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 Applicant was charged with one count of “Dealing with property known or believed to represent proceeds of an indictable offence”, contrary to section 25(1) and (3) of the Organized and Serious Crimes Ordinance, Cap. 455. After a trial before Deputy District Judge A. Wong (as he then was), the Applicant was convicted of the offence and sentenced to 2 years and 3 months imprisonment. She applies for leave to appeal against the conviction and the sentence.
申請人被控一項「處理已知道或相信為代表從可公訴罪行的得益的財產」罪，違反《有組織及嚴重罪行條例》(香港法例第 455 章) 第 25(1) 及 (3) 條。案件經區域法院暫委法官黃崇厚(當時官階)審理後，申請人被裁定罪名成立及被判入獄兩年三個月。申請人就定罪及刑期提出上訴許可申請。

The facts
案情

The Applicant is a 40-year-old woman and her former husband is Fok Chi Ho (transliteration).
申請人是一名 40 歲的女子。霍志豪是她的前夫。

On 19 April 2007, the Hong Kong Police Force was informed that Fok was arrested by Shenzhen Public Security Bureau for trafficking in dangerous drugs. On the same day, the Hong Kong Police Force went to the Applicant’s residence to conduct investigations.
2007 年 4 月 19 日，香港警方獲知霍志豪因販運毒品被深圳公安局拘捕。香港警方於同日到申請人的住所進行調查。

The Applicant had three bank accounts with the following banks:
申請人擁有三個銀行戶口：

Hongkong and Shanghai Banking Corporation (an individual account) (Account A);
香港滙豐銀行(個人名義)(戶口A)；

Hongkong and Shanghai Banking Corporation (a joint account in the names of the Applicant and her son) (Account B);
香港滙豐銀行(申請人與她的兒子聯名)(戶口B)；

Bank of China (an individual account) (Account C).
中國銀行(個人名義)(戶口C)。

On 16 April 2007, a sum of HK$2,500,000 was deposited into Account A. The Applicant admitted to the police that this sum was deposited by Fok.
2007 年 4 月 16 日，一筆 HK$2,500,000的款項被存入戶口A。申請人向警方承認這筆款項是由霍志豪存入的。

On 17 April 2007, the Applicant withdrew HK$300,000 and US$120,000 from Account A.
2007 年 4 月 17 日，申請人從戶口A提取了 HK$300,000及 US$120,000。

On 18 April 2007, the Applicant withdrew HK$20,000 from Account A.
2007 年 4 月 18 日，申請人從戶口A提取了 HK$20,000。

On 19 April 2007, the Applicant withdrew HK$800,000 from Account A. Pursuant to Fok’s instructions, the Applicant gave HK$800,000 and US$120,000 to Fok’s mother, and handed HK$300,000 to a male foreigner. She also brought HK$20,000 to Shenzhen for Fok.
2007 年 4 月 19 日，申請人從戶口A提取 HK$800,000。申請人指她遵照霍志豪的指示將HK$800,000及 US$120,000交給霍志豪的母親、將HK$300,000交給一名外籍男子及前往深圳將 HK$20,000交給霍志豪。

The particulars of the offence are that between 1 January 2005 and 19 April 2007, the Applicant dealt with a total of HK$4,205,925.30 through her three bank accounts. The Prosecution alleged that within the period of 28 months specified in the charge and in addition to the HK$2,500,000 mentioned in paragraph 5, other deposits in the total sum of HK$2,626,900.53 were paid into her three bank accounts respectively. During this period, withdrawals amounting to HK$2,178,959.95 were made. Excluding the Applicant’s salaries, loans and money she obtained from other sources during the period, for which explanations had been offered, a total of HK$1,705,925.30 was paid into her bank accounts. This sum and the aforesaid HK$2,500,000.00 constitute the basis of the present charge.
控罪指申請人在 2005 年 1 月 1 日至 2007 年 4 月 19 日期間利用她三個銀行戶口處理了共 HK$4,205,925.30的款項。控方指在涉及控罪的 28 個月內，除了上述第五段的 HK$2,500,000 外還有共HK$2,626,900.53的款項被分別存入申請人的三個戶口內，而在這段期間有HK$2,178,959.95 被提走了。撇除申請人在該段期間所獲得的薪金、借貸及其他來源已被解釋的款額，申請人的銀行戶口共有 HK$1,705,925.30 的入帳，該筆款項與上述的 HK$2,500,000.00構成了本控罪的基礎。

Since the Applicant was investigated by the police, she made 9 records of interview to the police to explain the sources of the deposits into her accounts and the whereabouts of the withdrawals. She said all monies were connected with Fok and she only acted upon his instructions to deal with the monies. She had no idea that the monies represented proceeds of Fok’s illegal activities.
申請人被警方調查後，分別在九份會面記錄中向警方解釋戶口各項存款與提款的來源及去向。申請人指有關款項都是與霍志豪有關的，她只是遵照霍志豪的指示去處理金錢。她不知道有關款項是霍志豪從事非法勾當得來的。

The Applicant’s defence
申請人的答辯

The Applicant gave evidence in her own defence and called a witness. She said she got married with Fok in Canada in 1989 and settled there after their marriage. They got divorced in 1993 and the Applicant returned to work in Hong Kong in 1994. In 1996, the Applicant went back to Canada to help Fok with his restaurant business. Their son was born in 1997.
申請人亦有作供自辯及傳召證人。申請人指她與霍志豪於 1989 年在加拿大結婚，婚後定居加拿大。兩人於 1993 年離婚。申請人於 1994 年返回香港工作。1996 年，申請人返回加拿大協助霍志豪經營酒樓生意。1997 年申請人為霍志豪產下一名兒子。

In 1998, Fok closed his restaurant business and the Applicant then returned to work in Hong Kong. Later Fok also returned to Hong Kong but they lived separately. Their son was looked after by Fok. The Applicant brought the son back to her home in 1999 to take care of him. Between 1999 and 2005, Fok returned to Canada again to run his restaurant business. In early 2005, the Applicant knew that Fok had come back to Hong Kong. Though they did not live together, they met at least twice a month as the Applicant wanted Fok to see his son.
1998 年，霍志豪結束加拿大的酒樓生意，之後申請人就返回香港工作。霍志豪其後也返回香港，但兩人分開居住，他們的兒子就由霍志豪照顧。申請人於 1999 年將兒子接回自己家中照顧。在 1999 年至 2005 年期間，霍志豪再回加拿大經營酒樓生意。到了 2005 年初，申請人獲知霍志豪返回香港。雖然兩人不是一起居住，但申請人因要讓霍志豪與兒子見面，因而兩人每個月至少會見面兩次。

The Applicant claimed that she did not know what Fok did for a living after his return to Hong Kong, except that she heard that he was engaged in investment business. The Applicant said that as Fok had to travel frequently to and fro Shenzhen, Macau and Hong Kong, she had to bring her son to different places to meet Fok. She witnessed Fok winning HK$600,000 in a Macau casino and heard him making money from soccer gambling.
申請人聲稱她不知道霍志豪回港後幹甚麼工作，只聽聞過他做投資生意。申請人指霍志豪經常穿梭深圳、澳門和香港三地，她需要帶兒子到不同的地方與霍志豪見面。她曾目睹霍志豪在澳門賭場贏了 HK$600,000和也聽聞他賭波贏了錢。

In October 2005, the Applicant demanded that Fok should take up his responsibility as a father and assist her to buy a residential property for her and her son. Fok agreed to it. The Applicant bought a residential property worth about HK$2,100,000. Fok only agreed to pay 5% of the property price. The Applicant bought the property with the money Fok gave her and the mortgage loan she obtained from a bank. The monthly installment was HK$13,800. In 2005 and 2006, in an attempt to increase her odds of getting a property mortgage loan from the bank, she made a few substantial deposits into the account in order to increase the credit balance in her bank account. Later, the Applicant wanted to buy another property. But she was unable to complete the transaction and suffered the loss of a down payment of HK$200,000. During the period, Fok occasionally gave the Applicant HK$10,000 to HK$20,000 as household expenses.
2005 年 10 月，申請人要求霍志豪負上父親的責任，協助她購買居所給她和兒子居住。霍志豪同意。申請人購買了一所價值約 HK$2,100,000的住宅。霍志豪只答應付出該樓價的5%，申請人就以霍志豪給她的款項和銀行的按揭貸款來購入該單位，每月供款 HK$13,800。她在2005 年至 2006 年期間為了提高向銀行申請樓宇按揭的機會就進行了數次的大額存款以祈增加戶口的存款數目。之後，申請人又打算購買另一個單位，但該項交易失敗，令她損失逾 HK$200,000的訂金。在這段期間，霍志豪間中會給申請人 HK$10,000 至 HK$20,000 作為家用。

The Applicant alleged that Fok started doing his own business when he was still a student. He had borrowed large sums of money from the Applicant and her relatives. The loans remained outstanding up to the present. In 1996, Fok put forward the proposal of running a restaurant in Canada. The Applicant and her family raised a capital of HK$1,000,000 in total and loaned it to Fok. However the restaurant was closed down in 1997. In 2003, Fok became the shareholder of three restaurants in Canada.
申請人指霍志豪在讀書時已經開始做生意。他曾向申請人和她的親屬借下巨款，至今仍未全部清還。1996 年，霍志豪提出在加拿大經營酒樓生意的計劃。申請人和她的家人共籌集了 逾HK$1,000,000的資金借給霍志豪，但該間酒樓於 1997 年結業。2003 年，霍志豪再成為加拿大三間酒樓的股東。

The Applicant emphasized in her evidence that she did not know the amounts were connected with illegal activities and she did not know that Fok had been arrested until the police went up to her premises. The Applicant admitted that most of the cash she withdrew from the bank accounts was handed over to Fok. In other words a substantial part of the deposits went eventually to Fok. As for the transfers, some were made to the account of the Applicant’s mother, some were to the personal accounts of the Applicant, and a few were made to the cousin of Fok and his current girlfriend. As for the majority of the remaining transfers, the payees of which remained unknown.
申請人的證供強調她不知道有關的款項是與非法勾當有關的，她只是當警方登門時才知道霍志豪已被拘捕。申請人承認她從銀行戶口提取的大部分現金都是交給霍志豪，即存入的款項中不少是落入霍志豪的手中。至於轉帳交易，部分轉帳到申請人的母親的戶口、部分就轉帳到申請人自己的戶口、數次轉帳到霍志豪的表弟和他的現任女友的戶口，而其餘大部分轉帳的收款人是誰就不得而知。

Legal principles
法律原則

Neither the Prosecution nor the Defence disputed the legal principles relating to the charge. The Applicant’s acts in dealing with the monies clearly fulfilled the actus rea of “dealing” as alleged in the charge. The crux of the matter was the “mens rea” of the charge. It is stated therein that the Applicant “knew or had reasonable grounds to believe” that the monies in question represented proceeds of an indictable offence. In proving the charge, the prosecution did not have to prove that the property in question was in fact the proceeds of an indictable offence. See: Oei Hengky Wiryo v. HKSAR (No. 2) [2007] 1 HKLRD 568. The Prosecution in the present case did not adduce any evidence in this regard. As for the mens rea, the Prosecution’s case was not that the Applicant “knew” that the property was the proceeds of an indictable offence, but that the Applicant had “reasonable grounds to believe” the property to be the proceeds of an indictable offence.
控辯雙方對控罪的法律原則沒有爭議。申請人處理金錢的行為明顯符合控罪所指「處理」的犯罪行為。本案的重點是控罪的「犯罪意圖」。控罪是指申請人「知道或有合理理由相信」有關的款項是從可公訴罪行的得益的財產。控方在舉證時是無須證明有關的財產確實是從可公訴罪行的得益，見：Oei Hengky Wiryo v. HKSAR (No. 2) [2007] 1 HKLRD 568。本案控方亦沒有提供這一方面的證據。關於犯罪意圖控方不是指申請人「知道」有關的財產是從可公訴罪行獲得的利益而是說申請人有「合理理由相信」有關的款項是從可公訴的罪行獲得的得益。

When the court determines whether a defendant has the “reasonable grounds to believe”, it has to take into account two factors. The first factor is an objective one, namely whether a reasonable person with common sense and in his right thinking (“a reasonable man”) will think that the circumstances suffice to cause him to believe that the money is the proceeds of an indictable offence. The second factor is a subjective one, namely whether the defendant knows the existence of those circumstances that will cause him to believe that the money is the proceeds of an indictable offence.
在決定一名被告人是否有「合理的理由相信」這個概念時法庭是需要考慮兩點。第一點是客觀的，即一名具常識、有情理和正當思維的人士(‘合理人’)會否認為有關的情況是足以令人相信有關款項是從可公訴罪行的得益。第二點是主觀的，即被告人是否知道有關情況的存在，致令他相信有關的款項是從可公訴罪行的得益。

If the Prosecution can prove the above two factors, the court is entitled to find that the defendant has the requisite mens rea for the charge. The Prosecution does not have to prove that the defendant “actually believes” that the money involved represents the proceeds of an indictable offence. See HKSAR v. Ma Hu Jiang [2007] 4 HKLRD 285. The court described the legal provision as “harsh”.
只要控方能夠證實這兩點，法庭便可以裁定被告人是有該控罪的犯罪意圖，控方是無須證明被告人是「確實相信」有關的款項是從可公訴罪行的得益，見：HKSAR v. Ma Hu Jiang [2007] 4 HKLRD 285。法庭以「嚴厲」這形容詞來描述這條法例。

Reasons of findings
裁決原因

Deputy Judge Wong found the Applicant guilty of the charge for the following reasons:
黃法官裁定申請人罪名成立的原因如下：

The Applicant dealt with Fok’s money transactions through her own personal bank accounts. Under the circumstances, why did Fok not open his own personal bank account? Any normal person in this contemporary world who needs to deal with a lot of money transactions and chooses not to open a bank account though he is in business, the reason must be to conceal his money transactions and how much money he has. A reasonable man will surely believe that the monies are the proceeds of an indictable offence.
申請人以自己的銀行戶口處理與霍志豪有關的金錢往來，在這情況下，為何霍志豪本人不開設一個銀行戶口？一個正當的人在現代社會生活需要處理那麼多金錢，而且還是在做生意的情況下不開設戶口一定是為了不讓別人知道他的金錢往來及存有多少金錢。一名合理人必會相信這原因是金錢源自可公訴罪行。

It will be highly unconvincing to suggest that the reason for not opening a bank account is due to the type of business involved, such as a restaurant business requiring its transactions to be settled in cash or the avoidance of debt collection by banks.
若說不開設戶口的原因是因為做某類生意，例如酒樓需要以現金來交易或為免銀行追債等都是極之牽強的藉口。

The lending of blank cheques by the Applicant for Fok’s use would also cause a reasonable man to believe that the monies relating to the cheques were proceeds of an indictable offence.
申請人借空白支票給霍志豪使用同樣會令一名合理人相信有關支票涉及的款額是源自可公訴罪行。

The Applicant claimed that she deposited large sums of money into the account to facilitate her loan application when she was buying a property. Her claim was unbelievable because the sums of money were withdrawn within a short of period which contradicted her purpose of making the deposits.
申請人聲稱在購買樓宇期間把大量金錢存入戶口的原因是方便貸款之說亦不可信，因為這些款項在很短時間內已被提走。這與她存入款項的目的不符。

The Applicant dealt with the monies in an irregular way. She neither withdrew cash in one go nor withdrew at the upper limit allowed for a single transaction. This showed that the reason why she had to make numerous withdrawals was not because of the regulatory restrictions imposed on her. Moreover, if the monies were simply to be handed back to Fok, why should she make the withdrawals and transfers in such a circuitous way?
申請人處理金錢的手法異常，她並非一次過提取現金，而且每次提款也未達提款上限，這顯示她多次提款並非受規則所限。另外，若果這些款項只是交回給霍志豪，為何要以迂迴曲折的手法來提款及轉帳呢?

If a reasonable man believes that Fok has no bank account of his own, he will surely have reason to believe that the monies dealt with by the Applicant were proceeds of an indictable offence. If a reasonable man does not think that Fok has no bank account, then the reason why Fok did not use his own account to deal with the monies will lead the reasonable man to have reason to believe that Fok was trying to conceal the proceeds of an indictable offence. Deputy Judge Wong found that the fact that the Applicant followed Fok’s instructions to remit money to his ex-employee in August 2005 showed that she at that moment already had the belief that Fok lacked a bank account.
如果一名合理人相信霍志豪是沒有銀行戶口的話，他一定有理由相信申請人所處理的金錢是來自可公訴罪行的得益。若果一名合理人不認為霍志豪是沒有銀行戶口的，那麼霍志豪不用自己的戶口來處理金錢的原因是會令這名合理人有理由相信他是為了掩飾所處理的可公訴罪行得益。黃法官裁定申請人在 2005 年 8 月遵照霍志豪的指示安排匯款給他的一名前僱員這一事就顯示她在那刻已有霍志豪沒有銀行戶口這個信念。

Though the Applicant said that Fok was “poor one moment, rich the next” and that he would go his own way and behave unexpectedly, the obscure ways in which she dealt with large sums of money and the great risks that she took would lead a reasonable man to have the above belief. Even if Fok often had ups and downs in his finances, it would not stop a reasonable man from having some doubts on the way he made money.
雖然申請人說霍志豪「三更窮，五更富」，獨行獨斷，處事出人意表，但她以這樣隱晦手法和冒着這麼大的風險去處理巨額存款必然會令一名合理人產生上述的信念。就算霍志豪的經濟狀況經常大起大落，一名合理人對他的賺錢手法不會完全不產生懷疑的。

Given the Applicant’s academic qualifications, experience and her relationship with Fok, she knew and realized that the amounts involved were proceeds of an indictable offence.
以申請人的學識、閱歷，以及她和霍志豪的關係，她是知道及意識到有關的款項是源自可公訴罪行的得益。

Grounds of appeal
上訴理由

Evidence of the Defence Witness
辯方證人的證供

One of the amended grounds of appeal was that Deputy Judge Wong failed to consider the evidence of the first defence witness.
經修訂的其中一項上訴理由指黃法官在作出有關裁決時沒有考慮辯方第一證人的證據。

That witness was the younger sister of Fok who said in her testimony that Fok showed an interest in doing business since he was young and was so heavily in debts that he had to ask others to repay the debts for him. From 1996 to 1999, he borrowed money from his family members and he owed others HK$200,000. His indebtedness caused his family to be disturbed by a debt-collecting company. The Defence Witness said that in the early days Fok had a bank account in Canada but it was later cancelled. Transactions in his restaurant business were mostly settled in cash. In 2003 Fok invited his family members to a sightseeing trip in Canada and paid for all the expenses. He was then running three restaurants in Canada and appeared to lead an affluent life. In January 2003, Fok repaid HK$50,000 to her. But he later requested her to do shopping for him with the money and said that he would repay her in the future. In the same year, a sum of HK$201,000 was deposited into the bank account of the Defence Witness. She withdrew this sum of money and handed it to Fok. In February the same year, a sum of HK$260,000 was remitted into her account and Fok went to the bank with her to withdraw this sum of money. Fok told her that it was the capital for the restaurant and was remitted to him by his business partner. Later when Fok’s restaurant business faced a downturn, he borrowed money from his family. In November 2004, the Defence Witness and his elder brother remitted HK$160,000 to Fok. Meanwhile the Applicant also deposited HK$130,000 into the bank account of the Defence Witness and requested her to remit the money to Fok.  Later Fok frequently borrowed small amounts of money from his family. Fok owed his mother as much as HK$300,000. Since 2005, Fok only occasionally borrowed a few thousand dollars from his family. In 2007, his family made repayments to financial companies for him. Her mother repaid HK$110,000 for him this year.
該證人是霍志豪的妹妹。她的證供說霍志豪在年輕時已經有興趣做生意及欠下巨款，並需要他人代他償還。在 1996 至 1999 年間他曾經向家人借錢及欠別人HK$200,000，致令家人受到收數公司的滋擾。辯方證人說霍志豪在加拿大早期是有銀行戶口的，但後來取消了戶口。他經營酒樓生意多以現金作交易。2003 年霍志豪邀請家人到加拿大遊玩，全部費用由他支付。當時他在加拿大經營三間酒樓，看來生活富裕。在 2003 年 1 月霍志豪曾償還 HK$50,000給她，但後來又要求她以這筆錢代他購物，說以後再還錢給她。同年有一筆 HK$201,000的金錢被存入辯方證人的戶口內，她提取了這筆款項，然後交給霍志豪。同年2 月，一筆 HK$260,000 的匯款存入她戶口，霍志豪和她一起到銀行提取這筆款項。霍志豪告訴她這筆款項是酒樓的資金，是他的生意拍檔匯給他的。後來霍志豪的酒樓生意不好，他向家人借錢。2004 年 11 月辯方證人和兄長將 HK$160,000 匯給霍志豪，當時申請人也將 HK$130,000 存入辯方證人的戶口，要求她將有關款項匯給霍志豪。之後，霍志豪經常向家人借小額金錢。霍志豪欠她母親的款項達 HK$300,000。2005 年之後，霍志豪只是間中向家人借數千元。在 2007 年，家人替他向財務公司還債。這年，她的母親替他償還了 HK$110,000。

Mr. Joseph Tse S.C. leading Mr. Osmond Lam represented the Applicant and they submitted that when the court considered the belief of a reasonable man, it should at the same time take into account the evidence of the Defence Witness. The Applicant’s Counsel submitted that the status and evidence of this witness was similar to that of the Applicant; both were not clear about Fok’s affairs. She said in her evidence that she had dealt with two large sums of money for Fok through her own bank accounts in Hong Kong. She knew that Fok had in early years set up a bank account in Canada but it was later cancelled. She also knew that the transactions of his restaurant business were settled mostly in cash and stated that she had no reason to suspect that Fok had cheated her or that he had been involved in illegal activities. The Applicant’s Counsel submitted that Deputy Judge Wong did not cite the evidence of this witness in his analysis of the evidence when determining the case.
代表申請人的謝華淵資深大律師及林國輝大律師指法庭在考慮一名合理人的信念時必須同時考慮辯方證人的證供。申請人律師指這名證人的身份及證供與申請人相約，她和申請人一樣對霍志豪的事不甚清楚。她供稱曾在香港透過自己的銀行戶口代霍志豪處理過兩筆巨額款項，她知道霍志豪早年在加拿大有開設銀行戶口，但後來取消了戶口，她知道他經營酒樓多以現金作交易，她說她沒有理由懷疑霍志豪欺騙她或他從事不法的勾當。申請人律師指黃法官在分析證供以作出裁決時並沒有引用這名證人的證供。

When a reasonable man considers the belief in question, the Defence Witness’s and the Applicant’s similar evidence in this regard should surely be taken into account. But be that as it may, this Court does not consider that it is a sufficient ground of appeal. The reason is that the crux of the matter hinged on the frequent deposits and withdrawals of large sums of money into and from the Applicant’s accounts since April 2005. The irregular transactions were different from what occurred in 2003 when the Defence Witness allowed Fok to use her bank account.  A reasonable man could rely on the transactions after 2005 to determine the mens rea in question.
一名合理人在考慮有關的信念時當然是要考慮辯方證人與申請人所作出的相約證供，但就算如此，本庭也不認為這是一項充分的上訴理由，原因是本案的關鍵在於自 2005 年 4 月後申請人的銀行戶口有大額款項頻密地進行提存。這異常的交易情況有別於辯方證人在 2003 年讓霍志豪使用她的戶口時的情況。合理人是可以根據2005年之後的交易情況來裁定有關的犯罪意圖。

Applicant’s records of interview
申請人的會面記錄

In addition, the Applicant argued that Deputy Judge Wong had not dealt with the evidence she gave in the 9th Record of Interview where she claimed that she had helped Fok to deal with his monies in the 1990’s.
另外，申請人指黃法官亦沒有處理申請人在第九份的會面記錄中聲稱她曾在九十年代協助霍志豪處理金錢這項證供。

The Applicant alleged in her 9th Record of Interview that since the 1990’s (i.e. between 1996 and 1998), she knew that Fok began to engage in business. She had started to help him to deal with his monies since then. Therefore when Fok asked her to deal with the amounts in the present case between 2005 and 2007, she did not notice anything wrong.
申請人在第九份會面記錄中指她自九十年代開始(即 1996年至1998年期間)知道霍志豪開始做生意，當時她已經開始協助他處理金錢，因此，在 2005 年至 2007 年期間，當霍志豪叫她處理涉案款項時她不覺得有甚麼問題。

This Court does not consider that it is a valid ground of appeal either. The way that the Applicant helped Fok to deal with his monies included signing blank cheques for him in advance. But she admitted that in the 1990’s she never handed large sums of cash to strangers nor sent large amounts of remittance to strangers in other countries. She admitted that in between 2005 and 2007, she acted in accordance with Fok’s instructions to hand large sums of cash to strangers, to make out cheques for him in advance and to send remittances on numerous occasions to foreign countries to people unknown to her. She thought the amounts involved came from “capital raising, loans from friends, investments or gambling” by Fok. She never asked Fok why so much money was deposited into her accounts and why she had to help him to deal with the amounts until the aforesaid HK$2,500,000 was deposited into her bank accounts. She then questioned Fok why he had such a large amount of money, but Fok told her that it was his own money. She did not pursue the matter and thought it was money he obtained from “capital raising, loans, investments or gambling”.
本庭亦不認為這是一項充分的上訴訴理由。申請人協助霍志豪處理金錢的方式包括預早簽發空白支票給他，但她承認在九十年代時不曾將大量的現金交給陌生人或者匯款到其他國家給陌生人。她承認在 2005 至 2007 年期間，她按霍志豪的指示將大量現金交給陌生人、預早開支票給他及多次匯款到外國給不認識的人士。她以為有關款項是來自霍志豪「集資、或者向朋友借、或者投資、或者是賭錢而獲得的」。她一直都沒有問霍志豪何以會有那麼多錢存入她的戶口及為何要她協助他處理有關款項，直至她的戶口被存入上述的HK$2,500,000，她才質問霍志豪為何他會有這筆巨款，但霍志豪告訴她這筆錢是他自己的，她就再沒有追問下去，她以為這筆錢是他集資、借款、投資或者賭錢得來的。

When the Applicant gave evidence, she did not reiterate the point that she had helped Fok to deal with his monies since the 1990’s, and so when Fok asked her to help him to deal with his monies in 2005 to 2007, she did not find that there was anything wrong with what he said. It is not necessary for this Court to discuss whether this claim by the Applicant in her Record of Interview was admissible evidence or not because even if it was accepted and taken into account, it would not affect the safety of the conviction. As said above, the Applicant admitted in that Record of Interview of hers that the amounts that she had dealt with in the past were not as much as HK$4,200,000 that she dealt with between 2005 and 2007, and the number of deposits and withdrawals made was not so numerous either.
申請人在作供時沒有重複她在九十年已經開始替霍志豪處理金錢，以致在 2005 年至 2007 年當霍志豪再叫她替他處理金錢時，她不覺有甚麼問題這番話。本庭不需要討論申請人在會面記錄所說的這一番話可否被接納為證據，因為就算法庭接納及考慮這項證據也不會影響定罪的穩妥性，因為正如上文所說，申請人在該會面記錄內承認她以前所處理的金錢並不如 2005 年至 2007 年期間所處理達HK$4,200,000如此大的款額和提存的次數如此多。

Gambling gains
賭款

Moreover, the Applicant’s Counsel submitted that Deputy Judge Wong had erred when he refused to accept the Applicant’s evidence that she had seen Fok winning HK$600,000 in a Macau casino. This evidence was not disputed by the Prosecution at trial and the Prosecution did not cross-examine the Applicant on this either. This Court thinks that the conviction would not be rendered less safe by it because it only served to prove that Fok had occasionally won large sums of money. But it could not explain why he had to make use of the Applicant’s accounts to deal with the money in such a circuitous way.
另外，申請人律師指黃法官拒絕接納申請人曾見過霍志豪在澳門賭場贏得的 HK$600,000的證供是錯誤的。這項證供在原審時並沒有被控方挑戰，而控方亦沒有就這點盤問過申請人。本庭亦不認為這一點會削弱定罪的穩妥性，原因是這一點只可以證明霍志豪間中會獲得巨款，但這不能解釋他為何需要利用申請人的戶口及迂迴曲折的手法處理這些金錢。

Facts as a whole
綜觀案情

Taking the facts in the case as a whole, this Court considers that Deputy Judge Wong made the right inference. We consider that the strongest evidence in the case that would lead a reasonable man to conclude that the amounts in question were the proceeds of an indictable offence, and that would lead the Applicant to have such belief, was the irregular money transactions in her three bank accounts in that large sums of money were frequently deposited into or withdrawn from those accounts. The Applicant allowed Fok to make use of her three bank accounts to deal with his money transactions without even asking why. Within the relevant period, roughly a total of 70 transactions took place in Account A where a total of HK$4,200,000 was deposited into account A in cash, by cheques or ATM transfers. More than half of this amount was withdrawn in cash. During the aforesaid period, roughly 30 deposits were made into Account B, totaling HK$310,000, and then roughly 50 withdrawals were made to withdraw more than HK$280,000 of this amount. Most of the deposits and withdrawals were made in cash. As for Account C, more than HK$700,000 was deposited into the account and 90% of which was cash deposit. The majority part of this amount was withdrawn by cash cheques or transfers. Frequent deposits of large amounts of money, making deposits and withdrawals in a circuitous way, and regularly making deposits and withdrawals in cash were not normal business practices. There is a world of difference in what the Applicant and the Defence Witness did in the early years to help Fok to deal with the money transactions of his restaurant business and what was done to deal with the money over those 28 months. This Court also considers that the way she dealt with the HK$2,500,000, namely to hand HK$300,000 in cash to a stranger, was utterly against common sense. To do so would be troublesome, risky, and far from open and aboveboard. Furthermore, it was unreasonable, troublesome and risky for her to hand HK$800,000 and US$120,000 to Fok’s mother. The way she dealt with the amounts on both occasions seemed mysterious.
本庭認為綜觀案情，黃法官所作出的推斷是正確的。本庭認為案件最強力的證據讓一名合理人得出有關處理的款項是從可公訴罪行所得的利益的信念，而申請人亦是存有這個信念是因為她的三個銀行戶口內有巨額款項頻密地被提存及異常處理金錢的手法。申請人讓霍志豪運用她的三個銀行戶口來處理他的金錢交易，但卻沒有質疑他為何這樣做。戶口A在有關期間內總共約有70次分別以現金、支票及ATM 轉帳形式的存款，款額達約HK$4,200,000，這筆款額中超過一半是被人以現金形式提走。在上述期間戶口B約有30次存款，款額達HK$310,000.00，當中超過 HK$280,000約分50次被提走了，而大多數的存款及提款都是以現金形式進行的。至於戶口C，超過 HK$700,000 被存入該戶口，其中90%是以現金形式存入的，當中大多數的款項是以現金支票及轉帳形式被提走。那麼頻密的巨額存款、以迂迴曲折的手法處理提存款項及經常以現金存款和提款不是一般的正常商業交易的手法。申請人和辯方證人早年替霍志豪處理其酒樓生意的金錢與在這28個月內所處理的款額有天淵之別。本庭亦認為她處理那HK$2,500,000 的手法，即將HK$300,000 現金交給一名陌生人是完全超乎常理的，這樣做既麻煩、風險大，又不光明磊落。另外，她將 HK$800,000 及 US$120,000 交給霍志豪母親亦是不合常理、麻煩及風險大的做法。這兩次處理金錢的手法都帶有神秘色彩。

This Court is of the view that the above evidence would lead a reasonable man to believe that the amounts involved were proceeds of an indictable offence. The Applicant dealt with the transactions in person, so the circumstances involved would cause her to believe that the amounts were proceeds of an indictable offence. She was merely refusing to accept the reality when she denied her knowledge.
本庭認為這些證據是會令一名合理人相信有關的款項是從可公訴罪行所得來的，申請人親自處理這些交易，有關的情況亦會令她相信這些款項源自可公訴罪行的得益，她否認知情只不過是拒絕接受事實而已。

For the aforesaid reasons, this Court refuses her application for leave to appeal against conviction.
基於上述原因，本庭駁回針對定罪的上訴許可申請。

Appeal against sentence
刑期上訴

Deputy Judge Wong took 3 years imprisonment as the sentencing starting point. Having considered the Applicant’s personal background and other facts such as that she was a first offender and that she had been troubled by the offence for 2 years, Deputy Judge Wong gave her a discount of 9 months. She was eventually sentenced to 2 years and 3 months.
黃法官將刑期基準定為三年監禁，他在考慮過申請人的個人背景、初犯、案件的背景及申請人受控罪困擾了兩年之久等因素後給予她九個月的扣減，最終刑期為兩年三個月監禁。

After the appeal hearing, this Court allows the Applicant’s application for leave to appeal against her sentence. Taking this application as the formal appeal, this Court orders the immediate release of the Applicant. The difference between the present case and an ordinary case of dealing with property that represents the proceeds of an indictable offence is that, as Deputy Judge Wong agreed, there was no evidence in the present case to suggest that the Applicant made a profit by dealing with the monies in question. Deputy Judge Wong thought that the Applicant agreed to deal with the monies mainly because of her relationship with Fok. She did so to protect the interests of their 12-year-old son. Deputy Judge Wong also accepted that although the Applicant used a small portion of the money deposited into her accounts for her own purpose and towards the purchase of a residential property, she did not do so with the intention to make a profit. The emphasis was on Fok’s responsibility to provide for the Applicant and their son, he being her ex-husband and the father of the son. The Applicant did not go through complicated procedures to deal with the remittances on her own accord. She merely acted upon Fok’s instructions. Deputy Judge Wong thought that this offence was an isolated incident and that the Applicant had acted out of her character.
本庭在上訴聆訊後批准申請人針對刑期的上訴許可申請，視申請為正式上訴及命令申請人即時釋放。本案與一般處理可公訴罪行得益的財產的不同之處是黃法官同意本案沒有證據顯示申請人在處理這些款項時從中獲利。黃法官認為申請人同意處理這些款項的主要原因是為了維持與霍志豪的關係，她這樣做是為了保障兩人十二歲的兒子的利益。黃法官亦接納申請人雖然為了自己及購買居所動用了少部分被存入她戶口的款項，但她這樣做並不是出於從中獲利的意圖。這重點在於霍志豪身為申請人的前夫及兩人所生的兒子的父親是有責任供養他們的。申請人沒有主動以複雜的程序來處理有關匯款，她只是遵照霍志豪的指示行事。黃法官認為申請人這次犯案是偶然及與她本來的性格不符。

In view of the special circumstances in the present case, this Court considers that the Applicant should be given a higher discount in terms of her sentence.
本庭認為基於這些特殊因素，法庭是可以給予申請人較高的刑期扣減。

Moreover, another mitigation factor that will allow this Court to give her a further discount is that although the Applicant did not plead guilty to the charge, she co-operated fully with the police since the police took over the case. When the police asked her to provide information, she immediately provided them with information and gave a total of 9 Records of Interviews to the police. In fact, the evidence that the Prosecution adduced against the Applicant came mostly from the information she had given to the police, and such information also formed the basis for the court’s determination on her mens rea.
另外，本庭認為可以再給予刑期扣減的求情因素是申請人雖然沒有認罪，但自從警方介入事件後，她充分與警方合作，當警方要求她提供資料時她亦即時向他們提供資料及一共提供了九份會面記錄予警方。其實這次控方針對申請人的證供大部分是來自申請人向警方提供的資料，而法庭是使用這些資料來考慮申請人有沒有犯罪意圖。

In view of the special circumstances in the present case, this Court considers that the appropriate sentence should be imprisonment for about a year. On the day of hearing, the Applicant has served about 9 months imprisonment, and she is entitled to remission of sentence on the basis that she has behaved properly. In other words, she has served the 12 months term and this Court orders her immediate release accordingly.
基於本案特殊的因素，本庭認為適當的刑期是約一年的監禁。申請人在聆訊當日已經服刑約九個月，加上若申請人行為良好，她是會獲得假釋的，這即是她已服滿約十二個月的刑期，本庭因此命令申請人即時釋放。

Mr. William Tam, Senior Assistant Director of Public Prosecutions, Department of Justice, for the Respondent.
答辯人：由律政司高級助理刑事檢控專員譚耀豪代表。

Mr. Joseph Tse S.C. leading Mr. Osmond Lam, instructed by the Tong Kan & Co., for the Applicant.
申請人：由簡松年律師行轉聘謝華淵資深大律師及林國輝大律師代表。