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 of one count of rape, contrary to section 118 of the Crimes Ordinance, Cap. 200, Laws of Hong Kong.  He pleaded not guilty and was tried before Deputy High Court Judge Patrick Li sitting with a jury.  The jury returned a verdict of guilty by a ratio of 5 to 2.  The applicant was sentenced to 7 years and 6 months imprisonment.  He applies for leave to appeal against both conviction and sentence.
申請人被控一項「強姦」罪，違反《刑事罪行條例》(香港法例第200章)第118條。申請人否認控罪。案件經高等法院暫委法官李瀚良與陪審團審理後，陪審團以5比2的比數裁定申請人罪名成立。申請人被判監7年6個月。申請人現就定罪及刑期提出上訴許可申請。

Evidence of the victim
受害人的證供

The victim X was a 15 year old girl.  She came to know the applicant on 20 July 2009 on a social networking website on the internet.  They communicated with each other through MSN.  X said that the applicant himself joined her MSN group.  The applicant told X that he had shot some films and had done make-ups for some models.  He asked the victim whether she wanted to be a model and used the lens on the computer to show her some cosmetics and a skirt.  He said he would give the skirt to X as a gift.
受害人X是一名15歲的女童。她在2009年7月20日在互聯網一個社交網站上認識申請人。他們是以MSN來通訊的，X說是申請人自己加入她的MSN。申請人告訴X他曾經拍過電影及替模特兒化妝。申請人問她想不想當模特兒。申請人利用電腦的鏡頭向X展示一些化妝品及一條裙。他說他會將這條裙送給X。

Subsequently, they talked with each other on the telephone.  The applicant told X that he was running a model company, did make-ups for people and had shot films.  He asked X whether she would like to be a model.  X said she was too short.  The applicant asked her whether she wanted to join the show business or to be a photography model.  X said she wanted to join the show business.  Thereupon the applicant told her that certain models and singers had sexual relationships with him.  He told her that in order to do what she wanted, she needed to pay a price.  Then he asked her, “Do you want that?” X thought what he meant was make up, and she answered, “That’s OK.”  X said the applicant had told her, “A starlet who desires to stand out from others as quickly as possible has to offer her body in exchange.”  X said she did not know whether this statement was a suggestion to her that that was what she needed to do, or whether it was just a casual remark in an ordinary conversation.  Then the applicant asked her, “Do you want that?”  At that time X misunderstood that the applicant was referring to make up and photo-taking.  After that, the two of them arranged for seeing each other on the following day.  The applicant emailed to X a commercial advertisement contract for models.  X signed the contract and emailed it back to the applicant.
雙方接着以電話通話。申請人告訴X他開設模特兒公司、替人化妝及拍過電影。申請人問X是否喜歡當模特兒。X說她個子矮小。申請人問她想入娛樂圈還是拍照，X說她想入娛樂圈，申請人便對她說有些模特兒及歌手曾與他發生性關係。申請人對她說如果她要做這些事，她就要付出代價。申請人問她「想不想」，X以為他的意思是化妝，便說：「OK啦」。X亦說申請人曾對她說：「一個明星想快上位就要出賣自己的身體」。X說她不知道申請人這句話的意思是指她要這樣做，抑或是一項平常的交談。接着申請人問她：「你想唔想呀？」X當時誤以為申請人是指化妝及影相。接着兩人相約在翌日見面，申請人電郵一份模特兒廣告合約給X。X在合約上簽名，然後電郵給申請人。

On the following day, the two of them met in a McDonald’s restaurant in Tsuen Wan.  After they met, the applicant asked X, “Are you going to do it now?”  X thought that he was referring to matters about modeling and make up.  The applicant gave a skirt to X as a gift.  Then they went to an hourly hotel.  The applicant and X went into a room of the hotel and sat on a bed.  The applicant opened a cosmetic case and explained to X what cosmetics there were inside.  Then he asked X to stand up and he kissed her lips.  According to X, at that moment she was very scared.  “I trembled all over.  My hands were freezing and my whole body kept on trembling.”  However, she said she did not do anything.  Her reason was that during her childhood she had been beaten by a private tutor.  She was not bold enough to resist and she feared that the applicant might have weapons and might kill her; yet she had never conveyed to the applicant what there was in her mind.  When the applicant wanted to kiss her, she stepped back.  The applicant bent forward to kiss her, and X bent her upper body backward.  She lost balance and fell on the bed.  Then the applicant touched her breasts with his hands.  X was very afraid, but she did not do anything or say anything to show that she resisted him.  The applicant went on and took off his clothes.  He asked X to take off her clothes, and she took off her outer garments and underclothes.  After that, the applicant removed X’s bra and briefs.  X still did nothing to resist.  X said she had tried to step back but she did not say anything.  X said she lacked the courage to resist.  She was very sensitive.  There was a shadow in her mind, so even though her family members had given her proper guidance, she did not have the courage to resist.  She explained that actually she did try to resist. “I mean it’s like playing.  I tickled him, [trying] to get him off me.”  What followed was that the applicant asked her to lie on the bed, and he got onto X’s body.  X said she feared that the applicant’s penis would get into her vagina, she therefore moved her body towards the foot of the bed in order to prevent him from doing that.  X said the genitals of the applicant touched the outside of her vagina, but did not get into her vagina.  Soon, the applicant ejaculated outside her body.  Then he lay down beside X and the two of them watched television together.  Later, the applicant again got onto X’s body and inserted his penis into her vagina.  X said she was not sure whether his penis had actually got into her vagina, but she felt great pain inside her vagina.  The applicant moved his penis forward and backward.  After a while, the applicant stopped and slept beside X.  In the course of this sexual intercourse, the applicant said to her, “You still seem to be afraid of me”, and the response from X was an “Ah”.
翌日，兩人在荃灣的一間麥當勞餐廳見面，見面後申請人問X：「咁你依家做唔做呀？」，X當時以為他所指的是模特兒及化妝的事情。申請人送了一條裙給X，接着兩人前往一間時鐘酒店。申請人與X進入酒店房間後坐在床上，申請人打開他一個化妝箱及向X介紹箱內的化妝品，之後申請人叫X站起來及吻她的嘴，X說她當時很驚，然後「成身震晒，雙手又凍，僵晒，成個人係咁震」，但她說她沒有作出任何動作，原因是她小時候曾被一名補習老師毆打，她沒有膽量反抗，她亦擔心申請人有武器及會殺她，但她從來沒有向申請人表達過她的想法。當申請人想親吻她時，X向後縮，但申請人俯前吻她。由於X的上身向後彎，因失平衡而跌在床上，接着申請人用手摸她的胸部。雖然X當時很驚慌，但她沒有作出任何動作或說任何話以示反抗。申請人之後除掉自己的衣服及叫X除掉她的衣服。X便將她的外衣及內衣除掉，接着申請人除掉X的胸圍及底褲，X亦沒有作出任何動作反抗。X指她有試過退後，但她沒有說過任何話。X說她自己沒有膽量抗拒，她很敏感，雖然家人曾教導她正常的知識，但她因為有一種陰影而沒有膽量反抗。她說她其實都有試圖反抗「即係好似玩咁，唧佢，整開佢囉」。接着申請人叫她睡在床上及爬上X的身體。由於X說她恐怕申請人的陽具會進入她的陰道，故此她曾經將身體下退，阻止他。X說申請人的性器官觸及她的陰道的外面，但沒有進入她的陰道內。不久，申請人在X的體外射精。之後申請人睡在X旁邊，兩人一起看電視，接着申請人再爬上X的身體及用陽具插入她的陰道。雖然X說她不肯定申請人的陽具有沒有成功進入她的陰道內，但她感覺到她的陰道很痛楚，申請人前後移動他的陽具，接着申請人停下來及睡在X旁邊。在進行這次性行為時，申請人對她說：「你仲好似好驚我？」，X的回應是「呀。」

Subsequently, the applicant had sexual intercourse with X for the 3rd and the 4th times and then he bathed her.  Finally, they left the hotel together.  The applicant asked X to go with him to a shop to look for some false eyelashes.  Following that, he accompanied X to take transport.  Before X boarded the bus, she kissed the applicant’s cheek at his request.  However, she said she was not willing to do that, so after she boarded the bus she immediately wiped her mouth with a tissue.
申請人之後再與X進行第三及第四次的性行為，然後替X洗澡，其後兩人一起離開時鐘酒店。申請人叫X陪他去一間商店找一些假眼睫毛，之後送X去搭車。在上車前，X應申請人的要求吻他的面頰，但X說她是不願意這樣做的，所以她上了車後即拿出一張紙巾抹她的嘴。

In the bus, X telephoned her friend Y and arranged to meet him/her.  When they met, X complained to Y that she had been “molested” by the applicant.  At night on the same day, X also complained to another friend, W, whom she came to know at a photography club.  In the evening of 22 July 2009, X and Y together went to make a report at the Tsuen Wan Police Station.
在巴士上，X致電她的一位朋友Y相約見面。見面後X向Y投訴她被申請人「搞佐」。當晚X亦向她一位在影相會認識的朋友W投訴。在2009年7月22日晚上X與Y一同到荃灣警署報警。

The prosecution evidence showed that there was an old laceration on X’s hymen.  According to X, the cause of the laceration might be either one of the following two incidents: on one occasion when she was riding a bicycle, her private parts were hurt by pressing against something hard; on another occasion, she felt that there was some hard object inside her vagina and she put her hand into her vagina.  X said that when the applicant was lying on bed with her, he asked her “Have you done it with other boys before?” X answered by saying casually and equivocally, “May be and may be not.”
根據控方證供，X的處女膜有一處舊裂痕。X解釋說這可能是從前一次踏單車時壓到私處，又或者是有一次她因感覺到私處有硬物而伸手入私處所致。X說申請人與她躺在床上時，申請人問X：「你有冇同其他男仔乜嘢嘅。」X的回覆是她不著意、模棱兩可地回答「有或者冇」。

Defense
答辯理由

The applicant was 31 years old.  He was arrested by the police on 24 July 2009.  He admitted under caution that he had sex with X, but he claimed that X had sex with him voluntarily.  He denied raping her.
申請人年紀是三十一歲。申請人在2009年7月24日被警員拘捕，在警誡下，他承認與X性交，但聲稱是X自願與他性交的，他否認強姦X。

The applicant admitted that he had sexual intercourse with X and that he knew X was only 15 years old at the material time.  He said X consented to having sexual intercourse with him.  They came to know each other on the internet and then communicated with each other by telephone.  X told him on the phone that she longed to join the show business.  The applicant told her that the show business was dark and corrupt, and that she had to go to bed to sleep with various people.  He asked her, “Can you do that?” and said to her, “That means other than having me as your partner, you’ll have to accept other people to be your partner.  Do you know?”  X answered, “Well, I know.”  Then they arranged to meet on the following day.  They met in a McDonald’s restaurant.  The applicant gave her his name card and a grey skirt as a gift.  After that, he showed her the information on other name cards and let her see the things in his cosmetic case.  The applicant asked X once more, “Can you do that?”  X said, “Yes.”  Then they went to an hourly hotel.  In a room in the hotel the applicant asked X again, “Can you do that?” X said, “OK.”  Then the applicant told her to take off her clothes herself, and she took off her clothes herself.  What followed was that the two of them lay on a bed, kissing and then had sexual intercourse.  The applicant admitted that his penis was inserted into X’s vagina, but he said he ejaculated outside her body.  During the intercourse, X did not have any response.  After the intercourse, the applicant asked her, “You don’t feel OK?”  X said, “Mm.”  The applicant explained that he asked her this question because he found that she was expressionless when the intercourse was over, and he wondered what she was thinking.  Later, they took a bath together and left the hotel.
申請人承認他與X發生性關係，他亦知道X當時只是15歲。她說X是同意與他性交的。雙方在互聯網上認識，接着通電話。在電話上，X對他說她很想加入娛樂圈，申請人對X說娛樂圈很黑暗，她需要陪人上床睡覺及問她「得唔得」？申請人對她說：「即係除佐陪我之外，你要陪其他人，你知唔知？」X回答是「都會知道」。之後兩人便相約在翌日見面。雙方在麥當勞見面後，申請人將他的卡片及一條灰色裙送給X。之後再把其他的卡片資料及他的化妝箱內的東西給X看。申請人再一次問X：「得唔得？」X說：「得」之後兩人便前往時鐘酒店。在酒店房間內，申請人再問X：「得唔得？」當X回答：「OK。」之後申請人叫X自己脫衣，她就自己脫掉衣服，之後兩人睡在床上接吻，然後性交。申請人承認他的陽具插進X的陰道，但在體外射精的。性交時，X沒有反應。性交後，申請人再問：「唔OK呀？」X回覆：「唔」。申請人解釋他問這個問題是他看見X事後沒有表情，不知道她在想甚麼。之後，兩人一起洗澡，然後離開酒店。

Special feature of this case
本案特殊之處

Obviously, the special feature which distinguishes this case from other rape cases is that at no time before, during or after any one of the intercourse did X say anything or do anything to indicate that she did not consent to any one of the intercourse.  The contact between these two people lasted quite some time.  The applicant had 4 sessions of sexual intercourse with X and after that, he bathed her. Then he left the hotel with her and went to a shop, and then accompanied her all the way until she boarded a bus.  The behavior of X throughout this process was hard to comprehend.  If she did not consent to intercourse, why did she not do or say anything to resist?  Even taking into account the possibility that she might still be affected by the traumatic experience she suffered during her childhood ─ she had been assaulted ─ and so she was so frightened that she did not know what to do at the initial stage, it is impossible that she would continue to behave in this nil-resistance way at the latter stage of the incident.  Such behavior is different from the reaction which a girl or a woman would demonstrate when she is forced to have sexual intercourse.  X did say that before the intercourse she had tried to resist by, for example, keeping away from the applicant, dodging or moving her body towards the foot of the bed; but she also said that her acts of resistance were like playing, like tickling the applicant or pushing him away with her hands.  Moreover, X’s evidence showed that in the evening before the incident when she were talking with the applicant on the phone, what the applicant said already touched upon sex, for example, he said that he had sexual relationships with some models and singers, and that if X wanted to join the show business she had to pay a price, to go to bed with various people.
明顯地本案與其他強姦案不同及特別之處是X無論在性交前、性交進行期間及性交後均沒有用任何言語或動作表示她是不同意性交。兩人接觸的時間甚長，申請人曾經與X進行過四次性行為。之後申請人替她洗澡，又與她一同離開酒店到一間商店，然後申請人送X上車。在整個過程中X的表現實在令人費解的。如果她是不同意性交，為何她不用行動或說話反抗。就算她因為童年被毆打的陰影，初時受驚不知所措，但她不可能在之後的過程仍是保持這種沒有反抗的態度，這是有異於一名女子被人強行性交的反應。雖然X說在性交前她曾試圖反抗，例如避開申請人、閃避或將身體下移，但她又說她的反抗行為是好像玩耍似的，如搔癢申請人或用手戳開他。X的證供亦顯示雙方在事發前一晚通電話時申請人所說的說話已觸及性行為，例如：申請人曾經與一些模特兒及歌星有性關係；如果X要入娛樂圈她要付出代價；陪人上床等的談話。

What directions should be given to the jury
如何引導陪審團

We think that the natural and reasonable response of a person equipped with legal knowledge when confronted with these facts would be to doubt whether the prosecution could prove beyond reasonable doubt that X did not consent to having sexual intercourse with the defendant.  In other words, would a girl or woman who does not consent to sexual intercourse behave in the same way as X did?  We consider that under these circumstances it was necessary for the Deputy Judge to give clear directions to the jurors, who, though well educated, did not have knowledge about the law, so as to bring home to them how the prosecution could be able to discharge their burden of proving beyond reasonable doubt that the applicant had committed the offence charged.  Before the jury gave their verdict of guilty on the basis of such evidence, they were required to consider carefully whether X had, as she said, never consented to sexual intercourse throughout the whole course of the incident, or whether, as alleged by the applicant, the reason for X behaving in such a way after she met the applicant was that she had already agreed during the telephone conversation to go to bed with him.  Furthermore, even if X did not say on the telephone she would do that, could her behaviour in the hotel room support the applicant’s allegation that she consented to sexual intercourse?  The Deputy Judge was certainly entitled to point out to the jury the strengths and weaknesses in the evidence of the prosecution and of the defence, but such directions must not downplay those areas of X’s evidence which could cause one to feel puzzled.  In our judgment, owing to the special feature of this case, there was every reason why the Deputy Judge should direct the jury’s attention to this special feature and give prominence to the conflict in the evidence in this aspect, so that they could focus their attention on this part of the prosecution evidence which was most likely to cause one to doubt and was most difficult to comprehend, thereby enabling them to understand it was essential that they could not find the applicant guilty unless they had no reasonable doubt.
本庭認為任何一名有法律知識的人士面對這些案情的自然及合理反應是會質疑在這情況下控方是否可以在毫無合理疑點下證明X是不同意與申請人性交的。換句話說，一名不同意性交的女子是否會有X的表現呢？本庭認為李法官在這情況下是有需要對這群雖然高學歷但沒有法律知識的陪審員作出一些清晰的指引，好讓他們清楚知道控方要在毫無合理疑點下證明申請人干犯控罪的舉證責任是如何實踐的。陪審團對這些證供在作出定罪裁決前必須慎重考慮X是否如她所說在整個過程中都是不同意性交的，又抑或是如申請人所指X與他見面後的表現是因為X在電話中已經同意與他上床呢？另外就算X在電話上沒有說她會這樣做，她在酒店房間的表現是否可以支持申請人所說X是同意性交？李法官當然有權向陪審團說明控辯雙方證供的強弱之處，但這些指引不可以淡化X這些令人產生疑惑的證供。反而本庭認為由於本案的特殊案情，李法官更需要向陪審團引導這特殊的案情，凸顯這方面的衝突，好讓他們將注意力集中於控方案情中最令人產生疑點、費解的一環，從而使他們了解他們確實只可以在毫無合理疑點下才能裁定申請人罪名成立。

The case of Jim Fai
Jim Fai 案例

In Jim Fai v. HKSAR [2006] 9 HKCFAR 85, the Court of Final Appeal set down the following principles as to what directions should be given to the jury about the treatment of defence evidence and prosecution evidence:
終審法院在Jim Fai v. HKSAR [2006] 9 HKCFAR 85一案就法官如何引導陪審團處理辯方證據及控方證據定出以下原則：

就陪審團商議裁決而言，處理辯方證據與處理控方證據之間有着重大分別。陪審團只能在肯定控方證據屬實並可予倚賴的情況下裁定被告人罪名成立。陪審團若然不相信控方證據或對該證據存有合理懷疑，便不得根據該證據而裁定被告人罪名成立。另一方面，陪審團即使完全拒納辯方證據，仍須肯定控方證據屬實且無合理疑點，方能裁定被告人罪名成立。若然陪審團覺得辯方為辯白而提出的證據屬實或可能屬實，則辯方已對控方案情提出充分疑點，在這情況下，陪審團將要裁定被告人無罪。(見第16段)	(1)	There is a fundamental difference between the treatment of defence evidence and prosecution evidence in the jury’s deliberation of their verdict.  It is only when the jury feel sure that the prosecution evidence is true and can be relied on that they can convict the accused.  If they disbelieve the prosecution evidence or entertain a reasonable doubt in such evidence, they are not to convict on the basis of it.  On the other hand, even if the jury totally reject the defence evidence, they still have to be sure that the prosecution evidence is true and that there is no reasonable doubt before they can convict the accused.  If they think that the defence evidence pointing to innocence is true or may be true, it would follow that the defence has raised sufficient doubt in the prosecution case.  In that case, the jury have to acquit him.  (See paragraph 16)
(1)

上述重大分別，乃是運用“控方須在無合理疑點下證明被告人有罪”原則的必然結果。因此，關乎應當如何處理辯方證據的陪審團指示，與關乎舉證責任和標準的指示有着內在關連。法官務須以清楚簡潔的方式，就這方面妥為指示陪審團。(見第17段)	(2)	This crucial difference necessarily follows from the application of the principle that it is for the prosecution to prove the guilt of an accused beyond reasonable doubt.  The direction to the jury on how they should approach defence evidence is thus intrinsically linked up with the direction on the burden and the standard of proof.  It is essential that the jury should be properly directed on this aspect in clear and simple terms.  (See paragraph 17)
(2)

Specimen directions
指引樣本

The crucial point of these principles is that if the jury consider that the defence evidence is true or may be true, they have to find the defendant not guilty.  This is a concrete manifestation of the requirement that they can convict if and only if they “have no reasonable doubt”.  Paragraph 44A of the Specimen Directions in Jury Trials compiled by the Judicial Studies Board of Hong Kong clearly says that the defendant “does not have to prove his innocence.  He does not have to prove anything… It is for [the jury] to decide whether [they] believe the evidence of the defendant… or whether it may be true… if the account given by the defendant … is or may be true, then the defendant must… be acquitted”.
上述原則的重點是若果陪審團認為辯方證據屬實或可能屬實便需要裁定被告人無罪。這個原則是體現他們必須是在「無合理疑點」的情況下才可作出定罪。香港司法人員培訓委員會所制訂的「刑事案件陪審團指引樣本」的第44A段亦清楚說明「被告人不需要證明自己清白，他不需要證實任何事情。陪審團是需要決定他們是否相信被告人的證供或者這些證供是否可能是真實的。如果被告人所說屬實或者有可能是真實的話，陪審團是必須判他無罪的。」

In HKSAR v. Or Chung Yeung [2004] 3 HKLRD 645, the defendant was convicted of rape.  His ground of appeal was that the trial judge failed to direct the jury as to what should be done if the evidence given by him “may be true”.  The Court of Appeal acknowledged the importance of this direction to a jury with no legal knowledge when they were deliberating their verdict.  However, the Court of Appeal also stressed that the court could not deal with the judge’s failure to give directions about what should be done if the evidence given by the defendant “may be true” in isolation and overlook the facts of the case and the entire set of directions.  The Court of Appeal had to look at the entire set of directions given by the judge when considering whether the verdict was rendered unsafe by the absence of a relevant direction.  In that case, even though the trial judge did not give any direction as to what should be done if the defendant’s evidence “may be true”, he had actually given directions to the jury about how to apply the relevant laws to the facts, so the Court of Appeal found that the verdict was still safe.
在香港特別行政區訴柯重陽[2004] 3 HKLRD 645一案，被告人被裁定「強姦」罪罪名成立，他的上訴理由是原審法官沒有給予陪審團「他的證供可能是真實」的指引。上訴法庭確認這個指引對一些沒有法律知識的陪審團在作出裁決時的重要性，但上訴法庭同時指出不可以單獨處理法官沒有作出「被告人的證供的可能是真實」指引的議題而忽略了案情及整份指引，上訴法庭需要以法官作出的整份指引來考慮是否因為欠缺這一個指引而令到裁決不穩妥。在該案雖然原審法官沒有作出「被告人的證供可能是真實的」的指引，但由於他實際有向陪審團指示如何將有關法律運用於案情上，上訴法庭認為有關的判決仍是穩妥的。

Directions given in this case
本案的指引

In this case, although the Deputy Judge had clearly explained the burden of proof at the early part of his directions to the jury, he did not give any directions as to how they should proceed if “the defendant’s evidence may be true”.  This can be seen from the extracts below:
在本案雖然李法官在陪審團指引的前端已經清楚說明舉證責任，但他沒有對陪審團作出「被告人證供可能是真實的」的法律指引，這可從以下節錄的片段可見：

“ …… The prosecution has the burden of proving each and every element of the offence by making you sure that the defendant did commit the rape specified in the indictment.  If you are sure of that, you should return a verdict of ‘guilty’.  If you are not sure, your verdict should be ‘not guilty’.
「……控方就有舉證嘅責任去證實構成控罪嘅每個要素，令到你哋肯定被告人係犯咗公訴書上面嘅強姦罪。如果你哋肯定，就應該裁定被告人有罪喇，如果你哋唔肯定呢，就應該判被告人冇罪喇。

You may have heard the phrase ‘beyond reasonable doubt’ used by the lawyers.  Actually, it has the same meaning as ‘sure’.  I must emphasis this: the defendant does not have to prove his innocence and does not have to call any witness.  The defendant in this case has chosen to give evidence.  He is not different from any other witnesses; that is to say, you should examine his evidence by using the same standard.  However, even if you completely reject the defendant’s evidence, it does not follow that the defendant is guilty, because you must still consider the prosecution evidence to see whether it is sufficient to make you sure that the defendant is guilty.  To put it simply, you are not to choose who you would believe.  You must consider whether the prosecution evidence is sufficient……
你哋可能聽過律師用「毫無合理疑點」呢一個詞彙嘅，其實個意思同「肯定」係一樣嘅啫，本席一定要強調呢，就係被告人係冇責任證明自己冇罪，亦都冇責任去傳召證人。本案嘅被告人就選擇作供，佢同其他證人係冇分別嘅，即係話你哋應該用同一個準則去判斷佢嘅證供，不過就算你哋完全唔接受被告人嘅證供，亦都唔等於被告人有罪，因為你哋必須考慮控方嘅證據係唔係足夠令到你哋肯定被告人有罪。簡單講呢，你哋唔係揀信邊個，你哋一定要考慮控方嘅證據是否足夠…..

All right, let me summarize it as follows: If you have any doubt about whether X did not consent to the sexual intercourse, that means there is a doubt and the rape is surely not established.  Then you can move on to consider the molesting charge, that is, the charge of indecent assault.”
好喇，我而家總結一下，如果你哋對X是否不同意性交有懷疑，即係有疑點呢，強姦罪就當然唔成立喇，咁你哋就可以進一步考慮非禮罪，即係猥褻侵犯罪。」

Having said that, as stated above, this omission will not necessarily render the jury’s verdict unsafe or unsatisfactory.  The entire set of directions has to be looked at before a decision can be made.  First of all, having examined the entire set of directions, we are of the view that in relation to some important and heavily disputed issues the Deputy Judge did not give the jury clear directions which could make them realize how the principle of “beyond reasonable doubt” operated in practice.  He only pointed out to the jury the differences between the prosecution case and the defence case, and enjoined them to evaluate which side was more reasonable.  However, he did not go a step further to remind the jury to consider whether they, notwithstanding these issues, could be sure of the defendant’s guilt. This can be illustrated by the following directions about X’s evidence:
雖然如此，正如上文所說這個遺漏並不會必然令陪審團的裁決變為不穩妥或不安全，法庭仍需考慮整份指引才可作出判決。首先本庭認為綜觀本案的整份指引，李法官並沒有在一些重要及被受爭議的議題上向陪審團作出清晰的指引，讓他們掌握「毫無合理疑點」原則的實質運作，他只是向陪審團分別指出控辯的分歧或者要他們考慮誰的說法是比較合理，但他卻沒有進一步提醒陪審團這些爭議是否令他們肯定申請人的罪責。這可從以下涉及X的證供指引可見：

“ …… You must look carefully at the whole conversation.  If X had agreed to go to bed to sleep with him, [but] no indication whatever can be found in any part of the conversation.  I ask you to look at it carefully when you retire to deliberate.  Well, in the telephone conversation did X agree to go to bed to sleep with him?  The defendant has his version and X hers.  Earlier on, I asked you to go over X’s records of interview and I have told you what the defendant said under caution when he was interviewed.  You have seen how the two of them gave evidence in court.  You should consider where the truth lies.  What was actually in X’s mind when she went to meet him on 21 July? ......
「……整段對話大家要小心睇下，X如果係應承咗上床陪瞓，整段對話完全睇唔到有呢一啲端倪呀，我想大家入去考慮嘅時候睇清楚。嗱，究竟喺個電話裡面X係咪應承咗上床陪瞓呢，被告人一個版本，X一個版本，我頭先叫你哋睇咗X嗰啲會面紀錄，亦都話過畀大家聽，被告人喺佢嘅警誡會面嗰度講嘅嘢。你哋睇過佢哋兩個喺法庭嗰度作供嘅，你哋應該考慮就係究竟個事實喺邊度，究竟7月21號X赴約嘅時候佢究竟係諗緊乜嘢嘅呢？……

…… You must pay attention to this: X’s evidence about what she did at the time in fact tallies with the defendant’s evidence about what X did, and that is, X was just lying there, without resistance.  If you believe that was how X behaved at the time, then this is evidence which you should consider whether it is useful for deciding whether X at the time consented or not. ……
……你哋要留意，就係X所講當時佢嘅行為同被告人講X嘅行為其實係都吻合個喎，就係話X淨係瞓喺度睹，冇反抗，如果你接受X當時嘅表現係咁樣樣，咁呢一個證據係你應該考慮睇下有冇用喇，對於你諗X當時究竟係同意抑或不同意。…….

…… Members of the jury, is it reasonable to put up resistance in such an unclear way?  Was X telling the truth when she said she was scared because of the effect of her traumatic experience?  These are issues about which you must make a decision after you have gone over the evidence.  Of course, the fact that at the time X did not do anything, just stiffly lying there, does not necessarily mean that she did not consent.  It is possible that at the time she was shy or felt embarrassed.  In this connection, you have watched the video tapes and have seen X’s demeanour when she was giving evidence.  You should make your judgment by common sense.  You should consider for what purpose the meeting was originally arranged.  If you think that the purpose was indeed to go to bed with the defendant, then why X did not have any reaction?  If the original purpose of the meeting was actually about making up and photo-taking, but suddenly it changed to a matter of going to bed, then is it reasonable for X to be afraid and didn’t know what to do?”
……各位陪審員，呢啲咁唔明顯嘅反抗行為係咪合理呢?X話佢驚嗰個陰影又係咪屬實呢，呢啲係你哋要睇過證供之後去決定嘅嘢。當然，X當時佢冇動作，好僵更咁瞓喺度呢，唔係一定表示佢唔同意個喎，有可能佢當時係怕醜或者難為情呀。呢方面，大家睇過錄影帶同埋睇過X作供嘅表現，大家應該用常識去判斷一下。你哋要考慮呢個約會原本嘅目的係咩嘢，如果你哋認為呢個目的其實就係陪被告人上床呢，點解X會完全冇反應嘅呢?如果呢個約會原本嘅目的其實係化妝、影相，但係突然間變咗上床喎，咁X驚，不知所措，係咪合理呢?」

Besides, it can be seen from the above extracts that the direction given by the Deputy Judge to the jury regarding X’s absence of reaction during the intercourse was an invitation to them to consider whether X behaved in this way was because she was shy, felt embarrassed, was afraid and did not know what to do.  When the Deputy Judge dealt with the applicant’s evidence, he also reminded the jury that the applicant had said that during the intercourse X was “expressionless”, and asked them to consider whether the applicant’s evidence that it did not occur to him that X did not consent to intercourse was reasonable.  We do not think that the directions given by the Deputy Judge were comprehensive.  He should have asked the jury to consider whether X behaved in the way she did because she thought that to have sexual intercourse with the applicant was the price she had to pay for gaining access to the show business, and therefore she had no reaction during the intercourse with the applicant.  This view of the events is not inconsistent with the allegation that she consented to the intercourse.  The intercourse in question did not involve any love or affection between a man and a woman but was only a sexual transaction for achieving the purpose of enlisting the applicant’s assistance for her gaining access to the show business.
另外，從上述節錄中可見李法官對陪審團作出X在性交時沒有反應的指引是要求陪審團考慮X這樣的表現是否因為她感到害羞、難為情、驚怕及不知所措。李法官處理申請人的証供時亦提醒陪審團申請人曾提及X在性交時是「面無表情」及要求他們考慮申請人聲稱他意會不到X不同意性交的說法是否合理。本庭不認為李法官所作出的有關指引是全面的，他應要求陪審團考慮X的表現是否因為她以為與申請人性交是她進入娛樂圈所要付出的代價，因而在與申請人性交時沒有反應，這事與她同意該次性交的說法並沒有自相矛盾，這次性行為並不涉及任何男歡女愛的因素，這只是一項肉體交易以達成申請人協助她進入娛樂圈的目的而已。

We agree that the Deputy Judge was entitled to point out to the jury areas in the applicant’s evidence where there were contradictions or where the truthfulness was questionable.  However, since the law requires that evidence given by the defense should be approached according to a different principle, after the Deputy Judge expressed certain opinions which might be detrimental to the applicant’s case, it was necessary to remind the jury that even if they rejected the evidence given by the applicant, they still had to be sure that the prosecution had proved beyond reasonable doubt that the applicant did commit the offence.
本庭認同李法官是有權向陪審團指出申請人證供犯駁之處或者其真實性存疑之處，但既然法律的規定是需要以不同的原則去處理辯方的證供，李法官在向陪審團提出一些對申請人的證供可能存有不利的見解後是有必要重申就算他們不接受申請人的證供，他們仍須肯定控方是在毫無合理疑點之下證明申請人干犯控罪的。

In this case, before the Deputy Judge finished his summing up of the facts about the rape, he made a number of rather sharp comments to the jury in the form of questions about the applicant’s evidence:
在本案，李法官在結束涉及「強姦」罪的案情指引之前就申請人的證供向陪審團作出一些比較尖銳的提問：

好，被告人承認喺麥當勞嗰度問X得唔得，呢個時候佢仍然未肯定X係咪同意做愛喎，佢話，呢個係佢喺法庭嗰度講嘅，係控方馬大律師問嘅，但係佢仍然帶X就去翠園小築，佢話因為X冇問，冇發問，佢以為X知道去嗰度就係做愛，上床喇咁。點解個責任會喺X嗰度呢？點解被告人唔同X講清楚呢，講清楚又有啲咩嘢困難呢，大家可以諗下喇。…….」	“	Well, the defendant admitted that in the McDonald’s restaurant when he asked X “Can you do that?”, at that moment he was still not sure whether X agreed to make love or not.  He said that. That’s what he said in court in response to a question asked by Mr. Ma, the prosecuting counsel. But he still took X to Chui Yuen [transliteration] Villa（翠園小築）.  He said because X did not ask, did not ask him about that, he thought X knew that they were going there to make love, to go to bed.  Why should X have this responsibility?  Why didn’t the defendant tell X clearly?  What difficulty there was in telling her clearly?  You can think about that. ……”
「

好喇，被告人仲講，佢話「上床陪瞓」呢個字太淫賤，唔知大家有冇記得，佢所以就同X講「可唔可以服待佢」咁，佢話「服待」呢個字比較文雅一啲，好喇，當指出畀佢睇，「上床陪瞓」呢個詞係佢同X初次談及呢個問題嘅時候佢自己用個喎，咁佢又話，其實佢就話喺係法庭上面用呢個字就唔係幾好，所以佢喺法庭嗰度用「服待」呢個字。佢仲話喎，同X講呢，佢驚X唔明「服待」嘅意思，所以佢就話上床陪瞓，咁但係佢又更加再進一步講，佢話其實佢講嘅就係「陪我上床」，佢講得好清楚嘅，佢話。呢個咁簡單嘅問題，被告人點解會回答咁多個版本呢，佢係迴避緊抑或佢真係畀人問到頭昏腦脹亂咗佢嘅思路呢?嗱，大家睇到佢坐喺呢度作供嘅情況，你哋自己判斷喇。」	“…… Look, the defendant also said this: he said that the phrase ‘go to bed to sleep with someone’ was too obscene —— I don’t know whether you remember that —— so he said to X, ‘Can you provide any service to him’.  He said that the phrase ‘provide service’ sounded more decent.  Well, when it was put to him that he himself used the phrase ‘go to bed to sleep with someone’ when he and X talked about this matter for the first time.  Then he said what he really meant was that it was not very good to use this phrase in court, so he used the phrase ‘provide service’ in court.  He further said he was afraid that if he told X about that, she might not understand what ‘provide service’ meant, so he said ‘go to bed to sleep with someone’.  Then he even went further and said, he said that what he actually said was ‘go to bed with me’.  He said that very clearly; he said that.  Why are there so many versions of the defendant’s reply to such a simple question?  Was he trying to evade the question or was he really confused by the questioning and became muddle-headed?  Well, you have seen his demeanour when he was sitting here giving evidence.  Make your own judgment.”
「……

好喇，大家睇到被告人喺法庭作供，佢嘅證供同佢嘅會面紀錄其實有幾處係明顯嘅出入口嘅，我頭先講咗部分喇，佢解釋就係話佢好驚，一片空白，事後諗番起。各位陪審員，你哋用常識去判斷，究竟佢真係唔記得抑或佢係自圓其說呢？被告人口喺錄影以帶其他嘢，包括被告人嘅錄影會面謄本。」	“	Alright, you have seen how the defendant gave evidence in court.  In fact there are a number of glaring discrepancies between his evidence and what he said in his records of interview.  Earlier on, I have mentioned some of them.  His explanation was that he was very afraid, his mind blanked out and that he remembered it later.  Members of the jury, please judge it by your common sense.  Did he really forget that or was he making up excuses?  You can also examine the video tapes about the defendant, including the transcripts of the defendant’s video-recorded interviews.”
「

The intention of the Deputy Judge’s making these sharp comments about the applicant’s evidence was obviously to motivate the jury to examine and doubt the veracity of the applicant’s evidence.  As stated above, the Deputy Judge was entitled to do this; but at the same time, according to the legal principle, even if the jury did not accept the applicant’s evidence, they still had to be sure that the applicant had really committed the offence.  We consider that at this particular stage when the Deputy Judge was about to finish his summing up about the rape and when he gave these directions which were intended for attacking the veracity of the applicant’s evidence, it was imperative for him to remind the jury again of this cardinal principle.  In view of the absence of guidance in this respect, we believe that it became even more necessary that the Deputy Judge should have given directions about what should be done “if the account given by the applicant may be true”.
李法官作出這些針對申請人證供的尖銳評論明顯是讓陪審團思考及質疑申請人證供的真實性。正如上文所說，李法官是有權這樣做，但同時基於法律原則，就算陪審團不接納申請人的證供，他們仍需要肯定申請人真的干犯了控罪。本庭認為特別是當李法官在即將結束他就有關「強姦」罪提出的一些質疑申請人證供真實性的指引時，他是有必要再提醒陪審團這項重要的原則。本庭認為在欠缺這項指引的情況下，李法官更需要給予「申請人所說可能是真實的」的指引。

Although Mr. Yuen, counsel for the applicant, did not rely on the argument that “the defendant’s evidence may be true”, we are of the view that the gist of the applicant’s grounds of appeal was that the Deputy Judge failed to give comprehensive directions to the jury, so that it was not brought home to them how to apply the principle of no conviction unless it is “beyond reasonable doubt”; and it was beyond dispute that the aforementioned guidance was indeed absent.
雖然代表申請人的袁國華大律師沒有依賴「被告人的證供可能是真實的」論點，但本庭認為申請人上訴理由的實質論點都是關於李法官未能給予陪審團一個全面的指引，令他們未能掌握定罪基於「毫無合理疑點」的運作，而上述指引的欠缺亦是不能被爭議的事。

Reactions of Y and W
Y及W的反應

In addition, we find that there were errors in the Deputy Judge’s way of dealing with the evidence of Y and W.  The Deputy Judge said:
另外本庭認為李法官對於Y及W證供處理是有錯誤。李法官說：

“Please pay attention to this: when X complained to Y and W, she did not use the word ‘rape’.  This is a fact and is part of the evidence.  However, after these two witnesses heard what X said, both of them suggested to X that she should report to the police.  Was this reaction consistent with X consenting to or not consenting to the sexual intercourse?  That is to say, was it consistent or not consistent with the giving of consent, or was it consistent with not giving consent?  Please think about it carefully.  I emphasize this: X had never said that she had been raped.”
「大家要留意呢，就係X同Y同埋W投訴都冇用過『強姦』呢個字嘅，呢個係事實嚟嘅，呢個亦都係證據嚟嘅，不過呢兩位證人聽完X講之後，佢哋都建議X去報警喎，咁呢個反應同X同意或者唔同意性交係咪吻合呢？即係話係吻合同意抑或唔吻合，抑或吻合唔同意呢，大家要小心考慮喇。我強調，就係X從來冇話過自己畀人強姦嘅。」

Evidence of the recent complaints which X made to Y and W could not be used for negativing X’s consent to the sexual intercourse.  Its purpose was merely to show consistency in X’s evidence which would include her evidence as to lack of consent: see Leung Chi Keung v. HKSAR (2004) 7 HKCFAR 526.  However, the Deputy Judge directed the jury that they could consider whether the reactions of X and Y were consistent with whether X consented or did not consent to the sexual intercourse.  We believe that such direction exceeded the limits of the legitimate use of evidence concerning recent complaints and would confuse the jury, because the reactions of Y and W not only could not prove that X did not consent to the sexual intercourse, they could not even be used to support the consistency of X’s evidence.
X對Y及W的「新近投訴」證據是不可用來否定X同意性交，它唯一用途是證明X的證供是一致的，而這些一致的證供包括X不同意申請人行為的證供：見Leung Chi Keung v. HKSAR (2004) 7 HKCFAR 526。但李法官卻指引陪審團可以考慮Y及W的反應是否與X不同意或同意性交之說吻合。本庭認為這指引超越「新近投訴」證據的作用。它是會使陪審團困擾的，因為Y及W的反應不單只不可以證明X不同意性交，它更不可以支持X說法一致。

Conversation between Y and W
Y及W的談話

The Deputy Judge summed up W’s evidence and gave directions as follows:
李法官引述W的證供及作出指引如下：

“Another witness was W. …… In the evening of 21 July, W received a MSN message from X.  What did X ask him/her at that time?  Please pay attention to this: She asked him/her whether the website of the defendant’s company was reliable.  In the course of the conversation, X told W on the phone that somebody did it to her.  W’s response was that he/she understood X to mean that she had been raped.  W also said that at that time X’s words came out from her mouth brokenly and she spoke in a way different from that in normal times.  W suggested to X that she should report to the police.  X’s answer was that —— she has said that in court —— she worried very much that the matter would be exacerbated and feared that her parents would give her a good dressing down.  Later, when W was being cross-examined, he/she said that actually X did not mention the word ‘rape’.  You may notice that after lengthy questioning by the defence counsel Mr. Wong, at last W remembered that X at that time told him/her that she had a friend who was under 16 and who had sexual intercourse with someone; and X asked W whether that friend, i.e. her friend under 16, had broken the law.  W explained that he/she simply forgot that, that is, forgot this conversation; and that he/she was not trying to help X.  Please think about this yourselves.”
「另一個證人係W，……就喺7月21號晚W就收到X嘅MSN喎，咁X其實當時係問咩嘢呢？大家留意，佢係問緊被告人公司嗰個網址係咪可靠，X講講下就喺電話度就同W話佢畀人咩嘢咗，咁W個反應就係佢意會係強姦嘅意思，咁W更加話當時係斷斷續續嘅X講嘢，同平時係唔同嘅。咁W就提議X報警，X表示，呢個喺庭上面講過嘅，佢話好怕件事搞大，驚住佢屋企父母責備佢。W後來被盤問嘅時候，就話其實X冇講強姦呢樣嘢嘅，大家或者會留意呢，就係辯方王大律師問咗好耐喇，咁W最終就記得囉喎，就係話X當時問佢，佢有個朋友16歲以下嘅，同人發生咗性行為，咁嗰個朋友，即係嗰個16歲以下嘅朋友有冇犯法呢咁？咁W就話佢其實唔記得啫，即係唔記得呢段對話，佢唔係想幫X咩嘢嘅，咁呢個你自己考慮喇。」

Our concern is what X told W about a friend of hers who was under 16 and who had sexual intercourse with someone.  Who was this friend?  If X used this friend to stand for herself and the applicant had sexual intercourse with her without her consent, then why did she ask whether she had broken the law?  If this friend was not X, why did X mention him/her at all?  Did this friend have sexual intercourse with X and was it related to X’s fear that the matter would be exacerbated?  We think that the Deputy Judge should have had these doubtful areas clarified before letting the jury consider W’s evidence.
本庭關注的是X對W說她有一個小於16歲的朋友與人發生性行為的事。這位朋友是誰呢？如果X是以是這位朋友比喻自己，而申請人是在她不同意的情況下與她性交，為何她會問她是否觸犯法律？如果這位朋友不是X本人，為甚麼X會提起他？這位朋友是否曾與X有性行為，這是否與X說恐怕把事情弄大有關？本庭認為李法官有需要澄清這些疑點，才可以讓陪審團考慮W的證供。

Conclusion on rape
強姦罪的總結

Judging from the entire set of directions, we find that the Deputy Judge failed to give appropriate directions to the jury to assist them to consider whether they could resolve the heavily disputed issues in this case on the basis that any benefit of the doubt should be given to the applicant.  We hold that the verdict of the jury is unsafe and unsatisfactory.
本庭認為綜觀整份指引，李法官是沒有給予合適的指引來協助陪審團去思考他們可否解決案中極受爭議性的疑點而最終將疑點的利益歸予申請人，本庭認為陪審團的裁決是不穩妥及不安全的。

Our order
本庭的命令

Section 83A of the Criminal Procedure Ordinance, Cap. 221 of the Laws of Hong Kong, provides that when dealing with an appeal against conviction, the Court of Appeal may, instead of allowing or dismissing the appeal, substitute for the verdict of guilty of the offence originally charged a verdict of guilty of another offence.  The Deputy Judge had informed the jury that they could find the applicant guilty of an alternative offence, namely Indecent Assault.  Before we make our final decision about this appeal, we need to hear submissions from the parties on the following matters:
根據 《刑事訴訟程序條例》 (香港法例第221章)第83A條，上訴法庭在處理定罪上訴時並不一定需要判決上訴得直或駁回上訴，而是可以將原本控罪的定罪以另一項罪行的定罪取代。李法官曾經告訴陪審團，他們是可以裁定申請人干犯一項交替性罪行，即「猥褻侵犯」罪。本庭在作出針對上訴的最終判決前，需要聆聽雙方就下列議題的陳詞：

本庭應否以「猥褻侵犯」罪或其他交替控罪來取代原本的定罪。	(1)	Whether this court should substitute a conviction for Indecent Assault or another alternative offence for the original conviction;
(1)

如果本庭決定在不以交替控罪來取代原本定罪的情況下撤銷原本定罪，答辯人會否要求重審。	(2)	Whether the respondent will seek a retrial if this court decides to set aside the original conviction without substituting a conviction for an alternative offence for the original conviction.
(2)

We will fix another hearing date for hearing submissions from both parties.  The applicant shall be remanded in jail pending the hearing.
本庭會另訂審訊日期聆聽雙方陳詞，申請人在候審期間還押監房。

Ms. Memi Ng, Senior Public Prosecutor of the Department of Justice, for the Respondent.
答辯人：由律政司高級檢控官吳美華代表。

Mr. Bernard Yuen, instructed by Anthony So & Co., for the Applicant (conviction).
申請人(定罪)：由蘇震共律師行轉聘袁國華大律師代表。

Applicant, acting in person, present (sentence).
申請人(刑期)：無律師代表，親自出席。