The Applicant was charged with raping a female, X, on 27 April 2012, contrary to section 118(1) of the Crimes Ordinance. He pleaded not guilty but was convicted by the jury unanimously after trial before Deputy High Court Judge Wong and a jury. He was sentenced to 6 years imprisonment by Wong J. The Applicant applied for leave to appeal against his conviction and sentence. On 27 February 2013, this court refused his application after hearing. Here are the reasons.
申請人被控於2012年4月27日強姦女子X，違反《刑事罪行條例》第118(1)條。他否認控罪，但經高等法院暫委法官黃崇厚會同陪審團審訊後，被陪審團一致裁定罪名成立，並被黃法官判監6年。申請人不服定罪及判刑，申請上訴許可。2013年2月27日，本庭在聆訊後拒絕申請，理由如下。

Prosecution case
控方案情

At the material time, X was a 17-year-old Form 6 student whereas the Applicant was 26 years old, working as a salesperson in a telecommunications company.
案發時，X，17歲，是中六生；申請人，26歲，是電訊公司推銷員。

X was interested in modelling work, so on 24 April 2012she posted a message seeking part-time modelling job on a part-time models recruitment website. She uploaded her own picture and left her online messaging number (MSN) for contact. In the early hours on 27 April 2012, the Applicant contacted X through MSN. At that time he used a false name and falsely claimed to be a manager of a modelling agency. They agreed to meet at noon on that day.
X對模特兒工作感興趣，故在2012年4月24日，在一個招聘兼職模特兒的網站張貼尋找兼職模特兒工作的訊息，並上載自己的照片和留下網上聊天工具號碼 (MSN) 作聯絡之用。4月27日凌晨，申請人用MSN聯絡X，當時他用了一個假名，並訛稱是模特兒公司的經理人。兩人相約在當日中午見面。

They first met somewhere near Tai Wo Hau MTR station at the time agreed. After that they went to a park nearby, where they had a discussion for about 30 minutes. X said the Applicant told her that she might need to “accompany bosses” if she wanted fame, which meant providing sex service in return for modelling jobs. He also said that taking body measurements was required for modelling and tried to persuade X to go back to her home for that purpose. As a result, X agreed to bring the Applicant to her residence in Tai Wo Hau.
到了約定的時間，兩人先在大窩口港鐵站附近見面，然後到鄰近的一個公園交談了約30分鐘。X說申請人告訴她，如果想出名，可能要「陪老細」，即要用性服務來換取模特兒的工作，他又說做模特兒需要度身，並游說X到她家裡度身。結果，X同意帶申請人到她在大窩口邨的住所。

In X’s home, both of them sat on a bed. The Applicant told X that she could not be shy and that she had to take an active role and try to treat the Applicant as her boyfriend. She was told to close her eyes. When she did so, the Applicant kissed her mouth. X drew back and said it was unacceptable. The Applicant then suggested that X take off all her clothes for body measurement, to which X agreed. After taking body measurement, the Applicant requested X to lie on the bed for he had to look at her body fat distribution. After that, he said to X, “Let me try to kiss you and see if you get any feel. If you don’t, I will leave it and stop.” X agreed and closed her eyes again. The Applicant then kissed X’s mouth and used his hands to touch the breasts and lower part of X and kissed them. The Applicant then took off his pair of trousers to rub the lower parts of X with his penis. X pushed him away immediately and told him to stop. She also said she did not want to be a model. The Applicant got hold of X and said she had better continue as she had already come to such a pass. He then used his body to press on X’s body. X pushed her feet against the Applicant and shouted no. The Applicant ignored her. X struggled to leave the bed but the Applicant lurched towards her from behind, making her fall down on the floor. Giving a shout of pain, X asked to go over to the couch and sit there. The Applicant asked X to give him a few more minutes. X said she could not accept that and that she would rather not be a model if it was what she had to do in return for job opportunities. The Applicant repeatedly said that he would only “rub the outside” without any penetration. X asked a few times if it would just be “rubbing the outside”. The Applicant agreed and a pinkie promise with X was made. The Applicant then used his penis to rub the outside of X’s genitals. X kept cowering but the Applicant grabbed her thigh with one of his hands. Later, during the rubbing, the Applicant’s penis penetrated into the vagina of X completely. After a few seconds, the Applicant cried out and ejaculated at the same time. The Applicant found there was semen on the couch cover as well as on the floor. Furious and frightened, X told off the Applicant. The Applicant, however, argued that there was no penetration and asked if X had any wrong feeling. Eventually, the Applicant and X left X’s home and went away separately.
在X的家中，兩人坐在床上，申請人對X說她不能害羞，要主動，嘗試當申請人是她的男朋友，要她合上雙眼。X照做，申請便吻她的嘴，X退開，說不能接受。申請人於是建議先替X脫光衣服度身，X同意。度完身之後，申請人要求X躺在床上，說要看她的脂肪分佈，然後對X說「不如我試下錫妳，睇下妳有冇feel，如果冇，我就算，就停。」X同意，又合上雙眼。申請人就吻X的嘴，又用手摸和吻X的胸部和陰部。申請人然後除褲，用陽具磨擦X的下體，X立刻推開他，叫他停止，並且說不想做模特兒。申請人捉着X，對她說既然走到這一步，不如繼續做，並且將他的身體壓在X的身上，X用腳撐着申請人，而且高呼不要。申請人沒有理會，X掙扎下床，申請人從後將X撲跌在地上，X呼痛並要求去梳化坐，申請人要求X給他多幾分鐘，X表示接受不到，說如果需要這樣換取工作，寧願不做模特兒。申請人多次說他只會在「外面磨」，不會入去。X問了數次是否只會在「外面磨」，申請人都答應了，並且和X勾手指作實。申請人於是用陽具在X的性器官外面磨擦，X一直退縮，但被申請人用一隻手捉着她的大腿。後來，申請人在磨擦期間把陽具完全插入X的陰道內，幾秒鐘之後，申請人叫了一聲，同時射精，申請人發現梳化套和地上都有精液。X十分憤怒和驚慌，指責申請人，申請人卻辯稱沒有插入去，反問X有否感覺錯誤。最後，X和申請人離開X的住所，然後分別離去。

After leaving home, X telephoned a friend Mr Lee (transliteration) and later her boyfriend Mr Ying (transliteration), crying and complaining about the assault. At that time X sounded frightened. In the afternoon on the same day, X returned home in the company of her boyfriend. She told her parents what happened. After deliberation, a report was made to the police in the evening.
離家後，X先後致電朋友李先生和男朋友英先生哭訴被侵犯，當時X語帶驚恐。同日下午X在男朋友陪同下回家，告訴父母事發經過，經商量後，晚上往警署報案。

On the night in question, X’s father gave the police two pieces of tissues with semen that he picked from the rubbish bin in his residence. The police seized a couch cover from X’s residence and lifted 2 DNA samples from the floor. Analysis by the chemist revealed that the DNA extracts from the semen “sperm fraction” found on the tissue papers and the couch cover could be attributed to the Applicant whereas the semen “non-sperm fraction” found from the couch cover had a mixture of DNA that came from both the Applicant and X. Moreover, the DNA samples lifted from the floor of X’s residence also had DNA from both the Applicant and X.
案發當晚，X的父親從住所垃圾桶內檢走兩張沾有精液的紙巾交給警方，警方亦在X的住所內檢取了一張梳化套，並在地板上檢取了兩個DNA樣本。經化驗師分析後，紙巾和梳化套上發現的精液內的「精子分數」中的DNA，可能源自申請人，在梳化套上發現的精液內的「非精子分數」中有源自申請人和X的DNA，在X住所的地板上檢取的DNA樣本亦有源自申請人和X的DNA。

On 3 May 2012, the Applicant was arrested for rape. The response under caution was, “I understand. She was engaged in compensated dating. I did pay. It was a transaction.” On the same day, the Applicant took part in 2 video interviews voluntarily. He repeated that the intercourse with X was a compensated dating transaction. Both parties agreed the price for sex without wearing a condom would be $1,000. As the Applicant partly ejaculated inside her, X was not happy and asked for an extra $500. The Applicant refused and reasoned with X. X was unhappy but did not say anything further.
2012年5月3日，申請人在因強姦罪被捕，警誡下回應「我明白，佢係做援交㗎，我有俾錢，係交易嚟㗎」。同日，申請人在自願的情況下兩次參與錄影會面，重申他和X的性交只是援交交易，雙方同意下以$1,000在不戴避孕套的情況下性交；之後申請人在X的體內部份射精，X因此不滿而索取多$500，申請人拒絕並和X理論，X不悅但沒再作聲。

On 9 May 2012, X identified the Applicant in an identification parade at the police station.
2012年5月9日，X在警署的認人行列中認出申請人。

Defence case
辯方案情

The Applicant elected to give evidence. He confirmed what he told the police was all true. He repeated his explanation that he and X had compensated dating sexual transaction by mutual consent. As X was not happy that the Applicant partly ejaculated inside her, she asked for an extra $500. The Applicant refused any extra payment as the amount agreed during negotiation was just $1,000. The Applicant denied that X had put up any resistance or refused him or he had promised X that there would only be rubbing outside her vagina.
申請人選擇作供，確認他向警方所說的全是事實，並且重覆他的辯解，即他和X是在雙方同意下進行援交的性交易，後來X因申請人於她體內部份射精而不悅，要求另加$500，申請人因早前議價時雙方同意只是$1,000而拒絕額外付款。申請人否認X曾反抗或拒絕他，亦否認曾有答允X只在她外陰磨擦。

The Applicant called no other witnesses.
申請人沒有傳召其他證人。

The only issue
惟一爭議

The only issue in this case was whether X had sexual intercourse with the Applicant by consent, and whether the Applicant knew that she did not consent to the intercourse, or he was reckless as to whether she consented to it.
本案惟一的爭議是，X是否不同意和申請人性交，以及申請人是否知道X不同意性交或者罔顧X是否同意性交。

Conviction application
定罪申請

In respect of the leave to appeal against conviction, the Applicant had raised 6 grounds of appeal. This court will now look at them one by one.
就定罪的上訴許可申請，申請人共提出了六個上訴理據。本庭現逐一審視。

Ground of appeal 1
上訴理由一

X gave 2 witness statements in the police station on 28 April 2012, one at 1:20 am and the other at 20:30 on the same day. Some details in the 2 statements were not consistent. They did not tally with her testimony either. During cross-examination, Mr Kwan for the Applicant had shown X her 2 witness statements, but when he applied to put these 2 witness statements before the jury, the trial judge refused him.
X先後於2012年4月28日凌晨1時20分及同日20時30分在警署錄取了兩份證人供詞；這兩份供詞的內容在某些情節上不一致，也和X在庭上的口供不乎。當X接受盤問時，代表申請人的關大律師曾向她展示這兩份證人供詞；但當他申請把這兩份證人供詞向陪審團展示時，卻不獲原審法官批准。

Mr Yuen for the Applicant submitted that in so doing, the trial judge prevented the defence from cross-examining X smoothly and effectively on the issue of whether she consented to sexual intercourse, and made it difficult for the jury to appreciate the inconsistency between the statements and testimony of X, which  was obviously prejudicial and unfair to the Applicant. Mr Yuen cited The Queen v Yip Chi Keung [1988] 1 HKLR 229 to support his argument.
代表申請人的袁大律師陳詞說，原審法官此舉令辯方無法暢順及有效地就X是否同意性交作出盤問，及令陪審團難以掌握X之供詞和口供之間的分歧，對申請人明顯不利和不公。袁大律師引援The Queen v Yip Chi Keung [1988] 1 HKLR 229以支持他的論點。

Section 14 of the Evidence Ordinance stipulates that:
《證據條例》第14條訂明：

“A witness in any proceedings may be cross-examined as to previous statements made by him in writing or reduced into writing relative to the subject-matter of the proceedings, without such writing being shown to him; but if it is intended to contradict such witness by the writing, his attention must, before such contradictory proof can be given, be called to those parts of the writing which are to be used for the purpose of so contradicting him:
“在任何法律程序中的證人，可被盤問他以往所作出與該法律程序的標的事項有關的書面陳述或轉為文字紀錄的陳述，而該書面陳述或文字紀錄無須向他展示；但如擬藉該書面陳述或文字紀錄反駁該證人，則在提供該作反駁用的證明前，須提請該證人注意該書面陳述或文字紀錄中將用以如此反駁他的部分：

Provided always that it shall be competent for the court, at any time during the trial or hearing of the proceedings, to require the production of the writing for its inspection, and the court may thereupon make such use of it for the purposes of the trial or hearing as it may think fit.”
但法庭有權在該法律程序的審訊或聆訊中的任何時間，規定任何人交出該書面陳述或文字紀錄供法庭查閱，而法庭並可隨即為該審訊或聆訊的目的而將該書面陳述或文字紀錄作其認為適合的用途。”

Depending on the actual circumstances and the necessity, a trial judge shall decide on how to make proper use of the statements in writing or statements reduced into writing for the purpose of a fair trial or hearing. In a jury trial, in case the writings concerned are statements previously made by a witness under cross-examination, subject to the actual circumstances and the necessity, the judge may allow the witness to read the statements with or without putting a copy of the same before the jury.
法官需要根據案件的實際情況和需要，來決定如何合適地使用有關的書面陳述或文字記錄，以達到公平審訊或聆訊之目的。在陪審團審訊中，若有關的書面陳述或文字記錄是被盤問之證人較早前記錄的供詞，法官可視乎實際的情形和需要，批准證人參閱供詞而不用把供詞副本給陪審團看，或把供詞副本同時給陪審團看。

When the judge considers whether a copy of a statement should be shown to the jury, the complexity of the issue concerned is always a very important factor. The Court of Appeal said in Yip Chi Keung at page 234 lines B-D that it was perfectly possible, in a simple case, to cross-examine a witness without putting his statement before the jury. Where the matter was at all complex, sharp criticism and comparisons were being made by counsel between the witness statement and testimony, the statement should be put before the witness and the jury. There were 3 purposes for doing so:
法官考慮是否把供詞副本給陪審團看時，有關的事宜是否簡單或複雜往往是一個十分重要的因素。正如上訴庭在Yip Chi Keung一案第234頁B-D行指出，在簡單的案件中，可以不需向陪審團展示被盤問之證人的供詞；但若涉及的事宜是複雜的，而盤問的大律師又對證人供詞和口供兩者提出尖銳的批評和比較，則應該把供詞展示給證人和陪審團看。這做法有三個目的：

(1)It would be fairer to the witness;
(一)對證人較為公平；

(2)For a fair and effective cross-examination on previous inconsistent statement;
(二)讓針對以前不一致供詞(previous inconsistent statement)的盤問更公平及有效地進行；

(3)For the jury to follow and understand the cross-examination better, and to access the evidence concerned, so as to give appropriate weight to it.
(三)讓陪審團更能明白和理解盤問的過程，以及評估有關的證據，以考慮其合適的比重。

The details of the events given by X in her 2 witness statements were not entirely the same. They were inconsistent with her evidence in court, too. In fact, when the trial judge gave directions to the jury, he mentioned that the number of discrepancies between her 2 statements and her testimony was more than 20. However, this did not mean a copy of X’s statements must be shown to the jury. This needed to depend on the actual circumstances and necessity.
X在兩份證人供詞所描述事發的情節上不盡相同，也和她在庭上的口供有所出入。事實上，原審法官在引導陪審團時，指出兩份供詞之間和兩份供詞與X口供之間的分歧，共有二十多點。但這不是說，X的供詞副本必需給陪審團看。這需要視乎實際的情況和需要而定。

The facts of this case were indeed very simple. This was a so-called “one against one” case. The only issue was whether X consented to the sexual intercourse with the Applicant, and whether the Applicant knew that she did not consent to the intercourse or he was reckless as to whether she consented to it. The testimony of X and that of the Applicant on this issue were very clear. Briefly, X was saying that the Applicant falsely claimed himself to be the manager of a modelling agency when he asked to see her. After meeting each other, the Applicant said X had to provide sexual service in return for modelling jobs. X then brought the Applicant home. Upon his repeated requests, X allowed the Applicant to touch and kiss her intimately but never consented to sexual intercourse with him. But after all, the Applicant raped her. The Applicant’s version was entirely different. He said X consented to compensated dating and thus sexual intercourse. When the issue involved was that simple, a copy of X’s statements would not necessarily be required to be shown to the jury according to Yip Chi Keung case.
本案的案情其實十分簡單，是所謂『一對一』的案件。惟一的爭議是X是否同意和申請人性交，以及申請人是否知道X不同意性交或者罔顧X是否同意性交。X和申請人在這點上的口供都十分清晰。簡言之，X說申請人訛稱是模特兒公司經理人，約她見面，見面後申請人說X要以性服務換取模特兒的工作，X然後帶申請人回家，在他再三要求下，X容許申請人親密的觸摸和吻她，但她從沒有同意和他性交；可是最後申請人卻把她強姦。申請人的說法則截然不同，他說兩人是在X同意援交之下性交。既然所涉及事宜是如此樣簡單，根據Yip Chi Keung一案，X的供詞副本便不一定需要給陪審團看。

When Mr Kwan applied to show the jury a full copy of X’s 2 statements, the trial judge did not find it necessary at that moment because even there were quite a number of discrepancies between her statements and evidence in court, relevant important matters could still be highlighted through Mr Kwan’s cross-examination. But then the trial judge made it clear that it depended on the development of the case as to whether it was necessary for the jury to see the copy of X’s statements at a later stage, and that he would keep an open mind. Mr Kwan concurred with the trial judge, continued with his cross-examination of X and made no application to show the copy of X’s statements to the jury again. During cross-examination, Mr Kwan brought up each and every discrepancy between X’s 2 statements and those between her evidence and the statements extensively. Mr Kwan also dealt with these discrepancies in detail in his final submissions to the jury.
當關大律師申請把X兩份供詞的完整副本給陪審團看時，原審法官認為在那一刻並無需要，因為即使供詞的內容和X證供分歧之處不少，關大律師仍可以藉盤問把相關重點一一帶出；但法官表明，稍後是否需要把X的供詞副本給陪審團看，將視乎情況發展而定，他對此持開放態度。關大律師同意法官的做法；之後便繼續盤問X，也沒有再申請要把X的供詞副本給陪審團看。盤問X時，關大律師十分詳盡地引出X兩份供詞之間和她證供與供詞之間的各點分歧。在結案陳詞時，關大律師亦有就這些分歧向陪審團詳細陳述。

Mr Yuen submitted that without showing a copy of X’s statements to the jury, Mr Kwan was unable to cross-examine X smoothly and effectively on whether she consented to the intercourse. Without a copy of X’s statements, it was very difficult for the jury to follow the cross-examination of X, they were easily confused and found themselves at a loss. This ground has no merit. Obviously, even though the jury was not shown the copy of X’s statements, Mr Kwan was still able to conduct his cross-examination on X about the discrepancies in her 2 statements as well as the discrepancies between the statements and evidence of hers adequately and effectively. With Mr Kwan’s cross-examination and final submission, coupled with the detailed summing-up and directions given by the trial judge, the jury should be able to follow and understand fully where the discrepancies in X’s evidence were.
袁大律師說，因為X的供詞副本沒有給陪審團看，令關大律師無法暢順及有效地盤問X是否同意性交；而陪審團沒有X的供詞副本，所以很難掌握X的盤問過程，並且容易令他們困惑，無所適從。這說法不能成立，因為顯然易見的是，即使X的供詞副本沒有給陪審團看，關大律師仍能就X兩份供詞之間和X證供與供詞之間各點的分歧，充分及有效地盤問X；而藉關大律師的盤問和結案陳詞，加上原審法官仔細的總結和指引，陪審團應能充分掌握並了解X證據分歧的所在。

Grounds of appeal 2 & 3
上訴理由二及三

Mr Yuen dealt with these 2 grounds of appeal together in his submissions.
袁大律師陳詞時，把這兩個上訴理由一併處理。

The main argument of Mr Yuen was that the trial judge did not lay explicit and sufficient emphasis on whether X consented to the intercourse and the Applicant’s knowledge as to whether X consented to the intercourse; he failed to make sufficient and comprehensive comments on the discrepancies between the statements and evidence of X; the trial judge did not stress the incredibility of X’s testimony to the jury, instead, he in bland terms downplayed the important points which were most favourable to the defence and hid them among many other factual issues; moreover , the trial judge suggested to the jury views and interpretations justifying those areas which seemed unreasonable or incredible in X’s testimony, thereby making the jury more inclined to accept X’s testimony.
袁大律師主要的論點是，就X是否同意性交，及申請人對X是否同意性交的認知上，原審法官沒有作出明確及充分的點題；沒有就X的供詞和庭上證供之間的出入作出充分及全面的評述；也沒有重點向陪審團提出X庭上證供不可信的地方，反而只是平鋪直述，將那些對辯方最有利的重點淡化及放置於眾多事實爭議之中，並且對X證供中一些表面看來不合理或不可信的地方，向陪審團建議一些合理化的看法和演譯，令陪審團更傾向接受X的證供。

Looking at the whole summing-up, in our view, the trial judge’s directions to the jury were fair, comprehensive and balanced.
本庭認為，從整篇總結詞看來，原審法官對陪審團的指引是公平、全面及平衡的。

First of all, apart from explaining clearly to the jury the legal definition of “rape”, the trial judge did thrice remind the jury that they could not convict the Applicant of rape unless they were sure of the following 4 matters: (1) the Applicant had sexual intercourse with X, (2) X did not consent to the intercourse, (3) the Applicant knew X did not consent to sexual intercourse or he was reckless as to whether she consented to it, and (4) the Applicant could not possibly believe that X consented to the intercourse.
首先，原審法官除了向陪審團清楚解釋「強姦」的法律定義外，還三次提醒陪審團如要裁定申請人強姦罪成，必須要肯定四項事宜：(1) 申請人與X性交，(2) X並不同意性交，(3) 申請人知道X不同意性交或罔顧X是否同意性交，及(4) 申請人沒有可能相信X同意性交。

After that, the trial judge told the jury matters they had to note and consider, and how to deal with the issues of the case in this order: (1) decide first if the Applicant and X had sexual intercourse; (2) then consider if X did not consent to the intercourse; (3) consider if the Applicant really knew that X did not consent to the intercourse or he was reckless as to whether she consented to it only when they were sure of (1) and (2) above.  Insofar as (2) was concerned, the trial judge explicitly told the jury that they had to acquit if they could not feel sure that X definitely did not consent to the intercourse. The trial judge emphasised to the jury that even if they did not believe a single word of the Applicant, they had to acquit unless they were able to come to the conclusion that X definitely did not consent to the intercourse. In respect of (3), the trial judge told the jury precisely that if they thought the Applicant’s version was true or probably true, it would then be difficult to be sure that X did not consent to the intercourse; or even if X did not consent to it, it was not hard to find that the Applicant at least did not know that X did not consent to it, or at least he was probably not reckless as to whether she consented to it, or at least he probably believed X consented. In such cases they had to acquit. This court finds the directions given by the trial judge unambiguous and sufficient. They were also fair and accurate.
然後，原審法官向陪審團指出須顧及和考慮的事情，和如何順序逐一處理案中的議題：(1) 先決定申請人曾否與X性交；(2) 繼而考慮X是否不同意性交；(3) 肯定上述兩項才考慮申請人是否一定知道X不同意性交，或罔顧Ｘ是否不同意。就第(2) 項，原審法官清楚告知陪審團如未能肯定X一定不同意性交，則必須裁定申請人無罪。原審法官向陪審團強調即使他們完全不相信申請人，也必須得出X一定不同意性交這個結論，否則他們必須裁定申請人無罪。就第(3) 項，原審法官亦清楚告知陪審團，如認為申請人對事發經過的描述是真實或可能是真實，則難以肯定X不同意性交，又即使X不同意，亦不難斷定申請人最少不知道X不同意，或最少可能並非罔顧X不同意，或最少有可能相信X同意。在上述情況下，他們就必須裁定申請人無罪。本庭認為，原審發官的指引不但清晰足夠，而且公平正確。

In respect of the discrepancies between X’s statements and evidence, the trial judge provided a comprehensive, detailed and fair summary of all the versions given by X. This court does not think the trial judge ever suggested any justification or interpretation to the jury to make them accept X’s story.
至於X的供詞和證供之間的分歧，原審法官亦全面、詳盡和公平地總結X的所有說法。本庭不認為原審法官有向陪審團建議合理化的看法及演繹，好使他們接受X的說法。

Mr Yuen said that X’s behaviour might make the Applicant think she consented to sexual intercourse, which was a point that the trial judge failed to stress to the jury. This court is of the view that the trial judge’s directions to the jury in this regard were adequate.
袁大律師說，X的行為可能令申請人以為她同意性交，但原審法官卻沒有向陪審團強調這點。本庭認為，原審法官就這方面的證據向陪審團的指引是充分的。

As to the main defence raised by the Applicant that X made a rape complaint as she was probably not happy with his ejaculation inside her, the trial judge said to the jury that they might ask themselves whether X would make a false accusation due to the Applicant’s ejaculation inside her without wearing a condom or she was really raped. Mr Yuen submitted that this was a partial statement. This court does not agree. We find that the words of the trial judge were neutral without any prejudice.
至於申請人的主要辯解，即X可能不滿他在她體內射精，所以投訴被強姦，原審法官向陪審團說，他們可能會問自己X會否因不滿意申請人沒用避孕套而在她體內射精作出虛假指控，還是真的被強姦。袁大律師說這是偏頗的說法。本庭不同意，本庭認為原審法官的說法中性，不帶任何偏見。

Ground of appeal 4
上訴理由四

This ground concerned the inference direction.
這個上許理由涉及推論的指引。

Mr Yuen submitted that on how to draw inference, how to consider if the Applicant was reckless as to whether X disagreed to sexual intercourse and how to consider the change of mind situation, the trial judge gave unclear, inaccurate and confusing directions to the jury.
袁大律師說，原審法官就如何作出推論，如何考慮申請人是否罔顧X是否不同意性交，及如何考慮改變心意的情況，向陪審團發出不清晰，不準確及容易令人混淆的指引。

Strictly speaking, the trial judge needed not give any inference directions as X never said that she consented to sexual intercourse at a certain point of time but changed her mind later. That said, taking it as a whole, this court does not find anything wrong with the “reckless” direction given by the trial judge, nor did it confuse the jury or make the conviction unsafe.
嚴格說來，原審法官其實可以不必就推論給予指引，因為X沒有說過她曾在某階段同意性交，然後改變心意。雖然如此，本庭認為原審法官關於「罔顧」這點的指引，整體而言並無不妥之處，不會混淆陪審團，或令定罪變為不穩當。

Ground of appeal 5
上訴理由五

Mr Yuen submitted that certain comments made by the prosecutor in the final submissions were unfair to the Applicant and might easily confuse the jury, but the trial judge made no clarification and rectification when he gave directions to the jury.
袁大律師說，原審法官就主控官在結案陳詞中作出一些對申請人不公及易令陪審團混淆的論點，沒有在引導陪審團時澄清及修正。

This court has read the transcript regarding the prosecutor’s final submissions. While some of the wordings used by the prosecutor were not that desirable, they were too trivial to cause any unfairness or confusion. More importantly, not only did Mr Kwan never ask the trial judge to make clarification or rectification to the jury, he also tried to refute the prosecutor’s argument at great length in the early part of his final submissions. No doubt the jury was able to understand the arguments of both sides without being confused by the prosecutor’s wordings.
本庭看過主控官結案陳詞的記錄謄本，即使主控官某些用詞不算太理想，但這只屬無關痛癢，不會造成不公或令人混淆之處。更重要的是，關大律師不僅從沒有要求原審法官向陪審團指正或澄清，更在結案陳詞初段便大篇幅地反駁主控官的論點。陪審團當能充分了解雙方的說法，亦不會被主控官的用詞混淆。

Ground of appeal 6
上訴理由六

Mr Yuen submitted that the trial judge should not have given the jury a lies direction.
袁大律師認為，原審法官不應向陪審團作出謊言指引。

What was not in dispute was, the Applicant admitted he told lies in 2 aspects: he used a false name when he contacted X and falsely claimed himself to be a manager of a modelling agency. The trial judge had discussion with both the prosecution and the defence on whether it was necessary to give a lies direction to the jury. The prosecution’s position then was neutral whereas that of the defence was negative since the prosecution was not relying on this to strengthen its case. The trial judge said he was not minded to give “a full lies direction” either. But in order to avoid any improper consideration of the Applicant’s lies by the jury, the trial judge made it clear that even if the Applicant did tell lies, this was neither probative of his guilt nor supportive of the prosecution case. The trial judge also made it expressly clear that whether the Applicant told lies or concealed the truth was a finding of facts which the jury had to make. Should the jury find the Applicant did tell lies or conceal the truth, they could take this into consideration when they dealt with the Applicant’s integrity and the respective mental states of the Applicant and X. The trial judge also specifically reminded the jury that they had to bear in mind the burden of proof was on the prosecution, they could not convict the Applicant unless the prosecution had proved all the ingredients of the offence. Even if the Applicant had told lies or concealed the truth it was not sufficient to support a conviction.
不爭議的事實是，申請人承認曾就兩點說謊，即他和X交往時用了假名字，並且訛稱自己是模特兒公司經理人。原審法官曾和控辯雙方商討是否需要向陪審團作出謊言指引。當時控方立場中性，而辯方則認為不需要，因為控方不依賴申請人曾撒謊而加強控方案情。原審法官亦說沒有打算作出「全面的謊言指引」，但是為免陪審團不當地考慮申請人的謊言，原審法官清楚告訴他們，即使申請人說謊，也不是他有罪的證據，控方案情也不會因此而加強。原審法官亦有向陪審團表明，申請人有否說謊或隱瞞事實是陪審團要作的事實裁斷，如果他們肯定申請人有說謊或隱瞞事實，在處理申請人的誠信和他與X兩人分別的意念時，他們可以將申請人有說謊或隱瞞事實一事考慮在內。原審法官還特別提醒陪審團，必須謹記舉證責任在控方身上，控方必須證明所有罪行元素時，他們才能將申請人定罪，而即使申請人有說謊或隱瞞事實並不足夠支持定罪。

This court is of the view that the directions of the trial judge caused no prejudice to the Applicant, they were indeed ensuring fairness to the Applicant.
本庭認為，原審法官的指引不僅沒有損害申請人的利益，反而是對他公平的做法。

None of the grounds of appeal against conviction can be substantiated and this court refuses the Applicant’s conviction appeal accordingly.
針對定罪的上訴理由無一成立，因此本庭不批準申請人就定罪上訴。

Sentence application
刑期申請

The Applicant raised 2 grounds of appeal: (1) the trial judge neglected the evidence that X did consent to sexual intercourse or intimate acts, and the evidence that the Applicant was caused to believe or mistakenly believe X consented to sexual intercourse or intimate acts; (2) the trial judge neglected the evidence that X changed her mind about consent to sexual intercourse.
申請人提出兩個上訴理由：(1) 原審法官忽略X曾同意性交或親暱行為及忽略一些令申請人相信或誤會X曾同意性交或親暱行為的部份證供；(2) 原審法官忽略X就是否同意性交有改變主意的部份證供。

These 2 grounds were not supported by any evidence. X testified that she consented to certain intimate acts after being persuaded by the Applicant and under the environment created by him; she never agreed to sexual intercourse and got the Applicant to make a “pinkie promise” that there would only be rubbing of genitals. As the trial judge said, the Applicant had used force before he entered her. The circumstances at the material time, the difference in their builds and X’s foolish acceptance of the Applicant’s promise all created the opportunity for the Applicant to take advantage of her. This was in no way a change of mind situation. It should not even be mentioned in the same breath with a change of mind situation. It is clear from the unanimous verdict that the jury accepted what X said. In other words, Mr Yuen’s either argument, that it was possible that X did not object to sexual intercourse or that the Applicant did genuinely believe (or misunderstand) X consented to sexual intercourse, could not be substantiated.
這兩項理由都沒有任何證據支持。X的證供是，在申請人游說和營造的環境下，同意某些親暱行為，但她一直不同意性交，還要申請人「勾手指」承諾只可以性器官磨擦。正如原審法官所說，申請人進入X身體之前已使用了武力，以當時環境，兩人體形的分別，X愚蠢地接受申請人的承諾而讓其有機可乘，完全不是一個改變心意的情況，更不可與改變心意的情況相提並論。陪審團一致有罪的裁定說明，他們接納X的說法。換言之，袁大律師的主張，即X有可能並非不同意性交，或申請人有可能真誠地相信（或誤會）X同意性交，是不可能成立的。

When sentencing, the trial judge took the background of the Applicant as well as the mitigating factors into consideration. What aggravated the case included the Applicant’s evil intent towards X (a 17-year-old F.6 student) at the outset. He created a trap and an environment which were favourable for assaulting X. After gaining X’s trust by various means, he forced himself inside her. The trial judge stressed that the Applicant’s not using a condom and ejaculation inside X had put X in worry that she might get pregnant and infection in her lower parts, for that she had to undergo medical examinations for months. The trial judge noted that the Applicant even tried to defame X at trial by saying she was engaged in compensated dating. That being so, his remorse, if any, would not be a reason for sentence reduction.
在判刑時，原審法官考慮了申請人的背景和求情理由，本案案情嚴重之處，包括申請人一開始就對X（一個17歲的中六學生）圖謀不軌，設下圈套，製造一個有利於侵犯X的環境，積極地施以手段，利用X對他的信任，強行進入X的身體。原審法官強調申請人沒有使用避孕套，更曾在X體內射精，令X憂慮會懷孕及下體會受到感染而進行多個月的檢查。原審法官指出申請人在審訊時仍罔稱X從事援交，毀壞她的名譽，故即使他有悔意，亦不是減刑的原因。

This court agrees to the sentence imposed by the trial judge and his reasons.
本庭認同原審法官的判刑和理據。

This court must say that 6 years imprisonment is in no way manifestly excessive. It is rather lenient indeed.
本庭必須指出，6年的刑期不但並非明顯過重，反而是寬大的刑罰。

Hence the Applicant’s appeal against sentence is also refused.
因此本庭亦拒絕申請人就刑期提出上訴。

Mr Edmond Lee, SADPP, of the Department of Justice, for the Respondent
答辯人：由律政司高級助理刑事檢控專員李俊文代表。

Mr Bernard Yuen, instructed by Yeung Adrian & Cheng, for the Applicant
申請人：由楊永安、鄭文森律師事務所轉聘袁國華大律師代表。