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：

The Appellant was charged with an offence of “rape”.  After a jury trial before Tong J in the Court of the First Instance of the High Court, the Appellant was convicted of the charge and sentenced to an imprisonment term of 7 years and six months.  The Appellant sought leave to appeal against his conviction and sentence.  We granted leave and treating the hearing as the appeal, allowed the appeal, quashed the conviction and sentence imposed for the offence and ordered a retrial.  The following are the reasons for the judgment of the Court.
上訴人被控一項「強姦」罪，案件經高等法院原訟法庭法官湯寶臣及陪審團審理後，上訴人被裁定罪名成立及被判處入獄七年六個月。上訴人就定罪及刑期提出上訴許可申請。本庭批准針對定罪的上訴許可申請，視該申請為正式上訴、批准上訴、撤銷定罪及命令案件重審。以下是本庭的判案理由。

The Prosecution Case
控方案情

At the time the crime occurred, the victim was a girl of 14 years of age while the Appellant was a young person of 19 years of age.  The victim came to know the Appellant on the Internet.  The victim subsequently realised that she had seen the Appellant before in a comic bookstore (where he worked) when she patronized the bookstore previously.
案發時受害人是一名14歲的女童；上訴人是一名19 歲的青年人。受害人在互聯網上結識上訴人，受害人後來知道她早前光顧一所漫畫店時見過任職於該漫畫店的上訴人。

On 3 January 2008, the Appellant invited the victim to his home.  The victim went to the appointed place.  The two of them watched DVD in the Appellant’s room.  Afterwards, the Appellant asked the victim to sit on a bed, then he embraced her and fondled her breasts and private part.  The victim told the appellant not to do that and brushed away his hand(s), but the Appellant continued fondling the victim.  With the excuse that she needed to go to the toilet, the victim tried to phone her schoolmate but she was unable to reach that person.  The victim then returned to the appellant’s room and told him that she had to leave.  However, the appellant pulled the victim onto the bed with force, pinned her down with his body pressing against hers and removed her underpants.  He inserted his finger(s) and penis into her vagina successively.  Not long afterwards, the Appellant ejaculated outside her.  All the time throughout, the victim kept struggling and she asked the Appellant to stop doing so but he ignored her.  Since the Appellant could exert greater power and force than the victim, the victim was unable to break loose.  After the event, the victim left the Appellant’s home and called a schoolmate of hers and told the schoolmate about the incident.  The victim also told a close male friend about the incident.  The victim then took the morning after pill.  On the 3 January entry in her diary, the victim made the following record:
2008 年 1 月 3 日上訴人邀請受害人到他的家。受害人依約赴會。兩人在上訴人的房間內看影碟。之後，上訴人叫受害人坐在床上，然後擁抱她，又撫摸她的胸部和私處。受害人叫上訴人不要這樣做及撥開他的手，但上訴人繼續撫摸受害人。受害人藉詞上廁所致電同學但聯絡不上。受害人之後返回上訴人的房間告訴上訴人她要離開，但上訴人強行把她拉到床上並用身體壓着她及脫去她的內褲，他先後以手指及陽具插入她的陰道，不久上訴人在受害人的體外射精，受害人一直掙扎及叫上訴人不要這樣做，但他沒有理會她。由於上訴人的氣力比受害人大，她無法掙脫。受害人事後離開上訴人家並致電給她的一名同學告之事件。受害人亦把這件事情告知一名稔熟的男性朋友。受害人服食事後避孕丸。受害人在她的日記簿1月3 日寫下以下一則日記：

“Loss of virginityReally very painful…  Why did it to me?
控方將有關的日記的副本作為呈堂證據。

Having taken morning after pill… I’m in great fear I will get pregnant!  Now realise that people around me … love me very much!”
受害人的母親發現受害人的學業成績突然大倒退，她為了了解事情就偷看受害人的日記，並閱讀了上述的一則日記。受害人在母親追問下把事件和盤托出。兩人一同報警。

The Prosecution tendered a duplicate copy of the diary to Court as evidence.
上訴人的證供

When the victim’s mother discovered that the academic performance of the victim had suddenly slipped a lot, in order to find out what had happened, she peeped into the diary of the victim and read the above diary entry.  Being subject to her mother’s persistent questioning, the victim disclosed the whole incident.  The two then reported the matter to the police.
上訴人選擇作供自辯。他指當日是受害人主動到他的家，並進入他的房間及躺在他的床上，上訴人見狀便擁抱和吻她及撫摸她的身體。受害人完全沒有拒絕他，他脫去受害人和自己的褲子，欲與受害人性交，但受害人對他說：「第一次見面，唔好，下次先啦！」。上訴人說他當時不知道受害人的真正想法，為了試探她是否不願意性交，所以再與受害人的身體接觸，但被受害人推開及再重複上述那番話。上訴人此時明白受害人真的不願意性交，所以即時停止動作，之後各自穿回褲子。上訴人否認他曾經用手指或陽具插入受害人的陰道及在她的體外射精。

The Evidence of the Appellant
控方的結案陳詞

The Appellant elected to give evidence in Court to defend himself.  He claimed that on the day in question it was the victim who came to his home of her own accord, went into his room and lay down on his bed.  Seeing that, the Appellant embraced her, kissed her and fondled her.  The victim did not refuse him at all.  He then removed the trousers of his and that of the victim and intended to have sexual intercourse with the victim.  But the victim said to him, ‘This is the first time we meet, don’t, leave it for the next time.’  The Appellant said that at the time he had no idea what the victim had actually in her mind.  To try and test if she was unwilling to have sexual intercourse, he once again proceeded to touch the body of the victim.  But the victim pushed him away and repeated the above utterance.  At that time the Appellant came to realise that the victim was really unwilling to have sexual intercourse, he stopped his act immediately.  After that, they put on their own trousers themselves.  The Appellant denied ever having inserted his finger(s) or penis into the vagina of the victim or ejaculating outside her.
控方律師在結案陳詞時引用受害人有關日記的內容，並對陪審團說有關的日記內容與受害人在法庭上所作出的證供吻合。受害人在庭上說「給人強姦」與日記內容如「破處」、「真的很痛…..點解搞我？」、「食咗事後丸..... 我好怕會有咗！原來身邊的人.....都好愛我！」吻合。另外，受害人在日記內寫下有關痛楚的感覺及「為甚麼弄她？」這句子都顯示出她是在不自願的情況下發生性行為的。日記寫下「食事後丸，好怕會有咗」這句子亦與受害人聲稱她曾經進行性交之說吻合，因為如她沒有進行過性交的話，她就不會恐怕懷孕了。控方律師稱若實情是如上訴人所說他只是將陽具在受害人的陰部外面摸擦的話，那麼受害人何以會恐怕懷孕？控方律師亦說日記寫下：「原來身邊的人好愛我」這句話是顯示受害人在事後有向朋友傾訴過這件事，而他們是支持她及幫助她的。

The Closing Submission of the Prosecution
陪審團在湯法官對他們作出指引後就退席進行商議。之後陪審團向法庭要求提供受害人的日記正本。湯法官根據要求將日記的正本交給他們。

Grounds of appeal
上訴理由

The ground of appeal put forward in this case is that Mr. Justice Tong did not give a proper direction to the jury on the contents of the diary, and therefore rendering the conviction unsafe and unsatisfactory.
本案的上訴理由是湯法官並沒有就日記的內容對陪審團作出適當的指引，致令有關定罪不安全及不穩妥。

Legal principles
法律原則

In using the victim’s diary record written by her after the incident, the prosecution was obviously trying to persuade the jury to accept that the victim’s evidence against the Appellant was the truth because her diary record made after the incident tallied with and were consistent with the testimony that she gave in court.
控方引用受害人在案發後在日記簿上的記錄的目的明顯是要求陪審團接納受害人針對上訴人的證供是真實的，因為受害人於事發後在她的日記寫下的內容與受害人在法庭上作出的證供吻合及一致。

When referring to a witness’ previous utterance as being consistent with his or her testimony given in court, the relevant legal principles are:
有關引用證人早前所說的話與他在法庭上作出的證供一致的法律原則如下：

In general, even if a previous utterance made by a witness agrees with the testimony of the witness given in court, it cannot serve as corroborative evidence in support of the testimony because the previous utterance will not be admitted as evidence at all.  This reason is that the relevant consistent utterance and testimony came from the same witness.  Even though what she said before and afterwards are consistent, it does not suffice to prove that her previous utterance and her testimony are true.  Hence, when considering how much weight to be attached to the related evidence, the utterance that is consistent with the testimony does not serve any substantive purpose.
一般來說，證人曾經說過一些與他在法庭上的證供一致的話是不會成為有關證供的佐證。這些說話根本不會被法庭接受為證據，因為有關一致的說話和證供都是來自同一位證人，就算他說過前後一致的話也不足以證明他所說的話和證供是真實的，因此在考慮給予有關證據權重而言，這些與證供一致的說話起不了實質作用。

An exception to this principle is ‘the recent complaint’ made by the victim of a sexual offence, i.e. a complaint made by the victim at the earliest reasonable opportunity after the occurrence of the incident to the effect that she had been sexually abused.  The ‘recent complaint’ supports the allegation of sexual abuse by the victim against the defendant as being a consistent one.  And it also serves to negate any suggestion that the victim had given prior consent to have sex.  See Phipson on Evidence (16th Edition) paras 12-72 and 12-74.
這原則的其中一個例外情況是性罪行的受害人所作出的「最近的申訴」(recent complaint)，即是受害人在性罪行發生後的第一個合理機會下對被性侵犯一事所作出的申訴。「最近的申訴」的作用是支持受害人針對被告人性侵犯的指控是前後一致的及否定受害人曾經同意性交，見：Phipson on Evidence 第16版，第 12―72 及 12―74 段。

Nevertheless, where the Court allows the prosecution to rely on a ‘recent complaint’ as evidence, the Court still has to give a direction to the jury to enable them to know clearly that even if a previous utterance made by the victim after the occurrence of the crime did tally with the testimony given by the victim in court, it does not follow that her previous utterance is the truth.  The reason is that the relevant utterance does not come from an independent witness but from the victim herself.  Had the Court not given a direction on this, the jury may be under the misapprehension that the utterance is a further piece of evidence in support of the allegation made by the victim against the Defendant, without knowing that such an utterance serves as any other evidence for them to refer to when they decide whether the victim’s testimony given in court is the truth or not.  Should the Court fail to give such a direction to the jury, the conviction would be unsafe and unsatisfactory, see: Abdul Khar Mohammad Islam [1999] 1 Cr. App. R. 22 and R v. Croad [2001] EWCA Crim 644. Also see: R v. B [1997] Crim LR 220.
不過，就算法庭准許控方引用有關「最近的申訴」為證據，但法庭仍要向陪審團作出指引，讓他們清晰知道就算受害人於案發後曾經說過與她在庭上證供一致的說話，這也不表示她以前所說的話是真實的，理由是有關的說話不是來自一位獨立證人，而是來自受害人本人。若法官沒有作出有關的指引，陪審團或會誤當有關的說話為一項受害人指控被告人的進一步證據，而不知道它只是如其他的證據一樣給他們參考以裁定受害人在法庭上的證供是否真實。若果法官沒有向陪審團作出有關的指引的話，這會令定罪變得不穩妥，見： Abdul Khar Mohammad Islam [1999] 1 Cr. App. R. 22 及 R v. Croad [2001] EWCA Crm 644，另見：R v. B [1997] Crim LR 220。

Views of the Court
本庭意見

During the trial, the legal representative of the Defendant never raised any objection to the production of the diary as evidence by the prosecution and neither the defence counsel nor the prosecuting counsel sought a relevant jury direction from Mr. Justice Tong.  As the comments in R v. B indicate, the contents of the diary may not constitute the basis of a ‘complaint’ since the victim might not have thought of showing her diary to a third party at all.  Hence, what she wrote in her diary might not necessarily be a complaint.  Since both counsel on appeal did not make any submission on whether the diary record could be accepted by the court as a ‘recent complaint’, this Court is not going to give its views on this issue.  This Court is of the view that should Mr. Justice Tong be able to find that the contents of the diary constituted a ‘recent complaint’ and admitted it as evidence, he should have directed the jury to enable them to understand the practical function of this piece of evidence, but he did not do so.  Consequently, it is highly likely that the jury would have mistaken the contents of the diary as further evidence from the prosecution in support of the allegation made by the victim against the Defendant, rather than for merely assisting the jury to consider whether the victim’s evidence was true or not.  This Court therefore finds that the conviction is unsafe and unsatisfactory.
原審時，當時代表上訴人的律師沒有反對控方將日記作為呈堂證據，而雙方律師亦沒有要求湯法官向陪審團作出有關指引。根據R v. B一案的法律評論，日記的內容未必可以構成「申訴」的基礎，理由是受害人可能沒有想過給他人閱讀她的日記， 因此她在日記簿內記下的事情未必是申訴。由於雙方律師在上訴時均沒有就法庭可否接納有關日記為「最近的申訴」這項議題作出陳詞，本庭因此不會對這項議題發表意見。本庭認為就算湯法官可以裁定日記內容是「最近的申訴」及接納它為呈堂證據，他也應該向陪審團作出有關的指引，讓他們了解這項證據的實際作用，但他並沒有這樣做，所以陪審團是極有可能誤以為日記的內容是控方提出受害人指控被告人的進一步證據，而不是僅用以協助考慮受害人的證供是否真實。本庭因此裁定有關的定罪是不安全及不穩妥的。

Mr. Justice Tong stated in the course of directing the jury that the only evidence in the case was victim’s the testimony, though he gave the following direction on the complaint made by a victim after she had been sexually abused:
湯法官在引導陪審團時曾經說過案中唯一的證據是受害人的證供，雖然他就一名受害人遭人性侵犯後所作的投訴作出以下的指引：

“Members of the jury, usually when a female had been sexually abused, perhaps she would have, as the first opportunity arose, made a complaint to her family member(s), friend(s) or the police.  Had there been such evidence of complaint, it could show that what the victim said before and afterwards were consistent.  But an immediate complaint does not necessarily mean that what the female victim said must be true.  It only shows that what she said before and afterwards are consistent.  Looking at the other side of the argument, had the female victim not made any complaint all along, or what she said before and afterwards were contradictory, the credibility and reliability of her account of the incident would be weakened.
「各位陪審員，通常當一個女子喺被性侵犯之後，或者都應該會喺第一時間向家人、朋友或者警方投訴，如果有呢一方面嘅投訴證據係可以顯示出受害人所講嘅係前後一致，但係即時投訴並唔代表女方所講嘅一定係真話，只係顯示佢講嘅係前後一致而已，反過嚟講，如果女方一直冇作過投訴或者佢所講嘅有前後矛盾之處，咁樣就會係削弱佢所講嘅事情嘅可信性及可靠性喇。」

But Mr. Justice Tong did not give a direction on the contents of the diary in particular.  Consequently, this Court considers the direction given by Mr. Justice Tong as not comprehensive.  The Senior Assistant Director of Public Prosecutions for the Respondent, Mr. William Tam Yiu Ho, accepts that the direction given by the Judge was not defect free.
但他並沒有特別就日記的內容作出指引，因此本庭認為他作出的指引是不全面的。代表答辯人的高級助理刑事檢控專員譚耀豪接受湯法官的指引存有缺陷。

Retrial
重審

Mr. Tam of Counsel seeks an order for a retrial.  Having considered all the circumstances of the case, including factors that the Appellant was tried once and he has been imprisoned for over 14 months, that the tender-age victim will be required to give evidence once again about the sexual abuse incident if there is a retrial, the serious nature of charge, the strength and weaknesses of the prosecution evidence and the reason(s) for quashing the conviction, this Court finds that there should be a retrial.  Consequently, we now make an order for a retrial, and grant the Appellant bail pending the retrial.
譚律師要求本庭命令案件重審。本庭考慮過整體情況，包括上訴人已經接受過一次審訊及服刑逾 14個月、若果重審案件會令一名年幼的受害人就她被性侵犯一事再次作證、控罪的嚴重性、控方證據的強弱及撤銷定罪的原因等因素後裁定案件須重審。本庭命令案件重審，但批准上訴人保釋候審。

Costs order
訟費命令

As regards the Appellant’s application for costs, it is ordered that costs of the Appeal and that of the original trial be to the Appellant.  Mr. Tam of Counsel does not resist the application.
本庭應上訴人的申請給予他上訴及原審訟費，譚律師對該申請不表示反對。

Mr. William Tam Yiu Ho, Senior Assistant Director of Public Prosecutions, for the Respondent.
答辯人：由律政司高級助理刑事檢控專員譚耀豪代表。

Mr. Alan So, instructed by Wan Henry and Yeung, for the Appellant.
上訴人： 由尹楊律師事務所轉聘蘇國強大律師代表。