The applicant（蘇子揚）was charged that he raped a girl (X), who was under the age of 17, two times on 12 August 2012.  The scene of crime was X’s home at Tin Yiu Estate, Tin Shui Wai (her home).
申請人(蘇子揚)被指在2012年8月12日兩次強姦一名不足17歲的女童(X)，案發地點是X在天水圍天耀邨的居所(該居所)。

The applicant pleaded not guilty and was tried before Li J (the trial judge) with a jury.  On 30 May 2013 he was unanimously found guilty of both counts of rape by the jury, and was sentenced on the following day to imprisonment of 7 years and 6 months by the trial judge.
申請人否認控罪，並在高等法院法官李瀚良(原審法官)會同陪審團席前受審。2013年5月30日，申請人被陪審團一致裁定兩項控罪罪名都成立，並在翌日被原審法官判入獄7年6個月。

Mr Liu of counsel and Mr Poon of counsel, for the applicant, applied for leave to appeal against his conviction and / or sentence.
申請人不服定罪及判刑，由廖遠明和潘兆斌兩位大律師提出申請，要求法庭批准他就定罪及/或判刑上訴。

Background facts and prosecution case
背景事實和控方案情

The applicant was familiar with X and her family members, including her mother and elder brother, and would visit her at her home two or three times a week to listen to her telling him what was on her mind.
申請人熟悉X和其家人，包括X的母親及哥哥，並會每星期兩至三次前往該居所探望X，聆聽她傾訴心事。

X stated that between 1 and 2 pm on 12 August 2012 the applicant came to her home to visit her as usual.  At the material time she was alone at her home.  She lay on the bed and talked with the applicant about recommending her elder brother for a job.  In the course of their conversation, the applicant walked up to X, grabbed her wrists tightly with his right hand, removed her trousers and briefs with his left hand and then took off the trousers he was wearing.  At that moment X was lying flat on the bed.  She tried to drive him away from her by kicking him and pushing him but to no avail, because of the strength of the applicant.  The result was that the applicant succeeded in raping her and ejaculated on her belly.  After that, X cleaned her body, threw the paper towel into the rubbish bin, went to the toilet and put on a black one-piece dress.  In the process of her doing these, she smoked a cigarette/cigarettes.  Later, she checked her phone call record and came to know that her mother was urging her to see her, so she intended to go out to see her mother.  At that time the applicant indicated that he wanted to do it once more but X refused.  The applicant ignored her refusal.  He pressed her on the bed, grasped her wrists with his right hand and removed the trousers of the two of them with his left hand.  He raped her again and ejaculated in her body.  X said that in the course of his doing so she had told him to “fuck off” but failed to resist the applicant’s attack on her.  After it was over, X cleaned herself again and left her home with the applicant together.  When they were going down in the lift, she drank the lemon tea which the applicant brought along.  Then they met X’s mother and they together went to different places shopping until sometime between 6 and 7 pm.  Only then did the applicant leave X and her mother.  In this process, X did not complain to her mother or anyone about the applicant’s abominable behavior.  X explained that she did not report the matter to the police or complain but decided to “grin and bear it” because she was afraid that when her mother learned that she might kick her out to the street.  She said she did not tell her boyfriend / boyfriends about it either for fear that her boyfriend / boyfriends would not want her anymore because of this.  X told the applicant through WhatsApp that she worried that she would be pregnant, and the applicant said he would take care of the abortion expenses.  A few days later, X’s mother noticed that there was something strange in X’s mood and behavior, so she checked X’s WhatsApp messages.  On 16 August 2012, when being questioned closely by her mother, X said the applicant “did” her.  X also made similar complaints to her two boyfriends respectively surnamed Lau and surnamed Cheng, and to one other men, whose name was unknown.  X accused the applicant of having done “outrageous things” to her and “raped” her.  Her accusations were recorded in the WhatsApp messages which she sent to the three men by using her mobile telephone.  Despite X’s objection, her mother, after discussing the matter with the applicant, decided to report to the police.  At that time, the applicant asked X’s mother not to call the police.
X指申請人在2012年8月12日下午約一時許如常前往該居所探望她。當時X單獨在該居所，並躺在床上和申請人談論關於介紹工作給X的哥哥之事宜。期間，申請人走近X，用右手抓緊X的兩隻手腕，並用左手脫去X的面褲和內褲，然後除去自己穿著的褲。當時X平睡在牀上試圖用力踢開及推開申請人，但不成功，原因是申請人力氣大。結果申請人成功強姦X，並在她的肚部射精。其後X清潔身體，並將紙巾丟棄在垃圾桶及去厠所換上一條黑色連身裙，期間X更有吸食過香煙。後來X看到電話記錄，知悉母親催促她會面，故準備離家出外和母親會合。當時申請人表示要再多做一次，但X拒絕。申請人沒有理會X反對，並將X按在牀上，用右手抓著X的兩隻手腕及用左手脫去兩人的褲後，再強姦X，並在她的體內射精。X指在過程中有叫申請人“死開”，但未能成功抗拒申請人的侵犯。事後X再清潔自己後和申請人一起離開該居所。兩人在乘坐升降機時，X有飲用申請人帶來的檸檬茶。兩人隨後和X的母親會合，並一起前往不同地點購物直至6時許，申請人才和X母女分手。期間X沒有向母親和任何人投訴申請人的惡行。X表示沒有報警或投訴，及決定“硬啃”事件，原因是她害怕母親知悉後會趕她出街。X指自己亦沒有將事件告知男朋友，原因是害怕男朋友因此不要她。X有WhatsApp給申請人傾談害怕有身孕一事，而申請人表示會負責有關墮胎費用。隨後數天，X的母親發覺X的脾氣有異，故查看她的WhatsApp記錄。2012年8月16 日在母親的追問下，X指遭申請人“搞咗”。X亦有向她的兩名姓劉和姓鄭的男朋友和一不知名男子作出相同指控。X指申請人“亂嚟”及“強姦”她。X的投訴錄載在X手機向該三名男子發出的WhatsApp短訊對話內。雖然X反對，但她的母親和申請人相討事件後，決定要報警。期間，申請人亦有要求X的母親不要報警。

X admitted that in 2012 she had on separate occasions had sexual intercourse with two different boyfriends.  She further admitted that in the evening of 15 August 2012 she had sexual intercourse with her boyfriend surnamed Lau.
X承認在2012年曾分別和兩名不同男朋友性交。X更承認在2012年8月15日晚上亦曾和劉性男朋友性交。

Policemen seized a paper towel stained with the semen of an unknown male, but the DNA extracted had nothing to do with the applicant.  X admitted that the paper towel was connected with her boyfriend surnamed Lau.
警員有在該居所的垃圾桶檢獲沾有不知名男子精液DNA的紙巾，但DNA和申請人無關。X承認該紙巾和她的劉姓男朋友有關。

The applicant was formally arrested by the police in the small hours of 17 August 2012.  Under caution he said, “I did do that, but we did it in a state of half willing and half resisting.  I know I was wrong” A policeman took down this reply in his police notebook. The applicant wrote down the formulaic statement and signed to confirm its content.  Later, the applicant, in the company of his solicitor, participated in a video recorded interview with the police, but he did not make any further confession.  On 17 and 20 August 2012, X was examined by a doctor, but no abnormalities or injuries were found on her body, including her private parts.  She was not pregnant.
申請人在2012年8月17日凌晨遭警員正式拘捕，警誡下申請人說:「我係有做過，但係我哋係半推半就嘅情況下攪嘅，我都知我唔啱喇。」警員將上述回應記錄在他的警察記事冊內，而申請人亦有在記事冊內寫下宣言及簽名確認其內容。其後申請人在律師陪同下，再接受警員錄影會面，但申請人沒有再作出任何招認。醫生在2012年8月17日和20日檢查X，但沒有發現她的身體，包括私處，有任何異狀或傷痕，X亦沒有懷孕。

Apart from the above evidence, X’s mother Madam Wong said in her evidence that on 12 August 2012 she began to observe that X was in an agitated mood, that she wore an “angry countenance”, “shut herself away” and “threw things”.  Her behavior showed that she was unhappy and she told her to “leave her alone”.  Madam Wong became worried, so she checked X’s WhatsApp messages.  When she learned what had happened, in the evening of that day she asked the applicant to have a meeting to discuss the matter.  Madam Wong said that at that time X was afraid when she saw the applicant.  When she decided to call the police, the applicant grabbed her clothes and begged her not to do so.  Madam Wong said she knew that X had different boyfriends, but she was not clear about the sexual relationship between X and her boyfriends.  X’s mother denied that X had told her that she had sexual intercourse with the applicant five times.  She also said she did not mention anything about buying morning-after pills.
除了上述證據外，X的媽媽黃‍女士作供時指她在2012年8月12日開始發覺X情緒激動、黑口黑面、“匿埋”及“掟嘢”、表現不開心及叫她“唔好理佢”。黃‍女士感到不安，故查看X的WhatsApp記錄。當她知悉事件後，便在當天晚上相約申請人討論事件。黃‍女士指當時X害怕看見申請人。當她決定報警時，申請人拉住她的衣衫要求她不要報警。黃‍女士表示知道X有過不同男朋友，但不清楚X和男朋友們的性關係。X的媽媽否認X曾向她表示和申請人有過5次性交，亦沒有提過去買“事後丸”一事。

Grounds of defence
答辯理由

The applicant admitted that he had sexual intercourse with X, but he claimed that he proceeded with her consent, so he denied raping her.  The defence case was that X was uninhibited and active in sexual affairs.  In spite of her young age, she had many sexual partners and had sex with them frequently.  In their cross-examination of X, the defence established that between August 2011 and August 2012 she had, at different times, four boyfriends.  The defence alleged that X deliberately lied to falsely accuse the applicant.  The applicant further alleged that the policeman put down in the notebook things which he had never said in order to frame him.
申請人承認有和X性交，但聲稱是在X同意下進行，故否認強姦控罪。辯方的立場是X是一名性開放及性活躍的人，雖然她年紀輕輕，但已有多名性伴侶，並經常和他們性交。辯方盤問X時確立她在2011年8月至2012年8 月期間先後有4名男朋友。辯方指X是故意說謊來誣告申請人。申請人亦指警員將一些他沒有說過的話記錄在記事冊內來陷害他。

When giving evidence in defence, the applicant gave a detailed account of his relationship with X.  He said he was so familiar with X and her family members that he and X addressed each other as brother and sister.  He said starting from the end of 2011 he regularly went to her home and later their relationship developed to such a stage that once or twice a week he and she would confide to each other secrets in their hearts.
申請人作供自辯時，詳述他和X的關係，他表示熟識X及其家人，並和X以契哥、契妹相稱。他指自2011 年年尾他便經常前往該居所，後來更發展到每星期有一、兩次和X傾訴心事。

According to the applicant, he had sexual intercourse with X for the first time in mid January 2012.  On that occasion he did not put on a condom and he ejaculated outside X’s body.  When it was over, the two of them smoked cigarettes and chatted.  The applicant went on and said that in mid March 2012, they, with mutual affection and agreement, made love with each other two times.  During the first time he ejaculated outside X’s body, but ejaculated inside her during the second time.  Since the applicant did not put on any condom, subsequently X bought and took morning-after pills.
申請人指在2012年1月中第一次和X性交，當時他沒有戴避孕套，並在X體外射精，事後兩人更吸煙及繼續傾談。申請人亦指在2012年3月中，他們在情投意合下兩次性交。第一次他在X體外射精;第二次則是在X體內射精。由於申請人沒有戴避孕套，故事後X有買“事後丸”服用。

The applicant added that in late May 2012 the two of them made love with each other two more times, that again during the first time he ejaculated outside X and during the second time he ejaculated inside her, and that after the event X again took morning-after pills.  The applicant emphasized that in between these two times they smoked and chatted.
申請人更指兩人在2012年5月尾再有兩次性交，亦是第一次在X體外射精;第二次則是在X體內射精。事後X亦有服用“事後丸”。申請人強調兩人第一、二次性交之間有吸煙及傾談。

The applicant insisted that he knew that X had sexual intercourse with her other boyfriends many times, and that for this reason he had bought morning-after pills for X in late January, early March, late March, mid May and mid June 2012.  He even said that Madam Wong was aware of X’s conduct and that she had asked him to buy morning-after pills for X.
申請人力稱知悉X有和她的其他男朋友多次性交，因此他在2012年1月尾、3月初、3月尾、5月中及6 月中有替X購買“事後丸”。申請人更指黃‍女士知悉X的行為，亦曾要求他替X購買“事後丸”。

The applicant claimed that on 12 August 2012 X asked him to buy lemon tea and to take it to her home.  Later, as suggested by him, the two of them took off their clothes and made love two times.  During the first time the applicant ejaculated outside X.  After they did that they smoked and X later changed her clothes and put on a black one-piece dress.  When Madam Wong called to hurry X up, the applicant suggested to her that she could stall Madam Wong off by saying that she fell pain in her belly.  The two of them made love once more.  During this second time he ejaculated inside her, but he did not think of, nor did he talk with X about buying morning-after pills, because there was no time.
申請人聲稱在2012年8月12日，是X要求他買檸檬茶到該居所。其後在他建議下，雙方脫去衫褲後兩次性交。第一次申請人是在X體外射精，事後兩人吸煙，而X後來換上一條黑色連身裙。當黃‍女士來電催趕X時，申請人建議X以肚痛來拖延黃‍女士，而兩人再一次性交。雖然第二次申請人是在X體內射精，但他沒有想過、亦沒有和X商量買“事後丸”，原因是沒有時間。

After that, they left her home together and went to meet X’s mother.  When the two of them were in the lift, each of them held a packet of lemon tea in his or her hand.  The applicant said that he and X and her mother went to various places together and he did not leave them until sometime between 6 and 7 o’clock.
其後兩人一起離開該居所並和X的媽媽會合，在升降機時，兩人都手持一包檸檬茶。申請人表示和X兩母女一起前往不同地方，直至6 時許才分手。

The applicant agreed that he did indicate that he was willing to pay X’s abortion expenses and that he did say something like “It happened again!”.  He explained that in March or April X’s mother had said that X was pregnant, so he said “It happened again!”, but he said he had forgotten the details of the matter.
申請人同意在WhatsApp有表示願意支付X的墮胎費用，又有說過“又中咗”等說話，申請人解釋說在3、4 月時，X的媽媽有說過X懷有身孕，故他說“又中咗”，但申請人表示已忘記事件的細節。

The applicant also agreed that in the evening of 16 August 2012 he discussed the matter with X, her mother and other people, including X’s boyfriend Cheng.  Subsequently, X’s mother decided to call the police.  He admitted that he did keep holding her and asked her not to call the police.
申請人亦同意在2012 年8 月16 日晚上有和X、其母親及其他人，包括X的鄭姓男朋友相討事件。其後X的媽媽決定要報警。申請人承認有拉著她，要求她不要報警。

The applicant said that when he and other people were in the vicinity of the police station, X said loudly “Don’t report it to the police,” and that she even moved her lips to the applicant to indicate that she was saying “Sorry” to him.  The applicant’s position was that what X said and did showed that her accusations were not true.
申請人指眾人在警署附近時，X有大聲說“唔好報警”，更有用口形向申請人說“對唔住”。申請人的立場是X的言行顯示X的指控並非真確。

The applicant maintained that although he signed on the policeman’s notebook, actually he had never said to the policeman anything like “half willing and half resisting” or “I know I was wrong”.  He said he was not aware that he had the right to engage a lawyer until the record in the notebook was completed.
申請人表示雖然他有在警員記事冊上簽名，但事實上他沒有向警員說過“半推半就”及“我知我唔啱”等說話。申請人指他是在記事冊記錄完畢後才知悉自己有權聘請律師。

Findings as to legal issues made by the trial judge
原審法官就法律議題作出的裁決

The trial judge found that the messages which X sent through WhatsApp to the man surnamed Lau, the man surnamed Cheng and the man whose name was unknown, which said that the applicant had done “outrageous things” to her and raped her were recent complaints and were admissible as evidence.  The trial judge held that even though X did not make the complaints until four days after the incident, in the circumstances of this case the complaints were made when the first reasonable opportunity arose, and that therefore the requirement of “recent” was fulfilled.
原審法官裁定X在2012年8月16日以WhatsApp發給劉姓、鄭姓和一名不知名男子的短訊，指申請人“亂嚟”及強姦她屬“近期投訴”，可以呈堂為證。原審法官指出雖然X的投訴是在事發後4天才作出，但以案件的背景而言，X的投訴是在首個合理機會出現時作出，故符合法例的“近期”要求。

The trial judge considered that the applicant, apart from relying on the ground that X consented to have sexual intercourse with him as his defence, had also attacked the character of X and the policeman, which included the allegations that X was a promiscuous girl and had undergone abortion/ abortions before and the complaints that the policeman falsely testified that he had said things like “half willing and half resisting” and “I know I was wrong”, and recorded such things in his police notebook for the purpose of framing him.  For this reason, the trial judge granted the prosecution’s application for disclosing the applicant’s conviction record to the jury.
原審法官認為申請人除了提出X是同意和他性交的答辯理由外，更有評擊X和警員的品格，包括指X濫交及曾墮胎，亦指警員假稱他有說過“半推半就”，“我知我唔啱”等說話，並將該些說話記錄在警員的記事冊內來誣告他。因此原審法官批准控方的要求，向陪審團披露申請人的犯罪記錄。

The trial judge also found that the unusual way in which X behaved within the few days after the incident amounted to evidence of distress, and that it was necessary for him to give the jury directions as to evidence of distress.
原審法官亦認為X在事發後數天內表現的不尋常行為構成“困擾證據”(evidence of distress)。因此，他有必要向陪審團作出“困擾證據”指引。

Directions given by the trial judge to the jury
原審法官向陪審團的指引

The trial judge explained at great length to the jury the legal principles relevant to the charges and repeated to them in detail the evidence given by the two sides.  He also gave them guidance concerning recent complaint, the applicant’s criminal convictions, the statement made by the applicant to the policeman under caution and evidence of distress.  In respect of the evidence of distress, he said this to the jury:
原審法官非常詳細地向陪審團解釋和控罪有關的法律原則，並詳細地向他們覆述控辯雙方的證據。原審法官亦有就“近期投訴”、申請人的犯罪記錄、申請人在警誡下向警員說過的話和“困擾證據”引導陪審團。就“困擾證據”，原審法官對陪審團說:

“Alright, (X)’s mother gave evidence that within the few days before 16 August (X) was moody.  She hurled angry words at others, threw things and shut herself away; that’s why her mother checked the contents of her WhatsApp.  Please pay attention. If you accept her mother’s description, that is to say, (X) was in a distressed condition, when you consider whether you should accept that she was in such a distressed condition, you should consider several factors.  Distressed condition is in the same position as recent complaint.  Neither of them can prove rape directly, whether there was or wasn’t rape.  However, when you consider whether (X) is credible, you can take her distressed condition into account.  Well, should the distressed condition of (X) give you -- should you accept this condition? You should consider these factors. Concerning (X)’s distressed condition, first, was her distressed condition feigned; and whether the alleged rape was the only cause of such condition.  Perhaps (X) felt that she should not have sexual intercourse with the defendant; perhaps she was afraid that she would be pregnant; perhaps she did not consent to the sexual intercourse; and perhaps there are other possibilities.  You should consider all the evidence in order to decide whether her distressed condition was only referable to the alleged rape, which was the only cause.  If you consider that it was a show made by (X), or that there were other causes of her distressed condition, then you should disregard her distressed condition.  If you are satisfied that her condition was not feigned, and that the alleged rape was the cause of her condition, then you can take such condition into account.  In considering whether (X) is credible, you can take this evidence into account, because this evidence shows that (X) was consistent in her accusations against the defendant.  As to how much weight you should give to her distressed condition, this is for you to decide.”
“好喇，(X)嘅母親就提到(X)喺8月16號之前嘅幾日佢情緒不穩嘅，就鬧人喇、掟嘢喇，匿埋喇咁，所以佢媽媽先至去查嗰個WhatsApp嘅內容嘅。大家要留意喇，如果你哋接受佢媽媽嘅描述，即係話(X)出現咗一啲困擾嘅神態喇，喺考慮是否接納呢個困擾神態嘅時候，大家應該考慮幾點，因為困擾神態同嗰個新近申訴同樣，唔可以直接去證明強姦，有抑或冇強姦，但係係喺你哋考慮(X)可唔可信嘅時候，你哋可以考慮呢個困擾嘅神態嘅。好喇，咁究竟(X)呢個困擾神態應唔應該畀你，你哋應唔應該接納呢？咁大家應該考慮幾點。(X)嘅困擾神態，第一，就係(X)嘅困擾神態係咪假裝嘅。強姦呢件事係咪導致(X)出現呢個困擾神態嘅唯一原因。因為(X)覺得自己唔應該同被告人性交喇，怕懷孕喇，亦都可能唔同意性交喇，又或者有其他可能性嘅，咁大家應該考慮全部嘅證據去決定究竟呢個困擾神態係咪源自嗰個強姦嗰件事嘅唯一原因。如果你哋認為(X)係假裝嘅，或者有其他原因導致佢困擾嘅神態嘅，咁你哋就唔好考慮呢個困擾神態喇。如果你哋確信(X)唔係假裝嘅，而佢強姦嗰件事係導致佢有呢個困擾嘅神態嘅話，咁你哋就可以考慮呢一樣嘢。當你哋考慮(X)可唔可信嘅時候，你哋可以考慮呢部分嘅證據，因為呢個證據顯示(X)係對被告人嘅指控係前後一致嘅。咁就至於你哋畀幾多比重呢一個困擾神態呢？咁呢個你哋自己決定喇。”

In relation to what the applicant said to the policeman under caution, the trial judge told the jury:
就申請人在警誡下向警員說過的話，原審法官對陪審團說:

“Alright, I go back to his oral reply.  Even if you are sure that his reply is reliable, you still have to see whether there are any other reasons which will make you suspect that the content of this oral reply does not represent the fact, that is to say, it is not true, that is, it may be just nonsense uttered by the defendant or the product of some unidentified cause.  Remember, you must be sure that this oral reply is true before you can rely on it as evidence.
“好喇，再講番嗰個口頭回應喇，如果你哋肯定嗰個回應係可靠嘅，你哋仍然需要睇睇有冇其他嘅原因令你哋懷疑呢個口頭回應嘅內容不是事實，即係話唔係真嘅。即係可能係被告人亂講或者咩嘢嘅啫，記住，你哋必須肯定呢個口頭回應係真嘅，先至可以倚賴佢要嚟做證供。

Well, if you accept the defendant’s reply and the record in the notebook, there is still one thing you must consider, that is, what exactly is the meaning of that statement?  Did ‘half willing and half resisting’ mean that the defendant denied raping her, or did ‘half willing and half resisting’ showed that he was not sure whether (X) consented?  You should consider this carefully.  At the final part of his reply the defendant said that he knew he was wrong.  You, yourselves, read the whole of his statement.  At the end he said ‘I know I was wrong’.  He knew he was wrong; what does that mean?  You must read the whole statement before you make your decisions.  The most important thing is that you should bear in mind the three stages: First, you must first decide whether the defendant did say that.  Second, does the defendant have any evidence which shows that he made this statement as a result of certain interference or influence, or because he had no lawyer?  If he has such evidence and if you think what happened might be like that, then you should not accept this statement.  Further, finally, if you consider that the defendant did say that and that it was not said as a result of any influence, you must still decide whether the content of this statement is true.  Well, if it is true, you can accept it as evidence.”
好喇，如果你哋接受被告人嘅回應，同埋記事冊嘅紀錄嘅話，你哋仍然要考慮一樣嘢喎，就係究竟嗰句嘢係點解呢咁。半推半就係咪表示被告人否認強姦呢？抑或半推半就係表示佢唔肯定(X)係咪同意呢？你哋應該自己仔細咁樣去考慮。被告人喺回應嘅最後面就講話知道唔啱嘅，大家睇晒成句，你哋自己，最嬲屘佢話我知唔啱嘅。咁佢知唔啱又係咩嘢意思呢？咁大家要睇晒全句先至去決定。不過最重要嘅就係大家應該記住嗰三個階段，第一，首先要決定被告人有冇講先。第二，被告人有冇一啲證據證明被告人係受干擾，或者受影響，或者因為冇律師先至講呢句說話呢？如果有嘅話，你哋覺得可能係會咁嘅呢，就唔應該接受呢句說話喇。另外，最後就係如果你哋認為被告人有講，亦都冇受到任何嘢影響先至講，你哋仲要決定究竟佢講呢句嘢嗰個內容係咪真嘅。好喇，如果係真嘅，你哋可以接受為證據喇。”

Grounds of appeal
上訴理由

Mr Liu put forward five grounds of appeal; four of which concern legal issues and one concerns the facts.  The four grounds of appeal which concern legal issues are as follows:
廖‍大律師提出五項上訴理由，四項涉及法律議題;另一項則和事實有關。四項涉及法律議題的上訴理由如下:

“(1)The trial judge should not have regarded the complaints which X made through WhatsApp to a man surnamed Lau, a man surnamed Cheng and a man whose name was unknown as recent complaints, because their identities had not been confirmed and they had never come to court to testify.  Mr Liu emphasized that it was only after X’s mother discovered X and the applicant had sexual intercourse that X made the complaints.
(一)原審法官不應視X在2012年8月16日以whatsapp向劉姓、鄭姓和一名不知名男子作出的投訴視為“近期投訴”，原因是他們的身份未被確認而他們亦沒有出庭作供。廖‍大律師強調X是在其母親發現她和申請人發生性行為後才作出投訴的;

(2)The trial judge erred in allowing the prosecution to disclose the applicant’s criminal record to the jury.  Mr Liu stressed that since the issue of this case was whether X consented to sexual intercourse with the applicant, the applicant was entitled to assert that X voluntarily had sexual intercourse with him and use it as his defence without putting himself at risk that evidence about his character would be disclosed.
(二)原審法官錯誤容許控方將申請人的犯罪記錄向陪審團披露，廖‍大律師強調案件的爭議是X是否同意和申請人性交，因此申請人有權以X是自願和他性交作為答辯理由而無需冒其品格遭披露的風險;

(3)The trial judge did not give proper or sufficient directions to the jury as to the evidence of distress.
(三)原審法官沒有恰當或充分地就“困擾證據”向陪審團作出指引;及

(4)The trial judge did not give proper or sufficient directions to the jury as to the statement made by the applicant under caution.
(四)原審法官沒有就申請人警誡下的說法向陪審團作出恰當或足夠的指引。

As to the factual issue, Mr Liu contended that X’s evidence against the applicant was not credible, and that there were lurking doubts in the prosecution case.
就事實議題，廖‍大律師力稱X指控申請人的證供不合信，故控方案情有潛在疑點。

Mr Liu pressed the point that after X was raped by the defendant the first time, she not only took a rest together with the defendant, but also smoked a cigarette/cigarettes with him together.   When Madam Wong telephoned her, she did not make any complaint and further, she went out with the applicant as usual.  When they met Madam Wong, they even went shopping together.  In the course of doing these things, she did not display any distressed condition.  Mr Liu also submitted that X had strongly objected to her mother’s calling the police.  Mr Liu argued that all such behaviour of X was inconsistent with her evidence against the applicant and that therefore his convictions on the two counts were unsafe and unsatisfactory.
廖‍大律師強調X指遭申請人第一次強姦後不但和申請人一起休息，更一起吸煙。當黃‍女士致電給她時，X沒有作出任何投訴，更如常和申請人外出，和黃‍女士會合後更一起購物，而期間X亦沒有表現困擾神態。廖‍大律師又強調X曾奮力反對母親去報警。廖‍大律師指X的種種表現都和她指控申請人的證言不符，因此針對申請人的兩項控罪的定罪是不安全及不穩妥的。

Discussion
討論

In a criminal case, a previous consistent statement made by a prosecution witness out of court unfavorable to the defendant is not admissible as evidence against the defendant.  However, in a rape case or a case involving indecency, a recent complaint made by the victim to someone after the commission of the offence is an exception, which is admissible as evidence to support the victim’s credibility and to rebut evidence from the defence that the victim consented to sexual intercourse or to intimate acts.
在任何刑事案件，控方證人在法庭外曾作出過針對被告人的“過往相符陳述”(Previous Consistent Statement)不能呈堂為證指控被告人。但在強姦或涉及猥褻性質的案件，受害人在事發後向別人作出的“近期投訴”(Recent Complaint)屬例外情況，可以呈堂為證以支持受害人的可信性，亦可作為反駁辯方指受害人同意性交或親暱行為的證供。

In rape cases and cases involving indecency, in order to be admitted as evidence, the recent complaint against the defendant must be made by the victim at the first reasonable opportunity after the offence.  In considering whether to admit the victim’s complaint as evidence, the judge is bound to look at all the circumstances of the case, including the victim’s background and her relationship with the defendant, before deciding whether the complaint was made by X at the first opportunity which reasonably presented itself (see HKSAR v Hung Wai Tak [2000] 4 HKC 641).
在強姦及猥褻性質的案件，受害人針對被告人的“近期投訴”若要被採納為證，必須是受害人在案發後首個合理機會出現時作出的。主審法官在考慮應否採納受害人的投訴為證時，必須將案件的有關情況考慮在內，包括受害人的背景、以及她和被告人的關係等因素，來決定投訴是否X在首次合理機會出現時作出(見HKSAR v Hung Wai Tak [2000]4 HKC 641 案)。

The court cannot overlook the fact that victims might need time before they can bring themselves to tell others what has been done to them and that some victims will find it impossible to complain to anyone other than a parent or members of their family (see R v Valentine [1996] 2 Cr App R 213); therefore, a complaint against the defendant can be admitted although it may not have been made at the first opportunity which arose after the offence.
法庭不能忽視受害人可能需要時間決定是否將事件告知他人，而部分受害人除了向父母或家庭成員外，不會向他人投訴(見R v Valentine [1996] 2 Cr App R 213 案)，因此針對被告人的投訴不一定要是受害人在事發後第一時間作出才能呈堂為證。

The applicant was a friend of X and her family members.  He often went to the flat to visit X and was very familiar with them.  X clearly said that at first she had no intention to complain to anyone about what the applicant did to her and was prepared to “grin and bear it”, because she feared that if her mother learned of the matter, she might kick her out to the street, and she also worried that her boyfriend /boyfriends might shun her if he/they knew that.
申請人是X和其家人的朋友，經常到該居所探望X，亦十分熟悉她的家人，X明確表示她原本沒有打算向任何人投訴申請人對她作出的行為，打算“硬啃”事件，原因是她害怕母親知悉事件後會趕她出街，亦害怕男朋友知悉事件後會不要她。

X made a clean breast to her mother and told the man surnamed Lau, the man surnamed Cheng and the man whose name was unknown about the matter only after her mother noticed that there was something strange in her mood and behaviour, checked her WhatsApp messages and subjected her to close questioning.
X是在母親發覺她的脾氣有異，及在查看她WhatsApp通訊記錄並追問她時，才向母親表白及將事件告訴劉‍姓、鄭姓及一名不知名男子。

In these circumstances, even though X’s complaints about the applicant’s conduct which she made to her boyfriend Lau, her boyfriend Cheng and the man whose name was unknown were not made immediately after the offence but were only made several days after the offence, her complaints still complied with the requirements concerning recent complaint and were admissible.
在上述情況下，雖然X向姓劉和姓鄭男朋友和一名不知名男子投訴申請人的行為並非是在事發後立刻作出，而是在事發後數天才作出，但該些投訴仍符合“近期投訴”的要求，可以呈堂為證。

In the circumstances of this case, the ruling made by the trial judge that the complaints against the applicant which X made to her boyfriend Lau, her boyfriend Cheng and the man whose name was unknown were made at the first reasonable opportunity which presented itself had a solid basis and was sound.  The trial judge had good reason to admit the complaints which X made to those three persons as recent complaints.
在本案的情況下，原審法官作出裁決，指X向姓劉和姓鄭男朋友和不知名男子作出針對申請人的投訴是在首次合理機會出現時作出是有根據的，亦是適當的。原審法官有基礎批准X向他們三人作出的投訴以“近期投訴”性質呈堂為證。

Another argument advanced by Mr Liu is that the evidence of recent complaint must be verified under oath by the recipient of the complaint, and that the complainant’s own evidence that she made the complaint, by itself without more, is not enough.  Mr Liu cited R v Kory White [1999] 1 AC 210 to support his argument.
廖‍大律師的另一論點是“近期投訴”的證供必須由接收投訴者在宣誓下作出相關的確認，而非單單由投訴者指自己有作出過投訴。廖‍大律師援引R v Kory White [1999] 1 AC 210 案支持他的立場。

Mr Liu highlighted the fact that at the trial the prosecution did not call X’s boyfriends Lau and Cheng or the man whose name was unknown to give evidence, and that therefore there was no evidence to verify the contents of X’s complaints to show that her complaints were consistent with her evidence.  Mr Liu’s position is that X’s complaints were no different from previous consistent statements which she made against the applicant, and could not be admitted as evidence of recent complaint.
廖大律師強調原審時控方沒有傳召X姓劉和姓鄭的男朋友和該名不知名男子作供，故沒有證據確認X投訴的內容，以證明她的投訴吻合她的證供。廖‍大律師的立場是X的投訴無異於她曾作出過針對申請人的“過往相符陳述”，不能以“近期投訴”性質呈堂為證。

Recent complaint is not to be used for proving whether a charge is established.  It is mainly used to show that the victim was consistent in her conduct or in what she said, so as to buttress the credibility of her evidence.
“近期投訴”的作用並非是要來證明控罪是否成立;它主要是用作顯示受害人的行為或說法一致，以加強她證供的可信性。

The court should scrutinize the contents of a victim’s complaints in order to decide whether her complaints are consistent with her evidence.  Generally, the recipients of the victim’s complaints must give evidence to describe in detail the complaints made to them by the victim, so that the court can determine whether the victim’s complaints are consistent with her evidence.
法庭理應審議受害人作出投訴的內容，以決定她的投訴和她的證供是否一致。一般情況下，接收受害人投訴的人必須作供，就受害人向他們作出的投訴詳細表述，以決定受害人的投訴和她的證供是否一致。

In Kory White, at page 215 G-H, Lord Hoffmann made the following comments:
Lord Hoffmann在上述Kory White 案判案書第215 頁G-H有以下評論:

“There are two well-known common law exceptions to this rule.  The first permits proof of complaints in sexual cases.  If a complaint is made at the first reasonable opportunity after the offence, it may be proved in evidence to show the complainant’s consistency and to negative consent.  But for this purpose it is necessary not only that the complainant should testify to the making of the complaint but also that its terms should be proved by the person to whom it was made.  If, as in this case, the recipients of the complaints do not give evidence, the complainant’s own evidence that she made a complaint cannot assist in either proving her consistency or negating consent.”
“普通法下，此規則(過往相符陳述不能呈堂為證)有兩個為人熟知的例外情況，其一在性侵犯案件，容許投訴為證據。如投訴人在案發後首個合理機會出現時作出投訴，該投訴能顯示投訴人的一致性及反駁‘同意’。但條件是不但要投訴人作供表示有作出過投訴，其內容亦要由接受投訴的人證實。當如本案情況接受投訴者沒有作供，投訴人指她有作過投訴的證供不能對她的一致性或反駁‘同意’等議題有幫助。”(非官方翻譯)

There were unusual circumstances in the present case.  The complaints which X made to her boyfriends Lau and Cheng and to the man whose name was unknown were not oral complaints, but were sent through WhatsApp.  Mr Liu accepted that X did send those messages to them; therefore, X’s complaints were recorded in text form and such text record could assist in proving the consistency of her evidence or rebutting the allegation that she consented to the sexual intercourse.
本案情況特殊，X向姓劉和姓鄭男朋友和不知名男子作出的投訴並非以口頭作出，而是透過WhatsApp傳送。廖‍大律師同意X確有向他們發出過該些訊息。因此X的投訴有文字記錄，而該些文字記錄亦和對X證供的一致性或反駁“同意進行性交”等議題有幫助。

Even if X’s boyfriends Lau and Cheng and the man whose name was unknown had come to court to testify, at most what they would have said was a repetition of the WhatsApp messages which X sent to them.  Their evidence would not add anything to bolster the consistency of X’s evidence or to negate any evidence about consent.
即使X姓劉和姓鄭的男朋友和該名不知名男子出庭作供，他們最多亦只能覆述X發給他們的WhatsApp內容。他們作供亦不能額外加強和X證供的一致性或反駁和“同意”有關的證據。

That being so, not calling X’s boyfriends Lau and Cheng and the man whose name was unknown to give evidence had no influence on the relevant issues, nor did it constitute a reason for objecting to the admission of X’s complaints as evidence.  We reject this ground of appeal put forward by Mr Liu.
在上述情況下，沒有傳召X姓劉和姓鄭的男朋友和不知名男子出庭作供對有關議題沒有任何影響，亦不構成反對採納X的投訴為證據的理由。本庭不接納廖‍大律師提出的這項上訴理由。

Mr Liu argued that X’s complaints to her two boyfriends and to the man whose name was unknown that she was raped by the applicant were not made on her own initiative nor were they made spontaneously.
廖‍大律師力稱X並非主動及自發性向兩名男朋友及不知名男子投訴她遭申請人強姦一事。

Mr Liu’s argument is that X’s complaints to those persons were only the result of severe scolding and pressure from her mother, that they were not made at the first reasonable opportunity, and that therefore they should not have been admitted in evidence as recent complaints.
廖‍大律師的立場是X向他們三人投訴是在被母親強烈責備及施壓下作出的，而並非是在首個合理機會出現時作出，因此不應視為“近期投訴”而獲法庭採納為證。

This argument is only relevant to how much weight should be given to the evidence, but has no relevance to whether the evidence was admissible.
廖‍大律師的說法只是和證據的比重有關，而與證據應否呈堂為證無關。

Generally speaking, the prosecution cannot adduce evidence or say anything tending to show that the defendant is of bad character.  One exception is that in conducting the defence, the defendant casts imputations on the character of the prosecutor or the witnesses for the prosecution (see section 54(1) (f) (ii) of the Criminal Procedure Ordinance).
一般而言，控方不能提出證據或說法顯示被告人品格不良，例外之一是進行抗辯時，被告人有貶損檢控人員或控方證人的品格(見《刑事訴訟程序條例》第54(1)(f)(ii)條)。

Mr Liu submitted in empathetic language that since the applicant was accused of raping X and the issue was whether X consented to have sexual intercourse with him, in cross-examining X it was necessary for the defence to bring out the point that X had made love with the applicant many times before.  Mr Liu stressed that to put to X that she had made love with the applicant many times before was not an attack on her character, but was to prove that X voluntarily had sexual intercourse with the applicant.
廖‍大律師力稱申請人被指強姦X而案件爭議點是X是否同意和申請人性交，因此盤問X時，辯方需要帶出X曾多次和申請人性交的說法。廖‍大律師強調向X指出她曾多次和申請人性交，並非攻擊X的品格，而是要證明X自願和申請人性交。

Mr Liu’s position is that the putting to X that she had on a number of previous occasions made love with the applicant was so closely bound up with the applicant’s defence that it should not have been regarded as an attack on her character and should not have resulted in his bad character being disclosed to the jury.  Mr Liu cited Selvey v DPP [1968] 52 Cr App R 443 to support his position.
廖‍大律師的立場是提出X曾多次和申請人性交和申請人的答辯理由息息相關，因此不應視為攻擊X的品格而導致申請人的不良品格要向陪審團披露，廖‍大律師援引Selvey v DPP[1968]52 Cr App R 443 案支持其立場。

We agree that if the applicant had only said that X had made love with him on a number of occasions before in order to establish his defence that at the material time X voluntarily had sexual intercourse with him, then what he said should not have been regarded as an attack on X’s character.  However, the allegations which the applicant made against X far exceeded the above limit. In cross-examining X, the defence put to her that despite her tender age, she already had multiple sex partners and frequently had sex with them.  They also alleged that before the offence, she had made love with the applicant five times.  Besides alleging that she had sex with many men, the defence went further and added that after X had sex with different men, she would take morning-after pills and that she would seek abortion when she found herself pregnant.
本庭同意，如申請人只是提出X曾和他有多次性交，以支持事發時X是自願和他性交的說法，申請人的立場不應視為攻擊X的品格。但申請人向X提出的指控遠超出上述範圍。辯方盤問X時，向她指出她年紀輕輕，但已有多名性伴侶，並經常和他們性交，辯方亦指X在事發前曾5 次和申請人性交。除了指X和多名男子性交外，辯方更指X和不同男子性交後會服用“事後丸”，而在懷孕後會進行墮胎手術。

Although the defence did not say that in so many words, they did suggest to the jury that X was a promiscuous and sexually uninhibited girl who had many sex partners at the same time.  The defence intended to convince the jury that X would not mind having sex with the applicant, so as to reinforce his case that he had sexual intercourse with her with her consent.  We agree with the submission of Ms Lai, Senior Assistant Director of Public Prosecutions, who acts for the respondent, that the applicant’s allegations against X went beyond the permissible parameter referred to in Selvey. In fact, at the trial Mr Liu agreed that if he had accused X of being sexually promiscuous, it would certainly be an attack on X’s character.
辯方沒有明言，但有向陪審團暗示，X是一名濫交及性開放的女仕，同時段有多名性伴侶。辯方是想說服陪審團X不介意和申請人性交，以支持申請人是在X同意下和她性交的說法。本庭同意代表答辯人的高級助理刑事檢控專員黎‍婉‍姬的立場，指申請人對X的指控已超越了Selvey案所指的可容許的範圍。事實上廖‍大律師在原審時亦同意假若他有指控X濫交，則他必然有攻擊X的品格。

We are of the view that the defence had obviously attacked the character of X, and that the trial judge was also entitled to find that the applicant’s allegation that the policeman lied against him by saying that he had made the confession amounted to a move to blacken the policeman’s character.
本庭認為辯方明顯有攻擊X的品格。原審法官亦有權將申請人指警員說謊誣告他，指他有作出過招認，構成抹黑警員的品格。

All in all, we consider that the trial judge was entitled to exercise his discretion under section 54(1)(f)(ii) of the Criminal Procedure Ordinance to find that the applicant’s conduct of his defence was such as to involve imputations on the character of a witness for the prosecution and allow the prosecution to disclose the applicant’s criminal record to the jury to undermine his credibility.  There is no basis for us to disturb the decision made by the trial judge in the exercise of his discretion.
整體而言，本庭認為原審法官有權行使酌情權，根據《刑事訴訟程序條例》第54(1)(f)(ii)條裁定申請人進行抗辯時，有貶損控方證人的品格而批准控方向陪審團披露申請人的犯罪記錄，以打擊他的誠信。本庭沒有基礎更改原審法官行使酌情權的決定。

Mr Liu’s ground of appeal that the trial judge erred in allowing the prosecution to disclose the applicant’s criminal record is not established.
廖‍大律師指原審法官錯誤批准控方披露申請人的犯罪記錄的上訴理由不成立。

As correctly pointed out by Ms Lai, after both the prosecution and the defence closed their cases when the trial judge discussed with counsel of the two sides what directions on law should be given to the jury, he expressly said that he would give the jury directions about evidence of distress in relation to what Madam Wong observed as regards how X behaved within the several days after the offence.  His reason was that Madam Wong said in her evidence many times that X behaved strangely after the offence and that the defence had asked Madam Wong questions about X’s behavior.  Under cross-examination, Madam Wong said that X’s temper had turned “very bad” and had “hurled angry words” at her and X’s elder brother, and that for this reason she checked X’s WhatsApp messages and this matter was thus brought to light.
誠如黎‍專員正確指出，原審法官在雙方舉證完畢後與雙方律師討論向陪審團作出的法律指引時，已明確表示會就黃‍女士觀察到X在案發後數天的行為向陪審團作出“困擾證據”的指引，原因是黃‍女士作供時多次表明X在案發後行為有異。辯方亦有就X的表現向黃女士發問，在盤問下，黃‍女士表示X的脾氣變得“好差”，有“鬧”她和X的哥哥，而她亦因此去查看X的WhatsApp內容，才令事件曝光。

In these circumstances, the jury would most likely take into consideration how X acted and behaved within the several days after the offence; therefore, the trial judge had every reason and was duty bound to give the jury directions on evidence of distress, in order that they would not use such evidence in a wrong way.  At the trial, Mr Liu did not make any objection to the approach taken by the trial judge.
在上述情況下，陪審團極有可能將X在案發後數天的行為和表現考慮在內，因此原審法官有理由、亦有責任向陪審團作出有關的“困擾證據”指引，避免他們誤用該些證據。就原審法官的處理方法，廖‍大律師在原審時沒有提出異議。

Mr Liu repeatedly said in strong terms that X’s conduct after the offence was inconsistent with her claim that she had been raped by the applicant, and that the inconsistencies showed that her evidence was not credible.  In deciding whether X consented to the sexual intercourse, the jury certainly would take into account X’s conduct after the offence.  The jury had heard all the evidence and had listened to submissions from both sides.  They surely were well aware of the areas in her evidence which, according to the defence, defied rational explanation.
廖‍大律師重覆強調X在案發後的表現和她聲稱被申請人強姦一事不符，顯示她的證供不可信。陪審團在考慮X是否同意性交時，必然會將X在案發後的表現考慮在內，陪審團有聆聽過全部證供及雙方律師的陳述，他們對辯方指X證供不合理之處亦必會瞭如指掌。

In considering the probative value of evidence of distress, the jury must examine: (1) whether the distressed condition of the victim was genuine, and (2) whether there was a causal connection between the distressed condition and the alleged sexual offence (see HKSAR v Leung Chi Keung [2004] 7 HKCFAR 526).  The Court of Final Appeal held that when the judge gave directions to the jury on evidence of distress, he should ask them to consider the following:
在考慮“困擾證據”的舉證價值時，陪審團要考慮的因素是(一)受害人的困擾情況是否真確;及(二)受害人的困擾情況和聲稱的性罪行是否有因果關係(見HKSAR v Leung Chi Keung[2004]7 HKCFAR 526案)。終審法院裁定法官就“困擾證據”指引陪審團時，應要求他們考慮以下因素:

The jury must be satisfied beyond reasonable doubt:
(a)陪審團必須在毫無合理疑點下信納:

(1) that the complainant’s distressed condition was genuine, and
(一)申訴人感到的困擾情況屬實;及

(2) that there was a casual connection between the distressed condition and the sexual offence.  In other words, they must be satisfied that: (i) the distressed condition was not feigned or made up; and (ii) was only referable to the alleged sexual offence and not to any other cause.  In deciding on those matters, the jury must take into account all relevant circumstances.
(二)該情況與涉案性罪行有著因果關係。換句話說，他們必須信納: (一)困擾的狀況不是假裝或虛構出來;及(二)該狀況只能歸因於被指控的性罪行而非任何其他原因。陪審團就這些問題作決定時，必須考慮所有有關情況。

Where the jury is so satisfied, they could give such weight to the evidence of distress as is appropriate.  Weight is entirely a matter for them.
(b)假如陪審團如此信納，他們可向困擾證據給予適當的份量。給予多少份量，全由陪審團決定。

Where the jury is not so satisfied, they should disregard the evidence of distress.
(c)假若陪審團未能如此信納，他們不應理會困擾證據。

Where fantasy has been properly raised as an issue, the jury must not use evidence of distress to rebut a ground of defence based on fantasy.  If they believe that fantasy is a possibility, they cannot be satisfied of the required causal connection.
(d)假如被告人妥為提出“幻想”作為爭議點，陪審團絕不能運用困擾證據來駁斥以“幻想”為基礎的抗辯理由，若然他們相信事件確可能由申訴人憑空想象出來，他們便不能信納存在著所需的因果關係。

The directions given by the trial judge to the jury about evidence of distress met the requirements laid down in Leung Chi Keung.  We approve the directions.
原審法官就“困擾證據”向陪審團作出的指引符合Leung Chi Keung 案定下的要求，本庭予以認同。

The prosecution evidence was that the applicant said under caution, “I did do that, but we proceeded in a state of half willing and half resisting.  I know I was wrong.”  Since the applicant denied having said that, there was no other evidence which could help the jury to understand this statement.  They could only manage to understand the meaning of this statement on the basis of the arguments advanced by the applicant, the whole circumstances of the case and the applicant’s evidence.  Had the applicant been telling the truth in his evidence, ie from the beginning to the end, X consented to the sexual intercourse and acted in concert with him, then the situation which he described, namely “we proceeded in a state of half willing and half resisting” would not have existed.
根據控方證據，在警誡下，申請人說:「我係有做過，但係我哋係半推半就嘅情況下攪嘅，我都知我唔啱喇。」由於申請人否認有說過上述說話，因此沒有其他證據協助陪審團理解上述說話，而陪審團只能根據申請人的說法、案件的整體背景和申請人的證供來理解申請人的說話。假若申請人的證供屬實，X由始至終同意並配合和申請人性交，則不會有申請人所指的“我哋係半推半就嘅情況下攪嘅”。

The statement made by the applicant under caution was clearly a confession.  As to whether there was anything in his statement which was exculpatory, different people may have different views.  Based on the above analysis, it is not quite convincing to say that the phrase “half willing and half resisting” uttered by the applicant was exculpatory.
申請人在警誡下的說話，明顯構成招認。申請人的說話能否構成開脫罪責則屬見人見智。根據上述的分析，申請人所指的“半推半就”具開脫罪責的說服力不大。

In giving the directions to the jury, the trial judge told them clearly that first they should decide whether the applicant did in fact make the statement and that if he did, then they should decide whether what he said was true.  The trial judge reminded them that if they accepted that the applicant did say “half willing and half resisting”, they should consider whether the conduct of X would cause him to genuinely believe that she consented to the sexual intercourse.  The trial judge also directed the jury that they should consider the meaning of the whole statement made by the applicant under caution before they could decide whether the charges against him were established.
在引導陪審團時，原審法官有向他們表明他們先要決定申請人是否有說過有關說話，及如有的話，該說話的內容是否真確。原審法官有提醒陪審團假若他們接納申請人有說過“半推半就”等說話，X的行為是否會令申請人真誠相信她同意性交。原審法官亦要陪審團考慮申請人在警誡下說出的整句說話的意思，以決定針對申請人的控罪是否成立。

We consider that in respect of what the applicant said under caution, the directions given by the trial judge to the jury were adequate and fair.
本庭認為就申請人在警誡下所說的話，原審法官給予陪審團的指引是足夠及公平的。

Mr Liu repeatedly made lengthy submissions about areas in X’s evidence which he said were highly incredible, and on that basis argued that there were lurking doubts in this case.
廖‍大律師多次及大篇幅地指X的證供在多方面有極不合信的地方，以此來支持他指案件有潛在疑點的立場。

We must point out that whether X’s evidence was credible was entirely a question of fact and should be determined by the jury.  Whether X’s evidence was unreasonable, whether it was defective and how much weight should be given to it were all matters to be considered and decided by the jury.
本庭應指出X的證供是否合信，全屬事實問題，理應由陪審團決定。X證供是否不合理、是否有缺點、以及應給予她的證供多少比重屬陪審團要考慮和決定的事項。

At the trial, X gave evidence in great detail concerning her accusations against the applicant and had been subjected to thorough and minute cross-examination by the defence.  The jury must be taken to have knowledge of the defects and illogicalities in X’s evidence as pointed out by the defence.  If they had any doubt as to X’s accusations, they would have followed the trial judge’s direction and found the applicant not guilty.  Had they thought that the applicant’s story was true or might be true, they would also have found the charges not proven.
原審時，X有就她對申請人的指控詳細作供，亦有接受辯方詳細及精確的盤問。陪審團必然知悉辯方所指X證供的缺點和不合理之處。假若他們對X的指控有懷疑，根據原審法官的指引他們會裁定申請人無罪。假若陪審團認為申請人的說法是真的或可能是真的，他們亦會裁定有關控罪不成立。

A defendant who asks an appellate court to overturn a finding of fact made by the jury on the ground that there is some lurking doubt must convince the court that there is a substantial remaining doubt, thereby making the court uneasy about the conviction of the defendant.
被告人要以潛在疑點要求上訴法庭推翻陪審團的事實裁決，必須說服上訴法庭案件有重大餘下的疑點，令上訴法庭對被告人遭定罪一事感到不安。

In Tang Wai Tong & Another v R [1979] HKLR 479 Roberts CJ commented at pages 486-487:
前首席法官羅‍弼‍時在Tang Wai Tong & Another v R [1979]HKLR 479 案判案書第486-487 頁有以下評論:

“We think that the lurking doubt formula must be applied with great caution.  An appellate court, reading the papers are [sic] not seeing witnesses in the way that a jury does, must be cautious in imposing its subjective feelings for the conclusions reached by men and women who have had the advantage of seeing the witnesses and assessing their credibility.
“本庭認為潛在疑點的原則必須特別謹慎施行。上訴法庭只能靠閱讀文件行事，而欠缺陪審團能目睹證人作供的優勢，因此必須謹慎，不容許其主觀感覺取代一些有優勢目睹證人作供及評定他們可信性的男女所得出的結論。

In our view ‘lurking doubt’ means not an insubstantial doubt but a substantial remaining doubt.”
本庭亦認為，‘潛在疑點’並非指不大的疑點，而是指重大餘下的疑點。”(非官方翻譯)。

After thoroughly considering all the evidence in this case and having carefully examined and analyzed Mr Liu’s arguments, we hold that the jury was entitled to accept X’s evidence and rely on her evidence to find the applicant guilty of the two rape charges.  We do not find the decisions to convict the applicant unsafe in any way.  Accordingly, we refuse the application for leave to appeal against conviction.
本庭已詳細考慮過案件的全部證供，亦有小心考慮和分析廖‍大律師的論點。本庭認為陪審團有權接納X的證供，並根據她的證供來裁定申請人被控的兩項強姦罪罪名成立。對申請人被定罪的決定，本庭不覺有任何不穩妥之處，因此本庭不批准申請人就定罪提出的上訴許可申請。

Sentence
判刑

Rape is of course a very serious offence, which attracts a term of imprisonment of not less than 5 years, and if it is accompanied by aggravating factors, the sentence will be enhanced.
強姦當然是十分嚴重罪行，會導致不少於5 年的監禁刑罰，假若有加重罪責因素，判刑更會提高。

In sentencing the applicant, the trial judge placed emphasis on the following factors: X had been subjected to violence; the applicant made use of the trust which X and her family reposed in him to commit the offence; the applicant raped X two times within a short period of time without using a condom, and during the second time he even ejaculated inside her body.
原審法官判刑時強調X曾受暴力對待;申請人是利用X一家對他的信任而犯案;申請人更是在沒有使用避孕套的情況下，短時間內兩次強姦X，而第二次強姦X時，更在她的體內射精。

Any case of rape will involve a certain degree of violence.  The facts of the present case did not show that the violence which the applicant did to X was over and above the violence used in usual cases.  Except this point, the aggravating factors identified by the trial judge did exist in this case.
任何強姦罪行都會涉及某程度的暴力行為，本案案情不顯示申請人強姦X時採用的暴力超乎一般情況下所使用的暴力。除這點外，原審法官指出的加重罪責因素在案中確實存在。

Mr Liu criticized the trial judge for not calling for a victim’s impact report about X before sentencing.  The trial judge did not impose a more severe sentence on the applicant on the ground that the incident left any especially serious physical or mental effect on X, therefore his not calling for a victim’s impact report did not result in any prejudice against the applicant.
廖‍大律師投訴原審法官在判刑前，沒有先索取X的受害人衝擊評核報告。原審法官並沒有以事件對X造成特別的生理或心理遺害而加重申請人的判刑，因此原審法官沒有索取受害人衝擊評核報告並無對申請人造成不利。

The applicant knew X and her family members well.  Because of this, he was allowed to go to X’s home to visit her freely, and he took advantage of this opportunity to rape X at her home.  To a certain extent there was breach of trust, but it was not a case in which the applicant made use of his capacity as a senior family member or the guardian of the victim, or the capacity of someone who was entrusted with a certain responsibility, for example, a clergyman, an emergency services provider, a taxi driver or a police officer, to sexually attack X.  As far as this case is concerned, when compared with cases of a similar nature, the applicant’s breach of trust did not constitute a particular aggravating factor.
申請人熟識X和她的家人，並因此獲准隨意到X的家中探訪她。申請人利用機會在該居所強姦X，某程度上屬破壞信任，但申請人並非利用受害人的長輩或監護人身份或其他受託人身份，例如神職人員、緊急服務救護員、計程車司機或警察等身份去性侵犯X。以同類案件而言，申請人破壞信任一事，不構成特殊的加重罪責因素。

Ms Lai submitted that the applicant raped X two times, that his conduct corresponded to one of the features described in R v Millbery and others [2003] 1 WLR 546, namely repeated rape in the course of one attack, which justified a term of imprisonment of not less than 8 years.  We have some reservations about her view.
黎‍專員力稱申請人兩次強姦X，屬R v Millbery and others [2003]1 WLR 546 案所指的在同一襲擊過程中多次強姦受害人，理應導致不少於8 年的監禁刑期。本庭對黎‍專員的立場有所保留。

The applicant did not abduct X and hold her captive for a long period of time, nor did he, either alone or with others, raped X multiple times.  He did not commit any of the acts of rape identified in Millbery as examples or carry out anal intercourse by force.  The applicant raped X twice within a short time in circumstances where she did not put up any vigorous resistance.  We do not agree that in the circumstances of this case the applicant’s conduct amounted to repeated rape in the course of one attack as described in Millbery and called for the imposition on him of a term of imprisonment no less than 8 years’.
申請人沒有長時間拘禁X，亦沒有在期間親自或和其他人多次強姦X。申請人更沒有犯了如Millbery 案中列出的例子所指的強姦行為或強行肛交。申請人在短時間內在X沒有強烈反抗的情況下兩次強姦她，本庭不同意以本案的情況下，申請人的行為構成Millbery 案所指的，在同一襲擊過程中多次強姦受害人，因而要對他施以不少於8 年的監禁刑期。

In our judgment, this case is not a particularly serious one among similar cases.
本庭認為在同類案件中，本案並非屬特別嚴重的一宗。

We do not overlook the fact that at the time of the offence, the applicant was under 20 years old.  Although he had previous convictions, they were minor offences and he had a stable job.
本庭不能忽視犯案時，申請人不足20 歲。雖然申請人有犯案前科，但屬輕微罪行，而他亦有穩定職業。

The applicant had known X for over a year and all along they were in good terms and met frequently.  It is highly likely that he succumbed to the impulse at that juncture and committed this serious crime.
申請人認識了X超過一年，期間兩人關係融洽，亦經常會面，申請人極可能是一時不能控制情緒而干犯了涉案的嚴重罪行。

We hold that judging from all the aggravating factors featured in this case, the overall sentence of 7½ years which the applicant received was manifestly excessive, and that a more appropriate overall sentence should be 6½ years.
本庭認為以案件顯示的全部加重罪責因素，申請人被判的7 年半總刑期屬明顯過重，而較合適的總刑期應為6 年半。

For the above reasons, we grant the application for leave to appeal against sentence and, treating this hearing as the appeal proper, allow the appeal.
因此本庭批准申請人就判刑提出的上訴許可申請，並視其申請為正式上訴，本庭裁定申請人的上訴得直。

We uphold the 6 years’ imprisonment for the first count, but reduce the 7 years’ imprisonment for the second count to the same 6 years, and order that 6 months out of the terms for the two counts shall be served consecutively.
本庭維持第一項控罪的6 年刑期，但將第二項控罪的7 年刑期改為同是6 年刑期。本庭下令兩項控罪的刑期中的6 個月要分期執行。

The overall sentence to be served by the applicant is reduced from 7½ years to 6½ years.
申請人須服的總刑期由7 年半減至6 年半。

Ms Anna Lai, Senior Assistant Director of Public Prosecutions, of the Department of Justice, for the Respondent.
答辯人：由律政司高級助理刑事檢控專員黎婉姬代表。

Mr Liu Yuen Ming and Mr Poon Siu Bunn, assigned by the Bar Free Legal Services Scheme of the Hong Kong Bar Association, for the Applicant.
申請人：由香港大律師公會法律義助服務計劃委派大律師廖‍遠‍明及大律師潘兆斌代表。