Hon Cheung JA (giving the judgment of the Court):
上訴法庭法官張澤祐頒發上訴法庭判案書：

Application for leave to appeal conviction
定罪上訴許可申請

The 1st and 2nd applicants were respectively charged with eight counts of “conspiracy to defraud”, contrary to the common law and punishable under section 159C(6) of the Crimes Ordinance (Cap. 200 of the Laws of Hong Kong).
第一及第二申請人分別被控八項「串謀詐騙」罪，違反普通法，並可根據《刑事罪行條例》(香港法例第200章)第159C(6)條予以懲處。

The 1st Charge was laid against the 1st and 2nd applicants, the 2nd to 7th Charges against the 1st applicant, and the 8th Charge against the 1st and 2nd applicants and the 3rd defendant in the same case.
第一項控罪是針對第一及第二申請人。第二至第七項是針對第一申請人。第八項控罪是針對第一、第二申請人及同案的第三被告人。

The case was tried before District Judge Joseph Yau.  Judge Yau found the 1st and 2nd applicants not guilty on the 1st Charge, but convicted them on the 2nd to 8th Charges that they respectively faced.  The 3rd defendant was found not guilty on the 8th Charge.  The 1st and 2nd applicants now seek leave to appeal their respective convictions.
案件經區域法院法官邱智立審理。邱法官裁定第一、二申請人第一項控罪不成立，但第二至第八項控罪罪名成立。邱法官裁定第三被告人的第八項控罪罪名不成立。第一及第二申請人就定罪提出上訴許可申請。

Particulars of the charges
控罪詳情

1st Charge
控罪一

The 1st Charge alleged that the 1st and 2nd applicants conspired together with Chan Kam Tong (“PW1”) to fraudulently induce Singapore Exchange Limited (“SGX”) to approve the listing of Daka Designs Limited (“Daka Designs”) on SGX;
控罪一指稱第一及第二申請人與陳錦棠(‘控方第一證人’)串謀以欺詐手段誘使「新加坡交易所有限公司」(「新交所」)批准 Daka Designs Limited (‘Daka Designs’) 在「新交所」上巿；

2nd to 7th Charges
控罪二至七

The 2nd to 7th Charges alleged that the 1st applicant conspired together with PW1 to fraudulently induce and cause six banks to grant loans as detailed below:
控罪二至七均指控第一申請人與控方第一證人串謀以欺詐手段誘使和致使分別六間銀行批出貸款：

1)8 October 2003, KBC Bank N.V., $1,001,756.80 (2nd Charge);
1)2003 年 10 月 8 日，「比利時聯合銀行」$1,001,756.80 (控罪二)；

2)4 February 2004, Citibank, N.A., $460,000 (3rd Charge);
2)2004 年 2 月 4 日，「花旗銀行」，$460,000 (控罪三)；

3)4 February 2004, DBS Bank (Hong Kong) Limited, $650,000 (4th Charge);
3)2004 年 2 月 4 日，「星展銀行(香港)有限公司」$650,000 (控罪四)；

4)4 February 2004, Bank of China (Hong Kong) Limited, $396,000 (5th Charge);
4)2004 年 2 月 4 日，「中國銀行(香港)有限公司」$396,000 (控罪五)；

5)16 March 2005 and 24 May 2005, The Hongkong and Shanghai Banking Corporation Limited, $1,935,000 and $594,000 respectively (6th Charge); and
5)2005 年 3 月 16 日及 2005 年 5 月 24 日，「香港滙豐銀行有限公司」，分別為 $1,935,000 及 $594,000 (控罪六)；及

6)24 March 2005, Hang Seng Bank, $2,481,800 (7th Charge).
6)2005 年 3 月 24 日，「恒生銀行」 $2,481,800 (控罪七)。

8th Charge
控罪八

The 8th Charge alleged that 1st and 2nd applicants and the 3rd defendant conspired together with Ho Ka Chun (“PW9”) to fraudulently inflate the turnover and profit figures of a subsidiary of Daka Designs, thereby misleading existing and potential shareholders of Daka Designs and SGX as to the true financial position of Daka Designs; preventing them from making an informed decision as to whether to invest or further invest in Daka Designs; and inducing SGX to believe that Daka Designs had complied with its obligation to publish a true and accurate annual report and thereby preventing SGX from taking any action against Daka Designs for its failure to so comply.
控罪八指控第一、二申請人、第三被告人與何家駿(‘控方第九證人’)串謀以欺詐手段誇大 Daka Designs 的附屬公司的營業額及利潤數字，從而就 Daka Designs 的真正財務狀況誤導 Daka Designs 的現有和潛在股東，及「新交所」；阻止他們就是否投資或進一步投資 Daka Designs 作出知情的決定; 以及誘使「新交所」相信 Daka Designs 已履行其責任發佈真實而準確的年報，並從而阻止「新交所」就 Daka Designs 沒有履行責任而向其採取任何行動。

Prosecution case
控方案情

Background
背景

We have adopted the facts of the prosecution and defence cases as provided by Mr Martin Hui, SADPP and Ms Cecilia Chan, SPP for the respondent and the supplements thereto.
本庭採納代表答辯人的高級助理刑事檢控專員許紹鼎及高級檢控官陳詩韻所提供的控辯雙方案情及加以補充。

The 1st and 2nd applicants were directors and chief decision makers of Daka Development Limited (“DDL”).  The 1st applicant was a chartered accountant responsible for the financial affairs of the company.  The 2nd applicant was mainly responsible for creating and developing products.  The 3rd defendant was an employee within the Daka Group.
第一、二申請人為「特嘉發展有限公司」(‘DDL’) 的董事及最高決策人。第一申請人是一名特許的會計師，負責公司的財務。第二申請人主要是負責產品開發。第三被告人是特嘉集團的僱員。

At the material time, PW1 was a shareholder of T & K Industrial Company Limited (“T&K”), a company engaged in manufacturing and processing plastic components.  Chan Mui Chun (“PW2”) was PW1’s wife and was a director of T&K, responsible for the accounting work of T&K.
在案發期間控方第一證人是「千基實業有限公司」(「千基」)的股東，從事製造塑膠零件及加工的生意。陳梅珍(‘控方第二證人’)是控方第一證人的太太，她是「千基」的董事，負責「千基」的會計工作。

PW9 and his wife were shareholders and directors of MHM Marketing Co. Ltd. (“MHM”).
控方第九證人及其妻子是「寧康有限公司」(‘MHM’)的股東及董事。

Since 1996, T&K had supplied plastic components to DDL and performed processing work for DDL.  Subsequently, DDL and PW1 jointly set up one Kentat Industrial Limited (“Kentat”) in Hong Kong.  Kentat had a factory in Dongguan, which was called “Kentat Plastic, Metal & Electronics Factory” (transliteration) (“Kentat Factory”).  This factory provided manufacturing services for DDL only.
「千基」自 1996 年開始已成為 DDL 的塑膠零件供應商及替 DDL 進行加工工作。後來 DDL 與控方第一證人合作在香港成立「建達實業有限公司」(「建達」)。「建達」於東莞設有廠房，名為「建達塑膠五金電子廠」(「建達廠房」)。此廠房只為 DDL 提供生產服務。

In mid-2002, PW1 transferred all his 50% shareholding in Kentat to DDL, following which Kentat was renamed “Daka Industrial Limited” (“DIL”), and in August 2002 Kentat Factory was also renamed “Daka Manufacturing Limited” (“DML”).  Subsequently, PW1 also became the corporate representative of DML, and DDL transferred 50% DIL shares back to PW1.
2002 年中，控方第一證人將他在「建達」的全部 50% 股份轉讓給 DDL。繼而「建達」亦改名為「特嘉實業有限公司」(‘DIL’)，而「建達廠房」亦於 2002 年 8 月改名為「東莞特嘉塑膠五金電子有限公司」(‘DML’)。控方第一證人其後亦出任 DML 的法人代表，因此 DDL 將 50% 的 DIL 股份轉回到控方第一證人名下。

For the purpose of tax arrangement, DDL set up one Briga Group (Macao Commercial Offshore) Company Limited (“Briga”’) in Macao on 26 November 2002.
為了稅務安排，DDL 於 2002 年 11 月 26 日在澳門成立了「碧嘉集團(澳門離岸商業服務)有限公司」(‘Briga’)。

In 2003, the 1st and 2nd applicants planned to have their business listed on the Main Board of SGX.  For this purpose, Daka Designs was set up in Burmuda on 5 March 2004.  The 1st and 2nd applicants were, respectively, the Chief Executive Officer and Executive Chairman of Daka Designs.  Both DDL and Briga subsequently became subsidiary companies of Daka Designs.
2003 年第一及第二申請人計劃將他們的業務在「新交所」主版上巿。為此 Daka Designs 於 2004 年 3 月 5 日在百慕達成立。第一及第二申請人分別為 Daka Designs 的行政總裁及執行主席。DDL 及 Briga 後來都成為 Daka Designs 的子公司。

Subsequently Daka Designs applied for listing on SGX.  The prospectus was issued on 2 July 2004, and Daka Designs was formally listed on the Main Board of SGX on 16 July.
Daka Designs 其後申請在「新交所」上巿。於 2004 年 7 月 2 日印發招股書，並於 7 月 16 日正式在「新交所」主板上巿。

In July 2005, SGX considered various acts of Daka Designs suspicious and therefore appointed KPMG (Singapore) (“KPMG”) as an independent accountant to carry out auditing and investigation on Daka Designs.  In the end, Daka Designs was suspended from trading as from 15 January 2006.
2005 年 7 月「新交所」就 Daka Designs 的種種行為認為可疑，於是委任會計師行 KPMG (新加坡) (‘KPMG’) 作為獨立會計師，對 Daka Designs 進行核數及審查。Daka Designs 最終於 2006 年 1 月 15 日正式停牌。

1st Charge
控罪一

Although Judge Yau has found the two applicants not guilty of the 1st Charge, we shall give a brief account of the facts of this charge so as to facilitate a more thorough understanding of the present case.  The prosecution alleged that the 1st and 2nd applicants and PW1 had conspired, by means of a false transfer of shares (namely by transferring 32% of DIL shares from DDL to PW1, thereby reducing DDL’s shareholding in DIL to 18%), to dishonestly cause DIL to be converted from an associate company of DDL to an investee company, so that Daka Designs misrepresented the financial positions of Daka Designs and DDL when applying to SGX for listing, thereby induced SGX to approve the listing application of Daka Designs.
雖然邱法官裁定兩名申請人控罪一罪名不成立，但為對本案有更全面的理解，故此在此簡述這控罪的案情。控方指第一及第二申請人與控方第一證人串謀不誠實地以一個虛假的股權轉讓(即將 32% DIL 的股份，由 DDL 轉到控方第一證人名下，令 DDL 所擁有的 DIL 股份減至 18%)，導致 DIL 由原本是 DDL 的「聯營公司」(associate company) 變為「投資公司」(investee company)，使 Daka Designs 在「新交所」申請上市時，就 Daka Designs 及 DDL 的財務狀況作出失實的陳述，誘使「新交所」批准 Daka Designs 上巿。

PW1 said that although he was the majority shareholder in DIL, he was only a shareholder in name and, in respect of any profit or loss of DIL, would not receive any bonus or assume any liability corresponding to his shareholding.  He did not manage or operate DIL.  The 1st and 2nd applicants and the 1st applicant’s wife remained the final decision makers of DIL and DML.  All documents relating to DIL were signed by PW1 upon the 1st applicant’s request.
控方第一證人說雖然他擁有 DIL 的大多數股份，但其實他只是掛名的股東，任何 DIL 的盈利或虧損，他也不會按持股量分紅或承擔責任。他沒有管理及營運 DIL。DIL 及 DML 的最終決策人仍然是第一、第二申請人及第一申請人的妻子。所有有關 DIL 的文件都是他依照第一申請人的要求簽署的。

2nd to 7th Charges
控罪二至七

The 2nd to 7th Charges were of the same nature and involved a modus operandi similar to cases of “letters of credit fraud”.  As DDL urgently needed money to resolve cashflow problems, the 1st applicant requested PW1 to issue false commercial invoices which falsely claimed that T&K was seeking payment from DDL for goods purportedly produced for DDL, and DDL used those false invoices to apply to banks for loans.  After loans had been granted by the banks, the monies were deposited into T&K’s bank account.  Upon receiving these monies, PW1 immediately deposited them into DIL’s account, and eventually the 1st and 2nd applicants transferred these monies back to DDL’s accounts within a short period of time.
控罪二至七是性質相同的控罪，涉及類似「信用狀詐騙」的犯罪手法。由於 DDL 急需金錢周轉，第一申請人要求控方第一證人開出虛假的商業發票，訛稱「千基」向 DDL 收取聲稱為 DDL 製造產品的貨款，讓 DDL 利用這些虛假的商業發票向銀行申請貸款。銀行批出貸款後，便將這些款項存到「千基」的銀行戶口，控方第一證人收到這些款項後，便馬上將他們存入 DIL 的戶口，最終第一或第二申請人亦於短時間內將這些款項轉回 DDL 的戶口。

8th Charge
控罪八

The prosecution case alleged that MHM, upon the 2nd applicant’s request, had placed a false “special order” with DDL in order to inflate the turnover and profit figures of Briga in the annual report of Daka Designs for the financial year ended 31 March 2004.  The facts relied on by the prosecution to prove its case included:
控方案情指 MHM 應第二申請人要求與 DDL 訂立虛假的「特別訂單」，從而誇大 Daka Designs 於截至 2004 年 3 月 31 日止財政年度的年報中關於 Briga 的營業額及利潤數字。控方依賴證案的事實包括：

20.1)MHM issued a “special order” to purchase goods for a sum of approximately $8,900,000 but was not obliged to pay a deposit or take delivery of the goods and was not required to bear the risk of that order.
20.1)MHM 發出「特別訂單」購買約 $8,900,000 的貨物，但沒責任支付訂金或提貨，而且不用承擔這訂單的風險。

20.2)PW9 was given a reward of $100,000 as a result.
20.2)控方第九證人更因此獲得 $100,000 獎勵。

20.3)In order to make the “special order” appear genuine, PW1 and PW2 provided money to PW9 for the purposes of paying the deposit and reducing the amount owed by MHM as appearing in the books of DDL by reason of the “special order”.
20.3)為了令這「特別訂單」看來是真實的，控方第一及第二證人更提供金錢給控方第九證人，讓他去支付訂金及減輕 MHM 在 DDL 帳目上因「特別訂單」所欠的貨款。

20.4)In order to have the profit of the “special order” included in the annual report of Daka Designs for the financial year ended 31 March 2004, before the auditors carried out the stocktaking exercise, DDL/Briga moved the finished and semi-finished materials under the “special order” from DML to the warehouse of T&K (PW1), and a “goods receipt acknowledgement” dated back to 31 March 2004 was prepared and handed to the auditors.
20.4)為了令這「特別訂單」的利潤包括在 Daka Designs 截至 2004 年 3 月 31 日的財政年度的年報中，在核數師進行盤點前 DDL/Briga 將「特別訂單」的物料製成品及半製成品由 DML 搬到「千基」(控方第一證人)的貨倉。並要準備一張「收貨確認書」，將日期追溯到 2004 年 3 月 31 日，交給核數師。

20.5)Subsequently, when MHM purchased goods from Briga with genuine orders, PW9 issued purchase orders and paid for the goods in accordance with the normal procedures.  However, Briga had to treat them as delivery of goods under the “special order” in batches, and therefore an alphabet was added at the end of the invoice numbers of the commercial invoices of the “special order” for ease of identification.
20.5)其後，MHM 用真正訂單向 Briga 購貨時，控方第九證人依正常程序開出購貨單及繳付貨款。但 Briga 卻要當作是「特別訂單」分段出貨，因此出現「特別訂單」商業發票編號後加上一個英文字母作識別。

20.6)In the end, in order to resolve the problems with the goods and accounting records, goods which on the face of the accounts had not been received by MHM had to be returned and refund by DDL had to be arranged.
20.6)最終，為解決貨物和帳目問題，要從帳面上退回 MHM 沒有收的貨物並安排 DDL 退款。

20.7)During the KPMG investigation, the applicants requested PW9 to falsely represent that the unit price of $936 for the mosquito trap of model number FT66 was acceptable, and that the money given by the 2nd applicant to PW9 to pay the deposit of the “special order” and reduce the amount payable by MHM for the “special order” was lent to him by the 2nd applicant by way of personal loan.
20.7)當被 KPMG 調查時，申請人要求控方第九證人訛稱 FT66 型號驅蚊器的 $936 單價可以接受，及訛稱第二申請人給控方第九證人「特別訂單」的按金和扣減 MHM 在「特別訂單」所欠的貨款的錢是第二申請人給他的私人貸款。

Defence case
辯方案情

2nd to 7th Charges
控罪二至七

The 1st applicant neither testified nor called any defence witness at trial.  His case, as revealed by cross-examining the witnesses, was that the commercial invoices in relation to the 2nd to 7th Charges were all issued pursuant to genuine commercial transactions.
第一申請人在審訊時沒有作供，亦沒有傳召任何辯方證人。他經盤問證人帶出的辯方案情，是指稱有關控罪二至七 的商業發票全是建基於真正的商業交易。

8th Charge
控罪八

The 1st and 2nd applicants did not testify at trial.  It can be discerned from their cross-examination of PW9 that their defence to the 8th Charge was that the “special order” was a normal commercial transaction.  The 2nd applicant called one defence witness, namely Mr Ngai Tsang Kwong, who was the senior production materials control planner at DDL.  Mr Ngai said that at the material time DDL did manufacture goods in relation to the “special order”.
第一及第二申請人在審訊時沒有作供。從他們盤問控方第九證人的過程可以得知，辯方就控罪八的答辯理由是這「特別訂單」是一個正常的商業交易。第二申請人傳召了一名辯方證人魏增光先生。魏先生是 DDL 的 senior production materials control planner。他聲稱 DDL 當時的確有生產與「特別訂單」有關的貨物的。

Judge Yau’s reasons for verdict
邱法官的裁決理由

1st Charge
控罪一

Judge Yau found all prosecution witnesses veracious and reliable.  He found that the shares transfer was false.  Nevertheless, he held that the 1st Charge was not established because he accepted the evidence given by an expert witness Yam Tak Fai (“PW12”) that, no matter whether DIL was an “associate” or “investee” company, Daka Designs was neither required to disclose nor liable for the losses of DIL and DML, and therefore, from the perspective of Daka Designs, SGX, creditors of Daka Designs and potential investors, whether such false share transfer existed would not have made any difference.
邱法官裁定所有的控方證人均為誠實可靠。他裁定該股權轉讓是虛假的。但他裁定控罪一罪名不成立的原因是他接納專家證人任德輝(‘控方第十二證人’)的證供，無論 DIL 是「聯營」或「投資」公司，Daka Designs 都無須披露和負起 DIL 及 DML 的虧損責任，因此對 Daka Designs、「新交所」、Daka Designs 的債權人或潛在投資者來說，有沒有這虛假股份轉讓根本上就沒有分別。

Judge Yau held that although this false shares transfer gave rise to the misrepresentations of financial positions in the prospectus of Daka Designs, this was (in the Judge’s view) not a result envisaged by the conspiracy agreement between PW1 and the 1st applicant.  The Judge found that their initial agreement, which was only intended to relieve Daka Designs of its duty to disclose the losses suffered by DIL and DML, did not constitute any criminal offence.  Moreover, that agreement could not be extended to cover the final disclosure by Daka Designs of false financial positions in the prospectus.  As far as the 2nd applicant was concerned, Judge Yau found there was not sufficient evidence to prove that he had knowledge of the agreement between the 1st applicant and PW1, and therefore the 2nd applicant was also found not guilty of the 1st Charge.
邱法官認為雖然此虛假股份轉讓，是令到 Daka Designs 在招股書中的財務狀況有失實的資料，但他認為這並非控方第一證人及第一申請人串謀協議所期望得到的結果。邱法官認為他們最初的協議，僅意圖解除 Daka Designs 須披露 DIL 及 DML 的虧損的責任，根本就不構成罪行。而該協議亦不能伸延至包括最終令 Daka Designs 於招股書中披露了失實的財務狀況。就第二申請人而言，邱法官裁定證據不足以證明他知道第一申請人與控方第一證人的協議，因此亦裁定第二申請人就控罪一罪名不成立。

2nd to 7th Charges
控罪二至七

Judge Yau accepted PW1’s evidence.  The 1st applicant requested T&K to issue, in the absence of a genuine underlying commercial transaction, false commercial invoices purporting to seek payment for goods from DDL.  The 1st applicant then successfully obtained loans from banks by using these commercial invoices.  After the banks passed the loan monies to T&K, PW1 arranged for the monies to be returned to the 1st applicant.
邱法官接納控方第一證人的證供。第一申請人要求「千基」開出沒有真正商業交易為基礎的虛假商業發票，向 DDL 收取貨款。第一申請人從而利用這些商業發票向銀行獲得貸款，而銀行把這些貸款支付給「千基」後，控方第一證人安排把這些款項交還給第一申請人。

8th Charge
控罪八

Judge Yau accepted PW9’s evidence and found that the “special order” was a sham transaction set up for the sole purpose of inflating the turnover and profit figures of Daka Designs in the financial report for the year of 2004.  He found that, by inflating these turnover and profit figures, the 1st and 2nd applicants intended to mislead SGX into believing that Daka Designs had complied with its obligation to publish a true and accurate annual report, and also intended to mislead existing and potential investors of Daka Designs so as to prevent them from making an informed decision as to whether to invest or further invest in Daka Designs.
邱法官接納控方第九證人的證供及裁定「特別訂單」是虛假的交易，目的只是用來誇大 Daka Designs 在 2004 年度財政報告中的銷售額及利潤數字。邱法官裁定第一及第二申請人的意圖是以這些誇大的銷售額和利潤數字來誤導「新交所」，使「新交所」相信 Daka Designs 已經履行責任，發佈真實和準確的年報及誤導 Daka Designs 的現有及存在投資者，阻止他們對 Daka Designs 是否投資或者進一步投資作出知情的決定。

Appeal by the 1st applicant
第一申請人的上訴

1)  First ground of appeal (applicable to all charges)
1)  第一項上訴理據(適用於各項控罪)

1.  Stay of proceedings
1.  擱置聆訊

1)At trial, the 1st applicant applied for a permanent stay of the proceedings in the present case on the ground that the ICAC had deliberately infringed his legal professional privilege (“LPP”), and such infringement so seriously affronted the court’s sense of justice and propriety as to justify an order staying the proceedings.
1)第一申請人在原審時申請永久擱置本案聆訊，理由是廉政公署(「廉署」)蓄意侵犯他的法律專業保密權利(legal professional privilege)(「保密權」)，嚴重違反法庭對公義和公正行為所持的標準，足以令法庭命令中止這案件。

27.2)Judge Yau heard the application and dismissed it.  As he then had to conduct the trial of the case, the reasons for his decision dismissing the application were not delivered until the conclusion of the trial.
27.2)邱法官就該申請進行聆訊及駁回這申請。邱法官在駁回申請後，因為接着要進行案件的審訊，因此延至審訊完畢才頒發判決理由。

27.3)After the prosecution and the 1st applicant made their final submissions on the application for stay, the 2nd applicant also applied for a stay of the proceedings on the same ground.  Judge Yau allowed the 2nd applicant to make the application but also dismissed it in the end.
27.3)第二申請人在控方及第一申請人在有關擱置聆訊申請完成最後陳詞後亦以同一理由加入擱置聆訊申請。邱法官批准第二申請人作出有關申請，但同樣駁回申請。

1.1  Background to the applications
1.1  申請背景

27.4)The background against which the 1st and 2nd applicants alleged that the ICAC had infringed their LPP is as follows.
27.4)第一及第二申請人聲稱廉署侵犯他們的保密權的背景如下。

27.5)In December 2005, KPMG was appointed by SGX to carry out investigation on DDL and Daka Designs, the scope of which was similar to that covered by the criminal prosecution in the present case.
27.5)2005 年 12 月，KPMG 由「新交所」委托向 DDL 及 Daka Designs 進行審查，而審查的範圍與本案的刑事檢控部分相若。

27.6)In the course of investigation, KPMG suggested interviewing five senior officers of DDL, including the 1st and 2nd applicants, the 3rd defendant and a former accounting employee of DDL, Miss Wong Yuet-ying, Judy (“Miss Wong”).  In order to prepare for the interview with KPMG, these five senior officers met and sought legal advice from a female solicitor and a trainee solicitor at the office of Messrs. Sidley Austin (misspelt as “Sydney” Austin in the Reasons for Verdict of the trial) in Hong Kong.
27.6)KPMG 在審查中提出接見 DDL 的五位高層人員，包括第一、二申請人、第三被告人及 DDL 的一位前會計僱員黃月影 Judy 小姐(‘黃小姐’)。這五位高層人員為了準備 KPMG 的會見，在香港 Sidley Austin (原審時裁定理由書誤串成‘Sydney’ Austin) 律師事務所與一名女律師及一名見習律師會面，聽取法律意見。

27.7)Miss Wong testified at the trial of the present case as a witness under immunity.  In one of the non-prejudicial statements (hereinafter “NPS”) taken from Miss Wong, the ICAC recorded what transpired at the meeting between the five of them and the lawyers.
27.7)黃小姐在本案正式審訊時以特赦證人身分作供。廉署在其中一份向黃小姐提取的「不具損害性證人陳述書」(Non- prejudicial Statement) (簡稱 NPS)中紀錄他們五人該次與律師會談的過程及內容。

27.8)Judge Yau briefly recounted the prosecution evidence involved in the application for stay:
27.8)邱法官簡述擱置聆訊申請的控方證供：

“Prosecution evidence
「控方證供

12.The prosecution has called four witnesses. As mentioned above, PW1, Miss Wong Yuet-ying, Judy gave evidence under immunity from prosecution granted by the Secretary of Justice. On 24 September 2007, she was arrested by the ICAC for the present case and two records of interviews were taken from her under caution on the same day. Between 28 September and 14 December 2008, she was interviewed by the ICAC for ten times, as a result of which the NPS which forms the subject of this voir dire hearing was prepared.
12.控方一共傳召了四位證人。控方第一證人黃月影Judy小姐，如上文所述，是在律政司司長給予豁免起訴的情況下作供。她於2007年9月24日，因本案被廉署拘捕及於同日在警誡下提供了兩份會面紀錄。由2008年9月28日至12月14日期間，她被廉署人員接見十次後，完成了這案中案聆訊涉及的NPS。

13.According to PW1, in the course of the recording, the ICAC asked her questions and then she answered. PW1 agreed that the NPS referred to KPMG’s investigation on DDL and Daka Designs, and to the assistance rendered by Messrs. Sydney Austin to the three defendants in dealing with this investigation and writing a report for submission to KPMG. PW1 pointed out that she took the initiative to talk about the communication between the defendants and the law firm, and the ICAC officers neither asked her about it nor stopped her from talking about it.
13.控方第一證人說錄取過程中是由廉署向她發問問題，然後由她作答。控方第一證人同意，NPS內提及KPMG對DDL和Daka Designs的調查，及Sydney Austin律師事務所協助三位被告人處理這調查及撰寫報告呈交KPMG的事項。控方第一證人指出，有關被告人與律師事務所溝通的事，是她自己主動說出來的，廉署人員並沒有向她發問，但也沒有制止她。

14.The NPS mentioned that KPMG would like to interview certain people and some staff members of DDL and Daka Designs, who therefore sought legal advice before the interview. This legal consultation took place in March 2006, at which these people were received by a female solicitor and a female trainee solicitor called Rosa. The NPS recorded the course of this meeting and the gist of what the lawyers had said and the legal advice given. PW1 said in the court that she had talked about that on her own initiative but the ICAC officers had not stopped her. Upon being asked by the ICAC officers, she disclosed who had attended this legal conference.
14.NPS內提及KPMG要接見某些人及DDL和Daka Designs的某些員工，及他們因此在接見前尋求法律意見。這法律諮詢於2006年3月份進行，由一位女律師及一位名叫Rosa的女見習律師接見這些人。NPS內紀錄了這會面的過程及律師的說話和給予的法律意見的撮要。控方第一證人在庭上說，這是她自己說出來的，但廉署人員沒有制止她。在廉署人員的詢問下，她說出了有哪些人出席這個法律會面。

15.PW1 said that the ICAC first showed her a draft NPS for her perusal and amendment, and subsequently on 14 December 2008 she signed the formal NPS which had been amended.  PW1 pointed out that during all these interviews, the ICAC officers had not explained to her about LPP [i.e. legal professional privilege,], and she had not signed any document waiving this privilege.
15.控方第一證人指廉政公署先把NPS的草稿給她閱讀及修改，之後她於2008年12月14日才簽署修改後的正式NPS。控方第一證人指出，在這多次的會面過程中，廉署人員並沒有向她解釋過LPP[即legal professional privilege「保密權」]，而她亦沒有簽署任何文件放棄這特權。

16.PW2, ICAC Investigator Mr Sze Chiu-kwan, and PW3, Investigator Miss Ho Tsui-shan were the ICAC officers responsible for taking the NPS from PW1. PW3 was an assistant investigator at that time. PW2 was responsible for asking questions and taking notes, and PW3 showing relevant documents to PW1 for her as reference. PW3 was present at all the interviews; PW2 was absent from two of them and on those occasions PW3 interviewed PW1 by herself.
16.控方第二證人，廉署調查主任施超群先生及控方第三證人調查主任何翠珊小姐是負責替控方第一證人錄取NPS的廉署人員。當時控方第三證人仍是一名助理調查主任。控方第二證人負責發問及寫下筆記，控方第三證人則負責將有關文件給控方第一證人參閱。控方第三證人出席了每一次會面，而控方第二證人有兩次缺席，由控方第三證人單獨會見控方第一證人。

17.PW2 said that when taking the NPS, PW1 volunteered the relevant information about Messrs. Sydney Austin representing DDL and Daka Designs in answering KPMG’s questions.  At that time the issue of LPP did not come to his mind because his training in this aspect focused on monitoring and surveillance.
17.控方第二證人指出錄取NPS時，是控方第一證人自己說出Sydney Austin律師事務所代表DDL及Daka Designs去回答KPMG問題的有關事項。他當時並沒有想過有關LPP的問題，因為他在這方面的訓練主要集中於監控及監聽的情況。

18.PW2 noticed that some of what PW1 had said in the NPS differed from what she had said in the statement(s) given to KPMG in 2006 and the cautioned statements given to the ICAC in 2007. When PW2 sought clarification from PW1, PW1 said on her own initiative that she and others had met and obtained legal advice from a female lawyer and a female trainee solicitor at Messrs. Sydney Austin. PW2 admitted he had not mentioned in his witness statement that it was under such circumstances that PW2 [should be PW1] had talked about this legal conference.
18.控方第二證人發覺控方第一證人在NPS中的一些說法與她於06年給予KPMG的口供和07年給予廉署的警誡供詞內所說的有所不同。當控方第二證人要求控方第一證人澄清時，控方第一證人主動說出了她與其他人一起到Sydney Austin律師事務所見一名女律師和一名女見習律師，並獲取法律意見的情況。控方第二證人承認他在證人陳述書裡，沒有提及控方第二證人[應該是第一證人]是在這情況下說出這法律會面的。

19.PW3 said that it was after PW1 made mention of this legal conference that PW2 asked her when she went to the law firm.  PW2 wrote down what PW1 said and the content of the legal advice in his notebook and later wrote them down in the NPS.
19.控方第三證人說是控方第一證人說出這法律會面後，控方第二證人才問控方第一證人是甚麼時候上律師事務所的。控方第二證人把控方第一證人的說話及法律意見的內容寫在他的筆記內及後來寫了在NPS上。

20.PW4, Miss Chu Mei-po, ICAC Senior Investigator, has been the officer-in-charge of the present case since November 2006. In the course of preparing the NPS, he [sic] did not ask PW2 and PW3 about the progress and content of the NPS. After completing the NPS, PW2 pointed out to PW4 that PW1 had talked in the NPS about meeting lawyers. PW2 did so because he noticed some problem might arise.  In the end, neither she [sic] nor PW4 found anything wrong.
20.控方第四證人廉署高級調查主任朱美寶小姐，自2006 年 11 月份開始為本案的案件主管。在錄取NPS過程中，他沒有向控方第二證人及第三證人查詢NPS的進展及內容。控方第二證人完成NPS後曾向控方第四證人提出控方第一證人在NPS中說到見律師的事。控方第二證人之將這事說出來，因為他發覺到這可能會出現問題。最終她與控方第四證人都覺得沒有不妥。

21.PW2 said he could no longer recall the exact wording he used when he told PW4 about the meeting with the lawyers. On this point, PW4 testified that PW2 had told her that the NPS involved LPP but PW1 had already waived this right.
21.控方第二證人說他已忘記當時以甚麼字眼對控方第四證人說出這有關見律師的事。就這一點，控方第四證人作供時指出控方第二證人告訴她NPS涉及LPP，但控方第一證人已放棄了這權利。

22.PW2 testified that he, PW3 and PW4 had all read PW1’s NPS. He believed that another ICAC officer Kitty Lau had also read this NPS. After receiving the NPS, PW4 made a photocopy of it as a working copy and locked away the original. She admitted that she had discussed with her superior, ICAC Chief Investigator Kitty Lau, about the content of the NPS and the LPP which might be involved, and had told Kitty Lau that PW1 had waived such right.  They did not discuss the LPP in respect of the other people who had attended this legal conference.”
22.控方第二證人作供說他、控方第三證人及控方第四證人都看過控方第一證人的NPS。他相信另一位廉署人員Kitty Lau也看過這份NPS。控方第四證人收到NPS後，影印了一份作為工作本及將正本鎖起保存。她承認她曾與她的上司，廉政公署總調查主任Kitty Lau討論過NPS的內容和可能涉及的LPP，及告訴Kitty Lau控方第一證人已放棄了這權利。他們沒有討論到其他出席這法律會面的人的LPP。」

1.2  Judge Yau’s decision
1.2  邱法官的裁決

27.9)Judge Yau made the following decisions on the application for stay:
27.9)邱法官就擱置申請作出以下的裁決：

27.9)(1)The prosecution witnesses were all veracious and reliable and their evidence was accepted.  Judge Yau found that it was while Miss Wong was clarifying the differences in her various statements that she, on her own initiative, talked about this legal conference and the legal advice given by the lawyers, and PW1 [should be PW2] had not expected her to do so.  PW2 did not deliberately probe for details of this legal conference and the legal advice provided by the lawyers.
27.9)(1)控方證人都是誠實和可靠的證人及接納他們的證供。邱法官裁定黃小姐是在澄清她在不同供詞裏的分歧時主動及在控方第一證人[應該是第二證人]沒有預期之下說出這次法律會議及律師所給予的法律意見。控方第二證人並非刻意探查這個法律會議及律師所提供法律意見的內容。

27.9)(2)PW2 wrote down the relevant legal advice in his notebook and recorded it in the NPS because at that time it did not occur to him that such legal advice was protected by LPP.
27.9)(2)控方第二證人將有關的法律意見寫在他的筆記及記錄在 NPS 內，原因是他當時意會不到這些法律意見為保密權保護。

27.9)(3)It was absurd for PW2 to think that Miss Wong had waived her LPP because Miss Wong, as an ordinary civilian witness, would not possibly have understood the meaning, existence and significance of the privilege and, therefore, could not possibly have validly waived her privilege.  Furthermore, apart from Miss Wong, other defendants also attended the conference and were also protected by LPP.  Miss Wong was not in a position to waive their LPP on their behalf.
27.9)(3)控方第二證人認為黃小姐放棄了她的保密權是謬誤的，原因是黃小姐作為一個普通市民證人沒有可能會明白權利的意義和存在及其重要性，故此她是沒有可能有效地放棄她的權利。再者，除了黃小姐外，其他被告人也出席了這個會議，因此他們都享有保密權的保護。黃小姐不可以代表其他被告人放棄他們的保密權。

27.9)(4)Other ICAC officers neither realised that the LPP of Miss Wong and other defendants had been infringed, nor considered seeking legal advice in this regard.  This reflected their ignorance of the relevant privilege, but it could not be an excuse for infringing the privilege.
27.9)(4)其他廉署人員沒有洞悉黃小姐及其他被告人的保密權已被侵犯，亦沒有考慮到要尋求這一方面的法律意見，這是他們對有關權利的無知，但這不可以構成侵犯該權利的借口。

27.9)(5)The act of the ICAC officers was a deliberate infringement of the defendants’ privilege.
27.9)(5)廉署人員的行為是蓄意地侵犯各被告人的特權。

27.9)(6)The way in which the ICAC officers dealt with the defendants’ rights could be described as extremely unsatisfactory or even deplorable.  Nevertheless, the evidence very clearly showed that the ICAC had not made use of the privileged legal advice obtained for any improper purpose.  That the ICAC obtained the legal advice was not the result of any plan or premeditation on their part.
27.9)(6)廉署人員就各被告人的權利處理手法可說是極之不理想及甚至是差劣，但案中的證據很清楚地顯示出廉署並沒有利用所獲得受權利保護的法律意見，作出任何不正當的用途，廉署並非有計劃地或深思熟慮地去獲取這法律意見。

27.9)(7)Except that the relevant legal advice was part of the NPS and that it was on the basis of the NPS that the ICAC considered whether to grant Miss Wong the capacity as a witness, there was no evidence that the ICAC had in any way made use of such privileged legal advice.  PW2 said that the privileged information had no evidential value whatsoever, and therefore the information was neither here nor there when the ICAC considered whether Miss Wong would be used as a prosecution witness.
27.9)(7)除了有關的法律意見是 NPS 內容一部分，及廉署以這 NPS 來衡量是否給予黃小姐證人身分外，案中並沒有任何證據顯示廉署曾在任何一方面利用這些受權利保護的法律意見。控方第二證人說這些受保護的資料根本就沒有證據參考價值，故此這些資料在廉署考慮是否利用黃小姐為控方證人時根本起不了作用。

27.9)(8)The ICAC had all along been bona fide.  They had never planned or deliberately set out to probe for such privileged information from Miss Wong, nor had they ever intended to make use of information obtained in infringement of the defendants’ LPP so as to gain any advantage or cause the defendants to be treated in an unfavourable and unfair way.  In fact, the ICAC had in fact not gained any advantage therefrom and the defendants had not as a result been treated in an unfavourable and unfair way.
27.9)(8)廉署一直都是本著真誠的動機。他們從來沒有計劃或刻意地向黃小姐探取這些受保密權保護的資料，並且從沒有意圖去利用從侵犯各被告人的保密權中所獲得的資料去獲取任何的利益或令到各被告人蒙受不利和不公平的對待。廉署亦確實完全沒有從中得益，而各被告人亦確實完全沒有因此而蒙受不利和不公平的對待。

27.9)(9)The defendants were charged with very serious commercial offences with an international dimension, and public interest undoubtedly required a fair and open trial of the case.  Although the ICAC had infringed the defendants’ rights, it was not so serious as to affront the court’s sense of justice and propriety and hence to call for an order staying the hearing permanently.
27.9)(9)各被告人面對很嚴重及涉及國際層面的商業罪行。公眾的利益毫無疑問是務求本案能夠在公平及公開的原則下進行審訊。雖然廉署確實地侵犯了各被告人的權利，但其嚴重程度不至於違反法庭對公義和正當行為所持的標準，而須由法庭勒令將聆訊永久中止。

1.3  1st applicant’s arguments
1.3  第一申請人的論點

27.10)Mr Joseph Tse SC leading Ms Doris Ho, Counsel for the 1st applicant, assert that Judge Yau’s refusal to stay the hearing involved erroneous findings of fact and misapplication of legal principles.  In respect of the errors in findings of fact, the 1st applicant contends that his LPP had repeatedly been infringed for a number of reasons:
27.10)代表第一申請人的謝華淵資深大律師及何政慧大律師力陳邱法官拒絕擱置聆訊的決定涉及事實裁決的錯誤及錯誤引用法律原則。關於事實裁決的錯誤，第一申請人認為他的保密權屢次遭受侵犯是基於多個理由：

(1)poor legal knowledge of the ICAC officers;
(1)廉政公署人員對法律認知的貧乏；

(2)their reckless actions that followed;
(2)繼而他們的魯莽行事；

(3)problems with their internal administration;
(3)他們的內部行政問題；

(4)their subsequent deliberate indifference to the problems that existed;
(4)稍後他們所持對問題存在的刻意漠視態度；

(5)their failure to seek legal advice;
(5)他們沒有尋求法律意見；

(6)their failure in taking any precaution whatsoever to prevent or reduce any violation of the applicant’s LPP; and
(6)他們完全沒有採取任何措施防止或減少他的保密權被侵犯；及

(7)they even intended to use the information to benefit the prosecution and prejudice the applicant, and eventually succeeded in doing so.
(7)他們還意圖運用資料令控方從中得益和使到他蒙受不利，而且他們這個意圖最後得逞。

27.11)The 1st applicant submits that the ICAC had deliberately and purposefully recorded the privileged contents disclosed by Miss Wong with the intention of using such information to benefit the prosecution by securing the agreement of the Department of Justice to accept Miss Wong as a prosecution witness.  That being the case, the 1st applicant submits that it is difficult to understand why Judge Yau proceeded to hold that the ICAC’s approach in handling the NPS and the infringement of privilege were bona fide.  Bona fide motive here did not refer to the ICAC’s purpose in infringing the rights, namely the purpose of investigation and obtaining evidence in combating crimes, because in all the relevant decided cases it was for the same purpose that law enforcement agencies had infringed the rights.  Whether the act in question was bona fide is (it is submitted) to be answered by reference to that state of mind of the law enforcement agency in infringing the privilege.  The 1st applicant submits that the ICAC had been mala fide.
27.11)第一申請人認為廉署是蓄意、有目的地紀錄黃小姐所披露的受保密的內容，其意圖是想利用這些資料令控方得益，使律政司同意接納黃小姐成為控方證人。第一申請人認為在這情況下，邱法官依然裁斷廉署處理 NPS 的手法和侵權行為動機是真誠的，實是難以理解。真誠的動機不是指廉署侵權的目的是為了查案和搜查證據打擊罪案，因為在所有相關案例裡的執法機構都是為此目的而進行了侵權的活動。有關的行動是否真誠或不真誠是指執法機構對於特權進行侵犯時的心態。第一申請人認為廉署是不真誠的。

2.  Legal principles
2.  法律原則

2.1  Legal professional privilege
2.1  法律專業保密權

27.12)Article 35 of the Basic Law provides that “Hong Kong residents shall have the right to confidential legal advice”.  This right is the LPP under the common law.  It protects the confidentiality of bona fide communications between a lawyer and his client concerning legal advice or in relation to ongoing or contemplated litigation.  The privilege entails the right to resist the compulsory disclosure of those communications and can only be waived by the person who enjoys the privilege. This right is described as a fundamental human right and the cornerstone of the administration of justice by the courts. The privilege is an “absolute right” in the sense that it is not liable to be violated by reason of the public interest in apprehending and prosecuting criminals, no matter how compelling such interest may be.  See the judgment of the Court of Appeal in Citic Pacific Ltd v. Secretary for Justice [2012] 2 HKLRD 701.
27.12)《基本法》第 35 條說「香港居民有權得到秘密法律諮詢」，這個權利就是「普通法」所指的「保密權」。這個權利保障律師與客戶之間的真誠保密的通訊。這通訊包括法律意見或關乎已存在或已預見的訴訟。這是防止有關通訊被強行披露的權利，它只可以由當事人免除。這權利被形容為基本的人權及法庭執行公義的基石。它是一個「絕對的權利」，即不論公眾利益要求將罪犯繩之以法是何等的強烈，這也不是可以侵犯這權利的理由，見上訴法庭在 Citic Pacific Ltd v. Secretary for Justice [2012] 2 HKLRD 701 的裁決。

2.2  Stay of criminal proceedings
2.2  擱置刑事訴訟程序

Hong Kong case law
香港案例

27.13)In HKSAR v Lee Ming Tee & Another (2001) 4 HKCFAR 133 at 148-151, the Court of Final Appeal explained the principles for staying criminal proceedings.  The Court pointed out that a stay of criminal proceedings would only be justified in highly exceptional circumstances.  A stay might be granted in the following circumstances:
27.13)終審法院在 HKSAR v Lee Ming Tee & Another (2001) 4 HKCFAR 133，第 148 至 151 頁闡述擱置刑事訴訟程序的原則，法庭只有在非常例外的情況下才有充份理由支持擱置刑事訴訟程序。法庭在以下情況可批予擱置：

(1)Notwithstanding the range of remedial measures available, a fair trial for the accused was impossible and it would be an abuse of process to proceed with the prosecution.
(1)縱使有不同的補救性措施，卻沒有可能讓疑犯得到公平審訊及堅持檢控會導致濫用程序。

(2)In very rare cases, although the fairness of the trial was not in question, a stay might be granted because the circumstances involved an abuse of process which so offended the court’s sense of justice and propriety that the entire prosecution was tainted as an abuse of process.  In such instances, the court was not exercising its jurisdiction to stay as a means of disciplining the public officials involved.
(2)在非常罕有的情況下，即使審訊是否公平並不是爭議之處，但因為情況涉及濫用程序並令到法院的司法公正感及適當性受到侵犯，以使到整個檢控行動被污染得成為濫用程序，那擱置或會批予。在該種情況下，法院並不是行使司法管轄權以擱置作為對有關的公職人員的懲戒的方法。

27.14)The Court of Final Appeal reiterated the relevant principles in HKSAR v. Lee Ming Tee and Securities and Futures Commission (2003) HKCFAR 336.
27.14)終審法院在 HKSAR v. Lee Ming Tee and Securities and Futures Commission (2003) HKCFAR 336 重申有關原則。

“182.In the light of the conclusions already reached, there is no basis for the grant of a permanent stay.  It was not a case in which the respondent could not get a fair trial.  Therefore if the case was to attract a stay, it had to come within the principle stated by Lord Steyn in R v. Latif [1996] 1 WLR 104 at 112G-H:
「182.按所得的結論看來，案件並無基礎可批准永久擱置法律程序。在本案中，答辯人並非無法獲得公平審訊。因此，本案須符合Lord Steyn 在R v Latif [1996] 1 WLR 104 第 112 頁 G 至 H 所指的下述原則，方可擱置法律程序：

‘In this case the issue is whether, despite the fact that a fair trial was possible, the judge ought to have stayed the criminal proceedings on broader considerations of the integrity of the criminal justice system.  The law is settled.  Weighing countervailing considerations of policy and justice, it is for the judge in the exercise of his discretion to decide whether there has been an abuse of process, which amounts to an affront to the public conscience and requires the criminal proceedings to be stayed: Reg v. Horseferry Road Magistrates’ Court, Ex parte Bennett [1994] 1 AC 42.’
本案的爭議點是，儘管審訊可公平進行，法官是否仍應基於更廣闊的考慮因素顧及刑事司法制度的誠信而擱置刑事法律程序。這方面的法律早已定案。法官權衡政策與公義這兩項互相抗衡的考慮因素，可行使酌情權決定司法程序是否遭濫用，從而構成公然冒犯公眾良知，以致刑事法律程序必須擱置: R v Horseferry Road Magistrates’ Court，ex parte Bennett [1994] 1 AC42。

It is generally recognised that only in exceptional circumstances will a stay be granted when a fair trial is possible.  An indication of what this means is conveyed by L’Heureux-Dubé J’s observations in R v. O’Connor at 277b-c:
若審訊可以公平進行，則法庭只會在例外的情況下才會批准擱置法律程序，這已廣為確認。L’ Heureux-Dubé J在R v O’Connor (1996) 130 DLR (4th) 235一案判詞第 277 頁 B 至 C 段表達的論述便能顯示其意思：

‘... a stay of proceedings is only appropriate ‘in the clearest of cases’, where the prejudice to the accused’s right to make full answer and defence cannot be remedied or where irreparable prejudice would be caused to the integrity of the judicial system if the prosecution were continued.’
… 只有“最清楚不過的案件”，才適合擱置法律程序，在這些案件中，被告作出全面答辯及抗辯的權利遭受無法補救的損害，或繼續檢控會導致司法制度的誠信遭受無法彌補的損害。

In the absence of a finding of ‘bad faith’, this standard will rarely, if ever be satisfied in a case where a fair trial is still possible.  Even if there be a finding of ‘bad faith’, that finding would not necessarily conclude the matter.”
如法庭無裁定“並非真誠”，而假若審訊又仍可公平進行，則甚少可以符合此標準。即使法庭裁定“並非真誠”，亦不一定能為事件作出最後定論。」

27.15)The Court of Appeal adopted the above legal principles in the following three cases involving infringement of LPP: Secretary for Justice v Shum Chiu [2008] 1 HKLRD 155, HKSAR v Wong Hung Ki [2011] 1 HKLRD 183 and HKSAR v Ko Kit CACC 65/2009.
27.15)上訴法庭在以下三宗涉及侵犯保密權的案例採用上述法律原則，見：Secretary for Justice v Shum Chiu [2008] 1 HKLRD 155, HKSAR v Wong Hung Ki [2011] 1 HKLRD 183 及 HKSAR v Ko Kit CACC 65/2009。

27.16)The Court of Appeal pointed out in Shum Chiu that, in determining whether there had been a infringement of LPP which constituted an abuse of process, the court had to consider the following:
27.16)上訴法庭在 Shum Chiu 一案指出，在考慮保密權是否被侵犯，以致引致濫用程序的情況出現，法庭有需要考慮以下各點：

“56．…..
「56．…..

was the occasion one that prime facie was privileged;
就表面證據而言，涉案情況是否享有保密權。

if so, was the intrusion carried out with knowledge, or where the authority ought to have known, that the occasion was privileged;
如果享有保密權，則有關當局侵犯保密權時，是否明知故犯，或理應知道涉案情況享有保密權。

if the occasion was privileged, was there nonetheless strong ground for believing that it was not protected by privilege;
如涉案情況享有保密權，是否仍有強烈理由相信涉案情況不受保密權保障。

4)If there was no strong ground, is there, even so, something in the reasons put forward by the law enforcement authority for the conduct that takes the situation out of one that would otherwise be condemned as an affront to the public conscience?
如沒有強烈理由，即使如此，執法機構就有關行為所提出的理由有哪部分會令事件不被指責為公然侮辱公眾良知？

5)As to that last question, it is not possible, and it is not wise, to speculate what may suffice but we would suggest that ignorance of the right of privilege would not.”
有關最後一個問題，憑空揣測什麼理由才算足夠，是不可能亦不明智的，但本庭認為聲稱不知曉保密權是不足夠的。」

27.17)In Ko Kit, the Court of Appeal had this to say:
27.17)在 Ko Kit 一案，上訴庭指出，

“48.In deciding whether conduct goes sufficiently far as to amount to such an affront to the public conscience as to require that a court follow the exceptional course of granting a stay of proceedings, the motive or intent of the law enforcement agency concerned, it seems to us, must be a relevant and important consideration for the court. The recurrent theme throughout the cases to which we have been referred is the abhorrence felt by the court towards the calculated and cynical conduct of the various law enforcement agencies which set out with the settled intention of recording privileged communications.”
「48.要決定某項行為是否足以構成公然冒犯公眾良知，致令法庭須要例外行事批准擱置聆訊，有關執法機構的動機或意圖，照我們看來，必然是法庭考慮的相關重要因素。上述案例重覆出現同一主題，即不同執法機構處心積慮，不擇手段，一開始就意圖清晰打算記錄特權通訊，法庭對這種行為感到厭惡。」

2.3  Evidence obtained in breach of constitutional rights
2.3  侵犯憲法權利取得的證據

27.18)In HKSAR v Muhammad Riza Khan, FACC 13/2010, law enforcement officers had secretly recorded the conversation between the defendant and an undercover agent regarding the presence of dangerous drugs in a suitcase.  In considering whether evidence obtained in violation of the accused’s constitutional right to privacy was admissible, the Court of Final Appeal adopted the following test:
27.18)在 HKSAR v Muhammad Riza Khan, FACC 13/2010 一案，執法人員偷錄被告人與卧底執法人員有關藏有毒品的行李箱的談話，終審法院考慮法庭可否接納侵犯被告人私隱憲法權利的證供採用以下的驗證準則：

“20.The test can be stated thus.  Evidence obtained in breach of a defendant’s constitutional rights can nevertheless be received if, upon a careful examination of the circumstances, its reception (i) is conducive to a fair trial, (ii) is reconcilable with the respect due to the right or rights concerned, (iii) appears unlikely to encourage any future breaches of that, those or other rights.  The risk-assessment called for under the third element will always be made by the courts, vigilantly of course, in the light of their up-to-date experience.  Thus is achieved, consistently with the constitution, a proper balance between the interests of individual defendants and those of society as a whole.  It cannot have been the framers’ intention – and is not the constitution’s effect – to stand in the way of such of balance being struck. Just as rationality and proportionality can justify an impact on a non-absolute constitutional right, so can they justify a discretion to receive evidence obtained in breach of a constitutional right.  Under the test stated above, the discretion concerned is rational and proportionate.  The factors to be taken into account in applying this test and the weight to be accorded to each such factor will depend on the circumstances of each case.”
「20.驗證準則闡述如下：即使是侵犯被告人憲法權利所獲取的證據，經仔細審視情況後，若符合下述條件，仍可獲法庭接納；(i) 證據有利公平審訊，(ii) 證據與尊重有關權利並無相悖，(iii) 看來相當不可能會鼓勵他人日後違反該項或該等權利或其他權利。法庭必須時刻對第三項要素作出風險評估，當然還要提高警覺按最新經驗評估。如此在合憲的情況下，個別被告人的權益與整體社會權益兩者之間便能達至適當平衡。無論是擬法者的原意或憲法的內容，都沒有阻撓取得這種平衡。合理與否及相稱與否可成為理據，對並非絕對的憲法權利有所影響，同一道理，這亦可成為理據，決定可否行使酌情權接納藉侵犯憲法權利所獲取的證據。根據上述準則，有關酌情權必須合理及相稱。應用這項準則時須考慮的因素及須給予每項因素的比重則視乎個別案件的情況而定。」

2.4  English case law
2.4  英國案例

27.19)In the English case of R v Grant [2005] 3 WLR 437, the accused applied for a stay of the trial on the ground that his LPP had been violated.  The trial judge held that there was no evidence to prove that the accused had suffered any prejudice as a result of the conduct in question and dismissed the application.  This was overturned by the Court of Appeal, which held that although the prosecution had not used the privileged conversation intercepted, deliberate violation of LPP enjoyed by the suspect was an affront to the integrity of the justice system which rendered the prosecution abusive, and this was not to be countenanced by the court.
27.19)在英國 R v Grant [2005] 3 WLR 437 一案，被告人以其保密權被侵犯，申請擱置審訊。原審法官認為申請人未能證明有關行為對他不利及駁回擱置聆訊申請。上訴法庭推翻原審法官的裁決。上訴法庭認為，雖然控方沒有引用被竊聽的保密交談，但蓄意侵犯疑犯享有的保密權，是公然冒犯司法制度的誠信，導致濫用檢控，這是法庭不可以接受的。

27.20)In Warren v Attorney General for Jersey [2012] 1 AC 22 the Privy Council expressed disagreement with the views of the Court of Appeal in Grant.  Lord Dyson JSC said at para 36 of the judgment:
27.20)英國樞密院在 Warren v Attorney General for Jersey [2012] 1 AC 22 一案不認同英國上訴法庭在 Grant 一案的見解。Lord Dyson JSC 在判案書第 36 段說：

“36.… the Board respectfully considers that the decision in R v Grant was wrong. The statement at para 54 suggests that the deliberate invasion of a suspected person’s right to legal professional privilege is to be assimilated to the abduction and entrapment cases where the balancing exercise will generally lead to a stay of the proceedings. The Board agrees that the deliberate invasion by the police of a suspect’s right to legal professional privilege is a serious affront to the integrity of the justice system which may often lead to the conclusion that the proceedings should be stayed. But the particular circumstances of each case must be considered and carefully weighed in the balance. It was obviously right to hold on the facts in R v Grant that the gravity of the misconduct was a factor which militated in favour of a stay. But as against that, the accused was charged with a most serious crime and, crucially, the misconduct caused no prejudice to the accused. This was not even a case where the ‘but for’ factor had a part to play. The misconduct had no influence on the proceedings at all. In these circumstances, surely the trial judge was entitled to decide in the exercise of his discretion to refuse a stay and the Court of Appeal should not have held that his decision was wrong.” (emphasis supplied)
「36.……，本法庭謹此認為R v Grant的裁決是錯誤的。該案判詞第 54 段提出蓄意侵犯疑犯享有的法律專業保密權，視同擄拐及誘捕一類案件，而在這類案件中，經衡量各項因素後，一般會導致法律程序擱置。本法庭同意，警方蓄意侵犯疑犯享有的法律專業保密權，是嚴重地公然冒犯司法制度的誠信，往往可以達致應予擱置法律程序的結論。然而，每宗案件的個別情況都必須予以考慮並仔細衡量。在R v Grant一案中，根據案情，法庭裁定所涉不當行為嚴重，是有利擱置聆訊的因素，這顯然是正確的；但反之而言，被告被控一項極為嚴重的罪行，而至為關鍵的是所涉不當行為對被告並無造成任何損害。這宗案件甚至沒有“若非如此”便無法破案的因素。所涉不當行為對法律程序毫無影響。在這情況下，原審法官當然有權行使酌情權，決定拒絕擱置聆訊，上訴法庭不應裁定原審法官的決定錯誤。」(本庭加以強調)

27.21)Lord Dyson JSC pointed out at para 24 of the judgment that in performing the balancing exercise, the court took into account such factors as:
27.21)Lord Dyson JSC 在判案書 24 段指出，法庭作出衡量時所考慮的因素包括：

27.21)(1)the seriousness of the violation of the defendant’s rights;
27.21)(1)侵犯被告人權利的行為的嚴重性；

27.21)(2)whether the police have acted in bad faith or maliciously or with an improper [motive];
27.21)(2)警方的行為是否不真誠，惡意或存有不正當的；

27.21)(3)whether the misconduct was committed in circumstances of urgency, emergency or necessity;
27.21)(3)不當的行為是否在緊急、危急或有需要的情況下作出；

27.21)(4)the availability or otherwise of other sanctions against the party responsible for the misconduct；
27.21)(4)作出不正當行為的一方是否會被其他方式制裁；

27.21)(5)the seriousness of the offence with which the defendant is charged.
27.21)(5)被告人被指控罪名的嚴重性。

27.22)In R v. Maxwell [2010] UKSC 48, the English Court of Appeal considered the issue of retrial in criminal cases.  The defendant in that case was convicted of robbery and murder and sentenced to life imprisonment.  The evidence against the accused came from a repeat offender who was also serving a prison sentence and who had in the past served a sentence of imprisonment with the accused.  The defendant alleged that the police were planning to pay this repeat offender a large sum of money on his release from prison.  Evidence showed that the police had been providing benefits to this repeat offender, which included monetary benefits, permitting him to consume drugs in front of them and not investigating or prosecuting his other violent conduct.  Evidence showed that the police, prosecuting authority and counsel had concealed such information and misled the court.  However, while serving his sentence, the defendant voluntarily admitted several times that he had committed the offences of which he had been convicted. The Court of Appeal quashed the convictions but ordered a retrial.  The defendant’s appeal to the Supreme Court of England against the order for a retrial was dismissed.
27.22)在 R v. Maxwell [2010] UKSC 48，英國最高法院考慮刑事案件重審的議題。在該案，被告人被裁定搶劫及謀殺罪名成立及被判終身監禁。針對被告人的證供來自一名積犯。該名積犯亦在服刑。他之前與被告人一起服刑。被告人聲稱警方預備在該名積犯服刑釋放後會提供一筆大數目的金錢給他。證據顯示警方一直有提供利益給這名積犯，這些利益包括金錢利益、容忍他在警察面前吸毒及警方不調查或檢控該名積犯的其他暴力行為。證據顯示警方、檢控當局及律師曾經隱瞞這些資料及誤導法庭。但同時被告人在服刑時多次自願承認他是干犯了被定罪的罪行。上訴法庭撤銷定罪，但命令案件重審。被告人就重審的判決向英國最高法院提出上訴，但被駁回上訴。

27.23)On the question of whether there should be a retrial, the English Supreme Court considered the decided cases in which proceedings were stayed by reason of prosecutorial misconduct which constituted an abuse of process.  Lord Dyson at para 21 of the judgment said that, where prosecutorial misconduct was raised as a reason for refusing a retrial, the court might treat the case as being analogous to an application for stay on the ground of prosecutorial misconduct; however, the two situations were not identical.  Lord Dyson held the view that the question of “whether the interests of justice require a retrial” was broader than the question of “whether it is an abuse of process to allow a prosecution to proceed”.
27.23)英國最高法院在處理是否重審時考慮了因為控方不當行為引致濫用程序，擱置聆訊的案例。Lord Dyson 在判案書第 21 段說，雖然可以以處理控方不當行為，擱置聆訊的相同方法處理是否因控方不當行為而拒絕重審，但這兩種情況並不是完全相同。Lord Dyson 認為「公義利益是否需要重審」的議題是廣泛過「若繼續准許檢控進行是否構成濫用程序」這個議題。

3.  Our views
3.  本庭的意見

3.1  Findings of fact
3.1  事實裁決

27.24)With respect, we do not agree with the 1st applicant’s submission that Judge Yau had made erroneous findings of fact.  On the evidence given by the relevant prosecution witnesses, Judge Yau correctly found that the ICAC had been bona fide without deliberately probing for the privileged information from Miss Wong.  We also do not agree that the ICAC had made use of such information in seeking legal advice from the Department of Justice as to whether Miss Wong was to be granted immunity as a witness to give evidence against the defendants in the present case.  As the respondent has pointed out, the ICAC had already taken the NPS with Miss Wong by that time, which meant that they had already obtained the legal advice in this regard.  As PW2 said that the privileged information had no evidential value at all, Judge Yau found that the information had no effect whatsoever on the ICAC’s assessment of whether Miss Wong would be used as a prosecution witness.
27.24)本庭不認同第一申請人就邱法官作出錯誤事實裁決的陳詞。根據有關控方證人的證供，邱法官是正確地裁斷廉署是本著真誠的動機，沒有刻意向黃小姐探取這些保密權的資料。本庭亦不認同廉署是利用這些資料向律政司尋求法律意見是否給予黃小姐特赦證人身分指證同案各被告人。正如代表答辯人一方所說，廉署當時已經是向黃小姐提取 NPS。這表示廉署是已經獲得這一方面的法律意見。由於控方第二證人說這些受保護的資料根本沒有證據參考價值，故此邱法官裁定這些資料在廉署考慮會否利用黃小姐作為控方證人根本起不了作用。

3.2  Findings on law
3.2  法律裁決

27.25)We agree that legal professional privilege is one of the cornerstones of the rule of law in Hong Kong.  At the same time, however, the current law states clearly that a stay of criminal proceedings would only be justified in highly exceptional circumstances.  The court has to balance all the relevant factors before coming to a decision.  This principle does not go against the point previously made about LPP being an absolute right: the issue before us now is whether the infringement of LPP warrants a stay of the hearing, which is different from the need to infringe such privilege and disclose privileged communications on the ground of the public interest in apprehending and prosecuting criminals.
27.25)本庭認同法律專業保密權是香港法治的其中一個重要基石，但同時現行的法律清楚說明，只有在非常例外的情況下才有充分理由支持擱置刑事訴訟程序。法庭必須衡量所有有關的因素才可作出決定。這個原則與上文所述保密權是一個絕對權利沒有抵觸，因為現在考慮的議題是是否因為保密權被侵犯而需要擱置聆訊，這不等同要將罪犯繩之以法的公眾利益為理由而侵犯這個權利，披露受到保密權保障的通訊。

27.26)In the present case, we agree with Judge Yau’s ruling that the misconduct of the ICAC had not caused any prejudice to the 1st applicant.  In applying for a stay, the 1st applicant did not rely on the first limb of the relevant legal principle, namely that he could not possibly have a fair trial, but instead relied on the second limb, namely that the conduct of the ICAC offended the court’s sense of justice and propriety, thereby rendering the prosecution abusive.  As the Privy Council explained in Warren, an application under this second limb did not focus on protecting the accused from unfair treatment, a question which formed the subject matter of an application under the first limb only.  Having said that, in considering whether the hearing was to be stayed, the Privy Council balanced various factors, including whether the conduct of the law enforcement officers had caused any prejudice to the accsued.
27.26)在本案，本庭認同邱法官裁定廉署不當行為不造成對第一申請人任何損害的裁決。在本案，第一申請人申請擱置聆訊的原因不是引用擱置申請法律原則的第一類別，即他不可以獲得公平審訊，而是根據第二類別，即廉署的行為令到法院的司法公正感及適當性受到侵犯，構成濫用檢控。正如樞密院在 Warren 一案闡述，這一類別的申請重點並不是要避免被告人受到不公平的對待，被告人是否受到不公平的對待只是第一類別的關注點。雖然如此，樞密院在考慮是否擱置聆訊時所衡量的因素是包括執法人員的行為是否對被告人造成任何損害。

27.27)The 1st applicant submits that the factors to be considered by the court do not include whether the misconduct has caused any prejudice to the accused.  The 1st appellant submits that, having successfully proved a deliberate violation of his LPP, the accused is not required to establish that he thereby suffered prejudice; instead, the law enforcement agency involved then bears the burden of proving the existence of compelling reasons to justify the violation.  In HKSAR v Wong Hung Ki, the Hong Kong Court of Appeal, citing United States v Levy 577 F 2d 200 (1978), 209 and Grant, said that if there had been a deliberate violation of the applicant’s LPP, following which the law enforcement agency obtain such confidential information, it was not necessary for the applicant to establish that he had suffered prejudice.  The 1st applicant submits that the New Zealand case of The Queen v Taylor Ivan Antonievic and others [2012] NZHC 2686 also supports his contention.
27.27)第一申請人所持觀點是，法庭所需要衡量的因素不包括不當的行為是否對被告人造成不利。第一申請人指當被告人成功舉證他的保密權受到蓄意侵犯後，他是無須證明他是蒙受了不利。進行侵犯的執法機關便會背上責任證明案件存有強烈的解釋支持侵犯的行為。香港上訴法庭在HKSAR v Wong Hung Ki 一案引用美國案例United States v Levy 577 F 2d 200 (1978), 209 及Grant 兩案說，若然申請人的法律保密權被蓄意侵犯了，執法機構因而獲得了這些機密資料，申請人是不用在申請中證明他是蒙受了不利。第一申請人認為紐西蘭高等法院 The Queen v Taylor Ivan Antonievic and others [2012] NZHC 2686 一案亦支持其論點。

27.28)With respect, we do not agree.  In Warren, the Privy Council did not rule out the factor that it was not necessary to consider the prejudicial effect of prosecutorial misconduct on the defendant. As Lord Kerr of Tonaghmore JSC explained in para 83 of the judgment in Warren, the balancing factors set out by Lord Dyson in the case were not exhaustive, although Lord Kerr took the view that in dealing with applications under the second limb, in order to avoid confusion, the court should not consider if the relevant conduct was prejudicial to the defendant.  In any event, in Warren, Lord Dyson did, on the question of stay of hearing, consider whether the relevant conduct had been prejudicial to the defendant.  Apart from Lord Kerr, the other judges did not take issue with Lord Dyson’s decision to consider the question of prejudice to the defendant.  In our view, as the opinion of the English Court of Appeal in Grant has been overturned by the Privy Council in Warren, it is necessary to rectify the view expressed by the Hong Kong Court of Appeal in Wong Hung Ki.  In Taylor the New Zealand court did not discuss this issue in depth.  In our view, as a matter of principle, if the court is required to consider all relevant factors in determining whether or not to stay a hearing, then it ought to take into account, as one of those factors, whether the applicant has been prejudiced by reason of the relevant misconduct.  Otherwise, the balancing exercise would be incomplete.  We respectfully agree with the judgment in Warren in this regard.
27.28)本庭不同意這說法。在 Warren，樞密院沒有撇除不需要考慮檢控不當行為對被告人不利的因素。正如 Lord Kerr of Tonaghmore JSC 在 Warren 一案第 83 段解釋，Lord Dyson 在該案提出的衡量因素並非是全面的因素，雖然 Lord Kerr 認為在考慮涉及第二類別的申請時，為了避免混淆，法庭不應該考慮有關行為是否對被告人不利。無論如何，Lord Dyson 在 Warren 一案在處理是否擱置聆訊這議題上是有考慮到有關行為是否對被告人不利的議題。除了Lord Kerr 之外，其他的法官沒有對 Lord Dyson 考慮被告人不利裁決提出異議。本庭認為由於英國上訴法庭在 Grant 一案的意見被樞密院 Warren 案推翻，故此本港上訴法庭在 Wong Hung Ki 所表達的意見，亦需要修正。紐西蘭法庭在 Taylor 一案沒有深入討論這議題。本庭認為若果法庭需要考慮所有有關連的因素來決定是否擱置審訊，從原則性的角度來看，這理應包括申請人是否因有關不當行為受到不利因素，否則這會是一個不完整的衡量。本庭同意 Warrern 一案這方面的判決。

27.29)In the present case, even if it is unnecessary to consider this factor, we are of the view that the circumstances of the case were not such as to warrant a stay of the hearing.  The ICAC had not abused the process and thereby offended the court’s sense of justice and propriety so that the entire prosecution was tainted as an abuse of process.  There was no affront to the public conscience.
27.29)在本案，就算這個因素不需要考慮，本庭仍認為本案的情況未達至需要法庭擱置聆訊的標準，廉署沒有濫用程序令法院的司法公正感及適當性受到侵犯導致整個檢控行動被污染成為濫用程序。公眾良知是沒有受傷害。

37.30)We do not find it necessary to discuss Maxwell at length because the matters required to be dealt with in the present case have already been adequately discussed in other decided cases, and we have been able to come to a decision on the basis of those discussions.
37.30)本庭不需要深入討論 Maxwell 一案，因為其他案例已經就本案所要處理的事項提供足夠的討論，讓本庭作出判決。

27.31)The first ground of appeal is rejected.
27.31)本庭駁回第一項上訴理由。

The 2nd applicant’s position
第二申請人的立場

27.32)The 2nd applicant also submits, as his ground of appeal, that Judge Yau had erroneously refused to grant a stay.  It was only near the end of this appeal hearing that reliance on this ground of appeal was expressed on behalf of the 2nd applicant.  The respondent did not object to the 2nd applicant joining in the application.
27.32)第二申請人亦以邱法官錯誤拒絕擱置聆訊為其上訴理由。代表第二申請人的一方只是在本上訴聆訊最後一刻才依賴這個上訴理由。答辯人不反對第二申請人加入申請。

27.33)Although we have allowed the 2nd applicant to rely on this ground, we feel obliged to criticize such practice.  The 2nd applicant’s legal team, having represented him at the trial, had sufficient time to consider if they should rely on the above ground in support of their application for leave to appeal.  This kind of last-minute application is inappropriate and may even be described as unprofessional.  In any event, for the same reasons, we also reject this ground of appeal put forward by the 2nd applicant.
27.33)雖然本庭批准第二申請人依賴這個上訴理由，但本庭必須批評這樣的手法。第二申請人的律師團隊在原審時已代表他，他們有足夠時間在決定提出本上訴許可申請時考慮是否應該依賴這一項上訴理由。這種最後一分鐘才提出的申請是不適當的，甚至乎可說是不專業的做法。無論如何，根據同一理由，本庭亦駁回第二申請人這一項上訴理由。

2)  Other grounds of appeal
2)  其他上訴理據

2.1  Evidence on the 2nd to 7th Charges
2.1  控罪二至七的證據

1)We will first outline the evidence in support of the 2nd to 7th Charges, which fall under four headings:
1)本庭首先簡述支持控方第二至第七項控罪的證據，它們可分為四部份：

(1)PW1’s evidence;
(1)控方第一證人的證供；

(2)flow of capital;
(2)資金的流向；

(3)other corroborative evidence; and
(3)其他佐證；及

(4)evidence from the banks.
(4)銀行證供。

2.1(1)  PW1’s evidence
2.1(1)  控方第一證人的證供

28.2)PW1, who gave evidence under immunity from prosecution, gave evidence that the 1st applicant had told him DDL was in need of money for cashflow and requested him to issue some false commercial invoices to seek payment for goods by DDL, although those invoices were in fact not based on any business dealings. When the 1st applicant needed such commercial invoices, he phoned PW1 and told him how much money he needed, and then PW1 personally prepared the relevant commercial invoices for the 1st applicant.
28.2)控方第一證人在獲豁免起訴的情況下作供。控方第一證人指第一申請人對他說 DDL 需要錢周轉，要求他開出一些虛假的商業發票向 DDL 收取貨款，這些商業發票其實並沒有生意往來的基礎。當第一申請人需要這些商業發票時便會打電話給控方第一證人，告訴控方第一證人他需要多少錢。控方第一證人便會親自準備有關商業發票給第一申請人。

28.3)Upon receiving money from the banks, PW1 returned the money in full to DIL after deducting the bank handling charges.
28.3)控方第一證人收到銀行支付的錢後會在扣除銀行手續費後全數回給 DIL。

28.4)According to PW1, the moulds that he referred to for charging payment in the false invoices included some uncharged extra moulds previously produced for DDL, some non-existing moulds, some genuine moulds with the letter “S” added to the end of the model numbers for ease of identification, models intended to be developed with the moulds not yet ready, existing moulds models (but no physical objects existed for these models), and alternative moulds currently in frequent use, etc..  PW1 explained clearly in his testimony how he identified and remembered each false invoice.
28.4)控方第一證人說，在虛假發票中他所使用來收貨款的模具，包括一些之前替 DDL 生產時多做了但沒有收費的工模、一些不存在的模具、一些真正工模型號後加 S 字來識別、有意開發但尚未有工模存在的型號、已存在的模具型號(但此等型號沒有實物模具存在)以及現在常用的工模更替等。控方第一證人作供時清楚解釋他如何識別及記得每一張發票均是虛假的。

2.1(2)  Flow of money
2.1(2)  資金的流向

28.5)The flow of money in relation to the 2nd to 7th Charges has been set out in detail in Admitted Facts (1).  It can be seen from Admitted Facts (1) that, each time DDL applied to a bank for a loan using false commercial invoices, and shortly after the loan had been granted by the bank and deposited into the account of T&K, T&K deposited the loan into DIL’s bank account by a cheque signed by PW2.  The sum would then be quickly deposited back into DDL’s account by a cheque signed by the 1st or 2nd applicant.  For the 3rd to 5th Charges, T&K transferred the loans involved into DIL’s account in one single deposit by a cheque for the amount of $1,500,000.
28.5)就控罪二至七的資金流向，控辯雙方於第一份事實確認書中已詳細列明。於第一份事實確認書中，可以見到每一次當 DDL 利用虛假商業發票向相關銀行申請貸款，而相關銀行批出貸款並存到「千基」的戶口之後不久，「千基」便以一張由控方第二證人簽署的支票將相關的貸款存到 DIL 的銀行戶口。 DIL 亦於短時間內以一張由第一或第二申請人簽署的支票將該些款項存回 DDL 的戶口中。其中控罪三至五，「千基」更是以一張總額 $1,500,000 的支票將控罪三至五的貸款一次過存入 DIL 的戶口。

2.1(3)  Other corroborative evidence
2.1(3)  其他佐證

28.6)Apart from the above evidence, the prosecution also relied on PW2’s evidence as cooroborative evidence, in particular her evidence on how she dealt with the loans and the relevant documentary records.  PW2 was able to identify from T&K’s books the monies relating to the 2nd to 7th Charges because the entries for those monies were different from those for other normal transactions.  For normal transactions, each entry was accompanied by a commercial invoice number; for those loans she recorded the amounts in a different way, such as “loans (will be refund)”, “capital” or with no remarks at all.  In respect of the entries with no remarks at all, PW2 explained that she had absolutely no idea how the monies should be recorded in the books, and therefore, in order to avoid confusion, no information was provided for these entries for identification purposes.
28.6)除上述證供外，控方亦倚賴控方第二證人的證供，特別是她處理該些貸款時的做法及相關文件紀錄作為佐證。從「千基」的帳簿中，控方第二證人能認出控罪二至七的相關款項，因為該些款項與其他正常交易的紀錄方式不同。正常交易中每次記帳均會附有商業發票編號，但就這些貸款她會以不同的形式紀錄有關的款項，例如「loans (will be refund)」，「capital」或完全沒有註釋。就完全沒有註釋的記項，控方第二證人解釋說她根本不知道應該在帳項內如何紀錄有關款項，因此不想引起混淆，所以便沒有在該些款項旁填上任何資料已作識別。

2.1(4)  Evidence from the banks
2.1(4)  銀行證供

28.7)The banks pointed out, had they known that the commercial invoices in support of the applications for loans were not issued pursuant to genuine commercial transactions, they would not have granted the loans.  The loans and interests relating to all the charges have been returned to the banks in full.
28.7)銀行指出，如果它們知道用作申請貸款的商業發票，並非真正的商業交易的發票的話，它們就不會批出貸款。所有這些控罪的貸款及利息已全數歸還銀行。

3)  Second and third grounds of appeal (applicable to the 2nd to 7th Charges)
3)  第二、三上訴理由(適用於第二至第七項控罪)

3.1  Assessment of PW1’s integrity
3.1  控方第一證人誠信的評核

1)PW1 was the most essential witness in respect of the 2nd to 7th Charges.  The 1st applicant submits that Judge Yau erred in finding this witness veracious and reliable because the Judge had only considered that PW1 did not have any motive to frame up the 1st applicant, that the two parties continued to have business dealings, and that, were PW1 not a person of integrity, it would be difficult to see how Briga group would have allowed T&K to continue to manufacture and process products for them.  The 1st applicant submits that, having regarded the fact that PW1 had been granted immunity from prosecution as an indication that the offence must have been committed, Judge Yau shifted the onus of proof to the 1st applicant, asking him what motive there was for PW1 to frame him up.  The 1st applicant submits that the point that both parties continued their business dealings because of PW1’s integrity was made by Judge Yau out of sheer conjecture, as there was no evidence pointing to the circumstances under which the two parties continued their business dealings or the reasons why they did so.
1)控方第一證人是本案第二至第七項控罪最具關鍵性的證人。第一申請人稱邱法官錯誤裁定他是誠實可靠的證人，原因是邱法官只是考慮了控方第一證人沒有動機去誣衊第一申請人及雙方都繼續有做生意，若果控方第一證人不是有誠信的人很難令人信服 Briga 集團仍會讓「千基」繼續替它的產品進行生產和加工。第一申請人認為邱法官將控方第一證人獲豁免起訴視作罪行必然曾經發生，然後把舉證責任轉移給第一申請人，及反問第一申請人，控方第一證人有甚麼動機去誣衊他。第一申請人說雙方繼續做生意是因為控方第一證人是有誠信，這只是邱法官自己的猜想，案件根本缺乏證據說明雙方繼續有生意往來的情況及原因。

29.2)We agree that the assessment of the honesty or otherwise of a witness should not be based solely on whether he/she has the motive to frame up the defendant.  Moreover, ongoing business dealings between the two parties should not be the only reason for finding the 1st applicant an honest or dishonest witness.  However, in our view, apart from PW1’s evidence, there was also other evidence in support of the 2nd to 7th Charges, such as the flow of money and other corroborative evidence.  Having considered the relevant evidence, Judge Yau found, in our view correctly, that PW1 was an honest witness.  The reasons stated by Judge Yau were just two of the many reasons for his finding, and he had never shifted the onus of proof to the 1st applicant.
29.2)本庭認同在考慮一名證人是否是誠實的證人時，不應該單以他是否有動機去誣衊被告人作為分析的基礎。另外，雙方繼續做生意也不是裁定第一申請人是否是誠實的證人的唯一原因。但本庭認為支持第二至第七項控罪的證供，除了控方第一證人的證供外，還有其他證據，例如資金的流向及其他的佐證。在考慮有關證供後，邱法官裁定控方第一證人是一名誠實的證人是正確的決定。邱法官所提出的兩項理由只是眾多理由的其中兩點，他絕對沒有將舉證責任轉移給第一申請人。

29.3)The 1st applicant also submits that Judge Yau had not taken into account that PW1’s evidence in respect of the 1st Charge had already been rebutted by the two accounting experts for the prosecution (PW12 and PW14).  In the 1st Charge, PW1 alleged that the 1st applicant had told him that he would have an additional 32% of DIL shares transferred from DDL to him and that no disclosure was necessary in the company results if the shareholding of the subsidiary company was less than 20%.  PW12 testified that according to the Equity Method of Accounting, even if there was no transfer of the 32% shares, DDL would still not be required to disclose the loss suffered by DIL in the financial report and prospectus.  The two DDL audit documents produced to the court by PW14 showed that in the financial year preceding the transfer of the 32% shares, i.e. 2002, DDL had already ceased to bear DIL’s loss and had not disclosed DIL’s loss in its financial report.  This was the very evidence which proved that DDL had already adopted the Equity Method of Accounting back in 2002.  Being a chartered accountant and an officer responsible for corporate accounting and financial matters, the 1st applicant must, back in 2002, have been aware of such fact or the fact that DDL had already adopted the Equity Method of Accounting.  Therefore, the conversation PW1 alleged to have had with the 1st applicant about the effect of the share transfer appeared to be self-contradictory.
29.3)第一申請人亦說，邱法官沒有考慮控方第一證人在第一項控罪的證據已被控方兩位會計專家(控方第十二及第十四證人)駁斥。在第一項控罪，控方第一證人指稱第一申請人對他說會將額外 32% 的 DIL 股權由 DDL 轉給他及說如果子公司佔股不超過 20% 就不需要在公司業績中披露出來。控方第十二證人的證供是指根據會計原則的 Equity Method of Accounting，縱使沒有 32% 的股份轉讓，DDL 亦無須在財政報告及招股書上披露 DIL 的虧損。控方第十四證人呈堂的兩份 DDL 核數文件顯示，DDL 在 32% 股份轉移前的早一個財政年度，即 2002 年 DDL 的財政報告已經停止分擔 DIL 的虧損及沒有披露 DIL 的虧損。這證據正是證明 DDL 早於 2002 年已經引用 Equity Method of Accounting。第一申請人作為特許會計師及負責公司的會計和財務的管理人員，他必然早於 2002 年已經知道此事實或者 DDL 早已引用了Equity Method of Accounting 會計上的情況。故此，控方第一證人聲稱與第一申請人有關股份轉讓的作用對話表面上是有矛盾的。

29.4)Judge Yau found the 1st Charge not established for the following reasons:
29.4)邱法官裁定第一項控罪罪名不成立的原因如下：

“202.This gives rise to a question that I must consider: would the performance of the agreement between PW1 and the 1st defendant constitute an offence? Given that a company applying for listing is not required to disclose the loss of an associated company, then even if there was no such false share transfer, the non-disclosure of the loss of DIL and DML when Daka Designs applied for listing would not have contravened the listing rules or constituted any offence. For this reason, we must scrutinize the agreement between PW1 and the 1st defendant. In fact, what PW1 agreed with the 1st defendant to do was become the nominal majority shareholder of DIL in order to assist Daka Designs in getting listed in Singapore. The 1st defendant told PW1 that if DDL’s shareholding in DIL did not exceed 20%, DDL would not be required to disclose the loss of its subsidiary. The 1st defendant did not specify which subsidiary he was talking about, but it was beyond doubt that both he and the 1st defendant knew that it referred to DIL and DML. The ultimate objective of their agreement was to procure the successful listing of Daka Designs.
「202.由此引申出一個本席必須考慮的問題，就是控方第一證人及第一被告人之間的協議，如果實行的話會否構成罪行?既然一間申請上市的公司根本就不用披露一間associated company的虧損，那麼就算沒有這個虛假股份轉讓，Daka Designs 申請上市時，不披露 DIL 及 DML 的虧損也不會違反上市規則，及不構成罪行。為此我們必須細看控方第一證人及第一被告人之間的協議。其實控方第一證人答允第一被告人的就是成為DIL的掛名大股東去幫助 Daka Designs 在新加坡上市。第一被告人告訴控方第一證人，若果 DDL 擁有少於百分之二十 DIL 股份，DDL 就不用披露其子公司的虧損。第一被告人沒有說明他所指的子公司是那一間公司，但毫無疑問，他與第一被告人都知道所指的是 DIL 及 DML 。他們兩人協議的最終目的是以此促成Daka Designs 成功上市。

203. Their agreement was not to directly assist in the listing of Daka Designs by means of a false share transfer, but instead to procure the listing of Daka Designs by discharging Daka Designs’ obligation to disclose the losses of DIL and DML. Obviously, when the 1st defendant requested PW1 to effect this false share transfer, he did not know that Daka Designs was simply not required to disclose the losses of DIL and DML under the SGX listing regulations and the law of Singapore regardless of whether such transfer took place. Therefore, when PW1 and the 1st defendant reached the agreement, their intention was to discharge Daka Designs’ obligation to disclose the losses of DIL and DML so as to assist Daka Designs in getting listed. This intention could not possibly constitute a criminal offence. In other words, an agreement formed on such a basis and bearing such an objective could not possibly constitute a conspiracy which attracted criminal liability.”
203. 他們的協議並非直接以虛假股份轉讓去幫助 Daka Designs 上市，而是要透過解除 Daka Designs 披露 DIL 及 DML 的虧損的責任去促成Daka Designs 上市。很明顯，第一被告人要求控方第一證人作這虛假股份轉讓時，他也不知道無論有沒有這個股份轉讓，根據新交所的上市守則和新加坡的法例，  Daka Designs 根本上就不需要披露 DIL 及 DML 的虧損。因此，當控方第一證人及第一被告人達成協議時，他們的意圖是要解除 Daka Designs 披露 DIL 及DML 的虧損的責任，以幫助 Daka Designs上市。這個意圖根本不構成一個刑事罪行。換言之，一個以此為基礎及目的的協議根本就不構成一個觸犯刑法的串謀。」

29.5)In our view, whether the 1st applicant had said such things to PW1 is separate and distinct from whether the 1st Charge could be established.  The 1st applicant had elected not to testify at trial.  That he was an accountant by profession does not necessarily mean that he had not put forward the relevant suggestion to PW1 or that the two of them had not eventually reached the agreement.  Under such circumstances, Judge Yau was entitled to draw an inference adverse to the 1st applicant.  Whether PW1 was a veracious witness was purely a finding of fact.  His testimony at trial lasted as long as 13 days.  In order to successfully overturn Judge Yau’s findings on PW1’s credibility, the 1st applicant has to prove that Judge Yau’s assessment of PW1’s testimony was plainly wrong.  Judge Yau had the benefit of listening to PW1 and observing his demeanour when he was giving evidence.  We do not agree with the 1st applicant’s contention.
29.5)本庭認為第一申請人是否對控方第一證人說過這番話與第一項控罪是否可以成立是兩回事。在本案，第一申請人選擇不上庭作供。就算他是會計專業人士，這也不必然表示他沒有對控方第一證人提出有關的建議及最終達成有關的協定。邱法官在這情況下是有權對第一申請人作出對他不利的推斷。控方第一證人是否是一名誠實的證人純粹是一項事實的裁決。他作證長達了十三日之久。第一申請人必須證明邱法官在評核控方第一證人的證供時是有明顯錯誤才可以成功推翻邱法官就控方第一證人的可信性的裁決。邱法官有機會親自聆聽及觀察控方第一證人作供。本庭不認同第一申請人的論點。

29.6)The 1st applicant also complains that Judge Yau had accepted PW1 as a veracious witness for the above two reasons and, harbouring such first impression, analyzed the evidence in respect of the 2nd to 7th Charges.  The 1st applicant submits that Judge Yau should have considered the entire body of evidence in the case before assessing PW1’s veracity and credibility.
29.6)第一申請人亦指邱法官基於上述兩點理由接納控方第一證人為誠實的證人，先入為主以此作為起點來分析第二至第七項控罪的證據。第一申請人指邱法官應該全盤考慮案中所有的證據才評估控方第一證人的誠信。

29.7)In our view, in assessing PW1’s testimony, Judge Yau had in fact applied the criteria suggested by the 1st applicant.  The Judge said:
29.7)本庭認為其實邱法官已經以第一申請人所聲稱的準則評估控方第一證人的證供。邱法官這樣說：

“255.As is the case with the 1st Charge, the prosecution relies heavily on PW1’s evidence in seeking to prove the 2nd to 7th Charges. As I have mentioned above, PW1 testified under immunity from prosecution granted by the Secretary for Justice and therefore I have approached his evidence with great caution. In dealing with the 1st Charge, I have found that PW1 was a veracious and reliable witness in relation to that charge. The 2nd to 7th Charges are separate charges.  Therefore I have to deal with the credibility and reliability of PW1’s evidence in relation to these charges separately.  PW1’s evidence in relation to these charges is, in my view, fair without a trace of exaggeration.  Of course, there are a number of points that I have to specifically address.”
「255.與第一項控罪的情況一樣，在第二項至第七項控罪中，控方很大程度上倚賴控方第一證人的證供。本席已在上文提及，控方第一證人是在律政司司長給予豁免起訴的情況下作供，本席因此很小心處理他的證供。本席在處理第一項控罪時，已裁定控方第一證人在第一項控罪中是一個誠實和可靠的證人。第二項至第七項控罪為獨立的控罪，本席因此需要獨立地處理控方第一證人在這些控罪中的證供的可信性和可靠性。本席認為控方第一證人在這些控罪中的證供都很中肯和沒有半點誇大其詞。當然，其中有多點本席需要特別處理的。」

4)  Fourth ground of appeal (applicable to the 2nd to 7th Charges)
4)  第四項上訴理由(適用於第二至第七項控罪)

4.1  Single conspiracy/separate conspiracies
4.1  單一串謀/獨立串謀

1)The 1st applicant submits that the 2nd to 7th Charges were founded upon one previous general conversation between the 1st applicant and PW1, but each of those charges was concerned with a separate conspiracy.  The prosecution evidence supported only one global/overall conspiracy, and no evidence was adduced to establish a separate and distinct agreement between the 1st applicant and PW1 in respect of each charge.  The 1st applicant argues that, at law, the prosecution bore the burden of proving that the 2nd to 7th Charges were all concerned with separate conspiracies, see The Queen v. Hung Hon Yee, CACC 271/1985.  In that case, a number of defendants faced three charges which involved different periods, but part of the periods overlapped and each charge of conspiracy involved different defendants.  The prosecution made it clear that the second and third counts of conspiracy were alternative to the first count of conspiracy.  The ground of appeal was that the trial judge had failed to direct the jury adequately on whether the facts involved one single conspiracy or one or more than one conspiracies.  The Court of Appeal accepted this argument.  The respondent in the present case does not take issue with the principle laid down in Hung Hon Yee but submits that it does not apply to the present case.
1)第一申請人指第二至第七項控罪是建基於第一申請人與控方第一證人在早期的一個概括性對話，但第二至第七項是獨立的串謀控罪。控方的證據只是支持一個單一/整體串謀，但沒有提出證據證明第一申請人和控方第一證人在每一項控罪上有獨立的協議。第一申請人稱聲，在法律上控方是有舉證責任證明第二至第七項控罪皆是獨立串謀，見：The Queen v. Hung Hon Yee CACC 271/1985。在該案，多名被告人面對三項時間不同的控罪，但部分時間是有重疊，每項串謀亦涉及不同的被告人。控方表明第二及第三項「串謀」罪是第一項「串謀」罪的交替罪名。上訴理由是原審法官沒有充分指示陪審團案情是否涉及一個串謀或者有一或多個串謀。上訴法庭同意這個論點。答辯人對 Hung Hon Yee 一案所定的原則沒有異議，但指該案的情況不能適用於本案。

30.2)We do not think that the decision in Hung Hon Yee is applicable in the present case.  The six counts of conspiracy in the present case involved six different banks, and the amounts involved were all different.  In our view, even if PW1 and the 1st applicant had all along relied on a previous general conversation in forming this conspiracy agreement, in the end they still had to discuss and agree upon the amount involved in the bogus transaction in respect of each charge, and therefore, each bogus transaction was a separate conspiracy agreement.  We do not agree that Judge Yau had made his ruling on the basis of only one single conspiracy.
30.2)本庭不認為 Hung Hon Yee 一案的裁決適用於本案。在本案六項「串謀」罪涉及六間不同的銀行，涉及的金額亦每間銀行不同。本庭認為即使控方第一證人和第一申請人一直是基於早期的一個概括對話，而產生此串謀協議，最終他們仍須就每一項控罪所指的虛假交易商討涉案銀碼作出協議，故此，每一宗虛假交易都是一個獨立的串謀協議。本庭不同意邱法官只是以一個單一串謀的方法來作出裁決。

5)  Fifth ground of appeal (applicable to 2nd Charge)
5)  第五項上訴理由(適用於控罪二)

5.1  Whether the agreement was targeted at the bank
5.1  協議是否針對銀行

1)The 1st applicant submits that PW1’s evidence failed to show that the agreement between the 1st applicant and PW1 was targeted at a bank or any type of institution.  Judge Yau erred in finding PW1 must have known that the 1st applicant would use the invoices on the bank.  Such a finding was at variance with PW1’s evidence which revealed nothing more than speculation on his part: “Should be, broading speaking, not enough money to spend, loan from bank first.”  The earliest point of time at which PW1 was indeed aware that the relevant conduct would be carried out on banks was after he had the conversation with the 1st applicant, i.e. after T&K had received from the bank the money referred to in the 2nd Charge.  The applicant contends that Judge Yau erred in law in finding that it was not necessary to show that the 1st applicant knew that the invoices were used against the banks and that it sufficed to show that he knew illegal conduct would be involved.  The element of the offence charged was conspiracy to defraud the bank, not conspiracy to defraud any person.
1)第一申請人指控方第一證人的證供是不能顯示第一申請人和他之間的協議是針對銀行或任何類形的機構。邱法官錯誤裁定控方第一證人一定知道第一申請人會向銀行利用發票，這是與他的證供有所違背，因為他的證供顯示這只是他的揣測「應該係大致上唔夠錢使，同銀行 loan 住先」。控方第一證人真正最早知悉有關行為是用作於銀行是在控方第一證人與第一申請人對話之後，即「千基」從銀行收到第二控罪所指的款項之後，申請人認為邱法官裁定控方第一證人不需要知道發票是針對銀行，而只是知道會涉及非法行為便足夠，是犯了法律錯誤。有關控罪的元素是串謀詐騙銀行，而非串謀詐騙任何人。

31.2)On this issue, Judge Yau ruled as follows:
31.2)邱法官就這議題作出以下的裁決：

“279.… Undoubtedly, in the 2nd Charge, the T&K invoice numbered TK0307/03[prosecution exhibit P433(2359)] which was used by DDL in applying to the KBC Bank N.V. for the trust receipt loan of $1,001,756.80 was, as PW1 testified, a false invoice.
「279.…….毫無疑問，在第二項控罪中，DDL用作向比利時聯合銀行申請1,001,756.80元的信託收據貸款的千基發票編號TK0307/03[控方證物P433(2359)]是正如控方第一證人作供所說是虛假的發票。

280.Although PW1 has already forgotten if he had issued this false invoice on the basis of the free extra moulds previously produced, PW1 did point out very clearly in his testimony that it was only upon the 1st defendant’s request that he had issued this invoice, because the 1st defendant had said that DDL needed money for cashflow. The 1st defendant said in his closing submission that PW1 agreed that he did not know the false invoice would be used in support of the application to the bank for invoice or trust receipt financing. In response, the prosecution stated that when the 1st defendant requested PW1 to issue the false invoice, what he said was, “not enough money to spend, loan from bank first”.
280.雖然控方第一證人已忘記他是否使用之前免費多做了的工模的方法去開出這虛假的發票，但控方第一證人的證供很清楚地指出，他是應第一被告人的要求才開出這虛假發票，因為第一被告人指DDL需要金錢周轉。第一被告人在最後陳詞中指控方第一證人同意他不知道這些虛假發票會用來支持向銀行申請invoice 或trust receipt financing。控方所作出的回應是第一被告人要求控方第一證人開虛假發票時所說的是「唔夠錢使，同銀行loan住先」。

281．I must point out that PW1’s evidence is in fact this. In PW1’s testimony, after he said that he had issued the false invoice upon the 1st defendant’s request, the prosecuting counsel asked him, “For what did he ask you to issue it? That is to say, firstly, did he tell you what the purpose was?” PW1 answered, “Should be, broadly speaking, not enough money to spend, loan from bank first.” From this answer, it seems that this was what the 1st defendant had said to PW1. However, the way in which PW1 expressed it in court showed that he was not that clear or certain, and he did not clearly indicate whether that was actually what PW1 [sic] had said to him or whether that was what he thought.
281．本席必須指出，控方第一證人的證供其實是這樣的。控方第一證人作供時說完是第一被告要求他開出虛假發票後，控方大律師問他: 「佢叫你開嚟做乜嘢? 即係首先佢有冇話畀你聽個作用係乜嘢先?」控方第一證人的答案是:「應該大致上唔夠錢使，同銀行loan住先」。這答案似乎是道出第一被告人是這樣對控方第一證人說的。但控方第一證人在庭上的表達方式表現出他並不太清晰肯定，而且亦並不太清楚表示出控方第一證人的確是這樣告訴他，還是這是他自己的想法。

282.However, I do not think this is important. Although PW1 did not clearly and expressly point out in his testimony that the 1st defendant had told him he would use the false invoice to apply to the bank for a loan, at the material time PW1 and the 1st defendant had had business dealings for quite a long period of time, and PW1, who was himself also a businessman, must have been aware that the 1st defendant was deliberately using the false invoice to apply to the bank for a loan in order to obtain the money he needed for cashflow. Even if PW1 in fact did not know or had never thought that the 1st defendant would do that, this would not serve to negate any conspiracy between PW1 and the 1st defendant. PW1 certainly knew that it was never lawful to raise funds by using a false invoice no matter what method was adopted and to which institution the application was made. Once PW1 agreed with the 1st defendant to do it, he made himself a party to a conspired illegal deal even though he did not know the details of the entire conspiracy. The illegal deal between them was to raise funds by using a false invoice.”
282.但本席認為這一點其實不重要。雖然控方第一證人在證供中沒有清晰、明確地指出第一被告人告訴他他會以虛假發票向銀行申請貸款，但案發時控方第一證人及第一被告人已有生意來往一段頗長的時間，而控方第一證人自己也是生意人，他一定知道第一被告人故意借虛假發票向銀行申請貸款來獲得他所需要的資金周轉。就算控方第一證人真的不知道，或沒有概念第一被告人會這樣做，這也不會令到控方第一證人與第一被告人之間沒有串謀。控方第一證人一定知道用假的發票去籌集資金，無論用甚麼方法，無論向甚麼機構申請，一定不會是合法的。控方第一證人答應第一被告人去做，就算他不知道整個串謀的詳情，他已經是一個串謀非法勾當的一份子。而他們之間的非法勾當就是要以虛假的發票去籌集資金。」

31.3)With respect, we do not agree with the 1st applicant’s argument.  Judge Yau found — and this is a finding of fact — that it was only upon the 1st applicant’s request that PW1 had issued the false invoice.  Even though it was not clearly indicated at the time of formation of the agreement that the 1st applicant would use the false invoice to obtain a loan from the bank, Judge Yau correctly found, on the basis that the two parties had had business dealings for quite a long period of time and PW1 himself was also a businessman, that he must have been aware that the 1st defendant would use the false invoice to apply to the bank for a loan so as to obtain funds for cashflow.    This issue should be determined by applying common sense.
31.3)本庭不認同第一申請人所持的論點。邱法官裁定控方第一證人是應第一申請人的要求才發出虛假發票，這是一項事實的裁斷。就算雙方在達到協議時沒有清楚說明第一申請人會利用這些虛假發票向銀行取得貸款，但邱法官以雙方已經有生意往來一段頗長的時間，而控方第一證人本身也是生意人，他一定知道第一申請人是會利用這些虛假發票向銀行申請貸款獲得資金周轉的裁決是正確的。這議題應該是以常理來作出裁決。

31.4)In any event, the 1st applicant’s defence was that the invoice in question was not false and was supported by a genuine commercial transaction.  This being the case, it was not in issue whether there was clear indication at the time of the agreement that the bank was targeted at.
31.4)無論如何，第一申請人的答辯理由是有關的發票並非是虛假的發票，而是有實質商業交易支持的。故此，雙方協議時是否明顯地說明針對銀行並非是本案的爭議點。

31.5)As the Court of Final Appeal pointed out in Mo Yuk Ping v HKSAR (2007) 10 HKCFAR 386, conspiracy to defraud was constituted by being a party to an agreement to use dishonest means:
31.5)根據終審法院在 Mo Yuk Ping v HKSAR (2007) 10 HKCFAR 386 一案指出，構成串謀詐騙罪行的元素是身為協議一份子，而該協議是使用不誠實手段：

(1) for the purpose of causing economic loss to, or putting at risk the economic interests of, another; or
(1) 以其令另一人蒙受經濟損失或令該人的經濟利益承受風險；或

(2)with the realization that the use of those means might cause such loss or put such interests at risk.
(2)同時知悉該等手段可能導致上述經濟損失或令上述利益承受風險。

31.6)PW1’s understanding of the 1st applicant’s request to provide false invoices was neither absurd nor unreasonable.  It must have been the 1st applicant’s intention to make use of the false invoices obtained to deceive third parties.  Viewing the evidence in its entirety, such third parties were obviously the banks or financial institutions which accepted the false invoices and thereby granted loans.  This was the effect of the relevant commercial documents.  This conclusion could not be clearer.  Therefore, the suggestion that the agreements concerned were not targeted at the banks is nitpicking.
31.6)第一控方證人對第一申請人要求他提供虛假發票的理解並非是荒誕、不合理的。第一申請人獲得這些虛假發票必然是想利用這些虛假文件欺騙第三者。從本案整體證供來看，明顯地這個第三者就是接納這些虛假發票，從而給予貸款的銀行或財政機構。這是有關商業文件的作用。這個結論是最清楚不過的。故此，有關協議並非是針對銀行的論點是吹毛求疵的說法。

6)  Sixth ground of appeal (applicable to 8th Charge)
6)  第六項上訴理由(適用於控罪八)

6.1  Background to the 8th Charge
6.1  控罪八的背景

To make it easier to understand this ground of appeal, we will briefly recount the evidence in respect of the 8th Charge before dealing with the ground of appeal itself.
為了易於了解這上訴理由，本庭先簡述控罪八的證據才處理這個上訴理由。

6.1(1)  PW9
6.1(1)  控方第九證人

32.1)PW9 gave evidence under immunity from prosecution.  He said that since 1996, MHM had had business dealings with DDL and Briga which was established subsequently.  He discussed with the 2nd applicant about the business dealings with both Briga and DDL.
32.1)控方第九證人在獲豁免起訴的情況下作供。他指從 1996 年開始，MHM 便與 DDL 及後來成立的 Briga 有生意往來，無論是 Briga 或 DDL，他都是與第二申請人傾談有關的生意。

32.2)In early 2004, the 2nd applicant requested him to place an order with DDL for goods to the value of $10,000,000, i.e. the “special order”.  He did not know why the 2nd applicant made such request, but he thought that an order for goods of such value was unrealistic and excessive.  On 12 January 2004, he sent an email to the 2nd applicant specifically addressing the matter (Exhibit P39).  Exhibit P39 reads as follows:
32.2)於 2004 年初，第二申請人要求他向 DDL 訂購一千萬元的貨品，即「特別訂單」。他不知道第二申請人因何要作出如此要求，但他認為一千萬元的貨品是不切實際及太多了。為此他特別於 2004 年 1 月 12 日發了一個電郵給第二申請人(證物 P39)。證物 P39 的內容是

“Pat [i.e. the 2nd applicant],
‘Pat [即第二申請人],

Lewis [i.e. PW9]”
Lewis [即控方第九證人]’

32.3)In gist, PW9 indicated in the email that MHM could not afford the 10% deposit of $10,000,000 and he put forward the conditions for early placement of the purchase order for $10,000,000 worth of goods, including that there was no need to assume any risk for the purchase order, that is to say, no requirement for a deposit and no liability for failure to have all goods delivered within one year.  PW9 testified that the 2nd applicant had accepted this special condition in the email.
32.3)控方第九證人在電郵中表示 MHM 付不起一千萬元的 10% 訂金，並且開出提早發出一千萬元貨物訂單的條件，這包括不須承擔這訂單的風險，即不用付訂金及就算一年內未能把所有貨物提取也無須負上責任。控方第九證人作供時指第二申請人答應了他在電郵中這一個特別條件。

32.4)It can be seen from P39 that, while forwarding this email to the 1st applicant, the 2nd applicant simply referred to it as “This is from MHM” without making any elaboration.
32.4)從證物 P39 看到第二申請人將此電郵轉寄給第一申請人只是簡單地寫成 ‘This is from MHM’。完全不用加上任何解釋。

32.5)Afterwards, on 11 February 2004, PW9 sent an email to the 2nd applicant (Exhibit P49), in which PW9 indicated clearly that although he sincerely hoped that the 2nd applicant’s Daka Designs would successfully get listed, he also hoped he could stay free from any trouble.  PW9 indicated that, for the sake of enabling the 2nd applicant to meet the turnover target of the year and easing his financial burden, PW9 did not mind issuing purchase orders in advance or even making other payment arrangements so as to support the 2nd applicant.  However, PW9 also put forward some conditions, suggesting that the 2nd applicant should sign an exclusive distributorship agreement with PW9 and disclose it in the prospectus of Daka Designs.  PW9 also said that they would make their greatest efforts to sell the goods concerned but it did not involve any obligation or commitment.
32.5)其後控方第九證人在 2004 年 2 月 11 日發出一封電郵給第二申請人(證物 P49)。在這電郵中控方第九證人清楚表示他雖然衷心祝福第二申請人的 Daka Designs 能成功上市但他亦希望自己不被牽涉入任何麻煩中。控方第九證人表示為了第二申請人達到年度的生意額及舒緩第二申請人的財政，他不介意提早開出購貨單或甚至以其他付款方式來支持第二申請人。但控方第九證人亦開出條件認為第二申請人應與控方第九證人簽署獨家分銷協議，並將之披露在 Daka Designs 上市的招股書中。控方第九證人亦指他們會盡最大努力將有關貨物銷售，但當中不存在任何責任及承諾。

32.6)In respect of this “special order”, PW9 said that he signed the purchase order for the $10,000,000 worth of goods with a view to helping a friend with whom he had an amicable business relationship and upon the understanding that there would be no need to make a commitment to buy those goods.  He said that half of the goods in the purchase order were beyond reasonable limit because he was by no means sure if it was possible to sell that many goods.
32.6)就這「特別訂單」，控方第九證人指他簽署這一千萬元的購貨單是因為他本著生意上的交情及加上對這些貨不用承諾購買的情況下去幫助朋友。他指購貨單上其中有一半的貨物是不合理的，因為他根本不知道能否賣出這麼多貨物。

32.7)Exhibits P56-P60 are purchase orders issued by MHM, all dated 20 January 2004.  In his testimony, PW9 said that Exhibits P56-P60 were different versions of the purchase order drafted for this “special order”, the contents of which (including descriptions, quantities and prices) were set out as per the 2nd applicant’s request after PW9 contacted him.  The price of goods under the last purchase order [P60] was approximately $8,900,000.
32.7)證物 P56 - P60，日期均為 2004 年 1 月 20 日由 MHM 開出的購貨單。控方第九證人在作供時指證物 P56 - P60 就是為這「特別訂單」而草擬的不同版本的購貨單，內容(包括產品類別數量及價錢)是他與第二申請人接觸後應第二申請人要求下所列出的。最後一張購貨單 [P60] 的貨款是約 $8,900,000。

32.8)Exhibit P40 is a proforma invoice issued by Briga to MHM, dated 17 February 2004 and bearing the chop of MHM.  Prosecution Exhibit P40 clearly shows that, for product LG22, the unit price was $85.8 and the total quantity ordered was 12,666, and hence this product involved an amount of $1,086,742.80; and for product FT66, the unit price as set out in P40 was $936, and the quantity ordered was 7,000, and in other words, the total amount involved was $6,552,000.  These two new products involved a total amount of $7,638,742.80, which already accounted for 73% of the amount payable for the goods in the order.
32.8)證物 P40 是一份 Briga 發給 MHM 日期為 2004 年 2 月 17 日的「預開發票」 (proforma invoice) 上有 MHM 的蓋印。在控方證物 P40 中可以清楚見到 LG22 型產品單貨價為 $85.8，而總數訂貨量是 12,666，因此，此貨品所牽涉的金額是 $1,086,742.80；FT66 型產品在證物 P40 中所列的單貨價為 $936，訂購數量為 7,000，換言之總金額為 $6,552,000。單看這兩件新產品所佔訂單的總額已達至 $7,638,742.80，佔訂單的七成三貨款。

32.9)PW9 did not think that the goods on this proforma invoice belonged to the inventory of MHM, nor did he think that MHM was required to make payment to settle this proforma invoice.  In particular, PW9 pointed out that the price of the FT66 “mosquito trap” product as set out in P40, i.e. $936, was fixed by the 2nd applicant.  PW9 said he would never purchase this item at a unit price of $936 because this would render it impossible to make any profit.
32.9)控方第九證人不認為這「預開發票」上的貨物是 MHM 的存貨，及不認為 MHM 須支付「預開發票」上的貨款。控方第九證人特別指出在證物 P40 內所指 FT66 型號的產品，即「驅蚊器」為 $936，這價錢是第二申請人定的。控方第九證人說他絕對不會以 $936 之單貨價購入此貨物，因為這是絕對沒有利潤的。

32.10)Exhibits P42, P43 and P44 [BIV0403003, BIV0403004 and BIV0403005] are three commercial invoices issued by Briga to MHM.  Each invoice bore the chop of MHM and the signature of PW5 (the general manager of Briga).
32.10)證物 P42，P43 及 P44 [BIV0403003、BIV0403004 以及 BIV0403005]是三張由 Briga 發出給 MHM 的商業發票，每一張均有 MHM 的蓋印以及控方第五證人(Briga 的總經理) 的簽署。

32.11)PW5, while testifying in court, also recognized that the three commercial invoices had been signed by him.  However, according to his evidence, purchase orders of MHM generally involved amounts ranging from a few thousand dollars to hundreds of thousands of dollars, and this “special order”’ was the first MHM order that he had ever seen which involved more than 10 million dollars.
32.11)控方第五證人作供時亦在庭上認出三張商業發票是他簽署的。但根據他的證供 MHM 的購貨單金額一般為數千至數十萬元，這次「特別訂單」是他首次看見 MHM 有一千多萬元的購貨。

32.12)PW9 recognized that the MHM chop on these three commercial invoices was affixed upon the request of DDL.  He said that MHM had never paid for the goods stated in these invoices and had not taken delivery of them, because MHM simply did not need so many goods.
32.12)控方第九證人認出這三張商業發票的 MHM 蓋印是應 DDL 的要求蓋上的。他指這三張發票上的貨物，MHM 根本沒有支付貨款，亦沒有收過貨，因為 MHM 根本不需要這麼多的貨物。

32.13)Exhibits P45, P46 and P47 (dated 23, 29 and 31 March 2004 respectively) were local delivery notes corresponding to Exhibits P42, P43 and P44 respectively, which apparently indicated that the goods of these three commercial invoices had been delivered to MHM.  PW9 said that he signed these three delivery notes only upon the 2nd applicant’s request and that MHM had in fact never received the goods concerned.
32.13)證物 P45、P46 及 P47 (日期分別為 2004 年 3 月 23 日、2004 年 3 月 29 日及 2004 年 3 月 31 日)是證物 P42、 P43 及 P44 的相關送貨單 (local delivery note)，表示這 3張商業發票的貨物已送達 MHM。控方第九證人說他是在第二申請人的要求下才簽署這三張送貨單，但 MHM 從來沒有收過有關的貨物。

32.14)Exhibit P64 is a “goods receipt acknowledgement” issued by Briga to MHM, dated 31 March 2004 and bearing PW9’s signature and the chop of MHM.  This “goods receipt acknowledgement” listed the numbers of four invoices, including BIV0403003, BIV0403004 and BIV0403005 (i.e. the numbers of the three commercial invoices marked P42, P43 and P44), and a fourth one numbered BIV0403001.
32.14)證物 P64 是一張 Briga 發給 MHM 的「收貨確認書」(goods receipt acknowledgement)，日期為 2004 年 3 月 31 日，內有控方第九證人的簽署及 MHM 的蓋印。這「收貨確認書」列出了 4 個發票編號，其中包括證物 P42、 P43 及 P44三張商業發票編號 BIV0403003、BIV0403004 以及 BIV0403005，另外一張發票編號是 BIV0403001。

32.15)PW9 said that before 31 March 2004 MHM had already received the goods to which BIV0403001 related.  The goods to which the other invoice numbers related had never been received, seen or inspected.
32.15)控方第九證人指在 2004 年 3 月 31 日前，MHM 已收過發票編號 BIV0403001 的貨品。其他編號的貨物則沒有收過，也沒有見過和驗過貨。

32.16)PW5 also explained in his testimony the use of the “goods receipt acknowledgement”.  He said that, after the goods ordered by a customer were produced, if the customer did not take the goods for the time being, the company might issue a “goods receipt acknowledgement” for the customer to sign, and immediately after it had been signed, the company would issue an invoice requesting the customer to make payment and would not wait until the customer actually took the goods.
32.16)控方第五證人作供時，亦解釋了「收貨確認書」的用途。他說貨物完成後，如客戶暫不提取貨物時，公司可以將「收 貨確認書」給客戶簽署，於簽署後公司就會即時開出發票要求客戶付款，而不會於客戶正式提貨時才這樣做。

6.1(2)  Reward of $100,000 given by the 1st applicant
6.1(2)  第一申請人給予 $100,000 的獎勵

32.17)PW9 said that throughout the whole incident, he was not required to commit to take delivery of the goods but had to sign documents such as purchase orders, proforma invoices, “goods receipt acknowledgements” and local delivery notes, which was causing him a lot of trouble.  Therefore, the 1st or 2nd applicant had promised to give him $100,000 as reward upon successfully listing.
32.17)控方第九證人說在整件事件中，他不用承諾一定要提貨，但卻要簽署購貨單、預開發票、「收貨確認書」及送貨單等文件，帶給他很多麻煩，所以第一申請人或第二申請人承諾成功上市後，給他 $100,000 作奬勵。

32.18)On 9 August 2004, a sum of $100,000 was transferred from the joint account of PW1 and PW2 with the HSBC to the joint account of PW9 and his wife with HSBC.  PW9 said that this was the $100,000 reward that the 2nd applicant had given him.  According PW1’s testimony, it was upon the 1st applicant’s instruction that he transferred the sum to PW9’s account.
32.18)2004 年 8 月 9 日一筆 $100,000 的款項從控方第一證人及控方第二證人的滙豐銀行聯名戶口轉賬到控方第九證人和其妻子的滙豐銀行聯名戶口。控方第九證人指這是第二申請人給他的 $100,000 奬勵。根據控方第一證人的證供，他是依照第一申請人的指示將該款項轉到控方第九證人的戶口。

6.1(3)  Payment by the 2nd applicant of a deposit of $2,000,000 for the “special order”
6.1(3)  第二申請人支付「特別訂單」的 $2,000,000 訂金

32.19)The bank record showed that on 2 March 2004 the 2nd applicant transferred $2,000,000 to PW9’s account.  On 5 March 2004, PW9 signed a cheque issued by MHM to Briga for the amount of $2,000,000.  PW9 said that this cheque was for payment of deposit for the $10,000,000 worth of goods that the 2nd applicant had requested MHM to purchase in early 2004.  The 2nd applicant had instructed PW9 to transfer the $2,000,000 to Briga, which was to be regarded as payment of the deposit for the goods.
32.19)銀行紀錄顯示，於 2004 年 3 月 2 日第二申請人將$2,000,000 轉到控方第九證人戶口。於 2004 年 3 月 5 日控方第九證人簽署一張由 MHM 開給 Briga 的支票，金額為 $2,000,000。控方第九證人說這張支票是作為 2004 年初第二申請人要求 MHM 購買 $10,000,000 貨物的訂金。第二申請人指示控方第九證人將 $2,000,000 轉去 Briga 當是支付貨物的訂金。

32.20)PW11 (i.e. Miss Wong Yuet-ying, Judy), the accounts manageress of DDL, testified under immunity from prosecution.  PW11 said that as early as 29 February 2004, the 1st applicant had already sent an email to her and other DDL staff telling them that within one week MHM would pay $2,000,000 as deposit for the “special order”.
32.20)控方第十一證人(即黃月影小姐)是 DDL 的會計經理，她在豁免起訴的情況下作供。控方第十一證人說早於 2004 年 2 月 29 日第一申請人已發出電郵給她及其他 DDL 的員工，指 MHM 將會於一週內支付 $2,000,000 作為「特別訂單」的訂金。

32.21)Ho Tak-ling (“PW7”), an accounting staff member of DDL, said that he received a cheque for this amount on 5 March 2004, and as he did not yet have the three commercial invoices for the “special order”, he treated this sum of $2,000,000 as a temporary deposit.
32.21)DDL 的會計員何德領(‘控方第七證人’)指他於 2004 年 3 月 5 日收到這筆款項的支票，由於當時仍沒有「特別訂單」的三張商業發票，所以他將這 $2,000,000 當作暫存款項處理。

6.1(4)  Payment by the 2nd applicant of $1,000,000 for the goods under the “special order”
6.1(4)  第二申請人支付「特別訂單」 $1,000,000 的貨款

32.22)On 20 July 2004, the 2nd applicant deposited $1,000,000 into PW9’s account.  On 23 July 2004, PW9 signed a cheque issued by MHM to Briga for the amount of $1,000,000.  PW9 said that this sum of $1,000,000 was given to him by the 2nd applicant for the purpose of reducing the amount payable by MHM to Briga for the goods.
32.22)2004 年 7 月 20 日，第二申請人將 $1,000,000 存入控方第九證人的戶口。2004 年 7 月 23 日，控方第九證人簽署一張由 MHM 開給 Briga 的支票，金額為 $1,000,000。控方第九證人指這 $1,000,000 是第二申請人給他的，用意是要減低 MHM 欠 Briga 的貨款。

6.1(5)  Payment by the 1st and 2nd applicants for the goods under the “special order”
6.1(5)  第一及第二申請人支付「特別訂單」貨款

32.23)On 18 March 2005, the 2nd applicant transferred $2,681,491 to PW9’s account.  On the same day, the 1st applicant transferred $2,001,893 and $850,000 to PW9’s account.  Eventually on 22 March 2005, PW9 transferred $2,960,530 to the account of DDL.  On 22 March 2005, PW9 $2,572,854 transferred back to the 2nd applicant’s account.
32.23)2005 年 3 月 18 日第二申請人將 $2,681,491 轉到控方第九證人的戶口。於同日第一申請人亦將 $2,001,893 及 $850,000 轉到控方第九證人的戶口。最終於 2005 年 3 月 22 日，控方第九證人將 $2,960,530 轉到 DDL 的戶口。於 2005 年 3 月 22 日控方第九證人將 $2,572,854 轉回到第二申請人的戶口。

32.24)Exhibit P107 included four emails sent by the 2nd applicant to PW9 on 18 March 2005, telling PW9 that he would deposit HK$2,681,491 and HK$2,851,893 into PW9’s bank accounts and instructing PW9 to remit US$329,853 and HK$2,960,530 to Mayhem and Daka respectively.  PW9 said that after receiving the sums, he did not make a remittance to Mayhem in the end but, as per the 2nd applicant’s instruction, he did return the money to the 2nd applicant by cheque on 22 March 2005.
32.24)證物 P107 其中四個電郵是第二申請人於 2005 年 3 月 18 日發給控方第九證人的，告訴控方第九證人他會將 HK$2,681,491 及 HK$2,851,893 存進控方第九證人的銀行戶口及吩咐控方第九證人把 US$329,853 及 HK$2,960,530 分別滙到 Mayhem 及 Daka。控方第九證人說，他收到這些錢後，最終沒有把錢滙到 Mayhem，而是按第二申請人的吩咐，於 2005 年 3 月 22 日以支票把錢交回第二申請人。

32.25)PW7 said that he had made use of this sum of money to set off the payment for goods under the three invoices marked P42 to P44.
32.25)就這筆錢控方第七證人說他用作扣減證物 P42 至 P44 這三張發票的貨款。

6.1.(6)  Internal arrangements at DDL
6.1.(6)  DDL 內部安排

32.26)PW11 was mainly responsible for the accounts of DDL, Kentat, DIL and DML.  During her employment, the bosses of DDL were the 1st applicant, the 2nd applicant and the 1st applicant’s wife.  The accounting staff at Daka Designs, including PW11, very often received instructions directly from the 1st applicant.  When the company did not have a financial controller, PW11 even directly reported to and was accountable to the 1st applicant.  The 1st applicant also personally attended meetings of the company in respect of accounting matters.
32.26)控方第十一證人主要的工作是負責 DDL、「建達」、DIL 及 DML 的賬目。她任職期間，DDL 的老闆是第一申請人、第二申請人及第一申請人的太太。Daka Designs 中處理會計工作的員工，包括控方第十一證人，很多時都會直接從第一申請人接受指示，當公司沒有財務總監時，控方第十一證人更直接向第一申請人報告和負責。第一申請人也親自出席公司與會計有關的會議。

32.27)PW11 said that the 3rd defendant had told her that the goods under this “special order” would be sent out by 31 March 2004 and would therefore be recorded in the accounts for the year 2004 which ended on 31 March 2004.  Furthermore, at a meeting held in March in relation to stocktaking, the 3rd defendant disclosed that the auditors would carry out stocktaking for Daka Designs in April 2004 and that the goods under the “special order” would be sold to the customer before 31 March 2004.  He requested the relevant staff to input the information into the ATL computer system of Daka Designs to ensure that the sales under the “special order” would be completed by 31 March 2004.
32.27)控方第十一證人說，第三被告人告訴她這「特別訂單」的貨物會於 2004 年 3 月 31 日前出貨，因此會記於截至 2004 年 3 月 31 日的 2004 年年度的帳目內。第三被告人亦於 2004 年 3 月份的一次有關盤點的會議中透露核數師會於 2004 年 4 月份為 Daka Designs 進行盤點及指出「特別訂單」的貨物會於 2004 年 3 月 31 日前賣給客人。他要求有關的員工把資料輸入 Daka Designs 的 ATL 電腦系統中，確保「特別訂單」於 2004 年 3 月 31 日前完成銷售。

32.28)In April 2004, the auditors RSM Nelson Wheeler went to DDL to carry out auditing work.  As instructed by the 3rd defendant, PW11 had the finished products and semi-finished materials under the “special order” moved from DML to the warehouse of T&K (PW1) before the auditors carried out the stocktaking exercise on 8 April 2004.  Afterwards, the 3rd defendant also reminded PW11 to prepare a “goods receipt acknowledgement” for the goods under the “special order”, have it backdated to 31 March 2004 and give it to RSM Nelson Wheeler (Exhibit P64).  In respect of P64, PW11’s understanding was that the goods under the “special order” would be kept in the warehouse and delivered only when the customer asked for the goods.
32.28)於 2004 年 4 月，核數師 RSM Nelson Wheeler 到 DDL 核數。控方第十一證人根據第三被告人的指示將「特別訂單」的物料製成品及半製成品在 2004 年 4 月 8 日核數師進行盤點前由 DML 搬到「千基」(控方第一證人) 的貨倉。第三被告人其後亦提醒控方第十一證人為「特別訂單」的貨物準備了一張「收貨確認書」，並將之日期追溯到 2004 年 3 月 31 日，交給 RSM Nelson Wheeler (證物 P64)。就 P64 而言，控方第十一證人的理解是「特別訂單」的貨物會存放於貨倉內，當客人要貨時才付貨。

6.1(7)  Taking of delivery in reality
6.1(7)  真實的提貨

32.29)PW11 said that the goods under the “special order” were delivered to MHM in batches after 31 March 2004.  However, as the goods had already been recorded as sold in the ATL system of Daka Designs, such delivery was, from an accounting perspective, no longer a sale but delivery of goods in batches.  For these batches of goods, PW11 said that an alphabet was added to the end of the numbers of the commercial invoices to make them additional commercial invoices issued at the time of delivery.  The numbers went from BIV0403003-5(A), BIV0403003-5(B) all the way to BIV0403003-5(N), and these invoices were called “A, B, C, D …” invoices for short.  The 3rd defendant also instructed PW11 that the money used by MHM to settle the “A, B, C, D …” invoices was to be used to reduce the amount payable for the goods under the “special order”.
32.29)控方第十一證人說，「特別訂單」的貨物於 2004 年 3 月 31 日之後分批出貨到 MHM。但由於根據 Daka Designs 電腦的 ATL 系統中紀錄該貨物已銷售，因此就會計立場來說出貨已不再是銷售而是分段出貨。就這些分段貨而言，控方第十一證人指他們在商業發票編號後加上一個英文字母，作為出貨時加開出的商業發票。其編號由BIV0403003-5(A)、 BIV0403003-5(B) 一直至到 BIV0403003-5(N)，這些發票被簡稱為「A,B,C,D….」發票單。第三被告人亦指示控方第十一證人說 MHM 用來支付「A,B,C,D….」發票單的款項用以扣減「特別訂單」的貨款。

32.30)PW9 also confirmed that between June 2004 and November 2005 he took delivery of the goods set out in a total of 14 commercial invoices bearing commercial invoice numbers from BIV0403003-5(A) to BIV0403003-5(N), together with BIV0405067(A) and BIV0405067(B).  The delivery notes also bore the company chop of MHM which was affixed upon receiving the goods.  PW9 also followed the normal procedures and paid with cheques, the records of which could be found in MHM’s books.  Moreover, the practice adopted for settlement of BIV0403003-5(A) to (G) was no different from that for previous normal transactions: the number of the corresponding commercial invoice to be settled was written on the reverse side of each cheque; each commercial invoice was settled by way of three cheques issued respectively for 40%, 30% and 30% of the stated price of the goods; and the dates of the cheques differed by one month.
32.30)控方第九證人亦確認，在 2004 年 6 月至 2005 年11 月，他一共提取了 14 張商業發票內的貨物，其商業發票編號由 BIV0403003-5(A) 至 BIV0403003-5(N) 及 BIV0405067(A) 和 BIV0405067(B)。這些送貨單都有 MHM 收貨時蓋上的公司印章。控方第九證人亦依正常程序以支票來付款，其紀錄可在 MHM 的帳目內找到。而且和 BIV0403003-5(A) 至 (G) 跟以往的正常交易一樣，每張支票背後都寫上所支付的商業發票編號，每一張商業發票都以三張支票支付，分別是貨款的四成、三成及三成，每張支票日期都相差一 個月。

6.1(8)  Refund arrangements
6.1(8)  退款安排

32.31)In the end, as PW9 and the 1st and 2nd applicants all wanted to resolve the problems with the goods and the accounts in relation to P42, P43 and P44, it was decided that on the face of the accounts, the goods that MHM had not taken would be returned and DDL would be requested to make a refund.   As MHM had not actually taken those goods, their return was done on paper only.  After deducting the amount payable by MHM for other goods, DDL had to refund $3,685,750.12 to MHM.
32.31)最終，因為控方第九證人和第一申請人及第二申請人都希望解決有關控方證物 P42、P43 及 P44 的貨物和帳目問題，因此決定在帳面上退回 MHM 沒有收的貨物並要求 DDL 退款。由於 MHM 根本沒有真正收過這些貨，所以只是文件上退貨。在扣除 MHM 要支付的其他貨款後，DDL 要退回 $3,685,750.12 給 MHM。

32.32)PW9 said that, in respect of the goods to be returned, MHM had never taken delivery or made any payment, and there was no entry for those goods in MHM’s accounts.  Therefore, in accepting a refund from DDL and returning the money concerned to the 1st and 2nd applicants, problems would arise in MHM’s accounts.  With a view to resolving this problem, PW9 and the 1st and 2nd applicants discussed via email (Exhibit P118) how to deal with this matter.
32.32)控方第九證人指這些要退回的貨，MHM 根本從來沒有提貨，亦沒有支付過貨款，而 MHM 的帳目上亦沒有將這些貨入賬。因此在接受 DDL 的退款及將有款項退還予第一及第二申請人時，在 MHM 的帳目上會出現問題。為了解決此問題，控方第九證人和第一及第二申請人之間用電郵形式(證物 P118)商討如何處理這事。

32.33)Exhibit P118 was an email sent by PW9 to the 2nd applicant.  Since the money paid to Briga by PW9 for the goods did not come from himself or MHM, and there was no such record in MHM’s accounts, they had to discuss how Briga was to refund the money to MHM and how PW9 was to return the money to the 1st and 2nd applicants.  PW9 stated in the email that the 1st applicant had suggested having the money returned to PW9 himself.  PW9 also suggested in the email a method of returning the refunded sum to the 1st and 2nd applicants.  The 2nd applicant forwarded PW9’s email to the 1st applicant in a way similar to how P39 was forwarded by the 2nd applicant to the 1st applicant, i.e. the 2nd applicant simply put down “send by Lewis” as the subject without adding anything to the covering email.
32.33)證物 P118 是一個控方第九證人發給第二申請人的電郵，因為控方第九證人付給 Briga 的貨款並非來自他自己或 MHM，及 MHM 的賬目沒有這些紀錄，因此他們要商討 Briga 如何把貨款退給 MHM，及控方第九證人如何把錢歸還給第一及第二申請人。控方第九證人在電郵中指第一申請人作出了一個建議，就是把錢歸還給控方第九證人本人。控方第九證人亦在電郵中提出一個如何把這些退款退還給第一及第二申請人的方法。第二申請人把控方第九證人的電郵轉發給第一申請人，情況與第二申請人轉發證物 P39 予第一申請人一樣；即在電郵中第二申請人完全沒有加上一個字，及在電郵標題中又只簡單地寫‘send by Lewis’。

32.34)Eventually, in order to avoid being suspected, PW9 remitted the money to his bank account in the UK, kept it there for one to two months, and then remitted half of the amount to the account of the 1st applicant’s daughter in the UK in accordance with the 1st applicant’s instruction.  Subsequently, after some twists and turns, the other half of the money was transferred to the 2nd applicant’s account with the Citibank.
32.34)最終控方第九證人為了不想惹人懷疑，把錢匯到他的英國銀行的戶口及把錢留在戶口一至兩個月，然後才根據第一申請人的指示把一半款項匯給第一申請人的女兒在英國的戶口。其後，幾經轉折最終另一半款項亦被轉到第二申請人在花旗銀行的戶口。

6.1(9)  KPMG questioned PW9
6.1(9)  KPMG 對控方第九證人的提問

32.35)In 2006, KPMG, who was responsible for investigating Daka Designs, had to question PW9, and the lawyers acting for Daka Designs provided to PW9 the questions that KPMG was going to ask.  PW9 and the 1st and 2nd applicant met many times to discuss the questions that KPMG might raise and how to answer them.  The 1st and 2nd applicants told PW9 how they would answer KPMG’s questions and expected PW9 to provide answers consistent with theirs.  After discussion, PW9 falsely claimed in his answers that the unit price of $936 for the FT66 mosquito traps was acceptable, and that the money given by the 2nd applicant to PW9 for paying the deposit under the “special order” and reducing the amount payable for the goods under the “special order” was a personal loan from the 2nd applicant to him.
32.35)在 2006 年時負責調查 Daka Designs 的 KPMG 要向控方第九證人提問，於是 Daka Designs 的律師把 KPMG 會提出的問題提供給控方第九證人。控方第九證人與第一及第二申請人多次會面商討 KPMG 可能會提出的問題和如何作答。第一及第二申請人告訴控方第九證人他們會如何回答 KPMG 的問題，及希望控方第九證人提供一致的答案。經商討後控方第九證人回答問題時訛稱 FT66 型號驅蚊器的 $936 單價可以接受，及訛稱第二申請人給控方第九證人「特別訂單」的按金和扣減 MHM 在「特別訂單」所欠的貨款的錢是第二申請人給他的私人貸款。

32.36)Regarding the FT66 mosquito traps, PW9 said that he had never made any purchase from DDL at the price of $936.  Therefore, the statement he made to KPMG that he had purchased FT66 at the price of $936 was not true.  PW9’s statement that the sums of $1,000,000, $2,000,000, $360,000 and $2,960,000 deposited into his bank account were monies he borrowed from the 2nd applicant was also not true and was an answer that he and the 1st and 2nd applicants came up with in their discussions.  It was obvious that, in order to cover up the fact that the “special order” was a bogus commercial transaction, the 1st and 2nd applicants came to a consensus with PW9 to provide false answers to the questions that KPMG might ask.
32.36)就 FT66 型號的驅蚊器，控方第九證人說他從來沒有以 $936  向 DDL 入貨。因此他向 KPMG 指他以 $936 這個價錢去購買 FT66 是不真實的。控方第九證人亦曾經說過存入他的銀行戶口的 $1,000,000，$2,000,000，$360,000 及 $2,960,000都是他向第二申請人的借貸，這亦並非事實，這是他與第一及第二申請人會面商討出來的答案。顯然第一及第二申請人為了掩飾「特別訂單」是一個虛假商業交易而與控方第九證人達致共識，以虛假的答案回答 KPMG 可能會問的問題。

6.1(10)  2004 annual report of Daka Designs
6.1(10)  Daka Designs 2004 年年報

32.37)The financial report contained in the annual report submitted to SGX by Daka Designs for the year of 2004 showed that the turnover for that year was $152,095,000.  This included the $8,900,000 business pursuant to the MHM “special order”.
32.37)Daka Designs 提交予「新交所」的 2004 年年報的財務報告中，列出該年的營業額 (turnover) 為 $152,095,000，其中包括來自 MHM 「特別訂單」的 $8,900,000 生意額。

32.38)PW12 (a partner of RSM) said that he noticed that the three invoices marked as Exhibits P42, P43 and P44 were all issued in late March and involved the same customer and substantial amounts of money, and he as an auditor would have harboured suspicions and made enquiries to ensure that the customer had taken delivery of the goods.  The “goods receipt acknowledgement” marked as Exhibit P64 was proof of receipt by RSM of MHM’s confirmation that it had received the goods, and therefore the transactions underlying these three commercial invoices were all included in the DDL financial report for the year ended 31 March 2004.  PW12 said that if MHM had not taken delivery of the goods, the total amount represented by these three commercial invoices, i.e. $8,976,619.55, should not have been included in the turnover for the year of 2004 and should have been removed from it.
32.38)控方第十二證人(RSM 的合夥人)指出他認為控方證物 P42、P43 及 P44 這三張發票都是三月尾發出，涉及同一客戶及數目不少，因此作為核數師他會產生懷疑及提出查問確保客戶已提貨。證物 P64 的「收貨確認書」就是 RSM 收到 MHM 確認已收貨的證明書，因此這三張商業發票的交易都計算在 DDL 截至 2004 年 3 月 31 日的年度財務報告中。控方第十二證人說如果 MHM 沒有提貨的話，這三張商業發票的金額即共 $8,976,619.55 不應算在 2004 年度的營業額，及須從這營業額中扣減出來。

6.1(11)  Other witnesses
6.1(11)  其他證人

32.39)Tang Shuk-nei, Melissa (“PW14”) is an ICAC Chief Investigator and a forensic accountant.  Having referred to RSM’s investigation on the accounts of Daka Designs, she concluded that in the Daka Designs annual report for the year 2004, the turnover of HK$152,095,000 and net profit of HK$20,002,000 had included the amounts represented by these three invoices and their corresponding net profit in the sum of HK$6,236,000.
32.39)鄧淑妮(‘控方第十四證人’)是廉政公署的總調查主任及一位法證會計師。她參閱了 RSM 查核 Daka Designs 帳目時得出的結論是 Daka Designs 2004 年度的年報中 HK$152,095,000 銷售額及純利 HK$20,002,000 已包括這三張發票的金額和它們 HK$6,236,000 的純利。

32.40)Chay Yeow-mei, Lorraine (“PW13”) was Vice President of the Issuer Regulation Department of SGX.  She indicated that if the volume of business stated as originating from MHM in the annual report of Daka Designs did not refer to genuine business, SGX would make a report to the relevant authority because SGX had been misled by Daka Designs which, by so doing, had contravened the relevant law.  According to the SGX listing manual, the annual report of a listed company must contain sufficient information to enable people to understand the performance and financial conditions of the listed company and its subsidiaries.  She said that the objective of the annual report was to provide sufficient information to enable investors and professionals to be aware of the operation, financial conditions and performance of the company and its subsidiaries, so that those people could fully understand and properly assess the value of the shares of that company.  She stated that such a requirement was also intended to achieve the overriding objective as referred to in the listing manual, namely that of maintaining confidence in the market.
32.40)謝柔美(‘控方第十三證人’)是「新交所」發行審核的監管部副總裁，她表示如果 Daka Designs 年報中來自 MHM 的生意額不是真實的生意的話，「新交所」會向有關當局舉報，因為「新交所」被誤導及 Daka Designs 這樣做是違反了有關的法律。根據「新交所」上市手冊，年報要有足夠資料令人明白上市公司及其附屬公司的業績及財務狀況。她說年報的目的是提供足夠資料給投資者及專業人士，讓他們知道公司及其附屬公司的營運狀況、財務狀況和業績，從而使他們對公司的股值能充分了解及作出適當的分析。她指這規定亦是要為了達至上市手冊所指的維護市場信心的大前提。

6.2  The 1st applicant’s argument on the 8th Charge
6.2  第一申請人就控罪八的論點

6.2(1)  Weight accorded to P39 by Judge Yau
6.2(1)  邱法官給予證物 P39 的比重

32.41)The 1st applicant contends that Judge Yau had given inappropriate weight to Exhibit P39 and held on that basis that the 1st applicant had taken part in the 8th Charge.  PW9 liaised and discussed with the 2nd applicant in respect of the “special order” referred to in the 8th Charge.  Exhibit P39 was the only evidence that Judge Yau had relied on in finding that during the conspiracy the 1st applicant had knowledge of the discussion between the 2nd applicant and PW9.  All the other evidence relied on by Judge Yau in relation to the 1st applicant’s conduct was from the years 2005 and 2006 and, as such, was not sufficient to prove that the 1st applicant had taken part in the conspiracy in as early as 2004.
32.41)第一申請人認為邱法官給予證物 P39 不適當的比重而裁定第一申請人有份參予控罪八。控方第九證人是與第二申請人接洽和商討控罪八所指的「特別訂單」。證物 P39 是邱法官唯一曾依賴的證據在串謀期間第一申請人知悉第二申請人和控方第九證人之間有一個商討。其他邱法官引用第一申請人作為之證據均是發生於 2005 年和 2006 年。這些證據不足以證明第一申請人早在 2004 年已參與了串謀。

32.42)In our view, this issue should be dealt with by applying common sense.  The two applicants were the directors and the most senior decision makers of DDL.  The 1st applicant, a chartered accountant, was responsible for financial matters, and the 2nd applicant was mainly responsible for developing products.  In the context of the present case, which is that Daka Designs inflated the turnover of the company by making use of the “special order” in question, the 1st applicant could not possibly have been kept in the dark without in any way taking part or being involved in the “special order” conspiracy.
32.42)本庭認為這議題必須以常理來處理。兩名申請人是 DDL 的董事和最高決策人。第一申請人是一名特許的會計師，負責財務。第二申請人主要是負責產品開發。本案的背景是Daka Designs 的年報誇大了公司營業額，誇大的方法是依賴有關的「特別訂單」。在這個背景之下，第一申請人是不可能是被蒙在鼓裡，完全沒有參與涉及「特別訂單」的串謀。

32.43)Judge Yau made the following comments on Exhibit P39:
32.43)邱法官就證物 P39 作出以下的評論：

“508.In fact, the 1st defendant not only knew that there was such an order, but also knew about the conditions proposed by PW9, which were set out in an email that he sent to the 2nd defendant (Prosecution Exhibit P39).   As stated above, the conditions in respect of this order were that MHM was not required to pay any deposit, was not obliged to take delivery of the goods within one year and did not have to assume any risk, and so on.  PW9 confirmed in his evidence that he had sent such an email to the 2nd defendant, but in fact Exhibit P39 was not the very email that he had sent to the 2nd defendant directly.  This was an email by which the 2nd defendant forwarded PW9’s email to a person called Raymond.  Raymond is the 1st defendant’s Christian name.  The 1st and 2nd defendants were the bosses of Daka group, and the email related to an order of Daka group, so undoubtedly, this Raymond must be the 1st defendant.
「508.其實第一被告人一定不單止知道有這樣的一張訂單，更知道控方第九證人所開出的條件。控方第九證人的條件是在他給第二被告人的一張電郵(控方P39)中列出來。如上文所述，條件包括MHM就這訂單不用支付按金，沒有責任一年內提貨和不用承擔風險等等。控方第九證人作供時確認發了一張這樣的電郵給第二被告人，但控方證物P39其實並不是他直接發給第二被告人的那張電郵。它是第二被告人把控方第九證人的電郵轉寄給一個叫Raymond的人的電郵。Raymond是第一被告人的英文名字。第一及第二被告人是特嘉集團的老闆，而電郵是有關特嘉集團的一張訂單，毫無疑問，這個Raymond一定是第一被告人。

509.This email was very simple, containing only the email that PW9 had sent to the 2nd defendant.  The 2nd defendant did not add a single word to it.  The subject of email was simply stated as ‘This is from MHM’.  All this clearly shows that the 2nd and 1st defendants had a mutual tacit understanding on this special order and this email, and no explanation was needed at all. Things could not have been more natural.  The 1st and 2nd defendants were the bosses of Daka group and, as shown by the emails in the case, they had been working closely together and having a close relationship.  They would definitely discuss the business and other matters of the company.  Without doubt, the 1st defendant must have received this email and must have known the conditions put forward by PW9 in this email.”
509.這電郵很簡單，內容就只有控方第九證人發給第二被告人的電郵。第二被告人一句說話也沒有加上去。電郵的主題(subject)也簡單地寫成「 This is from MHM」。由此可見，第二被告人及第一被告人就這特別訂單及這電郵有了默契，完全不用加上任何解釋。這其實是很自然的事，第一及第二被告人是特嘉集團的老闆，從案中出現過的電郵可以看出，他們緊密地一起工作及關係密切，他們之間一定會就公司的業務和其他事進行商討。毫無疑問，第一被告人一定收到這電郵及一定知道這電郵中第九控方證人所提出的條件。」

32.44)We respectfully agree with what Judge Yau said.  In our view, it was open to Judge Yau to draw, on the basis of Exhibit P39, the inference that the 1st applicant had participated in the conspiracy.
32.44)本庭認同邱法官的說法。本庭認為邱法官是可以根據證物 P39 作出第一申請人是有參與串謀的推論。

32.45)The 1st applicant submits that in considering Exhibit P39, Judge Yau had ignored the point that, on the relevant evidence, the subsequent arrangements of MHM and DDL did not completely follow the content of Exhibit P39.  Such evidence included:
32.45)第一申請人認為邱法官在考慮證物 P39 時忽略了考慮有關的證據顯示日後 MHM 和 DDL 的安排是沒有完全依照證物 P39 的內容來安排的。這些證據包括：

(1)MHM purchased FT66 goods.  Exhibit P39 stated that the order did not cover FT66 goods.
(1)MHM 購買 FT66 貨品。證物 P39 說訂單不包括 FT66 貨品。

(2)MHM paid a deposit to Briga.  In Exhibit P39, PW9 requested that no deposit be paid.
(2)MHM 向 Briga 支付訂金。在證物 P39 控方第九證人要求不需要支付訂金。

(3)In respect of the goods under the “special order” and their delivery, in 2004 MHM signed two “goods receipt acknowledgements”, thereby assuming the risk regarding the title to the goods.  Exhibit P39 stated, “No commitment to have all the goods delivered within 2004.”
(3)MHM 在 2004 年就「特別訂單」的貨物、提貨及簽署了兩張「收貨確認書」，承擔了貨權的風險。證物 P39 說‘No commitment to have all the goods delivered within 2004’。

(4)PW9 said that no consensus was reached in respect of the second condition (i.e. “guaranteed option”) that he put forward in Exhibit P39.
(4)控方第九證人說他在證物 P39 他開出的第二個條件(即 ‘guaranteed option’ ) 沒有得到共識。

(5)For the third condition in Exhibit P39, i.e. “sole distributorship”, the prosecution had not proved the existence of such a contract.
(5)證物 P39 的第三個條件，即「獨家銷售權」，控方未能證明有此合同存在。

(6)For the fourth condition in Exhibit P39 (i.e. “rebate”), PW9 confirmed that there was no discussion on the details at that time.
(6)證物 P39 的第四個條件(即「回佣」) ，控方第九證人確認當時沒有商討細節。

32.46)The 1st applicant argues that even if he had received Exhibit P39, the above matters showed that the content of Exhibit P39 did not come true, and neither the 1st applicant’s knowledge of any conspiracy nor his participation therein could be proved.
32.46)第一申請人認為就算他收到證物 P39，以上的事情顯示證物 P39 的內容沒有成為事實，不能證明第一申請人知道有任何串謀存在或他參與其中。

32.47)In our view, even if the conditions put forward by PW9 did not take full effect, it did not mean that the 1st applicant had not taken part in the conspiracy.  Exhibit P39 was the response made by PW9 after knowing that the 2nd applicant requested him to provide the “special order”.  Obviously, the two parties continued to discuss this matter thereafter.
32.47)本庭認為就算控方第九證人所開出的條件並沒有完全落實，這也不表示第一申請人不是參與串謀。證物 P39 是第九控方證人知悉第二申請人要求他提供「特別訂單」後所作出的回應。明顯地，雙方之後就這事繼續進行商討。

32.48)Moreover, there is other evidence which serves to prove that the 1st applicant participated in the “special order”:
32.48)另外，案件亦有其他證供證明第一申請人參與「特別訂單」一事：

(1)PW11 said that she analyzed the “special order” of MHM at a later stage in accordance with the 1st applicant’s instruction.
(1)控方第十一證人說她後期根據第一申請人的指示，就 MHM 的「特別訂單」作出分析。

(2)The general manager of Briga (PW5) said, in respect of the two “proforma invoices” issued by Briga to MHM (Prosecution Exhibits P40 and P41), that the 1st applicant told him that he had already received the purchase orders in relation to those two “proforma invoices” and that there were changes to the model numbers and quantities of the goods.  In mid-2005, in the warehouse of T&K, PW5 saw the goods relating to the “special order”.  The 1st applicant instructed him to look for buyers of these goods.
(2)Briga 的總經理(控方第五證人)就 Briga 開出 MHM 的兩張「預開發票」(控方證物 P40 及 P41)說第一申請人告訴他已收到這兩張「預開發票」的有關購貨單，第一申請人亦告訴他貨物的型號和數量有所更改。在 2005 年中，控方第五證人在「千基」的貨倉見過涉及「特別訂單」的貨物。第一申請人指示他去物色客人去購買這些貨物。

(3)The 1st applicant put up money for PW9 for the purpose of reducing the amount payable for the goods by MHM to Briga by reason of the “special order”.  The evidence showed that, of the $2,900,000 that PW9 received, all except $100,000 came from the 1st applicant.  The 1st applicant could not possibly have no knowledge of the purpose of such a large sum of money.
(3)第一申請人出錢給控方第九證人讓他減低 MHM 因「特別訂單」Briga 欠貨款。證據顯示控方第九證人收到的 $2,900,000 除 $100,000 外其餘全部來自第一申請人。第一申請人不可能不知道這大筆錢的用途。

(4)The subsequent arrangements made by PW9 for returning the refunded money in respect of the “special order” to the 1st and 2nd applicants also support the conclusion that the 1st applicant had participated in the conspiracy.  It can been seen from the email (Exhibit P118) that PW9 sent to the 2nd applicant that, as the money paid to Briga for the goods did not come from him or MHM and there was no record of it in MHM’s accounts, they had to decide how Briga was to refund the money paid for the goods to MHM and how PW9 was to return the money to the 1st and 2nd applicants.  PW9 indicated in the email that the 1st applicant had suggested how the refunded money could be returned to the 1st and 2nd applicants. The 2nd applicant forwarded PW9’s email to the 1st applicant.  Obviously, the 1st and 2nd applicants had a mutual tacit understanding as to how PW9 was to return the refunded money to them.
(4)控方第九證人其後就「特別訂單」退款歸還給第一申請人及第二申請人的安排亦支持第一申請人有份參與串謀，從控方第九證人發給第二申請人的電郵證物 P118 中可見到，控方第九證人因付給 Briga 的貨款並非來自他自己或 MHM 及 MHM 的賬目沒這些記錄，因此他們要決定 Briga 如何把貨款退給 MHM，及控方第九證人如何把錢歸還給第一及第二申請人。控方第九證人在電郵中指第一申請人作出一個如何把這些退款退還給第一及第二申請人的方法。第二申請人把控方第九證人的電郵轉發給第一申請人。顯然第一及第二申請人對於就控方第九證人如何將退款歸還給第一申請人及第二申請人已有默契。

(5)In the end, an overseas account was used for the purpose of returning the refunded money to the 1st and 2nd applicants: part of the money to be returned to the 1st applicant was remitted by PW9 to an account of the 1st applicant’s daughter in the UK in accordance with the 1st applicant’s instruction.
(5)最終就退款如何歸還給第一申請人及第二申請人的方法，他們用了一個海外戶口，控方第九證人把部份歸還第一申請人的款項根據第一申請人的指示匯給第一申請人的女兒在英國的戶口。

(6)In August 2004, in a roundabout manner and through PW1, the 1st applicant provided $100,000 to PW9 as reward.  Judge Yau briefly recounted the relevant evidence as follows:
(6)第一申請人在 2004 年 8 月以迂迴曲折的方法經控方第一證人提供 $100,000 給控方第九證人作為獎勵。以下是邱法官對就有關證供的簡述：

“Reward of $100,000 and buying back Daka Designs shares
「十萬元獎勵及Daka Designs股份回購

388.PW9 said, throughout the incident, he was not required to commit to take delivery of the goods but had to sign documents such as purchase orders, proforma invoices, goods receipt acknowledgements and delivery notes, which was causing him a lot of trouble, and therefore the 1st or 2nd defendant promised to give him $100,000 as reward upon successful listing. PW9 said that it was around [a wrong character in Chinese] February or May 2004, which was more or less the time he signed the $10,000,000 purchase orders, that he knew there would be this sum of $100,000. According to Admitted Facts (1), on 9 August 2004 a sum of $100,000 was transferred from the HSBC joint account of the PW1 and PW2 to the HSBC joint account of PW9 and his wife, Koo Geok-cheng. PW9 knew that this was the $100,000 reward that the 2nd defendant gave him.
388.控方第九證人說，因為在整件事件中他不用承諾一定要提貨，但卻要簽署購貨單、預開發票、收貨確認書及送貨單等文件，帶給他很多麻煩，所以第一或第二被告承諾成功上市後，給他十萬元作獎勵。控方第九證人說，他是於若[應該是約]2004年2月或5月的時候知道會有這十萬元，與他簽署那一千萬元的購貨單的時間差不多。根據第一份事實確認書，於2004年8月9日一筆十萬元的款項從控方第一及第二證人的滙豐銀行聯名戶口轉賬到控方第九證人和其妻子柯玉清的滙豐銀行聯名戶口。控方第九證人知道這是第二被告人給他的十萬元獎勵。

389.PW9 pointed out he did not know PW1.  In giving evidence, PW1 also said that he did not know PW1 [sic, for PW9] and that it was upon the 1st defendant’s instructions that he transferred the money to the HSBC joint account of PW9 and Koo Geok-cheng.  …”
389.控方第九證人指出，他並不認識控方第一證人。控方第一證人作證的時候亦指他並不認識控方第一證人[應該是第九證人]，而他是遵照第一被告人的指示將錢轉到控方第九證人與柯玉清的滙豐銀行聯名名戶口。……」

(7)In order to cover up the fact that the “special order” was a bogus commercial transaction, the 1st and 2nd applicants reached a consensus with PW9 to provide false answers to questions that KPMG might ask.
(7)第一申請人及第二申請人為了掩飾「特別訂單」是一個虛假商業交易而與控方第九證人達致共識，以虛假的答案回答 KPMG 可能會問的問題。

32.49)Although PW9’s return of the refund to the 1st and 2nd applicants and PW9’s discussion with the 1st and 2nd applicants about how to answer KPMG’s questions took place after 2 August 2004, i.e. after the period of conspiracy stated in the charge, all these events prove that the 1st and 2nd applicants and PW9 had used various methods to make the bogus commercial transactions appear genuine and had hidden the truth from KPMG afterwards.  Judge Yau could rely on this evidence to conclude and hold that, during period of conspiracy stated in the charge, the 1st applicant had already known that the “special order” was a bogus transaction and had taken part in this conspiracy.
32.49)雖然上述控方第九證人把 Briga 的退款歸還第一申請人及第二申請人和控方第九證人與第一及第二申請人商討如何回答 KPMG 提問這兩件事都是發生在 2004 年 8 月 2 日之後，即在控罪中所指的串謀期間之後才出現的，但這些是證明了第一申請人及第二申請人和控方第九證人用各種不同方式令這本是虛假的商業交易看似真確，而其後向 KPMG 掩飾事件的真相。邱法官是可以根據這些證據裁定第一申請人在控罪中所指的串謀期間已經知道「特別訂單」是一個虛假交易及參與這串謀的結論。

32.50)Regarding the arguments advanced by the 1st applicant, we find that in the present case there was ample evidence to support Judge Yau’s verdict that the 1st applicant was guilty of the 8th Charge.  The 1st applicant also relies on the grounds of appeal advanced by the 2nd applicant against the 8th Charge.  We will deal with them later in this judgment.
32.50)就第一申請人提出的理據，本庭認為本案有充分的證據支持邱法官裁定第一申請人的第八項控罪罪名成立。第一申請人亦依賴第二申請人針對第八項控罪的上訴理由。本庭將會在下文處理。

The 2nd applicant’s grounds of appeal
第二申請人的上訴理據

1.1)  Summary of the grounds of appeal
1.1)  上訴理據的歸納

1)The grounds of appeal advanced by the 2nd applicant boil down to four points:
1)第二申請人的上訴理據可以歸納為四點：

(1)In accepting PW9 as a veracious and reliable witness, Judge Yau failed to consider, properly or at all, that there were many inconsistencies in PW9’s testimony.
(1)邱法官接納控方第九證人為誠實及可靠的證人時沒有考慮或正確考慮控方第九證人之證言多番前後不一。

(2)Judge Yau erroneously attributed the inconsistencies in PW9’s testimony to his lack of seriousness and perfunctory attitude.
(2)邱法官錯誤地以控方第九證人之態度不認真及敷衍來解釋他證言之前後不一。

(3)Judge Yau erred in speculating that PW9’s attitude in giving evidence was caused by his relationship with the applicants.
(3)邱法官錯誤揣測控方第九證人作供之態度是因為他與申請人之關係。

(4)In holding that the “special order” was a bogus transaction, Judge Yau failed to consider, properly or at all, the relevant evidence.
(4)邱法官裁定「特別訂單」為虛假交易時沒有考慮或正確考慮相關證據。

1.2)  Findings of fact
1.2)  事實裁決

33.2)These four grounds are in fact all directed at the findings of fact made by Judge Yau.  As stated above, the appellate court will overturn findings of fact made by the trial judge only if such findings are plainly wrong.  At the trial, which lasted 80 working days, Judge Yau had ample opportunities to listen to PW9’s testimony and observe his demeanour.  Moreover, the 8th Charge is supported not only by PW9’s testimony but also by other evidence.  We do not consider that the 2nd applicant has put forward sufficient grounds of appeal in this respect.  We now deal with the arguments advanced by the 2nd applicant in support of each of these four grounds of appeal in detail.
33.2)這四點理由其實都是環繞着邱法官就事實的裁決。正如上文所說，上訴法庭只會在原審法官事實的裁判上犯了明顯的錯誤才會推翻有關事實的裁決。這審訊歷時八十個工作天，邱法官有充分的機會聆聽控方第九證人的證供及觀察他作證時的神態。另外支持第八控罪的證據不單只是控方第九證人的證供，還有其他證供支持。本庭不認為第二申請人就這點提出充分的上訴理由。現在本庭分別處理第二申請人這四點上訴理據所提出的各項詳細論點。

1.3)  Detailed arguments
1.3)  詳細論點

1.3)(1)  Citibank account
1.3)(1)  花旗銀行戶口

33.3)The 2nd applicant submits that PW9 had denied having used his own bank account to carry out the two bank transactions in question to give to the 2nd applicant half of the money that Briga had refunded to MHM, and that PW9 had tried to shift the responsibilities to the 2nd applicant.
33.3)第二申請人指控方第九證人否認是他自己使用其銀行戶口進行的兩次相關的銀行交易把 Briga 退還給 MHM 的款項交一半給第二申請人及嘗試推搪責任到第二申請人身上。

33.4)Initially PW9 insisted that the 2nd applicant was in control of his account with the Citibank.  He said that when the account was opened, he gave the 2nd applicant the user name and password for online banking, and so the 2nd applicant was able to deal with the money through online banking.  However, according to the agreed facts, the transactions in question were not carried out via the online banking service of the Citibank.  Pursuant to the normal procedures, the Citibank would not approve transactions unless written authorization/instructions were in place and the relevant signatures were examined and verified.
33.4)控方第九證人初時堅稱第二申請人操縱他於「花旗銀行」所開設的戶口。他指開戶口時曾經給予第二申請人網上理財名稱、密碼，故此第二申請人可以透過網上理財調動款項。但根據雙方同意的事實，有關的銀行交易不是透過「花旗銀行」網上理財服務處理的。按一般程序，「花旗銀行」必須得到持有書面授權/指示及審核簽名，確保真確才會批准。

33.5)In fact, according to the transcript of PW9’s testimony, although he had said in examination-in-chief that the 2nd applicant could use online banking in respect of the Citibank account, the following exchange took place between PW9 and Judge Yau in the course of examination-in-chief:
33.5)其實根據控方第九證人證供的謄本，雖然他在主問時是有說過第二申請人是可以在「花旗銀行」戶口使用網上理財，但他在主問時回答邱法官問題的答案是：

“Court:Had you authorized Mr Ma to use this account of yours?  Or had you only given him the password and user name for use on the internet?
「官：咁你呢個戶口有冇授權馬先生去使用？抑或淨係比password 同埋 user name 佢咁喺網上用？

Answer:For this part, I cannot remember.”
答：呢一部份我唔記得喇。」

33.6)Obviously, what he meant was that he could not remember if he had directly authorized the 2nd applicant to use the account or had merely given the password and user name to the 2nd applicant for use on the internet.  Judge Yau did not err when he accepted PW9’s testimony that the bank transactions in question were conducted without his knowledge.
33.6)明顯地，他所指的是他記不起是直接授權第二申請人使用戶口或者只是把密碼及使用者名字給第二申請人在網上使用。邱法官接納控方第九證人的證言，有關銀行交易是在他不知情之下進行的並沒有錯誤。

33.7)The 2nd applicant also alleges that PW9 had transferred the money away because he had been arrested by the ICAC and, as a suspect, did not want the ICAC to find out any money relating to the present case in his account.  We agree with the respondent that this suggestion is illogical.  At that time, PW9 had already been arrested by the ICAC and become a suspect, and any further movement of the money would only make himself even more suspicious in the eyes of the ICAC.
33.7)第二申請人亦指控方第九證人是因為被廉署拘捕，成為疑犯，不想廉署查到有任何涉及案件的款項在他戶口內，所以把款項轉出。本庭同意答辯人所說，這是不合邏輯的說法。當時控方第九證人已經被廉署拘捕，成為疑犯，若他再進一步將款項調動會令廉署對他更有懷疑。

1.3)(2)  Three delivery notes
1.3)(2)  三份提貨單

33.8)PW9 said in examination-in-chief that the three delivery notes, namely Exhibits P45, P46 and P47, had been signed as per the 2nd applicant’s request.  However, when being cross-examined, he said that he “cannot remember”.
33.8)控方第九證人主問時說證物 P45、 P46 及 P47 這三份送貨單是因應第二申請人要求下簽署的。但在盤問時他卻說「不記得」。

33.9)The 2nd applicant submits that PW9’s testimony could not support the allegation that the 2nd applicant had requested or instructed him to sign the three delivery notes.  The evidence given by PW9 on the source of the three delivery notes, the circumstances under which they were signed, whether they were to serve any purpose and so on, was extremely unclear and questionable.  PW9 described that the 2nd applicant had requested him to sign the three delivery notes which he then returned to the 2nd applicant.  However, the three delivery notes were eventually seized at PW9’s home by the ICAC, and PW9 indicated under cross-examination that he could not recall the circumstances under which he signed the delivery notes.  The reasons why the three delivery notes were at PW9’s home are still unknown.  In addition, there is no evidence showing that Exhibits P45, P46 and P47 served any purpose in relation to the “special order”, and there should not have been any delivery note in respect of the “special order” because the documents for the transfer of title to the goods in question were not the delivery notes but the “goods receipt acknowledgements”, i.e. Exhibits P64 and P66.
33.9)第二申請人指，控方第九證人的證言不能夠支持第二申請人要求或指示他簽署該三份送貨單。控方第九證人的證供關於這三份送貨單的來源、在甚麼情況下簽署、有沒有用途等的證供極之含糊及值得懷疑。控方第九證人述及三份送貨單是第二申請人要求他簽署，然後他交回該三份送貨單給第二申請人。但三份送貨單最終被廉署由控方第九證人的家中檢獲，而控方第九證人於盤問下亦表示他不記得當時簽署送貨單的情況。另外三份送貨單為何會出現在控方第九證人之家中仍是一個謎。再者，案中沒有任何證供顯示證物 P45、 P46 及 P47 在「特別訂單」有任何用途，而且「特別訂單」根本不應有送貨單之存在，因相關貨物的轉讓物權的文件並不是送貨單，而是證物 P64 及 P66 的「收貨確認書」。

33.10)Judge Yau ruled that it was upon the 2nd applicant’s request that PW9 signed the three delivery notes.  He found that it was not at all necessary for PW9 to make up P45, P46 and P47 out of the blue.  This was a finding of fact.  We do not think that the seizure of the delivery notes at PW9’s home is a reason for overturning Judge Yau’s ruling.  We agree with the following observations made by Judge Yau in his judgment:
33.10)邱法官裁定控方第九證人是在第二申請人的要求下才簽署這三份送貨單。邱法官認為他完全沒有必要自己無中生有地製造證物 P45、P46 及 P47，是一項事實的裁決。本庭不認為有關的送貨單在控方第九證人家裡搜獲會推翻邱法官的裁決。本庭同意邱法官在判案書的論點：

“442.In fact, it is very obvious that using false goods receipt acknowledgements in the special order was definitely more flexible than using false delivery notes because, in the former case, the goods would on record remain with Briga and it was not necessary to deliver the goods physically to MHM, and this would certainly make it more convenient for Briga to handle the paperwork and carry out the procedures when it made a decision on how to deal with these goods. ”
「442.其實有一點很明顯的，在特別訂單裡使用虛假的收貨確認書一定會比使用虛假的送貨單來得靈活，因為使用收貨確認書在紀錄上貨物仍然留在Briga處及不用實質地把貨送到MHM，這對以後Briga要決定如何處理這些貨物，在文件上及手續上會絕對比較方便。」

1.3)(3)  Were the goods under the “special order” regarded as MHM’s inventory?
1.3)(3)  「特別訂單」的貨物被視為 MHM 的存貨？

33.11)The 2nd applicant submits that Judge Yau erred in finding no contradiction between defence Exhibit D86, which showed that MHM had regarded the goods under the “special order” which were temporarily stored at DDL as its own inventory, and PW9’s testimony that MHM had never regarded them as inventory.
33.11)第二申請人指，邱法官裁定辯方證物 D86 顯示出 MHM 把「特別訂單」寄存在 DDL 的貨視為其存貨 (inventory)，與控方第九證人在庭上指 MHM 從來沒有把它們視為存貨的說法沒有矛盾是錯誤的。

33.12)Defence Exhibit D86 was an email sent by Briga to MHM.  It stated, “Kindly to update the stock inventory in our factory for the April 04 to March 05 program”.  This email set out the inventory in the “special order”, and in the email there were some handwritten figures which appeared to refer to the quantity of goods that MHM had received.  In this regard, Judge Yau held that:
33.12)辯方證物 D86 是一份 Briga 給 MHM 的電郵，內容說 ‘Kindly to update the stock inventory in our factory for the April 04 to March 05 program’。這電郵列出了「特別訂單」中的存貨，在電郵中有一些手寫的數目字看來是 MHM 已收取的貨物的數量。邱法官有關的裁決如下：

“444.PW9’s testimony was very clear.  He issued the purchase orders for the special order to Briga upon the 2nd defendant’s request, but he emphasized that MHM could choose whether and how to take delivery of the goods.  This condition was also set out in the email sent by PW9 to the 2nd defendant, and so even if the production of these goods had been completed, they were not MHM’s inventory.  Under such circumstances, it was natural for MHM to make a record of the goods received in the D86 email.  This had nothing to do with whether MHM regarded these goods as inventory, nor could it constitute proof that MHM regarded these goods as its inventory.  I fail to see any contradiction between the content of Defence Exhibit D86 and PW9’s evidence.”
「444.控方第九證人的證供很清晰，他在第二被告人的要求下向Briga發出了特別訂單的購貨單，但他強調MHM可選擇如何及是否提貨。這條件亦在控方第九證人給第二被告人的電郵中列了出來，因此這些貨就算Briga已完成生產，亦不是MHM的存貨。在這情況下，MHM在辯方證物D86電郵中紀錄了所提取的貨也是很自然的事，這與MHM 是否視這些貨為其存貨完全沒有關係，更不可以用作MHM視這些貨為其存貨的證明。本席認為辯方證物 D86 的內容與控方第九證人的證供完全沒有矛盾。」

33.13)We find nothing wrong with Judge Yau’s ruling in this regard.
33.13)本庭看不到邱法官在這一方面的判決有任何錯誤之處。

33.14)We also agree with Judge Yau’s ruling that Defence Exhibit D85 supported PW9’s testimony.  Judge Yau said:
33.14)另外本庭亦認同邱法官裁定辯方證物 D85 是支持控方第九證人的證供。邱法官這樣說：

“445. … In this exhibit, apart from the email in Defence Exhibit D86, there was also an email replying Briga in the name of PW9, which read as follows: ‘… noted and we certainly will work hard in trying to sell them.’  The prima facie meaning of these words tallies with PW9’s testimony that the goods under the special order were not MHM’s inventory and that MHM could choose whether and how to take delivery of the goods.  Obviously, if MHM could sell more goods, then it could take more goods from Briga.  This email told Briga that MHM would work hard to sell the goods for Briga.  If these goods were MHM’s inventory, whether MHM could have them sold would not be Briga’s concern because they would already be the goods of MHM, and in that case, the content of this email would become meaningless to Briga.”
「445.…….在這證物中，除了有辯方證物 D86中的電郵外，亦有以控方第九證人名義回覆Briga 的電郵，內容如下：“…noted and we certainly will work hard in trying to sell them.” 這些文字的表面意思正與控方第九證人的證供相吻合，即特別訂單的貨並非MHM的存貨，及MHM 可選擇如何和是否提貨。很明顯，如果MHM能賣出多些貨的話就可以向 Briga 多提一些貨。這電郵是告訴 Briga，MHM 會努力替 Briga 銷貨。如果這些貨是 MHM 的存貨的話，無論MHM能否將它們售出也與 Briga 無關，因為它們都已經是MHM的貨，那麼這封電郵的內容對 Briga 來說就會變得毫無意義。」

1.3)(4)  Guarantee sales return
1.3)(4)  保證退貨(‘guarantee sales return’)

33.15)The 2nd applicant submits that in making the above ruling Judge Yau had forgotten PW9’s testimony that any goods under the “special order” that MHM was unable to sell could be returned to DDL by means of “guaranteed sales return”.  The 2nd applicant submits it would certainly be Briga’s concern if MHM was unable to sell the goods because one of the conditions of the agreement between MHM and DDL was that MHM could return the goods to Briga, and it was not the case, as Judge Yau said, that those words proved that the goods were not MHM’s inventory.
33.15)第二申請人認為邱法官作出這裁決時忘記了控方第九證人的證言：若 MHM 不能賣出的「特別訂單」貨物可以用‘guaranteed sales return’ 形式去還給 DDL。第二申請人認為若 MHM 不能夠售出相關貨物當然會與 Briga 有關，因 MHM 與 DDL 之間的協議條件之一就是 MHM 可將貨物退還給 Briga，而並非邱法官所述，這字眼證明貨物並不是 MHM 之存貨。

33.16)We do not agree with this submission.  In finding that this order was a bogus transaction, Judge Yau held as follows:
33.16)本庭不同意這個說法。邱法官在裁定這訂單是虛假交易作出以下的裁決：

“464.Upon analysis of the evidence, there is no doubt that this was not a genuine commercial transaction but was a bogus transaction for some other purposes.  As PW9 has pointed out, MHM was simply incapable of taking goods of as much as $10,000,000.  So he sent an email to the 2nd defendant putting forward certain conditions (Prosecution Exhibit P39).  In commercial transactions, it is usual and proper for the purchaser and seller to put forward their respective conditions.  However, the first condition put forward by PW9 in the email was wholly unreasonable for normal transactions.
「464.從案中的證據來分析，毫無疑問這並不是一個真正的商業交易，而是一個另有目的的虛假交易。正如控方第九證人所指出，MHM根本就承受不了一千萬元的貨。他於是以電郵(控方證物P39)向第二被告人提出了一些條件。在商業交易中，買賣雙方各自提出條件是常有及正當的事。但控方第九證人在電郵中所提出的第一個條件，在正常的交易中根本上就是完全不合理的。

465.Under this condition, MHM was not required to pay any deposit or bear any risk of the order.  It even stated clearly that MHM would not be liable even if it did not take delivery of the goods within one year.  In other words, although MHM had issued purchase orders, it was not at all obliged to take delivery of the goods under the purchase orders.  MHM would only take delivery of and pay for the goods as and when necessary, and it had no obligation whatsoever to take delivery of or pay for the goods under the purchase orders within one year.  This was no different from a total absence of a purchase order issued by MHM to Briga, and MHM could deal with his transactions with Briga as if no purchase order had ever been issued.  Such a condition is not one which any normal seller would possibly accept.
465.根據這條件，MHM毋須支付訂金，及毋須承擔這訂單的任何風險。條件中更清楚列出，MHM一年內就算不提取這些貨物也毋須負上責任。這即是說，雖然MHM發出了購貨單，它根本就沒有責任去提取購貨單上的貨物。MHM就只會在有需要時才提取及支付他所需要的貨品，完全沒有責任在一年內提取及支付購貨單的貨品，這與MHM有沒有向Briga發出購貨單根本上就沒有分別，而MHM是完全可以當作沒有發出過這購貨單般地處理他與Briga之間的交易。這樣的條件是任何一個正常的賣家都不可能會接受的。

466.To Briga, this special order by MHM was devoid of any substance … .”
466.對Briga來說，MHM的這個特別訂單根本上就是有等於無…..。」

33.17)In our view, in considering if MHM had treated the goods under the “special order” as its inventory, one cannot just look at the condition of “guaranteed sales return”, but also has to take into account the fact that in the first place MHM was not required to pay any deposit or bear any risk with respect to the “special order”.  Under such circumstances, the goods concerned could not possibly be MHM’s inventory.
33.17)本庭認為在處理 MHM 是否當「特別訂單」的貨物為貨存的問題時不可以單從‘guaranteed sales return’這個條件着手，還需要考慮 MHM 在該「特別訂單」原本是無須支付訂金及無需承擔訂單的任何風險。在這情況下，有關的貨物不可能是 MHM 的庫存。

1.3)(5)  MHM’s enquiry about the inventory
1.3)(5)  MHM 查詢存貨

33.18)The 2nd applicant also submits that PW9’s staff had enquired of DDL staff via email (Defence Exhibit D88) about the quantity of MHM inventory at DDL.  PW9 admitted that he had knowledge of this email.  He agreed that the ten items of goods listed in the email were ten of the goods included in the “proforma invoice” (Exhibit P40).
33.18)第二申請人亦指控方第九證人的職員曾以電郵(辯方證物 D88)向 DDL 的職員查詢 MHM 於 DDL 的貨存數量。控方第九證人承認他對這個電郵有認知。他同意電郵內所列的十種貨物就是證物 P40「預開發票」裡面所包含的其中十樣貨物。

33.19)Judge Yau had this to say:
33.19)邱法官這樣說：

“446.… Although the email made mention of MHM’s inventory, PW9 said that he had forgotten if MHM had any stock kept by Briga or DDL other than the goods under the special order.  In the absence of evidence as to whether the goods stated in this email were related to the special order, this email and PW9’s evidence are not contradictory to each other.”
「446.……雖然電郵中提到 MHM 的存貨，但控方第九證人說他已忘記了當時除了特別訂單的貨外，MHM有沒有存貨在 Briga 或 DDL 處。案中沒有證據顯示這電郵中的貨是否與特別訂單的貨有關，因此這電郵與控方第九證人的證供並沒有矛盾。」

33.20)The 2nd applicant points out that there was simply no evidence showing that, apart from the goods under the “special order”, there were other goods kept by DDL/Briga.  PW9 also admitted that he knew staff members were enquiring about the quantity of the inventory for the goods covered by the “special order”.
33.20)第二申請人指出案件根本沒有證供顯示到除了「特別訂單」的貨外，有其他貨物存在 DDL/Briga，而控方第九證人亦承認了他知道職員在查詢這些包含了在「特別訂單」內的貨品貨存數量。

33.21)On the evidence, the business dealings between MHM and Briga had all along involved a few specific types of goods.  Therefore, there was nothing unusal for the ten types of goods listed in the email to be the same as the ten types of goods set out in Exhibit P40, and it does not mean that the goods referred to in the email must have been related to the goods under the “special order”.
33.21)根據證供，MHM 一直與 Briga 的生意往來都是牽涉某幾種貨物，故此電郵中列出的十種貨物與證物 P40 的十種貨物類形相同並不是特別的情況，但這並不表示電郵所指的貨物必然是與「特別訂單」的貨物有關。

1.3)(6)  Return of FT66 goods
1.3)(6)  FT66 退貨的情況

33.22)Judge Yau made the following ruling:
33.22)邱法官作出以下的裁決：

“451.… Eventually MHM returned to Briga not only the problematic products of model FT66 but also many other goods which involved a total amount of more than $5,000,000.  It follows that PW9’s testimony that the quantity of goods under the special order was too much for MHM is honest and entirely reasonable.”
「451.   ……最終 MHM 退給 Briga 的貨不單只是出現了問題的 FT66 型號產品，其他退給 Briga 的產品也不少，總數達五百多萬。由始可見，控方第九證人指特別訂單的貨對 MHM 來說是太多的證供是誠實和完全合理的。」

33.23)The 2nd applicant submits that, in making this ruling, Judge Yau had forgotten PW9’s evidence.  Most of the goods that he eventually did not take and had to return to Briga were FT66.  FT66 failed because there were problems with the design.  Although PW9 said that the goods returned also included LG22 apart from FT 66, he clarified that most of the goods returned were FT66.
33.23)第二申請人指邱法官作出這個裁決時忘記了控方第 九證人的證據。他最終沒有提取及需要退回給 Briga 的大部分貨物是 FT66。FT66 失敗的原因是設計上的問題。雖然控方第九證人說退貨之中除了 FT66 還有 LG22，但他澄清大部分已退還的貨物是 FT66。

33.24)We do not think this submission can assist the 2nd applicant.  It was in light of the circumstances of the return of goods that Judge Yau ruled that PW9’s testimony that the goods under the “special order” were too much for MHM was true and reasonable.  However, this was not the sole reason for supporting PW9’s evidence.  Judge Yau had also taken into account the following: the transactions between the two parties during 2002-2003 amounted only to approximately $3,000,000, whereas their business dealings in the year of 2003-2004 amounted to approximately $6,000,000.  However, this was because, with the outbreak of SARS in 2003, MHM had to purchase more air purification products.  Subsequently the epidemic came under control, and so PW9 simply did not have to purchase from Briga goods to the value of as much as $9,000,000 or so.  It was also on this basis that Judge Yau found what PW9 had said reasonable.
33.24)本庭不認為這個論點可以協助第二申請人。邱法官根據退貨的情況來裁決控方第九證人指「特別訂單」的貨對 MHM 來說是太多的證供是真實及合理的。但這並不是支持控方第九證人證供的唯一原因。邱法官亦有考慮雙方在 2002 年至 2003 年的交易只是約 $3,000,000。到了 2003 年至 2004 年度，雙方的生意額約 $6,000,000，但這是因為 2003 年發生了非典型肺炎疫症，令到 MHM 需要多訂購淨化空氣有關的產品，之後疫症受到控制，故此控方第九證人根本是無需要向 Briga 購買約 $9,000,000 的貨物。邱法官亦根據這點裁定控方第九證人所說的話是合理的。

1.3)(7)  Defence Exhibit D87
1.3)(7)  辯方證物 D87

33.25)In respect of Defence Exhibit D87, Judge Yau had this to say:
33.25)邱法官就辯方證物 D87 這樣說：

“452.   PW9 did not admit that the 3rd defendant had informed him via Defence Exhibit D87 that delivery of the stock for the special order could be taken.  According to the second agreed facts, Defence Exhibit D87 was seized from PW9’s home.  It was a document faxed to MHM and read as follows: ‘Dear Lewis, please see attached is an updated status of our inventory on hand for special order.  These inventory are ready and can be shipped at any time.  If your want to have shipment, please contact me directly.’  PW9 said he could not recall having received this email.  The email was dated 15 May 2005, and given the long lapse of time, it is not surprising that PW9 could no longer remember it.  PW9 admitted that MHM had issued the purchase order to Briga upon the 2nd defendant’s request.  PW9 also pointed out that MHM could take delivery of the goods for this purchase order, so it was not necessary for him to lie regarding whether or not the 3rd defendant had informed him by fax that delivery of the goods for the special order could be taken.  What PW9 said is undoubtedly true.  It is worth noting that in this email the goods concerned were described as ‘our inventory’ and not MHM’s inventory.”
「452.   控方第九證人不承認第三被告人曾以辯方證物 D87 通知他特別訂單的存貨可提取。根據第二份事實確認書，辯方證物 D87 是在控方第九證人的家中撿獲。它是一張傳真到 MHM 的文件，內容是這樣的，“Dear Lewis, please see attached is an updated status of our inventory on hand for special order.  These inventory are ready and can be shipped at any time.  If your want to have shipment, please contact me directly.” 控方第九證人說已忘記收過這電郵。這電郵上寫的日期是 2005 年 5 月 15 日，控方第九證人忘記了它，一點也不出奇，因為相隔的時間實在太長了。控方第九證人承認 MHM 應第二被告人要求向 Briga 發出了購貨單。控方第九證人也指出，MHM 是可提取這購貨單的貨，因此他沒有必要就第三被告人有沒有以傳真通知他特別訂單的貨可提取一事撒謊。毫無疑問，控方第九證人說的是實話。有一點值得注意的，就是在這電郵中有關的貨物被形容為 『our inventory』，而非 MHM 的 inventory。」

33.26)The 2nd applicant suggests that the only factor that Judge Yau had to take into account was that in 2005 PW9 was informed via fax issued by the 3rd defendant that the goods under the “special order” were ready and MHM could take delivery of them at any time.  Whether he remembered this fax now was not important.
33.26)第二申請人說邱法官唯一需要考慮的只是控方第九證人在 2005 年曾經透過第三被告人發出的傳真，獲告知「特別訂單」的貨物已經預備好及 MHM 可以隨時提取該貨物。至於他現在是否記得這傳真並不是重點。

33.27)We fail to understand the 2nd applicant’s argument because, as can be seen from the transcripts, what the 2nd applicant asked PW9 was whether he had any recollection of having received this fax.
33.27)本庭不明白第二申請人的論點，因為從謄本看到，第二申請人向控方第九證人所提出的問題就是他是否有印象收過這個傳真。

1.3)(8)  PW9’s evidence was unclear and inconsistent
1.3)(8)  控方第九證人供詞不清晰及前後不一

33.28)Judge Yau made the following comments on PW9’s testimony:
33.28)邱法官就控方第九證人的證供有這樣的評論：

“453.At the outset of his testimony, PW9 gave an impression of being not serious and his evidence appeared to be perfunctory. I do not consider it fair to criticize him for that because he was then testifying against his trading partners and friends. On the evidence, at the time of the present trial, MHM and Daka group were still having business dealings, and this would easily add to PW9’s sense of uneasiness when he gave evidence.  It was therefore not surprising for PW9 to behave as he did. However, following the court’s explanation, PW9 became serious and smoothly completed giving his evidence. ”
「453.控方第九證人最初作供的時候，他的態度給人一個不認真的感覺，而他的證據顯得敷衍。本席認為這是很難責怪他的，因為他正在指證他生意上的貿易夥伴及朋友。根據案中的證據，於審訊的時候MHM及特嘉集團仍然有生意來往，這更容易令到控方第九證人作供時感覺不自然，因此控方第九證人有這個表現一點也不出奇。但經過法庭向控方第九證人解釋後，第九證人的態度變得認真及順利地完成了他的證供。」

33.29)The 2nd applicant submits that even after the explanation by the court, PW9 was still vague and self-contradictory in his evidence.  We find that this is within the ambit of Judge Yau’s power to make findings of fact.  There was also other evidence in the present case in support of what PW9 said.
33.29)第二申請人指出，當邱法官向控方第九證人引示後，他的證供仍然是含糊及矛盾的。本庭認為這是屬於邱法官裁定事實的權力範圍。本案亦有其他證據支持控方第九證人的證供。

1.3)(9)  Detailed arguments on alleged problems with PW9’s testimony
1.3)(9)  控方第九證人供詞不妥的詳細論點

1.3)(9)(i) Reward of $100,000
1.3)(9)(i) $100,000 的獎償

33.30)The 2nd applicant submits that PW9’s evidence on whether the $100,000 was a rebate or reward was inconsistent and vague.  According to his evidence in examination-in-chief, at the early stage when he discussed the “special order” with the 2nd applicant, one of the conditions being discussed was a “rebate programme” which was also called “reward”.  However, further down the course of the examination-in-chief, PW9 explained that the $100,000 that the 2nd applicant had given him was a “reward” because the “special order” had “troubled” him.  Under cross-examination by the 1st applicant, PW9 said that the $100,000 was a condition which had already been discussed at an early stage — i.e. a “reward” upon the listing of DDL.  While being cross-examined by the 2nd applicant, PW9 clarified that the discussion on the condition of “rewarding rebate programme” had not been concluded.
33.30)第二申請人指，控方第九證人關於 $100,000 的證供是 rebate (回佣)還是 reward (獎償)，前後不一致及模糊。根據控方第九證人的主問證言，他早初與第二申請人商討「特別訂單」條件包括了一個 ‘rebate programme’ 亦叫 ‘reward’ /獎金。但其後仍於主問時控方第九證人卻解釋第二申請人給他的 $100,000 是「獎勵」，因為「特別訂單」事項「麻煩」了控方第九證人。控方第九證人在第一申請人盤問下，說該 $100,000 是一個早已商討了的條件—即 DDL 上市後之「獎金」。控方第九證人在第二申請人盤問時澄清根本 ‘rewarding rebate programme’ 的條件並沒有商討好。

33.31)We see nothing in this submission.  Obviously, PW9’s testimony had not mixed up the “rebate programme” and the $100,000 reward.  He denied that the $100,000 given to him by the 2nd applicant was a reward to him for placing a one-off order for the goods for that year.  This is a finding of facts.
33.31)本庭不認為這是一項充分的理據。控方第九證人的證供明顯地是沒有將 ‘rebate programme’ 與 $100,000 的獎金混淆。他是否認第二申請人給他的 $100,000 是用作獎勵他將該年貨物一次過落單。這是一項事實的裁決。

1.3)(9)(ii) Value and quantity of the goods
1.3)(9)(ii) 貨物的金額和數量

33.32)The 2nd applicant submits that although PW9 claimed in examination-in-chief that the goods in the amount of $10,000,000 for the “special order” were too much and unrealistic, his evidence under cross-examination revealed the goods and the quantities that MHM had previously purchased from DDL, and it showed that the value and quantity of goods under the “special order” were also reasonable.
33.32)第二申請人說雖然控方第九證人在主問時聲稱「特別訂單」的一千萬元貨物太多，而且不切實際，但他在盤問下的證供顯示 MHM 之前向 DDL 所購買的貨物和數量，這反映「特別訂單」的金額和數量亦是合理的。

33.33)We do not agree.  PW9 said that 30% to 40% of the goods under the “special order” were reasonable.  According to Exhibit P40, the two types of new products that MHM purchased from Briga, namely LG22 and FT66, cost $7,638,742.80, which represented 73% of the total amount payable for the goods.  Therefore, it was reasonable for PW9 to insist that the goods for this “special order” were too much.
33.33)本庭不同意這說法。控方第九證人說「特別訂單」其中三至四成的貨物是合理的。根據證物 P40， MHM 向 Briga 購買的兩種新產品，即　LG22　及　FT66　為 $7,638,742.80，這佔訂單的七成三貨款，故此控方第九證人堅持這「特別訂單」的貨是太多是合理的。

1.3)(9)(iii) Sales agreement
1.3)(9)(iii) 銷售協議

33.34)The 2nd applicant submits that DDL had signed a distributorship sales agreement upon PW9’s request, and that PW9 had previously promised to try his best to sell goods to the value of $10,000,000 in 2004-2005.
33.34)第二申請人指 DDL 是應控方第九證人的要求簽署了一份分銷售協議，而他早前已承諾在 2004 年至 2005 年會儘量銷售一千萬元的貨物。

33.35)PW9 sent an email to the 2nd applicant on 11 February 2004, requesting him to sign a distributorship agreement.  He said that the agreement concerned was subsequently signed, but he could not remember if yet another agreement was signed thereafter.  Therefore, this does not assist the 2nd applicant.  In any event, we are of the view that the content of this email supported PW9’s suggestion that the quantity of goods under the “special order” was unreasonable.  PW9 pointed out in the email that if they were to take out a letter of credit in the amount of $3,000,000 in favour of the other party, they would have to reinforce their collateral with the bank by putting in at least $2,000,000 as cash deposit and discharging the existing “trust receipt”.  Taken as a whole, the content of the email clearly showed that PW9 was merely intending to assist the 2nd applicant, and this implied that he simply had no need to purchase so many goods.  In addition, a distributorship agent agreement signed by the two parties on 25 February 2003 showed that the price fixed by the parties for FT66 at that time was $300, and the price of FT66 as set out in an appendix added in on 30 December 2003 was merely $351.  However, the price tripled in the “special order”.  All these served as evidence in support of what PW9 said.
33.35)控方第九證人在 2004 年 2 月 11 日發電郵給第二申請人，要求對方簽署一份分銷協議。他說之後是有簽署有關協議，但他不記得之後有沒有再簽署一份跟進的協議，故此這一點不能協助第二申請人的論點，但無論如何，本庭認為這電郵的內容支持控方第九證人聲稱「特別訂單」的數目是不合理的。在電郵內，控方第九證人指出，若果他們要開一份 $3,000,000 的信用狀給對方，他們需要增加他們在銀行的擔保。他們需要最少存入 $2,000,000 作為現金存款及需要清還現時的「信託收據」(trust receipt)。整份電郵的內容明顯地顯示控方第九證人只是去協助第二申請人。言外之意是他根本不需要購買那麼多的貨物。另外，從一份雙方在 2003 年 2 月 25 日簽署的分銷商協議看到當時雙方就 FT66 所定的價錢為 $300，在 2003 年 12 月 30 日所加入的附件 FT66 的價錢仍只是 $351，但在「特別訂單」內，這價錢卻加高達三倍。這些證據皆是支持控方第九證人的說法。

1.3)(9)(iv) Participation of PW9
1.3)(9)(iv) 控方第九證人的參與

33.36)The 2nd applicant argues that PW9 had all along taken part in the discussion on the variation of price and quantities of goods under the “special order” and these matters were not, as PW9 said in examination-in-chief, decided by DDL/the 2nd applicant.
33.36)第二申請人聲稱，控方第九證人一直有參與商討「特別訂單」更改價錢及貨物數量，而並不是如他在主問時所說這些事情只是由 DDL/第二申請人作出決定。

33.37)As the respondent has pointed out, according to PW9’s testimony, he had not on his own initiative suggested varying the purchase orders but had merely given advice and suggestions on taking out certain types of goods and adding in certain goods when the other party suggested varying the purchase orders.  We do not agree that the evidence referred to had undermined PW9’s veracity or credibility.
33.37)正如答辯人所說，根據控方第九證人的證供，他並沒有主動提出更改購貨單，他只是在對方主動提出修改購貨單時給予意見，建議取消某類貨品及加入某些貨品。本庭不認同有關的證據削弱控方第九證人的誠信。

1.3)(9)(v) MHM took delivery of goods from the “special order”?
1.3)(9)(v) MHM 從「特別訂單」提貨？

33.38)The 2nd applicant submits that, although PW9 said in examination-in-chief that he had no obligation regarding the goods under the “special order”, his testimony under cross-examination revealed that the goods of which MHM had taken delivery throughout 2004 and 2005 came from the “special order”.  The 2nd applicant relies on a number of emails dispatched by MHM in support of his argument.  The 2nd applicant submits that the answers given by PW9 in examination-in-chief were incorrect.
33.38)第二申請人指，雖然控方第九證人在主問時說他對「特別訂單」的貨物沒有任何責任，但在盤問下，他的證供卻顯示由 2004 年至 2005 年 MHM 一直所提取的貨物是來自「特別訂單」。第二申請人引用多份由 MHM 發出的電郵支持其論點。第二申請人認為控方第九證人在主問時所給的答案是不正確的。

33.39)We agree that according to PW9’s evidence, although he said he had no recollection, he had not denied that the goods of which MHM had taken delivery came from the “special order”.  However, in our view, of greater importance is that the way in which MHM took delivery of the goods served to support PW9’s suggestion that the “special order” was in fact a bogus transaction.
33.39)本庭同意根據控方第九證人的證供，雖然他說他記不起，但他不否定 MHM 所提取的貨物來自「特別訂單」。但本庭認為更重要的是 MHM 提取貨物的方式支持控方第九證人所說「特別訂單」其實是一個虛假的交易。

33.40)According to the evidence provided by PW11, one alphabet was added to the end of the invoice number of each commercial invoice for the “special order” so that the invoice became a commercial invoice issued by Briga upon delivery of goods, i.e. what have been referred to as “A, B, C, D …” invoices.  Judge Yau briefly described how MHM paid for these invoices:
33.40)根據控方第十一證人所提供的證據，他們以「特別訂單」的商業發票的編號後加一個英文字母作為出貨時 Briga 開出的商業發票，即是本案所稱的「A,B,C,D….」發票。邱法官簡述 MHM 支付這些發票的方法：

“393.PW9 said that MHM had only taken delivery of the goods relating to the 14 commercial invoices comprising Prosecution Exhibits P75-P102 and the corresponding 14 local delivery notes. Those invoices were numbered BIV04003-5(A) to BIV0403003-5(N), IV0405067(A) and IV0405067(B), and bore various dates between June 2004 and November 2005.  These delivery notes all bore MHM’s company chop which was affixed by MHM upon receipt of the goods.  PW9 paid by cheques and made records thereof in MHM’s accounts.  Some of the cheques comprise Prosecution Exhibits P137 to P157.  The invoice number of the commercial invoice to be settled by each particular cheque was written down on the reverse side of the cheque.  The commercial invoices settled were BIV0403003-5(A) to BIV0403003-5(G).  Each commercial invoice was settled by three cheques for, respectively, 40%, 30% and 30% of the amount payable for goods, and the dates of the three cheques were one month apart.  PW9 also pointed out that the $240,000 cheque in Prosecution Exhibit P465 was also a cheque he had used to settle these commercial invoices.”
「393.控方第九證人說，MHM只提取了控方證物P75至控方證物P102中的共十四張的商業發票及相關的十四張送貨單(local delivery note)中的貨物，相關發票編號由BIV04003-5(A) 至BIV0403003-5(N) 及IV0405067(A) 和IV0405067(B)，而日期由2004年6月至2005年11月都有。這些送貨單都有MHM收貨時蓋上的公司印。控方第九證人以支票付款及將其紀錄了在MHM的賬目內。其中的一些支票是控方證物P137至控方證物P157。每張支票背後都寫上所支付的商業發票編號，而所支付的是由BIV0403003-5(A) 至BIV0403003-5(G)。每張商業發票都以三張支票支付，分別是貨款的四成、三成及三成，而每張支票日期都相差一個月。控方第九證人亦指出，控方證物P465中的那張二十四萬元支票也是他用來支付這些商業發票的。」

33.41)If PW9 had already paid the deposit and made payment for the goods of the “special order”, then he would not have made payment for goods upon taking delivery thereof.  In addition, although the price of FT66 as stated in the “special order” was $936, according to the “A, B, C, D …” invoices, i.e. invoices in respect of genuine transactions, the price of FT66 was only about $429 or $409.  This was also part of the other evidence which showed that the “special order” was not a genuine commercial transaction.
33.41)若果控方第九證人已就「特別訂單」的貨物付出了訂金及貨款，他提貨時便不會再另行繳付貨款。另外，雖然在「特別訂單」 FT66 的訂價為 $936，但根據「A,B,C,D….」發票，即是有真正交易的發票，FT66 的貨價只是約 $429 及 $409。這也是其他的證據支持「特別訂單」並非是一個真實的商業交易。

1.3)(10) Bogus transaction
1.3)(10) 虛假交易

1.3)(10)(i) No deposit no commitment
1.3)(10)(i) No deposit no commitment

33.42)The 2nd applicant submits that Judge Yau incorrectly understood the concept of “no deposit no commitment” because he failed to consider the following evidence:
33.42)第二申請人認為邱法官沒有正確地理解 ‘no deposit no commitment’ 的概念，因為他沒有考慮以下的證據：

(1)MHM had previously taken delivery of goods of the succeeding year by means of one single order.
(1)MHM 已前曾以一張訂單提取下年度貨物。

(2)In response to PW9’s concerns over the “special order”, the 2nd applicant lent him money for paying the deposit and agreed that the unsold goods could be returned by way of “guarantee sales return”, an arrangement which had been made in the past.
(2)控方第九證人對「特別訂單」有憂慮，因此第二申請人借錢給他付訂金及同意若不能賣出所有貨物，便可以用‘guarantee sales return’ 形式退回，而這形式已往亦用過。

(3)In fact, the goods of which MHM took delivery in 2004-2005 also came from the “special order”.
(3)事實上 04 至 05 年度 MHM 提取之貨物亦是來自「特別訂單」。

(4)Except for FT66 and LG22, delivery of all other goods had been taken.
(4)除 FT66 及 LG22 以外其餘貨物已全部被提取。

33.43)We do not agree.  The unreasonable aspects of the transactions concerned have been mentioned above.  Under the agreement between the parties, MHM had no obligation whatsoever to take delivery of the goods under the “special order”, however, Briga had to put on record that the production of the goods under the “special order” was completed before 31 March 2004, and the profits of the “special order” were included in the turnover of Daka Designs for 2003-2004.  All these acts simply went against economic and management principles and would never be done in normal commercial transactions.
33.43)本庭不同意這說法。上文已經提到有關交易不合理之處。既然根據雙方協議 MHM 根本沒有責任去提取「特別訂單」的貨物，但 Briga 卻要在紀錄上標示 2004 年 3 月 31 日之前將「特別訂單」的貨物完成生產。並將這「特別訂單」的利潤記賬於 Daka Designs 於 2003 至 2004 年度營業額內。這一切行為根本是完全不合乎經濟及管理原則，及在正常的商業交易中一定不會發生的。

33.44)The 2nd applicant attempts to explain the existence of the concept of “no deposit no commitment” by reference to PW9’s concerns over the “special order”.  The 2nd applicant submits that, as PW9 was concerned about the “special order”, the 2nd applicant lent him money to enable him to pay the deposit and also agreed that those goods which MHM was unable to sell could be returned by means of “guarantee sales return”.
33.44)第二申請人企圖以控方第九證人對「特別訂單」的憂慮來解釋為何會有 ‘no deposit no commitment’ 的概念。第二申請人指出是因為控方第九證人對「特別訂單」有憂慮，因此第二申請人借錢給他付訂金及同意若 MHM 不能賣出所有貨物，便可以用 ‘guarantee sales return’ 形式退回。

33.45)In our view, this argument rather serves to strengthen the conclusion that the “special order” could not possibly be a normal transaction.  MHM was not required to pay any deposit for the purchase orders it issued, and on the other hand, it was not obliged to sell those goods because the “guarantee sales return” allowed MHM to return any goods which it was unable to sell.  This showed that MHM was not required to bear any risk at all in respect of this purchase order, and this was a commercial transaction which Judge Yau said could not possibly exist.
33.45)本庭認為這論點更顯示這「特別訂單」沒有可能是一個正常交易。MHM 無須就它發出的購貨單付出任何訂金，另一方面它亦不需要有任何責任將該些貨物售出因為當貨物沒有賣出時，它是可以根據 ‘guarantee sales return’ 退回，這正正顯示 MHM 根本不需要就這購貨單承擔任何風險，這亦是邱法官指沒有可能存在的商業交易。

1.3)(10)(ii) Commercial invoices
1.3)(10)(ii) 商業發票

33.46)The 2nd applicant submits that Judge Yau erroneously failed to consider that the “special order” as a whole involved five commercial invoices, namely BIV0403001 (D91), P42, P43, P44 and BIV0405005.  It is submitted that PW9 had taken delivery of the goods set out in the first invoice (Exhibit D91) and paid for them, so there was no problem.  The fifth invoice was not recorded in the accounts for the year of 03-04 [see P66] and hence did not affect the annual report of DDL for the fiscal year ended 31 March.  In considering whether the “special order” was a genuine transaction, Judge Yau should have considered the “special order” in its entirety, including Exhibit D91 and BIV0405005, the two orders which did not have any problem and which had a significant bearing on the question of whether the transaction was genuine.  Had the “special order” been bogus, it would not have been necessary for PW9 to take delivery of the goods set out in Exhibit D91 and pay for them, nor would it have been necessary to pay for the goods set out in BIV0405005 after 31 March 2004.
33.46)第二申請人指出邱法官錯誤地沒有考慮到整個「特別訂單」包含了五張商業發票，即 BIV0403001 (D91), P42, P43, P44 及 BIV0405005。第二申請人認為控方第九證人提取了第一張單，(證物 D91) 的貨物及支付了貨款；所以沒有任何問題，而第五張發票不是入帳於 03 至 04 年度[見：P66]，因此並不會影響 DDL 年截至 3 月 31 日止財政年度的年報。在考慮「特別訂單」是否真實交易時，邱法官應考慮到整個「特別訂單」，即要包括證物 D91 及 BIV0405005 — 這兩張沒有任何問題存在的訂單，因對交易是否真實的問題絕對有影響。若果「特別訂單」是虛假的，控方第九證人沒有必要提取證物 D91 之貨物及支付貨款，亦沒有需要於 04 年 3 月 31 日後支付 BIV0405005 之貨款。

33.47)Judge Yau made the following ruling on Exhibit D91:
33.47)邱法官就證物 D91 作出以下的裁決：

“474.… The defence also points out that MHM had recorded in its accounts the payments already made in settlement of commercial invoice BIV0403001 (i.e. Exhibit D91).  This in fact does not contradict PW9’s testimony because PW9 did admit that MHM had in fact taken delivery of the goods set out in this commercial invoice and paid for them.  It was at once natural and proper for MHM to record these items in its accounts.”
「474.……辯方也指MHM就商業發票BIV0403001(即證物D91)已支付的貨款入賬。這其實與控方第九證人的證供沒有矛盾，因為控方第九證人承認MHM確實地提取了這商業發票的貨及支付其貨款。MHM把這些事項記在MHM的賬內是很自然的事，和沒有任何的不妥。」

33.48)The particulars of these five commercial invoices are as follows:
33.48)這五張商業發票的詳情是

33.49)We do not think that the 2nd applicant’s argument weakens the ruling made by Judge Yau.  The respondent’s position was that the “special order” did not include the first and fifth invoices.  However, even if the goods relating to these two invoices were part of the goods under the “special order”, it does not mean that the whole “special order” was genuine.  The second, third and fourth invoices involved a total amount of $8,976,619.56, which constituted a major portion of the amount of $10,381,947.20 as stated in the “proforma invoice” issued by Briga (Exhibit P40) .
33.49)本庭不認為第二申請人的論點削弱邱法官的裁決。答辯人的立場是「特別訂單」不包括第一及第五張發票。但就算這兩張發票的貨物是屬於「特別訂單」的貨物，這也不表示整份「特別訂單」是真實的。第二、第三及第四張發票的款額為$8,976,619.56，這已經是佔 Briga 所發出的「預開發票」(證物 P40) $10,381,947.20 金額的大多數。

33.50)PW9 said that the goods in respect of the second, third and fourth invoices were not delivered to him.  It was the 2nd applicant’s position that PW9 had “accepted” but not “taken delivery of” those goods.  According to another “goods receipt acknowledgement” dated 31 March 2004, the goods referred to in the confirmation document that MHM issued to Briga were received on 31 March 2004 and the risks and ownership of the goods were passed to MHM on the same day:
33.50)控方第九證人說第二、第三及第四張發票的貨物沒有送給他。第二申請人的立場是控方第九證人有「接受」這些貨物，但沒有「提取」。根據另一份 2004 年 3 月 31 日的「收貨確認書」， MHM 對 Briga 確認的文件所指的貨物已經在 2004 年 3 月 31 日收到及貨物的風險及主權亦於當日轉給 MHM：

“We hereby confirmed that the following goods are received by us and the risks and ownership of the goods are passed to us on 31 March 2004.  In addition, we have inspected the quality and condition of these goods and we are satisfied with their standard.”
‘We hereby confirmed that the following goods are received by us and the risks and ownership of the goods are passed to us on 31 March 2004.  In addition, we have inspected the quality and condition of these goods and we are satisfied with their standard.’

33.51)The goods involved in that document constituted 90% of those in the “special order”.  If HMH was not required by the agreement between the two parties to assume any responsibility for the goods, it would simply not have been necessary for Briga to pass the goods on to HMH on 31 March 2004, and the reference to “risks” and “ownership” in the document would not have served any real purpose.  This is precisely another reason for supporting Judge Yau’s ruling that the “special order” was a bogus transaction.
33.51)該文件涉及的貨物佔「特別訂單」的 90%，若果根據雙方的協議 MHM 根本是無須要對這些貨物負上責任的話，Briga 根本是不需要在 2004 年 3 月 31 日將有關的貨物轉交給 MHM 文件所提的‘風險’及‘主權’亦只是形同虛設。這正好是另外一個原因支持邱法官認為「特別訂單」是虛假交易的裁決。

33.52)The 2nd applicant submits that Judge Yau said he “[was] not sure if production of all the goods under the ‘special order’ had been completed”.  This conclusion is essentially in line with what defence said.  It was only after 31 March 2004 that BIV0405005 was issued and recorded in the accounts.  Had the “special order” been bogus, there would have been no need to wait until the goods had been produced before issuing BIV0405005 after 31 March 2004.  Therefore, it was reasonable and consistent with the defence case that the production of the goods had not been wholly completed during the period specified by the prosecution.  Furthermore, Judge Yau said that “it was neither possible nor necessary [for DDL] to have the production of the goods under the ‘special order’ completed by 31 March 2004” because, if the “special order” was a normal commercial transaction, MHM would only take delivery of the goods and pay for them in stages, and hence there would not be any urgent need for MHM to have the products under the “special order” completed by 31 March 2004.  However, according to PW9’s testimony, the “special order” did not mark the first occasion on which MHM and DDL ordered goods for the whole year by way of one big order.  MHM had in the past ordered goods for the coming year by placing one big order with DDL; besides, other conditions of or conditions that had been negotiated for the “special order”, namely the “rebate programme” and the “guaranteed sales return” by which unsold goods were returned, had also existed previously.  As a matter of fact, the last invoice for the “special order”, namely BIV0405005, was issued after 31 March 2004, and this showed that DDL had not rushed to complete the production of the goods under the “special order” by 31 March 2004.
33.52)第二申請人說邱法官說他「不肯定是否所有『特別訂單』的貨物都完成生產」。這結論根本與辯方的說法一致。BIV0405005 只於 2004 年 3 月 31 日後發出及入帳。若「特別訂單」是虛假的，BIV0405005 亦不用等到貨物被生產後於 2004 年 3 月 31 日後才發出。因此，貨物還未在控方所指的相關期間全部完成生產是合理及與辯方案情吻合的。再者，邱法官指 DDL 「沒有可能及沒有必要 2004 年 3 月 31 日完成『特別訂單』貨物的生產」，因「特別訂單」是一張正常的商業交易的單，MHM 只會逐步提取貨物及支付貨貸；所以 MHM 無須急於把「特別訂單」內的貨於 2004 年 3 月 31 日前完成。但根據控方第九證人之證言，「特別訂單」並非第一次 MHM 與 DDL 以一張大單形式去訂全年的貨物。除了 MHM 以往已試過以一張大單向 DDL 訂購來年的貨物之外，其他「特別訂單」條件或有商討的條件以往亦發生過：‘rebate programme’ 及 ‘guaranteed sales return’ 退還不能賣出的貨物。而實質上，「特別訂單」的最後一張發票 BIV0405005 是於 2004 年 3 月 31 日後才發出，顯示到 DDL 亦沒有將所有「特別訂單」內的貨趕於 2004 年 3 月 31 日前完成生產。

33.53)We do not agree.  We have dealt with the relevant issues earlier on in this judgment.  In his judgment Judge Yau thoroughly discussed the issue of whether the “special order” was a genuine transaction.  We agree with Judge Yau’s ruling and his reasoning completely defeated the defence of “genuine transaction”.
33.53)本庭不同意這論點。本庭已在上文處理有關爭論。邱法官在其判案書詳細討論「特別訂單」是否真實交易此論點。本庭認同邱法官的裁決，他所持的理據完全摧毀這「真實交易」的辯解。

“478.My conclusion is that Daka group had in fact proceeded to produce the goods for the special order. Although I am not sure if production of all the goods under the special order had been completed, I accept the defence evidence that a major portion of the goods under the special order had been produced. However, as the prosecution pointed out in the final submission, whether Daka group had finished the production of the goods for the special order is not the key issue in the present case. As I see it, the most important question is whether this special order was a bogus transaction that came into existence for the purpose of inflating the turnover of Daka Designs in the year of 2003-2004.
「478.本席的結論是特嘉集團的確有進行生產特別訂單的貨物。雖然本席不肯定是否所有特別訂單的貨物都完成生產，但接受辯方有關特別訂單的不少貨物都已經生產了的證供。但正如控方在最後陳詞中所指出，特嘉集團是否就特別訂單的貨物完成生產並非本案的重點。本席認為最重要的是這特別訂單是否一個為了提高Daka Designs 於 2003至2004年度的營業額而出現的虛假交易。

479.PW9’s testimony clearly pointed out that MHM had no obligation whatsoever to take delivery of the goods under the special order and that MHM would take delivery of the goods only as and when necessary. Under such circumstances, although Daka had the special order in its hands, it could not possibly proceed to produce the goods right away in the absence of MHM’s request to take delivery. It should be noted that in the course of production, Daka group had to put in a lot of manpower and resources. In case MHM had not requested to take delivery of the goods, Daka group would even have to find a place for storing them upon completion of their production. This is exactly what happened in the present case. On the evidence, Daka group had to borrow the premises of T&K to keep the goods which had been produced for the special order. Obviously, such hasty production went against economic and management principles and would never happen in normal commercial transactions.
479.控方第九證人的證供清楚地指出，MHM完全沒有責任提取特別訂單中的貨物，及MHM只會在有需要時才會提取所需要的貨品。在這情況下特嘉雖然有這特別訂單在手，但也沒有可能在MHM沒有提出提貨時就立刻為這特別訂單進行生產。要知道，在生產過程中，特嘉集團要投下很多人力和物力。基於MHM根本就沒有提出提貨，這些貨生產完成後，特嘉集團還要找地方儲存這些貨。這現象就正正在本案中發生。根據案中的證供，特嘉集團就要借用千基的地方去存放已生(產)了的特別訂單的貨物。很明顯，這樣急於進行生產，完全不合乎經濟及管理的原則，及在正常的商業交易中一定不會發生的。

480. Another important point is that, as long as MHM did not take delivery of the finished products under the special order, Daka would not be able to obtain payment for these goods, and a large quantity of such goods would hoard within Daka group, as a result of which a lot of money would be locked up, and this would naturally create an adverse effect on the cashflow of Daka group.  Such an unreasonable practice would not possibly exist if the special order was a normal commercial transaction.
480. 另一點重要的是，一天MHM不提取已完成的特別訂單貨物，特嘉就不能收取這些貨物的貨款，這無端令到特嘉集團囤積大量的貨物，其結果是令到特嘉集團的大批資金因為這些貨物的囤積而被積壓了，這對特嘉集團的財政周轉自然有一個壞的影響。如果特別訂單是一個正常的商業交易，根本沒有可能會出現這樣不合理的做法。

481.Even assuming MHM did have an obligation to take delivery of the goods under the special order, it was neither possible nor necessary for Daka group to have the production of the goods under the special order completed by 31 March 2004. According to PW9’s testimony, for the purchase orders that the 2nd defendant had requested MHM to issue, no matter whether the price was $10 million as initially suggested or $8.9 odd million as finally issued by MHM (Prosecution Exhibit P60), MHM was ordering goods needed for a whole year.  The 2nd defendant must have been very well aware of this because what he had asked PW9 to do was place a big order for the coming year, and this was the established trading practice between MHM and Daka group. If this was an order in relation to a normal commercial transaction, MHM would only take delivery of the goods and pay for them in stages within one year. Of course, the 2nd defendant would also have understood this. Under such circumstances, Daka group had no need at all to hastily complete production of the goods under the special order by 31 March 2004, and should instead wait for instructions from MHM so as to avoid putting itself in the situation described above, i.e. unnecessarily having goods hoarded and capital locked up.
481.就算當作MHM有責任去提取特別訂單的貨物，特嘉集團也沒有可能及沒有必要在2004年3月31日前完成特別訂單貨物的生產。根據控方第九證人的證供，第二被告人要求MHM 所發出的訂貨單，無論數額是最初提出的一千萬或MHM最後發出的八百九十多萬的訂貨單(控方證物P60)，這是MHM預訂全年所需要的貨物。第二被告人一定很清楚這一點，因為他要求控方第九證人做的是為來年的貨落一張大單，而這亦是MHM與特嘉集團之間的貿易一貫的做法。如果這是一張正常的商業交易的單，MHM也只會在一年內逐步提貨及支付貸款。第二被告人當然也一定會明白這一點。在這情況下，特嘉集團完全毋須急於把特別訂單內的貨於2004年3月31日之前完成，而應等待MHM的指示，以免陷於本席剛才所指的情況，即不必要地囤積貨物和積壓資金。

482.However, Daka group approached the matter by treating the production of these goods as having been completed by 31 March 2004. According to PW11’s testimony, at a meeting regarding stocktaking, the 3rd defendant disclosed that auditors would conduct stocktaking in April 2004 and pointed out that the goods under the special order would be sold to the customer before 31 March 2004. He requested the relevant staff, including PW11, to input the information to the ATL computerized accounting system of Daka group to ensure the sales of goods under the special order were completed by 31 March 2004. This precisely indicated that Daka group had to fully complete production of the goods under this special order before 31 March 2004.
482.但特嘉集團的做法卻是把這些貨物是在2004年3月31日前完成生產來處理。根據控方第十一證人的證供，第三被告人在一個有關盤點的會議中透露，核數師會於2004 年 4 月進行盤點及指出特別訂單的貨會於 2004 年 3 月 31 日前賣給客人。他要求有關的員工，包括控方第十一證人把資料輸入特嘉集團的ATL電腦會計系統中，確保特別訂單在 2004 年 3 月 31 日前完成銷售。這正正表明特嘉集團是要在 2004 年 3 月 31 日前將這特別訂單的貨物全數完成生產。

483.As the court previously indicated, it simply did not make any sense to do so. The purpose of so doing was plainly to ensure that the $8,900,000 involved in the special order would be included in the turnover of Daka Designs for the year of 2004 which ended at 31 March 2004 and would be published in the annual report for that year. Eventually, PW5 issued three commercial invoices on 23 March 2004, 29 March 2004 and 31 March 2004 respectively (i.e. Prosecution Exhibits P42, P43 and P44) for the total amount of $8,976,619.56 as alleged in the charge. Briga also issued another commercial invoice (i.e. Defence Exhibit D91). PW9 said that prior to 31 March 2004, he had only received the goods set out in Defence Exhibit D91 but not those set out in the three invoices marked as Exhibits P42, P43 and P44.
483.正如法庭較早前所指出，這是完全不合理的做法。這樣做的目的，毫無疑問是要確保特別訂單的八百九十萬元包括在 Daka Designs 截至 2004 年 3 月 31 日的 2004 年度的營業額中及在該年度的年報中發布出來。結果控方第五證人於 2004 年 3 月 23 日、 2004 年 3 月 29 日及 2004 年 3 月 31 日開出了三張商業發票(即控方證物P42、P43、P44)，總值就是控罪中所指的 8,976,619.56 元。碧嘉也開出了另外一張商業發票(即辯方證物D91)。控方第九證人指出他於 2004 年 3 月 31 日前只收過辯方證物D91中的貨物，但沒有收過證物P42、P43、P44這三張發票中的貨物。

484.Pursuant to the 3rd defendant’s instructions, subsequent to the stocktaking exercise in April 2004, PW11 prepared a goods receipt acknowledgement (i.e. Prosecution Exhibit P64) covering the goods set out in these four commercial invoices and had the acknowledgement backdated to 31 March 2004. Although MHM had not received the goods set out in three of these commercial invoices, PW9 still signed the goods receipt acknowledgement upon Daka group’s request.  PW9 even said that he had neither seen nor inspected the goods set out in these three invoices. This could not possibly happen if the special order was a normal transaction. The effect of this goods receipt acknowledgement was to ensure that the transaction to which this bogus special order related could be included in the turnover of Daka Designs for the year of 2004 which ended at 31 March 2004.”
484.控方第十一證人在第三被告人的指示下，在2004 年 4 月的盤點後準備了一份收貨確認書(即控方證物P64)，當中包括了這四張商業發票的貨物，並把收貨確認書的日期追溯為 2004 年 3 月 31 日。雖然MHM沒有收取其中三張商業發票的貨物，控方第九證人仍在特嘉集團的要求下簽了收貨確認書。控方第九證人更指出，他沒有見過這三張發票的貨，也沒有驗過貨。如果這特別訂單是正常交易的話，根本就不可能會出現這個情況。這收貨確認書的作用是要確保這虛假的特別訂單的交易能夠包括在Daka Designs截至 2004 年 3 月 31 日的 2004 年度的營業額內。」

Conclusion
總結

For the above reasons, the applications of the 1st and 2nd applicants are dismissed.
基於上述原因，本庭駁回第一及第二申請人的申請。

Mr Martin Hui, SADPP and Ms Cecilia Chan, SPP of the Department of Justice, for the Respondent.
答辯人：由律政司高級助理刑事檢控專員許紹鼎及高級檢控官陳詩韻代表。

Mr Joseph Tse SC and Ms Doris Ho, instructed by Messrs Bennett Chan & Co. Solicitors, for the 1st Applicant.
第一申請人：由陳志强律師行轉聘謝華淵資深大律師及何政慧大律師代表。

Mr Eric Kwok SC and Ms Vivian Ho, instructed by Messrs Simon C W Yung & Co., for the 2nd Applicant.
第二申請人：由翁宗榮律師行轉聘郭棟明資深大律師及何慧嫻大律師代表。