts that had taken place in your home (that is, Room 1006)” and Lee’s answer was “right”. However, the Prosecutor’s question could be interpreted as consisting of two parts: (1) the acts involved in the incident and (2) the place where the incident took place.
盤問下李對檢控官指他遭警誡時“好清楚知道探員同你講緊嗰件事，警誡你嗰件事，拘捕你嗰件事係講緊你屋企（即係1006室）面所發生嘅行為”，李回答“係”，但檢控官的問題可被詮釋為分開兩個部份，（一）是事件涉及的行為，（二）是事件發生的地點。

As the unfavourable answer given by Lee during cross examination might have come about because of misunderstanding, he should have been given the opportunity to explain and clarify in re-examination. Even if the reply given by Lee during cross examination was clear and unmistakable, there could be other reasons that had made him give an inconsistent reply. He should have been given the opportunity to state to the court those reasons.
當李在接受盤問時作出對他不利的答案可能是在誤解的情況出現時，他應該獲得機會在覆問時作出解釋及澄清。即使李在盤問時所作的回應是清晰無誤的，他亦有可能有其他理由，作出前後不一致的回應。他應有機會向法庭表述該些理由。

We have to stress that, the decision of whether or not to allow the Defence to make clarifications in re-examination could not turn solely on just a couple of simple replies of “right” given by Lee during his cross examination. The trial judge should have taken into account the circumstances of the case as a whole in order to make a reasonable and fair ruling.
本庭要強調，決定應否批准辯方在覆問作出澄清，不能只根據李在盤問時作出的一兩句簡單“係”的回應為依歸。主審法官理應將案件的整體情況一併考慮在內，而作出合理公平的裁決。

We cannot ignore the fact that Lee’s position was all along clear and specific. Besides, it has never changed. He agreed that he had had, in the toilet for the disabled, certain indecent conduct with X, including oral sex and poking finger(s) into X’s anus. However, he denied having anal sex or any indecent conduct in “the residence”. Such clear and specific position was fully expressed in the cross examination of X.
本庭不能忽視由始至終, 李的立場是明確的，亦是從沒有改變過的，他同意曾在傷殘人士廁所內和X有過猥褻行為，包括口交及用手指插X的肛門，但他否認有在“該居所”和X肛交或進行過任何猥褻行為。上述明確立場，在盤問X時已表露無遺。

As a matter of fact, in giving evidence, the police officer did not specify that he had clearly indicated in his caution on Lee that the place of offence was “the residence”. The exchange between the Prosecutor and police officer is as follows:
事實上，警員在作供時，亦沒有表明警誡李時，他有指明案發地點是“該居所”。當時警員有和主控官有以下的對答：

“Q:   Please slowly state the reason for the arrest.
“問：請你慢慢講出嗰個拘捕理由係乜嘢吖?

A:Arrested him for the offence of unlawful buggery with a man under the age of 21, and then cautioned him.
答：拘捕佢嗰個罪名就係非法與21歲以下男子進行肛交嘅罪名，跟住就警誡佢。

Q:Right, and then did Lee Hon Wah anything (sic), the …
問：係，咁然之後李漢華有冇任何嘢呀，呢個…

Court:What is meant by “caution”? Perhaps the jury would like to know what is meant by “caution”.
官：咩嘢叫做「警誡」呀？陪審員可能想知道咩嘢叫做「警誡」。

Mr. Lo:Yes, right.
盧先生：係，好。

A:Caution is in fact – let me read out the content of the whole elegiac speech(sic) (?). In fact, caution means telling the other party that – in fact, caution is to say “You are not obliged to say anything unless you wish to do so but what you say may be written down and given in evidence.” The purpose is to let the other party know that he has such rights, has the right to remain silent, right.
答：警誡其實係- -容許我讀番成段個祭文（？）嗰個內容喇，其實警誡就係話畀對方- -其實警誡就係話「唔係事必要你講嘅，除非你自己想講喇，但係你所講嘅嘢可能用筆寫低及用嚟做證供嘅。」就令到對方知道佢有咁嘅權利，有個緘默權喺度，係喇。

Q:Well, then, did the defendant have anything to say?
問：咁好喇，之後被告人有冇任何嘢講呢？

A:Yes.
答：有。

Q:Please tell us, that is, what did he say to you at that time, what was said?
問：請你講番，即係當時佢點樣同你講，講啲乜嘢呢？

A:“Ah Sir, I only poked him with my hand(s) – poked him with my finger(s), and he – performed oral sex on me – for me, there was nothing else.” These were (said) after the caution …
答：「阿Sir, 我凈係用手插佢- -用手指插佢，同埋佢同我- - 幫我口交，冇其他嘢。」呢段嘢就係警誡完之後…

Q:Did he say anything else?
問：佢仲有冇其他嘢講過呀？

A:No
答：冇

Q:After that, was it the case that you used your notebook to record the course of his arrest?
問：隨後你係咪用你自己本身嘅記事冊將剛才嗰個拘捕過程係紀錄低呀？

A:Exactly.
答：全中。

Q:You mean you agree?
問：即係同意咁？

A:Right.
答：係。

Q:And then at 7:25, did you read to him the relevant record you had made?
問：然之後喺7點25分，你係咪向佢覆閱番你有關嘅紀錄呀？

A:Yes.
答：係。

Q:And he also read it once, by himself, right?
問：亦都由佢覆讀一次咁樣，係咪，自己？”

During cross examination, the police officer also agreed that Lee, without indicating that he understood after being cautioned, gave a reply right away.
被盤問時，警員亦同意遭警誡後，李並沒有表示明白警誡，就立刻作出回應。

The matters stated above indicate that when Lee was cautioned, it was possible that his attention was focused on the acts alleged, not the locations thereof. Lee’s reply under re-examination also proves the above mentioned circumstances. The questions and answers between Mr. So and Lee were as follows:
上述事件都顯示李遭警誡時，注意力可能只是集中在指控他的行為，而非事發的地點。在覆問時，李的回應亦證實上述情況。當時李和蘇大律師有以下的對答：

“Q:Just now the Prosecutor’s question to you, that is, this – the question to you was that you were clear the police officer – whether (you) were clear that the police officer was talking about you acts in room 1006 – in your home in room 1006, and your answer was (“)right(”). What did you mean you were clear about?
“問：啱啱主控問你，就係喺呢個--問你係清楚呢個警員--係咪清楚警員講緊係關於你喺1006室--喺你屋企1006室嘅行為，你嘅答案係嘅，你話你清楚啲乜嘢？

A:That he was talking about anal sex.
答：佢講肛交囉。

Q:The offence for which the police officer cautioned you was buggery, you were clear about that, right?
問：對於警員警誡你個罪名係講肛交，你清楚㗎喇？

A:Right.
答：係。

Q:Were you clear about the place?
問︰個地點你清唔清楚？

A:Not clear.
答：唔清楚。”

When Lee gave the above reply, the trial judge immediately, in the presence of the jury, told the Defence to withdraw the question and answer and indicated that she had already given a ruling on the issue concerned. The approach of the trial judge dealt a fatal blow to the defences. When there is dilemmatic or inconsistent evidence, the suitable approach is to give both parties the opportunity to explore on it further and not to block such channels. The trial judge’s order(s) to have certain questions and answers withdrawn would only make the jury think that she had already decided on those questions and the issues related to those questions and therefore there was no need to waste any more time to think further on the issues concerned.
當李作出上述回應時，原審法官便立刻在陪審團在場下，要辯方撤回問題及答案，更表示她已就有關問題作出裁決。原審法官的做法對辯方的答辯理由會造成致命性的打擊。當有矛盾或前後不符的證供出現時，適當的做法是容許雙方有機會再作探討，而非堵塞探討的渠道。主審法官下令撤回某些問題及答案，更會令陪審團認為主審法官已對該些問題及與問題有關的議題作出定奪，因此無需浪費時間，再思考有關議題。

We are of the view that the trial judge, in disallowing Lee to explain further in re-examination the reply he gave when cautioned by the police officer and in ordering to have his reply withdrawn, did indeed cause unfairness on Lee.
本庭認為原審法官不批准李在覆問時就警員警誡他時作出的回應再作解釋，更下令撤回他已作出的回應，確有對李做成不公平之處。

In the above circumstances, we agree with Mr. So’s case. The conviction on count 4, indecent conduct with or towards a child under the age of 16 years, is unsafe. For this reason, we grant leave to appeal to Lee on count 4. Treating his application as the appeal itself, we allow the appeal and quash the conviction and sentence against him on count 4.
在上述情況下，本庭認同蘇大律師的立場，第四項16歲以下兒童作出猥褻行為的定罪是不穩妥的。因此本庭批准李就第四項控罪上訴，並視其申請為正式上訴。本庭裁定李的上訴得直，第四項定罪及判刑都撤銷。

Lee’s Sentence and Grounds of Appeal
李的判刑及上訴理由

On count 2, Lee was sentenced to 20 months’ imprisonment on a guilty plea. That indicates that the trial judge had taken 30 months as the starting point. Mr. So contended that it was excessive.
就第二項控罪，李認罪後遭判監20個月，顯示原審法官採納30個月的量刑基準。蘇大律師指該量刑基準過高。

Mr. So stressed that the case of HKSAR v See Tak Man (CACC707/1997) mentioned by the trial judge in passing the sentence was of a different nature and greater severity and should not have been used as the basis for sentencing in the present case.
蘇大律師強調原審法官判刑時提及的HKSAR v 施德文 （CACC 707/1997）案，和本案性質不同，嚴重性亦較高，因此不應作為判刑的基礎。

Mr. So pointed out that in HKSAR v Wong Ka Wai (transliteration) and others (HCCC3/2009), the defendant, having pleaded guilty to indecent conduct with or towards a child under the age of 16 years and buggery with a man under 21, was only sentenced to 12 months’ imprisonment on each count and the terms were to be served concurrently.
蘇大律師指在香港特別行政區 訴 黃嘉緯及他人（HCCC 3/2009）案，被告人承認向16歲以下兒童作出猥褻行為罪及與年紀在21歲以下男子作出肛交罪後，只被判每項控罪入獄12個月，同期執行。

Mr. So submitted that the guilt of the 1st Applicant was even less than that of the defendant concerned in Wong Ka Wai’s case and therefore a sentence of 9 months’ imprisonment should be imposed.
蘇大律師指申請人的罪責較黃嘉緯案的被告人的罪責更輕，故判刑應為9個月。

Yan’s Sentence and Grounds of Appeal
甄的判刑及上訴理由

Mr. Wong Hay Yiu, counsel for Yan, put forward several grounds of appeal in his written submission. However, in the end, Mr. Wong abandoned most of the grounds of appeals stated in the written submission and only stressed that, in light of the comparison between the facts of this case and those of similar cases, the sentence on Yan was manifestly excessive.
在其書面陳述，代表甄的大律師王熙曜提出多項上訴理由。但王大律師最終放棄了大部份書面陳述列出的上訴理由，而只是強調以本案的案情和其他同類案件相比，甄的判刑屬明顯過重。

Mr. Wong stressed that in the society of modern times, the perceptions on certain acts have changed and the court should not be biased against homosexual acts. Mr. Wong submitted that Yan was about 26 years’ old at the time of the offences and therefore still young. He came from a good background and was of clear record.
王大律師強調近代社會對某些行為觀感之改變，法庭不應對同性性行為有偏見。王大律師指出甄犯案時約26歲，仍屬年青。他出身良好，亦沒有犯罪記錄。

Mr. Wong also cited certain similar cases to lend support to his contention that the sentences in the present case were excessive.
王大律師亦援引一些同類案件，以加強他指本案判刑過重的說法。

Discussion (Sentence)
討論（判刑）

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.
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，犯案人和受害人的年齡、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是有限。

We shall cite the comment of Ma CJHC (as he then was) in paragraph 27 of the judgment of HKSAR v Chow Yuen Fai (CACC392/2008):
本庭想複述高等法院首席法官馬道立（當時官階）在香港特別行政區 訴 周遠輝（CACC 392/2008）案判案書第27段所作的評論：

It is possible that the offences are committed by two young people, of little age difference, in agreement and in private. It is also possible that it does not involve any threat and inducement, not to mention any exploitation, corruption and deprivation on one party by the other. In the course of the offence, both parties might have taken adequate preventive and safety measures and that no health and safety risks to the other party or the public will be caused. In these circumstances, it should be open to the court to exercise leniency.
“以肛交及非體案件犯案的各種各樣情況，要為該類罪行定下量刑標準，既不可能，亦不切實際。因此與較早前案件相關的判刑，作用不大。”

The circumstances at the other extreme would be that an adult male intimidating a child with force in order to make him/her succumb and, in the course of such acts, using violence on this victim, causing unnecessary pain and injury, infecting the victim with disease(s) or causing other psychological traumas. Offences as such might be even more serious that those of certain categories such as rape and the sentences therefor should also be manifestly heavier. This also explains why the legislative authority has set the maximum penalty for buggery with a man or girl under 21 at life imprisonment. Even if the defendant has not intimidated the victim with force, if inducement was used as the means to make the young victim forego one’s dignity and fall prey to his licentious exploitation, the offence is definitely not minor.
另一極端情況是一名成年男子，以武力威嚇一名小孩，要他就範，而在過程中，更對受害人施用暴力，令受害人蒙受不必要的痛苦及損傷或導致他染病或其他心理創傷。該等罪行可能較某類別，如強姦更為嚴重，判刑亦要顯著地較重。這亦解釋為何立法機關將與21歲以下男子或女童肛交罪的最高判刑定為終身監禁。即使被告人沒有以武力威嚇受害人，但如果他施以利誘，令年輕受害人放棄尊嚴，以供其淫辱，罪行當然亦屬不輕。

The offences involved in such cases not only might affect the victims themselves. They also cause profound distress to the victims’ families, in particular the parents of young victims. We will not view these factors lightly.
案件所涉的罪行，不單可能會對受害人個人有影響，對受害人的家人，特別是年輕受害人的父母亦會做成極大困擾，本庭不會輕視。

We are of the view that, in the sentencing of cases involving buggery with a man under 21 and indecent conduct with or towards a child under the age of 16 years, factors that the court has to consider include:
本庭認為在和21歲以下男子肛交罪及與或向16歲以下兒童作出猥褻行為罪案件判刑時，法庭要考慮的因素包括：

the age difference between the defendant and the victim;
被告人和受害人年齡的差距；

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 at the time of the offence;
被告人和受害人的關係，包括被告人是否有利用其職位或身份去犯案及犯案時是否有破壞別人對他的信任；

whether the defendant had used threats or inducements to make the victim succumb, falling prey to his licentious exploitation;
被告人是否有威迫或利誘受害人，令受害人就範，供其淫辱；

the number of occasions of committing the offences and the duration of the offences;
犯案次數的多少及犯案時段之長短；

whether inappropriate and unnecessary violence was involved in committing the offences and whether any harm or discomfort was caused to the victim;
犯案時是否涉及不當及不必要之暴力，或是否有對受害人做成傷害或不適；

whether any suitable safety measures were taken in committing the offences and whether any hazard to the health and safety of the victim and the public was caused;
犯案時是否有採用適當之安全措施，是否有對受害人及大眾的衛生安全造成危害；

whether the offences have caused physical or psychological traumas to the victim;
罪行是否有對受害人做成身體傷害或心理創傷；

whether the offences have impacted on the family members of the victim;
罪行對受害人的家人有否做成影響；

was the defendant involved in other inappropriate behaviours such as inviting/permitting other people to watch or take photos/videos; and
被告人是否涉及其他不當行為，例如邀請/容許他人在場觀看或拍照/錄像等行為；及

whether the defendant is psychologically imbalanced or paedophilic and the likelihood of re-offending.
被告人是否有心理失衡或孌童癖好，與重犯機會的高低等。

It is, of course, also essential for the court to consider the mitigating factors that are favourable to the defendant before an appropriate sentence could be imposed.
當然，法庭亦必需將有利被告人的求情因素考慮在內，才作出適當之判刑。

Lee’s Sentence
李的判刑

Lee pleaded guilty to indecent conduct with or towards a child under the age of 16 years (count 2), contrary to Section 146(1) of the Crimes Ordinance. The maximum penalty is 10 years’ imprisonment.
李承認第二項與或向16歲以下兒童作出猥褻行為罪，違反《刑事罪行條例》第146（1）條。該罪行的最高判刑為監禁10年。

At the time of the offences, X was above the age of 14 and not yet 15 whereas Lee was 34 years’ old. The age difference between them was not small. However, in the present case, no threat or duress was involved. Obviously, X was not an innocent child being taken advantage of by another person. He took the initiative to tout for “business” on homosexual website and provided sex service voluntarily in order to make money.
案發時X超過14歲，但不足15歲，而李則是34歲，雙方年齡差距不少。但本案不涉及任何威迫行為。X明顯並非無知兒童，遭人利用。他在同性戀網頁主動向同性戀者招攬“生意”，自願提供性服務以賺取金錢。

Although Lee did corrupt X’s mind to a certain extent in agreeing to pay him in exchange for sex service, given X’s background and experience, this factor is not of much severity. As a matter of fact, certain information shows that X was even more corrupt than Lee. X admitted in his testimony that another client wanted to be present to watch the sexual transaction between him and Lee. He hoped that Lee would agree so that he could make more money but Lee objected.
雖然李同意支付金錢，以取得X之性服務，某程度有腐化X的心智，但以X之背景及經驗，該因素之嚴重性不太大，事實上有資料顯示X的腐化程度比李有過之而無不及。X作證時承認他有另一顧客想在場觀看他和李的性交易活動，他希望李同意，令他能賺取更多金錢，但李反對。

Lee has only one criminal record. He came from a good background, has a stable job and has no previous conviction. In addition, there are no other aggravating factors. We take the view that the starting point of count 2, to which he pleaded guilty, should be 18 months’ imprisonment.
李只有一次犯案記錄，他出身良好，有穩定職業，沒有任何犯罪前科，加上沒有其他加重罪責因素，本庭認為他承認的第二項控罪的量刑基準應為18個月監禁。

Lee is entitled to a one-third discount as he pleaded guilty to the charge. We therefore reduce the sentence to 12 months.
李承認控罪，應獲三份一之刑期扣減，因此本庭將他的刑期減至12個月。

Yan’s Sentence
甄的判刑

Yan pleaded guilty to two counts of buggery with a man under 21. He was 26 at the time of the offences and the age difference between him and X is smaller. Our observation on X above also applies to the sentencing of Yan. Obviously, X had the transactions with Yan on his own initiative and voluntarily with a view to making money. The case did not involve any threat, exploitation or corruption of another person.
甄承認兩項與21歲以下男子肛交罪。甄犯案時26歲，和X年齡的差距較細。本庭對X以上的觀察對甄的判刑亦適用。X明顯是主動及自願和甄進行交易，以賺取金錢，案件不涉及任何威迫、剝削、甚至腐化他人的行為。

Nonetheless, we cannot overlook the fact that Yan used money to get sex service from a 14-year-old boy and did not take safety measures when he had anal sex with X. These are aggravating factors.
但本庭不能忽視甄以金錢換取一名14歲男童的性服務，而他和X肛交時，並沒有採取安全措施。上述事項都是加重罪責因素。

On the other hand, Yan came from a good background and was educated. He had a stable job and had the support from his family. Yan has no previous record, we also hope that this is a lesson to him not to have inappropriate sexual acts with underage boys again.
另一方面，甄的出身良好、受過教育、有穩定職業、更得到家人支持。甄沒有犯案前科，本庭亦希望他今次得到教訓，不再和未成年男童進行不當之性行為。

On the background of the case as a whole, we take the view that 2 years’ imprisonment is the appropriate starting point for each of the two counts of buggery with a man under 21 faced by Yan. He had pleaded guilty and the sentences should be reduced by one third to 16 months. As the two offences were about 5 months apart, part of the sentence should run consecutively.
以案件整體背景而言，本庭認為甄面對的二項與21歲以下男子肛交罪，適當的量刑基準都是2年監禁。甄承認控罪，刑期理應減三份一至16個月。兩項控罪犯案期分隔約5個月，部份刑期應分期執行。

We order that 4 months of the 16 months’ imprisonment on count 5 shall run consecutively to the sentence on count 1. The total term of imprisonment on Yan is reduced from 40 months to 20 months.
本庭下令第五項控罪的16個月的判刑中有4個月要和第一項控罪的判刑分期執行。甄的總刑期由40個月減至20個月。

Mr. Selwyn So, instructed by Simon Wong & Co. and assigned by the Legal Aid Department, for the 1st Applicant (conviction and sentence).
第一申請人（定罪和判刑）：由法律援助署委派黃國康律師事務所轉聘蘇啟明大律師代表。

Wong Hay Yiu, instructed by Fong Yin Cheung & Co. and assigned by the Legal Aid Department, for the 2nd Applicant (sentence).
第二申請人（判刑）：由法律援助署委派方燕翔律師行轉聘王熙曜大律師代表。

Martin Hui, Senior Public Prosecutor of the Department of Justice, for the Respondent
答辯人：由律政司高級檢控官許紹鼎代表。