Hon Yeung JA (giving the Judgment of the Court):
上訴法庭法官楊振權頒發上訴法庭判案書：

Introduction
引言

The applicants, Zheng Shu Wu (“Zheng”), Shum Yung Sang (“Shum”) and Xu Wei (“Xu”) were jointly charged with one count of conspiracy to use false instruments with the intention to induce somebody to do some act to his own prejudice.  Xu was further charged with one count of possession of false instruments.
申請人，鄭書武（“鄭”）、沈榕生（“沈”）及徐偉（“徐”）同被控一項串謀使用虛假文書, 意圖誘使他人作出對其不利的作為罪。“徐”被加控一項管有虛假文書罪。

The applicants pleaded not guilty and were convicted after trial before District Judge Douglas Yau on 19 November 2009.  They were each sentenced to three years’ imprisonment.  At one stage they sought leave to appeal against both conviction and sentence, but all of them subsequently abandoned their application against sentence.  We only need to concern ourselves with their application against conviction.
申請人否認控罪，並在區域法院法官游德康席前受審。2009年11月19日游法官裁定申請人罪名成立，並判每人入獄3年。申請人曾就定罪及判刑申請上訴許可，但他們都先後放棄了就判刑上訴的申請。本庭只需處理他們就定罪上訴的申請。

The prosecution case and evidence
控方案情及證據

The prosecution alleged that the applicants conspired to use a batch of forged Hongkong and Shanghai Banking Corporation (“HSBC”) certificates of deposits worth hundreds of billions of dollars to demonstrate that they had sufficient financial resources to successfully participate in an intended project to build a geothermal power plant in China by an American company, Elemental NRG (“Elemental”).  Since the partners in Elemental requested the applicants to produce proof of funds issued by the bank, they in turn asked HSBC to verify the batch of false certificates of deposits and issue proof of capital.
控方指申請人串謀利用一批數以千億元的偽製豐銀行存款證，以顯示他們有足夠財力，令他們能成功參與一美國公司Elemental NRG(“Elemental”) 打算在中國興建的地熱發電廠。由於Elemental的合夥人要求申請人出示銀行發出的款項證明文件，他們繼而要求豐銀行驗證該批虛假存款證及發出資金證明書。

The prosecution called numerous witnesses, whose evidence was largely not in dispute.
控方有傳召多名證人作供，他們的證供大部份是沒有爭議的。

There were three partners in Elemental, namely Robert Joseph Tomacari (“Tomacari”), Michael Edward Mckie (“Mckie”) and William Mayer (“Mayer”) (deceased).  Tomacari and Mckie were called as prosecution witnesses at the trial.
Elemental有三名合夥人，Robert Joseph Tomacari (“Tomacari”)、Michael Edward Mckie (“Mckie”)及William Mayer(“Mayer”)(“已故)。Tomacari 和Mckie原審時是控方證人。

In his evidence, Tomacari described how Elemental intended to build a power plant and went searching for investors.  He indicated that he learnt through a friend, Cheung Sin Kong (transliteration), that some mainlanders who had huge deposits in HSBC were interested in making the investment.  According to Cheung, such information came from his friend, Chan Chi Yong (transliteration).
Tomacari作供時談及Elemental打算興建發電廠及尋找投資者之事宜。Tomacari表示透過朋友張善剛，知悉在豐銀行存有巨款的內地人士有興趣投資。據張善剛的說法，消息源自其友人陳志勇。

On 18 January 2009, Tomacari, Mckie and Mayer arrived in Hong Kong to meet the applicants.  Cheung was present to act as their interpreter.  When the applicants learned about the investment project, they showed Tomacari, Mckie and Mayer some photos depicting what appeared to be certificates of deposits of huge amounts and indicated that the money was in HSBC.  Mayer asked the applicants to provide information about the history of the funds as well as a copy of the investors’ passports, so as to avoid any possible connection with the crime of money laundering.
2009年1月18日，Tomacari，Mckie 和Mayer抵港和申請人會面。張善剛在場擔當翻譯。申請人知悉有關投資項目後，向Tomacari，Mckie 和Mayer出示一些看似是巨額存款證的照片，並表示款項存在豐銀行。Mayer 要求申請人提出有關資金歷史的資料和投資者的護照副本，以避免涉及洗黑錢罪行。

Ms Yam Chi Wah (transliteration), a friend of Zheng’s, said in her evidence that Zheng had asked her to arrange a meeting with the staff of HSBC so that the bank could issue proof of funds.  Zheng told Ms Yam that the project would involve an enormous amount of money which had been kept in the bank for a long time and that the holder of the funds would soon come to Hong Kong from Shenzhen.  Zheng even told her that she hoped the bank could send people to the hotel to meet them since they were high officials.
“鄭”的朋友任芝華女士作供時表示“鄭”曾要求她安排和豐銀行職員會面，以便銀行能發出款項證明文件。“鄭”向任女士表示計劃涉及巨額款項，款項亦已存在銀行一段長時間而持款人會快從深圳抵港。“鄭”更向她表示希望銀行能派人到酒店和他們見面，原因是他們是高官。

Having made some enquiries, Ms Yam told Zheng that she found the matter suspicious.  Zheng, however, replied that the three Americans had said there were no problems with the funds, and she even claimed that the matter concerned the Chinese party representing China and the US Federal Reserve.  Zheng also introduced Shum and Xu to Ms Yam as her superior and the funds holder respectively.  Zheng further indicated that they did not really want to withdraw the money but were just hoping that HSBC could issue proof of the funds.
任女士作出查詢後曾向“鄭”表示事件有可疑，但“鄭”說三個美國人已說過資金無問題，更表示事件涉及代表中國的中方及美國聯邦儲備局。“鄭”亦有向任女士介紹“沈”及“徐”，指他們分別是領導及持款人。“鄭”更表示他們並非真的要提取金錢，只是希望豐銀行能發出資金證明文件。

Ms Yam eventually arranged for the applicants and Mckie, who was allegedly from the Federal Reserve, to meet Ho Kai Tat (transliteration), Deputy Manager of the Bank’s Investigation Unit, Lee Siu Keung (transliteration), Manager of the Insurance Unit and a staff member surnamed Kuk at the Langham Place branch of HSBC on 20 January 2009.
任女士最終安排申請人及據稱是聯儲局的Mckie在2009年1月20日在豐銀行朗豪坊辦事處和銀行調查科副經理何啟達、保險部經理李兆強及一谷姓職員會面。

In his evidence, Ho Kai Tat said that during the meeting, Xu produced a wad of certificates of deposits totaling 100 pieces.  When he indicated that he wanted to make photocopies of the certificates, Shum insisted on being present.  Zheng and Xu said that they hoped the bank could verify the genuineness of such certificates, which were related to some of Mckie’s investment projects.  Mckie also indicated that there were some joint ventures and he had to see if the certificates of deposits were genuine.  Xu claimed that he had about 200 certificates of deposits, which were obtained by his father from a Kuomintang high official and were given to him for handling in 2005.
據何啟達的證供，會面時，“徐”出示“一沓”有百張的“存款證”，而當他表示要影印存款證時，“沈”堅持要在場。“鄭”和“徐”則表示希望銀行能驗證存款證的真假，而存款證是和一些Mckie的投資項目有關，Mckie亦表示有一些合作項目，而他要看看存款證是否真確。“徐”則表示他有約200張存款證，是其父親由一國民黨高官處取得，並在2005年交給他處理。

Ho Kai Tat inquired with the applicants and Mckie respectively as to whether they required oral or written confirmation.  Both parties indicated that they wanted the latter.
何啟達曾分別向申請人和Mckie查詢，他們需要是口頭確認還是書面確認。他們都異口同聲表示要書面確認。

Lee Siu Keung also stressed that during the meeting, all the applicants asked HSBC to issue a confirmation letter verifying the false instruments specified in charge 1.
李兆強亦強調在會議期間, 申請人都要求豐銀行發出第一項控罪列出的虛假文書的驗證確認書。

Cheung Sin Kong testified that he came to know there were mainlanders who wished to invest in Elemental’s project after contacting Chan Chi Yung.  Hence he arranged for Tomacari, Mckie and Mayer to meet the applicants.  He confirmed that during the meeting, Tomocari indicated that he was not clear about the nature of the documents shown by the applicants and therefore asked them to provide verification certificates.
張善剛作供時指是和陳志勇接觸後知悉有內地人士希望投資Elemental的項目，故安排Tomacari、Mckie 及Mayer和申請人會面。張善剛確認會面期間，Tomacari表示不清楚申請人所展示的文件的性質，故要求他們提供驗證證明書。

In fact, Lee Siu Keung had notified the police before meeting the applicants, which resulted in the arrest of the applicants at the scene for the offence of conspiracy to defraud.
事實上，和申請人會面前，李兆強已知會警方，導致申請人當場遭警員以“串謀詐騙”罪拘捕。

Subsequently, the police found in the laptop computer inside Zheng’s hotel room images of the false instruments in question, including two deposit slips in the sum of US$217 billion, two monthly statements showing a balance of US$217 billion in the account, one confirmation letter issued by HSBC showing a deposit of US$217 billion in the account, one confirmation letter signed by Ms Diana Cesar of HSBC showing a deposit of US$55 billion in the account and guaranteeing that the funds were legitimate and “clean”.  In fact, all those documents were false.
其後警員在“鄭”的酒店房間的手提電腦內發現涉案虛假文書的影像，包括兩張款額為2,170億美元的存款單，兩張月結單、顯示賬戶有2,170億美元的結餘、一張豐銀行發出的確認書，顯示賬戶有2,170億美元存款、一封由豐銀行Diana Cesar女士簽發的確認信，顯示賬戶有550億美元存款，同時保證該些資金是合法和“乾淨”的。事實上，該批文件都是虛假的。

The police also found in Shum’s hotel room printed copies of the above images, a document bearing three deposit transfer notices, each in the sum of US$500 million and payable to “Lee Kwai Fa” (transliteration), two forged certificates of deposits in bearer form in the sum of US$500 million and other false documents.
警員亦在“沈”的酒店房間內搜獲上述影像的文書本，另有一張印有三張存款轉賬通知書，每張5億美元，抬頭人是“李桂花”、兩張憑票即付，面額為5億美元的偽造存款證及其他虛假文件。

The police found on Xu 104 forged certificates of deposits in the sum of US$500 million each, an envelope with the words “The Hong Kong Bank” printed on it, numerous forged certificates of deposits in the sum of US$500 million each, a copper plate engraved with the words “Hong Kong and Shanghai Banking Corporation account number 400 1523 72124, code 414153 Li Lie Jun (transliteration) 500,000,000” and a document holder containing two documents, namely, “Authenticated Power of Attorney” and “Authenticated Authorization Letter”, two copies of “Inheritance Letter”, two copies of “Power of Attorney” and one “Authorization Order” entitled “17 Plum Blossom Alliance of the Republic of China”.  Xu also had on him a seal engraved with the words “Li Hou Long (transliteration) Money Withdrawal Seal”, a silver plate engraved with the words “Bestowed Copy from the Chiu’s Mansion of the Republic of China”, a metal seal and a handwritten “Acknowledgement of Receipt of Certificates of Deposits” dated 17 January 2009.
警員在“徐”的身上搜獲104張偽造存款證，每張5億美元，一個印有“香港豐銀行”字樣的信封，另多張，每張5億美元的偽造存款證、一塊刻着“香港上海豐銀行賬號400 1523 72124號，密碼414153李烈鈞500,000,000” 字樣的銅片和一個文件套，內有兩張分別為“鑒定委托書”和“鑒定授權書”、兩張“繼承書”、兩張“委托書”和一張抬頭為“中華民國十七梅花同盟的‘授權令’”。“徐”的身上亦有一個刻有“李侯龍取款章”的印章、一塊刻有“民國趙府賜本”字樣的銀片，一個金屬印章和一份日期為2009年1月17日的手寫“存款證認收書”。

During her interview with the police, Zheng claimed that her company was involved in various investment projects and she had been seeking investors in eight of such projects but in vain.  She said that when she met the partners in Elemental, she did not understand what Mckie was saying and just thought that he had funds and would invest in the projects that she devised, rather than they investing in Elemental’s geothermal project.  Zheng admitted that the photos in her computer were photos of the certificates of deposits provided by Xu, which were taken by Shum on the morning of 17 January 2009.  Those certificates of deposits were wrapped up and kept by Xu afterwards.
和警員會面時，“鄭”表示自己的公司有參與多項投資項目，而她一直為其中8個項目找尋投資者，但不成功。她表示和Elemental的合夥人會面時，不明白Mckie說甚麼，只以為他有資金和會投資在她構思的項目，而非她們投資在Elemental的地熱能項目。“鄭”承認其電腦內的照片是“徐”提供的存款證照片，是“沈”在2009年1月17日早上拍下的，而事後“徐”將存款證包起及保管。

During his interview with the police, Shum said that he knew Xu had been in possession of the certificates of deposits in question for a month.  At that time a female friend surnamed Zhang (transliteration) took a scanned voucher to their Yong He Company (transliteration) in Beijing and showed it to Xu.  Since she knew that Zheng was seeking capital, she brought along the scanned voucher to see if it would be useful.  Xu indicated then that he was able to find similar things.  Shum stressed that both Zheng and Xu were present when Ms Zhang showed them the scanned voucher.  Later, Shum changed to say that Xu was not present.  In clarification, Shum said that when Ms Zhang took the voucher to Yong He Company to show Zheng, she indicated at the same time that the voucher was worth a lot of money.
和警員會面時，“沈”表示知道“徐”管有涉案的存款證已有一個月，當時有一張姓女友帶了一張掃描票據到他們在北京的永和公司給“徐”看，原因是她知悉“鄭”正在尋找資金，故帶來掃描票據看看是否有用。當時“徐”表自己亦能找到相同的東西。“沈”強調張小姐展示票據掃描時，“鄭”和“徐”都在場。其後，“沈”改說“徐”不在場。“沈”再澄清時表示，張小姐帶票據到永和公司給“鄭”看時，她同時表示票據值很多錢。

Shum also claimed that all the documents seized by the police in his hotel room were given to him by a mainland lawyer surnamed Yao (transliteration) and that he did not know what documents they were.  He just casually put them in the bag, while the other certificates of deposits were given to him by Xu for safekeeping.
“沈”亦有表示警員在其酒店房間檢獲的文件都是國內一姚姓律師給他的，但他不知悉文件是甚麼東西。他只是不經意地將它們放入袋中，而其他的存款證則是“徐”交給他保管的。

Shum’s case was that he was only assisting Zheng in seeking capital and Xu happened to own many certificates of deposits that could be used.  Shum claimed that their purpose was to test the genuineness of the certificates which, if found to be genuine, would provide them with funds.  Shum also said that the lawyer surnamed Yao was the one arranging for the investment behind the scene.
“沈”的立場是他只是協助“鄭”尋找資金而碰巧“徐”擁有很多存款證可以利用。“沈”表示他們目的是測試存款證的真偽，而如存款證是真確的，他們便會有資金運用。“沈”亦表示他提及的姚姓律師是在幕後安排投資的人。

In his interview with the police, Xu claimed to be a son of General Li Lie Jun of the Kuomintang, who passed him to a foster father after his birth in order to cover his identity.  It was only in 2005 that he realized his real name was Li Hou Long and he owned national assets in astronomical sums.  He said the assets were jointly owned by the Communist Party and the Kuomintang.
“徐”在和警員會面時說自己是國民黨李烈鈞將軍的兒子，但出生時遭父親交給養父撫養，以掩人耳目。2005年，他才知悉自己原名是李侯龍，坐擁天文數字的民族資產。“徐”表示該批資產由共產黨和國民黨共同擁有。

Xu said that the documents in question and the other jewellery were obtained by him from a hill and they originally belonged to his family.  The bonds were obtained by his father who exchanged a hundred taels of gold and jewellery for them with HSBC between 1922 and 1927.  He described his illustrious family background, but at the same time he also said that his foster parents hanged themselves because of him during the Cultural Revolution.
“徐”指涉案的文件和其他珠寶是他從山上取得的，原屬他家的錢財。債券是父親在1922至1927年用黃金百兩及珠寶跟豐銀行換來的。他有說及自己家庭成員的顯赫身世，但同時表示在文革時，養父母都因為他而要上吊自殺。

According to Xu, in his home there was a set of coordinates which showed 108 armouries, while the bonds were hidden in a hilltop whose location was a secret that could not be revealed, with him being the only one who knew about it.  When asked about the identities of the other people keeping the bonds, Xu said he was not willing to answer.  Xu said that he chanced on Zheng and Shum and with their assistance, he brought the certificates of deposits/bonds to Hong Kong for verification.
“徐”表示家中有一座標，顯示108個軍庫，而債券儲藏在一個山頭，但地點是秘密，不能洩露，只有他一個人知道。當被問及保管債劵的其他人身份時，“徐”表示不願意回答。“徐”指碰到“鄭”和“沈”及得到他們協助下，將存款證/債券帶來香港驗證。

Defence
答辯理由

Much of the prosecution case was not in dispute.  The applicants agreed that they had the agreement to meet the partners in Elemental and show the certificates of deposits in question in order to demonstrate that they had the financial resources to participate in the relevant investment project.  The applicants also agreed to meet the staff of HSBC and show them the certificates of deposits in question for the purpose of asking HSBC to verify them and issue proof of funds.  The applicants even agreed that the certificates of deposits in question were false and that they voluntarily took part in the interviews with the police to give their explanation of the matter.
申請人對控方案情爭議不大。他們同意是一起協議和Elemental的合夥人會面及出示涉案的存款證，顯示他們具財力參與有關投資項目。申請人亦同意和豐銀行職員會面，並向他們出示涉案的存款證，目的是要求豐銀行驗證及發出資金證明書。申請人更同意涉案的存款證都是虛假的，而他們都是自願參與和警員的會面及就事件作出解釋。

None of the applicants gave evidence in their defence, nor did they call any witnesses.  Basically, their case was that they did not know or believe that the certificates of deposits in question were forged and that the prosecution evidence was not sufficient to prove that they did conspire to use false instruments.  In respect of charge 2, Xu’s case was that although the instruments in question were false, he was not aware of that and the things that he had provided to the police, namely, the “Authenticated Power of Attorney” and “Authenticated Authorization Letter”, “Inheritance Letter”, “Power of Attorney”, “Authorization Order” and the “seal”, etc were all consistent with his case that he had no knowledge.
申請人都沒有作供自辯，亦沒有傳召證人作供。他們基本立場是他們不知道，亦不相信涉案的存款證是偽造的，而控方的證據不足以證明他們確有串謀使用虛假文書。就第2項控罪，“徐”的立場亦是雖然涉案的文書屬虛假文書，但他不知情，而他向警方提供的“鑒定委任書”，“鑒定授權書”、“繼承書”、“授權書”、“授權令”、“印章”等等物件，都和他不知情的說法吻合。

The trial judge’s findings
原審法官的裁決

The trial judge rejected the explanation given by Zheng at her interview with the police and dismissed her description of the investment projects as a pack of lies.  He did not accept her account of how she contacted Shum and Xu, nor did he accept her claim that she was not aware of the photos and documents in her computer and their contents.  The trial judge totally rejected the explanation that Shum and Xu gave in their interviews with the police.  He found that they were lying and engaged in fabrication.
原審法官否定“鄭”在和警員會面時所作的解釋而她所指的投資項目更是謊言。原審法官不接納“鄭”就如何接觸“沈”和“徐”的說法，亦不接納她指不知悉其電腦內的照片和文件及對其內容毫不知情的說法。原審法官全盤否定“沈”和“徐”在和警員會面時的解釋。原審法官認定他們是在說謊及憑空杜撰事情。

The trial judge found that the certificates of deposits were forged and that Zheng was aware of the existence and nature of those forged certificates.  He inferred that Zheng, Shum and Xu conspired to use those false certificates of deposits with the intention to induce HSBC to issue proof of funds, and that during their meeting with the staff of the bank on 20 January 2009, they intended to carry out their conspiracy to commit the offence.
原審法官裁定存款證都是偽造的, 而“鄭”亦是知道該批虛假存款證的存在及性質。原審法官推斷“鄭”、“沈”和“徐”是串謀利用該批虛假存款證意圖令豐銀行發出資金證明，而在2009年1月20日和銀行職員會面時，他們正意圖執行其犯罪協議。

The trial judge stressed that at the material times, Shum was in possession of some false certificates of deposits in the sum of hundreds of billions of dollars together with some false monthly statements and time deposits vouchers.  He found that Shum must have known or believed that the documents presented to the staff of HSBC for verification were false and that their purpose was to defraud HSBC into issuing to them some proof of funds.  The trial judge also found that Shum, Zheng and Xu did have an agreement to conspire to defraud and an intention to carry out such an agreement.
原審法官強調案發時，“沈”管有一些虛假而數以千億元計的虛假存款證及一些虛假的月結單及定期存款單。原審法官裁定“沈”必然知道或相信交給豐銀行職員去驗證的文件都是虛假的，而他們的目的是詐騙豐銀行以獲得它發出一些存款證明。原審法官更認定“沈”、“鄭”和“徐”確有串謀詐騙的協議，亦有意圖實行該協議。

The trial judge was of the view that the applicants must have known of the falsity of the certificates of deposits in question, and their plan to defraud HSBC so as to obtain proof of funds was entirely feasible.  The reason was that if HSBC said that the documents were false, all they had to do was just to insist their innocence; but if HSBC had said the documents were genuine, their plot would have succeeded.  The trial judge regarded them as a group of organized, bold and scheming fraudsters, whose plot allowed for an excuse to get away in case of failure, namely if their fraud was exposed they would claim themselves to be victims as well.
原審法官認為申請人必然知道有關的存款證是虛假的，而他們詐騙豐銀行以取得資金證明的計劃亦絕對可行。原因是若豐銀行說文件是假的，他們只需堅稱不懂，而若豐銀行說文件是真的，他們狡計便得逞。原審法官認為申請人是一班有組織、膽識、預謀的騙徒，其計劃更包括了失敗時脫身的藉口，如即被識破時便會假稱他們也是受害人。

The trial judge found that in respect of the first count of conspiracy to use false instruments with the intention to induce somebody to accept it as genuine and hence to do or not to do some act, the “somebody” referred to therein were the staff of HSBC who met them on the material day, i.e. Ho Kai Tat and Lee Siu Keung.  The reason was that the applicants showed Ho and Lee those false instruments and asked them to verify their genuineness.
原審法官裁定第一項串謀使用虛假文書，意圖使另一人接受該批文書為真文書而作出或不作出某些行為，所指的“另一人”就是在案發當天和他們見面的豐銀行職員何啟達和李兆強。原因是申請人是向何啟達和李兆強展示該批假文件及要求他們驗證文件的真偽。

On that basis, the trial judge convicted the applicants on the first count.
原審法官以上述基礎裁定申請人第一項控罪罪名成立。

In respect of the second count, the trial judge also rejected the explanation given by Xu at his interview with the police and dismissed his claim that he had obtained the false certificates of deposits in a cave as a pack of lies.  The judge stressed that Xu’s explanation indicated that what he described was his personal experience rather than second hand knowledge, but his explanation was not true at all.  The judge found that the only inference to be drawn was that Xu used an excuse to commit the fraud and he must have known that the certificates of deposits in his possession were false instruments.  Since he had no lawful authority or excuse to possess those false instruments, the judge accordingly convicted him on the second count as well.
就第2項控罪, 原審法官亦否定“徐”在和警員會面時所作的解釋，更認為他說在山洞內取得涉案的假存款證均屬謊言。原審法官強調“徐”所作的解釋顯示他說及的是親身經歷而非他人告知他的事，而他的解釋根本不是事實。原審法官認為唯一的推論是“徐”借名訛詐，他必然知悉其管有的存款證均為虛假文書。由於他並沒有合法權限或辯解去管有該批虛假文書，原審法官亦裁定“徐”第二項控罪罪名亦成立。

Grounds of Appeal
上訴理由

Basically, Mr Lawrence Lok SC on behalf of Zheng and Shum raised only one ground of appeal.
代表“鄭”和“沈”的駱應淦資深大律師基本上只提出一點上訴理由。

Mr Lok SC submitted that the prosecution clearly stated in their opening that the targets of the applicants’ fraud were Tomacari, Mckie and Mayer rather than the staff of HSBC, hence the applicants’ closing submission focused on the words and demeanor of the said three persons.  The trial judge, however, in the absence of any indication, changed the targets of the applicants’ fraud to the staff of HSBC and convicted Zheng and Shum on that basis.  Mr Lok SC submitted that in doing so the trial judge had caused grave injustice, which rendered his conviction of Zheng and Shum on the first count unsafe.
駱資深大律師指出控方代表在審訊開案陳述時明言申請人的行騙對象是Tomacari，Mckie 及Mayer, 而非豐銀行的職員，因此申請人的結案陳述焦點都集中處理該三名人士的言行舉止，但在毫無先兆下，原審法官將申請人的詐騙對象轉變為豐銀行的職員，並以該基礎將“鄭”和“沈”定罪。駱資深大律師認為原審法官的做法導致嚴重不公平的情況，而裁定“鄭”和“沈”第一項控罪罪名成立亦因此是不穩妥的。

Apart from taking the same stance as Mr Lok SC on the above issue, Mr Kan Ding To on behalf of Xu also submitted that the trial judge had failed to appropriately analyze Xu’s record of interview with the police and wrongly found that his account was fabricated.
除了就上述議題和駱資深大律師站在同一陣線上之外，代表“徐”的簡定濤大律師亦指原審法官沒有適當分析“徐”和警員的會面記錄，卻不當地裁定他的說法是憑空杜撰的。

Mr Kan submitted that although Xu’s description of how he came to obtain the certificates of deposits was rather dramatic, the trial judge had no basis to reject his account in the absence of any evidence to the contrary adduced by the prosecution.  Mr Kan stressed that part of the exhibits that Xu had provided to the police, including the “Power of Attorney”, “Letter of Authorization”, “Inheritance Letter”, “Authorization Order” and the “Seal”, etc could all lend support to his explanation.  When the trial judge considered whether Xu’s explanation was credible, however, he made no mention of such documents, which showed that he had not fully taken that evidence into account.
簡大律師認為雖然“徐”述及如何取得存款證的過程頗戲劇化，但在控方沒有提出對立的證據時，原審法官沒有基礎否定他的說法。簡大律師強調“徐”向警方提供的部份證物，包括“委任書”，“授權書”、“繼承書”、“授權令”、“印章”等等文件都能支持他的解釋，但原審法官考慮“徐”的解釋是否合信時，卻沒有提及該些文件，顯示原審法官沒有全面考慮有關證據。

Discussion
討論

According to the evidence that was not and/or could not be disputed, at the material times the applicants were in possession of certificates of deposits worth hundreds of billions of dollars.  They expressed an interest in investing in Elemental’s power plant project, and through the arrangement of a third party, they met the three partners in Elemental in Hong Kong on 18 January 2009.  During the meeting, the applicants showed the partners in Elemental photographs relating to the funds for the purpose of convincing them that they owned the relevant funds.  The applicants directly or indirectly revealed that the funds were deposited in HSBC, but they offered no proof as to the form in which the funds existed, nor did they explain how they intended to use the funds.
沒有爭議及/或無可爭議的證據顯示在有關時段，申請人管有價值數以千億元計的存款證，他們表示有興趣投資Elementa發電廠計劃，並透過第三者的安排和Elemental的三名合夥人在2009年1月18日在香港會面。在會面期間，申請人向Elemental的合夥人展示和資金有關的照片，目的希望說服Elemental的合夥人他們擁有有關資金。申請人直接或間接透露資金存放在豐銀行，但沒有證明資金是以什麼形式存在，亦沒有解釋他們打算如何運用資金。

When the partners in Elemental requested the applicants to provide information about the history of the funds, Zheng, through Ms Yam Chi Wah, attempted to obtain “Proof of Sums” issued by HSBC.
當Elemental的合夥人要求申請人提出有關資金歷史的資料，“鄭”透過任芝華女士希望取得豐銀行發出的“款項證明文件”。

Zheng even told Ms Yam that the matter concerned the Chinese side and the US Federal Reserve.  Shum was her superior while Xu was the funds holder.  Zheng said that the funds had been in the bank for a long time and they hoped that HSBC could issue proof of funds.
“鄭”更向任女士表示事件涉及中方及美國聯邦儲備局。“沈”是領導而“徐”是持款人。“鄭”表示款項已存在銀行一段長時間而他們希望豐銀行能發出資金證明。

The applicants acted in concert, hoping first that they could convince the partners in Elemental that they owned sufficient funds to invest in the relevant project.  When Mayer asked them to provide proof of the funds, they attempted to obtain proof of funds issued by HSBC.
申請人是夥同行事，他們先希望說服Elemental的合夥人他們擁有足夠資金投資有關項目。當Mayer要求申請人提供資金證明時，他們設法取得豐銀行發出的資金證明。

The documents or images that the applicants possessed and showed to the partners in Elemental and/or HSBC were false instruments.
申請人管有及向Elemental合夥人及/或豐銀行展示的文件或影象都是虛假文書。

If the applicants acted jointly in showing the partners in Elemental and/or HSBC the false instruments in question or their images or copies while knowing or believing the same to be false, for the purpose of convincing the partners in Elemental to allow them to invest in the relevant project and/or asking HSBC to verify them and issue proof of funds, the applicants must have committed the offence of conspiracy to use false instruments.
假若申請人共同行事，向Elemental合夥人及/或豐銀行出示有關的虛假文書或其影象副本時，知道或相信該些虛假文書實屬虛假時，目的是說服Elemental的合夥人容許他們投資有關項目，及/或要求豐銀行驗證及發出資金證明，申請人都必然干犯了串謀使用虛假文書罪。

The first charge against the applicants alleged that they, on or about 20 January 2009, in Hong Kong, used the false instruments in question with the intention to induce somebody to accept them as genuine, and by reason of so accepting them to do or not to do some act to his own or any other person’s prejudice.
針對申請人的第一項控罪的詳情是指他們約於2009年1月20日在香港串謀使用涉案的虛假文書，意圖誘使另一人接受該等文書為真文書，並因接受該等文書為真文書而作出或不作某些作為，以致對該另一人或其他人不利。

The particulars of the above offence could cover the applicants’ act of meeting the partners in Elemental on 18 January 2009 and also their act of meeting the staff of HSBC on 20 January 2009.
上述控罪詳情可以包括2009年1月18日申請人和Elemental合夥人會面的作為，亦可以包括他們在2009年1月20日和豐銀行職員會面時的作為。

In fact, the brief facts of the prosecution case set out the details of the applicants’ dealing with the partners in Elemental as well as their dealing with the staff of HSBC.
事實上控方的案情撮要有列出申請人和Elemental合夥人的交易詳情，亦有列出他們和豐銀行職員的交易詳情。

However, when the parties were dealing with issues relating to the Practice Directions 9.1, namely the proper approach to be adopted when the indictment includes both a conspiracy charge and a substantive charge, the then prosecuting counsel made the following submission:
但雙方在處理《實務指示》9.1段的議題，即公訴書內包括串謀罪行和實質罪行時的適當處理方法，當時的控方大律師有以下的陳述：

“In respect of the first charge, your Honour, the prosecution case is that the three defendants conspired to use these documents, the five documents set out in the charge, which are in fact 104 pages, in total, that is, to defraud, namely conspiracy to (original in English) – conspiracy to use these documents, well, to – I used the word “conspiracy” which may not be very appropriate, but basically they were hoping to induce two foreigners, … to believe that they were genuine, and then to allow the defendants to participate in some investment projects, well, that is… put simply, a summary of the facts relating to the first charge, well, what I’m talking about is the way in which they used these document to do such a thing… in respect of the second charge, …the facts are of a much narrower scope…”
“就第一項控罪而言，法官閣下，控方嘅說法係話呢三名被告人係串謀利用呢啲文件，控罪面提到嘅五項文件嘅，其實一百零四張喇，加起嚟即係。就去訛騙，即係conspiracy to – 串謀去使用呢啲文件，咁就係去 – 我用咗訛騙呢個係一個未必好適當嘅字眼，但係基本上佢哋係希望引誘兩名外籍人士，…係信以為真，然後係讓和被告人係參與一啲投資項目，咁呢個就係…簡單講，就係第一項控罪嗰個案情嘅一個大綱，咁講緊嘅係佢哋點樣利用呢啲文件去做呢件事…就第二項控罪呢…案情窄好多…”

The prosecuting counsel used words like “basically”, “put simply” and “a summary” to describe the particulars of the first charge, which, when considered together with the brief facts of the case, made the applicants’ allegation, namely, that the prosecution clearly stated in its opening that the target of the applicants’ fraud were only the partners in Elemental and had nothing to do with the staff of HSBC, very much debatable.  Their criticism of having been misled by the prosecution was also far from convincing.
主控律師的用詞包括“基本”、“簡單講”及“一個大綱”來形容第一項控罪的詳情，和案情撮要一起考慮時，申請人指控方開案陳述時明言申請人的行騙對象只是Elemental合夥人，和豐銀行職員完全無關的說法有值得商榷之處，他們指受控方誤導更不具說服力。

In fact, the defence did not ask the prosecution to choose between the partners in Elemental and the staff of HSBC as the targets of the applicants’ conspiracy to use false instruments, and accordingly the prosecution did not do so in the absence of any such request.  Indeed, that matter was never in issue or of concern to the parties.
事實上辯方沒有要求，控方亦沒有應要求就申請人串謀行使假文件的對象是Elemental的合夥人或是豐銀行的職員之間作出選擇，該議題更非雙方所關注或有爭議的。

All the applicants complained that it was unfair to them for the prosecution to state in their opening that the victims in the case were the partners in Elemental while the judge found that the “victims” were the staff of HSBC.  Mr Lok SC argued that if the “victims” were the partners in Elemental, the applicants would not dispute the allegations that they “induce them to accept the vouchers in question as genuine” and “by reason of so accepting them to do or not to do some act”, the reason being that the meeting with the partners in Elemental was only arranged for the purpose of discussing how to use the vouchers in question.  If the victims were the staff of HSBC, however, the applicants would have to dispute the above two allegations, since the purpose of the applicants’ meeting with the bank staff was to verify the genuineness of the documents, and the possibility of inducing ordinary people to accept the vouchers in question was different from that of inducing the staff of a bank to accept them.  Mr Lok SC also stressed that the applicants would definitely have addressed the court on the above issue.
申請人都指控方開案時指案件受害人是Elemental合夥人，而原審法官卻裁定“受害人”是豐銀行職員的處理方法，對他們造成不公平。駱資深大律師指如“受害人”是Elemental合夥人，申請人不會就“誘使他們接受涉案票據為真實”及“因接受而作出或不作出某些行為”提出爭議，原因是和Elemental合夥人會面只是為了商討如何運用涉案票據而安排，但假若受害人是豐銀行職員則申請人必須爭議上述兩個議題，原因是申請人和豐銀行職員會面的目的是為了查證文件的真偽，而誘使一般人接受有關票據的可能性和誘使銀行職員接受有關票據的可能性不同。駱資深大律師更強調申請人必會就上述議題向法庭陳詞。

The applicants met the staff of HSBC on 20 January 2009 for the purpose of asking the bank to verify the genuineness of the vouchers in question and to issue verification confirmation.
申請人在2009年1月20日和豐銀行職員會面目的是要銀行查證有關票據的真偽及發出驗證確認書。

According to the evidence of the prosecution witnesses, including that of Yam Chi Wah, Ho Kai Tat, Lee Siu Keung and Cheung Sin Kong, the applicants’ ultimate purpose was to ask HSBC to issue verification confirmation.
根據各控方證人，包括任芝華、何啟達、李兆強和張善剛的證供、申請人最終的目的是要求豐銀行發出驗證確認書。

HSBC, of course, would not issue any such confirmation.  Right from the beginning the staff of the bank had suspicions about the genuineness of the vouchers in question, and the case had been reported to the police for record purposes even before the meeting with the applicants.
當然，豐銀行不會發出任何驗證確認書。一開始豐銀行的職員已懷疑有關票據是虛假文件，而銀行在和申請人會面前已報警備案。

Nevertheless, the issue in the case was not whether the applicants did conspire to use false instruments with the intention to induce others to accept them as genuine or whether their intention could be successfully carried out.  The issue in the case was simply whether the applicants were aware of the genuineness or otherwise of the documents in question.  That was also the only defence put forward by the applicants.
但涉案的爭議點並非是申請人是否有串謀使用虛假文書意圖誘使他人接受涉案票據為真文書，亦非他們的意圖最終能否得逞。案件的爭議點只是對涉案文件的虛實，申請人是否知情。該爭議點亦是申請人提出的唯一答辯理由。

Mr Lok SC submitted that the applicants would have disputed the allegations that they “induce them to accept the vouchers in question as genuine” and “by reason of so accepting them to do or not to do some act”.  We are of the view that such an argument is not convincing.  In our view, whether the applicants could successfully induce the “victims” to accept the vouchers in question as genuine and whether the “victims” would accordingly do or not do some act was irrelevant to the issue in the case.
駱大律師指申請人會爭議“誘使他們接受涉案票據為真文書”及“因接受而作出或不作出某些行為”。本庭認為上述立場是不具說服力的。本庭認為申請人能否成功誘使“受害人”接受涉案票據為真文書及“受害人”會否因此而作出或不作出某些行為根本和案件的爭議無關宏旨。

Of course, the court and the defence are entitled to know the factual basis upon which the prosecution has conducted the case against a defendant (see R v Chan Kang To [1997] 2 HKC 281, HKSAR v Cheung Hing Man & another (CACC 91/2008, etc).  However, when the court convicts a defendant on a different basis from that put forward by the prosecution, the decision to convict is not necessarily so unsafe that it has to be quashed.  In R v Leung Mun Lam [1985] 1 HKC 535, the Court of Appeal clearly ruled that whilst a judge in his direction to the jury departs from the basis upon which the prosecution has conducted the case, such a departure is not invariably fatal.  The Court of Appeal still have to consider whether the trial judge’s approach has rendered the verdict of conviction unsafe or unsatisfactory, and only in circumstances where the conviction is found to be unsafe or unsatisfactory would the conviction be quashed.
當然法庭及辯方都有權知悉控方檢控被告人的事實基礎（見 R v Chan Kang To [1997] 2 HKC 281，HKSAR v Cheung Hing Man & another (CACC 91/2008) 等案）。但當法庭以和控方立場不同的基礎裁定一名被告人罪名成立時，定罪的決定不一定是不穩妥而要撤銷的。在R v Leung Mun Lam [1985] 1 HKC 535案，上訴法庭已明確裁定當原審法官指引陪審團時的基礎有別於控辯雙方處理案件的基礎時，原審法官的做法對定罪的決定不一定是致命的。上訴法庭仍需考慮原審法官的處理方法會否令定罪的裁決變得不安全或不穩妥，而亦只會在定罪裁決不安全或不穩妥的情況下，才會撤銷定罪。

In support of the above views, Yang JA (as he then was) cited R v Oakwell [1978] 1 WLR 32 where Lord Widgery CJ said in these terms:
上訴法庭法官楊鐵樑（當時官階）援引R v Oakwell [1978] 1 WLR 32案，Lord Widgery CJ 大法官判案書的以下段落支持上述立場：

“We think the proper approach to the argument put forward on this point is this.  It is not the obligation of the judge precisely and exactly to follow the presentation of the case as put before him by the prosecution.  What the judge has got to do is to secure a fair and sound conclusion at the end of the case.  If the judge does not strictly follow the form of presentation which the prosecution have chosen to adopt, then it is always open to the defence to contend that that has resulted in a verdict which is unsafe or unsatisfactory.  It does not, in our judgment, in general amount to an irregularity at the trial within the meaning of the Criminal Appeal Act 1968.  But undoubtedly where the prosecution approach is departed from by the trial judge it is open to the defence to contend, if they can, that the verdict is thereby rendered unsafe or unsatisfactory.”
“本庭認為該爭議點的適當處理方法如下。主審法官無必要一成不變地跟隨控方展示案情。法官需在結案時達到一個公平及正確的結論。如主審法官沒有跟足控方所採納展示案情之形式，辯方有權聲稱主審法官的處理方法導致一項不安全或不穩妥之裁決。但一般而言，該處理方法不構成Criminal Appeal Act 1968條例所指的不正當審訊。當然，如主審法官背離控方的處理方式，辯方有權在有基礎支持的情況下，聲稱裁決因此變得不安全或不穩妥。”

Even if the trial judge has departed from the prosecution approach, as long as that does not result in any injustice, and given the elements of the basis of conviction are no different from the fundamental allegation of the prosecution, then the verdict of conviction will not be unsafe or unsatisfactory.
即使主審法官背離控方的處理方法，只要該做法沒有導致不公平的結果，而定罪的基礎要素亦無異於控方的基本指控，則定罪的裁決不會是不安全或不穩妥的。

We wish to quote a passage from page 606 of the judgment in R v Japes [1994] Crim LR 605:
本庭希望複述R v Japes [1994] Crim LR 605案判案書第606頁內的一段判詞：

“The judge was not bound by the way in which the Crown opened the case.  If, in the light of the evidence as it developed, it became apparent that the same offence was or might have been committed on a somewhat different factual basis, it could not be right to consider, even though it might not be the primary basis put forward by the Crown, so long as it was plain that the defendant was not disadvantaged or prejudiced by the judge so doing.”
“法官不一定受制於控方開案時採取的立場。假若證據的發展顯示同一罪行是在稍有不同之事實基礎下干犯，法官並非無權將案件以該事實基礎交由陪審團考慮，雖然該事實基礎和控方提出的事實基礎不一樣。大前提是法官的做法明顯地沒有對被告人造成不利或損害。”

The applicants were not disadvantaged or prejudiced by the trial judge taking the staff of HSBC as the targets of their fraud rather than the partners in Elemental.  The main ground of appeal put forward by the applicants fails.
原審法官將申請人串謀詐騙的對象定為豐銀行的職員而非Elemental的合夥人，並沒有對申請人造成不利或損害。申請人提出的主要上訴理由不成立。

Mr Kan submitted that the process of Xu’s obtaining the certificates of deposits was dramatic, but in our view Xu’s version was simply bizarre.  Considering the nature of the certificates of deposits in question against the background of this case, the trial judge was absolutely justified and correct in completely rejecting the explanation that Xu gave in his record of interview.
簡大律師指“徐”就其如何取得有關存款證的過程具戲劇化，但本庭認為“徐”的說法屬匪夷所思。以本案背景，考慮有關存款證的性質，原審法官全部否定“徐”在會面記錄所作的解釋絕對是有基礎及正確的。

The applicants made use of some false instruments to ask HSBC to verify them and issue confirmation.  Their intention was specific and was not in issue.  It was simply groundless for Mr Kan to contend that the trial judge had not fully considered whether the applicants had intended to induce the staff of HSBC to accept the instruments as genuine and by so accepting them to do or not to do some act to their own prejudice.
申請人利用一些虛假文書要求豐銀行驗證及發出確認書。他們的意圖是明確的，更是沒有爭議的。簡大律師指原審法官沒有充份考慮申請人是否意圖誘使豐銀行職員接受該等文書是真文書及如何因而致使他們作出某些對自己不利的行為的立場全無立足點。

The fact that the applicants failed to successfully mislead the bank staff and that the bank staff did not verify the certificates of deposits in question and issue confirmation as per their request does not mean that the applicants had no intention to induce them to do so, nor does that mean that their purpose was not to make the bank staff do some act to their own prejudice.
申請人沒有成功誤導銀行職員及銀行職員不會應他們的要求驗證有關存款證及發出確認書不等如申請人沒有意圖誘使他們這樣做，更不等如他們的目的並非是令銀行職員作出一些對他們不利的行為。

Mr Kan submitted that the process of Xu’s obtaining the certificates of deposits in question was dramatic.  In our view, his version of events was no more than a pack of lies.  We have carefully read and analyzed the explanation that Xu gave in his interview with the police.  We consider it so ridiculous that no person in his right mind would accept or believe.  The trial judge must have carefully considered Xu’s explanation before he arrived at the conclusion that “Xu’s version was utterly bizarre and beyond belief.”
簡大律師指“徐”就如何取得有關存款證的過程具戲劇性。本庭認為他的說法根本是胡說八道。本庭已有詳細閱讀及分析“徐”在和警員會面時的解釋。本庭認為“徐”的解釋是荒謬的。任何思想正常的人都不會接納或相信他的解釋。原審法官必然詳細考慮“徐”的解釋後得出的結論是“（徐）的說法實在太匪夷所思，難以置信”。

In his deliberation, the trial judge obviously took into account such documents and evidence as the “Power of Attorney”, “Letter of Authorization”, “Inheritance Letter” and the “Seal” that were in Xu’s possession at the material times.  In fact he did set out those documents and exhibits in paragraphs 15 and 16 of his judgment.
在思考過程，原審法官亦明顯有考慮案發時“徐”管有的委任書”，“授權書”、“繼承書”及“印章”等文件和證明，事實上原審法官在判案書第15，16段亦有將該些文件和證據物一一列出。

The prosecution did not call any expert evidence to prove the falsity of the documentary exhibits, but considering the background of the present case, that would not affect the trial judge’s verdict at all.
控方沒有提交專家證據，證明該些文件證物亦是虛假的，以本案的背景而言，絕對不會影響原審法官的裁決。

Further, the explanation given by Xu in his interview was just his one-sided story which was not put to any test in terms of cross-examination.  The trial judge was absolutely justified and correct in completely rejecting his explanation.
再者，“徐”在會面時所作的解釋亦只是他片面之詞，沒有經過盤問的測試。原審法官全面否定他所作的解釋絕對是有基礎及正確的。

In respect of the two charges, the defence put forward by the applicants was merely that they had no knowledge of the false instruments in question.
就兩項控罪，申請人提出的答辯論點都只是他們對涉案的虛假文書不知情。

The only inference that the trial judge drew was that the applicants had reached an agreement to obtain certain advantages with the false instruments set out in charge 1, which would include the inference that they must have known that the instruments were false when they were handed to the staff of HSBC for verification.  In our view, the trial judge was entitled to reach the above conclusion, especially in circumstances where the applicants neither gave evidence nor called any witnesses to rebut or weaken the prosecution case against them.
原審法官得出唯一的推斷是申請人達成協議以第一項控罪所列出的虛假文書去取得某些利益，包括將文書交給豐銀行職員去驗證時，他們必然知道文書屬虛假。本庭認為原審法官有權得出上述結論，特別是在申請人沒有作供，亦沒有傳召證人作供以解釋，削弱或反駁控方對他們的指控的情況下。

Similarly, the trial judge was entitled to infer that Xu knew that the instruments in his possession, namely the false “certificates of deposits” set out in charge 2, were all false instruments.  Xu did not have any lawful authority or lawful excuse about his possession of those false instruments.  The guilty verdict that the trial judge reached was inevitable.
原審法官同樣地亦有權推斷“徐”知道他管有的文書，即第二項控罪所指的虛假“存款證”全是虛假文書。“徐”沒有就管有該批虛假文書提出任何合法權限或辯解的說法。原審法官作出的定罪裁決亦是不可避免的。

Conclusion
結論

We are satisfied that the applicants’ conviction was neither unsafe nor unsatisfactory.  The application for leave to appeal is dismissed.
裁定各申請人罪名成立之決定並非不安全或不穩妥之處，本庭駁回他們的上訴許可申請。

Edmond Lee, Senior Public Prosecutor of the Department of Justice, for the Respondent
答辯人: : 由律政司高級檢控官李俊文代表。

Lawrence Lok SC and Martin Wong, instructed by Sidney Lee & Co., for the 1st and 2nd applicants
第一及第二申請人：由李志恆律師事務所轉聘資深大律師駱應淦及大律師王永愷代表。

Kan Ting To and Bruce Lau, instructed by Lee, Mok & Wong, for the 3rd applicant
第三申請人：由李莫黃律師事務所轉聘大律師簡定濤及大律師劉鈞偉代表。