Hon Cheung J.A. (giving the reasons for judgment of the Court):
上訴法庭法官張澤祐頒發上訴法庭判案理由書：

The two applicants were each indicted separately of one count of rape, contrary to section 118(1) of the Crimes Ordinance, Cap. 200 of the Laws of Hong Kong. The particulars of offence of the two charges stated that on 26 August 2007 each of them raped Miss X in an hourly hotel in Hong Kong.
兩名申請人分別被控一項「強姦」罪，違反《刑事罪行條例》(香港法例第200章)第118(1) 條。兩項控罪的控罪詳情指他們在2007年8月26日在香港的一間時鐘酒店內分別強姦X小姐。

The case was heard before Deputy High Court Judge D. Pang (as he then was) and a jury. The 1st applicant and the 2nd applicant were found guilty by the jury by 6 to 1 and 5 to 2 respectively, while another accused of this case, namely the 3rd accused, was found not guilty by the jury by 6 to 1. The two applicants sought leave to appeal against their convictions. After hearing, we granted the application and treating the application as the appeal proper, we allowed the appeal and quashed the convictions.
案件經高等法院暫委法官彭偉昌(當時官階)會同陪審團審理後，第一和第二申請人分別被陪審團以6比1和5比2比數裁定罪名成立；同案的另外一名被告人(即第三被告人)被陪審團以6 比1 比數裁定罪名不成立。兩名申請人就定罪提出上訴許可申請。本庭經聆訊後批准申請，視申請為正式上訴，批准上訴及撤銷定罪。

Prosecution case
控方案情

The victim Miss X was in her 20’s and single. Sometime between 1 and 2 a.m. on 26 August 2007, Miss X went to a nightclub to join a birthday party. The people in this party included the two applicants and the 3rd accused. The 1st applicant was a schoolmate of Miss X. Miss X said that when she was in the nightclub, she had at different times drunk two alcoholic drinks she made. The first drink was made up of 5 parts Vodka to one part orange juice, while the second drink consisted of half Vodka and half orange juice. She drank half of each of the drinks. In the course of the party, she danced with the 2nd applicant and the 3rd accused. Not long afterwards, she felt sleepy and she fell asleep, resting her head and the upper part of her body on a table. She had wakened up twice — the first time because she wanted to vomit; the second time was that a friend nicknamed Siu Ming was about to leave the nightclub and woke her up and asked her whether she would leave with him, but she remained there and continued to sleep. Later, somebody woke her up and told her to leave the nightclub. At that time she felt weak all over and her faculty of judgment did not function. She left the nightclub with that person. When Miss X viewed the CCTV videotape of the building where the nightclub was situated, she recognized that the person she followed when leaving the nightclub was the 3 rd accused. Subsequently she, the two applicants and the 3 rd accused went by car to somewhere she did not know. Upon arrival at that place, she just heard someone say, “No vacant place.” After that, they went somewhere else. When they were taking a lift, someone touched her breasts. She was not in a clear state of mind at that time, so she did not know who that person was. Later, Miss X saw a fat woman, who said, “So many people, are you going to have a party?” Someone answered, “We’ll leave soon.”
受害人X小姐是一名二十多歲的未婚女子。2007年8月26日早上一時許，X小姐到一間夜總會參加一個生日派對。參加派對的人士包括兩名申請人及第三被告人。第一申請人是X小姐的同學。X小姐說她在夜總會內先後飲過兩杯由她自己調校的酒精飲品，第一杯飲品有5 份的伏特加酒和 1份的橙汁，另一杯的伏特加酒和橙汁各有一半分量，每杯飲品她都飲了一半。其間她與第二申請人及第三被告人跳舞，不久，她覺得睏倦，於是伏在枱上睡覺。她曾醒過兩次，一次是要嘔吐，另外一次是一名花名叫「小明」的朋友在離開夜總會前喚醒她問她會否與他一同離開，但她留下繼續睡覺。後來有人喚醒她及叫她離開夜總會，她當時全身乏力和沒有判斷能力，她跟隨着那人離開夜總會。在翻看當晚夜總會所在的大廈的閉路電視錄影帶後，X小姐認出她當時跟隨着的那個人就是第三被告人。之後，她與兩名申請人和第三被告人乘車往一處她不知道是哪裡的地方，在到達該地方後她只是聽到有人說「冇位」。之後，她們又轉往另一個地方，在乘電梯時有人撫摸她的胸部，她當時神智不清，所以不知道那人是誰。之後，X小姐看見一位肥胖的女士，她說：「咁多人，開P呀？」接着，有人回答她：「好快走。」

After that, Miss X entered the room.  She was drunk and felt sleepy, and she lay on her front on a bed.  Shortly afterwards, she felt that she became totally naked and that she was having sexual intercourse with someone.  She described that at that juncture her mind was blurred and she could not use her senses.  She was not willing to have sexual intercourse but was not able to express what was in her mind.  In the course of the sexual intercourse, she did not feel good or upset.  The only feeling she got was tiredness and that she was under the control and manipulation of somebody.  She was lying on her front on the bed throughout, therefore she did not know how many persons had intercourse with her.  She heard the 1st applicant say, “Brother-in-law, [you] should have no complaint about me.”  She also saw the 2nd applicant video-recording the process of the intercourse with a mobile phone, and heard someone asking other persons whether they wanted the video-recording.  She remembered that someone lifted up her head and forced her to do oral sex to him.  Subsequently, someone put clothes back on her body for her.  The 3rd accused put his arm round her waist and the 1st applicant said, “She is very tired, let her have a rest.”  Following that, someone asked, “Have another go?” and the 3rd accused said, “No, thanks.”
接着，X小姐進入房間，她因喝醉酒和感到睏倦就俯卧在床上。不久，她感覺到自己全身赤裸，並在與人發生性行為。她指她當時神智模糊和沒有意識，她並不願意與人發生性行為，但當時無法表達她的意願，在性交過程中她沒有覺得開心或不開心，只是覺得很疲倦及被人操控着，她一直都是俯卧在床上，所以不知道曾與多少人性交。她曾聽到第一申請人說：「襟兄弟我都算係咁喇。」她又看到第二申請人拿着手提電話拍錄性交過程，她還聽到有人問其他人想不想要那些錄影片段。她記得有人提起她的頭，迫她替他口交。事後有人替她穿上衣服，第三被告人用手攬着她的腰，第一申請人就說：「佢都好攰喇，畀佢唞下喇。」接着，有人問：「又再執番劑呀？」第三被告人就說：「唔喇。」

Then Miss X fell asleep.  She slept until she was wakened up by someone.  At that time the 1st applicant had gone.  When she left that place with the 2nd applicant and the 3rd accused, she became aware, and it was only then that she was aware that the place was an hourly hotel.  Then Miss X parted with them and took transport to go home alone.  She said she felt that her “head was swimming” at that time.  She only knew that she had been forced to have sexual intercourse with some people, but she dared not believe that it was true.  It was sometime between 8 a.m. and 9 a.m. when Miss X returned home.  She went to bed at once.  She had thought of making a report to the police but she did not do that because she was afraid that her family would learn of the matter.
之後，X小姐睡着，直至有人喚醒她，這時第一申請人已經不在那處。當她與第二申請人及第三被告人離開那個地方時，才知道那裡是一間時鐘酒店。之後，X小姐與他們分手，獨自乘車回家，她說她當時覺得「瘟瘟沌沌」，只知道自己曾被迫與人發生性行為，但又不敢相信這個事實。X小姐回到住所時是早上八時許，她立即睡覺。她曾想過報警，但因害怕家人知道事件而沒有這樣做。

When she woke up, Miss X telephoned her ex-boyfriend Mr. Wong and complained to him about what happened.  Miss X told him:
睡醒後，X小姐打電話給她的舊男朋友黃先生，將事情告訴他，X小姐對他說：

“I was taken by the 1st accused and two men whom I had just came to know to an hourly hotel.  At first, we got to some where but I don’t know what place it was.  There was no vacant place.  Then we went to another place.  There, I had sexual intercourse with some people but I don’t know who they were.  I was raped.  I dare not believe it’s true.  I saw that someone appeared to have video-recorded it.  I am very afraid.  I don’t know whether I should tell my family about it.  I don’t know whether they had worn any condoms.”
「我畀第一被告同兩位初相識嘅男人帶咗去時鐘酒店，係初初去到一個唔知咩嘢地方，冇位，先去第二度嘅。喺嗰度我唔知同邊個發生咗性行為，我畀人強姦，我唔敢相信呢件事。我見到好似畀人錄低咗，我好驚，唔知話唔話畀屋企人知。我唔知佢哋有冇戴安全套。」

Mr. Wong asked Miss X why she did not report the matter to the police, but Miss X did not answer this question; she only asked Mr. Wong to accompany her to buy contraceptive pills.  The two of them went together to buy contraceptive pills.  Then they went to a food establishment.  Miss X took some contraceptive pills and they talked with each other.  Miss X cried bitterly.  Mr. Wong again tried to persuade her to make a report to the police, but Miss X was afraid that her parents would learn of the matter and she refused to report the matter to the police.
黃先生問X小姐為何不報警，X小姐沒有回答他的問題，只是要求黃先生陪同她去購買避孕丸。兩人一同購買了避孕藥後前往一間食店，X小姐服用避孕丸後，雙方傾談，X小姐哭得很厲害，黃先生再次勸她報警，但X小姐怕父母知道事情而不肯報警。

Miss X returned home.  She worried that the video-recording of the sexual intercourse would be uploaded onto the internet, so she sent a text message to the 1st applicant, asking him to keep the video-recording secret and “I would rather you delete it”.  The 1st applicant replied to her by text message that he would not make the matter public.
回家後，X小姐擔心性交的錄影片段會被人放上互聯網，於是向第一申請人發放了一個短訊，要求他將該錄影片段保密及「或者我寧願你刪除它」，第一申請人以短訊回覆她他不會將事件張揚開去。

Miss X reported the matter to the police on 29 August 2008.  The police asked Miss X to assist them in the investigation.  As instructed by the police, she telephoned the 1st applicant, telling him that she worried very much about this matter.  The 1st applicant then sent a text message to her, telling her not to worry.
X小姐於2008年8月29日報警，警方要求X小姐協助調查，她根據警方的指示打電話給第一申請人說她很擔心這件事。第一申請人之後發放了一個短訊給她，叫她不用擔心。

Miss X said that on that night in the nightclub, half an hour after she drank the first glass of alcoholic drink she began to lose her sobriety.  She still remembered that some people talked to her and danced with her but she had no recollection of details.  According to her own description, at the time she left the nightclub she was “dead drunk” and could not maintain a stable standing position.
X小姐說當晚她在夜總會喝了第一杯酒之後的半小時就開始不清醒，但她記得有人與她談話、跳舞，但對其他細節就沒有印象。她形容她離開夜總會時是「醉到成劈泥咁」，不能站穩。

When cross-examined, Miss X admitted that in her telephone conversation with Mr. Wong she did not say that she had been raped; only when she met Mr. Wong did she tell him that she had been raped.  Miss X agreed that she had a lively, cheerful and outgoing personality.  She did not mind talking with people about matters concerning sex.  She described herself as a person who had social experience, knew how to protect herself and would not let herself be taken advantage of by other people.
X小姐在接受盤問時承認她與黃先生在電話交談時沒有說過被人強姦，只是在與黃先生見面時才對他說她被人強姦。X 小姐承認自己是一個性格開朗、快樂及開放的人，她不介意與別人談論男女的性事。她說她是一個有社會經驗、懂得保護自己及不會被人欺負的女子。

Evidence of PW2 Mr. Wong
控方第二證人黃先生的證供

The evidence of Mr. Wong was that Miss X telephoned him on that day.  She asked him to accompany her to buy morning-after pills.  He asked Miss X why she had to do that, but she refused to tell him the reason.  Mr. Wong knew that she had gone out to have alcoholic drinks on the previous night, so he asked her whether anything had gone wrong after she had the drinks.  Miss X admitted that she had sexual intercourse with someone and that person was the 1st applicant, but she was unwilling to disclose the details.  Mr. Wong sensed something suspicious and he asked Miss X whether she was willing to have sexual intercourse with the 1st applicant, but Miss X did not answer.  Relying on his intuition, Mr. Wong pressed on and asked her whether she had sexual intercourse with more than one person.  Miss X said, “3 persons.”  Mr. Wong felt that something serious had happened, so he asked Miss X to come out to see him.  After they bought the contraceptive pills, they talked about this matter again.  Miss X did not want to go into details.  Mr. Wong asked her how come she had sexual intercourse with 3 people.  Miss X did not answer.  She just kept on crying.  After repeatedly asked by Mr. Wong about this, she said that she was not willing to have sexual intercourse with those people.  Mr. Wong told her that it was rape.  Miss X just bowed her head and did not utter a word.  Then Mr. Wong tried to persuade her to report the matter to the police.  Miss X became agitated and said, “No way, no, I will be severely scolded by my family.  If you really tell the police about this, I will die before your eyes!”
黃先生出庭作證說他當日接到X小姐的電話，要求陪她去購買事後避孕丸，他問X小姐為甚麼這樣做，但X小姐不肯透露原因。由於黃先生知道她於前一晚曾出外喝酒，所以問她是否酒後出事。X小姐承認她與人發生過性行為，那人就是第一申請人，但她不願意透露詳情。黃先生覺得事有蹺蹊就問X小姐她是否願意與第一申請人性交，但X小姐沒有回答他。黃先生憑直覺繼續追問她是不是與多過一個人性交，X小姐說：「三個人」。黃先生覺得事態嚴重，於是約X小姐出外見面，兩人在購買避孕藥後再次談及事件，但X小姐不願多談。黃先生問她何以會與三個人發生性行為，X小姐沒有回答，只是在哭泣。在黃先生追問下，她說她是不願意與那些人性交的。黃先生告訴她這情況即是強姦，X小姐只是低頭不語。後來，黃先生勸她報警。X小姐情緒激動地說：「唔可以，唔得，會畀屋企人閙死，如果你真係報警，我就死畀你睇。」

Mr. Wong stated that Miss X had also told him that when she was having sexual intercourse, someone video-recorded the process. Mr. Wong said that Miss X at that time was depressed, but when he talked about reporting the matter to the police, she became agitated. In the course of this conversation which lasted for 10 minutes, she sometimes did not say anything and sometimes cried. Mr. Wong said that he, on his own initiative, used the word “rape”.
黃先生說X小姐亦告訴他她在與人性交時被人錄影。黃先生說當時X小姐情緒低落，但當他提到要報警時，她便變得激動。在十分鐘的對話中，她間中不作聲，間中哭泣。黃先生說是他主動說「強姦」這兩個字。

PW3
控方第三證人

PW3 Mr. Fung has a nickname called “Siu Ming”. He had known Miss X for several months. He invited Miss X to come on that night to the nightclub to have entertainment. After Miss X arrived there, she herself made up alcoholic drinks, drank the drinks and then danced. At that time Miss X was in high spirits. She danced with many people and when she danced, her arms were round her partners’ waists or on their shoulders, and her partners did the same to her. At that time she was sober. At about 3:15 a.m., Mr. Fung was going to leave the nightclub and he asked Miss X whether she would leave with him. Miss X said that she had left her handbag with a friend, so she would not leave with him. According to Mr. Fung, Miss X at that time had just finished dancing and appeared to be a bit tired, but was still very much sober. Mr. Fung left the nightclub first. At 1 p.m. on the same day, Mr. Fung telephoned Miss X and asked her at what time she finished enjoying herself. Miss X told him that she had just left the nightclub a moment ago. Mr. Fung asked her, “You had been enjoying yourself for such a long time! With whom did you have the enjoyment?” Miss X said, “Do you think there’s only one?” Mr. Fung said, “Wow, did your enjoyment go to that extent?” Then Miss X said, “There were 3.” Mr. Fung went on, “Then you must be very happy?” Miss X answered, “Damn it, now I have to buy medicine for my use.” Miss X told Mr. Fung that she had been video-recorded and she complained in a very unhappy tone that the person who did the video-recording was the 2nd applicant.
控方第三證人馮先生的花名叫「小明」。他認識X小姐約數月，他邀請X小姐當晚到夜總會消遣。到達後，X小姐自己調酒飲用，然後跳舞。當時X小姐情緒高漲，與多人跳舞，跳舞時與舞伴攬腰、搭膊頭，當時她是清醒的。到了早上約三時十五分，馮先生打算離開夜總會就問X小姐會不會與他一起離開，X小姐說她的手袋在另外一個朋友那裡，所以不跟他一起離開。馮先生說X小姐當時剛跳完舞，顯得有點疲倦，但還很清醒。馮先生就先行離開夜總會。當日下午一時馮先生打電話給X小姐，問她玩到何時，X小姐告訴他她剛剛離開夜總會。馮先生問：「玩到咁早？同邊個呀？」X小姐說：「乜你覺得一個啫咩？」馮先生說：「嘩，玩到咁大呀？」跟着X小姐就說：「三個呀。」馮先生再說：「咁你咪好開心？」X小姐就說：「仆街喇，而家要買藥食呀。」X小姐告訴馮先生她給人錄影，並以極不滿的語氣說錄影她的人就是第二申請人。

Mr. Fung described Miss X as a person having an emotional character. Sometimes she was in low spirits but at other times she could be “wild with joy”. Mr. Fung had once heard Miss X talk about the sexual ability of a boyfriend of hers who was a fireman.
馮先生說X小姐是個情緒化的人，有時情緒低落，有時又「大顛大肺」。馮先生曾經聽過X小姐談及她一名任職消防員的男友的性能力。

1st Applicant’s record of interview with the police
第一申請人的警方會面記錄

The 1st applicant stated that on that evening he invited some friends, including Miss X, to join a party. At that time, they talked, drank alcohol and danced. At about 3 to 4 a.m., Miss X had consumed a lot of alcohol by then and was in high spirits. She danced with and kissed the three of them (namely the 1st applicant, the 2nd applicant and the 3rd accused). She also danced with other men with her arms round the bodies of those men. At about 4 to 5 a.m., Miss X was sitting beside the 3rd accused, embracing him and kissing him. Following that, she said she wanted to leave the nightclub with the 3 of them together. In the meantime, she had body contacts with these 3 people. They took a taxi together to Causeway Bay to look for a place to “sleep”. They alighted at Pak Sha Road. Miss X embraced and kissed each of them in turn. They went to everywhere to look for a place to stay overnight. They had been to two places. In a lift, he caressed the breasts of Miss X and she responded by making sweet voices in a coquettish manner. According to the 1st applicant, after they entered a room in an hourly hotel, Miss X first kissed the 3rd accused and had sexual intercourse with him. After that, she did oral sex to him (i.e. the 1st applicant) and the 2nd applicant in turn, and then had sexual intercourse with them. In the course of the sexual intercourse, all 3 of them had put on condoms and had video-recorded the intercourse process with mobile phones. In the course of doing all these things, they had talked with each other; Miss X, however, had just spoken a few words.
第一申請人說案發當晚他邀約了包括X小姐在內的一群朋友參加一個派對，當時大家傾談、飲酒和跳舞。到了凌晨約三、四點，X小姐喝了很多酒，興奮地與他們三人(即第一、第二申請人和第三被告人)跳舞、接吻，還攬着其他男子跳舞。到了約四、五時，X小姐坐在第三被告人身旁攬着他接吻，接着說要與他們三人一起離開夜總會。其間她與三人有身體接觸，他們一起乘的士往銅鑼灣找地方「睡覺」。他們在白沙道下車，X小姐輪流攬着他們接吻，他們四處尋找地方度宿。他們曾到過兩個地點。他在電梯內撫摸X小姐的胸部，她的反應是發出嬌嗲聲。第一申請人說在進入時鐘酒店的房間後，X小姐先與第三被告人接吻和性交，然後先後分別替他(即第一申請人)和第二申請人口交，然後再與他們性交。在性交過程中，他們三人都有戴上避孕套，亦有拿手提電話拍錄性交過程。在整個過程中大家都有交談，但X小姐只說過一、兩句話。

When it was over, the 1st applicant left the hourly hotel first. Later, he met the 2nd applicant and the 3rd accused and they discussed how they should deal with the video-recording stored in the mobile phones. The 1st applicant said that he had deleted the video-recording before he returned home. He could not remember who suggested that all of them sleep together, but he was sure that everyone agreed to do that. No one suggested sexual intercourse beforehand, but by that time all the 3 of them had a lot of body contacts with Miss X, such as caressing and kissing each other, therefore everyone understood that there was going to be contacts that would go a step further. The 1st applicant maintained that Miss X was willing to have sexual intercourse with the 3 of them together. She enjoyed having sex with them. In the course of doing so she groaned joyfully and her body moved in concert with the movements of her partners.
之後，第一申請人先行離開時鐘酒店，他之後與第二申請人及第三被告人會面，商談如何處理手提電話內的短片，第一申請人說他在返家前已經將短片刪除，他記不起是誰提議大家一起睡覺，但他肯定是所有人都同意這樣做，雖然之前大家沒有提過會進行性行為，但由於三人當時與X小姐有很多如互相撫摸、接吻等的身體接觸，大家都意會到將會有進一步的接觸。第一申請人說X小姐是願意與他們三個人一起性交的，她享受與他們性交，並在過程中發出愉悅的呻吟聲，還以身體配合對方的動作。

After the 3 persons had sex with Miss X, Miss X was lying on bed sleeping, so they put her clothes back onto her body for her, and subsequently they left the hotel together. When the police officer asked the 1st applicant whether Miss X was sleeping or conscious at that time, the 1st applicant answered, “It appeared to me that she was exhausted, because she had finished having sex and before that she had drunk alcohol, that could increase the degree of exhaustion she felt to a level higher than what she experienced at normal times.”
他們三人與X小姐進行過性交後，由於X小姐在床上睡着覺，所以他們替她穿上衣服，之後一起離開酒店。當警員問第一申請人X小姐當時是睡着或是清醒，第一申請人答道：「我覺得佢係攰，因為她係發生完性行為，同埋佢亦都之前會飲咗酒，亦都會令佢可能係疲勞的程度比平常更加高。」

2nd applicant’s record of interview with the police
第二申請人的警方會面記錄

The 2nd applicant’s account was that he and the 3rd accused arrived at the nightclub first.  Then the 1st applicant introduced them to Miss X.  In the nightclub, they drank alcohol, talked and danced.  In the course of doing these things, Miss X, on her own initiative, praised the 2nd applicant and the 3rd accused, saying that among all the people in the whole nightclub, they were the most handsome men.  When Miss X danced with him, she embraced him; and she went to everywhere in the nightclub, bringing him along with her.  When Miss X was dancing with other men, she called him to come to her to embrace her.  The 2nd applicant heard Miss X say to the 3rd accused, “There are many young men tonight.  Remember, don’t let me go away with other men.”
第二申請人說當時他與第三被告人先到達夜總會，之後第一申請人介紹他們給X小姐認識。在夜總會內，大家飲酒、談話、跳舞。其間，X小姐主動稱讚第二申請人及第三被告人是全場最英俊的男士，X小姐與他跳舞時擁抱他，又帶着他在夜總會到處走，其間當X小姐與其他男子跳舞時叫他走過去擁抱她。第二申請人聽到X小姐對第三被告人說：「今晚好多男仔，你記住唔好畀我跟其他男人走呀。」

Sometime between 3 and 4 a.m., Miss X sat beside him and pressed against his thigh.  Even when he went to toilet, she went with him.
凌晨三時許，X小姐坐在他的身旁及緊貼他的大腿，就算他要上廁所，她都跟他一起去。

At 4 a.m., the 3 people decided to leave the nightclub.  The 2nd applicant said to Miss X, “Let’s go together, go to Causeway Bay to rent a room.”  Miss X said, “Good.” Then they took a taxi at Central District and got to Pak Sha Road in Causeway Bay.  They first went to a convenience store and bought beers and condoms.  When they entered a room in the second hotel, they drank beer first, then the 3rd accused began to kiss and caress Miss X.  Following that, the 1st and 2nd applicant jointly took off the clothes on the lower body of Miss X.  At this moment, the 3rd defendant let Miss X do oral sex to him, then they had sexual intercourse.  When the 3rd defendant was having sexual intercourse with Miss X, the 1st applicant and the 2nd applicant let Miss X do oral sex to them in turn.  After the 3rd defendant had sexual intercourse with Miss X, the 2nd applicant and the 1st applicant had intercourse with her separately.  However, the 1st applicant could not have a full erection and finally he masturbated himself.  All 3 of them video-recorded the whole process of the intercourse with telephones.  Throughout the process of all these things, Miss X not only did not indicate that she was not willing to have sexual intercourse nor did she put up any resistance, she even continuously moaned and groaned.
到了凌晨四時，三人決定離開夜總會，第二申請人對X小姐說：「我哋一齊走，落銅鑼灣開房囉」，X小姐說：「好。」之後，他們從中環乘的士到銅鑼灣白沙道，先到便利店購買啤酒及避孕套。到達第二間酒店的房間後，大家先飲啤酒，然後第三被告人開始吻X小姐及撫摸她。接着，第一及第二申請人聯手除掉X小姐下身的衣服，此時第三被告人讓X小姐替他口交，然後性交。當第三被告人與X小姐性交期間，第一及第二申請人亦依次序讓X小姐替他們口交。當第三被告人和X小姐性交後，第二申請人及第一申請人分別與她性交，但第一申請人因不能完全勃起，最後自瀆。他們三人都拿電話錄影了整個性交過程，X小姐在整個過程中不但沒有表示過不願意性交或作出反抗，她還不停地呻吟。

At 7 a.m., they left the hourly hotel together.
早上七時，他們一同離開時鐘酒店。

The 2nd applicant said that sometime between 2 and 3 a.m., the 3 of them and Miss X were a bit tipsy.  When Miss X danced, she bumped against other people.  When she was leaving the nightclub, she could only stagger along and needed to be helped.  The 2nd applicant said that when they were in the vehicle, Miss X kissed the 3rd accused.  When they were outside the convenience store, Miss X, the 1st applicant and the 3rd accused embraced together.  In the room of the hotel, Miss X did not say anything, she just occasionally answered their questions.  When the police constable asked the 2nd applicant whether Miss X needed to be helped in order to walk, he answered, “I was told to support, to help her.”  When the police constable asked the 2nd applicant whether Miss X was sleeping or whether she was conscious after she entered the room of the hourly hotel and when she was lying on bed, his answer was “She was drunk, but I am not sure whether her eyes were opened.”  The 2nd applicant went on to say that when they took off Miss X’s pants, she was conscious enough to cooperate with them so that her pants could be taken off, and she was able to move her head to do oral sex to them.  When the 3rd accused had sexual intercourse with her, Miss X opened her legs and kept on moaning and groaning.  When the 1st applicant ejaculated on her face, she was aware of that and asked one of them to wipe her face for her.  He said that Miss X had never refused to have sex with them or done anything which signalled her resistance.
第二申請人說在凌晨兩時許，他們三人與X小姐都有些醉意。X小姐跳舞時碰撞其他人，她在離開夜總會時東歪西倒，需要別人攙扶行走。第二申請人說在乘車期間，X小姐與第三被告人接吻，在便利店門外更加與第一申請人及第三被告人擁抱在一起。在酒店房間內，X小姐沒有說話，只是間中回答他們的問題。當警員問第二申請人X小姐是否需要人攙扶行走時，他回答說：「叫我扶住、着咁囉」。當警員問第二申請人X小姐到達時鐘酒店房間後躺在床上時是睡着還是清醒？他回答說：「醉咗囉，但係有冇掰大眼我就唔肯定」。第二申請人又說，當他們替X小姐脫下褲子時，她懂得配合他們把褲子褪下及懂得移動頭部替他們口交。當第三被告人與她性交時，X小姐張開腳及不斷呻吟。當第一申請人在她的面上射精時，她懂得叫人替她抹面。他說X小姐絕無拒絕與他們性交或者作出任何反抗動作。

Other evidence
其他證據

The evidence produced by the prosecution included video recording footage recorded by the CCTV system of the building where the nightclub was situated, which showed how these 4 people behaved when they left the nightclub, and part of the video-recording of the sexual intercourse from the mobile phones of the 3 defendants which had been deleted but was restored by the police.
控方提供的證據包括夜總會所在的大廈的閉路電視錄影片段中四人離開夜總會的情況和警方還原了三名被告人的手提電話內被刪除的部分性交錄影片段。

Evidence of the 1st applicant
第一申請人的證供

The 1st applicant elected to give evidence.  He was a former schoolmate of Miss X.  The two of them met again in April or May 2007 at [their] working place.  Subsequently, they and other friends went out together to have entertainment.  On that night in the nightclub, Miss X, on her own initiative, invited men to dance with her and she embraced the 3 of them.  Finally, the 4 of them decided to leave the nightclub.  At that juncture, someone said, “Let’s go together to a hotel.”  Miss X then made a phone call in order to look for her mobile phone.  When they were standing outside the entrance to the building where the nightclub was situated, they asked Miss X whether she wanted to go to a hotel.  At that time she did not need help and she got into the taxi herself.  In the taxi, Miss X kissed the 3rd defendant and held the 1st applicant’s hand in her hand.  Upon arrival at the hourly hotel, they got off the taxi and walked for 15 to 20 minutes.  Miss X was full of life and she behaved intimately towards the 2 applicants.
第一申請人選擇作供自辯。他與X小姐是舊同學，兩人在2007年4、5月間在工作地點重逢。之後他們曾與其他朋友一起出外消遣。當晚在夜總會內，X小姐主動邀請男士與她跳舞及擁抱他們三人。最後，他們四人決定離開夜總會，當時有人說：「不如一齊去搵酒店」，X小姐就打電話找自己的手提電話。他們站在夜總會的大廈門口時曾問過X小姐想不想去酒店，她當時不需人攙扶，自行登上的士。在車上，X小姐吻第三被告人及握着第一申請人的手。在抵達時鐘酒店時，他們下車及步行了十五至二十分鐘，X小姐的精神很好，並與兩名申請人親熱。

As to what happened afterwards, the 1st applicant repeated what was recorded in his record of interview with the police.  The 1st applicant said that on 1 September 2007 Miss X had sent, through the internet, “several actions to cheer him up”, but he did not understand what she meant.  On 26 August 2007, Miss X did not tell him that he had raped her.  The 1st applicant said that the person who suggested that they go to Causeway Bay to look for a hotel was the 2nd applicant.  In the nightclub, Miss X was in high spirits and was a bit tipsy.  At the time they left the nightclub, Miss X and the 3rd accused embraced each other and talked to each other.  It appeared to him that Miss X was sober.  He disagreed that Miss X needed to be helped by the 3rd accused in order to walk.  He said the 3rd accused just put his arm round Miss X’s waist, but at that time the 3rd accused carried Miss X’s handbag for her.  They had asked Miss X whether she wanted to go to Causeway Bay to “rent a room” in a hotel.  He was sure that Miss X heard the 3rd accused reminding the 2nd applicant to buy condoms, and she should be able to see the 2nd applicant holding condoms in his hand.  The 1st applicant claimed that when Miss X was in the hotel room, she was conscious and she did oral sex to him.  He admitted that in the hotel he did say, “Brother-in-law, [you] should have no complaint about me.”  He explained that it was only a joke, without any special meaning.
之後，第一申請人重複他在與警方會面記錄中所述的情況。第一申請人說X小姐在2007年9月1 日曾在互聯網發了「幾個action 嚟cheer 佢」，令他感到莫名其妙。在2007年8月26日X小姐沒有對他說他強姦她。第一申請人說當晚提議到銅鑼灣找酒店的人是第二申請人。在夜總會內，X小姐心情興奮及有些醉意。當他們離開夜總會時X小姐與第三被告人擁抱在一起交談，他覺得X小姐是清醒的。他否認X小姐需要第三被告人攙扶行走。他指第三被告人只是攬着X小姐的腰，但當時第三被告人替X小姐提手袋。他們曾經問過X小姐想不想到銅鑼灣酒店「開房」。他肯定X小姐聽到第三被告人提醒第二申請人要購買避孕套，她亦應該看到第二申請人手持避孕套。第一申請人指X小姐在酒店內是清醒的，她還替他口交。他承認在酒店內他說過「襟兄弟都算咁喇」這句話，但他解釋他只是說笑，沒有特別的意思。

He said that Miss X was not drunk after the sexual intercourse.  He only handed clothes to her and she put on the clothes herself.
他指X小姐在性交之後沒有醉，他只是拿衣服給她，她是自己穿上衣服的。

Defence witness
辯方證人

The 1st applicant called one of the persons who had joined the party at the material time to give evidence.  This witness said that on that night Miss X’s behaviour was bold and uninhibited.  She danced passionately, and she embraced and kissed the 3 defendants.  On that night he put Miss X’s handbag in a locker.  At the time Miss X left the nightclub, she telephoned him and asked him where her handbag was.  At that moment, Miss X’s appearance was no different from that when she just entered the nightclub.  The expression in her eyes and her tone and manner of speaking all looked and sounded normal.
第一申請人傳召了一位當時有份參加派對的人士作證。這名證人指X小姐當晚表現得很豪放、很熱情地跳舞，以及與三名被告人擁抱及接吻。由於當晚他把X小姐的手袋放在貯物櫃裏面，X小姐離開夜總會時打電話給他問她的手袋在哪裡，當時X小姐表現跟她剛進入夜總會時沒兩樣，眼神和說話的語氣都正常。

The 2nd applicant
第二申請人

The 2nd applicant elected not to give evidence.
第二申請人選擇不作供自辯。

Directions about intoxication and consent to sexual intercourse
有關醉酒及同意性交的指引

One of the grounds of appeal of both applicants is that Deputy Judge Pang had failed to give sufficient directions to the jury as to how they should deal with Miss X’s behaviour under the influence of alcohol.  We now concentrate on this issue.  Deputy Judge Pang gave the jury the following directions about the elements of rape:
兩名申請人都以彭法官沒有充分引導陪審團應該如何處理X小姐受到酒精影響的行為作為上訴理由。本庭現集中處理這議題。彭法官在引導陪審團時作出「強姦」罪元素的指引：

“…… What the prosecution must prove beyond reasonable doubt are: Firstly, the accused specified in the charge had sexual intercourse with Miss X.  Secondly, at that time Miss X did not consent to sexual intercourse.  Thirdly, at that time the accused knew that Miss X did not consent to sexual intercourse, or was reckless as to whether Miss X consented to sexual intercourse.
「……控方要喺冇合理疑點下證明嘅係一，某一條控罪所指嘅嗰位被告曾經同X小姐性交。二，當時X小姐不同意性交。三，當時嗰位被告知道X小姐不同意性交，又或者罔顧X小姐是否同意性交。

Then what is ‘reckless’?  It means that the man knew that there was a risk that the woman was not consenting or might be not consenting to sexual intercourse, but he did not care and carried on anyway, when in the circumstance known to him it was unreasonable to do so.  That is to say, he took this risk knowing that it was unreasonable to do so, that is ‘reckless’.  However, if due to the man’s age or personal characteristics, he really did not appreciate or foresee this risk, then he was not ‘reckless’.
咁咩嘢叫「罔顧」呢?嗰個意思係個男嘅知道有個風險，話個女嘅唔同意，或者可能唔同意性交，但係就唔理咁多照樣行事，而且佢咁做，係喺佢自己所知嘅情況下都算唔合理嘅，即係佢明知唔合理，都去承擔呢個風險，咁就係「罔顧」。相反，如果個男嘅因為年齡或者個人特徵等理由，而實在唔能夠察覺或者預期到呢個風險，佢就唔算「罔顧」。

Alright, if the man at that time did believe that the woman consented to it, then how should you deal with it?  The answer is that if it is true or may be true that the man held such belief, then he is not guilty.  Even if it was a complete misunderstanding on his part, he is still not guilty.  If it is true or may be true that he believed that the woman was consenting, then he is not guilty.  Furthermore, even if the defence did not say anything about this, but if there are facts in this case which will make one think that the man was or might be in such a situation, then the prosecution has the duty to prove until you are sure that the man at that time did not genuinely believe that the woman consented to sexual intercourse.  Why?  Because the burden of proof is on the prosecution.  On the other hand, the man, that is the accused, is not required to prove anything.  Of course, before you come to a decision on this question, you are entitled to have regard to all relevant circumstances which existed at that time to see whether there were reasonable grounds for the man to hold such a belief, or to have such a misunderstanding.  And in the final analysis, you cannot convict him unless you are sure that he did not genuinely believe that the woman consented to sexual intercourse.”
好，如果個男人當時直頭相信個女人係同意嘅，咁又點呢?個答案係如果個男人真係，或者可能真係咁相信嘅，佢都冇罪。呢個就算佢誤會晒都係咁喇，只要佢真係或者可能真係相信個女人同意，佢就冇罪。仲有，就算辯方唔講呀，但係案中嘅情節會令人聯想到個男人有或者可能有咁嘅情況嘅話，咁控方都有責任去證明，直到陪審團肯定個男人當時並不真心相信個女人同意性交，點解呀?因為舉證嘅責任喺控方囉。相反，個男，即係個被告係從來都唔使證明啲咩嘢嘅。當然，陪審團喺裁定呢個問題之前，係有權考慮晒當時嘅一切有關情況嘅，睇下有冇合理理由令個男人咁樣相信，或者咁樣誤會。不過，講到底，陪審團都仲係要肯定佢並不真心相信個女人同意性交，先可以判佢有罪。」

The directions quoted above are basically in line with the standard jury directions designed by the Judiciary, which are:
上述指引基本上是符合司法部門所作出的標準陪審團指引，即

“Before you may convict the accused, you have to be sure of each of the following matters:
「你們必須先要肯定下列每項事情，才可以裁定被告有罪：

that the accused had sexual intercourse with Ms [X];
被告與[X]女士性交；

that at the time of that act of sexual intercourse, Ms [X] did not consent to it; and
性交時，[X]女士並不同意；以及

that at the time of the sexual intercourse either the accused knew that Ms [X] did not consent, or was reckless as to whether she consented to sexual intercourse. The accused was reckless as to whether Ms [X] consented to sexual intercourse if you are sure that the accused did not know and did not care whether she was consenting or not and carried on regardless. In other words, his state of mind was that he could not have cared less.
性交時，被告知道[X]女士不同意性交，或者罔顧她是否同意性交。若你們肯定，被告並不知道，亦不理會她是否同意，卻仍不顧一切繼續下去，換句話說，他當時的心態是根本毫不在乎的，那麼，被告便是罔顧[X]女士是否同意性交了。

If it is or may be the case that the accused believed that she was consenting, then he cannot be guilty of rape. It is not for the accused to prove that he believed that she was consenting; rather, it is for the prosecution to prove, so that you sure, that he did not believe that she was consenting to sexual intercourse. And what if he held that belief but was mistaken? If it is or may be the case that he held a genuine but mistaken belief that she was consenting, then you must acquit him. In deciding whether or not he believed or may have believed that she was consenting, you should have regard to the existence or absence of reasonable grounds for such a belief, and to all the surrounding circumstances. But the question must always be whether you are sure that he himself did not hold such a belief.”
若情況是，或者可能是：被告相信她是同意性交的，那麼，他的強姦罪名便不成立。被告無須證明，他相信受害人是同意性交的。控方必須證明，令你們肯定：被告不相信受害人是同意與他性交的。若被告只是因為誤會才相信受害人是同意與他性交的，那又會怎樣呢?若情況是，又或可能是被告真的以為受害人是同意性交的，但其實是他誤會了，那麼，你們便須裁定他無罪。你們決定被告是否相信，或者可能相信受害人是同意性交時，除了應該考慮是否有合理的理由，令被告相信如此外，還須考慮所有的周遭情況。問題始終是：你們是否肯定，被告本人其實並無這樣相信過。」

In addition, Deputy Judge Pang reminded the jury of the positions held by the prosecution and the defence respectively as to whether Miss X consented to sexual intercourse, and gave them directions about how to deal with the evidence on this issue:
另外，彭法官提醒陪審團控辯雙方有關X小姐是否同意性交的立場及引導他們應該如何處理有關的證供：

“…… The prosecution maintained that Miss X did not consent to sexual intercourse, but because she was drunk, she could not give expression to that and could not indicate any struggle or resistance either by her words or her behaviour. On the opposite side, the defence said, ‘It is not the case. It is true that you were a bit tipsy, but basically you were still sober, and at least your behaviour indicated that you were willing to have sex with all the accused. In the course of doing so, you even very actively cooperated with them.’ That’s the difference in their positions. I have explained in detail what ‘reckless’ is and what you should do if the man misunderstood the woman. My explanation is to make you understand what you should do if, I emphasize if, you are sure that Miss X did not consent to sexual intercourse and you are sure that she was unable to give expression to that, but as far as the accused are concerned, they did not clearly know that, alright?
「……控方話X小姐不同意性交，不過因為醉，所以表達唔到，冇言語、行為上面嘅掙扎同反抗。相反，辯方就話「唔係， 妳係有啲醉，不過基本上仍然清醒，而且最少以行動表示過願意同各被告發生性行為，期間仲相當主動咁配合過」，就係咁。至於我詳細講到咩嘢係「罔顧」，又或者個男人誤會咗個女人嗰陣時又會點?都係要幫大家知道如果，我係話如果呀，大家肯定X小姐不同意性交，又肯定佢表達唔到，不過被告嗰邊其實又唔係知得咁清楚嘅話應該點處理，得唔得？

Finally, I ask everyone of you to bear in mind that the prosecution case is very clear throughout. They said that Miss X was not capable of expressing what was in her mind because she was drunk after drinking the concoction made by mixing vodka with orange juice. There was no other reason, therefore you can only consider Miss X’s evidence on this basis. You must not go into the realm of speculation, for example, “Did anybody drug Miss X without her knowing it?”  You cannot do that, understand? I repeat, the prosecution case is that on that night Miss X was drunk. It is for you to decide whether you believe Miss X or not.”
最後，我要大家謹記，控方嘅講法從來都好清楚，佢哋話X小姐係因為飲醉伏特加摳橙汁，而失去表達意願嘅能力，冇其他喇，所以大家只能夠循住呢個基楚去考慮X小姐嘅證供，你哋絕對唔可以自己亂諗，例如話「有冇人喺不知不覺間向X小姐落過藥呢？」咁樣，唔可以，明唔明白? 我重複，控方話X小姐當晚係飲醉酒，信唔信X小姐你哋自己決定。」

Question asked by the jury
陪審團的問題

The unusual feature of this case is that when the jury retired for deliberation, they put down in writing and asked the court the following question:
本案特別之處是陪審團在退席商議期間曾以書面形式向法庭提出以下的問題：

“If a person has done certain acts when he was drunk or when he was not fully sober, can these acts be accepted under the law?”
「一個人在醉酒或不完全清醒情況下所做的行為，在法律上是否接受？」

When Deputy Judge Pang received this question, he first indicated to counsel that he did not understand this question from the jury:
彭法官在收到這個提問後先向律師表示他不理解陪審團的問題：

“There’s a new question, which I don’t know how to answer: ‘If a person has done certain acts when he was drunk or when he was not fully sober, can these acts be accepted under the law?’ Who is he? It’s not specified. ‘If a person has done certain acts when he was drunk or when he was not fully sober, can these acts be accepted under the law?’ It appears that it refers to the defendants, I think, correct? Or who does it refer to?”
「新問題，我唔識點答喇，『一個人在醉酒或不完全清醒情況下所做的行為，在法律上是否接受?』邊個呢? 冇講。『一個人在醉酒或不完全清醒情況下所做的行為，在法律上是否接受?』就咁睇係講defendants喇，我諗，係咪呀?定係講邊個呀?」

Following that, Deputy Judge Pang asked the jury to clarify who the expression “a person” in the question referred to:
彭法官接着要求陪審團澄清有關問題中的那「一個人」是指誰人：

“Court: The new question: ‘If a person has done certain acts when he was drunk or when he was not fully sober, can these acts be accepted under the law?’  Right?  Who is he?  What kind of person?  Who is this person?
「官:新問題『一個人在醉酒或不完全清醒情況下所做的行為，在法律上是否接受?』係咪咁呀？邊個呀，咩嘢人呀?邊個人呀？

Foreman: Any person, if he has done any act because he was drunk, then can I consider that what he has done is something meaning [meaningful]?
首席陪審員：任何一個人即係如果因為醉酒，佢做咗任何一啲行為，即係我可唔可以意識到佢係做緊一啲有義意[意義]嘅嘢？

Court: But who is this person?  What has he done under what circumstances?
官: 邊個人先得架?咩嘢情況下做咗啲咩嘢呀?

Foreman: For example, if I was drunk and have done… for example, if I do not have the intention to…
首席陪審員：即係譬如我醉咗酒，做一啲--譬如我冇意識去…

Court: Well, please stop… I don’t understand your question, I don’t understand your question.  Mr. juror… foreman, can you go back and write clearly who you are referring to, which person in this case?  Alright?”
官:嗱，唔好講--我唔明你條問題呀，我唔明你條問題，陪審員--首席陪審員先生，你可唔可以返去寫清楚究竟係講緊邊個，案件裡面邊個，係咪咁呀?」

After deliberation, the jury informed Deputy Judge Pang that they would withdraw the question.  The following is the conversation between Deputy Judge Pang and the foreman:
陪審團在退席商議後向彭法官表示他們會撤回有關的問題，以下是彭法官與首席陪審員的談話內容：

“Foreman: Concerning the question which we asked just now, we cannot formulate it in such a way that will be fair to both parties, so we decided that we won’t ask this question any more.
「首席陪審員：正話條問題，我哋諗唔到一個可以令到雙方好公平嘅辦法去問法官閣下，咁所以我哋決定唔問喇。

Court: Do you mean you will withdraw the question?
官:即係收番條問題，…

Foreman: Yes.
首席陪審員: 係喇。

Court: You won’t ask this question any more.  Then I will treat it as if the question has not been asked.”
官:…唔問喇，咁就當冇問過個囉喎。」

Applicants’ position
申請人的立場

The applicants pointed out that the jury obviously had doubts as to whether Miss X consented to sexual intercourse, therefore Deputy Judge Pang should not have allowed the jury to withdraw the question. Instead, he should have given more detailed directions in respect of this issue.
申請人指陪審團明顯是對X小姐是否同意性交存有疑問，因此彭法官不應該批准陪審團撤回問題，而且更應該就這議題作出更詳細的指引。

Respondent’s position
答辯人的立場

The respondent argued that it is not necessary that the jury’s question referred to the victim; it is possible that it referred to the accused.  Besides, the respondent submitted that according to Deputy Judge Pang’s summing up and directions, if the jury considered that Miss X consented to sexual intercourse, or if it may be the case that she had indicated that she consented to sexual intercourse, then they should find the accused not guilty. Therefore, when the jury asked this question, it was certain that they had found that Miss X at the material time did not consent to sexual intercourse and that she was not able to give expression to her desire and intention.  That meant that the jury had totally rejected the evidence of the 1st applicant and the 2nd applicant that Miss X consented to going to the hotel to have sexual intercourse with them.  The jury’s question was only “If Miss X was incapable of giving expression to her intention because she was drunk, should she be protected by the law?”
答辯人則指陪審團的問題不一定是牽涉受害人，它亦有可能是牽涉被告人。另外，答辯人指根據彭法官的總結及指引，如果陪審團認為X小姐是同意性交，或有可能表示同意性交的話，他們就應裁定被告人罪名不成立。因此，陪審團在提出該問題時必定是已裁定X 小姐當時是不同意性交的及她是沒有表示意願的能力，這即表示陪審團已完全否定第一及第二申請人提出X 小姐是同意到酒店與他們性交的證供。陪審團所提出的問題只是「如果 X 小姐是因醉酒而失去表達意向的能力，她應否受到法律保護。」

The respondent submitted that the central legal issue in this case is whether Miss X lost the ability to express whether she was willing to have sexual intercourse, not why she lost the ability to do so; and whether she lost the ability because of sickness, drunkenness, tiredness or other reason, that has no relevance under the law; therefore the fact that Deputy Judge Pang allowed the jury to withdraw the question would not prejudice the interests of the defendant in any way.
答辯人指這件案在法律上的重點是X 小姐是否失去了表示願不願意性交的能力，而不是她為何失去這項能力，無論她是因為生病、醉酒、疲勞，或其他原因，這個問題在法律上都並無相關性，因此彭法官批准陪審團撤回有關問題亦不會損害被告的權利。

The respondent said that the applicants should not assume that the jury had departed from the directions and had provided their own answer to the question. But even if this assumption turned out to be true, the jury could only come to one of the following two conclusions:
答辯人指申請人不應假設陪審團偏離了指引及自行解答有關問題。即使這項假設成立，陪審團也只可能作出以下兩個結論：

The jury came to the conclusion that the acts done by Miss X while she was in a completely intoxicated state as a result of her being drunk were not protected by the law.  This conclusion was clearly a misunderstanding of the law and was advantageous to the two applicants.
陪審團認為 X 小姐因醉酒致令自己處於完全不清醒情況下所作出的行為是不會受到法律保障的。明顯地，這個結論是對法律的錯誤理解，這會對兩名申請人有利。

The jury came to the conclusion that the acts done by Miss X while she was drunk or not fully sober were still protected by the law.  This conclusion reflected a correct understanding of the law and was not prejudicial to the two applicants.
陪審團認為 X 小姐在醉酒或不完全清醒情況下所作出的行為依然是會受到法律的保障。這個結論是對法律的正確理解，這並不會對兩名申請人不利。

The respondent further submitted that whether the expression “person” in the jury’s question referred to the 3 accused or Miss X, and for whatever reason they withdrew the question, the 3 defence counsel at that time had neither raised any objection nor requested the court to make any clarification or give any further directions to the jury.  Obviously, the 3 defence counsel at that time considered that to allow the jury to withdraw the question not only would not harm the 3 accused, but might even be advantageous to them.
另外，答辯人說無論陪審團的有關問題中所指的「一個人」是指三名被告還是 X 小姐，或是他們其後基於甚麼原因撤回有關的問題，但當時三位辯方大律師既沒有提出異議，亦沒有要求法官向陪審團作出澄清及進一步指引。明顯地，三位辯方大律師當時是認為容許陪審團撤回該條問題不但不會對三名被告不利，甚至有可能對他們有利。

Further directions should have been given
應該有進一步的指引

We do not agree with the respondent’s views, these views being too narrow.  In our judgment, Deputy Judge Pang should have given further directions in response to the jury’s question.  First of all, although the jury did not spell out who the drunken person was, according to the facts, the only person in these charges who had any connection with the word “drunk” was Miss X.  None of the 3 accused relied on as their defence their being drunk and having done certain acts while their power of self-control was absent.
本庭不同意答辯人的見解，它的觀點過於狹隘。本庭認為彭法官應該就陪審團提出的問題作出進一步的指引。首先，雖然陪審團沒有明顯指出喝醉酒的人是誰，但根據案情，控罪中與醉酒有關連的人只是X小姐，其餘三名被告人均沒有依賴因喝醉酒而做出一些不能自我控制的行為作為抗辯理由。

The special feature of this case is that the victim consumed a large quantity of alcoholic beverages of her own accord and as a result lost her sobriety.  In other words, she voluntarily intoxicated herself.  This is different from a case in which the accused made the victim drunk or plied the victim with lots of alcoholic beverages so that the victim became intoxicated and subsequently molested the victim.  We believe that the purpose of the jury in asking the question whether the acts done by a person when he was drunk could “be accepted” under the law or whether the acts were “something meaningful” was to ask the court to assist them in order to understand what legal effects the acts done by a person in an intoxicated state would produce.  The fact that the jury asked this question demonstrated that they had doubts in this area.
本案特殊的地方是受害人自己喝了大量酒精飲品後神智不清。換句話說，她是自願地促使自己昏醉的，這情況有別於被告人灌醉受害人或者鼓勵受害人飲用大量的酒精飲品，令致受害人神智不清，繼而侵犯受害人的案件。本庭認為陪審團之所以提出一個人在醉酒情況下所作出的行為在法律上是否「可被接受」或者是否「是有意義的事」的目的是要求法庭協助他們了解一個人因在昏醉情況下作出的行為在法律上會產生甚麼後果。陪審團提出有關的問題顯示他們就這方面存有疑問。

The issue in this case is about a victim who voluntarily consumed alcohol and, being affected by the alcohol, became intoxicated.  We will limit our discussion to this aspect and will not go into a general discussion about what legal effects the acts done by a victim made drunk by the accused will produce.
由於本案的議題是一名受害人自願飲酒而受到酒精影響，導致神智不清，因此本庭只會在這範疇上作出討論，而不會廣泛討論一名受害人遭被告人灌醉後所作出的行為在法律上會引致甚麼後果。

We are of the view that Deputy Judge Pang should have brought the following matters to the attention of the jury:
本庭認為彭法官需要提醒陪審團以下的事項：

An adult has the right to choose to consume a large quantity of alcoholic beverages and there is nothing unusual about a couple of man and woman having sexual intercourse after both have voluntarily consumed a great deal of alcoholic beverages.  Provided that the intercourse is carried out with the consent of both participating parties, it is not rape.
一名成年人是有權選擇飲用大量的酒精飲品及一對男女在自願飲用大量酒精飲品後進行性交亦非不尋常的行為，性交若是在雙方同意的情況下進行是不會構成「強姦」罪的。

In a case which involves a victim who was affected by her own self-induced voluntary intoxication, the question is not whether the intoxication made the victim less inhibited than she would have been if she was sober. Nor is it whether she had, while she was intoxicated, done something which she regretted afterwards. Nor is it whether she had, while she was intoxicated, behaved irresponsibly. Nor is it whether she, because of the intoxication, could not recollect what had happened.  Under these circumstances, the court must remind the jury that the most important question is whether the victim consented to sexual intercourse.  If the victim, notwithstanding the effect of the alcohol, did consent to sexual intercourse, the consent cannot be revoked or regarded as ineffective.
若案件涉及一名自願地令自己昏醉的受害人，那麼有關的議題就不是受害人是否因為醉酒而作出一些比她清醒時較開放的行為；或者是她在醉酒時做出了一些事後感到後悔的行為；或是她在醉酒後作出了一些不負責任的舉動；又或者她因醉酒而對事件失去記憶。在這情況下，法庭必須提醒陪審團最重要的議題是受害人是否同意性交。若果受害人雖然受酒精影響，但她曾同意性交，有關的同意是不能被撤銷或視作無效的。

The basic consideration as to whether a victim had consented to sexual intercourse is whether she was able to indicate her consent to sexual intercourse.  That means if the victim lost her consciousness temporarily because of intoxication, then she did not consent to sexual intercourse.  The reason is that being unconscious, she would not be able to make the decision to consent to sexual intercourse.  Subject to questions about the state of mind of the accused, sexual intercourse under these circumstances would be rape.
受害人是否同意性交的基本條件是她是否有能力表示同意性交，即若果受害人是因為昏醉而暫時失去知覺，她就是不同意性交，理由是她失去了知覺便不會有能力作出同意性交的決定。在這情況下，視乎被告人的意圖，有關性交應構成「強姦」罪。

Where the victim voluntarily consumed alcohol and consequently made herself drunk but nevertheless remained capable of choosing whether or not to have sexual intercourse and she indicated her consent to do so, this would not be rape.  As a matter of practical reality, before a victim becomes unconscious, she may already be unable to make a decision as to whether she should consent to sexual intercourse.  Whether this is so or not depends on the facts of each particular case.
若果受害人是自願地飲酒，令自己昏醉，但她仍有能力選擇願意或不願意性交及表示同意性交的話，這情況就不會構成「強姦」罪，在很多實際的情況，受害人在失去知覺之前已經可能沒有能力作出是否同意性交的決定，但這應視乎個別案情而定。

What happened in the present case is remarkably similar to the facts of R v. Bree [2008] Q.B. 131.  In that case the victim, having consumed substantial quantity of alcohol in the company of the accused and two friends, vomited in the toilet.  The accused helped her to clean her up.  Subsequent to that, sexual intercourse took place between the two of them.  The victim said that she did not want to have sexual intercourse, but she did not say so to the accused.  The defendant protested that the victim consented to sexual intercourse.  At the outset, the prosecution case was that because of the effect of the alcohol, the victim was unconscious and lacked the capacity to make the decision to consent to sexual intercourse.  However, the prosecution later changed their stance and claimed that the victim had been conscious and capable of making the decision to consent to sexual intercourse, but at the material time she did not consent.  The Court of Appeal of England quashed the defendant’s conviction of rape and made comments, similar to those set out above, on the issues of self-induced intoxication by the victim herself as a result of voluntary consumption of substantial quantity of alcohol and whether she consented to sexual intercourse.  See legal commentaries on Bree: The Journal of Criminal Law (2009) 73 JCL 318-344.
本案的情況與 R v. Bree [2008] Q.B. 131 的案情極為相似。該案受害人與被告人及兩名朋友喝了大量酒精飲品後在廁所嘔吐，被告人協助她清理身上的污物，之後雙方進行性交。受害人聲稱她是不願意性交的，但她沒有向被告人說她不願意性交。被告人聲稱受害人是同意性交。控方的原本立場是受害人因為酒精影響失去知覺致令她沒有能力作出同意性交的決定。但控方後來改變立場，指受害人是有知覺及有能力作出同意性交的決定，但她當時沒有同意性交。英國上訴法庭撤銷被告人的強姦定罪及就受害人自願飲用大量酒精飲品，促使自己昏迷及她是否同意性交的議題作出如上文的討論。另見有關Bree 一案的法律評論：The Journal of Criminal Law (2009) 73JCL 318-344.

We believe that one of the possibilities in this case is this: The victim claimed that she did not consent to sexual intercourse and that because of the effect of the alcohol, she was unable to indicate that she did not consent to sexual intercourse. But in her evidence she said on a number of occasions that after she drank the alcoholic beverages she became “muddle headed”, “my mind was blurred”, “my state of mind became very fuzzy”, “could not use my senses at all” and that after the incident “my head was swimming”.  These parts of her evidence would very likely give the jury the impression that she was unconscious when she was in the hotel and was unable to consent to sexual intercourse.  That was at variance with the prosecution case.  It was necessary for Deputy Judge Pang to give further directions to deal with this aspect.
本庭認為本案的其中一個可能性是，雖然受害人聲稱她是不同意性交，只是因受到酒精影響而沒法表示不同意性交，但她的證供卻多次說到她在飲用酒精飲品之後變得「模模糊糊」、「神智模糊」、「精神狀態是好模糊」、「冇晒意識」，事後「瘟瘟沌沌」，這些供詞極可能給予陪審團一個印象是她在酒店時已經失去知覺，並已失去同意性交的能力。這與控方所持的立場有所不同，彭法官是有必要對導陪審團作出進一步針對性的指引。

Another factor which might cause the jury to have the above impression is that there was no sufficiently clear direction from Deputy Judge Pang in respect of the answers given by the 1st applicant in his evidence in response to the prosecutor’s questions about whether Miss X was conscious.  This is what Deputy Judge Pang said to the jury:
另外一個可能會引致陪審團得出上述印象的情況是彭法官沒有就第一申請人作供時對主控官提出X小姐是否清醒的問題的答覆給予他們一個較清晰的指引。彭法官這樣對陪審團說：

“… The 1st accused is adamant that Miss X was conscious.  The fact that she was able to do oral sex, on her own initiative, to him (namely the 1st accused) is an example.  Well, if that’s what happened, did Miss X know that you people had video-recorded it?”
「…第一被告堅稱 X 小姐係清醒嘅，佢識得主動同佢 (即第一被告)口交就係例子喇。好喇，如果係咁，X小姐又知唔知你地拍過 video 嘅呢?」

“… In relation to another similar question, the 1st accused said that on that night he put on a condom of his own accord … Finally, the prosecutor said, “If Miss X was really conscious, she should know very well that all 3 of you had put on condoms.”  But the 1st accused said  — I quote — ‘I’m not sure’ ”.
「…就另一個類似嘅問題，第一被告話當晚佢係自動戴上避孕套嘅….最後主控話「如果 X 小姐真係清醒嘅話，佢好應該知道你哋三個都有戴套個喎。」不過第一被告話 一 我引述「唔肯定。」」。

However, the relevant evidence is that during cross-examination when the prosecutor put to the 1st applicant that if Miss X was conscious, then she should know that the 3 of them had put on condoms, his answer was that he “disagree”.  He did not say said he was “not sure” whether she was conscious.  The matter which he was not sure of was only whether Miss X knew that he had put on a condom when he had sexual intercourse with her.
但根據有關的證供，第一申請人在接受盤問時是說他「不同意」主控官所指若X小姐是清醒的話，她就應該知道他們三人是有戴避孕套，他並不是說他「不肯定」她是否清醒，他所不肯定的事只是X小姐是否知道他戴着避孕套與她性交：

“Question:Did you put on a condom of your own accord, or did you put it on when Miss X asked you to do so?
「問 :係你自動戴避孕套吖，抑或係X小姐要求嘅情況之下你戴避孕套?

Answer:I put on a condom of my own accord.
答 : 自動戴避孕套。

Question:At that time she was fully conscious, when you put on the condom?
問 : 佢當時又係完全清醒嘅，你戴避孕套嗰陣?

Answer:She was conscious.
答 : 佢係清醒都。

Question:Did she see you put on the condom?
問 : 睇住你戴避孕套?

Answer:No, she was not looking at me when I put it on.
答 : 咁唔係，唔係望住我戴。

Question:That means when you were putting on the condom, she did not see that or she turned her face to one side?
問 : 即係你戴避孕套嗰陣，佢就自睇唔到或者擰歪面?

Answer:She was having sexual intercourse at that time.
答 : 佢都係性交緊嘛，嗰陣。

Court:Wait a moment please.  When you’re putting it on, she was conscious but she was not watching you put it on, right?
官 : 等一等先吓。你戴嘅時候，佢清醒嘅，但係就唔係望住你戴，係咪呀?

Answer:Right, right.
答 : 係，係。

Court:She was having sexual intercourse?
官 : 佢喺度性交緊?

Answer:Yes.
答 : 係。

Court:With whom was she having sexual intercourse?
官 : 同邊個性交緊呀?

Answer:With the 2nd accused.
答 : 同第二被告。

Question:Do you mean you thought that the fact that you had put on a condom when you had sexual intercourse with her … by ‘her’ I mean Miss X … that Miss X knew that?
問 : 即係你覺得你戴避孕套同佢性交，「佢」意思即係X小姐，X小姐係知道嘅?

Mr. Lo [盧]: … … .
盧先生 : ……

Mr. Lo:Let me see what his answer is.
盧先生 : 我睇下佢點答喇。

Question:Do you agree? That means you had put on a condom when you had sexual intercourse with Miss X, and Miss X was fully aware that you had put on a condom when you had sexual intercourse with her, correct?
問 : 同唔同意呀?即係話你戴住避孕套同X小姐性交，X小姐係完全知道你戴住避孕套同佢性交嘅，對唔對呀?

Answer:I am not sure of this … the answer to this.
答 ：我唔肯定，呢個--呢個答案。

Question:Well, 2nd accused, 3rd accused also had sexual intercourse with Miss X, correct?
問 : 嗱，第二被告人、第三被告人亦都有同X小姐性交吖，對唔對呀?

Answer:Correct.
答 : 對。

Question:Both of them also had put on condoms, correct?
問 : 佢兩個都有戴避孕套吖，對唔對呀?

Answer:Should be so.
答 : 應該係。

Question:They also put them on in the room, correct?
問 : 都係喺個房裡面戴喇，對唔對呀?

Answer:Yes.
答 : 係。

Question:They also put them on in front of Miss X, correct?
問 : 都係喺X小姐面前戴喇，對唔對呀?

Answer:In fact, even I myself did not notice when they put on the condoms.
答 : 其實就連我自己都冇留意佢幾時戴避孕套。

Question:No, I mean do you agree that all 3 of you had put on condoms?
問 : 唔係，我意思係話你同唔同意你哋三位都有戴避孕套吖。

Answer:Yes.
答 : 係。

Question:Miss X was aware of this? I am of course talking about what’s going on at that moment, not subsequently.
問 : 呢個情況X小姐係知嘅?即係我當然講當時喇，唔係事後喇。

Answer:I am not sure.
答 ：我唔肯定。

Question:Why did you need to tell her that all 3 of you had put on condoms?  Wasn’t she aware of that?  She was fully con … you said she was fully conscious.
問 : 使乜你話畀佢聽你哋三個都戴緊套嘅啫，佢唔知咩?佢好清 - 你話佢好清醒嘛。

Answer:I explained to her what had happened.  I was not sure what she was talking about when she told me that she was upset, so I told her what I knew.
答 : 我同佢解釋番個原因，因為我唔清楚佢打畀我表達嘅唔開心係表達啲乜嘢，所以我就將我知道嘅嘢同佢講一次。

Court:Wait a moment.  You explained to her what you knew, right?
官 ：等一等。你將你知道嘅同佢解釋一次，係咪呀？

Answer:Right.
答 ：係。

Question:I put it to you that if your evidence is true, I mean if Miss X was fully conscious throughout this process as you said, then you would have no need at all to tell Miss X that you and the 3rd accused “were both wearing condoms at that time”, do you agree?
問 :我向你指出，如果你嘅證供係屬實嘅話，我意思係話你講話X小姐全程都好清醒嘅話，根本你就唔需 要再話畀X小姐聽，你同第三被告「都係當時戴緊套」咁，你同唔同意?

Answer:I don’t agree.
答 ：唔同意。

Question:You knew very well that Miss X at that time was really drunk. She was dazed and muddled, and did not know what was going on.  That’s why you sent her this message, ‘Hey, don’t worry, at that time we had put on condoms’.  Do you agree?
問 ：因為你好清楚當時X小姐真係飲醉咗，迷迷糊糊，都唔知發生咩嘢事，所以你先 send 呢個 message 畀佢，「喂，妳唔使擔心呀，當時我哋戴咗套嘅」咁，同唔同意?

Answer:I don’t agree.”
答 ：唔同意。」

50.We consider that because of the above-mentioned possibilities, there was additional reason for Deputy Judge Pang to give further directions in respect of the relevant issues when the jury asked the question.
本庭認為基於案件有上述這些可能性，彭法官更應該在陪審團提出問題後對有關的議題作出進一步的指引。

51.Another reason for the jury to ask the question may be that after taking into account the victim’s conduct, actions and behaviour before and during the sexual intercourse, they thought that it was possible that she consented to sexual intercourse, but they were troubled by not knowing what legal consequences her acts done under the influence of alcohol would produce. Under these circumstances, we believe it was imperative for Deputy Judge Pang to give directions and thorough explanation to the jury about the relevant legal principles, especially those relating to the mens rea of the accused.
陪審團提出有關的問題的另外一個原因可能是他們基於受害人在性交前及性交時的行為、動作及表現認為她有可能是同意性交的，但困擾他們的是如何理解她在酒精影響下作出的行為在法律上的後果。在這情況下，本庭認為彭法官更加要向陪審團作出指引及詳細解釋有關的法律原則，特別是有關於被告人的意圖。

52.As the jury were troubled by problems concerning the acts which the victim herself had done, even though Deputy Judge Pang had given directions about “the applicants’ evidence may be true”, that could not give them any real assistance in solving the problems.
由於陪審團受到困擾的問題都是涉及受害人本人的行為，故此就算彭法官已作出「申請人證供可能是真的」的指引亦不能實質地協助他們解決有關的議題。

53.While the position taken by the defence counsel is a factor which should be taken into account, we think that in this case the importance of the jury’s question far outweighs the importance of the defence counsel’s decision of not objecting to the withdrawal of the jury’s question in determining whether the convictions are safe.
本庭認為辯方律師的立場當然是一項需要被考慮的因素，但本庭認為在本案陪審團提出問題對定罪是否穩妥的重要性遠超過辯方律師當時並沒有對陪審團撤回問題一事提出異議的決定。

Convictions are unsafe
定罪不穩妥

54.The court does not judge whether an accused has committed any criminal offence on the basis of moral standards generally accepted in the community, but on the basis of whether the prosecution has adduced sufficient evidence in relation to the elements of the offence concerned.  Since Deputy Judge Pang did not give further directions to deal with particular issues when the need to do so arose (particularly further directions about the legal principles involved in the jury’s question), we hold that the convictions are unsafe and we quash the convictions. The respondent indicated that a retrial is not appropriate and it will not apply for a retrial. We think that it was a correct decision.
法庭不是以社會普遍接受的道德標準來裁定被告人是否違反刑事罪行，而是基於控方是否對犯罪元素提出充分的舉證。由於彭法官沒有因應案情的需要而作出進一步的指引，特別是陪審團提出的問題所牽涉的法律原則，本庭認為有關的定罪是不穩妥的，故此本庭撤銷定罪。答辯人表示重審並不適當，故此不會申請重審。本庭認為這是正確的決定。

Other grounds of appeal
其他上訴理由

55.There are other grounds of appeal put forward by the two applicants. The 1st applicant complained that the summing-up given by Deputy Judge Pang was not fair, that he admitted 3 sections of video-recording which had not been edited as evidence, that he allowed the jury to listen to the conversations in these footage, and that thereby he had been treated unfairly. The 2nd applicant pointed out that the verdict of not guilty given by the jury for the 3rd accused was an inconsistent and illogical verdict. He criticized Deputy Judge Pang for failing to present the summing-up fairly, failing to remind the jury of the defence of “genuine belief” when the jury asked him to give directions again in respect of the definition of “reckless” and failing to give directions to the jury as to what matters they should take into consideration in relation to the case of the 2nd applicant in order to determine whether the definitions of “reckless” and “genuine belief” were met. He also complained that Deputy Judge Pang, having told the jury if they found that Miss X did not make any complaint or that Miss X’s distressed appearance was fake, then they could ignore those parts of her evidence, failed to notice that such a finding would have considerable impact on the reliability of Miss X’s evidence and could create a lurking doubt in this case, thus rendering the verdict unfair.
兩名申請人在本上訴還提出其他上訴理由。第一申請人指彭法官的總結不持平、容許未經刪剪的三段錄影作為證據及容許陪審團聆聽這些片段內的對話內容，對他做成不公。第二申請人指陪審團裁定第三被告人罪名不成立是一項不一致及不合邏輯的裁決，他指彭法官的總結不持平、彭法官沒有在陪審團要求再次引導「罔顧」的定義時再次提醒陪審團辯方「真心相信」的辯護理由、彭法並沒有指引陪審團就他的案情要考慮甚麼事情來裁定「罔顧」及「真心相信」的定義及彭法官對陪審團說如果他們裁定X小姐沒有作出投訴或者他們裁定X小姐的困惑表現是假的，他們就可以不用考慮她這些證供，但彭法官卻忽略了這個情況會對X小姐的證供的可靠性帶來一定的衝擊及案件存有潛在疑點，致令裁決不公。

56.In our judgment, the crucial problem in this case is that Deputy Judge Pang failed to give further and in-depth directions as to the law regarding the voluntarily induced intoxication of the victim and whether she consented to sexual intercourse, thereby rendering the verdict unsafe. We do not find it necessary to go into other grounds of appeal except one, which is the complaint by the two applicants that Deputy Judge Pang’s summing-up was not fair. This concerned what Deputy Judge Pang said to the jury, “Although Siu Ming’s evidence cannot assist the prosecution in showing Miss X’s consistency, the defence can make use of it for their own ends.” The two applicants complained that this statement would make the jury misunderstand that the defence was making up a story and was therefore unfair to them. Our view is that the words “ make use of it for their own ends” are indeed derogatory. It means to seize on something and make an issue of it. We think that based on Mr. Fung’s evidence, the two applicants of this case could argue that the victim’s behaviour after the incident was not consistent with her allegation that she had been raped by them. They had the right to argue this and that was a substantive defence.  A judge must remain impartial and use appropriate wording, particularly when he is making comments adverse to an accused, a judge should not use words which are derogatory. Deputy Judge Pang’s reference to the applicants by using the words “make use of it for their own ends” was improper. However, we do not think that Deputy Judge Pang deliberately said anything against the applicants’ defence. It was just a wrong choice of words.
本庭認為本案的關鍵問題是彭法官沒有就受害人自願醉酒及她是否同意性交的議題上對陪審團作出更深入的法律指引，致令裁決不穩妥，故此本庭認為不需討論其他的上訴理由。本庭唯一需評論的是兩名申請人指彭法官的總結不持平這一點，這涉及彭法官對陪審團說：「小明證供雖然幫唔到控方顯示到X小姐嘅一貫性，但辯方就可以拎嚟做文章喇。」兩名申請人指有關說法使陪審團誤以為辯方正在堆詞，對他們不公平。本庭認為「做文章」這個詞語的確帶有貶義，意思是在某件事件上打主意，借題發揮。本庭認為本案兩名申請人是可以根據馮先生的證供提出受害人在案發後的表現與她報稱被他們強姦不一致，這是他們的權利，也是一項實質的答辯理由。法官必須保持公正態度及採用適當的措詞，特別是對被告人作出不利的評論時，法官是不應該採用含貶意的詞語。彭法官以「做文章」這詞語來形容申請人是不恰當的，但本庭不認為彭法官是故意針對申請人的答辯，他只是用詞不當而已。

Mr. Robert Lee, S. C., Deputy Director of Public Prosecutions and Mr. Bobby Cheung, Public Prosecutor of the Department of Justice, for the Respondent.
答辯人：由律政司副刑事檢控專員李紹強資深大律師及檢控官張民焜代表。

Mr. Eric Kwok, S. C. and Ms. Vivian Ho, instructed by Hui & Lam, for the 1st Applicant.
第一申請人：由許林律師行轉聘郭棟明資深大律師及何慧嫻大律師代表。

Mr. Richard Wong, instructed by Michael Cheuk, Wong & Kee, for the 2nd Applicant.
第二申請人：由卓黃紀律師事務所轉聘黃達華大律師代表。