Hon Yeung J (giving the reasons for judgment of the Court):
上訴法庭法官楊振權頒發上訴法庭判案理由書：

Background
背景

The Applicant (Yu Kwok On) was arraigned on five counts of indecent assault (Counts 1 to 5), one count of indecent conduct towards a child (Count 6), and one count of rape (Count 7).  He pleaded not guilty to all the charges and was tried before Deputy High Court Judge Derek Pang (as he then was) sitting with a jury.
申請人（余國安）被控五項“非禮罪”（第1至第5項），一項“向兒童作出猥褻行為罪”（第6項），及一項“強姦”罪（第7項）。申請人否認全部控罪 ，並在高等法院原訟法庭暫委法官彭偉昌（當時官階）會同陪審團席前接受審訊。

On 16 September 2009, the jury convicted the Applicant of indecent assault in Count 5 and indecent conduct towards a child in Count 6 but acquitted him on the rest of the charges.
2009年9月16日，陪審團裁定申請人第5項“非禮罪”及第6項“向兒童作出猥褻行為罪”罪名成立，其餘控罪則罪名不成立。

On 9 October 2009, Deputy Judge Pang sentenced the Applicant to 4 years’ imprisonment on each of the charges, 2 years of which were to be served consecutively, thus making a total of 6 years’ imprisonment.
2009年10月9日，彭法官判申請人每項控罪入獄4年，其中兩年分期執行。申請人要服刑共6年。

The Applicant was aggrieved by his conviction and sentence.  Through his counsel, Mr David Ma, he applied for leave to appeal against both his conviction and sentence.  At the hearing, Mr Ma informed the court that the Applicant abandoned his application against sentence, which was accordingly dismissed.  His application against conviction was also dismissed after the hearing.  We now give the reasons for our decision.
申請人不服定罪及判刑。由馬維騉大律師代表，提出申請，要求獲准就定罪及判刑上訴。聆訊時，馬大律師知會法庭申請人放棄就判刑之申請，該申請被撤銷。聆訊後，本庭亦駁回申請人就定罪之申請，以下是本庭的判決理由。

Prosecution case and evidence
控方案情及證據

The case concerned two girls, X and Y.  X, the elder sister, was born on 18 December 1987, while Y, the younger sister, was born on 28 March 1992.  Between 1993 and 1994, X and Y lived with their family in Lower Ngau Tau Kok Estate.  Since May 2003, they have resided at Wo Che Estate in Shatin.
案件涉及兩名女童X和Y。姊姊X在1987年12月18日出生，而妹妹Y則在1992年3月28日出生。1993年至1994年間，X和Y及家人在牛頭角下邨居住，而自2003年5月起，她們在沙田禾輋邨居住。

The Applicant is X and Y’s eldest uncle.  He lived with his family in Jat Min Chuen, Shatin between 1994 and 2004.
申請人是X和Y的大舅父，在1994年至2004年期間，申請人和家人居住在沙田乙明邨。

From September 2001 to July 2008, Y studied in Primary 4 to Form 4.  Because of her poor academic performance, Y repeated Form 4 between September 2008 and July 2009, during which time she was absent from school for 21 days.  On 23 September 2008, her teacher interviewed her to try to understand her situation.  Y revealed that she had been sexually assaulted, which led to the police investigation and follow-up.
2001年9月至2008年7月，Y就讀小學四年級至中學四年級。由於成績不佳，Y在2008年9月至2009年7月重讀中四，期間她缺課21天。2008年9月23日，老師接見Y以了解她的情況。Y透露曾遭申請人性侵犯，導致警方介入調查及跟進。

The prosecution case was that the Applicant indecently assaulted X three times between 1 September 1994 and 31 December 1997 (indecent assault in Counts 1 to 3,) at X and her family’s home in Lower Ngau Tau Kok Estate and the Applicant’s home in Jat Min Chuen, Shatin.  The prosecution also alleged that the Applicant had sexually assaulted Y three times, namely, indecently assaulting her twice between 1 September 2001 and 30 June 2002 and between 1 September 2003 and 31 July 2005 (Counts 4 and 5); committing an act of gross indecency towards her between 1 September 2004 and 31 July 2007 (Count 6), in addition to raping her between 1 September 2007 and 31 July 2008 (Count 7).  According to the prosecution case, the locations where his sexual assaults on Y took place was Y and her family’s home in Wo Che Estate, Shatin or the Applicant’s home at Jat Min Chuen.
控方指申請人在1994年9月1日至1997年12月31日期間3次非禮X（第一至第三項非禮罪）, 案發地點分別是X和家人在牛頭角下邨的居所和申請人在沙田乙明邨的居所。控方亦指申請人三次性侵犯Y，包括在2001年9月1日至2002年6月30日及在2003年9月1日至2005年7月31日其間兩次非禮她（第四、五項控罪）；在2004年9月1日至2007年7月31日期間向她作出嚴重猥褻行為（第六項控罪）；及在2007年9月1日至2008年7月31日期間強姦她（第七項控罪）。控方指申請人性侵犯Y的地方，是Y和家人在沙田禾輋邨的居所或申請人在乙明邨的居所。

The prosecution evidence against the Applicant mainly came from X and Y.  In her evidence, X gave details about how the Applicant had indecently assaulted her on numerous occasions as alleged in Counts 1 to 3.  However, X also indicated that since the Applicant moved out to live alone in Shamshuipo in January or February of 2008, she still visited him because she had little awareness of the incidents when they happened and did not therefore have any hatred of the Applicant.
控方針對申請人的證據主要源自X和Y。X作供時就第一至第三項控罪，述及申請人多次非禮她的詳情。但X亦表示自2008年1、2月，申請人搬往深水埗獨居後，她仍然有去探望他，原因是事發時，她對事件認識不深，亦沒有因此而憎恨申請人。

It was Y’s evidence that when she was in Primary 4, namely between 1 September 2001 and 30 June 2002, she was taken to the Applicant’s home in Jat Min Chuen on a certain evening.  Meanwhile, when there was no adult present, the Applicant put his hand(s) under her clothing to touch her breasts.  Moreover, on a certain day in 2004 or 2005, while she was taking an afternoon nap at her Wo Che Estate home, the Applicant arrived, lifted her T-shirt, fondled her breasts and reached down to touch her private parts, inserting his finger(s) into her vagina and lightly moving it (them) up and down.  According to Y, in the course of it the Applicant did loosen his own trousers and put his hand inside.  Eventually the Applicant withdrew his hand and re-arranged her clothes for her.  He gave her $10 or $20 to buy snacks before he left.
根據Y的證供，她小學四年級，即2001年9月1日至2002年6月30日的某一晚上，她被帶往申請人乙明邨的居所。其間，在沒有成年人在場時，申請人伸手入她的衣服內摸她的兩邊胸部，而在2004、2005年某天，她在禾輋邨居所午睡時，申請人到來，揭起她的T恤及摸她的胸部及伸手撫摸她的下體，包括用手指輕力抽擦她的陰道。Y更指其間申請人有拉開自己條褲及伸手入內。其後申請人縮手及替她整理衣服。離開前，申請人給了她一、二十元購買零食。

Y also gave evidence that the Applicant assaulted her on another occasion when she was in Form 1 to Form 3, i.e. between September 2004 and July 2007.  She said that on that particular afternoon, only she and her younger brother were home, and she was sleeping in the double bed in her mother’s room.  When the Applicant arrived at her home, he climbed into the bed, kissed her on the lips and neck before putting his hand(s) under her clothes to touch her breasts and private parts.  Meanwhile he even inserted his finger(s) into her vagina.  Later, the Applicant got out of bed to remove his trousers, exposing his erected penis.  He put his penis in Y’s mouth and in the course of doing so, he held Y’s head in place with his hands.  Y indicated her unwillingness, but she did not reject the Applicant’s conduct.  She merely kept the Applicant’s penis in her mouth and let him move himself.  Y indicated that the Applicant’s behaviour was very “dirty” and “disgusting”, and she found it hard to bear since she had something “thrust” down her throat.  Y also testified that the Applicant had said nothing throughout and soon after he stopped his movements, he sat for a while at the sitting room and then he left.
Y亦指申請人另一次侵犯她的日子是她讀中一至中三，即2004年9月至2007年7月期間。Y指當天下午，家中只有她和弟弟，她睡在媽媽房間的雙人床。申請人到她的家中後，爬上床，先錫她的嘴和頸，然後伸手入她的衣服內摸她的胸部和下體，其間更有用手指插入她的陰道。隨後，申請人下床除去褲，露出勃起的陰莖及將陰莖放入Y的口，其間更有用手撳着Y的頭。Y表示不願意，但沒有拒絕申請人的行為，她只是用口啜住申請人的陰莖，由他自己去郁動。Y表示申請人的行為好“污糟”，好“核突”，加上喉嚨遭“頂着”，所以感到很辛苦。Y亦表示全程申請人沒有說話，而停止動作不久，在客廳坐了一會後就離開。

According to Y, the Applicant’s last sexual assault on her took place when she was in Form 4 for the first time, namely between September 2007 and July 2008.  She said the weather was still warm on the day in question and she was wearing a short-sleeved upper garment.  She thought it was a Saturday as she did not need to go to school.  She said the Applicant indecently assaulted her first before inserting his penis into her private parts and moving up and down several times, which caused her great pain.  Later the Applicant withdrew it and said to her, “No condom.  Next time.”
Y指申請人最後一次性侵犯她時是她第一次讀中四，即2007年9月至2008年7月期間。Y表示當天天氣仍和暖，她穿著短袖衣服。Y認為當天是星期六，她不用上課。Y表示申請人先非禮她，後更用陰莖插入她的下體及抽擦了數次，令她感到非常痛楚。其後申請人抽離，並對她說“冇安全套，下次先。”。

Y admitted that she started to skip classes in secondary school as she had too much homework and was under too much pressure.  She was also repeatedly late because she overslept.  She even admitted that she had sexual intercourse with a man surnamed Ho just 10 days after she had met him in mid-August 2007, and that in the following two months she had sex with Ho for a total of five times at places including her mother’s bedroom.  In fact, the police found from Ho’s camera numerous video clips depicting him and Y having sex and also nude images of Y, which gave rise to Ho being charged with five counts of having sexual intercourse with a girl under 16.
Y承認中學開始曠課，因為功課太多，壓力太大，亦因為“睡過龍”，而多次遲到。Y更承認在2007年8月中認識一名何姓男子後，10天便和他有性行為，並在其後兩個月內共五次和該名何姓男子發生性行為，地點包括在母親的睡房。事實上，警員在該名何姓男子的相機內發現多段他和Y的性愛片段及Y的祼體硬照，導致該名何姓男子被控五項和16歲以下女童性交罪。

Y indicated that she had performed oral sex on Ho, and that she knew how to do it because she had heard her classmates describe it and had done it with the Applicant before.
Y表示曾有和該名何姓男子口交，而她識得這樣做是因為聽過同學講過及和申請人做過。

In response to the defence’s suggestion about her claiming that her father could not have taken her to the Applicant’s home so as to give the Applicant the initial chance to indecently assault her, Y said that she might have mixed up her father with her stepfather.  Y indicated that she could not remember the date when the Applicant raped her, nor was she able to tell whether the rape took place before or after she had met Ho.
回應辯方向她指出她聲稱父親不可能帶她前往申請人的居所，令申請人有機會首先非禮她時，Y表示可能弄錯了父親和繼父的身份。Y表示不能記得申請人強姦她的日子，亦不能說出強姦事件究竟是發生在她認識何姓男子之前或後。

The Defence
答辯理由

The Applicant denied all the charges brought against him by the prosecution.  In giving evidence in his own defence, the Applicant described his family background.  He said he had been married for 22 years and had a son aged 21 and a daughter aged 16.  He indicated that his family enjoyed a good relationship with his younger sister’s family and there had been frequent contacts and mutual visits between them.  In 2008, the Applicant and his wife suffered a downturn in their relationship.  As a result, he moved out to live alone in Shamshuipo.  Meanwhile X did go there to visit him.
申請人否認控方對他的全部指控。作供自辯時，申請人列出自己的家庭背景。申請人表示結婚已有22年，育有一名21歲的兒子及一名16歲的女兒。申請人亦表示自己一家和妹妹一家關係良好，亦不時有交往及互訪。申請人在2008年和妻子關係轉淡，故單獨搬到深水埗居住，其間X有去探望他。

The Applicant testified that the relationship between his sister (namely X and Y’s mother) and her husband had also turned sour and after X and Y’s father had moved out from the family home, she met her current husband, Mr Pang, between 1999 and 2000.  According to the Applicant, X turned bad later and became wayward and out of control.  This, he said, caused X and Y’s mother to suffer a mild psychiatric illness.  As a result, the Applicant would lecture X and Y whenever they misbehaved.
申請人指妹妹（即X、Y母親）和丈夫的關係亦變差，而X、Y父親搬離家庭後，她在1999年至2000年間認識了現任丈夫彭先生。申請人表示其後X學壞，變得無王管及失控。申請人更表示事件導致X、Y的母親患上輕微精神病。因此，申請人在X、Y不聽話時，會教訓她們。

The Applicant claimed that after his sister had remarried, the two families had fewer contacts but there were still mutual visits, roughly at bi-monthly intervals.  In fact, during the period between 2004 and 2008, he paid an average of one visit each month to his sister’s home in order to assist her in disciplining X and Y.  The Applicant stressed that he did not stay long at X and Y’s home and every time the domestic helper employed by his sister was present.
申請人表示妹妹再婚後，兩家人減少了往來，但仍有互訪，約每兩個月一次，而他在2004至2008年期間更平均每月一次前往妹妹的家，協助她管教X和Y。申請人強調，逗留在X和Y的家時間不會長，而每次都有其妹妹聘用的傭人在場。

The Applicant indicated that he did not understand why X and Y would make allegations of sexual assaults against him.
申請人表示不明白X、Y為何會對他作出性侵犯的指控。

Ms Choi, the Applicant’s former wife, also gave evidence.  She said that the Applicant was not very good at getting along with his children, but he was a family man.  She stressed that it was only two days before his arrest that she first heard of the allegation of improper conduct against him, namely his alleged sexual assaults on X and Y.  Ms Choi said that before the matter came to light, X and Y never looked as if they wanted to avoid the Applicant, nor did they appear uneasy in front of him.  Ms Choi confirmed that after the relationship between the Applicant’s sister and her husband had turned sour, the Applicant’s sister began to suffer a psychiatric illness.
申請人的前妻蔡女士亦有作供。她表示申請人不大懂和子女相處，但是一名顧家男子。蔡女士強調是在申請人被捕前兩天，才首先聽到有人指控申請人性侵犯X、Y的不當行為。蔡女士表示事發前X、Y從沒有表現要迴避申請人，亦沒有在他面前時表現不安。蔡女士確認申請人妹妹和丈夫關係變差後，便有患上精神病。

Ms Choi also indicated that she did not understand why X and Y would make allegations of sexual assaults against the Applicant.
蔡女士亦表示不明白X、Y為何會對申請人作出性侵犯的指控。

Trial judge’s directions to the jury
原審法官對陪審員的指引

The issue involved in the case was simple.  What the jury had to resolve was simply whether they were sure that all or part of X and Y’s evidence against the Applicant was true.
案件涉及的爭議簡單。陪審團要解決的議題只是他們能否確信X和Y指控申請人的證供全 部或部份屬實。

Apart from explaining to the jury the burden and the standard of proof, the trial judge made it clear to the jury that they were entitled to accept all or part of a witness’ evidence.  If they rejected part of a witness’ evidence, they must carefully consider whether the rest of that witness’ evidence was credible.  The trial judge also impressed on the jury that if they found doubts in the overall evidence, if they were not sure that the Applicant had committed the crime in question, they must acquit him on the relevant charges.  The trial judge pointed out to the jury that if they found that the Applicant’s version given in his defence was true or might be true, they must acquit him.
除了就案情舉證責任及標準向陪審團解釋外，原審法官向陪審團表明，他們可以接納某一證人的全部或部份證供，如他們拒絕接納某一證人的部份證供，他們必需小心考慮該名證人的其他證供是否可信。原審法官亦向陪審團強調如他們認為整體證據有疑點，他們不能肯定申請人有干犯有關控罪時，他們必需裁定申請人有關控罪不成立。原審法官向陪審團指出，假若他們認為申請人自辯的說法，是真的或可能是真的，他們就必須判申請人無罪。

After the trial judge had summed up the case and given directions to the jury, the jury raised this question: “If there is doubt about one or more pieces of evidence in respect of a certain charge, is it the case that the jury must acquit the defendant even though we are sure of the rest of the evidence?  Are we permitted to evaluate the importance or significance of the doubtful evidence in relation to the case?”
當原審法官向陪審團作出案情總結及引導後，陪審團作出以下提問：“假若在某一項控罪當中有一項或以上證供有疑問，是否即使其他證供陪審團肯定，都必須要判被告無罪?是否可以衡量有疑點的證供對案情的重要性或關鍵性?”。

Having discussed with counsel on both sides, the trial judge gave further directions to the jury as follows:
原審法官和控辯雙方大律師商討後再向陪審團作出以下指引：

“In fact it has all been mentioned in my earlier directions, I suppose.  First, I would like to repeat one point, which is that in respect of a witness’ evidence, you don’t have to either totally believe him or totally disbelieve him.  Experience tells us that people don’t necessarily talk that way, right?  Some parts are true, some are not; some parts are accurate, some are not.  It is a matter for you to decide which parts you accept and which parts you reject.  It is all right to accept part of a witness’ evidence but reject the rest of his evidence.  But do bear in mind that if you reject part of a witness’ evidence, you have to take extra care in deciding whether the rest of his evidence is credible or not.”
“其實喺我個剛才嗰個指引面都講過晒架喇，應該。首先我想重複嘅一點係，一個證人嘅證供，你唔係話一係就完全信晒佢，一係就完全唔信佢嘅。經驗話畀我哋聽呢，人講嘢未必係咁架嘛，係咪呀？有部分真、部分假、部分準確、部分唔準確。接納邊一部分、不接納邊一部分呢，你哋自己係可以決定嘅。對某個證人嘅證供有所取、有所捨呢，係可以嘅。要注意番嘅係，如果你哋拒絕接納某個證人嘅部分證供，咁嚟自呢個證人嘅其他證供就要特別小心喇，睇下信唔信得過喇。”

In respect of the indecent assault in Count 5, the trial judge gave the following directions to the jury:
就第五項非禮罪，原審法官向陪審團作出以下指引：

“For the latter, the sequence is lifting the upper garment, putting a hand inside to touch her breasts, then putting a hand under the panties to touch her private parts and inserting a finger or fingers into her vagina.  With so many acts, how are you to go about them?  The answer is, in respect of each count, if you are sure that any of the acts did happen and that it meets the definition of indecent assault, you will convict him on that count.  I needn’t say more if that is the case with two or more acts.  However, if your opinion differs in respect of a certain count, say, some of you are only sure that the defendant did one thing, such as touching her breasts, while the others are only sure that he did another thing, such as touching her private parts.  Then what should you do?  The answer is, it will be sufficient if at least five of you are sure that the defendant did any one of the things.”
“後者,則依次為揭上衣,伸手入內摸胸, 再伸手入內褲入面摸下體，同用手指插陰道。咁多種行為，咁點辦呢咁？答案係，就每一項控罪而言，是但有一個行為係你哋肯定發生過嘅，而又肯定佢符合猥褻侵犯嘅定義，咁嗰項控罪就罪成。如果有兩個或者更多嘅行為係咁，就更加唔使講喇。但係如果喺某一項控罪面，你哋出現分歧，有人只肯定被告做咗一樣嘢，例如摸胸。又有人只肯定佢做過另一樣嘢，例如摸下體，咁又點呢？答案係，只要你哋夾埋有最少五個人肯定被告有做過其中一樣，咁就夠喇。”

Grounds of appeal
上訴理由

Mr Ma on behalf the Applicant put forward three grounds of appeal.
代表申請人的馬維騉大律師提出三點上訴理由。

Mr Ma submitted that in respect of the jury’s question, the further directions that the trial judge gave were inadequate.  In particular, in response to the jury’s question, “Are we permitted to evaluate the importance or significance of the doubtful evidence in relation to the case”, the trial judge’s remarks, namely, “But do bear in mind that if you reject part of a witness’ evidence, you have to take extra care in deciding whether the rest of his evidence is credible or not”, did not adequately answer the jury’s question.  Counsel argued that the trial judge’s response should have at least included the following:
馬大律師指原審法官就陪審團的提問向他們作出的進一步指引不足夠，特別是回應陪審團提出“是否可以衡量有疑點的證供對案情的重要性或關鍵性”之問題時，原審法官的說法，即“如果你哋拒絕接納某個證人嘅部分證供，咁嚟自呢個證人嘅其他證供就要特別小心喇，睇下信唔信得過喇”，不足以回應陪審團的提問。大律師指原審法官的回應，至少包括以下幾點：

“a) It is certainly up to them to decide in respect of the evidence, whether they will accept or reject which part of it;
“ a)他們對證供當然可以有所取捨，接納或拒納證供任何一部份；

b) When making a decision to accept or reject evidence, they must bear in mind that the burden of proof is on the prosecution and the standard is beyond reasonable doubt;
b) 在決定取捨的時候，應謹記舉証責任在於控方，標準是毫無合理疑點；

c) When making a decision to accept or reject evidence, they should also carefully consider the reasons why they reject certain evidence and see whether those reasons will affect the credibility or reliability of the other evidence;
c)在決定取捨的時候，亦應細心考慮拒絕接納某些證供的理由，看看這些理由會否影響其它證供的可信性或可靠性；

d) On the other hand, the jury should also consider if the evidence they want to reject is of any importance or significance;
d)另一方面，陪審團亦需考慮欲拒納的證供是否具重要性或關鍵性；

e) If the evidence rejected is not important or significant and the reasons for the rejection do not affect the overall credibility or reliability, then the jury may safely disregard the evidence in question and concentrate on the remaining evidence;
e)若果拒納的證供不具重要性或關鍵性，而拒納的理由又不影響整體的可信性或可靠性，則陪審團大可穩妥地摒棄有關證供，只著眼餘下的證供；

f) If the evidence rejected is important or significant, the jury should be more cautious and thorough in considering the reasons why they reject such evidence and how that would affect the witness’ credibility and reliability; and
f)若果拒納的證供具重要性或關鍵性，陪審團則應更加謹慎及細心考慮，他們拒絕接納該些證供的原因，如何影響證人的可信性及可靠性；及

g) The jury must bear in mind that if a witness is incredible in respect of some important or significant issues (such as lying or making serious mistakes), his or her overall credibility or reliability will necessarily be seriously undermined and they should take extra care.”
g)陪審團需謹記，若果在重要或具關鍵性的議題上，證人是不可信的（例如說謊或嚴重出錯），則證人的整體可信性或可靠性是必然受到嚴重的影響，而他們需加倍小心。”

Mr Ma also referred to the directions that the trial judge gave to the jury in relation to the indecent assault in Count 5, namely, “some of you are only sure that the defendant did one thing, such as touching her breasts, while the others are only sure that he did another thing, such as touching her private parts.  Then what should you do?  The answer is, it will be sufficient if at least five of you are sure that the defendant did any one of the things.”
馬大律師亦指原審法官就第5項非禮罪向陪審團的指引，即“有人只肯定被告做咗一樣嘢，例如摸胸。又有人只肯定佢做過另一樣嘢，例如摸下體，咁又點呢？答案係，只要你哋夾埋有最少五個人肯定被告有做過其中一樣，咁就夠喇。”。

Mr Ma stressed that the above directions might have led to one consequence, namely, even though only three persons were sure about the touching of the breasts, two persons were sure about the touching of the private parts and two persons were sure about the inserting of a finger or fingers into the private parts, the jury would still have to convict the Applicant, despite the fact that there were no more than five persons who were sure that the Applicant had committed a particular act of indecent assault.
馬大律師強調上述指引可能導致一個後果，即只有三票肯定摸胸，兩票肯定摸下體，兩票肯定用手指插入下體時，陪審團仍要裁定申請人罪成，雖然沒有超過五票肯定申請人犯過某一種猥褻侵犯的行為。

Finally, Mr Ma argued that the jury, by acquitting the Applicant on Counts 4 and 7 but convicting him on Counts 5 and 6, had returned inconsistent verdicts.
最後，馬大律師指陪審團裁定申請人第四、七項罪名不成立，但第五、六項罪名成立的決定屬不一致的裁決。

Mr Ma stressed that in respect of the above four counts, all the evidence came from Y and the issue that the jury had to resolve was whether Y’s evidence was credible and could lead to a conviction.  Therefore the verdicts of guilty on two counts but not guilty on the other two were both unreasonable and illogical.
馬大律師強調就上述四項控罪，證據都全源自Y，而陪審團要解決的議題，都是Y的證供是否可信及可定罪。因此裁定他兩項罪名成立，兩項罪名不成立的裁決，不合理亦不合邏輯。

Discussion
討論

After the trial judge had summed up the facts and given his directions, the basic question that the jury raised was whether they could reject the prosecution’s allegation against the Applicant on one count while accepting the prosecution evidence against the Applicant on another, and accordingly convict him on that count.
陪審團在原審法官作出案情總結及引導後，提出的基本問題是他們能否否定控方就某一項控罪指控申請人時，同時接納控方就另一控罪指控申請人的證據，並因此裁定申請人該項控罪名成立。

In respect of the above issue, the trial judge had on numerous occasions clearly indicated to the jury that they were entitled to accept part of a witness’ evidence but reject the rest of his evidence (Lines G-J on page 12 and Lines N-P on page 27 of the transcript).
原審法官就上述議題多次明確向陪審團表示他們可以接納某證人的部分證供及否定該名證人的其餘證供（謄本第12頁G-J行第27頁N-P行）。

The trial judge also repeatedly reminded the jury that if they rejected part of a witness’ evidence, they would have to take extra care in handling the rest of that witness’ evidence (Lines I-K on page 12 and Lines P-Q on page 27 of the transcript).
原審法官亦重複提醒陪審團，當他們不接納某一證人的部分證供時，則要特別小心處理源自該證人的其餘證供（謄本第12頁I-K行及第27頁P-Q行）。

Regarding the jury’s subsequent question, namely, whether they could evaluate the importance or significance of the doubtful evidence in relation to the case, the answer was also obvious.
陪審團隨後的問題，即是否可以衝量有疑點的證供對案情的重要性或關鍵性，答案亦是明確的。

When the trial judge directed the jury that they were entitled to accept part of a witness’ evidence but reject the rest of that witness’ evidence, he also reminded them that in those circumstances, they would have to take extra care in handling that witness’ evidence to see if it was credible.
原審法官指出陪審團有權接納某一證人的部分證供及否決同一證人的其餘證供時，同時提醒陪審團在上述情況下，他們必需特別小心處理該名證人的證供看是否可信。

The trial judge stressed to the jury that all the prosecution evidence against the applicant came from X and Y and there was no other evidence.  Both X and Y were young and there might have been youthful misunderstanding.  Consequently, the jury must treat their evidence with caution and they could convict the Applicant only if the prosecution made them sure that he was guilty.
原審法官向陪審團強調指控申請人的控方證據全部源自X 和Y，沒有任何其他證據，而X和Y 年紀都輕 ，亦可能不知輕重，因此陪審團必需小心處理她們的證供而控方亦必需令陪審團肯定申請人有罪，才能裁定他罪名成立。

The issue that the jury had to resolve was simple, and the trial judge should also be straightforward and make things readily understandable to the jury when responding to their questions.  We do not see any reasons why the trial judge should follow the 7 points proposed by Mr Ma in response to the jury’s question; that would only make matters complicated.  In fact, the reply given by the trial judge has properly included the elements set out by Mr Ma.  We do not agree with Mr Ma’s submission that the further directions given to the jury by the trial judge was inadequate or inappropriate.
陪審團要解決的議題簡單，回應陪審團的發問時，原審法官亦應直接及令陪審團容易明白。本庭看不到為何原審法官回應陪審團的發問時，要按馬大律師列出的7點行事，該做法只會令事件複雜化。事實上原審法官的回應，亦已適當地包含馬大律師列出的要素。本庭不同意馬大律師所指原審法官對陪審團的進一步引導，不足夠或不恰當。

In HKSAR v Chan Shek-wai (CACC 472/2001), Mr Justice Stuart-Moore succinctly spelled out on page 11 of the judgment the applicable principle regarding “inconsistent verdict”:
司徒冕法官在HKSAR v Chan Shek-wai (CACC 472/2001) 案的判案書第11頁簡單地道出“不一致裁決”的適用原則：

“So far as general principle is concerned, the burden of showing that verdicts are inconsistent falls squarely upon an appellant.  Furthermore, not only must inconsistency be established but this must be shown to have been such as to call for interference by an appellant court.”
“一般性原則是，上訴人有絕對責任證明裁決是不一致的。再者，他不但要確立‘不一致’，更要證明‘不一致’的程度要上訴法庭干預。”

In HKSAR v Chan Kai Lam (CACC 311/2003), this Court remarked that when dealing with an appeal which relied on the ground of “inconsistent verdicts”, a firm approach should be adopted.  From relevant cases this Court cited the following paragraphs:
在HKSAR v Chan Kai Lam (CACC 311/2003)案，本庭建議在處理以“裁決不一致”為理由的上訴時，應採取堅定不移的方法。本庭從有關案例中援引了下列段落：

“To succeed the appellant must show, firstly, that the verdicts are logically inconsistent, secondly, that they are so inconsistent as to demand interference by an appellate court – i.e. that there is no way in which the logically inconsistent verdicts can be sensibly explained.”
“要成功，上訴人需顯示第一，裁決邏輯上是不一致的，第二，不一致的程度令上訴庭不得不干預，即邏輯上不一致的裁決不可能合理地闡明。

“All of these directions and those to which we have earlier referred, serve to illustrate yet again the importance of according respect to the verdict given by a jury.  Having said that, obviously if the verdict amounts to what can effectively be described as nonsense, then it cannot be allowed to stand.”
上述指引及本庭較早前述及的指引再一次說明尊重陪審團裁決之重要性。當然，如果裁決實際上可被視為屬荒謬的，則必需推反。”

In HKSAR v Li King Sing Ivan [2001] 2 HKC 539, Mr Justice Stuart-Moore VP also cited two English Court of Appeal cases to show that even though a jury accepted part of a witness’ evidence and convict a defendant on a certain charge while at the same time reject the same witness’ evidence which led to a not guilty verdict on another count, that did not mean that the jury’s verdicts were “inconsistent”.
在HKSAR v Li King Sing Ivan [2001] 2 HKC 539案，司徒冕副庭長亦複述了兩宗英國上訴法庭的判例，證明陪審團接納某證人的部分證供及裁定被告人某項罪名成立，但同時不接納同一證人的證供以致裁定被告人另一項罪名不成立時，不表示陪審團的裁決屬“不一致”。

In R v Ven der Molen [1997] Crim LR 604, at page 605, the English Court of Appeal said:
在R v Van der Molen [1997] Crim LR 604案判案書第605頁，英國上訴法庭表示：

“…it did not follow that because the jury must have disbelieved a witness or rejected his or her evidence with the result that it acquitted on one count, it was necessarily acting irrationally to rely on the evidence of the same witness to convict on another count.  The Court had to be very careful not to usurp the role of the jury who had heard the witnesses and considered the matter long and hard.”
“…當陪審團不相信一位證人或拒絕接納他/她的證據，因而就一項控罪裁定被告人罪名不成立，但信賴同一證人的證供而就另一控罪裁定被告人罪名成立，並不等如陪審團一定是不合情理地行事。陪審團有視聽證人作供，又有長時間深入作出考慮；法庭應小心不要隨便奪取陪審團的地位。”

In the following year, the English Court of Appeal also held in R v G [1998] Crim LR 483 that:
翌年，英國上訴法庭在R v G [1998] Crim LR 483案亦裁定:

“A person’s credibility is not a seamless robe, any more than is their reliability.  The jury had to consider (as they were rightly directed) each count separately, and might take a different view of the reliability of the evidence on different counts.  It was too simplistic to draw a stark distinction between reliability and credibility (as had been put in the argument).  It was for the jury to decide on the basis of all the material before it whether it was sure of the particular allegation in each count.”
“…一個人的可信性並不是天衣無縫的。他的可靠性亦然。陪審團應該（依照正確的指引）分別考慮每一項控罪，他們可以就不同的控罪，就證據的可靠性作出不同的觀點。（如本案律師指稱），就可靠性與可信性作出完全的區別，未免過份簡單化了。陪審團應做的，就是考慮全部的資料後，決定是否肯定每一項控罪的指控”

Mr Ma argued that since all the evidence concerning Counts 4 to 7 came from Y, the fact that the jury acquitted the Applicant on Counts 4 and 7 but convicted him on Count 5 and 6 showed that their verdicts were inconsistent.
馬大律師力稱第四至第七項控罪的證據全源自Y，因此陪審團裁定申請人第四、七項控罪不成立，但第五、六項控罪成立顯示陪審團的裁決不一致。

Mr Ma’s approach to this matter was exactly in conflict with the proper approach propounded in the above cases.
馬大律師的處理方法正正和上述案件所稱的適當處理方法有抵觸。

As submitted by Ms Sally Yam on behalf of the Respondent, the location and time of the four offences were different, and more importantly, the details that Y gave in respect of the Applicant’s sexual assaults on her on the various occasions also differed substantially.  When Y described matters relating to Counts 5 and 6, she gave more details and there were special features which were also consistent with the Applicant’s evidence.
誠如答辯人的代表大律師任可正確指出，四宗罪行的犯案地點，時間都不同，而更重要的是Y描述各次申請人性侵犯她的詳情亦有很大的差別。Y描述和第五及第六項控罪有關的事項時，更詳細，亦有其特別之處，亦和申請人的證供吻合。

We cannot overlook that fact that the offence in Count 4 took place the earliest and according to Y’s allegation, the Applicant’s children and her younger brother were all present at the time of the offence.  In addition, according to Y, the Applicant’s assault on her was relatively mild and short.  The jury must have given him the benefit of the doubt and acquitted him on that count.
本庭不能忽視第四項控罪是最早發生而據Y的指稱，案發時申請人的兒女和她的弟弟都在場。加上Y指稱申請人侵犯她的過程亦較輕微和短暫，陪審團極有可能是給予申請人疑點的利益而裁定該項控罪不成立。

Similarly, we cannot overlook the fact that shortly after the Applicant’s alleged rape of her (Count 7), Y met a man and had sexual intercourse with him five times within a short period of time.  She even allowed that man to film their sexual activities and take nude photos of her.  Later Y also indicated that she was not certain whether she met the man before or after the Applicant had raped her.
本庭亦不能忽視Y指申請人強姦她（第七項控罪）後不久，她認識了一名男子，並在短時間內五次和他發生性行為，更讓該名男子拍攝他們的性愛行為及她的祼照。其後Y又表示不能確定申請人強姦她是發生在她認識該名男子之前或後。

The jury must likewise have given the Applicant the benefit of the doubt and acquitted him on Count 7.
陪審團亦極有可能給予申請人疑點的利益而裁定針對他的第七項控罪不成立。

The jury gave the Applicant the benefit of the doubt in respect of Counts 4 and 7 but at the same time convicted him on Counts 5 and 6.  That does not mean that the jury’s verdicts were inconsistent.  The ground of appeal put forward by Mr Ma as to the jury’s inconsistent verdicts cannot stand.
陪審團就第四項及第七項控罪給予申請人疑點利益，但同時裁定他第五項及第六項罪名成立，不表示陪審團的裁決不一致。馬大律師指陪審團裁決不一致的上訴理由不成立。

In Y’s evidence, when the Applicant indecently assaulted her, he started by lifting her upper garment, then putting a hand inside to touch her breasts, before reaching under her panties to touch her private parts and insert a finger or fingers into her vagina.  If any of the acts described above did happen, it would definitely amount to indecent assault.  The directions given by the trial judge to the jury were that they did not have to be sure that the Applicant had done all the acts of indecent assault; as long as at least five of them were sure that the Applicant had done any of the above acts to Y, it would amount to indecent assault.  The directions given by the trial judge were proper and correct and would not lead to the consequence described by Mr Ma, namely, the Applicant would be convicted of indecent assault even though only three persons were sure about the touching of the breasts, two persons about the touching of the private parts, and two persons about the inserting of a finger or fingers into the vagina.
根據Y的證供申請人非禮她時，先揭起她的上衣，然後伸手入內摸胸，再伸手入內褲摸下體及用手指插陰道。上述任何一種行為，如確有發生過，都必構成非禮。原審法官向陪審團的引導是他們無需確信申請人確有做過全部的非禮行為，只要他們中最少五個人肯定申請人有對Y做過上述行為其中之一項，則已構成非禮罪。原審法官的引導是適當及正確的, 更不會導致馬大律師所指的後果，即只有三票肯定摸胸，兩票肯定摸下體，兩票肯定用手指插下體便能裁定申請人非禮罪罪成。

The verdicts in this case were entirely based on the jury’s assessment of Y’s evidence.  The jury was given the chance to examine Y’s demeanour long and hard when she was in the witness box, and they must also have carefully considered and analyzed her evidence.  The jury was entitled to accept Y’s allegation that the Applicant had indecently assaulted her and committed indecent acts against her in circumstances set out in Counts 5 and 6.  We see nothing unsafe about the Applicant’s conviction in respect of the two charges.
本案之裁決全建基在陪審團對Y的證供的評估。陪審團有機會長時間及仔細地觀察Y作供時的神態，亦必有小心考慮及分析她的證供。陪審團有權接納Y指申請人在第五及第六項控罪所指的情況下非禮她及對她作出猥褻行為。對申請人被裁定該兩項控罪罪名成立，本庭不認為有不穩妥之處。

The Applicant’s application for leave to appeal against conviction was dismissed.
本庭駁回申請人就定罪之上訴許可申請。

Mr David Ma, instructed by Chong & Yen and assigned by the Legal Aid Department, for the Applicant
答辯人：由律政司高級檢控官任可代表。

Ms Sally Yam, Senior Public Prosecutor of the Department of Justice, for the Respondent
申請人：由法律援助署委派張昭婷嚴興鳳律師事務所轉聘馬維騉大律師代表。