Hon Cheung JA (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：

In our judgment dated 19 January 2011, we decided that the applicant’s conviction for the offence of rape was unsafe and unsatisfactory.
本庭在 2011 年 1 月 19 日的判案書裁定申請人被控

Since we had to deal with matters concerning substituting an alternative verdict and re-trial, the hearing was adjourned to 22 June 2011.  On that day, in deciding the applicant’s application for leave to appeal against conviction, we allowed the application and, treating it as the appeal proper, quashed the original conviction and, pursuant to section 83A of the Criminal Procedures Ordinance, Cap. 221, substituted it with a conviction of indecent assault and passed a sentence of three years’ imprisonment.
「強姦」罪的定罪裁決不穩妥及不安全，但由於需要處理取代罪行裁決及重審的議題，故此將聆訊押後至2011 年 6 月 22 日。在當日，本庭就申請人針對定罪的上訴許可申請作出裁決，本庭批准該上訴許可申請及視該申請為正式上訴及根據《刑事訴訟程序條例》(香港法例第221章)第83A條撤銷原本的定罪，並以「猥褻侵犯」罪作為取代罪行及判處申請人入獄三年。

Conditions for substituting a conviction
取代罪行的條件

In Hau Tung Ying and Li Bin v. HKSAR [2011] 2 HKLRD 782, the Court of Final Appeal held that in order to invoke section 83A of the Criminal Procedures Ordinance, the following two conditions must be satisfied:
在Hau Tung Ying (候東迎) and Li Bin (李斌) v. HKSAR [2011] 2 HKLRD 782一案，終審庭裁定法庭若要援引《刑事訴訟程序條例》第83A條的行使權就必須符合以下的兩項條件：

“63.First, the substituted verdict must be one for an offence of which “the jury could on the indictment have found him (the accused) guilty”; that is to say, it must be for an offence which is open on the indictment.  This is often the case where the substituted offence is laid as an alternative charge in the indictment or where there are alternatives available under the law to the convicted offence.  Normally, these would be lesser offences, such as manslaughter in a case of murder or theft in a case of robbery, but that is not necessarily the case and would require consideration of the nature of both the convicted and substituted charges in question and the alleged facts sought to be proved in support of either charge.
「63．首先，取代裁決的罪行必定是“陪審團本可就有關公訴書裁斷他(被告)有罪”的罪行；即是說，取代裁決的罪行必定是有關公訴書內容許的罪行。在公訴書內，取代罪行經常作為交替控罪提出，或被定罪的罪行根據法律容許有其他交替定罪。這些罪行通常會是一些較輕微的罪行，例如在謀殺案中的誤殺罪或在搶劫案中的盜竊罪。話雖如此，但情況並非必然，我們還須考慮有關定罪和取代控罪兩者的性質，以及考慮為尋求證明支持其中任何一項控罪而提出的指稱事實。

64.The second condition is that it must be clear to the appellate court that “the jury must have been satisfied of facts which proved him (the accused) guilty of the other offence”.  The court must be satisfied that the jury must have made a finding of the relevant facts.  It is not sufficient that the court considers that the jury would have or might have been satisfied of the relevant facts.  The court must also be satisfied that the facts found by the jury are facts which must be proved to support a conviction on the other charge.  As Widgery CJ in R v Deacon [1973] 1 WLR 696, 699 said in relation to a similar English provision:
64．第二項條件是審理上訴的法院必須清楚“陪審團定已信納證明他(被告)就該另一罪行有罪的事實”。法庭必須信納陪審團定已就相關事實作出裁斷。如法庭認為陪審團本會或可能會信納相關事實是不足夠的。法庭亦必須信納陪審團所裁斷的事實，亦是支持另一控罪的定罪所須證明的事實。正如首席法官Widgery在R v Deacon [1973] 1 WLR 696, 699一案中就一條相若的英國條文所說：

“The basis of the power to substitute a verdict for a different offence must … be based on the finding of the jury.  It is only when it appears to the court from the finding of the jury that the facts essential to establish the alternative offences were proved, that the court may substitute the alternative verdict.  Unlike section 2 [the proviso], the Act does not authorize the court to act on the footing that the court is satisfied that the jury would have brought in the alternative verdict if properly instructed.  What is necessary is that the findings of the jury themselves must establish the appropriate facts to support the alternative offence.”
“以另一項不同罪行的裁決作出取代，其權力基礎必須是...基於陪審團的裁斷。只有在法庭覺得根據陪審團的裁斷，確立交替罪行的必要事實獲得證明，方可以交替罪行的裁決作出取代。與第2條[但書]不同，即使法庭信納陪審團如獲適當指示便會作出交替罪行的裁決，此項法令亦無授權法庭據此行事。要點是陪審團本身的裁斷必須確立恰當的事實以證明交替罪行。”」

In our view, the substitution of a conviction of indecent assault for the original conviction of rape satisfied the above two conditions.  First, the elements of the offence of rape with which the applicant was charged included all the elements of the offence of indecent assault, both being offences where the defendant sexually assaulted the victim without her consent.
本庭認為以「猥褻侵犯」罪代替原本的「強姦」罪是符合上述兩項條件的。首先，申請人被控「強姦」罪的罪行元素包括了「猥褻侵犯」罪所包含的所有犯罪元素，兩項控罪都是被告人在未獲受害人同意的情況下對她作出性侵犯的罪行。

Further, in this case, the second condition set out above was also satisfied.  The undisputed facts of the case were:
另外本案亦符合上述的第二項條件，本案沒有爭議的事實是:

The victim, X, was under 16 at the material times;
受害人 X 在事發時未滿 16 歲；

The applicant admitted that he had had sexual intercourse with the victim; and
申請人承認他曾與受害人性交；及

The applicant had known before he had sexual intercourse with the victim that she was only 15.
申請人在與受害人性交前已經知道她只有 15 歲。

The jury, in our view, must have accepted the above undisputed facts.  Further, section 122(2) of the Crimes Ordinance, Cap. 200 stipulates that a person under the age of 16 cannot in law give any consent which would prevent an act being an assault for the purposes of section 122(1).  Accordingly, the applicant could not rely on the consent given by the victim as his defence.  We therefore considered that the facts that must have been accepted by the jury were those that would support the applicant’s conviction of indecent assault.
本庭認為陪審團會必然接納上述沒有爭議的事實。另外，由於《刑事罪行條例》(香港法例第 200 章)第 122(2) 條說明年齡在 16 歲以下的人士在法例上不能給予同意令某項行為不構成第 122(1) 條所指的「侵犯」，因此，申請人不可以未滿 16 歲的受害人所給予的同意作為其抗辯理由。本庭因此認為本案陪審團必然接納的事實是支持申請人被判「猥褻侵犯」罪罪名成立的事實。

Re-trial
重審

The Department of Justice indicated that they would not ask for a re-trial.
律政司表示不會要求案件重審。

Sentence
刑期

The victim in the present case was aged only 15 at the material times.  This was not a case where two teenagers of similar age engaged in sexual activities out of curiosity or love as they went through puberty.  The assailant was a 31-year-old adult man, who induced the victim to have sex with him on the pretext of arranging for her to enter the show business or to become a model.  In our judgment, the appropriate starting point would have been four and a half years’ imprisonment.  However, since the applicant admitted the material facts in the case, namely, that he had had sexual intercourse with the victim and that he had known she was under 16 at the material times, we gave him a one-third discount and sentenced him to three years’ imprisonment.
本案的受害人在事發時只有 15 歲。本案並不是兩名年紀相若的少年人，在青春期因好奇或兩情相悅而發生的性行為。本案的侵犯者是一名 31 歲的成年男子，他以可安排受害人進入娛樂圈或模特兒行業的藉口來誘使受害人與他發生性關係。本庭認為適當的量刑起點應為四年半監禁，但由於申請人承認案情中的重要事實，即他曾與受害人發生性關係及承認在事發時是知道她未滿 16 歲，故此本庭在刑期上給予三分一的扣減，將刑期定為三年監禁。

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。

Bernard Yuen, instructed by Anthony So & Co., for the applicant (Conviction)
申請人(定罪)：由法律援助署委派蘇震共律師行轉聘袁國華大律師代表。

The Applicant, acting in person, present (Sentence)
申請人(刑罰)：無律師代表，親自出席。