Hon Cheung JA (giving 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 Applicant was charged with 2 counts of “Rape”, contrary to Section 118(1) of the Crimes Ordinance, Cap. 200, Laws of Hong Kong. Following a trial in the Court of First Instance before Madam Justice M. Poon and a jury, the Applicant was convicted on both counts and sentenced to 12 years’ imprisonment. He applied for leave to appeal against conviction and sentence. He acted in person for his application in relation to the conviction whereas Mr James Tze of Counsel acted for him for his application in relation to the sentence. On the hearing day, he abandoned his application for leave to appeal against conviction and the application was dismissed by the Court right away. After hearing his application for appeal against sentence, the Court dismissed it for reasons as follow.
申請人被控兩項「強姦」罪，違反《刑事罪行條例》(香港法例第200章) 第118(1) 條。案件經高等法院原訟法庭法官潘敏琦及陪審團審訊後，申請人被裁定兩項罪名成立及被判處12年監禁。申請人就定罪及刑期提出上訴許可申請。申請人親自處理其定罪申請，而其刑期申請則由謝英權大律師代表。申請人在聆訊當日放棄針對定罪的上訴許可申請，該申請即時被本庭撤銷。本庭審理其刑期申請後駁回申請，理由如下。

Facts of the case
案情

The victim of the case, X, was a girl of 15 years old at the material time. The other defendant of the case was X’s mother (“Mother”). The Mother and the Applicant were a cohabiting couple. They lived with X and her younger brother. The Mother was charged with aiding and abetting the commission of the 2 counts of “Rape” by the Applicant. At the trial, the Mother pleaded guilty to one of the “Abetting” charges and was sentenced to 7 years’ imprisonment.
案件的受害人X在案發時是一名15歲的女童。同案的另外一名被告人是X的母親(‘母親’)。母親與申請人是同居的男女朋友。他們與X和她的弟弟一起居住。母親被控告協助教唆申請人干犯該兩項「強姦」罪。在審訊時，母親承認其中一項教唆罪及被判處監禁七年。

The facts of the case indicated that one night in mid-August 2003, X was sleeping in her room at home. At about 12 midnight, the Applicant and the Mother returned home. The Applicant entered X’s bedroom and attempted to lift up her quilt to fondle her. He told X that he was her sworn father and could do whatever he wanted. X did not allow it and had a struggle with him. He could not have his way as intended and then returned to his bedroom. He asked the Mother to persuade X to go into their room. The Mother said X would not agree. He asked the Mother to tell X that he would not destroy her virginity. The Mother then asked X to go into her room and told X that she would not give X any pocket money if X did not agree to do so. In fact, such “pocket money” was to pay for X’s and her younger brother’s meal boxes. X told the Mother that she was just having her period and did not want to go into her room. The Mother said that she had made such an excuse to stall off the Applicant one week ago already and that this time she could not use it again. Eventually, the Mother pushed X into her room. After X had entered the room, the Applicant took off her clothes and had sex with her while the Mother was sleeping on the other side of the same bed. After that, X kicked off the Applicant with force and left the room (the 1st count).
案情顯示在2003年8月中的某一個晚上，X在家裡自己的房間睡覺。大概半夜12時，申請人和母親從外回家。申請人進入X的睡房，企圖揭開她的被子及撫摸她，申請人對X說他是X的契爺，想做甚麼都可以。X不允許及與申請人糾纏。申請人未能得逞，之後返回自己的睡房。他要求母親說服X到他們的房間。母親說X是不會答應的。申請人要求母親對X說他是不會破壞X處子之身。母親便要求X到她的房間及對X說如果X不答應就不會給X零用錢。這「零用錢」其實是X和她弟弟用作購買飯盒食用的金錢。X對母親說她月經剛到，不想到她的房間。母親說她一個星期前已經用這個藉口來推搪申請人，今次不能夠再用這個藉口。最後母親將X推入她的房間，X進入房間後，申請人除掉她的衣服，與她性交。當時，母親亦睡在同一張床的另外一邊。之後，X用力踢開申請人，離開房間(第一項控罪)。

After that occasion, X became afraid of sleeping in her room. She and her younger brother slept on the floor of the living room together. A few days later, the Mother asked X to go into her room again. X refused. The Mother told X again that X would not get any pocket money if X did not go into her room and she pulled up X forcibly. X had no alternative but to go into the Mother’s bedroom. The Mother told her that the Applicant would not “interfere with her and wanted to touch her only”. On that occasion, the Mother did not accompany X into the room. After X had entered the room, the Applicant took off her clothes and had sex with her again. Soon afterwards, X kicked off the Applicant and left the room (the 2nd count).
這次之後X不敢再在自己的房間睡覺。她和弟弟一同睡在客廳的地上。幾天之後，母親又再要求X 進入她的房間。X拒絕。母親又再次對X說如果X不進入她的房間，X就不會有零用錢及用手強行拉X起身，X逼於無奈，只好進入母親的睡房。母親對她說申請人不會「攪佢，淨係想摸她」。這次母親沒有陪同X一同進入房間。入房後，申請人除掉X的衣服，再次與X性交。不久，X踢開申請人，離開房間(第二項控罪)。

In September, shortly after the incidents, X complained to a few schoolmates that she had been abused by her mother’s boyfriend.
在事發後不久的九月份，X向她的幾個同學投訴她被母親的男朋友侵犯。

Seven years later, X had a boyfriend. She told him that she had been sexually abused by the Applicant. Her boyfriend suggested that she tell a social worker about the incidents and call the police. However, ‘the Applicant’ (sic) did not do so because at the time the social worker whom she trusted had left his post, her mother was suffering from heart disease and her younger brother was moderately mentally retarded. In May 2010, X met the social worker whom she trusted again and revealed to him that she had been sexually abused by the Applicant. After several twists and turns, the social worker of the housing estate where X lived eventually accompanied her to make a report to the police.
七年後，X認識了一位男朋友，她告訴他她曾被申請人性侵犯。男朋友建議她將事情告訴社工及報警。但申請人沒有這樣做，因為當時她所信任的社工已經離職，而母親患有心臟病，弟弟患有中度弱智。到了2010年5月，X再次碰見那位她信任的社工，X向他透露曾被申請人性侵犯。幾番輾轉後，最終由X 所居住的屋邨社工陪同她報警。

The Applicant had committed many offences of “Possession of a Dangerous Drug”.
申請人曾干犯多項管有毒品罪行。

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 behaviours 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 HKC 181, 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)。

The Sentence of this case
本案的刑期

Undoubtedly, 12 years’ imprisonment was a severe sentence. Nevertheless, the sentencing principle was that the court should pass an appropriate sentence in accordance with the facts of the case. Sentences of similar cases could serve as reference, but ultimately the court passed the sentence based on the distinctive background of the case. This Court agreed that the sentencing approach adopted by Madam Justice M. Poon was appropriate because the facts of the case were really serious and there were many aggravating factors in the case:
無疑，12年監禁是一個非常嚴峻的刑期，但量刑的原則是法庭根據案情判處適當的刑罰，同類案件的刑期是具參考作用的，但法庭最終還是以該案的獨特背景為依據。本庭同意潘法官的量刑是適當的，因為案情確實嚴重及案件存有多項加重刑責的因素：

The Applicant was 40 years old at the material time. He had abused X twice. At the time, X was just 15 years of age and she was vulnerable and could not protect herself.
申請人在事發時40歲，他兩次侵犯一名年僅15歲的X。X當時處於不能保護自己，容易受到傷害的年齡。

The Applicant was the Mother’s boyfriend and they lived in the same residence at the material time. X called the Applicant “sworn father” and there was a special relationship of trust between them. Being an elder member of the family, he bullied X in order to satisfy his sexual desire.
申請人是母親的男朋友，案發時大家在同一居所生活，X稱申請人為「契爺」，兩人之間存有特別的信任關係，他以長輩身份來欺凌X，滿足性慾。

From the facts of the case, the Applicant wanted to abuse X long ago. Having failed to abuse X at his first attempt, he took advantage of his intimate relationship with the Mother to egg her on to force X to succumb. The Mother was X’s closest family member but not only did she fail to protect X and stop the Applicant from abusing X, she also took part in the offences and coerced X to have sex with the Applicant. X said that under such desperate circumstances, she did not resist and was raped by the Applicant. By fair means or foul, the Applicant got the Mother to sell out her daughter to achieve the purpose of raping X. Such modus operandi must be regarded as more serious amongst similar cases.
從案情看來，申請人早已想侵犯X。申請人在首次侵犯X未能得逞後便利用他與母親的親密關係慫恿母親強逼X就範。母親是X最親近的親人，但她非但沒有保護X，阻止申請人侵犯X，還更參與其事，威逼X與申請人上床。X說她在這種絕望的情況下，沒有作出反抗，被申請人強姦。申請人不擇手段，要母親出賣女兒，讓他達到目的，污辱X，這種犯案手法在同類案件中更見嚴重。

Although the Applicant pointed out that he did not ejaculate inside X’s body, he did not take any safety measures at all in the course of abusing her, thereby putting her at risk of getting pregnant and contracting venereal disease.
雖然申請人指他沒有在X體內射精，但他在侵犯X時是完全沒有採用任何安全措施，令她面對懷孕及染上性病的危險。

X suffered tremendous psychological and physical trauma after the offences. According to X’s trauma report, although the offences took place many years ago, she had perpetual depression which affected her normal living functions. She suffered from Post-Traumatic Stress Disorder and the agonizing scenes of being abused kept appearing in her mind. She often felt helpless and incapable and resorted to self-evasion. She had symptoms of serious depression. She had tried hard to forget the incident, including moving out of the residence and avoiding contact with anything that could intrigue unpleasant memories. However, she still often felt panic-stricken and a lack of sense of safety. She tried to persuade herself into forgiving her mother and even came up with various exculpatory reasons for her but in vain. The Applicant had taken her virginity and so she often felt herself as dirty and had a poor self-image. In order to alleviate the pressure, she even chose to harm herself by cutting her wrist/s. She showed symptoms of perpetual exhaustion, headache, dizziness and sexual numbness, etc. Apart from physical and psychological suffering, her trust in her mother was completely destroyed because her mother only cared about her own interests and ignored her welfare. She also blamed herself for reporting the incidents to the police, causing her younger brother to be sent to a residential care home.
X在今次事件後受到極大的精神及身體創傷。根據X的創傷報告，雖然事隔多年，她情緒長期低落，影響一般生活機能。她出現創傷後遺症，被侵犯的痛苦情境不斷出現心頭。她常感到無助和無能為力，自我逃避。她有嚴重程度的抑鬱徵象。她曾努力嘗試忘記此事，包括搬離居所及避免接觸可引發不快回憶的事物，但仍經常感到惶恐及缺乏安全感。她試圖說服自己原諒其母親，甚至為她設想不同的脫罪理由，但不成功。她因被申請人奪去貞操而常常感到自己污穢和自我形象低落。為了減壓，她更選擇割腕自殘。她出現長期疲憊、頭痛、暈眩和對性麻木等徵狀。除身心受損外，她亦因其母親只顧個人利益，置她的福祉於不顧，令她對母親之信任完全摧毀。她亦對因舉報事件，令其弟被送往院社而感到自責。

Besides, the Applicant’s acts had broken X’s family. X’s mother was sent to jail and X needed to take care of her moderately mentally retarded younger brother put in a residential care home.
另外，申請人的行為令致X的家庭分裂。X的母親被判入獄，X需要照顧安置在院社中的中度弱智弟弟。

The Applicant said that he acted under the influence of alcohol at the material time. He now felt deeply remorse for the incidents. However, it was not a mitigating factor.
申請人指他在事發時受到酒精影響，他現對這事深感後悔。這不是減刑的因素。

This Court dismissed his application for reasons given above.
基於上述原因，本庭駁回申請。

The Applicant, in person, present (Conviction)
答辯人：由律政司高級檢控官雷芷茗代表。

James Tze, instructed by Herbert Tsoi and Partners and assigned by the Legal Aid Department, for the Applicant (Sentence)
申請人(判刑)：由法律援助署委派蔡克剛律師事務所轉聘謝英權大律師代表。

Ira Lui, Senior Public Prosecutor, of the Department of Justice, for the Respondent
申請人(定罪)：無律師代表，親自出席。