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：

The Appellant pleaded guilty in the District Court to six counts of fraud, contrary to section 16A of the Theft Ordinance, Cap. 210 of the Laws of Hong Kong, and was sentenced to 20 months’ imprisonment by Deputy District Judge Woodcock.  Having obtained leave, the Appellant now appeals against sentence.
上訴人承認六項欺詐罪，違反香港法例第 210 章《盜竊罪條例》第 16(A) 條，被區域法院暫委法官胡雅文判處 20 個月監禁。上訴人獲法庭批予許可可就刑期提出上訴。

Facts
案情

In 2004, the Appellant, without the consent of her employer, made use of her employer’s particulars to apply to six credit card companies for credit cards.  Five of the applications were successful and the Appellant was therefore issued with the credit cards as particularised in Charges 1, 2, 3, 5 and 6 against her.  She used four of the cards (namely, the cards involved in Charges 1, 2, 3 and 6) and spent approximately $120,000 in various transactions.  She has never used the credit card involved in Charge 5.
2004 年上訴人在受僱期間私自使用僱主的個人資料分別向六間信用咭公司申請，並成功獲得其中五間信用咭公司發出的信用咭，即控罪一、二、三、五及六所涉及的信用咭。申請人使用過其中四張信用咭（即控罪一、二、三及六的信用咭）來簽賬消費約 $120,000。上訴人沒有使用過第五項控罪的信用咭。

On 21 December 2004, the police received a complaint and arrested the Appellant on the same day.  She admitted to the offence both at the time of arrest and in the subsequent records of interviews with the police.  On 21 December, 22 December 2004 and 13 April 2005, she provided the police with a total of four cautioned statements.
2004 年 12 月 21 日警方在接獲舉報後於同日拘捕上訴人。上訴人在被拘捕時及之後與警方的會面記錄中均承認本案的控罪。上訴人在 2004 年 12 月 21 日、12 月 22 日及 2005 年 4 月 13 日分別向警方提供了四份警誡供詞。

On 6 July 2005, the Appellant was given an unconditional discharge by the police.  However, she was arrested by the police again on 11 September 2006 and was prosecuted and brought to the Eastern Law Courts on 22 September 2006.  The case was subsequently transferred to the District Court.  At the first hearing before the District Court on 27 October 2006, the Appellant indicated that she would plead guilty to all the charges.
2005 年 7 月 6 日，上訴人獲警方無條件釋放，但在 2006 年 9 月 11 日再次被警方拘捕，並於 2006 年 9 月 22 日在東區裁判法院被正式起訴。案件其後被移交至區域法院審理。上訴人於 2006 年 10 月 27 日在區域法院第一次聆訊時向法庭表示她會承認所有控罪。

The Appellant pleaded guilty to the six charges on 13 November 2006 before Deputy Judge Woodcock.  On 27 November 2006, Deputy Judge Woodcock determined the sentence as follows: a starting point of 3 years’ imprisonment was adopted for Charges 1, 2, 3 and 6.  The term was reduced by one-third on account of the Appellant’s guilty plea and then further reduced by 4 months as the Appellant had paid off all credit card debts.  The term was therefore reduced to 20 months.  For Charges 4 and 5, a starting point of 2 years and 6 months was adopted and the term was reduced by one-third to 20 months on account of the Appellant’s guilty plea.  All sentences were to run concurrently, making the total term of 20 months.
2006 年 11 月 13 日上訴人在胡法官席前承認六項控罪。胡法官於 2006 年 11 月 27 日作出量刑：第一、二、三及六項控罪的量刑基準為三年監禁，因上訴人承認控罪，扣減其三分之一刑期，又因她已清還了所有信用咭簽賬的欠款而再扣減四個月的刑期，實際刑期為 20 個月監禁；第四及第五項控罪，兩年六個月為量刑基準，因上訴人承認控罪而扣減其三分一的刑期後，實際刑期為 20 個月監禁；所有刑期同期執行，總刑期為 20 個月監禁。

Breach of Trust
破壞誠信

The present case involves a breach of trust.  The Appellant made use of her employer’s personal particulars to apply for and obtain a number of credit cards and then used four of them.  For the four charges in respect of which the credit cards had been used, we consider the starting point of 3 years adopted by Deputy Judge Woodcock to be appropriate.  It was also appropriate to reduce the term by 4 months on the ground that the Appellant has paid off all outstanding sums resulting from the transactions she made with those four credit cards.  For the remaining two charges, in view of the fact that one of the credit card companies did not issue the Appellant with a card and that the Appellant did not use another credit card issued, it was appropriate for Deputy Judge Woodcock to adopt 2½ years as the starting point.  Nor do we see anything improper in the order for concurrent sentence.
本案是一項涉及破壞誠信的案件。上訴人使用僱主的個人資料申請及獲得多張信用咭，並曾使用過其中的四張信用咭。本庭認為胡法官就上訴人使用過信用咭的四項控罪以三年監禁為量刑基準是適當的及因上訴人已清還了這四張信用咭的簽賬欠款而再扣減四個月的監禁刑期亦是適當的；另外胡法官因其中一間信用咭公司沒有批出信用咭和上訴人沒有使用過另一張信用咭而以兩年半監禁為其餘兩項控罪的量刑基準亦是適當的。本庭認為胡法官命令所有刑期須同期執行也是適當的。

Delay in prosecution
檢控延誤

However, this case has an exceptional feature, namely a delay in prosecution.  Upon being arrested on 21 December 2004, the Appellant admitted to all the offences with which she subsequently came to be charged.  However, she was not formally charged until 22 September 2006.  This translates to a delay in prosecution for as long as 21 months.
不過，本案存在一個特別情況，就是檢控程序出現延誤。上訴人在 2004 年 12 月 21 日被警方拘捕時已即時招認了本案所有控罪，但直至 2006 年 9 月 22 日她才被正式起訴，即延誤長達 21 個月。

In a detailed written submission, Mr. Lai, Acting Senior Government Counsel for the Respondent, pointed out that the four cautioned statements provided by the Appellant during those 21 months did not cover the entire prosecution case, for example:
代表答辯人的黎嘉誼署理高級政府律師提供了一份詳細的書面陳詞，他表示在該 21 個月期間，上訴人所提供的四份警誡供詞不足以包含整個控方案情，例如：

The statements did not reveal whether any other undisclosed credit cards and victims were involved, the actual number of transactions and amounts involved, the actual number of cash overdrafts and amounts involved, etc.;
有沒有涉及其他未被透露的信用咭、其他受害人、實際簽賬次數及數額、實際現金透支額及次數等；

The police had to collect evidence from six credit card centres, and three of them supplied complete information, documents and/or statements only at a late stage;
警方需要向六間信用咭中心搜集証據，有一半的機構較遲才向警方提供齊全的資料、文件或口供；

It took time for the police to conduct investigations on and collect evidence from the shops where the transactions had been made in order to obtain particulars of the transactions.  Since as many as 19 shops were involved and some of them had relocated during the investigation period, the police needed time in locating them.  Furthermore, as the transactions were made quite some time ago, it took time for the shops to check the relevant records; and
警方需時向曾接受那些信用咭購物消費之商店進行調查及取証，以獲取有關交易的詳細資料，因涉及的商店眾多（19 家），其中一些已經在調查期間遷離原址，警方需時追查。另外，因交易已在相當時間之前進行，各商店需時翻查記錄；及

The police sought legal advice from the Department of Justice twice, namely on 17 February 2006 and 7 July 2006.
警方兩次從律政司取得法律意見，即 2006 年 2 月 17 日及 2006 年 7 月 7 日。

In our view, much as the police needed time to collect evidence, a delay of 21 months was still an inordinate one.  The offences admitted by the Appellant at the very beginning were exactly the same as those with which she was charged in the end, and no further charges were laid against her following police investigations.  In our judgment, the Respondent has failed to give good reasons for the delay.
本庭認為即使警方需要時間搜集証據，但 21 個月的延誤實在是一個極為嚴重的延誤。上訴人當初所承認的控罪亦是她最終被控的控罪。警方沒有在調查案件之後向她加控其他罪行。本庭認為答辯人未能合理地解釋延誤。

Where there has been a delay in prosecution, the sentencing court must take it into account.  In particular, where the defendant rehabilitated, resumed work or repaid debts during the period of delay, the court will consider reducing the term of imprisonment, passing a suspended sentence or imposing a punishment other than an immediate custodial sentence, such as a community service order.
法庭在量刑時必須考慮案件是否存在檢控延誤的情況，若有的話，特別是在延誤期間，被告人更新、重新投入工作或償還欠債，法庭是會考慮扣減其刑期或判處緩刑或其他非即時監禁的刑罰，如社會服務令。

Secretary for Justice v. Hui Siu Man [1999] 2 HKLRD 236 and HKSAR v. Chan Yuk Kwan CACC 26/2001 are two of the cases that illustrate the court’s approach to a delay in prosecution.  In Hui Siu Man, which also involved an offence of a breach of trust, there was a 12-month delay in prosecution.  The trial judge sentenced the defendant to 21 months’ imprisonment but suspended for 3 years, and this sentence was affirmed by the Court of Appeal.  In Chan Yuk Kwan, where prosecution was delayed for 18 months, the Court of Appeal arrived at the final sentence by taking a discount of 50% from the starting point.  See also HKSAR v. Chiu Peng [2001] 1 HKLRD 185.
Secretary for Justice v. Hui Siu Man (律政司司長訴許兆文 （譯音）1999 2 HKLRD 236) 及 HKSAR v. Chan Yuk Kwan (香港特區政府訴陳玉群（譯音）CACC 26/2001) 是兩宗法庭審理延誤檢控的案例。在許兆文 一案，案件涉及破壞誠信，但檢控延誤達 12 個月。原審法官判處被告人 21 個月監禁，緩刑三年。上訴法庭同意有關判決。在陳玉群 一案，檢控延誤達18 個月，上訴法庭將量刑基準扣減百分之五十作為最終刑期。另見：HKSAR v. Chiu Peng (香港特區政府訴趙朋（譯音）2001 1 HKLRD 185)。

In the present case, the sentence imposed by Deputy Judge Woodcock has not taken into account the delay in prosecution.
胡法官的量刑沒有考慮到有關的延誤。

Circumstances of the present case
本案的情況

Subsequent to her arrest, the Appellant not only paid off all outstanding debts, but was also employed by another company as a secretary between January 2005 and October 2006.  Following the sentence imposed by Deputy Judge Woodcock, the Appellant has to date been imprisoned for more than 8 months.  If she is good behaviour, she can expect to be released on 23 December of this year.  In light of the exceptional feature of the present case, namely the long and inordinate delay in prosecution, and taking into account that the Appellant rehabilitated, resumed work and repaid the debts during the period of delay, the sentence should be varied to enable the Appellant to be released immediately.
本案上訴人在被拘捕後不但償還了有關的欠款，更於 2005 年 1 月 至 2006 年 10 月期間受聘於另一間公司，任職秘書。根據胡法官的判決，上訴人至今已被監禁超過八個月，若她行為良好，她將會在本年 12 月 23 日被釋放。基於本案的特殊情況，即上述所說的頗長及嚴重的檢控延誤及上訴人在這段期間內更生、重新投入社會工作及償還欠債，法庭是應該更改刑期，讓上訴人獲得即時釋放。

Conclusion
總結

We allow the appeal and order that the Appellant be released forthwith.
本庭批准上訴，判上訴人即時釋放。

Mr. Ned Lai, Acting Senior Government Counsel, for the Respondent
答辯人：由律政司署理高級政府律師黎嘉誼代表。

The Appellant in person
申請人：無律師代表，親自出席。