Hon Cheung JA (giving the judgment of the Court):
上訴法庭法官張澤祐頒發上訴法庭判案書：

The applicant was indicted on seven counts of sexual offences.  After trial before D. Pang J sitting with a jury, he was found guilty of five of the counts and was sentenced to eight years’ imprisonment.  He applies for leave to appeal against both conviction and sentence.
申請人被控7項控罪。案件經高等法院原訟法庭法官彭偉昌及陪審團審理後，申請人被裁定其中5項罪名成立。申請人被判8年監禁。申請人就定罪及刑期提出上訴許可申請。

The Five Convictions
五項定罪

Four of the five counts of which the applicant was found guilty concerned a girl X, who was under the age of 16. Three of these counts, namely the 1st,, the 3rd and the 5th counts, alleged that the applicant had sexual intercourse with X, a girl under the age of 16 years, contrary to sections 124(1) and 153P(1) of the Crimes Ordinance, Cap. 200, Laws of Hong Kong (“the Ordinance”).  Another count which involved X, namely the 6th count, alleged that the applicant engaged in indecent conduct towards a child under the age of 16 years, contrary to sections 146(1) and 153P(1) of the Ordinance.  The remainder count, namely the 7th count, was concerned with another girl under the age of 16, Y, and alleged that the applicant indecently assaulted Y, contrary to sections 122(1) and 153P(1) of the Ordinance.
上述5項定罪的其中4項是涉及一名年齡16歲以下的女童X。這些控罪的其中3項(即控罪1、3、5)指申請人與年齡在16歲以下的女童X性交，違反《刑事罪行條例》(香港法例第200章) (《條例》)第124(1) 及153P(1) 條。涉及X的另一項控罪(即控罪6)是指申請人向年齡在16歲以下的兒童作出猥褻行為，違反《條例》第146(1) 及153P(1) 條。餘下的一項定罪(即控罪 7)是涉及另外一名年齡在16歲以下的女童Y。控罪指申請人猥褻侵犯Y，違反《條例》第122(1) 及153P(1) 條。

Particulars of the offences
控罪詳情

The particulars of offence of the 1st, the 3rd and the 5th counts were as follows:
控罪1、3、5的控罪詳情如下：

1)The 1st count: The applicant, on a day unknown between the 1st day of September, 2005 and the 31st day of March, 2007, being a Hong Kong permanent resident, at Fo Xin Hostel, No. 8 Xiang Shan Xin Street, Xiangshan Town, Menghai County, Xishuangbanna, Yunnan Province, China, had unlawful sexual intercourse with X.
1)控罪1：申請人於2005年9月1日至2007年3月31日期間的某日，身為香港永久性居民，在中國雲南省西雙版納州勐海縣象山鎮象山新街8號「佛馨旅舍」，與X非法性交。

2)The 3rd count: The applicant, on a day unknown between 1st day of September 2006 and 31st day of July, 2007, being a Hong Kong permanent resident, at Bulangshan Nong Mao Market Reception House, Menghai County, Xishuangbanna, Yunnan Province, China, had unlawful sexual intercourse with X.
2)控罪3：申請人於2006年9月1日至2007年7月31日期間的某日，身為香港永久性居民，在中國雲南省西雙版納州勐海縣「布朗山農貿市場招待所」，與X非法性交。

3)The 5th count: The applicant, on a day unknown between the 1st day of August, 2006 and the 31st day of July, 2007, being a Hong Kong permanent resident, at Ren Ai Children Home, No. 20 Jinlong Road, Xiangshan Town, Menghai County, Xishuangbanna, Yunnan Province, China, had unlawful sexual intercourse with X, a girl under the age of 16 years.
3)控罪5：申請人於2006年8月1日至2007年7月31日期間的某日，身為香港永久性居民，在中國雲南省西雙版納州勐海縣象山鎮景龍路20號「仁愛兒童之家」，與年齡在16歲以下的女童X非法性交。

The particulars of offence of the 6th count were that the applicant, on a day unknown between the 1st day of January, 2006 and the 31st day of August, 2007, being a Hong Kong permanent resident, at Ren Ai Children Home, No. 20 Jinlong Road, Xiangshan Town, Menghai County, Xishuangbanna, Yunnan Province, China, committed an act of gross indecency towards X.
控罪6的控罪詳情是申請人於2006年1月1日至2007年8月31日期間的某日，身為香港永久性居民，在中國雲南省西雙版納州勐海縣象山鎮景龍路20號「仁愛兒童之家」，向X作出嚴重猥褻行為。

The particulars of offence of the 7th count were that the applicant, on a day unknown between the 1st day of August, 2005 and the 31st of July, 2007, being a Hong Kong permanent resident, at Ren Ai Children Home, No. 20 Jinlong Road, Xiangshan Town, Menghai County, Xishuangbanna, Yunnan Province, China, indecently assaulted Y.
控罪7的控罪詳情是申請人於2005年8月1日至2007年7月31日期間的某日，身為香港永久性居民，在中國雲南省西雙版納州勐海縣象山鎮景龍路20號「仁愛兒童之家」，猥褻侵犯Y。

The jury unanimously found the applicant guilty of the 1st, the 3rd, the 6th and the 7th counts.  In respect of the 5th count, the jury found him guilty by a majority verdict, which was 5 to 2.
除控罪5是陪審團以5比2裁定申請人有罪外，陪審團就控罪1、3、6及7均一致裁定申請人有罪。

Sentence
刑期

For the 1st, the 3rd and the 5th counts, D Pang J imposed a sentence of four years’ imprisonment; for the 6th count, one year and six months’ imprisonment and for the 7th count, two years’ imprisonment.  One year of the terms of each count was to be served consecutively to the terms of other counts, making a total sentence of eight years’ imprisonment.
就控罪1、3及5，彭法官將刑期定為4年監禁，控罪 6定為1年6個月監禁，控罪7定為2年監禁，每項控罪的刑期的其中1年與其他控罪的刑期分期執行，總刑期為8年。

Persons involved in the case
涉案人物

The applicant was a permanent resident of Hong Kong.  He set up the Ren Ai Children Home (“the Centre”) in Xishuanghana, Yunnan, on the Mainland, to take care of orphans and children who needed assistance.  The applicant had the right to decide who could reside in the Centre and who could receive financial assistance, including assistance for enabling the recipient to receive education.  Twenty odd children were taken care of and provided for by the Centre.  The applicant visited the Centre about three times a year, and stayed there for one to two weeks each time.  When he stayed there he occupied a room on the 2nd floor of the Centre.
申請人是一名香港永久居民。他在內地雲南西雙版納象山鎮設立一間「仁愛兒童之家」(「該中心」)，照顧一些孤兒或需要協助的兒童。申請人有權決定誰可以入住該中心或接受資助，包括接受教育的資助。該中心撫養大約二十多名兒童。申請人每年前往該中心約三次，每次停留約一至兩星期，期間申請人居住在該中心二樓的一間房間。

X was a child inmate of the Centre.  She was born on 1 April 1994. Y was born on 20 April 1992.  X was molested by the applicant at a time between 1 September 2005 and 31 August 2007 when X was 11 to 13 years old.  The incidents took place between the first term of X’s primary 5 school year and the second term of her primary 6 school year.
X是該中心的院童。她的出生日期是1994年4月1日。Y的出生日期是1992年4月20日。X被申請人侵犯的時段是2005年9月1日至2007年8月31日之間。當時X是11至13歲之間。事件發生於當X就讀小學五年級的上學期至小學六年級下學期之間。

Y was also a child inmate of the Centre.  She was molested at a time between 1 August 2005 and 31 July 2007.  The facts alleged by the prosecution were that the molestation took place during the second term of her primary 6 school year when she was 15 years old.
Y亦是該中心的院童。她被侵犯的時間是發生於2005年8月1日至2007年7月31日。控方依賴的事實是她被侵犯的時候是就讀小學六年級下學期，年齡是15歲。

We adopt the summary of the prosecution case and the defence case as presented by Ms. Virginia Lau, Senior Public Prosecutor, representing the respondent, to which we supplement:
本庭採用代表答辯人的高級檢控官劉少儀所簡述的控辯雙方案情及加以補充：

Prosecution case
控方案情

1st count
控罪1

1)X (PW2) was video-interviewed by the police on 7 April 2009.  At that time she was studying in junior [secondary] 2.  The account she gave was that because she was a child of a poor family, she was sent by the government to the Centre when she was in primary 3.  Later, when she was in primary 5, the applicant began to provide her with bank cards, mobile telephones, MP3s and pocket money.  Gradually she became used to it and accepted gifts and money without thinking about what consequences that would lead to.
1)X(PW2)在2009年4月7日與警方進行錄影會面。她當時讀初二。她說由於家貧，在小學三年級時被政府送去該中心，後來在五年級時，申請人開始將銀行卡、手機、MP3同零用錢等等提供給她。慢慢她便習慣了，從來都不問後果就收下禮物和金錢。

2)One day at noon during the second term of X’s primary 5 school year, she went to the Centre.  She did not see the applicant.  Then she telephoned him to ask him to come back for lunch, but she learnt that he was with an old female inmate called Huiming [transliteration of 輝明]. Huiming asked X to go to Fo Xin Hostel, which was in the vicinity, to meet her.  When X got to the hostel, Huiming said that she was hungry and the applicant told her to go to buy some bread.  Huiming was away for a long time and still did not come back.  The applicant made use of this opportunity and had sexual intercourse with X in a room.  X said that the applicant forcibly removed her clothes.  She resisted and told him to go away but she was weaker than him in terms of physical power, so in the end he penetrated into her private parts.
2)她讀五年級，應該是下學期的某一天中午，X返回該中心，見不到申請人，她打電話叫他回來吃午飯。但得悉他原來與一名舊女院友“輝明”在一起，而“輝 明”亦叫X去附近的「佛馨旅舍」見面。X到了旅舍後，“輝 明”說肚餓，申請人便叫她去買麵包，但“輝 明”一去便去了很久，而申請人就趁機在房內與X發生性行為。X說當時申請人強行將她的衣服脫去。她反抗，叫他走開，但不夠申請人力大，故此最後被申請人插入下體。

3rd count
控罪3

3)The applicant told three girls, namely X, Wang Zhilan and Y to join him to accompany an inmate called Jiao Jiao [transliteration of 嬌嬌] to her hometown.  Subsequently they stayed overnight at Bulangshan Nong Mao Market Reception House.  The applicant and the girls occupied the same room, in which there were three beds.  Wang Zhilan and Y each slept on one bed, while X and the applicant slept on the remaining one.  After supper, they came back and sat on the beds to watch television.  When Wang Zhilan and Y seemed to have gone asleep, the applicant touched X with his hands, took off her trousers and had sexual intercourse with her.  He did not use any condom.  He ejaculated on X’s belly and then cleaned himself with paper.  It seemed that the television was on when this was happening.  The applicant did not say anything and the sexual intercourse position was the man lying on top of the girl.
3)申請人叫X、“王 志 蘭”同Y三個女童，與他一同送一名叫“嬌 嬌”的院友回鄉，後來在「布朗山農貿市場招待所」留宿，申請人和她們共住一房間，內有三張床。“王 志 蘭”和Y各自睡一張，X和申請人睡在另一張。吃完晚飯回來後他們坐在床上看電視。“王 志 蘭”同Y好像睡著了，申請人便伸手摸X，除掉她的褲與她性交。申請人沒有用避孕套，他在X的肚皮射精，然後再用紙替自己清潔，期間電視好像開著，而申請人就沒有講過什麼，性交的動作是男上女下。

4)Wang Zhilan gave evidence that during the first night of their stay at Bulangshan, she saw that the applicant and X slept on the same bed and that some bodily movements, which appeared to be sexual intercourse movements, were going on under the quilt.
4)“王 志 蘭”作供時稱在布朗山第一晚留宿時，看見申請人和X睡在同一張床及在被下進行疑似性交的動作。

5th count
控罪5

5)The applicant and X had sexual intercourse also in the Centre.  [She] could not remember how many times there had been, or the circumstances in which the first time happened.  The occasion of which she had the clearest memory was that one day she went to the applicant’s room to play with the computer.  She played for a long time until one o’clock in the small hours.  The applicant, after cleaning his face and brushing his teeth, entered the room and locked the door.  He told X not to leave and asked her to stay and sleep with him.  X said she wanted to play a while longer, using that as an excuse for not doing what he said, but the applicant simply switched off the computer.  At last, X gave in to the applicant’s persuasion.  She stayed in the room and lay on the bed with the applicant, who kissed her mouth to mouth, caressed her, removed her clothes and made love to her, proceeding in the same position as usual, i.e. the applicant on top of X.  Finally, he ejaculated on X’s thigh.  Then [they] cleaned [themselves] and they slept together in the room until daybreak.  In the course of doing this, the applicant did not say anything.
5)在該中心裡面X和申請人亦發生過性行為，次數不記得，第一次如何發生亦不記得。但最記得有一次是X去申請人房間玩電腦，玩了很久直至凌晨一點，申請人洗面、刷牙後入房鎖門，叫X不要走，留下陪他睡，X推搪說要再玩一會，申請人就索性連電腦都關掉，終於經過一輪說服之後，X留下和申請人在床上親嘴、愛撫、寬衣、性交，姿勢同往常一樣，男上女下，最後申請人在X大腿射精，接着清洗，一齊在房內睡到天光，期間申請人沒有說話。

6)X said that when the above happened, it was probably the second term of her primary 6 school year, and that the weather was a bit cold at the time.
6)X說事發時，她應該是讀6年級下學期，當時天氣有少少冷。

6th count
控罪6

7)Besides having sexual intercourse with X, when the applicant was having video chats with her on line, there were occasions on which the applicant told X to strip herself and also on which the applicant exposed his private parts to X and even masturbated himself, leading to ejaculation.  This happened two or three times in total.  On one occasion, other people were present and they saw images transmitted through the internet, showing what the applicant was doing.  In the Centre, only the applicant’s room was equipped with a computer.  When he was in Hong Kong and wanted to call the people of the Centre together for a meeting, he would telephone the Centre to ask them to switch on the computer so that he could talk with them.  X had a key to [the door of] the applicant’s room, so she could often enter the room to play and could also ask her friends to come to accompany her. One night during the first term of her primary 6 school year, X asked Y and Wang Zhilan to sleep with her in the applicant’s room.  On that occasion, X chatted with the applicant through the internet and what described above took place.  X and Yang Gaiying, the housekeeper of the Centre, each had a key to [the door of] the applicant’s room, but other people did not.
7)除性交之外，申請人曾經在網上用視頻和X談話時要她除衫，申請人亦試過向X展示下體，甚至自瀆、射精，這情況一共試過兩、三次。有一次還有其他人在場看到申請人在網上的行為。該中心只有申請人的房間有電腦，如果他在香港，但又想召集該中心的人開會，就會打電話過來叫他們開電腦，進行對話。由於X有申請人的房間鎖匙，她可以經常入去玩，亦可叫朋友陪她。在6年班上學期的某一晚，X叫Y和“王 志 蘭”陪她在申請人房間睡時，X與申請人在網上傾談並發生上述的情況。X和該中心保姆“楊 改 英”各自擁有一條申請人房間鎖匙，其他人則沒有。

8)Both Y and Wang Zhilan gave evidence that on the night in question they saw that on the computer screen the applicant exposed his private parts to X.  Wang Zhilan and Yang Gaiying also said that they had seen X and the applicant going together into the bathroom to take a bath.
8)Y和“王 志 蘭”作供時均稱當晚她們看見申請人在電腦屏幕上向X展露下體。“王 志 蘭”和“楊 改 英”亦說他們曾看見X和申請人一起進入衛生間洗澡。

9)X said that she called the applicant sworn father and looked upon him as a benefactor because he had helped her.  The applicant went to the Centre three or four times a year; mostly at the time of the payment of school fees at the beginning of a school term.  According to X, sexual intercourse had taken place in the Centre for more than 10 times.  On some of these occasions the applicant asked X to stimulate his private parts by her hands or her mouth, but X helped him by using only her hands.
9)X說她叫申請人做乾爹，視他為恩人，因為受過申請人的幫助。申請人一年返該中心三、四次，主要在新學期交學費時。X還說在該中心裡面發生性行為次數超過十次，性交時申請人曾試過要求X用手或口刺激他的下體，不過X就只是用手幫他。

10)A forensic pathologist examined X on 8 April 2009 and found that her hymen had been completely torn in the past.  The condition of the tear showed that something, perhaps a penis, had definitely pierced the hymen, resulting in the damage.
10)法醫在2009年4月8日檢查X，發現X的處女膜已於過往完全地撕裂，根據撕裂的情況，可以斷定之前曾有例如陰莖的物件穿過處女膜造成損害。

7th count
控罪7

11)Y moved into and lived in the Centre in 2005 when she was studying in primary 5 and she left there after primary 6.  Sometime between 7 and 8 p.m. one day during the second term of her primary 6 school year, when Y and Huiming were sleeping in the lower bunk of a bunk bed in a room on the second floor, the applicant suddenly entered the room and fondled Y’s breasts with his hands.  Y resisted but she was weaker in strength than the applicant.  After a while, he left on his own.
11)Y在2005年讀小五時入住該中心並在小六後離開該處。小六下學期一個晚上7、8時，當Y和“輝 明”在2樓房間內一張碌架床下格睡時，申請人突然進入房間並用雙手撫摸Y的胸部。Y反抗但不及申請人大力。過了一會，申請人便自行離開。

Defence case
辯方案情

12)The applicant gave evidence and he denied all these accusations.  He contracted poliomyelitis when he was one year old.  His legs became crippled and he needed supporting equipment in order to walk.  A doctor advised him to use a walking frame, but due to his sense of inferiority, he thought that the sight of his using it did not look nice, so he did not use it.  However, he had been using a walking stick for 20 years or so.  Without it his movements would have been much restricted and he would have become prone to fall or tumble because his left leg was completely strengthless.
12)申請人作供否認上述指控。他在一歲時染上小兒麻痺，雙腳殘疾，要用器材輔助行路。醫生亦叫他用腳架，但因他自卑覺得不好看便沒有用。但他用了十多二十年拐杖，否則行動會不方便，容易跌倒，因為他的左腳完全沒有力。

13)During each visit to the Centre, he would stay for about two weeks; but more than half of the time would be spent on making visits outdoors.  He would take photographs and make reports about his visits.  After doing these, he would send emails to the sponsors and upload the information onto the internet.  After he returned to Hong Kong, he would store the photographs in the computer.  The dates and captions of the photographs were determined and designed according to the information contained in the files which were made for the purpose of keeping the photographs taken during each of his journeys; for example, the period during which he took Jiao Jiao to her hometown in Buhangshan was 4 to 6 May 2007.
13)申請人每次返回該中心大約逗留兩星期，不過超過一半時間會在外面探訪。他會拍照及做探訪報告，之後發電郵給贊助人和將資料放上網。他回港後會將有關相片下載電腦。而每張相片的日子及標題是根據為收錄每次行程的相片而製作的文件夾內的資料得出來的。例如他帶“嬌 嬌”返回布朗山鄉下就是2007年5月4至6號。

14)The applicant claimed that he had never told any child in the Centre to go into the bathroom and stay inside together with him.  He said he had only asked some children in the Centre to bring some articles of everyday use into the bathroom to give them to him so that he could take a bath.
14)申請人稱他從來沒有叫過任何院童一齊入去衛生間逗留。他只曾叫過院童遞日用品入衛生間給他洗澡。

15)According to him, in September 2006 X, Y and Huiming were all in the Centre, but during the period in which the applicant visited the Centre two times (i.e. between November 2006 and February 2007) Huiming was gone.  As far as he knew, Huiming did not want to go to school, she wanted to look for a job instead.  As for X, she returned to her hometown upon completion of primary 6, because her academic performance was poor and she assaulted someone in the Centre.  The applicant did not really expel her from the Centre.  He just wanted her to go to Menhhai Secondary School to be a boarder, but X did not want to go there and she made her own decision to return to her hometown in Menghai.
15)他亦說在2006年9月，X、Y同“輝 明”都在該中心，不過“輝 明”就在申請人兩次返回該中心期間走了(即2006年11月至2007年2月)，據知“輝 明”不想讀書，要找工作。至於X，她在完成小六之後便返回鄉下，因她成績差及在院內打人。申請人沒有真的趕她走，只是要她去勐海中學寄宿，X不願意才自己決定返回勐滿家鄉。

16)He said that on one occasion Wang Zhilan and Y refused to give help to move some articles and were sternly reprimanded by him.  Apart from that, when Wang Zhilan was at the junior secondary education stage, she had poor academic results and her manners were bad.  For these reasons she was sent to a boarding school, but subsequently she returned to the Centre.  Similarly, after Y finished primary education, she was criticized by her teacher for her bad academic performance and was even told by her teacher that she should not go to school anymore.  It was only because the applicant interceded for her that she could continue to receive education.  Subsequently, however, Y chatted on the phone all day long and was scolded by the applicant.
16)他亦說有一次“王 志 蘭”和 Y不肯幫手搬東西，他嚴厲斥責他們。此外，“王 志 蘭”曾經在初中時段成績差、態度欠佳，被送去寄宿學校，之後才返回該中心。同樣，Y讀完小學之後，老師嫌她成績差，叫她不要再讀，最後要申請人幫她求情才可以繼續升學，但之後Y又整天傾談電話，所以給申請人責駡。

17)Regarding the incident in Bulangshan Nong Mao Market Reception House, the applicant stated that according to the information stored in the computer files, the journey should have taken place from 2 to 4 May 2007.  As Jiao Jiao was only 7 years old, the applicant worried that he could not take care of her properly due to the difficulties he had in getting about.  He therefore asked the children in the Centre who would like to go with him.  The result was that X, Y and Wang Zhilan were willing to go with him.  It was a long journey and Jiao jiao’s home was not big enough to accommodate all of them, so the itinerary he worked out was that for two nights they would sleep in a hostel.  At night, he alone slept on the bed closest to the door, while the other two beds were allocated by the three girls themselves.  The activities for the following day were that they first went to a restaurant to have lunch and then to Jiao Jiao’s home to play.  They returned to the hostel after supper.  Nothing happened on that night just as nothing happened on the first night.  They left early in the morning on the third day.
17)就「布朗山農貿市場招待所」事件，申請人聲稱根據電腦文件夾資料顯示那次行程應該是2007年5月2至4日。因“嬌 嬌”只得7歲，申請人怕他自己行動不便，照顧不到她，故此問院童誰有興趣同行，結果是X、Y同“王 志 蘭”願意同行。由於路途遠，所以原本已經打算住兩晚旅館，因為“嬌 嬌”家不夠地方招呼他們。晚上是他一個人睡最近門口的那張床，其餘兩張床則由三名女童自行分配。至於第二天行程，就是先到餐館午飯，然後再去“嬌 嬌”家裏玩耍，食完晚飯後返回旅館，當晚同第一晚一樣，沒有任何事發生，第三日早上他們一早就離開。

18)In the Centre, any bodily contacts the applicant had with the children were limited to those necessary in their daily life and in their games, and absolutely nothing more than that.  The computer in his room was used for two purposes: 1. To show, through its connection with the closed circuit TV, what was going on at the main door on the ground floor and in the sitting rooms on the two storeys; 2. To talk, chat or hold meetings with individual inmates or all the inmates through the video chatting function.  He denied he had ever used it to expose his private parts.  He protested that the Fo Xin Hostel incident was sheer fiction.  He said he had never been to that place and had not even heard of it.
18)在該中心內，申請人與院童的身體接觸只限於生活和玩耍的層次，絕無其他。他房內的電腦就有兩個功能：一，透過閉路電視看到地下大門與兩層大廳的狀況；二，透過視頻與個別或所有院童談話、閒談或者開會，露體則絕對沒有。申請人亦說「佛馨旅舍」事件根本是子虛烏有，他從沒有聽過或去過該地方。

19)The applicant explained that he gave more money to X than to others because he wanted to financially support the elder sister and other family members of X.  He said another inmate, who was called Hui Zi, also had a bank card.  At the early stage of Yang Gaiying’s service at the Centre, he was not sure how long Yang Gaiying would work there, so he gave the bank cards to X and Hui Zi.  These two children were more senior in age and had a sense of responsibility.  He let them have the cards as a precaution against contingencies.  As for the keys to the door of his room, initially only Yang Gaiying had a key.  However, she was lazy and she just gave it to the inmates so that they could take turns to enter the room to clean it, and as a result the key was lost.  Subsequently, he had a number of duplicate keys made and X said she had one of them.
19)申請人解釋他給X的錢比其他人多，原因是他要資助X的姊姊及家人，另外一名院童“會 支”亦有一張銀行卡，因“楊 改 英”初到該中心工作時，他不知道“楊 改 英”會做多久所以把銀行卡交給X和“會 支”，兩名年齡較大及有責任心的院童負責以備急時之需。至於他的房門匙，原本只有“楊 改 英”一個有，不過因她懶，直接交給院童輪流入去打掃而不見了，後來配多幾條，X便聲稱擁有其中一條。

20)He said that the rent for renting a room at the hostel at Bulangshan was low, just 30 to 40 yuan per night, but he rented one room only.  He said the reason was that he had to take care of the children.
20)他亦說儘管布朗山的旅館租金很平宜，三至四十元一晚，他只租一間房間的原因是要看管小朋友。

21)Lastly, the applicant claimed that starting from 2002 he had problems concerning erection.  In 2004, he sought treatment as an outpatient.  In 2006, he was treated at the urological department.  Acting on the advice given by the doctor, he took Viagra, but it was too expensive and the side effect was too strong.  After discussion with his wife, he decided to stop using it.
21)最後申請人聲稱他在2002年開始有勃起問題，2004年看街症，至2006年看秘尿科，結果經醫生建議，他試過服用「偉哥」，不過價錢太貴，副作用太大，所以他和太太商量過後決定不繼續服用。

22)Doctor Chan, the second defence witness, gave evidence that from March 2000 up to the present the applicant was a patient of the orthopaedics department of Pamela Youde Nethersole Eastern Hospital.  His medical history showed that due to poliomyelitis, both of his legs were weak, particularly the left leg, and that he had to walk with the support of a walking stick.  The result of the assessment of the strength of his left leg and right leg was respectively point 3 and point 4.  Point 3 meant that he was able to stand up to gravitation, i.e. he could walk.  Point 4 meant that he could resist some outside forces other than gravitation; for example, the doctor using his hand to obstruct his walking movement.  If he could completely kick away the doctor’s hand, that was point 5, which meant completely normal.
22)辯方第2證人陳醫生說，申請人在2000年3月到現在都是東區那打素醫院骨科的病人，而根據病歷顯示，由於小兒麻痺症，申請人兩條下肢都較弱，尤以左腳為甚，要用手杖來輔助行路。他左右兩隻腳的力量評分依次為三分及四分，三分的意思是可以抗拒地心吸力，即可以行路，四分就是能夠抗拒地心吸力以外的一些外來力量，例如醫生伸手去阻擋腳步，如果完全可以踢開醫生隻手就是五分，完全正常。

23)Dr. Chan said that when the applicant completely stood still, he could stand in that position for five to six minutes without the support of a walking stick; but that if he bent from the waist and in addition someone gave him a push, it would be very difficult for him to keep his balance; and that if he wanted to squat down, he would encounter even greater difficulties.
23)陳醫生說申請人在沒有拐杖幫助下站立五、六分鐘，在完全企定的情況下是可以的，但如果要彎腰，再加上有人推他一下，他就好難保持平衡，如果要蹲下就更加困難。

24)Dr. Chow, the third defence witness, testified that the applicant was referred by the Chaiwan Clinic in October 2004, that he came to the urological department of Pamela Youde Nethersole Eastern Hospital for treatment for the first time in March 2006, and that he was diagnosed as suffering from moderate degree erectile dysfunction.  The meaning of moderate degree was that he could not succeed in having sexual intercourse every time he wanted, but this did not mean that he failed every time.  He could, for example, be successful five times out of ten.  However, that was the result of medication.  Dr. Chow had no idea as to what his condition was before any medicine was prescribed for him or how he would perform without taking any medicine.  The medicine in question was actually Viagra.  Dr. Chow said that in all other aspects the applicant was normal; that is to say, there were no other reasons which led to his impotence except idiopathic causes.
24)辯方第3證人周醫生證實，申請人2004年10月由柴灣診所轉介，2006年3月首次到東區那打素醫院秘尿科投診，最後被評定有中度勃起障礙，中度的意思就是不能每次都成功性交，不過亦不是每次都會失敗，例如十次就有五次好成功，不過是藥物治療下所得出的結果，至於未處方之前情況和沒有食藥的情況下是如何，周醫生就不清楚。有關藥物其實就是俗稱「偉哥」。此外，醫生說申請人其他一切正常，亦即是沒有自發性以外的原因令他陽痿。

Grounds of appeal
上訴理由

The applicant put forward five grounds of appeal, of which grounds 2 and 3 are about matters of principle, in that ground 2 is about the constitutionality of the offences and ground 3 alleges that the applicant did not have a fair trial; while the other three grounds are about issues concerning the contents of each individual offence.
申請人提出5項上訴理由。其中上訴理由2是涉及各項控罪違憲及上訴理由3是申請人沒有獲得公平審訊的原則性爭議。另外，其他3項上訴理由則涉及各項控罪個別內容的爭議。

1)Ground of appeal 2: Unconstitutionality of the Offences
1)上訴理由2：控罪違憲

(1)Section 153P of the Ordinance
(1) 《條例》第153P 條

Section 153P of the Ordinance provides that:
《條例》第 153P 的內容如下：

“153PExtra-territorial effect of sexual offence provisions listed in Schedule 2
「153P附表2所列性罪行條文的域外法律效力

Certain sexual offences committed against children outside Hong Kong; related arrangements and advertisements
某些在香港以外地方對兒童犯的性罪行；相關安排及宣傳

(1)Where –
(1) 凡—

(a)(i)a person who is a Hong Kong permanent resident or who ordinarily resides in Hong Kong;
(a) 任何—

(ii)a body corporate that is incorporated or registered in Hong Kong; or
(i) 身為香港永久性居民或通常居於香港的人；

(iii)a body of persons, whether corporate or unincorporated, that has a place of business in Hong Kong,
(ii) 在香港成立或註冊的法人團體；或

commits any act outside Hong Kong; and
(iii) 不論是法團抑或不是法團的在香港有業務地點團體，在香港以外地方作出任何作為；而

(b)the act –
(b) 該作為—

(i)would have constituted an offence under any of the provisions specified in Schedule 2 had it been committed in Hong Kong; and
(i) 假若是在香港作出即構成附表2指明的任何條文所訂罪行；及

(ii)is committed in relation to a person under the age of 16 or in the case of an offence under section 123 or 140, under the age of 13,
(ii) 是就未滿16歲的人或(如屬第123或140條所訂罪行)未滿13歲的人而作出的，

then the person or body shall be guilty of that offence.
該人或該團體即屬犯該罪行。

(2)Where any person or body of persons, whether corporate or unincorporated, commits any act outside Hong Kong that –
(2) 凡任何人或任何不論是法團抑或不是法團的團體在香港以外地方作出任何作為，而該作為—

(a)would have constituted an offence under any of the provisions specified in Schedule 2 had it been committed in Hong Kong; and
(a) 假若是在香港作出即構成附表2指明的任何條文所訂罪行；及

(b)is committed in relation to a person who is a Hong Kong permanent resident or who ordinarily resides in Hong Kong and is –
(b) 是就身為香港永久性居民或通常居於香港且—

(i)under the age of 16; or
(i) 未滿16歲的人；或

(ii)in the case of an offence under section 123 or 140, under the age of 13,
(ii) (如屬第123或140條所訂罪行)未滿13歲的人，

then the person or body shall be guilty of that offence.
而作出的，該人或該團體即屬犯該罪行。

(3)Where a defendant is charged with an offence that is an offence by virtue of subsection (1) or (2) and involves a sexual act done by him with or to another person, it is a defence for the defendant to establish that –
(3) 凡被告人被控犯某項憑藉第(1)或(2)款而構成的罪行，而控罪涉及被告人與另一人或對另一人作出性行為，則如被告人證明以下情況，可以此作為免責辯護—

(a)at the time of the sexual act, there existed between the defendant and that other person a marriage that was valid, or recognized as valid, under the law of –
(a) 在該性行為作出時，被告人與該另一人之間存在根據以下法律屬有效或獲承認為有效的婚姻—

(i)the place where the marriage was solemnized;
(i) 舉行婚禮的地方的法律；

(ii)the place where the sexual act was done; or
(ii)作出該性行為所在地方的法律；或

(iii)the place of the defendant’s residence or domicile;
(iii)被告人的住所或居籍的所在地方的法律；

(b)when it was solemnized, the marriage was genuine; and
(b) 在舉行婚禮時，該婚姻是真實的；及

(c)at the time of the sexual act, that other person consented to the sexual act.”
(c) 在該性行為作出時，該另一人同意該性行為。」

The provisions listed in Schedule 2 include section 124 (i.e. intercourse with girl under 16), section 146 (i.e. indecent conduct towards child under 16) and section 122 (i.e. indecent assault) of the Ordinance.
附表 2 所列出的條款包括《條例》第 124 條(即「與年齡在 16 歲以下的女童性交」)，第 146 條(即「向年齡在 16 歲以下的女童作出猥褻行為」)及第 122 條(即「猥褻侵犯」)。

(2)Background of the legislation
(2)  立法背景

Section 153P of the Ordinance originated from the Crimes (Amendment) Bill 1999, which was introduced into the Legislative Council on 7 July 1999 and eventually became law and was gazetted in 2003.  We set out below relevant passages quoted from the Legislative Council Brief submitted by the Security Bureau to the Legislative Council on 8 January 2002:
《條例》第 153P 條源自《1999 年刑事罪行(修訂)條例草案》，它於 1999 年 7 月 7 日提交立法會，最終於 2003 年立法及登憲。本庭節錄「保安局」於 2002 年 1 月 8 日提交的「立法會參考資料摘要」的其中相關內容：

“General Background
「一般背景

United Nations Convention on the Rights of the Child (UNCRC)
聯合國《兒童權利公約》

3.Under Article 34 of the UNCRC, which applies to Hong Kong, children should be protected from all forms of sexual exploitation and sexual abuse.  Enacting legislation which prohibits child pornography and child sex tourism will be a positive step to implement the UNCRC.
3．根據適用於香港的聯合國《兒童權利公約》的第34條，兒童應該受到保護，免被利用進行各類色情活動和免遭性侵犯。制定法例禁止兒童色情物品和涉及兒童的性旅遊活動，是執行上述公約的積極步驟。

……
……

Child Sex Tourism
涉及兒童的性旅遊活動

7.Sexual exploitation of children is known to have international dimensions.  Child sex tourism, that is, arrangements which enable adults to travel from their home countries to other places, in particular less-developed places, to engage in sexual activities involving children, is known to exist around the world.  A number of countries, including Australia, the United States and many European countries, have enacted specific legislation against child sex tourism.
7.利用兒童進行色情活動，可牽涉不同國家。據悉世界很多地方都有涉及兒童的性旅遊活動，即安排成年人離開本土前往其他地方，特別是較落後的地方，進行涉及兒童的色情活動。而很多國家，包括澳洲、美國和歐洲多國，都已有專門法例，打擊這類活動。

8.Hong Kong, through regular liaison with overseas law enforcement agencies, has been maintaining a close watch on the problem and assisted in the investigation of a number of cases.  However, the Crimes Ordinance does not prohibit local residents from exploiting children sexually in other places.  Nor does it provide protection to local children who may be abducted outside the territory and become targets of child sex tours.  Given the heinous nature of child sex tours and the need for joint international efforts, legal sanctions must be imposed on perpetrators who prey on local or overseas children.  We therefore propose to introduce legislative amendments to provide extra-territorial effect to certain sexual offences under the Crimes Ordinance in respect of acts committed to children where the perpetrator or the victim has a nexus with Hong Kong.
8.香港透過與海外執法機關定期聯絡，一直嚴密監察這方面的問題，並曾協助調查多宗這類案件。儘管如此，《刑事罪行條例》既沒有禁止香港人到外地利用兒童進行色情活動，也沒有條文保護本港兒童免在外地被誘拐，而淪為兒童性旅遊活動的受害者。由於這類活動極為罪惡，需要各國合力打擊，故我們必須透過立法，對踩躪本港或海外兒童的犯罪者施以制裁。因此，我們建議修訂法例，就《刑事罪行條例》所指的若干性罪行、如涉及與香港有關係的犯罪者或受害者的侵犯兒童行為，訂定域外法律效力。

……
……

Proposals relating to child sex tourism
有關涉及兒童的性旅遊活動的建議

22.We propose to extend the application of 24 sexual offence provisions of the Crimes Ordinance to acts committed outside Hong Kong, the provisions are set out in Annex B.  In other words, these provisions will be given extra-territorial effect.  At present, 14 of these provisions are applicable to victims of any age.  Four provisions currently apply to victims under the age of 21.  We propose that the extra-territorial effect will only be applicable to cases where victims are under the age of 16 under these 18 provisions.  Four of the remaining six provisions have applicable age limit of the victims set under the age of 16 and the other two under the age of 13.  For these six provisions, we do not propose any change to the applicable age limit.
22．我們建議把《刑事罪行條例》中24條涉及性罪行的條文的適用範圍擴大至在香港以外作出的行為。有關條文的詳情見附件B。換言之，這些條文將獲賦予域外法律效力。目前，這些條文有14 條適用於任何年齡的受害者，四條適用於未滿21歲的受害者。我們建議，域外法律效力應只適用於這18條條文涵蓋的受害者為未滿16歲人士的個案。在其餘六條條文當中，分別有四條和兩條適用於16歲和未滿13歲的受害者。我們並不建議更改這六條條文的適用年齡界限。

23.We further propose that the extra-territorial effect should cover the persons and corporations referred to in sub-paragraphs (a) to (c) below insofar as they are the perpetrators of the relevant criminal act outside Hong Kong and the persons referred to in sub-paragraph (a) below insofar as they are the victims of the relevant criminal act outside Hong Kong –
23.我們並建議，只要以下(a)至(c)分段所述的人和法團是在香港以外地方發生的有關犯罪行為的犯罪者，或以下(a)分段所述的人是在香港以外地方發生的有關犯罪行為的受害者，域外法律效力都會對他們適用:

(a)a person who is a Hong Kong permanent resident or who ordinarily resides in Hong Kong;
(a)香港永久性居民或通常在香港居住的人；

(b)a body corporate that is incorporated or registered in Hong Kong; or
(b)在香港成立或註冊的法人團體；或

(c)a body of persons, whether corporate or unincorporated, whose principal place of business is Hong Kong.
(c)以香港為主要營業地點的團體，不論是法團或非法團團體。

24.Separately, we propose to create an offence for arranging or advertising child sex tours.  The offence covers any message sent through the Internet, any other forms of electronic transmission or other means.
24.此外，我們建議，安排或宣傳兒童色情旅遊活動，均應列為罪行。範圍包括透過互聯網、其他電子傳送方法或其他途徑傳送這類信息。

25.We propose that valid marriage between the defendant and the victim will be a defence to a charge for extra-territorial sexual offences under the Bill provided that the victim consented to the act.  We also propose that there shall be a defence for a person charged with publishing an advertisement for child sex tours if he did not have any reasonable cause to suspect it to be such an advertisement.”
25.我們建議，任何人如被控觸犯條例草案所指在海外發生的性罪行，但與受害者有有效的婚姻關係，並獲受害人同意進行有關行為，可作免責辯護。此外，我們建議，被控發布兒童色情旅遊活動廣告的人，如果沒有任何合理理由懷疑該廣告屬於這類廣告，可以提出這個理由作辯護。」

In addition, we also quote the contents concerning section 153P from the Paper for the Legislative Council House Committee meeting on 20 June 2003:
另外，本庭節錄2003年6月20日「立法會內務委員會」會議文件涉及第153P條的相關內容：

“The Bill
「條例草案

3.The Bill seeks –
3.條例草案旨在——

(a)…
(a)--

(b)…
(b)--

(c)to extend the application of certain sexual offence provisions to acts committed against children outside Hong Kong and prohibiting the making of any arrangement relating to commission of those acts and advertisements for such arrangement.
(c)把若干性罪行條文的適用範圍擴大至在香港以外地方作出的侵犯兒童行為，並禁止就干犯此類行為作出安排，以及禁止關於該等安排的宣傳。

……
……

Extra-territorial effect of sexual offence provisions listed in Schedule 2 of the Crimes Ordinance
《刑事罪行條例》附表2所列性罪行條文的域外法律效力

52.The new section 153P of the Crimes Ordinance to be added by the Bill extends the application of 24 sexual offence provisions listed in the new Schedule 2 to the Crimes Ordinance to an act committed against a child outside Hong Kong if the defendant or the child has connections with Hong Kong.  Valid marriage between the defendant and the victim will be a defence to a charge of extra-territorial sexual offences under the Bill provided that the victim consented to the act.
52.條例草案在《刑事罪行條例》加入的新訂第153P條訂明，如被告人或有關的兒童與香港有關連，《刑事罪行條例》新訂附表2所列的24項性罪行條文，將延展至適用於在香港以外地方就兒童作出的行為。任何人如被控觸犯條例草案所訂在域外發生的性罪行，但與受害人有有效的婚姻關係，並獲受害人同意進行有關行為，即可以此作為免責辯護。

53.On the rationale for the proposed provisions, the Administration has explained that sexual exploitation of children is known to have international dimensions.  Child sex tourism is known to exist around the world, and has inherent to it an extra-territorial element.  Extra-territorial effect of the relevant offence provisions is essential for combating child sex tourism.  Permanent residents and persons who ordinarily reside in Hong Kong, irrespective of their nationality, should be prohibited from engaging in the heinous acts of child sex tourism occurred outside Hong Kong.  They should therefore be covered under the Bill.
53．關於訂定擬議條文的理據，政府當局解釋，眾所周知，利用兒童進行色情活動可涉及跨的國安排，全球多個國家均有兒童性旅遊活動，而兒童性旅遊活動本質上蘊含域外元素。因此，就相關罪行條文訂定域外法律效力，在打擊兒童性旅遊活動方面至為重要。永久性居民和通常在港居住的人士，不論其屬哪一國籍，均應被禁止參與令人髮指的境外兒童性旅遊活動。因此，他們應被納入條例草案的規管範圍。

54.Regarding the enforcement of the provisions, the Administration has explained that if a person who is a Hong Kong permanent resident or who ordinarily resides in Hong Kong commits an offence under new Schedule 2 overseas, he could be arrested and prosecuted before Hong Kong courts when he returns to Hong Kong.  In this situation, evidence/witnesses will be required from the place where the offence was committed.  This may involve liaison at the law enforcement level and/or a formal request for mutual legal assistance.  Depending on the circumstances, the perpetrator may be extradited and then prosecuted in Hong Kong.
54.至於如何執行該等條文，政府當局解釋，香港永久性居民或通常在港居住的人士如在境外干犯新訂附表2所列的罪行，可在返港時被拘捕和檢控，並交由香港法庭審理。在此情況下，當局或需向案發當地蒐集證據或會見當地證人。此工作或會涉及執法機關之間的聯繫及/或正式要求提供相互司法協助。當局會視乎有關情況，可能將疑犯引渡來港進行檢控。

……
……

57.The Administration has explained that the 24 offences are included because they relate more directly to sexual exploitation of children.  Other sexual offences, such as living on earnings of prostitution of others, keeping a vice establishment etc. are considered less directly relevant.  As the purpose of the proposal is to deal with a particular problem by extending the application of the existing sexual offences under the Crimes Ordinance, the Administration considers that efforts should be focused on the most directly relevant offences and the net should not be casted too wide.  Extra-territorial effect is therefore not proposed to be extended to offences which are not likely to be the principal offences committed by paedophiles.”
57.政府當局解釋，把該24項罪行列入附表2的原因是，該等罪行均與利用兒童作色情活動有較直接的關係。當局認為其他性罪行，例如依靠他人賣淫的收入為生、經營賣淫場所等，與上述行為的關係並非那麼直接。由於此項建議的目的，是藉着擴大《刑事罪行條例》所訂現有性罪行的適用範圍以處理特定的問題，政府當局認為應着力對付最直接相關的罪行，而條文的範圍不應過於廣泛。因此，當局不建議把域外法律效力擴大至涵蓋不大可能屬孌童癖者干犯的主要罪行的行為。」

17.Furthermore, in May 2003 the Security Bureau submitted the Administration’s Response to Submission by Law Society of Hong Kong dated 5.5.2003.  We set out the relevant parts in the Response below:
另外，保安局於2003年5月提交「政府對香港律師會在2003年5月5日提交的意見書的回應」。本庭就該意見書適用的部分節錄如下：

“……
「……

9.In addition, under Article 3 of the Optional Protocol to the UN Convention on the Rights of the Child on the sale of children, child prostitution and child pornography (the Optional Protocol), each state party has to ensure, inter alia, that possession of child pornography be made an offence under its criminal law before it may comply with the Optional Protocol.
9.此外，根據《聯合國兒童權利公約》的《關於買賣兒童、兒童賣淫和兒童色情製品問題的任擇議定書》)(《任擇議定書》)的第3條，各締約國在符合該任擇議定書之前，必須確保已把管有兒童色情物品定為刑事罪行。

……
……

Extra-territorial effect of offences listed under Schedule 2
附表2所列罪行的域外法律效力

12.Sexual exploitation of children is known to have international dimensions.  Child sex tourism, that is, arrangements which enable adults to travel from their home countries to other places, in particular less-developed places, to engage in sexual activities involving children, is known to exist around the world.  Child sex tourism has inherent to it an extra-territorial element.  Extra-territorial effect of the relevant offence provisions is essential for combating child sex tourism.
12.眾所周知，利用兒童進行色情活動可涉及跨國安排，多國均有兒童性旅遊活動，即安排成年人離開本國前往其他地方，特別是發展中國家，參與涉及兒童的性活動。兒童性旅遊活動本身就蘊含域外元素，因此，相關罪行條文中的域外法律效力，在打擊兒童性旅遊活動方面極為重要。

13.The Optional Protocol mentioned in paragraph 9 above also states that each state party should take measures to establish its jurisdiction over the relevant offences in the following cases:
13.上文第9段所述的任擇議定書亦表明，各締約國須採取措施，對符合下列情況的罪行確立司法管轄權：

(a)when the alleged offender is a national of that State or a person who has his habitual residence in its territory;
(a)涉嫌犯罪者是該國國民或慣常居於該國領土的人士；

(b)when the victim is a national of that State.
(b)受害者是該國國民。

14.Hong Kong, as a member of the international community, has a compelling interest to protect children and to join in the concerted efforts in combating sexual abuse of children.  We therefore propose to introduce legislative amendments to give extra-territorial effect to certain sexual offences under the Crimes Ordinance in respect of acts that relate to direct sexual exploitation of children, where the perpetrator or the victim has a nexus with Hong Kong.”
14.香港作為國際社會的一員，在保護兒童和聯手打擊性侵犯兒童方面，責無旁貸。因此，我們提議修訂法例，就《刑事罪行條例》中某些涉及直接利用兒童進行色情活動的行為的性罪行條文，在涉案罪犯或受害人與香港有關的情況下，訂定域外法律效力。」

(3)United Nations Convention on the Rights of the Child
(3)  《聯合國兒童公約》

Both parties agree that Article 34 of the United Nations Convention on the Rights of the Child applies to Hong Kong.  The Article reads as follows:
雙方同意《聯合國兒童公約》第34條適用於香港，其內容如下：

“Article 34
「第三十四條

States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse.  For these purposes, States Parties shall in particular take all appropriate national, bilateral, and multilateral measures to prevent:
締約國家承擔保護兒童免遭一切形式的色情剝削和性侵犯之害，為此目的，締約國就應採取一切適當的國家，雙邊和多邊措施，以防止：

(A)The inducement or coercion of a child to engage in any unlawful sexual activity;
(A)引誘或強迫兒童從事任何非法的性生活；

(B)The exploitative use of children in prostitution or other unlawful sexual practices;
(B)利用兒童賣淫或從事其他非法的性行為；

(C)The exploitative use of children in pornographic performances and materials.”
(C)利用兒童進行淫褻表演和充當淫褻題材。」

However, the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography (“the Optional Protocol”) is still not applicable to Hong Kong.
但《〈兒童權利公約〉關於買賣兒童、兒童賣淫和兒童色情製品問題的任擇議定書》(《任擇議定書》)仍未適用於香港。

(4)Equality and non-discrimination
(4)  平等無歧視權利

Mr. Law, counsel for the applicant, argued that the Ordinance contravenes Article 25 of the Basic Law of Hong Kong, which guarantees that all Hong Kong residents shall be equal before the law, and violates the entitlement to rights without distinction and the right to protection against discrimination provided in Article 1(1) and Article 22 of the Hong Kong Bill of Rights of the Hong Kong Bill of Rights Ordinance, Cap. 383 Laws of Hong Kong.
代表申請人的羅達雄大律師指有關《條例》違反《香港基本法》第 25 條，即香港居民在法律面前一律平等，及違反《香港人權法案條例》(香港法例第 383 章)中的《香港人權法案》其中第 1(1) 條及第 22 條的平等、無歧視權利。

Article 1(1):
第 1(1) 條:

“The rights recognized in this Bill of Rights shall be enjoyed without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.  [cf. International Covenant on Civil and Political Rights Art. 2]”; and
「人人得享受人權法案所確認之權利，無分種族、膚色、性別、語言、宗教、政見或其他主張、民族本源或社會階級、財產、出生或其他身分等等。[比照《公民權利和政治權利國際公約》第二條]」；及

Article 22:
第 22 條:

“All persons are equal before the law and are entitled without any discrimination to the equal protection of the law.  In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.  [cf. International Covenant on Civil and Political Rights Art. 26]”
「人人在法律上一律平等，且應受法律平等保護，無所歧視。在此方面，法律應禁止任何歧視，並保證人人享受平等而有效之保護，以防因種族、膚色、性別、語言、宗教、政見或其他主張、民族本源或社會階級、財產、出生或其他身分而生之歧視。[比照《公民權利和政治權利國際公約》第二十六條] 」

(5)Applicant’s argument
(5)  申請人的論點

The applicant accepted that the Legislative Council of Hong Kong has the power to legislate to extend our jurisdiction to places outside Hong Kong.  He complained that section 153P(1) of the Ordinance discriminates against him on account of his status as a Hong Kong permanent resident.  He submitted that the status of a Hong Kong permanent resident and the status of a person who ordinarily resides in Hong Kong are covered by the phrases “other status” and “national origin” in Articles 1(1) and 22 of the Hong Kong Bill of Rights.
申請人接納香港立法會有權制定法律，把司法管轄權延展至香港境外。申請人指《條例》第153P(1) 條對他身為香港永久性居民之身分作出歧視。香港永久性居民身分或通常居於香港的人的身分是包含於《香港人權法案》第1(1) 條及第22 條所指的「其他身分及民族本源的身分」。

The applicant also invoked section 3 and section 25 [sic] of the Registration of Persons Ordinance, Cap.177 Laws of Hong Kong.  He said that a person’s status as a Hong Kong permanent resident or his status as a person who ordinarily resides in Hong Kong can be regarded as his immigration status or residential status and his national origin, and that this person’s status can be contrasted with the immigration status or residential status of another person who is present in Hong Kong but is neither a Hong Kong permanent resident nor a person who ordinarily resides in Hong Kong.
申請人亦引用《人事登記條例》(香港法例第177章)第3條及25條。他說香港永久性居民的身分或通常居於香港的人的身分，可被視為入境身分或居留身分及民族本源。這相對於另一名在香港境內，但不是香港永久性居民身分或不是通常居於香港的人的入境身分或居留身分。

According to section 3 of the Registration of Persons Ordinance, every person in Hong Kong unless exempted is required to be registered and to apply for the issue of an identity card under that ordinance.  Section 25 of that Ordinance [sic] stipulates that certain categories of people, so long as they retain the status and qualifications specified in that Ordinance [sic], are not required to register or apply for the issue of an identity card.  Such people include travellers and persons who do not remain in Hong Kong for more than 180 days.
根據《人事登記條例》第3條，凡在香港境內的人除非獲得豁免，否則必須根據該條例登記及領取身分證。該條例的25條則指，某類人士若保持該條例列明的地位(status)及資格，則無須登記或申請領取身分證。該類人士包括旅客或只在香港逗留不超過180天的人。

The last paragraph of Article 24 of the Basic Law provides that non-permanent residents of Hong Kong are “persons who are qualified to obtain Hong Kong identity cards in accordance with the laws of the Region but have no right of abode”.
《基本法》第24條最末一段訂明，香港非永久性居民為「有資格依照香港法律取得香港居民身分證，但沒有居留權的人。」

The fundamental rights and duties of Hong Kong residents are governed by Chapter III of the Basic Law.  Pursuant to Article 24 of the Basic Law, residents of Hong Kong include permanent residents and non-permanent residents. Article 41 of the Basic Law makes it clear that persons in Hong Kong other than Hong Kong residents shall, in accordance with law, enjoy the rights and freedoms of Hong Kong residents prescribed in Chapter III.
《基本法》第3章是有關香港居民的基本權利和義務。根據《基本法》第24條，香港居民包括永久性居民和非永久性居民。《基本法》第41條說明，在香港境內的香港居民以外的其他人，依法享有本章規定的香港居民的權利和自由。

The argument advanced by the applicant is that when a non-permanent resident or a person not ordinarily residing in Hong Kong commits the offences in question outside Hong Kong, he will not be punished under the laws of Hong Kong, but if a Hong Kong permanent resident or a person ordinarily residing in Hong Kong falls under the same situation, he will be punished under Hong Kong laws.  This, according to him, is a violation of Article 25 of the Basic Law, because among residents of Hong Kong, permanent residents and Hong Kong residents ordinarily residing in Hong Kong, when compared with other residents in Hong Kong, are not equal before the law.  He submitted that this also contravenes Article 1(1) of the Hong Kong Bill of Rights, because Hong Kong permanent residents and persons ordinarily residing in Hong Kong, due to their status, cannot enjoy the rights recognized in the Bill of Rights.  He further submitted that this is also against Article 22 of the Hong Kong Bill of Rights, because Hong Kong permanent residents and persons ordinarily residing in Hong Kong suffer discrimination as a result of their status; and that they are not treated equally before the law and are denied equal protection of the law.
申請人指一名非永久性居民或一名非通常居於香港的人在香港以外干犯了有關的罪行是不會受香港法律制裁；但一名香港永久性居民或通常居於香港的人在同一情況下卻會受到香港法律制裁，這是違反了《基本法》第25條，原因是香港居民中的永久性居民及通常居於香港的香港居民，對比在香港境內的其他居民，在法律面前不是平等。這亦違反《香港人權法案》第 1(1) 條，因為香港永久性居民及通常居於香港的人，因為他們這個身分而不能享受人權法案所確認的權利。而且亦違反了《香港人權法案》第22條，因為香港永久性居民及通常居於香港的人因着這個身分遭受歧視，並且在法律上不是平等及沒有受法律平等保護。

(6)The case of Yau Yuk Lung
(6)  Yau Yuk Lung 案例

In Secretary for Justice v. Yau Yuk Lung (2007) 10 HKCFAR 335 the Court of Final Appeal pointed out that equality before the law is a fundamental human right and is in essence the right not to be discriminated against (see paragraph 1 of the judgment).  The Court of Final Appeal expounded the legal principle that all persons are equal before the law without discrimination as follows:
香港終審法院在Secretary for Justice v. Yau Yuk Lung (2007) 10 HKCFAR 335一案指出，法律之下人人平等乃是一項基本人權，它主要指不受歧視的權利(見：判案書第1段)。有關「人人平等，不受歧視」的法律原則。香港終審法院作出以下的闡釋：

1)In general, the law should accord identical treatment to comparable situations.
1)一般來說，對於相似的情況，法律應給予相同的看待。

2)However, the guarantee of equality before the law does not invariably require exact equality.  Differences in treatment under the law may be justified for good reason.  To satisfy the justification test, it must be shown that:
2)不過，「法律之下人人平等」並不一定要求完全相同的平等，假如有良好理由作為依據，法律可給予不同的對待。如要通過這個「有理可據」驗證標準，便必須證明：

(a)The difference in treatment pursues a legitimate aim; in other words, a genuine need for such difference must be established;
(a)給予不同對待是為着達致合法目標，換言之必須證明有真正需要給予不同對待；

(b)The difference in treatment is rationally connected to the legitimate aim; and
(b)該不同對待與該合法目標有着合理的關連；及

(c)The difference in treatment is no more than is necessary to accomplish the legitimate aim.
(c)該不同對待並不超越達致該合法目標所必需的。

3)Requirement (a) cannot be established from the mere act of legislative enactment (see paragraphs 19-21, 26-27).
3)立法行為本身不足以符合(a)的規定。(見第19至21、26至27段)

4)Where the difference in treatment satisfies the justification test, the correct approach is to regard the difference in treatment as not constituting discrimination.  Unlike some other constitutional rights, such as the right of peaceful assembly, it is not a question of an infringement of the right which may be constitutionally justified. (paragraph 22)
4)假如給予不同對待之舉通過「有理可據」驗證標準，則正確的做法是把該不同對待視為不構成歧視。這並不涉及侵犯權利的行為是否有憲法上的理由支持的問題，這情況有別於某些其他憲制權利，例如和平集會的權利。(第22段)

(7)Respondent’s argument
(7)  答辯人的論點

The respondent did not dispute the claim that a person’s status as a Hong Kong permanent resident or a person who ordinarily resides in Hong Kong can be regarded as his immigration status or his residential status and his national origin, but it disagreed that the applicant had been treated unequally or discriminated against.
答辯人對一名香港永久性居民身分或通常居於香港的人的身分被視為「入境身分」或「居留身分」及「民族本源」沒有異議。但答辯人不同意申請人受到不平等對待、歧視的說法。

(8)Our View
(8)  本庭的意見

(i)Legitimate aim
(i)  合法目標

Section 153P(1) clearly draws a distinction between permanent residents and non-permanent residents, but the Court of Final Appeal had held that the giving of different treatments to different people might be justified for good reason.  According to the criteria set by the Court of Final Appeal, the respondent was required to show that the difference in treatment pursues a legitimate aim.
明顯地第153P(1) 條對永久性居民及非永久性居民作出區別。但終審法院指出，假如有良好理由作為依據，法律可以對不同的人士給予不同的對待。根據終審法院提出的驗證標準，答辯人必須證明給予不同對待是為着達致合法目標。

In our judgment, it is patently obvious that section 153P(1) pursues a legitimate aim.  Even though the Optional Protocol is still not applicable to Hong Kong, in order to implement what is required under Article 34 of the United Nations Convention on the Rights of the Child, Hong Kong has an unshirkable duty to enact laws to protect children from sexual abuse.  In Hong Kong there is no shortage of laws for combating activities involving sexual abuse of children within our territory, but such activities do not take place just within Hong Kong, they also take place outside Hong Kong.  Sexual exploitation of children is known to have international dimensions.  It is common knowledge that there are adults who travel from their home countries to other places, in particular developing countries or less-developed places, to engage in sexual activities involving children.  It is therefore necessary to stipulate in the law that committing acts of sexual abuse against children outside Hong Kong is a criminal offence.  The applicant cited the direction on the obligations of State Parties under Article 2 of the Convention on the Rights of the Child and submitted that it only requires the States Parties to enact laws to deal with sexual abuse against children within their own territories, but not laws with extra-territorial effect:
本庭認為153P(1) 條明顯是有合法目標，就算《任擇議定書》仍未在香港適用，但為了實踐《聯合國兒童公約》第34條的要求，香港制訂保護兒童免受到性侵犯的條例是責無旁貸的。雖然香港本身已經有充分的法例打擊在境內性侵犯兒童的行為，但由於這種行為不單只是會在境內發生，而且是會在境外進行。利用兒童進行色情活動可涉及跨國安排，成年人離開本國前往其他地方，特別是發展中國家落後地區參予涉及兒童的性活動亦是眾所周知的事情，故此法例是有必要將在境外性侵犯兒童的罪行視為刑事罪行。申請人引用《兒童權利公約》第2條「締約國的義務指示」，力陳這只是要求締約國制訂兒童在境內被性侵犯的法例而不是一些涉外法例：

“States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.”
「締約國應遵守本公約所載列的權利，並確保其管轄範圍內的每一兒童均享受此種權利，不因兒童或其父母或法定監護人的種族、膚色、性別、語言、宗教、政治或其他見解、民族、族裔或社會出身、財產、傷殘、出生或其他身份而有任何差別。」

We consider that the applicant’s argument is a one-sided view.  The use of the word “jurisdiction” in Article 2 does not mean that the duty of a State Party is limited to protecting children within its territory; on the contrary, the scope of its duty covers child abuse cases which happen outside its territory.  Section 153P(1) is targeted at paedophiles who sexually abuse children outside Hong Kong.  Its purpose is to prevent them from getting away unpunished by just returning to Hong Kong.  This point was clearly brought out in the documents submitted to the Legislative Council and referred to above.  In other words, there was a genuine need for enacting section 153P.  In Canada, legislation similar to section 153P was enacted in accordance with the Convention on the Rights of the Child (See R v. Klassen 240 CCC (3d) 328).
本庭認為申請人的說法是以偏概全的論點。雖然第 2 條採用了「管轄範圍」的字眼，這並不是表示締約國的責任只限於保護境內兒童；反之，它是包括境外發生的性侵犯兒童事件。第153P(1) 條的目的是針對戀童癖好者在香港境外性侵犯兒童，防止他們藉返回香港境內而消遙法外。上述提交立法會的文件亦清晰地帶出這個目的。換句話說，制訂第 153P 條是有真正需要的。加拿大亦有根據《兒童權利公約》制訂類似 153P 條的法律(見：R v. Klassen 240 CCC (3d) 328)。

(ii)Rational connection
(ii)  合理的關連

One of the criteria for satisfying the test is that the difference in treatment must be rationally connected to the legitimate aim.  We consider that the Ordinance also meets the requirement of rational connection.  A law which extends the jurisdiction to places outside Hong Kong must be subject to limitations; otherwise, the Hong Kong authorities would prosecute any person who sexually abuse any children outside Hong Kong.  Such kind of authority will be too wide.
根據認證標準，這不同待遇與該合法目標需要有「合理的關連」。本庭認為該條例亦符合「合理關連」的要求，延展司法權力至境外的法例必須是有一定的規限，否則這會令香港檢控任何在香港境外性侵犯兒童的人，這樣的權力會流於廣泛。

The limitations are set out in section 153P(1).  A person will be prosecuted only if one of the following two conditions is fulfilled :
有關的規限載於第153P(1) 條，一名人士只會在以下的兩種情況下被檢控：

(1)He is a Hong Kong permanent resident or he ordinarily resides in Hong Kong (section 153P(1)); or
他是香港永久性居民或通常居於香港的人 (153P(1) 條)；或者是

(2)The victim is a child who is a Hong Kong permanent resident or who ordinarily resides in Hong Kong (section 153P(2)).
受害者是香港永久性居民或通常居於香港的兒童(153P(2) 條)。

These two conditions restrict the scope of the extra-territorial jurisdiction of Hong Kong, therefore the distinction with reference to the status of persons provided for in the Ordinance is rationally connected to the legitimate aim.
這兩項條件規限了香港涉外司法權力的範圍，故此條例對於身分的區分與合法目標是有着合理的關連。

(iii)No more than is necessary to accomplish the legitimate aim
(iii)  不超越達致合法目標所必需的要求

If a person who is not a Hong Kong permanent resident or who does not ordinarily reside in Hong Kong sexually abuses children in any place outside Hong Kong, he can be punished under the laws of that place; or if the laws of his own country contain provisions similar to section 153P, he may also be punished under the laws of his own country after he returned home.  However, even if there are no similar provisions in the laws of this person’s country, it does not follow that a Hong Kong permanent resident or a person who ordinarily resides in Hong Kong suffers any discrimination.  On the basis of the above reason, such differential treatment is no more than is necessary to accomplish the legitimate aim.  We do not think that section 153P is in any sense discriminatory against a Hong Kong permanent resident or a person who ordinarily resides in Hong Kong.
若果非永久性香港居民或非通常在香港居住的被告人在香港境外性侵犯兒童，他們可被當地法例制裁，或者如果這些人士的本國法例具有與 153P 相同的條文，他們回國後亦可受到自己的國家法律制裁。但就算他們自己的國家沒有制訂相約的法例，這也不表示香港永久性居民或香港通常居住人士受到歧視。根據上述理據，這不同的對待並不超越達致該合法目標所必需的要求。本庭不認為第 153P 條存有歧視香港永久性居民或通常居於香港居民之處。

(iv)Proportionality test
(iv)  恰當性測驗

As a response to the 911 terrorist attacks, the U.K. government took a number of measures, including the enactment of the Anti-terrorism, Crime and Security Act 2001.  Section 23 of the Act provided for the detention of non-British nationals who were suspected to be international terrorists.  In A and others v Secretary of State for the Home Department [2005] 2 AC 68 the House of Lords declared that section 23 was incompatible with the prohibition against discrimination laid down in Article 14 of the European Convention on Human Rights (cf: Article 26 of the International Covenant on Civil and Political Rights).  The House of Lords held that section 23 failed to pass the proportionality test.  The criteria of that test are the same as those of the justification test propounded by the Court of Final Appeal.  The House of Lords’ reasons were as follows:
英國政府因應 2001 年「911」恐佈襲擊事件採取了多項措施，包括制訂 Anti-terrorism, Crime and Security Act 2001 《2001 年反恐怖主義，罪行及安全條例》。該條例的第 23 條規定把懷疑是國際恐怖國際份子的非英國國民拘留。英國上議院法庭在 A and others v Secretary of State for the Home Department [2005] 2 AC 68 認為該規定違反《歐洲人權公約》第 14 條的「禁止歧視規定」(比照《公民權利和政治權利國際公約》第 26 條)。上議院認為該規定未能符合「恰當性測驗」(Proportionality Test)。這測驗與終審法院所提出的「有理可據」驗證標準相同。上議院所持的理由包括以下各點：

(1)It was stipulated in section 23 that a non-British national suspected to be an international terrorist might be detained, but such treatment was not applicable to a British national suspected to be an international terrorist;
第 23 條規定把懷疑是國際恐怖國際份子的非英國國民拘留，而懷疑是國際恐怖份子的英國國民則不在此例；

(2)It permitted non-national suspects to leave the U.K.;
它准許非國民的嫌疑份子離開英國；

(3)It did not address the threat from U.K. nationals; and
它沒有考慮來自英國國民的恐嚇活動；及

(4)It was capable of applying to individuals who did not present that threat.
它適用於沒有作出恐嚇行為的人士。

For these reasons, the House of Lords held that section 23 did not rationally address the threat to security, that it was a disproportionate response and that it was not strictly required by the exigencies of the situation.  The section was declared to be incompatible with Articles 5(1) and (14) [sic] of the European Law [sic] on Human Rights.
故此上議院認為該條文沒有理性地處理威脅安全的行為。該條文是一項不合比例的回應，而且也沒有絕對急切需要。上議院宣佈第 23 條不符合《歐洲人權法例》第 5(1) 及 (14) 條。

In that case, the House of Lords also dealt with Article 5(1) of the European Law [sic] on Human Rights, which provides that “Everyone has the right to liberty and security of person” (cf: Article 5(1) of the Hong Kong Bill of Rights).
在該案，英國上議院亦處理《歐洲人權法例》第 5(1) 條，即「人人有權享有身體自由及人身安全的權利」(比照見：《香港人權法案》第 5(1) 條。)

We do not think that this English case lends any support to the applicant’s arguments in this appeal.  Whether the criteria of a particular test are satisfied must be decided on the basis of the contents of the legislation in question.
本庭不認為上述英國案例支持申請人在本上訴的論點。審核驗證標準必須根據法例的內容而作出。

2)Ground of appeal 3: media reports and fair trial
2)上訴理由3：傳媒報道及公平審訊

(1)Right to a fair trial
(1)  公平審訊權利

The applicant complained that before and during the trial of this case there were massive coverage given by the media and vast amounts of discussion among the public, and that for this reason the right conferred on a defendant by Article 87 of the Basic Law and Article 10 of the Hong Kong Bill of Rights were encroached upon.  Article 87 of the Basic Law provides that “… Anyone … shall have the right to a fair trial by the judicial organs …”, and Article 10 of the Hong Kong Bill of Rights provides that “… everyone shall be entitled to a fair…hearing by a … independent and impartial tribunal …”.
申請人說本案受到審訊之前及審訊當中大量傳媒報導及公眾討論的報導，這違反了《基本法》第87條及《香港人權法案》第10條賦予被告人的權利。《基本法》第87條訂明「任何人享有接受司法機關公正審判的權利」。《香港人權法案》第10條訂明「任何人應有權接受獨立無私之法庭公正審問」。

(2)Directions given by D Pang J
(2)  彭法官的指引

On 30 November 2010, during the trial of this case D Pang J was informed that this case was being reported by two local newspapers.  After the jury retired, he discussed those reports with the prosecuting counsel and the defence counsel.  At that time the applicant was represented by another counsel, who did not apply for a stay of the trial on the ground that the media reports had rendered the trial unfair.  After discussing with counsel, D Pang J decided that he would give appropriate directions to the jury on those reports at the time when he should give directions to them.  On 14 December 2010, when Pang J gave directions to the jury, he said the following:
2010年11月30日，當案件審訊時，彭法官獲知有兩份本地報章報導本案。彭法官在陪審團避席的情況下和控辯雙方律師討論有關報導。當時代表申請人的另一位大律師沒有以傳媒報導令審訊不公平為由要求中止審訊。彭法官與律師商討後決定在引導陪審團時會就有關報導作出適當的指引。彭法官在2010年12月14日引導陪審團時作出以下的指引：

“At this stage I shall tell you what evidence consists of.  In the present case, evidence includes the testimonies given in court by all the witnesses, that is, including the defendant himself and his witnesses; the facts over which there is no dispute between the parties and which have been read out to you; and all the documents, sketches, photographs and tangible objects which have been produced as exhibits.  Well, I have particularized for you what evidence is composed of, because you must make your decisions only according to the evidence; that is to say, you must consider all the evidence. As for those matters which have not been covered by any evidence, you must not guess or speculate.  This is very important, ladies and gentlemen.  It is extremely rare that every part and every link of a case is covered by evidence.  You must accept this limitation.  You must not fill in the gaps with your speculations.  If you have heard, seen or read anything relating to this case outside this courtroom, you should disregard it, particularly the information on the newspapers and the internet.  These reports and their contents should be no different from what you have heard in court but, for various reasons, they may contain opinions given from a certain angle, a matter that even the people who made these reports may not be aware of that themselves; not to mention there may be things which have nothing to do with this case and have not been tested by counsel in court; so you should never take any notice of these things; take no notice of them.  This evening, you should not surf the internet to search.  Those you saw previously, forget about them.  Don’t take any notice of them. …”
「呢度我要提一提大家，咩嘢係證據。就本案而言，佢包括所有證人，亦即係包括埋被告自己同佢嘅證人喇，喺庭上嘅證供、控辯雙方冇爭議，而又向你時讀出過嘅一啲事實、所有已經呈堂嘅文件、草圖、相片同實物。嗱，我將佢哋一一列舉番出嚟，係因為你哋斷案嗰時，只能夠以證據為依歸，亦即係話，你哋要考慮晒所有嘅證據，但係證據冇觸及嘅嘢，就唔可以去猜、唔可以去估，呢點係好重要嘅，各位。因為絕少案件，係每一個環節都有證據去講番嘅，你哋亦一定要接受呢個限制，千祈唔好用猜測去填補。如果你喺法庭以外聽到、睇到或者讀到任何與案有關嘅嘢，就更加唔應該理會，尤其係報章同網上嘅資料，佢哋嘅報導同埋內容，應該同你哋喺庭上聽到嘅冇分別，不過由於種種理由，可能會帶入咗某啲角度，係連執筆啲人都唔自覺嘅，就更加唔好講佢哋有啲咩嘢，係既與案件無關，又冇經過律師喺庭上嘅測試，所以絕對係唔可以理會嘅，唔好理嗰啲嘢，今晚更加唔應該上網去「抄」，之前睇過嘅，忘記佢，一啲都唔可以理會。…」

(3)Applicant’s argument
(3)  申請人的論點

The applicant said that there were huge amount of reports in the press about the case, that such reports were presented in both written text and pictures and a great majority of them were published on the internet.  He submitted that notwithstanding D Pang J’s careful directions, the effects of those reports were that the prejudice formed in the jurors’ mind against the defendant could not be removed, nor could the risk that the prospect of a fair trial was adversely affected be eliminated.
申請人指報章的報導是鋪天蓋地的，而且圖文並茂，絕大部分刊載於互聯網。縱使彭法官作出小心的指引，但都不能消除陪審團對被告人存有偏見，及該些報導產生對公平審訊不利的影響的風險。

(4)Legal principles
(4)  法律的原則

In HKSAR v. Lee Ming Tee and another (2001) 4 HKCFAR 133, the Court of Final Appeal made the following comments about the legal principles applicable to questions about the effects of media reports on a trial:
終審法院在 HKSAR v. Lee Ming Tee and another (2001) 4 HKCFAR 133就傳媒報導影響審訊的法律原則作出以下的意見：

1)In a society where the press is free it is inevitable that the reporting of crime will, in some sections of the media, be lurid and sensationalist, sometimes even at the risk of punishment for contempt.  The more heinous or shocking a particular crime, the more it is likely to be given notoriety and to receive potentially prejudicial reporting.  Jurors will therefore almost certainly have been exposed to some degree to such media coverage, prejudicial to the accused.
1)在享有新聞自由的社會中，當傳媒報導刑事罪行時，無可避免地有某些傳媒會作出渲染煽情的報導，有些甚至不惜藐視法庭甘冒受罰的危險。罪行愈是十惡不赦或令人震驚，惡名愈昭彰，報導便愈有潛在可能偏頗。陪審員差不多必然或多或少涉獵過這些對被告有損害的傳媒報導。

2)Reliance on the integrity of the jury and its ability to try the case fairly on the evidence, to put aside extraneous prejudice and to follow the directions of the judge is fundamental to the jury system itself.
2)陪審團制度建基於法庭可依賴陪審團的公信力，依賴陪審團能根據證據公平審訊，能摒除與案件無關但有損害性的證據，並能跟從主審法官所給予的指示。

3)There is good sense in regarding a jury, properly directed, as able to overcome prejudicial publicity in the vast majority of cases.  First, with the passage of time, any recollection that a juror may have of adverse publicity can be expected to fade, lessening its prejudicial effect.
3)陪審團於大部分案件中，在法官正確的指示下，是能夠克服偏頗廣泛報導的影響，如此視之是明智之舉。首先，陪審員對不利廣泛報導的回憶估計隨着時間的消逝會日漸淡忘，損害性亦日減。

4)Secondly, the jury may sensibly be credited with the ability to overcome any pre-trial prejudice because of the nature and atmosphere of the trial process itself.  Whatever impression of the case members of the jury may have gained beforehand, at the trial, they are given direct, first-hand access to the actual evidence in the case, presented systematically and in detail, with live witnesses tested by cross-examination and exhibits tendered for inspection.  They are addressed as to the significance of such evidence by counsel on both sides and guided by the impartial summing-up of the judge.  Many jurors will already harbour a healthy scepticism about certain kinds of press reporting.  They can be credited with the intelligence to realise that whatever may have been reported, they are far better placed at the trial to make up their own minds on the evidence, with the help of the judge’s direction.
4)其次，基於審訊程序本身的性質和環境，相信陪審團可以明理地有能力可克服審前的偏見影響。無論陪審員在審訊前對有關案件得到了些甚麼印象，在審訊時，他們都能直接第一手得到案中的真實證據；證據是有系統詳細地在法庭展示，證人親身出庭作證和接受盤問考驗；證物則呈堂接受驗證。還有，控辯雙方的大律師會就有關證據的重要性向陪審團作出陳詞，主審法官會指導他們給予不偏不倚的總結。對於某類的新聞報導，很多陪審員早已存有無傷大雅的疑問。相信陪審員是具有聰明智慧的，明白無論傳媒有甚麼報導，知道身處法庭在審訊中根據證據輔以法官的指示，作出個人結論，才是較佳做法。

See pages 189 to 192B of the judgment of that case.
見該案第189頁至192頁B。

The Privy Council held the same views in Montgomery v. H M Advocate (PC) [2003] 1 AC 641 at 673F-674G:
英國樞密院在Montgomery v. H M Advocate (PC) [2003] 1 AC 641在673頁F至674頁G亦持同一論點：

“I am not persuaded that the judges in the court below were in error in their assessment of the effect of the publicity that has been given to this case and of the question whether, despite that publicity, the jury can be expected to act impartially.  Recent research conducted for the New Zealand Law Commission suggests that the impact of pre-trial publicity and of prejudicial media coverage during the trial, even in high profile cases, is minimal: Young, Cameron & Tinsley, Juries in Criminal Trials: Part Two, vol I, ch 9, para 287 (New Zealand Law Commission preliminary paper no 37, November 1999).  The lapse of time since the last exposure may increasingly be regarded, with each month that passes, in itself as some kind of a safeguard.  Nevertheless the risk that the widespread, prolonged and prejudicial publicity that occurred in this case will have a residual effect on the minds of at least some members of the jury cannot be regarded as negligible.  The principal safeguards of the objective impartiality of the tribunal lie in the trial process itself and the conduct of the trial by the trial judge.  On the one hand there is the discipline to which the jury will be subjected of listening to and thinking about the evidence.  The actions of seeing and hearing the witnesses may be expected to have a far greater impact on their minds than such residual recollections as may exist about reports about the case in the media.  This impact can be expected to be reinforced on the other hand by such warnings and directions as the trial judge may think it appropriate to give them as the trial proceeds, in particular when he delivers his charge before they retire to consider their verdict.”
「我認為下級法院的法官評估以下兩方面沒有犯錯：案件被廣泛報導所帶來的影響，以及儘管案件被廣泛報導但是否仍能預期陪審團不偏不倚。新西蘭法律委員會近日的研究建議，認為即使在傳媒高調報導的案件，審訊前的廣泛報導和審訊期間的偏頗傳媒披露只造成極輕微的影響:Young, Cameron & Tinsley, Juries in Criminal Trials: Part Two, vol I, ch 9, para 287 (新西蘭法律委員會初步文件第37號, 1999 年11 月)。由最後一次的傳媒報導接觸開始，隨時月過去，時間消逝本身便愈可視為某類保障。不過即使如此，案件長時間經廣泛不利報導，至少會在一些陪審員的腦海中有殘餘影響，這是不容忽視的。要法律審裁者保持客觀公正不阿，主要保障有賴審訊程序本身及主審法官對審訊的處理。一方面，陪審員聽取和思量證據時，須依循一定的規則行事。陪審團耳聞目睹證人的言行舉止，這在他們腦海中，較陪審團因傳媒報導案件而可能在心中遺下的殘留回憶，影響更為深刻。另一方面，由於主審法官在審訊過程中可以給予陪審團適當的警示和指示（尤其是主審法官在陪審團退庭商議前把審裁職能交付陪審團），估計更有助深刻影響。」

The issue in that case was the defendants’ complaint that the extent of the media reports was such that it would be impossible for them to have a fair trial as required by Article 6.1 of the European Law [sic] on Human Rights.  The Privy Council considered that it was only by having regard to all the circumstances that a decision on this issue could be made, and that the circumstances included the following three matters:
該案的議題是被告人認為傳媒的報導令他們未能根據《歐洲人權法》第 6.1 條獲得公平審訊。樞密院認為法庭必須考慮案件整體情況才可以作出裁決。相關的情況包括以下三個因素：

1)the length of time since publication of the reports;
報導出現後所經過的時間；

2)the focusing effect of listening to evidence over a prolonged period; and
長時間聽取證據的聚焦效應；及

3)the likely effect of the directions by the trial judge.
主審法官作出指引可能產生的影響。

The Privy Council held that under Article 6.1 of the European Convention on Human Rights the only issue to be addressed was the right of the defendant to a fair trial, and no assessment of the weight to be given to public interest (i.e. detection and suppression of crimes) came into the exercise, and that in this respect it might be said that the right conferred by the European Convention was superior to the common law right.
樞密院認為根據《歐洲人權公約》第 6.1 條，唯一要處理的問題是被告人享有公正審訊的權利。在這過程中，評估公眾利益（即偵查和遏止罪行）佔何等比重不在考慮之列。根據此論點或許可以說《歐洲人權公約》賦予的權利高於《普通法》賦予的權利。

(5)Our View
(5)  本庭的意見

In this appeal, the applicant asked this Court to receive fresh evidence consisting of newspaper reports and articles on the internet about this case.  We refused to receive such fresh evidence.  Such evidence had not been produced when the case was before D Pang J and D Pang J had directed the jury that they should not search for this kind of information on the internet and that they should forget about and take no notice of the information they read and saw previously.  The foundation of the jury system is that the jurors are required to follow instructions given to them by the judge.  Unless there is actual evidence that the jurors have not done what is required of them, the Court must make its decision on the basis that they have done so.  The applicant’s allegation that the jurors might have searched for information in disregard of D Pang J’s direction is groundless.  We reject his submission in this connection.
申請人在本上訴時要求本庭接納報章報導本案及互聯網上刊載本案的文章的新證供。本庭拒絕接納這些新證供。這些新證供並未在彭法官席前披露。彭法官亦已經指示陪審團不應該上網尋找這些資料及指示他們忘記及不要理會以前看過的資料。陪審團制度的基礎是陪審團是需要服從法官給他們的指導。除非有實際證據顯示陪審團沒有這樣做，否則法庭必須依從這個基礎作出裁決。申請人指陪審團可能不依從彭法官的指導搜查資料是沒有根據的。本庭不接納這一方面的陳述。

Another complaint of the applicant is that D Pang J at first told the jury that they should disregard any information which they heard or read relating to this case outside the courtroom, but he added that such information and its contents should be no different from what they heard in court.  The applicant submitted that such direction could confuse the jury as to what the evidence consisted of.  In our view, what the applicant did was to quote D Pang J’s remarks out of context.  When D Pang J’s directions are considered in their entire context; what he meant was that the jury should disregard those reports which had nothing to do with the case and had not been tested by counsel in court.  We do not agree that the applicant was deprived of the right to a fair trial.
另外，申請人指彭法官首先要陪審團不要理會法庭以外聽到或讀到任何與案件有關的資料，但他又補充說有關資料與內容應該與陪審團在法庭上聽到的沒有分別。這樣的指引會導致陪審團對何為證據有所混淆。本庭認為申請人是斷章取義。縱觀彭法官指引的上文下理，他的意思是要陪審團不要理會與案件無關、沒有經過律師在法庭測試的報導。本庭不認同申請人被剝奪公平審訊的權利。

3)Ground of appeal 4
3)  上訴理由4

(1)Specimen charges/uncharged acts
(1)  樣本控罪/不被控告的行為

The applicant’s fourth ground of appeal actually covers two areas:
申請人的第 4 項上訴理據其實包括兩點：

1)The 5th count and the 6th count were specimen charges.  To put the defendant under trial for these two counts was unfair to the defendant, rendering the convictions therefor unsafe; and
第 5 及第 6 條控罪是「樣本控罪」(Specimen Charges)。這兩項控罪的審訊對被告人做成不公，致使有關定罪不穩妥；及

2)D Pang J erred in admitting evidence concerning uncharged acts, in that the prejudicial effect against the defendant produced by such evidence outweighed its probative effect.
彭法官錯誤地接納「不被控告的行為」(uncharged act)的證供，因為這些證供對申請人的不利影響超越證供的舉證力量。

The basis of these two arguments is in fact the same.  The applicant submitted that in the course of giving directions to the jury D Pang J had reminded the jury that X had said that in the Centre, which was the place where the sexual intercourse referred to in the 5th count took place, the applicant had had sexual intercourse with her over 10 times, and that the occasion referred to in the 6th count was not the only one on which images of the applicant exposing his private parts, even masturbating himself and ejaculating were shown through the webcam.
這兩項理據的基礎其實都是一樣。申請人指彭法官在引導陪審團時曾經說過X指稱在該中心，即控罪 5 指稱發生性交的地方，申請人與她發生性行為次數超過十次，而申請人在視頻展示下體，甚至自瀆、射精等的情況亦不單止是第 6 條控罪所指的一次。

(2)Legal principle
(2)  法律原則

(1)In Chim Hon Man v. HKSAR (1999) 2 HKCFAR 145 the Court of Final Appeal held that the prosecution could not make use of specimen charges, because there is a general principle that in the absence of any act or acts being identified as the subject of an offence charged in an indictment, the prosecution cannot lead evidence that is equally capable of referring to a number of occasions, anyone of which might constitute an offence described in the charge and invite the jury to convict on any one of them.
(1)終審法院在Chim Hon Man v. HKSAR (1999) 2 HKCFAR 145 裁決控方不能引用「樣本控罪」，原因是根據一般原則，如不能確定某一項或多項作為是公訴書中所指控的罪行，控方不能帶領出多次作為的證供，而其中任何一次是可以構成所指控罪行的，然後促請陪審團根據其中一次而將被告人定罪。

(2)The Court of Final Appeal pointed out that this principle serves the same general purposes as the rule against duplicity.  Knowledge of the particular act, matter or thing which is the foundation of the charge is important in enabling the accused to ascertain and prove what, if any, defence, for example, an alibi, he may have to the offence charged and to subject a complainant’s evidence to searching scrutiny by reference to the surrounding circumstances.  An accused person may be subjected to unfairness and embarrassment if he is called upon to meet a charge of one offence based upon evidence of the commission of multiple offences, more particularly if the evidence is such that it does not enable each such offence to be clearly differentiated from the others.  The degree of unfairness or embarrassment may vary according to the circumstances.  If the prosecution case is based on evidence of many offences in an extended period of time the unfairness may be considerable.
(2)終審法庭指這項原則跟「禁止控罪包含多項罪行」(Rule against duplicity) 的原則所要達到的一般目的是相同的。被告人知道構成控罪基礎的特定行為、事情或事物是很重要的，這樣可令他能夠明確知道被控的罪行，確定可以提出甚麼證據來抗辯，例如，不在場證據；這樣被告人才能夠根據週遭的情況對申訴人所提出的證據，進行細緻詳盡的盤問。如果被告人要面對的是一項罪行，但該罪行卻是建基於多項罪行的證據，他可能因此感到審訊不公平和為難；特別是如果控方證據不能清楚把多項控罪逐一分辨出來。不公平或為難的程度有多大，則視乎情況而有所不同。假如控方的案情論據是以在一段延伸的時間內發生的多項罪行的證據為基礎，不公平的情況可以很嚴重。

his principle was applied by this Court in the following three cases:
上訴法庭在以下三宗案件引用上述原則：

1)HKSAR v Chu Chi Wah (No. 2) [2010] 4 HKLRD 715;
HKSAR v. Chu Chi Wah (No. 2) [2010] 4 HKLRD 715；

2)HKSAR v Kwok Hing Tony [2010] 3 HKLRD 761; and
香港特別行政區訴郭慶 [2010] 3 HKLRD 761；及

3)HKSAR v Chu Chi Wah (No. 1) [2010] 4 HKLRD 675.
香港特別行政區訴朱志華(No. 1) [2010] 4 HKLRD 675。

(3)Our View
(3)  本庭的意見

The three counts of unlawful sexual intercourse with a girl under the age of 16 years involving X took place in three different places.  The 1st count took place in Fo Xin Hostel; the 3rd count in the Bulangshan Nong Mao Market Reception House and the 5th count in the Centre.  In addition, the 6th count, namely indecent conduct, which involved X, also took place in the Centre.
涉及X的 3 項「與年齡在 16 歲以下的女童非法性交」罪在三個地點發生。第 1 項控罪是「佛馨旅舍」。第 3 項控罪是「布朗山農貿市場招待所」。第 5 項控罪是該中心。另外，涉及X的「猥褻行為」的第 6 項控罪亦是在該中心發生。

In our view, the overall conduct of the trial shows that the prosecution did not rely on specimen charges to establish their case against the applicant.  Before the trial began, D Pang J had already discussed with the prosecution and the defence how to handle specimen charges and uncharged acts.
本庭認為綜觀案情，控方並沒有依賴「樣本控罪」檢控申請人。彭法官在審訊前已經與控辯雙方討論如何處理「樣本控罪」及不被控告的行為。

The prosecution’s opening submission concerning the 5th count and the 6th count was as follows:
就第 5、6 項控罪，控方開案陳詞的簡述是如下：

“(4)The 5th and the 6th counts
「(4) 第五、六項控罪

The 5th count is about an act of sexual intercourse between the defendant and X in the Centre.  In fact, after X was raped by the defendant in Fo Xin Hostel, the defendant had sexual intercourse with X many times in the defendant’s room in the Centre.  Between 2006 and 2008 the defendant went to the Centre from Hong Kong several times every year (in February, April/May, August and November respectively) to inspect.  When he performed such acts, X did not resist because, having been molested so many times, she became used to it.  Apart from that, the defendant gave her some presents, including MP3 player[s], T shirts and a bankcard under the defendant’s name, which enabled her to withdraw money from the bank.
第五項控罪是有關被告人和“X”在「該中心」內發生的性行為。事實上自從“X”被被告人在佛馨旅舍強姦之後被告人和“X”在「該中心」被告人的房間內發生過很多次性行為。被告人於2006年至2008年期間每年有數次(分別於2月，4/5月，8月，11月)從香港前往「該中心」視察。進行這些行為時“X”沒有反抗，因為她已經被侵犯多次所以習慣了。此外，被告人亦把一些禮物送給“X”，包括MP3機，T-恤和一張被告人名下的銀行咭以使“X”可以從銀行取錢。

The 5th count occurred during the second term of X’s primary 6 school year (between 1 January 2007 and 31 July 2007). At that time the weather was rather cold.  One day, around 0130 in the small hours, X was playing with the computer in the defendant’s room.  The defendant entered the room and locked the door.  Then he told X to sleep with him.  X wanted to leave but the defendant did not agree.  At his insistence, finally X had sexual intercourse with him in the room.  The defendant did not wear a condom and he ejaculated on X’s thigh.
第五項控罪發生於當“X”就讀小學六年級的下學期(2007年1月1日至2007年7月31日)。當時天氣還是比較冷。在晚上凌晨約01 30時“X”在被告人的房內玩電腦。被告人入房之後把門鎖上和叫“X”陪他睡。“X”想離開但是被告人不願意。在被告堅持下最後“X”和被告人在房內發生了性行為。被告人沒有戴避孕套和在“X”的大腿上射精。

The 6th count (between 1 January 2007 and 31 August 2007) was about what happened in the defendant’s room in the Centre [one day] between the second term of X’s primary 5 school year and the first term of her primary 6 school year.  On that day, the defendant was in Hong Kong.  He had given X the key to the door of his room so that she could use his room, including the computer in the room.  At the material time X, Y and Wang Zhilan (PW8) were together playing with the computer in the defendant’s room.  After they finished playing, Wang Zhilan and Y went to sleep first.  At about 1 a.m. Wang Zhilan and Y woke up and saw X and the defendant chatting through the internet.  The defendant, through the webcam, instructed X to take off her clothes and he himself also took off his clothes, exposed his private parts and masturbated himself.
至於第六項控罪(2007年1月1日至2007年8月31日)是有關於“X”讀小五下學期至小六上學期時在「該中心」被告人的房間內發生的事。當時被告人身在香港。他把自己房間的鎖匙給了“X”以後她可以使用被告的房間包括房內的電腦。當時“X”，“Y”和王志蘭(PW8)一起在被告的房內玩電腦。之後王志蘭和“Y”先睡。在凌晨約1時王志蘭和“Y” 醒來見到“X”和被告人在進行網上聊天。通過電腦上的攝像鏡頭被告人指示“X”脫去衣服，而被告人自己亦脫去衣服展示下體和進行自瀆。

On 7 April 2009 X was interviewed by Hong Kong police officers and she made complaints about what the defendant had done.”
“X”於2009年4月7日被香港警方接見和對被告人的行為作出投訴。」

Although the prosecution mentioned that the applicant and X had had sexual intercourse many times in the Centre, they did not tell the jury that they could find the applicant guilty if they were sure that he had engaged in any one of those acts of intercourse.  The evidence adduced by the prosecution in respect of the 5th and the 6th counts was not imprecise and general, but was as clear and specific as the content of their opening submission.
雖然控方提交申請人與X在該中心發生過多次性行為，但控方並沒有向陪審團說如果他們能肯定申請人有干犯其中一次的行為，便可將申請人定罪。控方就第 5 及第 6 項控罪所提出的證供，並不是籠統廣泛，而是如控方開案陳詞的內容明確及具體的。

Furthermore, D Pang J told the jury that X had specific recollection about the guilty acts referred to in the 5th count, and that at the occurrence of the 6th count other people were present.  The directions he gave to the jury were as follows:
另外，彭法官亦向陪審團指出X就第 5 項控罪所指的犯罪行為有特別記憶，而第 6 項控罪發生時是有其他人在場的。彭法官向陪審團作出的指引如下：

“In the morning of the third day, all of them left Bulangshan.  As far as X could remember, the time at which the Bulangshan incident happened should be earlier than what happened at Da Luo Town, because Da Luo Town was the place where she and the defendant had sexual intercourse for the last time.  Alright, besides the incidents happened at Fo Xin Hostel, Bulangshan and Da Luo Town, did any other things happen?  The answer is that something did happen in the Children Home, but she can’t remember how many times there were, nor could she remember the circumstances in which the first time happened.  However, there is one occasion about which she has the clearest recollection: She went to the defendant’s room and there she played with the computer for a long while until one o’clock in the small hours.  The defendant entered the room after washing his face and brushing his teeth.  He locked the door and told her not to leave and asked her to stay and sleep with him.  X said she wanted to play a while longer, using that as an excuse for not doing what he said, but the defendant simply switched off the computer.  At last, X gave in to the defendant’s persuasion.  She stayed in the room and lay on the bed with the defendant, who kissed her mouth to mouth, caressed her, removed her clothes and made love to her, proceeding in the same position as usual, that is, the defendant on top of her.  Finally, he finished by ejaculating on her thigh.  Then it was wiped with paper and [they] cleaned [themselves] in toilet.  After that, they slept together in the room until daybreak.  In the course of doing this, the defendant, again, did not say anything.
「去到第三日早上，佢哋一干人等就離開布朗山，根據X記憶，布朗山事件，喺時間上應該早於打洛鎮，因為打洛鎮係佢同被告最後一次有性行為嘅地方。好喇，除咗佛馨旅舍、布朗山、打洛鎮嗰幾次之外，仲有冇其他嘅嘢嘅呢？ 答案係喺兒童之家裡面係有嘅，次數唔記得，第一次係點發生亦唔記得，不過最記得有一次佢去被告間房玩電腦玩咗好耐，直至凌晨成點，被告喺洗面、刷牙之後入嚟鎖門，叫佢唔好走，留低陪佢瞓，X推搪，話要玩耐一啲，被告就索性連電腦都閂埋，終於經過一輪說服之後，X就留咗落嚟同被告喺床上親嘴、愛撫、寬衣、性交，姿勢同往常一樣，男上女下，最後由被告喺X大髀上面射精完結，跟住用紙抹過，去廁所洗過之後，就一齊喺房嗰度就瞓到天光，期間被告又係冇講過乜嘢。

X said she can’t remember among all the incidents which happened in the Children Home which time the above incident was according to chronological order.  She said whenever the defendant came to the Children Home he would stay there for one week and she would sleep with him on two or three nights.  As to when did [they] happen, she could just describe it in a general way.  It should be primary 6.  In respect of this incident, she said it was during the second term.  At that time the weather was a bit cold.  X said that in the Centre when the defendant did not use a condom, he would ejaculate outside her body, like what happened on this occasion.  She said she treated this incident in the same way as she treated all other incidents, that is, she had never told anyone about this sexual intercourse.  The foregoing is about the 5th count.
X話呢一次係院內第幾次佢已經唔記得，反正被告每次返嚟都會逗留一星期，而佢就會陪佢瞓兩、三晚。日期方面都係，佢只能夠籠統咁講，應該係六年級，今次有講下學期，當時嘅天氣仲有少少冷。X話，喺「該中心」入面被告如果唔用避孕套嘅話，就會將精液射到佢體外，就好似今次咁，佢話同其他所有事件一樣，佢從來都冇將呢一次嘅性行為話過畀任何人聽，以上就係控罪五。

Lastly, X said that besides having sexual intercourse with her, there were occasions on which the applicant told her to strip herself when he was having video chats with her on line.  The defendant had also exposed his private parts to X and even masturbated himself, leading to ejaculation.  This happened two or three times in total.  On one occasion, other people were present.  How did it happen?  In the Centre, only the defendant’s room was equipped with a computer.  When he was in Hong Kong and wanted to call the people of the Centre together for a meeting, he would telephone to the Centre to ask them to switch on the computer so that he could talk with them.  Further, X had a key to [the door of] the applicant’s room, so she could often enter the room to play; and if she didn’t want to be alone, she could ask her friends to come to accompany her.  In these circumstances, one night during the first term of X’s primary 6 school year, when Wang Zhilan was sleeping and when X was chatting with the defendant through the internet, what described above took place, but it is not clear whether Wang Zhilan had really fallen asleep.  This is the 6th count.”
最後，X話除咗性交之外，被告曾經喺網上用視頻同佢傾偈嗰時叫佢除衫，反之被告亦試過向X展示下體，甚至自瀆、射精，呢啲情況一共試過兩、三次，有次仲有他人在場，即係點呢? 原來「該中心」就只有被告間房有電腦，如果佢喺香港，但係又想召集「該中心」嘅人開會，就會打電話過嚟叫佢哋開電腦，進行對話。仲有，被告間房X其實係有鎖匙嘅，可以經常入去玩，而且唔想一個人嘅話，就叫朋友陪。就係咁，喺六年班上學期嘅某一晚，當王志蘭瞓著咗，而X繼續同被告喺網上傾偈嗰時，就發生咗上述嗰種情況喇，不過王志蘭係咪真係瞓著咗呢，就唔知喇，呢個就係控罪六。」

D Pang J asked the jury to pay attention to X’s evidence:
彭法官亦提醒陪審團有關X的證供:

“As regards the incident about having sexual intercourse in the defendant’s room, actually she had mixed things up. 1 mean the truth is that it was the defendant who was continuously playing with the computer.  After that, he made her stay overnight there.  Why did this incident leave such a deep impression in X’s mind?  X said there was no special reason.  She said she could remember it and that’s why she remembered it.”
「至於喺被告房內性交嗰次，其實係佢倒轉咗，意思係被告不斷喺度玩電腦至啱，然後先將佢留低過夜。至於呢次X點解印象咁深刻呢？ X就話冇原因，記得就記得。」

The Da Luo Town incident referred to in the directions above was the subject matter of a charge of which the applicant was acquitted.
上述指引所提及的打洛鎮事件是涉及一項申請人被判無罪的控罪。

D Pang J also gave detailed directions to the jury in relation to the uncharged acts:
彭法官更就「不被控告的行為」向陪審團作出詳細的指引：

“The 5th point, you will remember that the six counts which involve X are only so-called specimens.  Why is it?  It is because X claimed that she had had sexual intercourse with the defendant as many as 10 to 20 times in total, at least more than 10 times; and that the occasion mentioned in the 6th count was not the only occasion on which he exposed his body through the webcam, right?  In addition, there were the bath-taking incidents which some people said they saw that but X denied, right?  Well, in that case, you must be careful.  First of all, the acts which have not been included in the charges in the indictment have no evidential value at all unless, unless what, unless you are sure that they did happen.  Secondly, even if you are sure that they did happen, these acts can only be used to explain one thing, and the thing is why is it that within the period of time involved in this case, X did not resist sexual contacts with the defendant and she even became used to them.  Furthermore, this is the third point, you should never simply rely on this kind of evidence and then come to the conclusion that the defendant did commit offences of a similar nature, or the conclusion that the defendant is the sort of person who will commit the offences which he is charged with in the present case.  Moreover, this is the 4th point, you should never simply rely on this kind of evidence and then stop thinking and just casually find the defendant guilty of the charges in the indictment.  On the contrary, you should carefully consider each count one by one.  What I have said is about what the uncharged acts can be used for and what they cannot be used for.  You must not have any confusion about this, alright?”
「第五點，大家會記得有關X嘅六條控罪，都只係所謂樣本嚟嘅啫，點解呢? 因為X聲稱，佢同被告性交嘅總次數係十至二十次咁多，起碼超過十次喇，視頻露體亦唔只控罪六嗰次嘅，係咪? 仲有人哋話見到而X又否認嘅沖涼事件呢，係咪? 好喇，就係咁，大家就要小心喇。首先，嗰啲冇被列入公訴書去告被告嘅行為，係完全冇舉證價值嘅，除非咩嘢呢? 除非你肯定佢哋曾經發生過；第二，就算你肯定佢哋確曾發生，呢啲行為亦只能被用作解釋一樣嘢，呢樣嘢就係X點解會喺本案所涉及嘅時段內，對被告嘅性接觸不再抗拒，甚至係習慣晒；相反，亦即係第三點，你哋絕唔可以因為有呢方面嘅證據，而認定被告有干犯同類嘅罪行，又或者係會干犯本案控罪嘅嗰類人；同樣，即係第四點喇，你絕唔可以因為有呢方面嘅證據，就懶得諗，求其裁定被告公訴書裡面有嘅罪名成立，相反，你係要逐項逐項咁認真考慮。以上就係嗰啲未被檢控嘅行為嘅用處同非用處，兩者絕對不能混淆，得唔得？」

Mr. Law relied on the comments made by the Court of Final Appeal in Chim Hon Man on page 165: The trial judge did not instruct the jury to the effect that the absence of particularity with respect to the individual incidents alleged to have occurred so long ago made it difficult for the defendant to be convicted of [sic] the charges.  The giving of this direction is an important element in ensuring fairness to the defendant in cases involving charges concerning acts that occurred long time ago, especially where there is little particularity.  Mr. Law argued that in the present case D Pang J did not give any direction similar to the above direction.  We do not agree with this argument, because D Pang J did give the jury directions along these lines:
羅大律師引用終審法庭在Chim Hon Man 第 165 頁的說法：原審法官在給予陪審團指引中沒有說明如果就所指稱發生在很久以前的個別事件沒有詳盡細節的話，很難將被告人定罪。這項指引對於很久以前發生，尤其沒有細節的控罪是重要的，以確保對被告公平。羅大律師指彭法官在本案沒有作出相約的指引。本庭不同意這說法，因為彭法官在引導陪審團時已經作出相約的指引：

“Firstly,our experience tells us that for various reasons, sometimes the victims of some criminal cases really made false accusations; and, it may be easy to make false accusations but to refute them is difficult; and this applies to any defendant no matter how innocent he is.
「第一，經驗話畀我哋聽，由於種種理由，刑事案件嘅事主有時的確係誣告嘅；仲有，誣告嘅嘢可能好易提出，不過反駁就好難，呢個無論有幾清白都係咁嘅；

Secondly,in the final analysis, it cannot be denied that X, Y and Wang Zhilan were of tender age, especially during the early period.  Is there any possibility that they could not tell right from wrong, and for some reasons they said something irresponsibly, resulting in Ms. Shum making a report to the police, and the matter then went out of control?  You have to consider this.
第二，講到尾，X、Y同王志蘭始終年輕，尤其係最初嗰時，咁佢地會唔會唔識分輕重，因乜理由亂講咗啲嘢出嚟令岑女士報警，一發不可收拾，大家都要考慮；

Thirdly,every offence in this case was allegedly committed three years or more than three years ago.  You must take into account the disadvantages which the defendant may suffer as a result of this fact; for example, would he forget something which could have been in his favour?  Another example: If these incidents had not happened so long ago, could he have been able to prove that he was not present at the scene?  When you consider these factors, you should put yourself in his position in order to see whether it would affect your verdict.”
第三，本案嘅控罪全部都有三幾年歷史咁耐，所以你哋一定要考慮埋呢個事實對被告所產生嘅可能不利，例如佢會唔會唔記得某啲嘢，而呢啲嘢有可能對佢有利嘅呢，又例如如果時間冇隔得咁耐嘅話，佢會唔會可以證明自己不在場呢? 凡此種種，你哋都要設身處地去諗一諗，睇下會唔會影響到你哋嘅裁決。」

We do not think that the applicant has put forward sufficient grounds for appealing against the convictions in respect of the 5th count or the 6th count.
本庭不認為申請人就第 5 項及第 6 項控罪的定罪提出充分的上訴理據。

4)Ground of appeal 5
4)  上訴理由5

(1)Elements of the charge of unlawful sexual intercourse
(1)  非法性交的犯罪要素

The applicant submitted that the jury was not entitled to find him guilty of the 1st count.  His reason was that X gave evidence that he did not penetrate into her private parts or that she was not sure whether he did penetrate into her private parts, therefore based on such evidence the jury could not possibly be sure that he did penetrate into her private parts.
申請人認為陪審團不可以裁定他干犯控罪1，原因是X的證供是申請人沒有插入她的下體，或者她不清楚申請人有沒有插入她的下體，故此陪審團在這證據基礎上是不能肯定申請人有插入X的下體。

(2)D Pang J’s directions
(2)  彭法官的指引

As to the question of whether the applicant did penetrate into X’s vagina, D Pang J carefully recapitulated X’s evidence to the jury:
關於申請人是否有插入X的陰道，彭法官詳細地向陪審團複述X的證供：

“Evidence-in-chief of X
「X主問

...... To put it simply, X said that the defendant removed her clothes by force, that is to say, her outer garments and her two pants — the outer pants and the underpants were pulled down and away from her body.  She resisted and told the defendant to go away, but her strength was weaker than the defendant’s.  As for the defendant himself, he did not take off his upper garments.  He just pressed one of his hands on X and removed his trousers with the other hand.  Then he inserted his penis into X’s private parts.  However, that was X’s first time, so (I quote) it was very tight and it could not get into her; but X immediately added this: The defendant should have been successful in getting into her body, and after that he moved his body up and down, which caused her great pain.  X went on to say that upon entry into her body, the defendant kissed her and put his hand underneath her bra and fondled her breasts.  To sum up: X said that the defendant at that time did not wear any condom.  However, she was not able to tell how deep into her body he entered or how long the whole process lasted.  It was a little longer than one minute but less than two minutes.  Furthermore, X said that she did not see how the applicant’s body moved at the moment of his entry into her body.  However, when the defendant finished, withdrew and wiped that part of the body with paper — she saw this part of the process.  At that moment, the defendant told her not to tell anyone about this.  .....”
……簡單嚟講，X就係話被告係強行將佢嘅衣服脫去嘅，即係面衫同內外兩條褲一齊咁  扌盟    咗落嚟，佢反抗，叫被告走開，但係就唔夠被告大力。至於被告自己就更加係連衫都冇除嘅，只係一隻手壓住X，一隻手除褲，然後攞自己嘅下體插入X嘅下體。不過，由於嗰次係X嘅第一次，所以(我引述)好緊，插唔入。然而X隨即又補充，被告應該係成功咁進入咗佢嘅身體嘅，之後仲上上下下咁搖，令佢好痛。X繼續話，被告喺進入咗佢體內嗰時ロ錫 過佢，又用手伸過入佢胸圍下面摸佢胸部。總括而言，X話被告當時冇戴避孕套，不過進入咗佢身體有幾深，整個行為又維持咗幾耐，佢就講唔到，大概係一分鐘多啲，兩分鐘唔夠。此外，X又話見唔到被告進入佢身體時嘅動作，不過被告完事，抽身出嚟攞紙去抹個部分佢又見到。當時被告仲叫X唔好向人透露有呢件事。…..

X under cross-examination
X盤問

Following that, it was the Fo Xin Hostel incident.  According to X, before it happened, she did not expect that such thing would happen; but when the defendant began to remove her clothes, she did not put up much of a resistance, so not all what she said in the video recording is true.  However, there’s one thing and that is when the defendant was about to penetrate into her, she tried to push him away.  Why?  Because, after all, it was her first time, so she felt great pain; and for that reason the duration of that intercourse was very short; at most it was one to two minutes.  On this basis, the defence asked her, “You said you were not willing.  The only reason for your saying so was that you felt pain, but not because you resisted the defendant making love to you, right?”  X’s answer was: “I don’t know.”  The defence asked her another question: “Finally the defendant stopped.  Was it because you felt pain?”  X said, “Should be so, I’m not sure.”  The final remark of the defence was: “The defendant could not penetrate into your body, and that’s because you felt pain.”  X said, “I agree, that should be so.”  As for the contraceptive pill which later appeared, X confirmed that the defendant did not force her to take it.  He just gave it to her.  X knew that it was a contraceptive pill because the defendant told her that it was. …..
跟住係佛馨旅舍事件，X話事發前佢唔預計到會有咁嘅事發生，不過被告動手去除佢啲衣衫嗰陣時候，佢又冇乜反抗，所以錄影帶裡面講嘅並非全部係事實。只不過咩嘢呢？ 被告要插入嚟喇，X就試過去推佢，點解呀，因為畢竟係第一次，所以好痛，亦因為咁，佢哋性交嘅時間其實好短，最多只係一、兩分鐘，如果係咁，辯方就問喇，『妳所謂唔願意原因只係痛，而唔係抗拒同被告同妳有性行為，係咪呢？』咁，X就答『我唔知。』辯方再問『被告最後停止咗，係咪因為妳痛呢？』X就話『應該係，我唔清楚。』最後辯方話『被告係插唔到入去嘅，因為妳痛？』X就話『同意，應該係。』至於後來嗰粒避孕丸X亦都確認唔係被告逼佢食嘅，被告只係攞嚟畀佢嘅啫，X知道係避孕丸，就因為被告話嘅。…..

Re-examination of X
X覆問

…… As regards the Fo Xin Hostel incident, X further clarified her evidence by saying that before the defendant stopped his actions he did try to get into her body slowly, and that in the course of doing so he might have so-called shaken his body.  It’s for this reason that she gave similar description in the video recording.  However, the thing which X had the clearest recollection was pain.  As to whether the defendant did penetrate into her, she could not give a clear answer.”
……至於佛馨旅舍嗰次，X喺進一步澄清嗰時話，被告喺停止佢嘅行為之前有試過慢慢進入佢身體，期間亦可能試過喺度所謂搖，亦因為咁，佢先喺錄影帶度有類似嘅描述。不過，X最清楚嘅就只係知道痛，被告究竟有冇插過入去，佢就說不清楚喇。」

D Pang J also gave directions to the jury about the alternative count for the 1st count, i.e. attempted unlawful sexual intercourse:
彭法官亦有就第一項控罪的交替控罪即企圖非法性交向陪審團作出指引：

“Lastly and finally, please pay attention to this.  The 1st count of this case is treated in a special way.  You have heard what the prosecution said, that is, if you are sure that X’s evidence is true, that is to say, you are sure that she and the defendant had sexual contacts in Fo Xin Hostel; but because X felt pain, you are not sure whether the defendant’s penis did enter into her vagina; you are not sure whether there was even the slightest degree of entry.  Then, after finding the defendant not guilty of the charge of having unlawful sexual intercourse with a girl under 16, you have to go on to consider whether he was guilty of the alternative count: attempting to have unlawful sexual intercourse with a girl under 16, although it is not written on the indictment.  To attempt means that at the time in question the defendant intended to have sexual intercourse with X and with that intention in his mind he did something, and what he did was more than mere preparation for having the sexual intercourse.  The only thing he had not done was to complete the sexual intercourse.  If you are sure that this was what happened at that time, you can find the defendant guilty of attempting to have unlawful sexual intercourse with a girl under 16.  Let me give you an example: if the defendant did insert his penis into X’s private parts, it may be regarded as an act more than mere preparation for the sexual intercourse, even though X pushed him away because she felt pain.  If he repeatedly tried to do that, it would be even more likely that he had fulfilled the condition.  It is for you to decide whether that was what happened.  You think about it yourselves.
「最後最後請大家注意，本案嘅控罪一仲係有啲竅妙嘅，你哋都聽過控方講過喇，就係如果你肯定X講嘅係真話，即係肯定佢有同被告喺佛馨旅舍有性接觸，但係就因為X痛，而唔肯定被告嘅陰莖有進入過X嘅陰道入面，連最輕微嘅進入都唔肯定，咁你哋喺裁定被告與年齡在16歲以下的女童非法性交罪不成立之餘，就要再考慮佢係咪企圖與年齡在16歲以下嘅女童非法性交嘅交替罪名成立。雖然公訴書冇寫。「企圖」嘅意思就係話被告當時意圖同X性交，而又懷住呢個意圖做咗某啲嘢，而呢啲嘢又超乎咗只屬於準備去性交嘅行為，只係冇完成呢個性交啫。如果你肯定當時嘅情況係咁嘅話，你哋就可以裁定被告企圖與年齡在16歲以下嘅女童非法性交罪成立。舉個例，如果被告有將自己嘅陰莖插向X嘅下體，或者都算超乎咗僅屬於準備性交嘅行為喇，雖然因為X痛呢，畀佢推開咗。如果佢試完又試就更加係咁喇。個情況係咪咁，你哋自己決定，係自己去諗。」

Finally, the jury unanimously found the defendant guilty of the 1st count.
陪審團最終一致裁定申請人第一項罪名成立。

(3)Our View
(3)  本庭的意見

We consider that the jury’s verdict shows that they believed that the applicant did penetrate into X’s vagina.  This was a finding of fact made by the jury.  They personally heard X’s evidence and saw her demeanour when she was giving evidence.  Although on the face of it some parts of her evidence was inconsistent with other parts, she maintained that the applicant’s actions of assaulting her private parts made her feel pain.  In our judgment, the jury was entitled to find that the applicant’s penis did penetrate into X’s vagina on the basis of her evidence.
本庭認為陪審團的裁決反映他們認為申請人是有插入X的陰道。這是一項陪審團對事實的裁決。他們親自聆聽X的證供及觀察她作證時的神態。雖然X所給予的答案表面上是前後不符，但X堅持申請人侵犯她下體的動作令她感覺痛楚。本庭認為陪審團是可以根據X的證供裁定申請人的陽具確實曾插入她的陰道。

The applicant submitted that according to The Sexual Offenses Act 2003 of the U.K., vagina includes vulva, but that there is no similar definition under the laws of Hong Kong, and that therefore even if the applicant succeeded in penetrating into the vulva, that did not constitute sexual intercourse.  We do not accept this argument.  The fact that under the laws of U.K., vagina is defined as including vulva does not mean that under the existing laws of Hong Kong, the penetration of the penis of a male person into the vulva of a female person is not sexual intercourse.  In Hong Kong, the law is that “intercourse shall be deemed complete upon proof of penetration by the penis only”.  (Archbold Hong Kong 2012 paragraph 21-2).  According to the 25th edition of Stedman’s Medical Dictionary, the definition of vagina is “the genital canal in the female, extending from the uterus to the vulva”.  As pointed out on page 467 of Smith & Hogan Criminal Law (10th edition), to prove sexual intercourse, the slightest penetration will suffice.  In the case of vaginal intercourse any penetration of the female genitalia is enough at common law.  It is not necessary for the prosecution to prove that the vagina in its proper anatomical sense is penetrated.
申請人指，根據英國的The Sexual Offences Act 2003《2003 年性罪行條例》「陰道」的定義包括為「外陰」，但香港的法例並沒有相同的定義，故此就算申請人有插入X的外陰，這也不構成性交。本庭不同意這論點。雖然在英國的法例下，陰道的定義包括外陰，這不表示根據現時香港法律，男性的陽具插入女性的外陰不構成性交。香港的法律是「單憑證明陽具插入即當作完成交合」(Archbold Hong Kong 2012 第 21-2 段)。根據 Stedman’s Medical Dictionary 第 25 版，「陰道」的定義是「由子宮引延至外陰的生殖器管道」(the genital canal in the female, extending from the uterus to the vulva)。正如Smith & Hogan Criminal Law (第 10 版)第 467 頁說：最輕微的插入已經足夠構成性交。根據普通法，任何程度地插入女性生殖器官已經足夠構成陰道交合，控方是無須證明已插入符合解剖學定義的陰道。

5)Ground of appeal 1
5)  上訴理由1

(1)Y's age
(1)  Y的年歲

The time period relevant to the 7th court, which involves Y, was between 1 August 2005 and 31 July 2007.  Calculation made on this basis showed that Y was less than 16 years old during the period in which she was sexually assaulted by the applicant.  Subsequent to that, D Pang J gave the following directions to the jury:
涉及Y 的第 7 項控罪的時間是 2005 年 8 月 1 日至 2007 年 7 月 31 日。根據這樣推算，Y 被申請人性侵犯的時段是不足 16 歲。彭法官接着對陪審團作出以下的指引：

“The above-mentioned view, this view of the prosecution, basically the defence do not object to it.  However, there is one point, and that is Y said that Wang Zhilan was one grade more senior than she and X, and Wang Zhilan said that she herself was promoted to primary 6 after the Chinese New Year holidays in 2006.  If calculation is made on the basis of that year, then the second term of Y’s primary 6 school year, that’s the time when she was allegedly indecently assaulted, at the latest it could be December 2007 or even January 2008.  That means she was over 16.  Why?  Let me remind you.  The forensic pathologist, who is an expert on matters about teeth, had made some calculations.  According to his calculations, Y could have reached 16 by 6 October 2007.  You have to take this point into account.  But, however, assuming that she had reached 16, what does it matter?  As I said before, the constituting element of indecent assault is that the victim does not consent to her being assaulted or touched.  This is so unless the victim is younger than 16.  Therefore, since Y herself said that she was not willing to be touched by the defendant — she did say so, didn’t she — it seems that whether she was 16 or not is not a problem.  The only problem is whether you believe what she said. ……
「以上的諗法，控方呢個諗法，辯方基本上冇反對，只不過咩嘢呢? 就係Y講過，王志蘭高班過佢同X一年，而王志蘭又講過，自己喺06年春節假後升上小六。如果根據呢個年份去計嘅話，咁Y小六下學期，據稱被非禮嗰陣時，最遲就可以去到07年12月，甚至係08年1月嘅，亦即係超過咗16歲。點解? 提番大家，因為牙齒法證專家嘅推算，根據佢嘅推算，Y喺07年10月6日就可能足16歲喇嘛，呢點大家係要考慮嘅。不過，不過，足16歲又點呢? 正如我指出過，猥褻侵犯嘅構成，係要受害人不同意被侵犯或者觸摸吖嘛，除非受害人細過16歲喇，所以Y既然話自己唔願意畀被告摸，佢係咁講過吖嘛，係咪? 咁佢係咪16歲，似乎都唔係問題喇，問題只係你信唔信Y講嘅嘢啫。……

…… Miss Y reiterated that this incident occurred during the second term of her primary 6 school year.  She remembered that because during that period, she thought of leaving the Centre, the Children Home.  However, when the defence asked her further questions, she said that actually she could not remember clearly matters about time.  What she was sure about was that Wang Zhilan was one grade more senior than she and when Wang Zhilan went up to the next grade in school, that was when she went up to the next grade in school; so if Wang Zhilan was promoted to primary 6 after the Chinese New Year holidays in 2006, she would at the same time be promoted to primary 5.”
…….Y小姐重申，呢次事件發生於佢小六下學期，佢記得係因為嗰段時間諗過要離開「該中心」兒童之家。不過，喺辯方再問落去之下，佢又話時間嘅嘢佢其實已經唔係記得咁清楚。佢肯定嘅係王志蘭比佢高一班，而且王志蘭幾時升班，佢幾時升班，所以如果王志蘭係06年春節假後升小六嘅，佢就同時升小五。」

(2)Applicant’s argument
(2)  申請人的論點

The applicant submitted that in respect of the 7th count, D Pang J erred in giving directions to the jury to the effect that whether Y had reached 16 was not a matter they needed to consider.
申請人認為彭法官在第 7 項控罪錯誤地引導陪審團說Y是否足 16 歲是不需要考慮的問題。

(3)Our View
(3)  本庭的意見

According to section 153P(1)(b)(ii) of the Ordinance, the offence in question should be committed in relation to a person under the age of 16.  We therefore agree that D Pang J’s direction to the jury to the effect that whether Y was 16 or not had nothing to do with the offence was a wrong direction.  However, we do not think this would affect the soundness of the conviction.
根據《條例》第 153P(1)(b)(ii) 條，有關的罪行是就未滿 16 歲的人而作出的，故此本庭同意彭法官對陪審團說Y是否足 16 歲與控罪無關是一項錯誤的引導。但本庭不認為這會影響定罪的穩妥性。

The agreed facts stated that the forensic pathologist, who is an expert on matters about teeth, examined Y on 6 April 2009 and the result was that he confirmed that her age, i.e. Y’s age at the day of examination was 17 years old, subject to an adjustment of six months, plus or minus.  That means as at 6 April 2009, the oldest possible age of Y was 17½ years old.
根據獲雙方承認的事實，牙齒法證專家在 2009 年 4 月 6 日檢驗 Y，得出的結論確認她的年齡是Y在檢驗當日的年紀是 17 歲加減 6 個月，即在 2009 年 4 月 6 日Y的年紀最高是 17 歲半。

Y gave evidence that she was born on 20 April 1992, which was not challenged by the defence counsel, and this date is compatible with the opinion given by the teeth expert.  In our judgment, even though D Pang J gave erroneous direction as to a point of law, the jury was entitled to accept the evidence given by Y herself but not the evidence given by Wang Zhilan in order to come to their conclusion that when Y was indecently assaulted by the applicant she was under the age of 16 years.
Y的證供是她在 1992 年 4 月 20 日出生。辯方律師沒有反對這證供。這個日期亦是與牙齒法證專家的意見相約的。本庭認為就算彭法官就法律觀點作出錯誤的指引，陪審團是有權接納 Y本人的證供而不是“王 志 蘭”的證供來裁定她被申請人性侵犯時是在 16 歲以下。

Conclusion of the application for leave to appeal against conviction
定罪申請的總結

For the above reasons, we dismiss the application for leave to appeal against conviction.
基於上述原因，本庭駁回針對定罪的申請。

Application for leave to appeal against sentence
刑期申請

1)Applicant’s arguments
1)  申請人的論點

The applicant complained that the starting points used by D Pang J for the individual counts were manifestly excessive, that his order that one year of each of the sentences for the 3rd, the 5th, the 6th and the 7th counts was to run consecutively to the other sentences was too severe, and that insufficient consideration was given to the totality principle or the principle that where an offender is to serve multiple sentences for multiple offences, the overall sentence should not be excessive.  Moreover, he submitted that D Pang J erred in rejecting all the mitigating factors, particularly the factor that the applicant was a person with a positively good character.  At the time of the sentencing, the applicant was 49 years old.  He received education up to tertiary level and was a social worker by occupation.  He was enthusiastic about voluntary work and had provided his services to various institutions.  In his spare time he set up and ran the organization involved in this case.  The applicant considered that his having sexual intercourse with X was not illegal on the Mainland, because X at least was 14 years old and she consented to the sexual intercourse.
申請人認為就各項控罪彭法官採用的量刑基準是明顯過高，而且他把控罪第 3、5、6、7 的刑期依次各有 1 年分期執行是明顯過高，沒有充分利用整體量刑或數罪定罰不能過重之原則。另外，彭法官錯誤否定所有求情因素，尤其申請人是一名有正面品格的人。申請人在判刑時 49 歲，接受教育至大專程度，以社工為職業。他熱衷於義務工作，參與過不同機構服務，在工餘時設立及籌辦涉案的中心。申請人認為在國內他與X發生性交是不違法的，因為X至少有 14 歲，而且是同意性交的。

2)Our View
2)  本庭的意見

We are of the view that the applicant failed to adduce admissible evidence in relation to applicable PRC laws either at the trial or during the appeal.  In HKSAR v Tsang Chiu Tak, CACC 386/2011, this Court gave the following guidelines about the sentencing principle for cases involving sexual assaults on children by adults:
本庭認為申請人未能就國內適用的法律在原審或上訴時提供可令法庭接納的證據。本庭在香港特別行政區與曾昭德CACC 386/2011 一案就成年人性侵犯兒童案件的量刑原則作出以下的指示：

“The Sentencing Principle
「量刑原則

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

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

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

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

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

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

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

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

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

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

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

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

See HKSAR v Chow Yuen Fai [2010] 1 HKLRD 354, HKSAR v Lee Hon Wah [2011] 4 HKLRD 319, HKSAR V Ng Ka Kin (CACC 328/2010) and HKSAR v Lee Kwok Wai (CACC 199/2011).”
見：HKSAR v. Chow Yuen Fai [2010] 1 HKC 181, HKSAR v. Lee Hon Wah [2011] 4 HKLRD 319, 香港特別行政區對吳家健Ng Ka Kin (CACC 328/2010) 及HKSAR v. Lee Kwok Wai 李國偉(CACC 199/2011)。」

D Pang J considered that the crimes committed by the applicant were extremely serious, and he enumerated the following factors:
彭法官認為申請人所犯的罪行極為嚴重，他列出以下各點：

(1)There was a huge age difference between he and either X or Y.
(1)他和X及Y的年齡差距極大；

(2)X, in particular, was of very tender age.
(2)單就X而言，她的年齡偏小；

(3)In the relation between the applicant and the two girl victims, there obviously was no love and affection in the sense of the love and affection between a girl and her boyfriend.  As far as X is concerned, perhaps she was well disposed towards him and was grateful to him.  However, the applicant had a wife and his daughters, who live permanently in Hong Kong. He assumed the status of sworn father in the Centre.  The first sexual intercourse between X and the applicant was not something which X expected to happen and it could even be said that it happened as a result of her falling into a trap set by the applicant.  It was definitely not the outcome of love and affection between a man and a girl.  Moreover, X was not the only victim in the present case or in the Centre.
(3)申請人和兩名受害女童的關係明顯不涉及男女之間的感情元素，以X為例，X可能對申請人有好感、有謝意，不過申請人有妻女長住香港，他以「乾爹」在該中心自居，X又在意料之外、甚至是墮入申請人的圈套的情況下和他發生第一次關係是明顯不出於男女之間的愛意，更何況X並不是本案或者該中心裡面唯一的受害人；

(4)On the occasions when he committed the offences he did not wear a condom.
(4)申請人幾次犯案時都是沒有戴上安全套;

(5)On some occasions he committed the offences in the presence of other children.  This showed that he had reached the stage that he had absolutely no scruples about acting in the way he did.
(5)申請人有幾次犯案時都有其他院童在場，證明他已經去到事無忌彈的地步；

(6)The purpose of setting up a children’s home must be to take care of the children, so that they can grow up in a safe environment; but what the applicant did was exactly the opposite.  In the case of X, the offences were committed over a rather long period of time; it was more than one year.  It is one of the most serious examples of breach of trust.
(6)任何人開設兒童院，目的當然是護幼，讓她們在安全的環境下成長，不過申請人卻反其道而行之，而且就X而言，有關罪行發生在一段較長的時間內，超過一年，是違反信任情況最嚴重的類別之一；

(7)Although X said in court that the goods and commodities she obtained from the applicant had nothing to do with the sexual relationship between she and he, the evidence showed that the benefits she received from the applicant were more than those received by others; for example, she had a bank card; she could freely go into the applicant’s room by using a duplicate key to play with the computer; and even her elder sister and her mother received financial assistance from the applicant.  All these could prove that the applicant intended to exchange these benefits for X’s cooperation.  That means what he had been doing was to corrupt the mind of the victim by material benefits.
(7)雖然 X 在庭上聲稱，接受申請人的物質供應，與她跟申請人的性關係無關，不過從種種的證據顯示，X 從申請人身上得到的好處要比別人多，例如她有銀行卡，可以自行以配好的鎖匙進入申請人房間玩電腦，又或者連她的姐姐和媽媽都得到申請人金錢上資助等等。這些都能證明申請人有換取X合作的意圖，亦即是以利益去荼毒受害人的心智;

(8)By committing the offences on the other side of the border the applicant damaged the reputation of charitable organizations set up by Hong Kong people on the Mainland.  Those affected were not confined to individual persons or a particular organization.
(8)申請人跨境犯案，令香港人在內地建立的慈善事業的聲譽受損，影響不單只於個別人士或者機構。

Besides, the psychologist commented that the applicant was deeply affected by a sense of inferiority and that this resulted in his strong desire to manipulate others.  He said the applicant had no insight into his problems and was remorseless for what he had done in this case.  His risk of re-offending was estimated to be moderate to high.  This was a cause for concern.  However, D Pang J stated that this was not where his attention was focused on, but that in the report nothing in favour of the applicant could be found.
另外，心理學家亦指出申請人自卑心重，反而變得操縱慾強，而且缺乏自省，對本案毫無悔意，所以再犯的機會是中至高度，令人關注。但彭法官說明這不是他的著眼點。只是報告內容並沒有絲毫對申請人有利的地方。

In our view, D Pang J had sufficiently considered the circumstances of this case.  We find that the starting points for the individual counts and the overall sentence are all appropriate and nothing is manifestly excessive.
本庭認為彭法官充分考慮了案件的情況。本庭認為無論個別量刑基準或整體刑期都是適當的，沒有明顯過重。

Conclusion of the application for leave to appeal against sentence
刑期申請總結

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

Mr. Lawrence Law, instructed by Messrs. Littlewoods, assigned by the Legal Aid Department, for the Applicant.
答辯人：由律政司高級檢控官劉少儀代表。

Ms. Virginia Lau, Senior Public Prosecutor of the Department of Justice, for the Respondent.
申請人：由法律援助署委派聶柏仁律師行轉聘羅達雄大律師代表。