Hon Cheung JA (delivering the reasons of 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 Applicant was charged with one count of rape, contrary to section 118(1) of Crimes Ordinance, Cap. 200. He was tried before Tong J sitting with a jury and was convicted of the charge by the jury by a majority of 5 to 2. The Applicant was sentenced to 7 years’ imprisonment. The Applicant applied for leave to appeal against the conviction. Having heard his application, this Court dismissed it. The Reasons for Judgment are as follows.
申請人被控一項強姦罪，違反《刑事罪行條例》（香港法例第200章）第118(1)條。案件經高等法院原訟法庭法官湯寶臣會同陪審團審理，陪審團以5比2大比數裁定申請人罪名成立，申請人被判處7年監禁。申請人就定罪提出上訴許可申請。本庭在聆訊後駁回申請，以下是本庭判案理由。

Facts of the case
案情

The Applicant was charged with raping the victim at his residence on 27 February 2008. This Court adopts the outline of the Defence’s and the Prosecution’s case as submitted by Mr. Suen Kam Hee, Counsel for the Applicant.
申請人面對的控罪是指他在2008年2月27日在他居所強姦受害人。本庭採用申請人代表律師孫錦熹大律師就控辯雙方案情的簡述。

Prosecution case
控方案情

The victim was a 19-year-old woman when the incident happened. She was educated to Form 4 and worked as a clerk. Two or three years before the incident, she came to know the Applicant on the internet. The Applicant, then 33, was a police constable who lived in the Disciplinary Force Quarters. They had phone conversations. On the day of the incident, the victim asked the Applicant to help her fix her electronic game machine. The Applicant told the victim to come to his residence which she did as scheduled. After the Applicant had fixed the victim’s electronic game machine, he demonstrated to her how to use it. At that time the victim was sitting on the sofa in the living room, the Applicant said it was cold so he covered himself with a quilt and slept in the sofa. He was sleeping behind the victim who continued to play electronic games. A while later, the Applicant embraced the victim’s waist with his hands, but she pushed him away. The Applicant then caressed her thighs, but she pushed him away again. The victim wanted to get up but the Applicant pulled her down.  The Applicant then fondled her breasts and other parts of the body over her clothes. The victim told him not to do so but the Applicant ignored her and went on to push her on the sofa, pressing against her with his legs. She wanted to push him away and turn around, but as the Applicant was truly very heavy (the Applicant was 6 feet tall and 100 kilograms in weight whereas the victim was petite), she was not successful. The Applicant forcibly kissed her neck and face. He also removed her bra. Then the Applicant carried her into the room and put her onto the bed. The victim wanted to leave but was pinned down by the Applicant. She was all along crying but she did not say anything. The Applicant pinned the victim down with his legs, removed her clothes as well as his own and kissed her body. The victim said no, but the Applicant told her not to be afraid. The victim wanted to push him away and to get dressed but could not do so because the Applicant was lying on top of her. The victim was all along crying. The Applicant inserted his fingers into the private parts of the victim and then he inserted his penis into her private parts. When the victim put up resistance, his penis fell out. The Applicant again inserted his fingers into the private parts of the victim, and then he inserted his penis. The victim felt a bit of pain. Then the Applicant ejaculated outside her body. During the whole course, the victim was all along crying and she also told the Applicant not to do it. The Applicant asked the victim why she cried, but she did not answer him. Afterwards, the Applicant went to the toilet to clean his body. The victim put on her clothes and when the Applicant came out of the toilet, she went in to phone her friend (PW2). But the victim was only crying over the phone and could not say anything. She therefore sent a message to PW2 to say that she “had been raped”. PW2 returned her call to ask how she was doing and they arranged to meet at the MTR. When the victim was about to leave, the Applicant said to her,
受害人在案發時是一名19歲的女子。她有中四教育程度，做文職工作，事發前兩三年，在網上認識申請人。申請人當時是33歲，任職警員，居住在紀律部隊宿舍。雙方亦有通電話。案發當日，受害人要求申請人幫助她修理她的電子遊戲機。申請人叫受害人到他家。受害人依約到訪。申請人替受害人修理好遊戲機後，向受害人示範使用。當時受害人坐在客廳的梳化椅上，申請人說他感覺冷，於是便蓋上被睡在梳化椅。他是睡在受害人的後面，而受害人繼續玩著她的遊戲機。過了一會，申請人用手攬著受害人的腰，但被她推開。接著，申請人又撫摸她的大腿，但亦被她推開。受害人打算起身，但被申請人拉低。接著，申請人隔著受害人的衣服撫摸她的胸部及身體其他位置。受害人叫他不要這樣做，但申請人沒有理會及更推她落梳化椅，用腿壓著她。她想推開申請人及轉身，但不成功，因為申請人的身體實在太重（申請人高6呎，體重達100公斤而受害人身體細小）。申請人強吻她的頸、面，及除去她的胸圍。接著，申請人抱受害人入房，放她在床上。受害人想離開，但被申請人按低。她一直在哭泣，但沒有說話。申請人用腳按著受害人，脫去她和自己的衣服及吻她的身體。受害人說不要，但申請人說不用怕。受害人想推開他及穿回衣服，但因為申請人伏在她身上，故此推不動他。受害人一直在哭泣。申請人用手指插入受害人的陰部，然後再次用他的陽具插入。受害人反抗，令他的陽具脫離。申請人再次用手指插入受害人的陰部，接著再把陽具插入，受害人感到少少痛楚。之後申請人在她的體外射精。在整個過程之中，受害人一直在哭泣，亦有叫申請人不要這樣做。申請人亦有問受害人為甚麼哭，但她沒有回應。事後申請人去洗手間清理身體，受害人穿回衣服及在申請人離開洗手間後，入內打電話給一名朋友（控方第二證人），但受害人只是哭泣，不能說話，於是便傳訊息「畀人姦咗」給第二證人。第二證人回電問候她及相約在地鐵見面。當受害人預備離開時，申請人對她說：

“Sorry, you may hit me or scold me. Don’t call the police. I’m married with a son. I can’t afford to lose my job.”
「對唔住，妳打我又好，鬧我又好，唔好報警，我結咗婚，又有仔，唔可以冇咗份工。」

The Applicant also asked her if she would ‘treat’ him as a friend. The victim said she did not know, but since the Applicant was blocking the doorway, the victim perfunctorily said ‘yes’ and left. While she was taking the MTR, the victim called another friend (PW4) to tell him that she had been raped and asked him whether she should report the matter to the police. PW4 indicated that she should call the police and told her not to cry. When the victim reached the MTR station, she called PW2. PW2 suggested that she should first notify her boyfriend (PW3). After PW2 and the victim met, the victim called PW3 to tell him what happened. Then the victim and PW2 went to make a report at the police station.
申請人又問她可否「當」他是朋友，受害人說不知道。但由於申請人擋著門，受害人便敷衍地說「當」，之後便離開。受害人在地鐵途中打電話給另一名朋友（控方第四證人）說被人強姦，問他應否報警。第四證人表示贊成，叫她不要哭。受害人到達地鐵站後致電第二證人，第二證人建議她先通知她的男朋友（即控方第三證人）。第二證人與受害人見面後，受害人致電第三證人向他說出事故。接著受害人與第二證人到警署報警。

When the victim gave evidence, she added that the Applicant performed oral sex on her and required her to perform the same for him. She also admitted that when they chatted over the internet and the phone, they had built up friendship. On the day of the incident, she voluntarily went up to the Applicant’s residence. When she was asked that if she was unwilling to have sexual intercourse, she would have had ample opportunity to escape, shout, flee or resist. The victim explained that she did not do so because she was restricted by the Applicant whom she regarded as a friend, and that the Applicant should know that it was wrong for him to do so. The victim agreed that the Applicant neither used violence on her nor threatened her. She also agreed that in her witness statement to the police, she did not mention that the Applicant performed oral sex on her or that she started crying when she was on the sofa.
受害人作供時補充說，申請人有替她口交及要求她替他口交。她亦承認雙方在網上及電話交談時，已經建立朋友感情。事發當日，是她自願上申請人的家。當被問及如果她不願意性交，她應有很多機會逃走、大叫或逃避反抗，受害人解釋是因為受制於申請人，視他是朋友，所以沒有這樣做，而申請人應該知道這樣做是錯的。受害人同意申請人沒有對她使用武力或者恐嚇她，她亦同意在給警方的證人口供內沒有提到申請人替她口交，或者她在梳化椅上已經開始哭泣的情況。

PW2, PW3 and PW4 confirmed the testimony of the victim. PW6 was a woman sergeant who testified that when a statement was taken from the victim, she was calm and gave a clear account of what happened. The victim was properly dressed at that time with no superficial injury and did not appear to be uncomfortable or frightened. The victim did not tell her that she started crying when she was on the sofa. The victim also mentioned that the Applicant had put his arm around her shoulders and she did not resist.
第二、三、四證人證實受害人的供詞。控方第六證人是一名女沙展，她說受害人在提供口供時態度平靜及清楚地講出事件。當時受害人衣著整齊，沒有表面傷勢或不舒服或驚慌。受害人亦沒有對她說在梳化椅上已經開始哭泣。受害人亦提及申請人曾經用手搭著她的膊頭，而她沒有抵抗。

Defence case
辯方案情

The Applicant elected to give evidence. He first regarded the victim as an ordinary friend but after the victim talked to him about some private matters and relationship problems, the Applicant took her as a bosom friend. He thought that she had a tender feeling toward him, so he asked her to come to his home. After he helped the victim to fix her electronic game machine, they played it together. He even grabbed her hands to teach her how to play it. The victim did not say or do anything to object or resist. The Applicant said that was a signal to indicate that he could go one step further. So he put his hands on her waist and shoulders. The Applicant still did not object or resist, so he went on further and slept behind the victim and touched her body with his hands. At that time the victim did not cry. She was simply shy and murmured, “Oh, no”. But her facial expression showed that she was not rejecting him. Then the Applicant carried the victim to his room and had sexual intercourse with her. The victim never put up any resistance. The Applicant said that if the victim cried or raised objection, he definitely would not have done it. When the Applicant carried the victim, she even put her arms on his shoulders. When they had sexual intercourse, not only did the victim raise no objection, she even spread her legs to let him in and they had the sexual intercourse in different postures. The Applicant said that he did not pin the victim down with his legs, and that should he have done so, it would be very difficult to have the intercourse. The Applicant said that after he ejaculated, he went to clean up in the toilet. When he came out, the victim had already dressed herself and showed no special facial expression. When the victim came out from the toilet, she asked the Applicant if he had any money. The Applicant said he did not have any. Then the victim turned around quietly and left hurriedly. The Applicant did not apologize to her and did not ask her not to report to the police. Throughout the whole incident, the victim never said that she did not want to have sexual intercourse with him and she never cried. After the victim left, he called her three times but the victim did not answer his calls. The Applicant emphasized that he had sexual intercourse with the victim with her consent. The Applicant said that if he had subdued the victim by force, there would be injuries or swellings on the victim. He denied that he had sexual intercourse with the victim knowing that she was not voluntary. He also denied that he was reckless as to whether the victim consented to the sexual intercourse and had the intercourse with her forcibly.
申請人選擇作供，他起初視受害人為普通朋友，但後來受害人與他講了一些私人和感情問題後，申請人便當她是知己。他認為受害人對他有好感，便叫她到他的家裡。他替受害人修理好遊戲機後，便一同玩遊戲機，他還捉著她的手教她玩。受害人沒有用言語或行動反對或反抗。申請人說這是一項訊息，表示他可以進一步行動。他於是把手放在她的腰和膊頭。申請人依然沒有反對或反抗，他於是便再提升行動，睡在受害人的後面及用手摸她的身體。當時受害人沒有哭泣，只是害羞地低聲說「唔好喇」，但受害人的表情不是拒絕他。接著申請人抱受害人入房，與她性交。受害人一直沒有反對，申請人說如果受害人有哭泣或反對，他一定不會這樣做。當申請人抱著受害人時，她還用手搭著他的膊頭。當雙方性交時，受害人不但沒有表示不滿，還張開腿讓他進入，及採用不同的姿勢進行性交。申請人說他沒有用腳按著受害人，如果有的話便很難性交。申請人說當他射精後，便去洗手間清理。當他出來時，受害人已經穿回衣服，沒有任何特別表情。當受害人從洗手間出來後便問申請人有沒有錢。申請人說沒有，受害人接著轉身靜靜地及急促地離去。申請人從沒有向她道歉，叫她不要報警。受害人由頭到尾都沒有說過不要和他性交，亦沒有哭泣。受害人離開後，他曾三次致電給她，但受害人沒有接聽。申請人強調他是在受害人同意的情況下與她性交的。申請人說如果他有武力制服受害人，受害人會有傷勢或腫痛。他否認他是知道受害人不願意性交，他亦否認罔顧受害人是否同意而強行與她性交。

First Ground of Appeal
第一上訴理由

The first Ground of Appeal is that Tong J did not follow the Judiciary’s standard directions when he directed the jury on the elements of the offence. When giving his directions to the jury, Tong J said that for convenience sake, he would suggest that they should adopt the following six steps in their deliberation of the verdict. However Tong J emphasized that it was only a suggestion and the jury could decide for themselves the appropriate way to reach the verdict. The six steps are listed as follows:
第一上訴理由是指湯法官沒有就犯罪原素根據司法機構的標準指引引導陪審團。湯法官在引導陪審團時說為了方便他們作出裁決，他建議採用以下六項步驟來考慮他們的判決，但湯法官重申這只是一項建議，陪審團可以用他們認為適當的方法去作出決定。該六項步驟如下：

“Firstly, if you believe the evidence of the defendant or you cannot rule out the possibility of what he said, you should return a not-guilty verdict. Although the defendant never said that he had verbally asked (the victim) if she agreed to the sexual intercourse, if the acts or response of (the victim) at that time were as what the defendant had said or described, it would be obvious that (the victim) had by her body language indicated that she consented to the sexual intercourse. Secondly if you don’t accept all the evidence given by the defendant, you have to rely on the part of his evidence that you accept to assess whether (the victim) consented to the sexual intercourse. Thirdly, if you don’t believe the evidence of the defendant at all, you cannot find the defendant guilty right the way. You still have to consider the prosecution evidence, mainly the evidence of the (victim), to decide whether the charge can be proved beyond reasonable doubt. Fourthly, if you don’t believe that (the victim) is a credible and reliable witness, you have to give the benefit of the doubt to the defendant even if you don’t believe the defendant either. The reason is that at the end of the day the prosecution fails to prove the charge beyond a reasonable doubt. Fifthly, if you accept that (the victim) is a credible witness and that her evidence is also reliable, you may consider on that pre-requisite whether (the victim) was really unwilling to have sexual intercourse, and that the defendant knew or was reckless as to whether (the victim) consented to the sexual intercourse. Sixthly, in any event, if you conclude that the defendant subjectively had the genuine belief that (the victim) consented to the sexual intercourse, or if you cannot rule out the possibility, you have to find the defendant not guilty.”
「…第一，如果大家相信被告嘅證供或者認為唔可以抹煞佢所講嘅可能性嘅話，大家就應該判被告無罪。被告雖然都冇話曾經開口問（受害人）是否同意性交與否，但如果當時（受害人）真係有被告所講被告所描述嘅行為、反應嘅話，咁好明顯（受害人）係已經用咗佢身體語言，表示咗佢係同意性交嘅；第二，如果大家唔接納被告所講嘅全部證供，咁大家就要基於你哋所接納佢所講嘅證供部分，去評定（受害人）係唔係同意性交；第三，如果大家完全唔相信被告所講嘅證供，大家都唔可以立即判定被告人有罪，大家要考慮控方嘅證據，主要就係（受害人）嘅證供是否能夠達到毫無合理疑點嘅水平；第四，如果大家唔相信（受害人）係可信可靠嘅證人，就算大家亦都唔相信被告，咁大家都要將疑點利益歸於被告，因為控方最終唔能夠將控罪證明到毫無合理疑點；第五，如果大家接納（受害人）係可信嘅證人，佢嘅證供亦係可靠嘅話，咁大家就可以基於呢一個大前提去考慮（受害人）是否真係唔願意性交；而被告知道或者係罔顧（受害人）嘅意願而同佢性交呢個問題喇；第六，無論點樣，如果大家結論認為被告喺主觀上係真誠咁相信（受害人）係同意與佢性交，或者係唔可以抹煞呢個可能性嘅話，咁大家都要判被告無罪。」

Mr. Suen submitted that it was not easy for the jury to remember those six steps. Unless they wrote them down, otherwise they would find it hard to understand the content and arrive at the appropriate verdict. Mr. Suen said that it was difficult to fully understand the crux and key issues within a short time. Those steps engaged forward and backward reasoning at the same time which would inevitably cause confusion. The jury would be left at a loss as to what to do and could not focus on the core issues. The standard jury directions referred to by Mr. Suen can be seen in the judgment of HKSAR v Tang Siu Fung & Another (CACC 418/2008, date of reasons for judgment: 25 January 2010), at paragraph 31:
孫大律師指出，陪審團是不容易記著這六個步驟，除非陪審團把它寫下來，否則他們根本是難以明白其內容而作出適當的裁決。孫大律師說，該六個步驟難於短時間完全理解關鍵及重心的問題。該步驟同時用正、反的方法，難免引起陪審團的混淆及無所適從，不容易集中思考核心問題。孫大律師所說的標準陪審團指引可見於香港特別行政區 訴 鄧兆峰與另一人，（CACC 418/2008，判案日期，2010年1月25日）第31段：

“Before you may convict the accused, you have to be sure of each of the following matters:
「你們必須先要肯定下列每項事情，才可以裁定被告有罪：

that the accused had sexual intercourse with Ms [X];
被告與[X]女士性交；

that at the time of that act of sexual intercourse, Ms [X] did not consent to it; and
性交時，[X]女士並不同意；以及

that at the time of the sexual intercourse either the accused knew that Ms [X] did not consent, or was reckless as to whether she consented to sexual intercourse. The accused was reckless as to whether Ms [X] consented to sexual intercourse if you are sure that the accused did not know and did not care whether she was consenting or not and carried on regardless. In other words, his state of mind was that he could not have cared less.
性交時，被告知道[X]女士不同意性交，或者罔顧她是否同意性交。若你們肯定，被告並不知道，亦不理會她是否同意，卻仍不顧一切繼續下去，換句話說，他當時的心態是根本毫不在乎的，那麼，被告便是罔顧[X]女士是否同意性交了。

If it is or may be the case that the accused believed that she was consenting, then he cannot be guilty of rape. It is not for the accused to prove that he believed that she was consenting; rather, it is for the prosecution to prove, so that you sure, that he did not believe that she was consenting to sexual intercourse. And what if he held that belief but was mistaken? If it is or may be the case that he held a genuine but mistaken belief that she was consenting, then you must acquit him. In deciding whether or not he believed or may have believed that she was consenting, you should have regard to the existence or absence of reasonable grounds for such a belief, and to all the surrounding circumstances. But the question must always be whether you are sure that he himself did not hold such a belief.”
若情況是，或者可能是：被告相信她是同意性交的，那麼，他的強姦罪名便不成立。被告無須證明，他相信受害人是同意性交的。控方必須證明，令你們肯定：被告不相信受害人是同意與他性交的。若被告只是因為誤會才相信受害人是同意與他性交的，那又會怎樣呢?若情況是，又或可能是被告真的以為受害人是同意性交的，但其實是他誤會了，那麼，你們便須裁定他無罪。你們決定被告是否相信，或者可能相信受害人是同意性交時，除了應該考慮是否有合理的理由，令被告相信如此外，還須考慮所有的周遭情況。問題始終是：你們是否肯定，被告本人其實並無這樣相信過。」

Mr. Suen submitted that the standard directions were simpler and easier to comprehend, and could help the jury to focus better on the issue as to whether the Applicant held the belief that the victim consented to the sexual intercourse. That was the fundamental issue in the present case. If Tong J had adopted the standard directions instead of the six steps put forward by him, the jury would be at a better position to arrive at the right verdict.
孫大律師指有關標準指引比較簡單及容易理解，及更能引導陪審團把焦點集中於申請人是否相信受害人是否同意性交。這正是本案的基本爭議點。若湯法官以標準指引代替他提出的六個步驟，陪審團更能作出一個正確的裁決。

Mr. Suen conceded that there was nothing wrong with the content of the six steps per se. We do not agree that the six steps set out by Tong J would complicate matters or confuse the jury. In fact the six steps mentioned by Tong J would often appear at different stages of a judge’s speech when he was giving directions to the jury. What Tong J did was merely to deal with the relevant directions together. The first three of the six steps concerned solely the Applicant:
孫大律師承認該六項步驟本身內容沒有錯誤。本庭不同意湯法官所列出的六項步驟是繁複或會令陪審團困擾。其實湯法官所說的六個步驟，往往是在法官指導陪審團的陳詞內不同的段落出現。湯法官只不過是將有關的指引集中處理而已。該六項步驟的頭三項步驟是完全涉及申請人：

Firstly, where the jury accepted the evidence of the Applicant in its entirety;
第一，陪審團是完全接納申請人的證供；

Secondly, where they only accepted part of the Applicant’s evidence;
第二，他們只是接納申請人的部份證供；

Thirdly, where they did not accept the Applicant’s evidence at all.
第三，他們是完全不接納申請人的證供。

Tong J gave directions to the jury as to what to do under those three scenarios. Such were the questions that members of the jury, being laymen without legal knowledge, would often encounter in their deliberation of the facts of the case.
湯法官向陪審員提出在這三個情況之下，他們應該如何處理裁決。這些問題通常亦都是陪審團作為沒有法律知識的人士在思考案情時通常會碰到的問題。

The fourth and fifth steps concerned the victim and the Applicant. The fourth step referred to the situation where the jury neither accepted the evidence of the victim nor that of the Applicant. In that case, it showed that the prosecution had failed to prove the offence up to the standard required, namely beyond a reasonable doubt.
第四、第五項步驟是涉及受害人及申請人。第四步驟是指若果陪審團不接納受害人的證供，亦不接納申請人的證供。在這情況下，這表示控方未能達到證明控罪沒有合理疑點的標準；

The fifth step referred to the situation where the jury believed the evidence of the victim. Under such circumstances, Tong J reminded the jury how they should approach the crux of the matter, namely whether the victim consented to the sexual intercourse.
第五項步驟是陪審團相信受害人的證供。在這情況下，湯法官提醒陪審團他們如何處理核心議題，即受害人是否同意性交。

Tong J reinforced again in the sixth step that if the jury accepted the subjective belief of the Applicant, they had to find him not guilty.
第六項步驟是湯法官再次重申如果陪審團接納申請人的主觀觀念，他們需要判申請人無罪。

Therefore, we do not think that there was any irregularity in Tong J’s directions which guided the jury to approach the facts by six steps. As for the first part of the standard directions, Tong J had directed the jury on the basis of the standard directions in the following terms:
故此本庭不認為湯法官指導陪審團使用六項步驟考慮案情有任何不妥之處。至於標準指引內的第一部份指引，湯法官已經根據該標準指引向陪審團作出以下的指示：

喺法律上，強姦嘅定義就係：(1) 任何男子與一名女子性交，而性交時該女子對此並不同意；(2) 當時該名男子知道女子不同意性交，或罔顧該女子是否對此同意。	“The legal definition of rape is that: (1) A man had sexual intercourse with a woman but she did not consent to it at the time of the intercourse; (2) At that time the man knew that she did not consent or was reckless as to whether she consented to the intercourse.
「

The law also requires that at a trial of an offence of rape, the jury when deciding whether a man believed a woman consented to the sexual intercourse had to take into account other relevant mattes, including whether the man had reasonable grounds to believe that the woman consented to the sexual intercourse.”
法例亦都要求喺強姦罪嘅審訊之中，陪審團如果須要考慮一名男子是否相信一名女子同意性交嘅話，則在考慮此事時，須顧及其他有關事項，亦須顧及該名男子是否有合理理由相信該名女子同意性交。」

Tong J clearly explained to the jury that the Applicant in the present case admitted that he had sexual intercourse with the victim, and that the jury should focus on whether the Applicant knew that the victim did not consent or was reckless as to whether the victim consented to the sexual intercourse. In this regard, Tong J gave further detailed directions:
湯法官已經明確地向陪審團說明，在本案申請人承認與受害人性交，而陪審團所需要集中考慮的是申請人是否知道受害人不同意性交，或者是罔顧受害人不同意性交。就這方面，湯法官向陪審團作出更詳細的指引：

“… As to whether (the victim) consented to the sexual intercourse and whether the defendant knew that (the victim) consented or that he knew that she did not consent to the sexual intercourse, you have to make a finding on the strength of the evidence. If at the end of the day you think that (the victim) consented to the sexual intercourse, or could have consented to it, then of course the offence of rape is not established. If at the end of the day you think that (the victim) did not consent to the sexual intercourse, but the defendant did not or might not know that she did not consent, then you cannot find him guilty.
「…至於（受害人）是否同意性交及被告人是否知道（受害人）同意或者不同意性交呢一方面，大家就要基於證據去作判斷喇。如果大家最後認為（受害人）係同意性交嘅話，或者係有可能係同意嘅話，咁呢個強姦罪當然不能成立。如果大家最後認為（受害人）不同意性交，但係被告唔知道對方係不同意嘅，或者有可能被告係唔知道嘅話，咁大家都不能將佢定罪。

When considering whether he was reckless, you have to be sure that the defendant at that time did not believe that (the victim) was willing, and that he did not care whether she was willing and proceeded to have sexual intercourse with her. But the important point is that even when the defendant did not have reasonable grounds to believe that (the victim) agreed to have sexual intercourse with him, if you think that he subjectively thought that (the victim) was willing to have sexual intercourse with him, or that there was the possibility that he had genuinely mistaken that she was willing, the offence of rape cannot be established. Perhaps I should repeat these two points.
各位喺考慮罔顧嘅時候，你哋必須肯定被告當時唔係相信（受害人）自願，卻毫不理會佢是否自願而同佢性交，但係重要嘅係，就算被告當時並冇合理嘅理由相信（受害人）同意與佢性交，如果各位認為被告主觀上真係以為或者有可能真係誤以為（受害人）係自願同佢性交嘅話，咁呢個強姦罪名就都不能成立嘅，我將呢兩點或者再講一次。

When considering whether he was reckless, you have to be sure that the defendant at that time did not believe that (the victim) was willing, and that he did not care whether she was willing and proceeded to have sexual intercourse with her. But the important point is that even when the defendant did not have reasonable grounds to believe that (the victim) agreed to have sexual intercourse with him, if you think that he subjectively thought that (the victim) was willing to have sexual intercourse with him, or that there was the possibility that he had genuinely mistaken that she was willing, the offence of rape cannot be established.”
喺考慮罔顧嘅時候，你哋必須肯定被告當時唔係相信（受害人）自願，卻毫不理會佢是否自願而同佢性交，但係重要嘅係，就算被告當時並冇合理嘅理由相信（受害人）同意與佢性交，如果各位認為被告主觀上真係以為或者係有可能真係誤以為（受害人）係自願同佢性交嘅話，咁呢個強姦罪名就都不能成立。」

As a matter of fact, the content of the two paragraphs of directions repeated by Tong J, namely ‘If the jury thinks that the Applicant genuinely held the subjective belief or that he might have the mistaken belief that the victim willingly had sexual intercourse with him, the charge of rape cannot be established’, was consistent with the content of the second part of the standard directions.
其實湯法官所重覆的兩段指引「如果陪審團認為申請人主觀上真是以為或者是有可能真是誤以為受害人是自願與他性交的話，在這情況下強姦罪名不能成立」的內容是符合標準指引第二部份所說的內容。

Although Tong J did not follow the second part of the standard directions to say that:
雖然湯法官沒有如標準指引第二部份所說：

“The defendant does not have to prove that he believed the victim consented to the sexual intercourse. It is for the prosecution to prove and satisfy you that the defendant did not believe that the victim consented to have sexual intercourse with him.”
「被告無須證明，他相信受害人是同意性交的。控方必須證明，令你們相信：被告人不相信受害人是同意與他性交的。」

But according to what Tong J previously said to the jury:
但根據之前湯法官向陪審團所說：

“It is a fundamental principle of our legal system that you have to presume the innocence of the defendant. In other words, it is for the prosecution to prove the guilt of the defendant and the defendant does not have to prove that he is innocent. As a matter of fact, the defendant does not have to prove anything. You have to be satisfied beyond all reasonable doubts that the defendant is guilty before you can convict him of the charge.”
「按照我哋法律制度嘅基本原則，各位必須假定被告係無罪嘅，即係話控方要證明被告有罪，而被告毋須證明佢係無辜。事實上，被告毋須要證明任何事情，各位必須要喺毫無合理疑點下，確信被告有罪，然後先至可以裁定佢有罪。」

In view of the Applicant’s subjective belief and the directions on the six steps as cited in the preceding paragraphs, we are of the view that Tong J did not have to mechanically repeat or repeat verbatim the content of the standard directions.
及顧及上文所引述的有關申請人主觀觀念及六項步驟的指引，本庭認為在本案湯法官是不須搬字過紙機械式地覆述標準指引的內容。

Second Ground of Appeal: Directions regarding a distressed victim
第二上訴理由：受害人困擾的指引

Tong J gave directions to the jury regarding a ‘victim being distressed’ after the incident:
湯法官對陪審團作出事發後「受害人情緒困擾」的指引，內容如下：

“… Members of the jury, you have also heard ‘the victim’ and her friends say that after the incident, she expressed her emotion by crying. Her behaviours could show that she was distressed. Such evidence might have evidential value in relation to the issue of the case. But when you consider such evidence or give weight to it, you have to decide two things beforehand: Firstly, whether the distressed condition of (the victim) was genuine, that is whether she really cried. Secondly, whether there was a causal relationship between her condition and the alleged sexual offence, that is whether the reason of her crying had anything to do with the alleged rape. If so, you may consider how to assess the value of the evidence of her distress and how much weight should be attached to it.”
「…各位陪審員，你哋亦都聽過（受害人）自己同埋佢啲朋友 都有提到，喺事發後有喊過呢個情緒嘅表現嘅。而佢咁嘅表現，可以話表示到佢係受到困擾，而呢一方面嘅證據對案中嘅爭議點可以有證據上嘅價值，但係大家喺考慮或者對呢啲證據給予比重嘅時候，大家先要決定兩點：第一，（受害人）感到困擾嘅情況是否屬實，即係話佢係唔係真係有喊；第二，該情況是否與被指嘅性罪行有著因果性嘅關係，即係話佢喊嘅原因是否與被強姦有關或者無關。如果係嘅話，大家就可以考慮一下如何去評定困擾證據嘅份量同埋比重喇。」

Mr. Suen cited the guidelines laid down by the Court of Final Appeal in Leung Chi Keung v HKSAR [2004] 7 HKCFAR 526 (paragraph 41) on the evidence of a distressed victim:
孫大律師引用終審法院在Leung Chi Keung v HKSAR [2004] 7 HKCFAR 526就受害人困擾證供的指引（第41段）：

(1)	陪審團必須在無合理疑問下信納：（一）申訴人感到困擾的情況屬實；及（二）該情況與涉案性罪行有因果關係。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，必須考慮所有相關情況。	“(1)	The jury must be satisfied beyond reasonable doubt (i) that the complainant’s distressed condition was genuine and (ii) that there was a causal connection between the distressed condition and the sexual offence.  In other words, they must be satisfied that (i) the distressed condition was not feigned and (ii) was only referable to the alleged sexual offence and not to any other cause.  In deciding on those matters, they must take into account all relevant circumstances.
「

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。	(2)	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.
(2)

假如陪審團未能如此信納，他們不應理會困擾證據。	(3)	Where the jury is not so satisfied, they should disregard the evidence of distress.
(3)

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像出來，他們便未能信納存在著所需的因果關係。」	(4)	Where fantasy has been properly raised as an issue, the jury must not use evidence of distress to rebut fantasy.  If they believe that fantasy is a possibility, they cannot be satisfied of the required causal connection.”
(4)

Mr. Suen submitted that when Tong J directed the jury on distress, what he said was inconsistent with the aforesaid directions by the Court of Final Appeal and was obviously inadequate. Tong J did not remind the jury that they had to be satisfied beyond a reasonable doubt before they could accept the evidence of the victim’s distress. If they did not accept such evidence, they should disregard it.
孫大律師指出湯法官在本案所給予陪審團有關困擾的指引，不符合上述終審法院的指引及明顯不足。湯法官沒有提醒陪審團需要在毫無合理疑點下接納受害人情緒困擾的證據。若他們不接納便應該不理會有關的證據。

This Court is of the view that a definitely better approach will be to adopt the guidelines of the Court of Final Appeal in full. But even if Tong J did not adopt the exact wordings, the contents of his directions were still consistent with the intent of the guidelines of the Court of Final Appeal. The first thing he told the jury was that when they considered what weight to be given to the evidence in question, they should first find that the two points mentioned by him were established, namely the distress was genuine and it had a causal relationship with the sexual offence in question. Apparently Tong J required the jury to first confirm the genuineness of the distress and its causal relationship with the rape offence before they could proceed to assess the value and weight of such evidence. That was also consistent with the guidelines of the Court of Final Appeal that if the jury was satisfied that the evidence was true and relevant, they could give appropriate weight to the evidence of distress, and the weight to be given was a matter for the jury.
本庭認為一個較完善的做法，當然是完全採納終審法院所提出的指引，但就算湯法官在本案並沒有採用完全同一樣的字眼，他所給予指引的內容亦符合終審法院的指引的原意。首先他向陪審團說，他們在考慮這些證據所應給予比重的時候，必須首先要裁定他所提出的兩點，即有關困擾是真實及與性罪行有關連的。明顯地湯法官是要陪審團首先確認有關的困擾是真實及與強姦有關連後，才可以去評定這些證據的份量及比重。這亦符合終審法院所說，假如陪審團作出信納這些證據是真實及有關連的，他們便可以就困擾證據給予適當的份量，而有關的份量是由陪審團自行決定。

Regarding the issue of ‘fantasy’ referred to in paragraph 4 of the guidelines by the Court of Final Appeal, we are of the view that the present case differs from Leung Chi Keung because no issue of the victim having fantasy arose in the present case. In that case a nine-year old school boy claimed that he was sexually molested by his Physical Education teacher. When making his final submission, the defence counsel said that the alleged offence could have been the fantasy of the victim. That issue did not arise in the present case. We do not agree that when Tong J dealt with the evidence of distress, he had to give directions on the question of fantasy as required in the case of Leung Chi Keung. Although Tong J mentioned in his directions to the jury that, in sexual offences, there were cases that despite the allegations of molestation, the truth was that the allegations were fabricated. But we do not think that Tong J was required to give directions on ‘fantasy’ simply because he had mentioned the above point. The direction given by Tong J on fabricated allegations was of general application in sexual offences, but as mentioned earlier, the core issue in the present case was whether the victim consented to the sexual intercourse. Therefore the possibility of the alleged sexual act being merely the victim’s fantasy did not exist in the present case.
至於終審法院指引第4段所說的「幻想」，本庭認為本案與Leung Chi Keung一案不同之處是本案沒有涉及受害人幻想的議題。在該案一名9歲男學生聲稱被他的體育教師性侵犯。辯護律師在結案陳詞提出，有關的指控可能是受害人的幻想。這情形在本案並沒有出現。本庭不同意湯法官在處理困擾證據時，需要就幻想一事向陪審團作出如Leung Chi Keung一案的指示。雖然湯法官在指導陪審團時說，在性犯罪案件，有些人雖然聲稱受到性侵犯，但其實是可能虛構的，但本庭不認為僅以這一點湯法官便需要給予「幻想」的指引。湯法官所說的虛構指控，是適用於一般性犯罪指引，但正如上文所說，本案的核心議題是受害人是否同意性交，故此案件不存在有關的性行為純屬是受害人幻想這個可能性。

In any event, if the jury in the present case accepted the evidence of the victim, they could rely on the evidence of her distress and attach appropriate weight to it.
無論如何，在本案如果陪審團接納受害人的證供，他們是可以引用她的困擾情緒而給予適當的比重。

Third Ground of Appeal
第三上訴理由

Mr. Suen submitted that Tong J did not give detailed directions to the jury in respect of the evidence that was favourable to the Applicant or the doubts in the case. Mr. Suen said:
孫大律師指湯法官沒有就對申請人有利的證據或疑點，詳細地向陪審團作出指引。孫大律師說：

When the Applicant was with the victim, he did not threaten or use violence on her, but she did not cry aloud, dodge, or put up strong resistance to stop the molestation by the defendant. Nor did she escape when she had ample opportunity to do so. That was a very important doubt. Her explanation was that she took him as a friend and did not do any of the above, and that he should have known that what he did was wrong and that he should not have knowingly violated the law. Her explanation was a contrived one. She was an adult with working experience and experience of sexual intercourse. When the Applicant touched her body, it was impossible that she did not realize that he was getting ready to have sexual contact with her. Given that she did not put up any strong resistance against the bodily contact by the Applicant, would the Applicant be led to think that she had no objection against having sexual intercourse with him? As a matter of fact, when questioned by the Judge, she agreed that she did not tell the Applicant directly that she did not consent to the sexual intercourse. Tong J neither made detailed analysis nor gave direction on a crucial doubt such as this.
申請人在與受害人相處的整個過程中沒有恐嚇她，亦沒有對她使用武力，但她卻沒有大叫，或逃避，或奮力反抗被告的侵犯，或有很多機會逃走而沒有逃走，這是一重要疑點。她的解釋是因為當他是朋友，所以沒有這樣做，而他應該知道這樣是錯的，不應知法犯法她的解釋十分牽強。她是成年女子，有工作經驗，有性交經驗，對申請人向她的身體接觸沒可能不領會到他是向她準備進行性接觸，她沒有強烈的反抗是否令申請人以為她不反對雙方的性行為。事實上，她在法官提問下同意沒有直接同申請人說不同意性交。這重要疑點上，湯法官沒詳細的分析和指引。

And during the sexual intercourse, for example when the Applicant performed the act of oral sex on her or when he changed his positions three times and penetrated her body without her consent, it would be really difficult to carry out or complete the sexual intercourse if she did not consent, co-operate or if she put up strong resistance. Again, Tong J neither made detailed analysis nor gave direction on a crucial doubt such as this.
而在性交過程中，如申請人對她作出口交的動作，在她不同意下以三次改變姿勢進入她身體，在她不同意不合作或強烈反抗下實在難以進行或完成性交。這重要疑點湯法官亦沒有詳細分析及指引。

The victim did not sustain any abrasion/injury on her body and there was no damage to her clothes, which showed that the Applicant did not forcibly have sexual intercourse with her without her consent or against her will. Tong J neither made detailed analysis nor gave direction on this point.
受害人的身體沒有任何損傷，她的衣物亦沒有任何損毀。這顯示申請人沒有在她不同意，和違反她的意願下強行向她進行性行為，湯法官沒有詳細分析及指引。

Under cross-examination, the victim said that the first person she called after the incident was not her boyfriend because she was worried that he might mind what had happened and would break up with her. However when she was giving statements at the police station, she sent a few highly explicit text-messages in which she did not seem to be sad, angry or upset at all. Her mood at that time was contradictory to her claim that she was all along crying during the rape. It was an important doubt and the relevant messages are as follows:
受害人被盤問時說事發後第一個電話不是打給男朋友，因為怕他會介意與她分手，但她在警署落口供期間卻發了幾個十分露骨的短訊。在這些短訊裏，受害人沒有流露絲毫的悲傷、憤怒或不安。這樣的心情和她稱在被強姦時一直哭泣，是令人覺得互相矛盾。這亦是一重要疑點。有關的短訊是：

‘Yes, saliva all over the body, he even told me to suck the sausage, I didn’t.’
『有嘅，成身都係口水，仲叫我食腸仔，我冇』，

‘Mm, the second time (I) got carried onto the bed’,
『唔，第二次畀人抱上床』，

‘Mm, after he raped me and asked me questions, (he) let me go’,
『唔，佢姦完，問完我嘢，咪畀我走』，

‘(I) know, it hurt so much when (I) was raped by him. When he was limp, he still wanted to insert it in. Luckily (I) didn’t get kissed by him’,
『知道了，畀佢姦好痛，軟咗又死都要放入去，好在冇畀佢錫到』，

‘He also said I was very smooth’.
『佢仲話我好滑』。

The Applicant, being a police officer, was well aware of the seriousness and consequence of an offence of rape. Would he commit this serious offence and bring disgrace and ruin upon himself for momentary pleasure? If he had the slightest doubt that the victim’s response might be negative, he would not have acted on impulse and committed this serious offence.
申請人作為一名警察，深知強姦罪行的嚴重性及後果。他會否因一時之快而犯上嚴重罪行，令他身敗名裂。若他有絲毫懷疑受害人的反應是負面的，他也不會如此輕舉妄動，招至此嚴重罪行。

The evidence put forward by Mr. Suen, including the evidence that was favourable to the Applicant or the evidence that was doubtful, was evidence that involved the victim. As a matter of fact, Tong J did remind the jury that when the defence was cross-examining the victim, it had challenged the content of her evidence in the witness box, and that there was discrepancy between such evidence and the statements she had earlier given to the police.  He also reminded the jury that the defence argued that the victim had committed criminal offences involving dishonesty on two previous occasions, and that she was not a naïve young girl who had not seen much of the world. Tong J reminded the jury in particular of the seven lies that the defence alleged the victim had made. He even reminded the jury of the defence’s submission as follows:
孫大律師所提出對申請人有利的證據或者控罪有疑點的證據，都是涉及受害人的證供。其實湯法官已經提醒陪審團，辯方在盤問受害人時，已經質疑她在證人台上證供的內容，及這些內容與她早前給予警方口供內容有差異。他亦提醒陪審團，辯方所稱受害人有兩次干犯涉及不誠實意圖的刑事案件，及她並非一個沒有見過世面的無知少女。湯法官特別提醒陪審團辯方所指受害人所說的七個重要謊言，他更提醒陪審團辯方以下的陳詞：

“… The defence also says that the underlying reasons of the (victim’s) lies were that she wanted to hide the fact that she indeed consented to the sexual intercourse. Apart from her lies outlined above, the (victim’s) behaviours also showed that she in fact consented to the sexual intercourse. For example, she had opportunity to escape but she didn’t, she could have cried out aloud but she didn’t, she could have attacked the defendant but she didn’t. The defence submitted that even if the (victim) is rather short and petite, she could still ‘rip and scratch’ the defendant. Common sense tells us that if the (victim) refused to co-operate, it would not be so easy for the defendant to go in and it would be even more difficult for him to change his positions three times. The defence submits that the (victim) in fact consented to the sexual intercourse. She simply changed her mind afterwards. She felt sorry for what she had done to her boyfriend and was regretful. And as the defendant refused to pay her, she went to report the matter to the police under her friends’ instigation. The defence submits that as far as this incident is concerned, the defendant’s version is the truth.”
「…辯方仲有講話，（受害人）講大話嘅背後，原因明顯係想遮掩佢其實係同意性交嘅呢個事實，除咗上述列出佢所講嘅大話之外，（受害人）嘅行為其實都顯示佢係同意性交嘅。例如係佢有機會走，但係冇走、可以大聲叫，但係佢冇大聲叫、可以襲擊被告，但係佢冇咁樣做。辯方話，當然佢嘅身材比較矮細，但係（受害人）都可以去『撕抓』被告人。而照常理嚟講，如果（受害人）係唔肯合作嘅話，被告係唔可以咁容易進入嘅，更加難以三次改變姿勢。辯方指出，其實（受害人）係同意性交嘅，只係事後變卦，覺得對唔住佢男朋友，所以後悔，被告又唔畀錢，所以佢先喺朋友嘅慫恿之下去報警投訴。辯方指出話，喺呢一件事情上，被告先至係講咗真話。」

‘You have to bear in mind that the defence emphasizes that you should see the facts of the present case from another perspective, namely what had not happened or occurred in the present case. The defence asks you to thoroughly consider the lack of superficial injuries on the (victim) as well as on the defendant.  Her clothes were not torn. She did not cry out aloud during the course and did not try to escape either. She did not have strong and lasting feelings of disturbance. Didn’t that show that she had in fact consented to the sexual intercourse? You should consider this carefully. Members of the jury, of course when I give such comments, I don’t mean to interfere your decision or verdict. The verdict is a matter entirely for you. I’m only suggesting one more perspective from which you may analyse the facts of the case.’
「大家要記得，辯方向大家強調過另一個角度去睇本案嘅事情嘅，就係本案中冇發生、冇出現嘅一啲情況。辯方要求大家去詳加考慮嘅，就係話（受害人）冇表面傷痕，被告都冇表面傷痕，（受害人）衣服冇破損，佢喺過程之中冇大叫，佢喺過程之中冇逃跑，佢亦都冇強烈同埋延續嘅不安情緒。呢啲係唔係就表示佢其實係同意性交呢？大家亦都要小心考慮喇。各位陪審員，當然，我提出呢啲嘅評語，唔係話想影響你哋應該如何去作決定，去作裁決，呢個係你哋嘅決定，我只不過係提出多一啲嘅角度，去畀大家去分析案情嘅啫。」

We are of the view that Tong J had given fair directions to the jury regarding the defence’s case, especially the parts that were favourable to the Applicant. We only need to give comments on two points of Mr. Suen’s submission. Firstly, the suggestion that the Applicant changed his position during the intercourse. The victim agreed that that did happen and that she had a chance to get up and leave. However the victim said that when she tried to get up and leave, she was pulled by the Applicant who stopped her from leaving. Therefore we do not think that any doubt arises from this part of the evidence. Moreover, in relation to the text-messages sent by the victim, the jury could read the content of the messages in the agreed photographs tendered by the prosecution and the defence. The victim also said that she drew an emotion sign to show her dislike in one of the messages. Such evidence was before the jury for their consideration.
本庭認為，湯法官已經公平地將辯方的案情，特別是有利申請人之處，向陪審團作出指引。本庭只需要就孫大律師陳詞的兩點作出評論。第一，有關申請人在進行性行為時改變姿勢的說法。受害人同意這個情形確實出現，而她當時是有機會起身離開的。但受害人說當她嘗試起身離開時卻被申請人拉著，阻止離開，故此本庭不認為這方面存有疑點。另外，有關受害人發出的短訊。陪審團在控辯雙方同意提交的相片上可以看到有關短訊的內容。受害人亦說，在其中一個短訊，她畫了一個表示不滿的表情符號。這些證據已在陪審團席前披露，這亦是可供他們考慮的證據。

Conclusion
總結

I am of the view that the jury directions delivered by Tong J were fair and just. Having heard all the evidence of the case, the members of the jury reached their verdict on the facts. We do not think that the verdict is in any way unreliable or unsafe. The application is therefore dismissed.
本席認為湯法官是對陪審團作出一個公正持平的指引。最終陪審團在聆聽所有證供後，作出一個事實上的裁決。本庭不認為有關的裁決有任何不穩妥或不安全之處。故此本庭駁回申請。

：	由律政司高級助理刑事檢控專員譚耀豪及高級檢控官程慧明代表。	Mr. Suen Kam Hee, instructed by Messrs. Samuel Ho & Co., for the Applicant.
答辯人

: 	由何廣榮律師事務所轉聘孫錦熹大律師代表。	Mr. William Tam, Senior Assistant Director of Public Prosecutions, and Ms Jasmine Ching, Senior Public Prosecutor, of the Department of Justice, for the Respondent.
申請人