Before Madam Justice Poon, the applicant (Lau Man Hin) pleaded guilty to 4 charges, including one count of procuring an unlawful sexual act by threats or intimidation, one count of unlawful sexual intercourse with a girl under the age of 16, one count of assault occasioning actual bodily harm and one count of criminal intimidation. For these charges, he was sentenced to imprisonment for 32 months, 8 months, 4 months and 12 months respectively. The judge also ordered that some of the terms of imprisonment were to run consecutively to each other, arriving at a total term of 56 months’ imprisonment.
申請人（劉文軒）在高等法院原訟法庭法官潘‍敏‍琦席前承認了4 項控罪，包括一項以威脅或恐嚇手段促致他人作非法的性行為罪、一項與16 歲以下女童非法性交罪、一項襲擊他人致造成身體傷害罪和一項刑事恐嚇罪，分別被判入獄32 個月、8 個月、4 個月和12 個月監禁。原審法官下令刑期部分分期執行，而得出56 個月的總刑期。

Mr Bruce Tse of counsel applied on behalf of the applicant for leave to appeal against the sentences. At the end of the hearing and having received the Training Centre report, we granted the applicant leave to appeal against the sentences and treating the hearing of his application as the appeal proper, we allowed the appeal, set aside the original sentences and substituted them with an order that he be placed in a Training Centre in respect of all charges. Our reasons are set out below.
申請人不服判刑，由謝志浩大律師提出申請，要求獲准就判刑上訴。經聆訊及收取過教導所報告書後，本庭批准申請人就判刑上訴，並視其申請為正式上訴，本庭裁定申請人上訴得直，並將其原判刑期撤銷，改以教導所命令作為全部罪行的判刑。以下是本庭的判案理由。

The facts of the case
案件事實

The victim of this case was born in September 1995. She was about 15 years old at the material time. She and the applicant studied in the same secondary school. They became lovers in May 2010 and had engaged in intimate sexual acts on numerous occasions. In mid-2011, they had quarrels over trivial matters and their relationship turned sour in early 2012. They often had quarrels and finally she revealed their relationship to her teacher, resulting in police investigation.
案件的受害人在1995 年 9 月出生，案發時約15 歲。受害人和申請人就讀同一中學，在2010 年5 月成為情侶，並多次有親密性行為。2011 年中，申請人和受害人因小事爭執，而兩人的關係更在2012 年初轉壞。兩人經常爭拗而受害人最終向老師透露兩人的關係，導致警方介入調查。

After investigation, the police confirmed that in August 2010, the applicant forced the victim to have sexual intercourse with him by way of inflicting harm to himself when visiting her home. Meanwhile, he slapped her and did not use a condom during the sexual intercourse.
警方調查後證實在2010 年 8 月，申請人到訪受害人的住所時，以自殘行為威迫受害人和他性交，期間申請人曾掌摑受害人，而性交時申請人沒有使用安全套。

On a day in December 2010, the applicant and the victim returned to her home and had sexual intercourse during which he did not use a condom.
2010 年 12 月某日，申請人和受害人返回她的住所，申請人和受害人性交，期間亦沒有使用安全套。

On a day in April 2012, the applicant visited the victim’s home. Meanwhile, he demanded that she remove all her clothes and stand up. Then, he kept pinching and twisting her arm(s) and inner thigh(s) for as long as 15 to 20 minutes, causing multiple bruises to her body.
2012 年 4 月某天，申請人到訪受害人的住所，期間申請人要受害人脫光衣服及站起來，申請人不停掐及扭受害人的大腿內側及手臂，過程長達15 至 20 分鐘，導致受害人身體多處有瘀傷。

When he was dating the victim, the applicant took 9 nude photographs of her, including 3 close shots of her breasts, 5 close shots of her private parts and one photograph showing sexual intercourse. However, the photographs did not show her face.
和受害人交往期間，申請人曾拍下受害人9 張祼照，包括3 張胸部特寫、5 張陰部特寫和一張顯示性交情況，但照片沒有顯示受害人的樣貌。

On 24 April 2012, the applicant sent a message to the victim to which a photograph of her naked breasts was attached. The message was “Send it to your mom, shall I?” After she had said “No”, he then responded, “How on earth could you say ‘No’?” and “You’re doomed.”
2012 年 4 月 24 日，申請人向受害人發出一條訊息，並附有一張顯示受害人胸部的祼照。訊息內容為“send畀妳媽咪，好唔好？”，受害人回應“唔好”後，申請人再回應“妳憑咩嘢唔好呀?”及“妳死梗呀”。

After arrest, the applicant admitted all the allegations.
被拘捕後，申請人承認全部有關指控。

The Applicant’s background and mitigation
申請人的背景及求情理由

The applicant was born on 14 October 1993. He was about 17 years old at the material time and had a previous clear record. He claimed that he had no idea that having sexual intercourse with the victim was unlawful. The Psychologist’s report said that he was unlikely to reoffend. According to the Psychologist, his violent conduct was due to his immaturity in handling gender relationship. Further, he had a wrong view that sex and love was extremely important, and his dictatorial behaviour resulted from his inability to properly control his emotion and sexual urges, coupled with his highly possessive and jealous nature.
申請人在1993 年 10 月 14 日出生，案發時約17 歲，沒有任何犯罪記錄。申請人表示不知悉和受害人性交是違法行為。心理醫生的報告書顯示，申請人重犯的機會不高。心理醫生認為申請人的暴力行為源自他處理兩性關係的方法不夠成熟，更誤以為性和愛情極為重要，而其專橫表現是因為他不懂得適當處理情緒和性衝動及有極強佔有慾和妒忌心所致。

The Probation report and the Training Centre report are both positive. The applicant’s academic performance is not bad and he is quite talented in sports. According to the Training Centre report, he is suitable for training in a Training Centre.
感化官和教導所的報告都屬正面。申請人學業成績不俗，而體育天份亦甚高。教導所報告認為申請人適合接受教導所的訓練。

The Judge’s reasons for sentence
原審法官的判刑理由

When passing the sentences, the judge stated that although the age difference between the applicant and the victim was only 2 years, he manipulated, controlled and influenced her in their relationship. The judge emphasized that the victim had already asked for a breakup one year after they had become lovers. However, the applicant threatened to commit suicide and even used violence on her and threatened her with her nude photographs. The judge commented that the applicant’s offences had profound adverse effect on the victim, traumatizing her physically and emotionally.
原審法官判刑時指出雖然申請人和受害人年齡差別只有兩年，但申請人在兩人關係中支配、牽制及影響受害人。原審法官強調，受害人和申請人成為情侶後一年已經提出分手，但申請人以死要脅，更對受害人施用暴力及用她的祼照要脅她。原審法官指出申請人的罪行對受害人有深遠的不良影響，令她身心受創。

The judge took the view that in sentencing him, the court must take into account the public disdain and abhorrence of the applicant’s offences and more weight should be put on deterrence rather than the rehabilitation of the applicant.
原審法官認為要考慮公眾對申請人所犯罪行的不恥及憎厭，亦要施以阻嚇性的判刑，而棄用給予申請人改過自新的判刑原則。

In the judge’s opinion, a total starting point of 7½ years’ imprisonment was appropriate. However, in view of the applicant’s guilty pleas and other mitigation factors, she reduced the sentences to 56 months’ imprisonment.
原審法官認為適當的總量刑基準為7 年半監禁，但因申請人認罪和其他減刑因素，而得出56 個月的判刑。

Grounds of Appeal
上訴理由

On behalf of the applicant, Mr Tse contended that the starting points adopted by the judge and the final sentences she passed were manifestly excessive and wrong in principle.
代表申請人的謝‍大律師指原審法官採納的量刑基準和最終的判刑屬明顯過重，亦屬原則性犯錯。

He argued that in view of the applicant’s previous clear record and background, etc, the judge should have attached more weight to the factor of rehabilitation instead of placing too much emphasis on deterrence.
謝‍大律師認為考慮到申請人的良好記錄、背景等因素，原審法官理應將申請人改過自新這因素給予較大比重，而非偏重於阻嚇其罪行。

He submitted that the judge was wrong to assume that the applicant threatened to send the victim’s nude photograph to her mother, and argued that the applicant deserved a more lenient sentence.
謝‍大律師指原審法官錯誤地認為申請人恐嚇受害人會將她的祼照向她的母親發送。謝‍大律師認為申請人值得被判處較輕的刑罰。

Discussion
討論

First of all, we should state that the main purpose of sentencing a young first offender of the age of 16 or 17, unless in very exceptional circumstances, is to give him a chance to rehabilitate himself. The court should not pass a deterrent sentence on a young first offender and ruin his life.
本庭應先指出，對一名16、17 歲的初犯青少年判刑時，除非情況極為特殊，否則法庭應給予被告人一次改過自新的機會作為主要目的。法庭不應對一名初犯的青少年處以阻嚇性的判刑，毀掉該名青少年的一生。

This is not a case where an experienced male adult toyed with a girl’s affections, manipulated her and used her as a means to gratify his own sexual urges or fulfil other inappropriate purposes.
本案並非是一宗富經驗的成年男士欺騙女童的感情，以操控該名女童，作為其涉慾工具或滿足其他不當目的的案件。

According to the Psychologist’s report, the victim came from a single parent family. Both her parents had to work long hours and no one took care of her. The applicant’s parents were sympathetic to her and allowed her to stay in their home after school for a long time, after which the applicant would accompany her home after dinner, so that there were opportunities for them to stay together for a long time.
根據心理醫生的報告書，受害人出自單親家庭，而其雙親要長時間工作而無人照顧她。申請人的父母同情受害人的處境，容許受害人放學後在申請人家中長時間逗留，包括晚飯後才由申請人送返家，令兩人有長時間相處機會。

At the material time, the applicant and the victim studied at the same secondary school and became lovers as they had got together for a long time. They even engaged in intimate acts out of love.
事發時，申請人和受害人在同一中學就讀，並因長時間交往而成為情侶，更在兩情相悅下，有親密行為。

We do not want to play down the seriousness of the applicant’s offences. He had sexual intercourse with a girl under 16 on many occasions over a long period of time. Meanwhile, he even used violence on her and threatened to harm himself and send her nude photograph to her mother. His offences were not minor.
本庭不想淡化申請人罪行的重要性。申請人長時間及多次和一名不足16 歲的女童性交，期間更向受害人動武並以自殘及聲稱會將受害人祼照寄給她的母親來威脅她。申請人的罪行不輕。

However, we do not think that the purposes of the applicant’s inappropriate conduct were to control the victim, deprive her of her freedom or achieve some corrupt goals. In our opinion, it was extremely likely that he acted inappropriately because he was obsessive about the victim and unwilling to lose her, and thus he committed some unlawful acts immaturely and irresponsibly out of jealousy and strong possessiveness.
但本庭認為申請人的不當行為，目的並非要控制受害人，亦並非為了達到一些腐化及剝奪受害人自由之目的。本庭認為申請人的不當行為，極可能是因為他眷戀受害人，不願意失去她及在妒忌下而作出一些幼稚、不負責任及佔有慾強的違法行為。

The above view is countenanced by the Psychologist. Although the applicant’s offences are serious, the present case is of a less serious nature when compared with other similar cases.
上述看法，獲心理專家認同，申請人的罪行雖然嚴重，但屬同類案件中較為輕微的一宗。

The applicant is young and has a previous clear record. He was not yet 17 at the material time. His academic performance is not bad and he is excellent in sports. We are of the view that he should be given a chance to rehabilitate himself.
申請人年輕，無案底，犯法時不足17歲，他讀書成績不俗，運動成績更優越。本庭認為應給予申請人機會改過自新。

Having considered the Training Centre report, we think that it is appropriate to sentence the applicant to a Training Centre for training, so that he can return to the right track and start afresh.
考慮過教導所報告書後，本庭認為適當的處理方法是判申請人入教導所，接受訓練，令他能重回正軌及重新做人。

Therefore, we grant the applicant leave to appeal against the sentences and treating the hearing of his application as the appeal proper, we allow the appeal, set aside the original sentences of 56 months’ imprisonment and substitute them with an order that he be detained in a Training Centre for appropriate training in respect of all charges.
因此，本庭批准申請人就判刑上訴，並視其申請為正式上訴。本庭判申請人上訴得直。本庭撤銷申請人原判的56 個月監禁刑期，改以下令他入教導所接受適當訓練，作為全部罪行的判刑。

Mr Bruce Tse, instructed by Betty Chan & Co and assigned by the Legal Aid Department, for the applicant
答辯人：由律政司署理助理刑事檢控專員黎劍華代表。(2014 年 3 月 26 日)

Mr Derek Lai AADPP, of the Department of Justice, for the respondent (26 March 2014)
由律政司署理高級檢控官梁育珩代表。(2014 年 4 月 10 日)

Mr Gary Leung ASPP, of the Department of Justice, for the respondent (10 April 2014)
申請人：由法律援助署委派陳嘉慧律師行轉聘大律師謝志浩代表。