Hon Cheung JA (giving the Reasons for Judgment of the Court):
上訴法庭法官張澤祐頒發上訴法庭判案理由書：

Charges
控罪

The applicant was charged with eight charges. After trial before Deputy District Judge Johnny Chan, the applicant was found guilty of six of them. The six charges were:
申請人被控八項控罪。案件經區域法院暫委法官陳仲衡審

The first charge: Conspiracy to defraud, contrary to common law;
理後，申請人被裁定其中六項控罪罪名成立。這六項控罪如下：

The fourth to eighth charges: Theft, contrary to section 9 of the Theft Ordinance.
第一項控罪：「串謀詐騙」罪，違反普通法；第四至第八項控罪：「盜竊」罪，違反《盜竊罪條例》第9條。

The applicant also pleaded guilty to the second charge, namely, a charge of furnishing false information, contrary to section 19(1)(b) of the Theft Ordinance, Cap. 210. He only pleaded guilty to the charge on the fourth day of the trial and he did not agree to the facts presented by the prosecution in relation to that charge. Deputy Judge Chan had to continue hearing evidence for that charge. At the conclusion of the hearing, Judge Chan rejected the applicant’s version.
申請人亦承認第二項控罪，即「提供虛假資料」罪，違反《盜竊罪條例》(香港法例第210章)第19(1)(b)條。他是在審訊的第四天才承認該控罪，但他不同意控方就該項控罪所提出的案情，陳法官需要繼續聆訊涉及該控罪的證供。經聆訊後，陳法官拒絕接納申請人所提出的版本。

Appeal against sentence
刑期上訴

Deputy Judge Chan sentenced the applicant to a term of imprisonment for 4 years and 6 months. The individual term of imprisonment imposed by Deputy Judge Chan on each charge was as follows: 18 months for the first charge; 38 months for the second charge; 12 months each for the fourth to sixth charges and the eighth charge; 8 months for the seventh charge. 10 months out of the term of imprisonment on the first charge were to run consecutively to the 38 months imposed on the second charge. The sentences imposed on the fourth to eighth charges were to run concurrently but 6 months out of them were to run consecutively to the terms of imprisonment imposed on the first and second charges.
陳法官判處申請人4年6個月監禁。陳法官就每項控罪所判處的個別監禁刑期如下：第一項控罪是18個月；第二項控罪是38個月；第四至六及第八項控罪各為12個月；第七項控罪是8個月。第一項控罪的10個月刑期與第二項控罪的38個月刑期分期執行。第四至第八項控罪的刑期同期執行，但其中六個月則與第一及第二項控罪分期執行。

The applicant applied for leave to appeal against the sentence. After hearing, we allowed the application and, treating the application as the appeal proper, altered the total term of imprisonment to 3 years and 9 months.
申請人就刑期提出上訴許可申請。經聆訊後，本庭批准申請，視申請為正式上訴及將總刑期更改為3年9個月監禁。

The applicant had originally also applied for leave to appeal against conviction but abandoned the said application on the day of the hearing. We dismissed the said application accordingly.
申請人原本亦就定罪提出上訴許可申請，但於聆訊當日放棄有關申請。本庭即席撤銷有關申請。

The prosecution’s case
控方案情

The first prosecution witness (“PW1”) was in the yarn business and operated a business called “Golden A Yarn Factory” (“Golden A”). The applicant and the third defendant in the case ran a business called “Tak Shun Weaving Factory” (“Tak Shun”). PW1 had business dealings with Tak Shun. In 1998, Tak Shun was wound up and closed its business. It owed Golden A some payments for goods in the region of over $1 million. The applicant was adjudged bankrupt by the court.
控方第一證人(‘第一證人’)從事紗線生意及經營「金A線廠」(「金A」)。申請人與同案的第三被告人經營「德信織造廠」(「德信」)。第一證人與德信有生意往來。1998年，「德信」清盤結業及欠下「金A」約逾$1,000,000的貨款。申請人被法庭頒令破產。

The first charge
第一項控罪

After Tak Shun was wound up, the applicant suggested to PW1 that they should enter into partnership to run another weaving factory, i.e. the “New Tak Shun Weaving Factory” (“New Tak Shun”), so that the applicant and the third defendant could make repayments to PW1 by means of the profits from the business. Since the applicant was a bankrupt, the second defendant in the case was invited to join as a shareholder of New Tak Shun to represent the interests of the applicant and the third defendant. The two other partners of New Tak Shun were PW1 and a Mr. Wong. After the inception of New Tak Shun, the applicant set up another business of the same name of “New Tak Shun Weaving Factory” (“fake New Tak Shun”) without the knowledge of PW1. The applicant deposited the cheques, which were given to him by the customers of New Tak Shun in favour of New Tak Shun for payment of goods, into the bank accounts of fake New Tak Shun. The amounts involved were approximately in excess of $300,000. PW1 went after the applicant. Subsequently, the applicant’s mother had to sell a property and repaid for the applicant a sum of about $290,000 to PW1.
「德信」清盤後，申請人提議與第一證人合夥經營另外一間織造廠，即「新德信織造廠」(「新德信」)，讓申請人及第三被告人可以生意的盈利來償還債款給第一證人。由於申請人是破產人士，故此同案的第二被告人被邀請成為「新德信」的股東，以代表申請人及第三被告人的利益。「新德信」的另外兩名合夥人是第一證人及另外一位黃先生。「新德信」成立後，申請人在第一證人不知情下設立另外一間同名的「新德信織造廠」(「假新德信」)。申請人將「新德信」客戶交給他作為支付「新德信」貨款的支票存入「假新德信」的銀行戶口，涉及的金額約逾$300,000。第一證人向申請人提出追究，後來申請人的母親變賣樓宇，替他償還約$290,000給第一證人。

The second charge
第二項控罪

After the incident of fake New Tak Shun came to light, New Tak Shun ceased its business. But during March and April 2000, the applicant again persuaded PW1 to establish another company which would be run by him and he would make use of its profits to repay the debts to PW1. The company was called “Kam Fook Garment Accessories Company Limited” (“Kam Fook”).
「假新德信」事件被揭發後，「新德信」停止營業，但在2000年3、4月期間，申請人再次說服第一證人成立另一間公司，讓他經營及以盈利來償還債款給第一證人。該公司名為「金福製衣配料有限公司」(「金福」)。

In November 2003, PW1 discovered that some amounts of money, which were deposited into Kam Fook’s account, came from two companies which had no business dealings with Kam Fook. PW1 found it suspicious and enquired of the applicant about it. The applicant had in fact sold goods in the name of Kam Fook to customers through those two companies. In order to hide the fact, the applicant showed PW1 some payment invoices issued to customers by Kam Fook, 21 of which contained some non-existent sales information, involving a total amount which approximately exceeded $1,300,000. The applicant had pocketed the money himself.
2003年11月，第一證人發現存入「金福」戶口的款項來自兩間與「金福」沒有生意往來的公司。第一證人因覺得有可疑，就向申請人查詢。申請人其實是以「金福」名義經這兩間公司把貨品賣給客戶，他為了隱瞞事件，向第一證人展示一些「金福」發給客戶的收款發票，其中的21張發票記載着不存在的銷售資料，總金額約逾$1,300,000。申請人將這筆錢中飽私囊。

Regarding the second charge, the applicant admitted that the relevant invoices were false. But he claimed that those invoices were provided to PW1 upon the latter’s request for the purpose of filing the tax returns, or for the purpose of offsetting the sale of goods to Kam Fook by Golden A. Deputy Judge Chan rejected the applicant’s version of events.
就第二項控罪，申請人承認有關的發票是虛假的，但他聲稱有關發票是第一證人要求他提供給第一證人作為報稅之用，又或者作為抵銷「金A」出售貨物給「金福」之用。陳法官拒絕接納申請人的說法。

The fourth to eighth charges
第四至八項控罪

Between 15 September and 10 December 2004, the applicant had even stolen sums of money paid to Kam Fook by its customers, the total sum of which was approximately $79,500.
請人在2004年9月15日至12月10日期間更偷取了「金福」客戶支付給「金福」的款項，總數約$79,500。

Sentencing guidelines
量刑指引

In sentencing, Deputy Judge Chan had considered the sentencing guidelines laid down by the Court of Appeal on an offence of theft involving a breach of trust in HKSAR v Cheung Mee Kiu [2006] 4 HKLRD 776 and HKSAR v Ng Kwok Wing [2008] 4 HKLRD 1017. The sentencing guidelines laid down in Cheung Mee Kiu and Ng Kwok Wing are as follows:
陳法官在量刑時考慮了上訴法庭在香港特別行政區訴張美嬌 [2006] 4 HKLRD 776 及香港特別行政區訴吳國榮 [2008] 4 HKLRD 1017兩案就涉及違反誠信的「盜竊」罪所定的量刑指引。張美嬌及吳國榮 的量刑指引如下：

We would reiterate here that Ng Kwok Wing has not enhanced the ranges of sentence laid down in Cheung Mee Kiu but has only made a more logical adjustment to the ranges of sentence involving the same amounts of money. For example, the range of sentence for the band 3 amounts, i.e. between $1,000,000 and $3,000,000, in Cheung Mee Kiu is 3 to 4 years while the range of sentence is 5 to 9 years for the band 2 amounts of between $3,000,000 and $15,000,000. If looking at the figures only, for the same amount of $3,000,000, the sentence is 4 years and 5 years respectively. We do not think this was the intent of the Court of Appeal in Cheung Mee Kiu. Therefore, the Court of Appeal has unified the relevant ranges of sentence in Ng Kwok Wing so that the maximum sentence of the lower band matches the minimum sentence of the upper band.
本庭在此重申吳國榮 並沒有將張美嬌所定的刑期提高，而是將涉及同一款額的刑期作出一個更具邏輯性的調整，舉例來說張美嬌就第三組款項，即$1,000,000至$3,000,000的刑期為3至4年監禁，而就第二組款項，即$3,000,000至$15,000,000的監禁期是5至9年。如果單從數字來看涉及同樣是$3,000,000的款項，刑期卻分別是4年及5年，本庭不認為這是上訴庭在張美嬌 一案的原意，故此上訴庭在吳國榮 一案將有關的刑期統一，令下一組的最高刑期與對上一組的最低刑期吻合。

Our opinion
本庭意見

In the present case, all three sets of charges were either an offence of theft involving a breach of trust or an offence with such background. Therefore, the sentencing guidelines laid down in Cheung Mee Kiu and Ng Kwok Wing are of substantive cross-reference value in the consideration of whether the ultimate sentence passed by Deputy Judge Chan was in line with the relevant sentencing guidelines. Under the guidelines, the range of sentence for amounts of money between $1,000,000 and $3,000,000 is 3 to 5 years’ imprisonment. On this basis, for an offence which involved an amount of money not exceeding $2,000,000, the term of imprisonment should be 4 years or less. The amount of money involved in the present case is about $1,700,000. If one just looks at the figure, the sentence of 4½ years’ imprisonment passed by Deputy Judge Chan far exceeds the range of sentence set by the guidelines. We agree that sentencing guidelines are not some sort of straitjacket and the court may make adjustment in accordance with the particular facts of the case heard by the court. But we are of the opinion that the extent of the adjustment should not depart excessively from the range of sentence set by the guidelines. Under the facts of the instant case, including the amount of money involved, the time and the mode of the commission of the crime, the sentence after trial, in our view, should be one of 4 years’ imprisonment. But since the applicant pleaded guilty to the second charge, he should be entitled to some reduction in the sentence. So we are of the view that the appropriate sentence should be 3 years and 9 months’ imprisonment. We would adopt the individual sentence passed on each charge by Deputy Judge Chan. We would also agree with the discount of 4 months (about 10% of a starting point of 42 months) given by Judge Chan in respect of the sentence on the second charge: the applicant only pleaded guilty halfway in the trial and his version of the facts was not accepted by Judge Chan in the end, so his plea of guilty did not substantively save the time of the trial. We would order that 4 months out of the sentence on the first charge should run consecutively to the sentence of 3 years and 2 months imposed on the second charge, the sentences imposed on the fourth to eighth charges should run concurrently but 3 months out of them should run consecutively to the sentences passed on the first and second charges, making a total sentence of 3 years and 9 months’ imprisonment.
在本案，三組控罪都涉及違反誠信的「盜竊」罪及帶有這背景的罪行，故此張美嬌及吳國榮 所定的量刑指引是有實質的相互參考價值，用來考慮陳法官所定的最終刑期是否符合有關的量刑指引。根據指引，涉及$1,000,000至$3,000,000款項的刑期為3年至5年監禁。在此基礎下，不涉及超過$2,000,000的罪行，刑期應為4年以下的監禁。本案涉案款額是約$1,700,000，若單從數字來看，陳法官所定的4年半監禁遠超越指引所定出的刑期。本庭同意量刑指引並不是一件緊身衣服，法官在聆聽案情後可以根據實質案情作出調整，但本庭認為調整的幅度與指引所定的刑期也不應相差太遠。本庭認為根據本案案情，包括涉案金額、犯罪的時間及手法，經審訊後的刑期應為4年監禁，但由於申請人承認第二項控罪理應給予他部分刑期扣減，故此本庭認為適當的刑期是3年9個月監禁。本庭採用陳法官就各項控罪所定出的個別刑期。本庭亦同意陳法官就第二項控罪刑期(42個月的量刑基準)所作出的4個月(約10%)的扣減：申請人只是在審訊中途認罪，他提出的案情版本最終亦不被陳法官接受，他的認罪並沒有實質地節省審訊時間。本庭命令就第一項控罪的4個月刑期須與第二項控罪的3年2個月刑期分期執行，第四至第八項控罪的刑期須同期執行，但其中的3個月與第一及第二項控罪的刑期分期執行，總刑期為3年9個月。

Ms. Catherine Ko, Senior Public Prosecutor of the Department of Justice, for HKSAR.
答辯人：由律政司高級檢控官高寶翠代表。

Mr. Jeremy Cheung, instructed by the Director of Legal Aid, for the Applicant (re sentence).
申請人(刑罰)：由法律援助署轉聘張民輝大律師代表。

The Applicant in person, present (re conviction).
申請人(定罪)：無律師代表，親自應訊。