Hon Yeung JA (giving the reasons for judgment of the Court):
上訴法庭副庭長楊振權頒發上訴法庭判案理由書：

Introduction
引言

The applicant (Lee Oi Lin, Irene also known as Lee Sze Yiu) was charged with stealing 220 pieces of jewellery belonging to Profit Gem Jewellery (Group) Limited (“Profit Gem”), the total value of which exceeded $2 million.  The applicant pleaded not guilty and was tried before Deputy District Judge Anthony Yuen.
申請人（李愛蓮又名李思瑤）被控盜竊屬於利鑽珠寶（集團）有限公司（“利鑽”）的220件珠寶飾物，價值超過200萬元。申請人否認控罪並在區域法院暫委法官阮偉明席前受審。

On 8 April 2011, Deputy Judge Yuen convicted the applicant on the charge and sentenced her to imprisonment for 2 years and 8 months.  The applicant, who was represented by Mr Edward Chan of counsel, sought leave to appeal the conviction and/or sentence.  After hearing, we dismissed all the applications for reasons which we now give.
2011年4月8日，阮法官裁定申請人罪名成立，並判她入獄2年8個月。申請人不服定罪及判刑，由陳德昌大律師代表提出申請，要求獲准就定罪及/或判刑上訴。經聆訊後，本庭駁回全部申請，以下是本庭的裁決理由。

Prosecution case
控方案情及證據

Profit Gem was a jewellery wholesaler which contracted out some processes of work to jewellery workshops on the Mainland.  One of the subcontractor workshops at the material time was Lung Ngai (transliteration) Professional Jewelry Manufacture Limited (“Lung Ngai”) in the control of the applicant and her boyfriend (Lung Kit Shing).  Profit Gem and Lung Ngai had had business dealings since 2005.  Profit Gem had on a number of occasions through the applicant entrusted Lung Ngai with the processing work of jewellery.
“利鑽”是珠寶首飾批發商，會將部分工序分判給國內的首飾工場處理。案發時申請人和其男朋友（龍傑成）控制的龍藝珠寶專業製作有限公司（“龍藝”）是“利鑽”的分判工場之一。自2005年開始，“利鑽”和“龍藝”有業務往來。“利鑽”多次透過申請人委託“龍藝”進行首飾加工。

After receiving orders from customers, Profit Gem would prepare the materials and design specifications for the jewellery in accordance with the customers’ instructions and pass them to Lung Ngai as manufacturing orders.
“利鑽”收到客人的訂貨單後，會按客人的指示，準備鑽飾材料及設計規格交給“龍藝”，作為製作訂單。

The applicant or her representative would personally collect the raw materials from Profit Gem and sign an acknowledgment of receipt, and the materials and design specifications would be delivered to Lung Ngai’s in-house workshop on the Mainland for manufacturing.  Upon completion of work, a representative of Profit Gem would visit Lung Ngai’s workshop on the Mainland to inspect the products.
申請人或其委派的代表會親自從“利鑽”取得原材料並簽收確實，而材料及設計規格會送交“龍藝”國內的附屬工場進行製作工序。完工後，“利鑽”的代表會前往“龍藝”國內工場驗貨。

If the products met the requirements of the specifications, Lung Ngai would issue an invoice to Profit Gem in respect of labour cost, and the applicant or Lung Kit Shing would personally deliver the finished products to Profit Gem and collect payment.
如製成品符合規格，“龍藝”會向“利鑽”發出工費單，而申請人或龍傑成會親身將製成品送交“利鑽”及收取費用。

In early 2010, one Madam Wong, a director of Profit Gem liaised with the applicant and passed to the applicant or her representative some materials to the value of approximately $750,000 for Lung Ngai to process.  The applicant undertook to deliver 220 pieces of finished product (the total value of which exceeded $2 million) to Profit Gem in May 2010.
2010年初，“利鑽”董事黃女士和申請人聯繫並將價值約75萬元的材料交了給申請人或其代表由“龍藝”加工，而申請人承諾會將220件製成品（價值超過200萬元）在2010年5月交回給“利鑽”。

On 25 May 2010, the applicant notified the staff of Profit Gem and confirmed that 220 pieces of finished product would be delivered to Profit Gem on the same day.  However, the applicant did not deliver the finished products to Profit Gem as agreed, and Profit Gem lost contact with the applicant and Lung Kit Shing.
2010年5月25日，申請人知會“利鑽”的職員，確認會在同日將220件製成品送交“利鑽”。但申請人沒有依約將製成品送交“利鑽”，而“利鑽”亦和申請人及龍傑成失去聯絡。

The police found upon investigation that the applicant had pawned 21 of the 220 pieces of finished product and thereby obtained $40,000.  The staff of Profit Gem confirmed that all the 21 pieces of jewellery pawned by the applicant belonged to Profit Gem because they all bore the markings designated by its customer(s).
警方調查後發現申請人將220件製成品中的21件首飾典當，獲得4萬元。“利鑽”員工確認申請人典當的21件首飾全屬“利鑽”，原因是首飾上都有其顧客指定的印記。

In her testimony, Madam Wong detailed her transaction with the applicant.  She said that she had had dealings with the applicant for over ten years and had entrusted her with the task of processing jewellery since 2005.  Madam Wong emphasized that the applicant had always been punctual in delivering finished products but had failed to keep her promise on 25 May 2010 by not only failing to deliver the 220 pieces of finished product in question on that day as agreed but also getting disappeared.
作供時，黃女士詳述她和申請人的交易經過。她指和申請人有10多年的交往，而自2005年已開始委託申請人為首飾加工。黃女士強調申請人一向準時交貨，但在2010年5月25日卻沒有信守諾言，不但沒有依約在當天將涉案的220件製成品送交給“利鑽”，更失去踪影。

Madam Wong stressed that the incident had not only caused monetary loss to Profit Gem, but also ruined the reputation of her company.
黃女士力稱事件不但令“利鑽”損失金錢，更影響其公司的聲譽。

A staff member of Profit Gem confirmed that orders had been placed with Lung Ngai in March and April 2010, involving a total of 220 pieces of jewellery and with the date of completion set for April or May 2010.  According to that staff member, although that batch of jewellery had passed the inspection and the applicant had already issued an invoice for labour cost, no delivery was made despite the lapse of time and the applicant was even nowhere to be found on the day of delivery.
“利鑽”的職員確認在2010年3、4月期間曾向“龍藝”發出訂單，共涉及220件首飾，而完工日期是在2010年4、5月。該職員表示雖然該批首飾已檢驗合格，申請人亦發出工費單，但卻遲遲不交貨，而更在交貨當天失去踪影。

A staff member of a pawnshop confirmed that on 2 June 2010 the applicant pawned a total of 21 pieces of jewellery in two bags, for which the shop gave her $40,000.  All those jewellery items were confirmed to belong to Profit Gem and the remaining 199 pieces of jewellery had all gone missing.
有當舖職員證實申請人曾在2010年6月2日典當了兩包共21件首飾，並取得4萬元。該批首飾獲證實全屬“利鑽”，而其餘的199件首飾則全部下落不明。

Defence
答辯理由

The applicant did not give evidence or call any witness, nor did she contest the prosecution case.  She only contended that the prosecution had failed to prove she had actually stolen all 220 pieces of jewellery in question.
申請人沒有作供自辯，也沒有傳召任何證人，更沒有對控方的案情提出爭辯。她的立場只是控方未能證明她確有盜竊涉案的全部220件珠寶飾物。

Trial judge’s ruling
原審法官的裁定

The trial judge accepted the evidence given by the prosecution witnesses.  In fact the defence had not sought to challenge the credibility and reliability of the prosecution witnesses.
原審法官接納控方證人的證供，事實上辯方對控方證人的可信性和可靠性並沒有提出異議。

The trial judge did not accept the defence’s contention that since not all the materials of the jewellery in question had been provided by Profit Gem, the finished products did not belong to Profit Gem.
原審法官不接納辯方的立場，指“利鑽”沒有提供涉案首飾的全部物料，故製成品不屬於“利鑽”的說法。

He pointed out that Profit Gem had provided the major part of the materials required for the jewellery in question and that, compared with the value of the jewellery as a whole, the value of the remaining components and the labour cost were insignificant.
原審法官指出“利鑽”提供了有關首飾所需物料的主要部分，而其餘組件的價值及工費和整件首飾的價值相比屬微不足道。

He found that even though Profit Gem was not the provider of all materials for the jewellery, the jewellery still belonged to Profit Gem.
原審法官認為即使“利鑽”並非是首飾全部物料的供應者，該批首飾仍屬“利鑽”。

He pointed out that the applicant had on 25 May 2010 clearly indicated to the staff of Profit Gem that all 220 pieces of jewellery were being delivered to Profit Gem, but she not only reneged on her promise but went on to pawn 21 of the pieces, with the remaining 199 pieces disappearing into thin air.  He found that, in the absence of any credible explanation, the only reasonable inference that could be drawn was that the applicant had in fact stolen all 220 pieces of jewellery in question.
原審法官指出申請人曾在2010年5月25日向“利鑽”職員表明正在將全數220件珠寶首飾運送給“利鑽”途中，但申請人不但食言，更將其中21件拿去典當，而其餘199件則不翼而飛。原審法官認為在沒有任何合信的解釋下，唯一的合理推論是申請人確有盜取了涉案的全部220件首飾。

Grounds of appeal against conviction
針對定罪的上訴理由

In his written submission, Mr Chan for the applicant advanced two grounds of appeal.  He said that the trial judge should not have found that the jewellery in question was the property of Profit Gem, and what was more, he should not have inferred, by reason of the applicant not having given evidence, that she had “appropriated” the 199 missing pieces of jewellery.
在其書面陳述，代表申請人的陳德昌大律師提出兩點上訴理由。他指原審法官不應裁定涉案的首飾都是“利鑽”的財物，更不應因為申請人沒有作供而推論她有“挪用”了下落不明的199件首飾。

Mr Chan said that according to the trial judge’s decision, the best part of the value of the 220 pieces of jewellery belonged to Profit Gem, but there was still a small part of the value which was attributable to the labour cost owed to the applicant or which belonged to entities other than Profit Gem.
陳大律師指出根據原審法官的裁決，220件首飾的價值雖然大部分屬於“利鑽”，但有小部分價值是申請人的工費或屬於“利鑽”以外的其他團體。

He emphasized that a very small quantity of crystal stones used on the jewellery in fact came from Lung Ngai instead of Profit Gem, because some of the crystal stones had cracked and Lung Ngai had to replace them with crystal stones of the same type.
陳大律師強調有極少部分用於首飾的晶石並非源自“利鑽”，而是“龍藝”，原因是有部分晶石爆裂而“龍藝”要以相同的晶石替補。

Mr Chan suggested that the relationship between Profit Gem and Lung Ngai was one of bailment for hire of work and labour, the reason being that Profit Gem gave goods to Lung Ngai which then processed those goods in exchange for remuneration.
陳大律師認為“利鑽”和“龍藝”的關係是“來料加工的委託保管”（bailment for hire of work and labour），原因是“利鑽”將貨物交給“龍藝”由“龍藝”將貨物進行加工以換取報酬。

Mr Chan submitted that the trial judge incorrectly understood the relationship between Profit Gem and Lung Ngai.  Mr Chan also argued that the applicant or Lung Ngai had liens in the jewellery in question because Profit Gem had not yet settled the relevant labour cost, and hence that batch of jewellery did not belong to Profit Gem.
陳大律師指原審法官對“利鑽”和“龍藝”的關係理解錯誤。陳大律師更指申請人或“龍藝”對涉案的首飾有留置權（liens），原因是“利鑽”尚未繳付有關工費。因此該批首飾不屬於“利鑽”。

Mr Chan said that with the exception of the 21 pieces of jewellery which the applicant had pawned, the whereabouts of the remaining 199 pieces was unknown.  He suggested that those 199 pieces might have been taken away by others or might still be in the possession of the applicant who exercised the liens.  Hence, the prosecution had (Mr. Chan said) failed to prove that the applicant had “appropriated” those 199 pieces of jewellery.
陳大律師指出除了申請人典當了的21件首飾外，其餘199件則下落不明。陳大律師認為可能是其他人取去該199件首飾，亦可能是申請人行使留置權，繼續管有該199件首飾，故控方未能證明申請人確有“挪用”該199件首飾。

Mr Chan further submitted that the trial judge drew an inference adverse to the applicant on the ground that she had not explained the whereabouts of those 199 pieces of jewellery, and that the judge’s approach showed he had wrongly shifted the burden of proof to the applicant.
陳大律師更指原審法官因申請人沒有就該199件首飾的去向作出解釋，而對申請人作出不利推論。陳大律師認為原審法官的處理手法顯示他錯誤地將舉證責任移至申請人的身上。

In his oral submission, Mr Chan made it clear that no issue would be taken with the allegation that the applicant had stolen the 21 pieces of jewellery that she had pawned.  He submitted that the applicant had stolen only 21 pieces of jewellery, not 220 pieces as alleged by the prosecution.
向法庭作出口頭陳述時，陳大律師表明不會就申請人有盜竊了她典當的21件首飾一事提出異議。他認為申請人只是盜竊了21件首飾而非控方所指的220件首飾。

He asserted that the prosecution evidence did not support an only or irresistible inference that the applicant had actually stolen the remaining 199 pieces of jewellery in question.
陳大律師力稱控方證據不足以導致唯一或不能抗拒的推論，證明申請人確有盜取涉案的其餘199件首飾。

Discussion
討論

There is insufficient legal basis for what Mr Chan said regarding who had the right of possession of the 220 pieces of jewellery in question at the material time.
陳大律師就涉案220件首飾在關鍵時間管有權誰屬的陳述是無足夠法律基礎支持的。

The Theft Ordinance contains detailed provisions on the meaning of “belonging to another”, an essential element of the offence of theft.  Section 6 of the Ordinance defines “belonging to another”  as follows:
《盜竊罪條例》就“盜竊”罪行要素之一“屬於另一人”有詳細的闡釋。根據該條例第6條，“屬於另一人”的釋義如下：

“(1)Property shall be regarded as belonging to any person having possession or control of it, or having in it any proprietary right or interest (not being an equitable interest arising only from an agreement to transfer or grant an interest).
“(1)財產須視為屬於任何管有或控制該財產，或對該財產有任何所有權的權利或權益的人(權益不包括僅由轉讓權益協議或授予權益協議而產生的衡平法權益)。

(2)Where property is subject to a trust, the person to whom it belongs shall be regarded as including any person having a right to enforce the trust, and an intention to defeat the trust shall be regarded accordingly as an intention to deprive of the property any person having that right.
(2)凡財產受到信託的規限，則該財產所屬的人，須視為包括任何有權利強制執行該信託的人，而意圖破壞該信託，則須據此視為意圖剝奪任何擁有該權利的人的財產。

(3)Where a person receives property from or on account of another, and is under an obligation to the other to retain and deal with that property or its proceeds in a particular way, the property or its proceeds shall be regarded (as against him) as belonging to the other.
(3)凡任何人從另一人接收到財產，或為另一人而接收到財產，並對該另一人有義務以特定的方式保有及處理該財產或其收益，則該財產或其收益相對他而言須視為屬於該另一人。

(4)Where a person gets property by another’s mistake, and is under an obligation to make restoration (in whole or in part) of the property or its proceeds or of the value thereof, then to the extent of that obligation the property or its proceeds shall be regarded (as against him) as belonging to the person entitled to restoration, and an intention not to make restoration shall be regarded accordingly as an intention to deprive that person of the property or proceeds.”
(4)凡任何人因他人的錯誤而獲得財產，並有義務歸還全部或部分該財產或其收益或價值，則在該義務的限度之內，該財產或其收益相對他而言須視為屬於該名有權獲歸還財產或收益的人；而意圖不歸還則須據此視為意圖剝奪該人的財產或收益。”

The offence of theft is generally committed against the owner of the property, no matter whether or not the owner is in possession of the property at the material time (R v Hancock [1990] 2 QB 242).  However, the offence may also be committed against someone whose interests in the property are less than those of the owner.
“盜竊”罪行一般是針對財產的物主，不論物主在有關時段是否管有該些財產（R v Hancock [1990] 2 QB 242）。但“盜竊”罪行亦可以是針對財物權益較物主的權益為少的人。

It is even possible to commit the offence against another thief, for the reason that the objective of the Theft Ordinance is to keep the peace of society, not to protect private property rights.
一名賊人甚至可以從另一名同樣是賊人的人盜取財物，原因是盜竊法例目的是維持社會治安，而非為了保障私人財產權益。

The case of R v Smith [2011] 1 Cr App R 379 involved a defendant who, using violence, took away dangerous drugs from the victim.  The defence submission that dishonestly taking away items in illegal possession of another did not constitute theft was not accepted.  The English Court of Appeal held that prohibited items were also “property belonging to another” within the meaning of the UK provision which corresponded to the Theft Ordinance.
R v Smith [2011] 1 Cr App R 379案涉及被告人以暴力取去受害人的毒品。被告人指不誠實取去別人一些非法管有的物品不會構成盜竊的陳詞不獲接納。英國上訴法庭裁定違禁物品仍屬《盜竊罪條例》所指“屬於另一人”的“財產”。

Lord Bridge CJ specified in page 382 of the judgment:
Lord Bridge CJ在判案書第382頁指明：

“The Criminal Law is concerned with keeping the Queen’s Peace, not vindicating individual property rights.”
“刑法和維持社會秩序有關，而非為了澄清個人財產權益。”（非官方翻譯）

The issue in the present case was not whether the civil law principle of “bailment” or other civil law principles had been established, but whether the prosecution had proved each and every element of the charge of theft brought against the applicant (see paragraphs 53-54 of the judgment in HKSAR v Tsang Wai Hung & Others CACC 328/2004).
本案要處理的議題並非民法的“委託保管”原則或其他民法原則是否成立，而是控方是否能夠證明針對申請人盜竊罪的各項元素（見HKSAR v Tsang Wai Hung & Others CACC328/2004案判案書第53-54段）。

In any event, even if the civil law principle of “bailment” was applicable, the applicant still would not be entitled to appropriate the 220 pieces of jewellery.
無論如何，即使引用民法的“委託保管”原則，申請人亦無權把220件首飾據為己有。

The undisputed facts showed that the applicant was under a duty to deliver all 220 pieces of jewellery back to Profit Gem.  She was contractually obliged to return all the jewellery upon completion of the processing work.  On a correct interpretation of the Theft Ordinance, the 220 pieces of jewellery should all be regarded as “belonging to Profit Gem”.
無爭議的案情顯示申請人有責任要將全部220件飾物交回給“利鑽”。申請人的合約責任是在加工完成後將全部飾物交回，故根據《盜竊罪條例》的釋義，該批全部220件飾物須視為“屬於‘利鑽’”。

There was nothing to support Mr Chan’s suggestion that the applicant had exercised a “lien”.  It was not the defence case, nor was there any evidence to show, that Profit Gem had refused to pay or was owing Lung Ngai any processing cost.
陳大律師指申請人行使“留置權”的說法沒有任何基礎作出。辯方沒有指控，更沒有證據顯示“利鑽”有拒絕向“龍藝”支付或欠“龍藝”任何加工費。

The applicant should have returned all 220 pieces of jewellery to Profit Gem upon completion of the processing work, and in fact she had on 25 May 2010 promised to do so.  However, she failed to keep her promise and even pawned 21 of the 220 pieces of jewellery, thereby obtaining $40,000.
申請人理應在加工完畢後將全部220件首飾交回給“利鑽”，而她亦曾在2010年5月25日承諾過會這樣做，但她沒有履行諾言，更將220件首飾中的21件拿去典當，取得4萬元。

The applicant should have, but had never, returned the remaining 199 pieces of jewellery which, as it turned out, had simply gone missing.
申請人亦沒有交還她應交還的其餘199件首飾，而該批首飾更是不翼而飛。

The trial judge pointed out that, the applicant not having put forward any reasonable explanation as to why those 199 pieces of jewellery had disappeared, the only reasonable inference was that the applicant had in fact stolen those jewellery items.  The trial judge did not shift any burden of proof to the applicant.
原審法官指出申請人沒有就該199件首飾不翼而飛作出任何合理的解釋，而唯一合理的推論是申請人確有盜竊該批首飾。原審法官並沒有將任何舉證責任轉嫁到申請人身上。

Applying the principle laid down in the case of HKSAR v Li Defan (2002) 5 HKCFAR 320, the prosecution case was obviously strengthened by the fact that the applicant did not testify or call any witness to explain why she had pawned 21 pieces of jewellery and to clarify the whereabouts of the remaining 199 pieces.
根據HKSAR v Li Defan (2002) 5 HKCFAR 320案定下的原則，申請人不作供或傳召證人，以解釋她典當了21件首飾及另外199件首飾的去向一事明顯加強了控方的舉證力量。

The applicant had all along represented Lung Ngai in dealing with Profit Gem and had on a number of occasions been entrusted with doing processing work for Profit Gem.  Following liaison with the applicant, Madam Wong delivered the raw materials for the jewellery in question to Lung Ngai for processing, and the applicant did expressly indicate that 220 pieces of finished product would be returned to Profit Gem on 25 May 2010.  However, instead of doing so, the applicant pawned 21 pieces of them and gave no account of the remaining 199 pieces.  Regardless of whether the principle laid down in Li Defan was applicable, on the evidence put forward by the prosecution, which had not been rebutted by the applicant, the trial judge felt able to draw the inference that the applicant was guilty.  The basis of the conviction was the applicant had stolen not only the 21 pieces of jewellery but also the remaining 199 pieces.  In our view, the trial judge had taken a correct and sensible approach.
申請人一直代表“龍藝”和“利鑽”交易，並多次獲委託替“利鑽”加工。涉案首飾的原材料是黃女士和申請人聯繫後交了給“龍藝”加工，而申請人有明確表示會將220件製成品在2010年5月25日交回給“利鑽”。但她沒有這樣做，更將其中的21件拿去典當，亦沒有就其餘的199件作出交待。不論上述Li Defan案定下的原則是否適用，在本案控方提出而申請人沒有反駁的證據足以導致原審法官推論申請人有罪的決定，而定罪的基礎不但是申請人有盜取了21件首飾，更盜取了其餘的199件首飾。本庭認為原審法官的處理方法正確、合理。

The conviction of the applicant for theft of all 220 pieces of jewellery was in our judgment neither unsafe nor unsatisfactory.  The applicant’s application for leave to appeal against conviction was dismissed accordingly.
對申請人被裁定盜竊了全部220件首飾罪的罪名成立，本庭不覺有任何不穩妥之處。因此，本庭駁回申請人就定罪的上訴許可申請。

Sentence
判刑

The trial judge said that the present case involved breach of trust and the value of the property was between $1 million and $2 million.
原審法官指出案件涉及違反誠信，而財物價值100萬至200萬元之間。

He emphasized that the applicant had played an important role in the case and that her culpability could not be reduced on the ground that her boyfriend was the boss behind the scene.
原案法官強調申請人在案件中扮演重要角色，不能以其男朋友是幕後老闆為理由以減輕其罪責。

He placed particular emphasis on the fact that the other 199 pieces of jewellery were still missing and that the applicant had not given any account in that connection.
原審法官特別強調，涉案的另外199件首飾仍然下落不明，而申請人亦沒有作出交代。

He adopted 3 years’ imprisonment as the starting point, and reduced the sentence by 4 months to 2 years and 8 months on account of the applicant’s clear record.
原審法官以3年為量刑基準，但因申請人沒有刑事記錄而將刑期扣減4個月至2年8個月。

Mr Chan contended that a term of 2 years and 8 months was manifestly excessive.  He submitted that the value of the raw materials for the jewellery in question was $750,000 or even less, instead of $1 million to $2 million.  He emphasized that Profit Gem had not yet paid Lung Ngai the labour cost.  He asserted that the present case did not involve any breach of trust because there was no employer/employee relationship between the applicant and Profit Gem and the applicant was not a professional who owed fiduciary duties to Profit Gem.
陳大律師指2年8個月的判刑明顯過重，他指涉案首飾的原材料價值是75萬元或更低，而非100萬至200萬元。陳大律師強調“利鑽”仍未支付工費給“龍藝”。陳大律師力稱本案不涉及“違反誠信”，原因是申請人和“利鑽”並沒有僱主/僱員的關係，而申請人亦非對“利鑽”負有“受信責任”的專業人士。

Mr Chan submitted that in considering sentence, the trial judge had failed to take into account the fact that 21 pieces of jewellery had been recovered and that the applicant had been punctual in delivering finished products to Profit Gem ever since she started doing processing work for Profit Gem in 2005.
陳大律師指原審法官判刑時，沒有考慮有21件飾物被起回，亦沒有考慮申請人自2005年開始與“利鑽”加工，每一次都準時交貨。

Discussion
討論

While it was not in dispute that the applicant had all along delivered finished products punctually, this could not possibly be a mitigating factor.  Obviously, it was on account of the applicant’s track record that Profit Gem reposed trust in her and entrusted her with the handling of a substantial quantity of valuable jewellery.  However, the applicant breached that trust and stole a large quantity of jewellery from Profit Gem.  Although the applicant was neither an employer of Profit Gem nor a professional who owed fiduciary duties to Profit Gem, she stole the valuable jewellery from Profit Gem, taking advantage of her business dealings with Profit Gem over the years and the trust that Profit Gem had reposed in her.  This constituted an aggravating factor.
申請人以往準時交貨是不爭事實，但該點絕非減刑理由。“利鑽”明顯是因為申請人過往的記錄而信任她及委託她處理大量價值不菲的珠寶首飾，但申請人卻違反信任，盜去“利鑽”的大批珠寶首飾。申請人不是“利鑽”的僱主，亦非對“利鑽”負有“受信責任”的專業人士，但她利用和“利鑽”多年業務往來及“利鑽”對她的信任，而盜取“利鑽”價值不菲的珠寶首飾。上述事件構成加重罪責因素。

The relationship between the applicant and Profit Gem is not necessarily one of those relationships set out in R v Barrick (1985) 81 Cr App R 78 and R v Clark [1998] 2 Cr App R 137 which would give rise to breach of trust.  The examples of breach of trust given in those two cases are merely illustrative and not intended to be exhaustive.  Breach of trust is a crucial sentencing factor which reflects the seriousness of the offence of stealing, from the very person who trusts the offender, property with which that person has entrusted the offender.  From this perspective, the offence committed by the applicant also involved breach of trust.
申請人和“利鑽”的關係不一定是R v Barrick (1985) 81 Cr App R 78及R v Clark [1998] 2 Cr App R 137案所列舉會導致“違反誠信”的關係，但該兩宗案件列出的“違反誠信”例子只是樣本而非例子的全部。“違反誠信”是判刑的關鍵因素，是為了反映獲他人信任去處理財物的人監守自盜的罪行的嚴重性。從這角度考慮事件，申請人的罪行亦屬“違反誠信”。

Furthermore, we did not think that the recovery of 21 pieces of jewellery by the police could serve to alleviate the severity of the case.  In respect of those 21 pieces, the victim might be Profit Gem or the pawnshop, but the applicant was the one who had stolen and pawned those items and obtained $40,000 thereby.  In any event, whether Profit Gem had lost 220 or 199 pieces of jewellery would not materially affect the sentence imposed on the applicant.
本庭更不認為警方起回21件珠寶能減輕事件的嚴重性。該21件珠寶的損失者可能是“利鑽”，亦可能是當舖，但申請人卻是盜取及典當了21件珠寶並取去得來的4萬元的人。無論如何，不論“利鑽”損失的是220件或199件珠寶，對申請人的判刑不具實質影響。

The value of the 220 pieces of jewellery should not be calculated solely by reference to the price of the raw materials.  The Court should be concerned with the value of that batch of jewellery and the economic loss suffered by Profit Gem as a result of the offence committed by the applicant.  Apart from raw materials, the value of the jewellery should also reflect such factors as design and profit.
計算涉案的220件珠寶的價值時，不應單以該批珠寶的原材料價為基準。法庭應關注的是該批珠寶的價值及申請人的罪行所引至“利鑽”的經濟損失。除了原材料外，該批珠寶的價值理應包括設計、盈利等等因素。

The prosecution case, which the applicant was unable to rebut on any ground, was that according to Madam Wong’s evidence, the value of the 220 pieces of jewellery in question was $2 million odd.  By taking the value of the jewellery in question at $1 million to $2 million as the sentencing basis, the trial judge had adopted an approach which was very generous to the applicant.
控方的立場是根據黃女士的證供，涉案的220件珠寶的價值是200多萬元，而申請人亦不能就該立場提出任何反駁理由。原審法官判刑時以該批珠寶的價值是介乎100萬至200萬元之間為基礎已經是對申請人十分有利的做法。

In our view, having regard to the facts of the case as a whole, the sentence of imprisonment for 2 years and 8 months imposed on the applicant was not manifestly excessive and there was no room for further reduction.
本庭認為以整體案情而言，申請人被判的2年8個月監禁，並非明顯過重無再扣減餘地。

For the above reasons, we have also refused to grant leave to the applicant to appeal her sentence.
因此，本庭亦不批准申請人就判刑提出上訴。

Mr Alain Sham, DDPP of the Department of Justice for the Respondent.
答辯人：由律政司副刑事檢控專員沈仲平代表。

Mr Edward Chan instructed by Messrs KL Leung & Co for the Applicant.
申請人：由梁家樂律師行轉聘大律師陳德昌代表。