Hon Yuen JA (giving the Judgment of the Court):
高等法院上訴法庭法官袁家寧頒發上訴法庭判案書:

The two applicants in DCCC 755/2012 were charged with one count of “conspiracy to offer advantages to an agent”, contrary to section 9(2)(b) of the Prevention of Bribery Ordinance, Cap. 201 (“PBO”) and section 159A of the Crimes Ordinance, Cap. 200.
兩名申請人在DCCC755/2012案 ，均被控一項 “串謀向代理人提供利益” 罪，違反香港法例第201章《防止賄賂條例》第9(2)(b)條及第200章《刑事罪行條例》第159A條。

They were convicted by District Judge Sham on 2 January 2013. The judge sentenced each of them to 28 months’ imprisonment.
2013年 1 月2日, 區域法院沈小民法官裁定兩名申請人罪名成立。沈法官判處各申請人監禁28個月。

The two applicants apply for leave to appeal the convictions. The 1st applicant initially also applied for leave to appeal his sentence but subsequently abandoned the application.
兩名申請人申請許可，就定罪提出上訴，第一申請人原本亦申請就刑期提出上訴，但後來放棄了就刑期的上訴申請。

Background
背景

The two applicants were the persons-in-charge of “Sunshine Traffic Engineering and Contractors Company Limited” (“STE”). STE was a sub-contractor of a project “12/WSD/06”, the main contractor of which was “China National Chemical Engineering Hongkong Limited” (“CNCHK”). Mr Tai Kee-cheong, Eric (“Tai”) was an assistant project manager at CNCHK.
兩名申請人為一間名為 “新輝交通工程及建築有限公司”(以下簡稱“新輝”)的負責人。“新輝”是一項 “12/WSD/06”工程的二判，大判是 “中國化學工程香港有限公司” (以下簡稱“中化”)。“中化” 的助理項目經理是戴既昌 (以下簡稱“戴”)。

The two applicants were charged with offering bribes to Tai in the total sum of $990,000, consisting of monthly payments of $30,000, for three years between July 2007 and January 2011, for the purpose of making STE’s work smoother.
兩名申請人被控由2007年7月至2011年1月三年內，向“戴”提供每月$30,000， 一共$990,000賄款，讓“新輝”工作順利一些。

There are two more points to be noted about the background of the 2nd applicant. First, throughout the said period he was a signatory to STE’s bank account, although there was a time when he was neither a director nor a shareholder of STE. Second, during that period, with knowledge of his connection with STE, CNCHK hired him as Chief Supervisor of the site.
有關第二申請人的背景，還要提出兩點。首先，在該段時間內，有一段時間他不是“新輝”的董事或股東，但他整段時間都是“新輝”的銀行戶口的簽署人。另外，在該段時間內，“中化”在知道他與“新輝”的關係下，聘請了他為地盤總監。

Facts of the case
案情

According to the prosecution, on 9 March 2011, the two applicants approached the ICAC on their own initiative and complained to an officer on duty named Fong (PW1) that Tai had cheated them and solicited advantage from them.
控方指出，在2011年3月9日，兩名申請人主動到廉政公署，向當值的方主任 (PW1) 投訴 “戴”欺騙他們及向他們索取利益。

At trial, in advancing its case, the prosecution relied on what the applicants had told PW1 in their complaint (“words of complaint”) and records of their subsequent video-recorded interviews under caution.
審訊時，控方便是依賴他們投訴時向PW1所說的話 (以下簡稱“投訴說話”)，與及他們其後在警誡下的錄影會面記錄，提出控告。

The trial judge ruled that the records of the video-recorded interviews were inadmissible because in the interviews the ICAC officers had mixed up the applicants’ capacity as complainants and suspects. However, the judge ruled that the words of complaint were admissible and those words showed that the applicants had committed the offence of “conspiracy to offer advantages to an agent”.
原審法官裁定錄影會面記錄不應呈堂，理由是廉署人員在該會面中，混淆了申請人的投訴人與及疑犯的身份。但法官裁定“投訴說話”可作為呈堂證供，而該些說話顯示兩人干犯了“串謀向代理人提供利益” 罪。

The two applicants’ words of complaint, as repeated by PW1, were divided into the following three parts at trial:
PW1重述兩名申請人的“投訴說話”，在原審時被分為三部份，如下:

Part I
第一部份

“When the contract was first awarded, namely, in (20)07 when the contract of the Water Supplies Department was awarded, Mr Tai, an assistant project manager at CNCHK, received from them a sum of $30,000 per month, in cash for the first few months. (This) could make the work smoother.”
「初初得到這份合約的時候，即07年得到呢個水務署的contract， 中化的assistant project manager 戴先生向他們收受每月3萬蚊嘅錢，頭幾個月係畀現金佢， 可令工作順利啲」。

Part II
第二部份

“They were shareholders and directors of STE. Since CNCHK was the main contractor of STE (and) Mr Tai was the assistant project manager of the main contractor, he was given $30,000 per month. Cash was given during the first few months. Thereafter, at Mr Tai’s request, $30,000 was deposited into the account of one of Mr Tai’s companies, namely, Kei Cheong (Engineering) Company. It was said that (this) could help make their work smoother.”
「他們是新輝的股東及董事，因為中化是新輝的大判，戴先生是大判的assistant project manager，每月給予他3萬蚊，頭嗰幾個月就畀現金，之後就應戴生要求，將3萬蚊嘅錢入落戴生其中一間公司，其昌公司的戶口，說可幫助他們工作順利的。」

Part III
第三部份

“Towards the end of 2010, Mr Tai requested that 30 per cent of STE’s shares be transferred to him. The transfer was made, the reason being to help them obtain project payments a bit more smoothly. ”
「到2010年尾的時候，戴生要求將新輝30 per cent 嘅 shares 轉給戴先生，並且有轉到，原因是可以幫助他們順利小小取得工程款項。」

Verdict at trial
原審裁決

At trial, the defence took the view that having heard Part I, PW1 already had reasons to believe that the speakers had committed bribery and hence he should have administered a caution at that point. The prosecution, on the other hand, took the view that it was only after hearing both Parts I and II that PW1 had reasons to believe that the speakers had committed bribery and hence had to administer a caution. PW1, however, testified that in his view, only after hearing Parts I, II and III did he have reasons to believe that the speakers had committed bribery, and hence it was only at that point that he stopped the interview, sought instructions from his supervisor and administered a caution to the applicants.
原審時，辯方認為PW1聽完第一部份後，便有理由相信說話者干犯了賄賂罪行，所以他應該即時作出警誡。控方則認為PW1聽完第一及第二部份後，才有理由相信說話者干犯了賄賂罪行，這時候才需作出警誡。PW1在他的證供中則說，他認為聽完第一、二及三部份後，他才有理由相信說話者干犯了賄賂罪行，所以那時他才停止會面，向上司請示，及向申請人施行警誡。

The trial judge considered that, having heard the applicants’ complaint, PW1 needed some time to take in what they said and discern that they were also suspects. Therefore, it was not improper for him to stop the interview, seek instructions from his supervisor and administer a caution only after he heard Part III. In fact, at trial the defence also accepted that it was unreasonable to expect that PW1 could caution the applicants before he finished hearing Part I of the words of complaint. Importantly, in any event, the trial judge took the view that Part 1 had already disclosed that the applicants had offered advantages to Tai and hence had committed the relevant offence.
原審法官認為PW1從兩名申請人聽到投訴時，是需要一段時間才能消化到他們亦是疑犯，所以他聽完第三部份，才停止會面，向上司請示，及作出警誡，是無可厚非。其實原審時，辯方都接受不能合理期待PW1可在 “投訴說話”第一部份完結之前警誡申請人。重要的，是無論如何，原審法官認為第一部份已披露了申請人向 “戴”提供利益，而干犯有關罪行。

The trial judge also found that the words of complaint were true because the amounts paid to Tai were supported by cheques, and the fact that the monetary transaction took place in the dark served to indicate that the applicants knew that Tai’s employer did not allow him to accept those sums of money.
原審法官亦裁定“投訴說話”是真誠的，因為給予  “戴”的款項是有支票支持，而錢銀交易暗地裏進行，顯示申請人知道 “戴”的僱主是不容許他收取該些款項的。

The trial judge further found that, even if the 2nd applicant spoke less than the 1st applicant when making the complaint and PW1 could not recall what the 2nd applicant said, the two applicants insisted on being together, which indicated that the 2nd applicant was taking part in making the complaint and not merely accompanying the 1st applicant. The 2nd applicant had also taken part in signing the cheques issued to Tai. Therefore, the trial judge found that they were conspirators who had agreed to offer bribes to Tai and the words of complaint uttered by the 1st applicant could be used against the 2nd applicant.
原審法官亦裁定，即使投訴時第二申請人比第一申請人少說話而PW1忘記了第二申請人所說的話，但兩名申請人堅持要一起，顯示第二申請人是有份參與投訴，而不只是陪同第一申請人。第二申請人亦有份簽發支票給  “戴”，所以原審法官裁定他們是有協議向  “戴”提供賄款的串謀者，而第一申請人所說的“投訴說話”可針對第二申請人。

The trial judge found both applicants guilty as charged.
原審法官裁定兩名申請人，均罪名成立。

CACC 36/2013
CACC36/2013

The grounds of appeal put forward by the two applicants are mostly identical, although the 2nd applicant has advanced two more grounds of appeal. We will now deal with the grounds of appeal one by one.
兩名申請人所提出的上訴理由 ，大部份相同，只不過第二申請人個别提出多兩項上訴理由，本庭以下會逐一討論。

Are the words of complaint admissible as evidence under the law?
“投訴說話”在法律上可否呈堂作為證據?

The first ground of appeal put forward by the two applicants relates to the question of whether the words of complaint are admissible as evidence. At trial, the applicants did not object to Part I being adduced as evidence. However, they now take the position that none of the words of complaint can be adduced as evidence because it would be contrary to section 30A(1)(a) of the PBO. We stress that the applicants are relying only on section 30A(1)(a) of the PBO, and not on the common law or the Bill of Rights. Moreover, this ground of appeal purely concerns a question of law and does not involve any discretion of the court.
兩名申請人所提出的第一項上訴理由，是有關 “投訴說話”在法律上可否呈堂作為證據。原審時，申請人沒有反對第一部份說話呈堂，但 申請人現時的立場，是全部“投訴說話” 在法律上都不能呈堂作為證據，因為這樣做違反 《防止賄賂條例》第30A(1)(a)條。本庭強調本案申請人只是依賴《防止賄賂條例》第30A(1)(a)條，沒有依賴普通法或人權法。另外，這上訴理由純粹是法律上的議題，不涉及法庭的酌情權。

Section 30A provides as follows:
第30A條如下:

(1) Save as provided in subsection (2) -
(1)  除第(2)款另有訂定外─

(a) no information for an offence under this Ordinance shall be admitted in evidence in any civil or criminal proceeding; and
(a) 就本條例所訂罪行而獲得的資料，不得在任何民事或刑事程序中接納為證據；及

(b) no witness in any civil or criminal proceeding shall be obliged -
(b) 在任何民事或刑事程序中，如曾就本條例所訂罪行向專員舉報資料的人或曾就該罪行向專員提供任何協助的人並非該程序中的證人，則該程序中的任何證人無須─

(i) to disclose the name or address of any informer who has given information to the Commissioner with respect to an offence under this Ordinance or of any person who has assisted the Commissioner in any way with respect to such an offence; or
(i) 披露該舉報人或協助人的姓名或地址；或

(ii) to answer any question if the answer thereto would lead, or would tend to lead, to discovery of the name or address of such informer or person, if, in either case, such informer or person is not himself a witness in such proceeding,
(ii) 回答任何問題，如該問題的答案會致使或可能致使該舉報人或協助人的姓名或地址被揭露，

and, if any books, documents or papers which are in evidence or liable to inspection in any civil or criminal proceeding contain an entry in which any such informer or person is named or described or which might lead to his discovery, the court shall cause all such passages to be concealed from view or to be obliterated so far as may be necessary to protect the informer or such person from discovery.
又在任何民事或刑事程序中，作為證據或可受查閱的任何簿冊、文件或字據，如載有的材料包含該舉報人或協助人的姓名或描述，或可能致使其身分被揭露，則法庭為保護該舉報人或協助人免其身分被揭露，須着令將該材料的一切有關部分遮掩或塗去。

(2) If in any proceeding before a court for an offence under this Ordinance the court, after full inquiry into the case, is satisfied that an informer wilfully made a material statement which he knew or believed to be false or did not believe to be true, or if in any other proceeding a court is of opinion that justice cannot be fully done between the parties thereto without disclosure of the name of an informer or a person who has assisted the Commissioner, the court may permit inquiry and require full disclosure concerning the informer or such person.”
(2) 為本條例所訂罪行而進行法律程序的法庭經全面研訊該個案後，如信納舉報人在要項上故意作出明知或相信為虛假或不相信為真實的陳述，或在其他法律程序中，法庭認為如不披露舉報人或曾協助專員的人的姓名，會令該程序的當事人不能得到完全公正的處理，則有關法庭可准許查詢及可要求詳盡披露有關該舉報人或協助人的事項。

The question of law before us is whether section 30A(1) (“the provision”), including section 30A(1)(a), applies to the present case.
本庭所需考慮的法律問題，是第30A(1)條 (以下簡稱“該條文”)，包括第30A(1)(a)條，是否適用於本案的情況。

We have considered the materials provided by counsel for the parties, including the Hansard and the Explanatory Memorandum to the bill containing the provision. The Hong Kong Court of Final Appeal has established that in interpreting a statute, the court must take into account the natural and ordinary meaning of the words, the purpose of the statutory provision, as well as its context, including other statutory provisions and the general law (see HKSAR v Cheung Kwun Yin (2009) 12 HKCFAR 568).
本庭已考慮了各大律師所提供的資料，包括有關“該條文”法案的Hansard及摘要說明。香港終審法院已確立，考慮條例的釋義時，法庭必須考慮文字的自然及通常的意思(natural and ordinary meaning of the words)，條例的目的(purpose of the statutory provision)，與及條例的上下文，包括其他條文與及一般法理 (context, including other statutory provisions and the general law ) (看HKSAR v Cheung Kwun Yin譯音張冠賢 (2009) 12 HKCFAR 568)。

Adopting the above approach to interpretation, we are of the view that the contents of the provision as a whole clearly shows that the purpose of the provision is to protect the confidentiality of information used to report others, but not to offer immunity to an informer so as to exclude evidence which should otherwise be admissible against the informer himself.
本庭認為，採用以上的釋義方法 ，整體內容明確顯示“該條文”的目的是保障用來舉報他人的資料保密，而不是給予資料提供者一種特赦，令到本應可以呈堂以針對他本人的證據變成獲得豁免。

The purpose of the provision is expressed to be the protection of informers “from discovery”. It is the identity of an informer which is being protected “from discovery” (see page 846 of the Hansard of Prevention of Bribery (Amendment) Bill 1980: “when [the public] make complaints or give information to [the ICAC], their identity will not be disclosed without their consent”. See also paragraph 10 on page C128 of the Explanatory Memorandum to the Bill: “one of the important factors in eradicating corruption is to convince the public that having made a report to the ICAC, one’s identity will definitely not be disclosed by the ICAC without one’s consent”) (emphasis added). Given that the identity of an informer is known to the authorities, it is obvious that the protection in place is to prevent others (e.g. the person being reported) from knowing who the informer is. Apart from the name and address, information provided by an informer may also provide a lead to the identity of the informer. Therefore, the provision also protects such information.
“該條文”明文的目的，是給予舉報人不會 《被揭露》的保障 (protection of informers “from discovery”)。防避《被揭露》的，是舉報人的身份 (看1980《防止賄賂(修訂)法案》之Hansard第846頁: “when [the public] make complaints or give information to [the ICAC], their identity will not be disclosed without their consent”，又看該法案的摘要說明第C128頁第十段 “撲滅貪污之一項重要因素，乃使市民相信向廉政公署舉報後，該署如未得其同意，決不將其身份透露”)(斜體後加，以示強調)。既然當局知道舉報人的身份，明顯地保障是為防止他人(例如被舉報的人)知道誰是舉報人。除了姓名及住址之外，舉報人所提供的資料亦可能會露出蛛絲馬跡，令到他人可以推測到舉報人的身份，所以“該條文”亦保障這些資料。

The context of the provision also makes it clear that section 30A(1) only covers the protection of an informer’s identity from discovery by others (e.g. the person being reported). Section 30A(1) is subject to section 30A(2), which expressly contemplates that in some cases injustice may be caused if the information reported is kept confidential.
“該條文”的上下文，亦清楚顯示第30A（1）條只是適用於保障舉報人的身份不會披露給他人 (例如被舉報的人) 。第30A（1）條是受制於第30A（2）條，而第30A（2）條明文預料有他人可能因舉報資料保密而蒙受不公。

In fact, it has been long established under the common law that the identity of an informer is to be kept confidential so that it would not be known by an accused (i.e. the person being reported). The case of Marks v Beyfus [1890] 25 QBD 494 has clearly stated the scope of protection under the common law. However, there is a significant difference between the common law and section 30A regarding the kind of proceedings in which a court would order disclosure of the identity of an informer for the purpose of achieving justice. Under section 30A(2), such proceedings are confined to proceedings other than those under the PBO, whereas there is no such limitation under the common law. However, this difference between the common law and section 30A(2), as well as the question of whether section 30A(2) is unconstitutional in light of the right of an accused (i.e. the person being reported) to be informed as required by the Bill of Rights, is irrelevant to and has not been raised in the present case and therefore do not require further discussion and explanation. We bring up this point at this juncture for the purpose of expressing our disagreement with the respondent’s proposition that section 30A simply codifies the common law.
其實普通法早已有案例，將舉報人的身份保密，防止被告人 (即被舉報人)知道。Marks v Beyfus [1890] 25 QBD 494一案已清楚述明普通法所提供的保障的範疇。但普通法與第30A條有一項重大分別，就是在哪些法律程序裏法庭會因應公義的需要，而命令披露舉報人的身份。第30A(2)條局限於《防止賄賂條例》以外的法律程序，但普通法沒有這局限。然而有關普通法與第30A(2)條這方面的分別、與及在被告人(即被舉報的人)人權法知情權下第30A(2)條是否違憲，這些議題與本案無關、亦在本案中沒有出現，所以本庭無需鑽研及詳述。本庭在這裏提出這一點，是為指出本庭不贊同答辯人就第30A條只是將普通法編纂(codify)這說法。

The respondent also points out that under the common law the above protection did not apply to the present case because the applicants were accomplices of Tai. The respondent cites a Court of Appeal case of Chu Piu Wing v Attorney General CACV 84/1984 (4.9.1984), in which Chu admitted to the ICAC that he had bribed some police officers, but he provided further information on condition that he would neither repeat what he had said nor give evidence against those police officers in court. Subsequently, certain disciplinary charges were laid by the police against some of those police officers and Chu was called to give evidence. He refused to testify and was found to be in contempt of court. He appealed on the ground that as an informer, his identity and the information that he had provided were not subject to disclosure. He cited the abovementioned case of Marks v Beyfus in support.
答辯人亦指出，在普通法下，上述的保障不會適用於本案，因為申請人是 “戴”的從犯 （accomplice）。答辯人援引上訴法庭一宗案件。在Chu Piu Wing (譯音朱飄榮 ) v Attorney General CACV84/1984 (4.9.1984)一案,  “朱”向 廉政公署承認曾經賄賂過一些警員，但他提供進一步資料的條件，是他不會重複他所說的話、或在庭上指控警員。後來警方以內部紀律程序檢控一些警員，並傳召“朱”作供。他拒絕作供，被判藐視法庭。他提出上訴，理由是他身為線人，他的身份及所提供的資料都不可以被披露。他援引上述Marks v Beyfus案例。

The Court of Appeal dismissed this argument. The Court took the view that the confidentiality given by the common law to an informer was based on public policy. The question to be considered, as the Court of Appeal stated it, was: “Can it be said that [Chu] belongs to a class of persons constituting a source of information so valuable to the police that the possible disclosure of identity might adversely affect the public interest by causing that source substantially to diminish or even dry up?” The Court of Appeal was of the view that Chu, as an accomplice, did not belong to that class of persons and that to protect him would adversely affect the public interest. Therefore, the protection for informers was not available to Chu (although in the end the Court of Appeal held, for other reasons, that Chu did not have to testify).
上訴法庭駁回這說法。上訴法庭認為普通法給予線人保密的基礎，是公共政策。上訴法庭考慮的問題， 是“朱”是否屬於對警方提供有價值資料、披露其身份會令到資料來源削減而損害公共利益的那一類別人士? (“Can it be said that [Chu] belongs to a class of persons constituting a source of information so valuable to the police that the possible disclosure of identity might adversely affect the public interest by causing that source substantially to diminish or even dry up?”) 上訴法庭認為 “朱”身為從犯，並不屬於那類別人士，保障他會損害公共利益，因此“朱”不獲得線人的保障(雖然上訴法庭最終都基於其他理由豁免他作供)。

On the question of accomplice, counsel for the 2nd applicant referred to section 22 of the PBO ( “Person giving or receiving bribe not to be regarded as an accomplice”) and submitted that the applicant was not an accomplice of Tai. However, in our view, the purpose of section 22, which comes under Part IV of the PBO, is to remove the technical limitation on the admissibility of evidence given by an accomplice. In any event, the need for section 22 has been removed by section 60 of the Criminal Procedure Ordinance, Cap. 221 (McWalters, Bribery and Corruption Law in Hong Kong (2nd ed.), page 650). Therefore, we do not accept the submission made by counsel for the 2nd applicant regarding accomplice.
就從犯這一點，第二申請人的大律師援引《防止賄賂條例》第22條( “給予或收取賄賂的人不作從犯看待”)，說申請人並非  “戴”的“從犯”。但本庭認為，第22條載於《防止賄賂條例》第IV 部內，目的是在消除有關接納“從犯”證據的技術限制。無論如何，自從第221章《刑事程序條例》第60條訂立後，第22條已失去意義 (Bribery and Corruption Law in Hong Kong, McWalters 2nd ed.第650頁)。因此，本庭不接納第二申請人的大律師有關從犯的陳詞。

In any event, we are of the view that, as the applicants are only relying on section 30A(1)(a), it is not necessary for us to consider the scope of or limitation on the protection given to informers under the common law, or to comment on the abovementioned case of Chu.
無論如何，本庭認為申請人只是援引第30A(1)(a)條，所以本庭並不需要考慮普通法下，線人受保障的範圍或限制，亦不需要評論上述  “朱”一案。

We are satisfied that, having regard to its purpose and context, section 30A(1), including section 30A(1)(a), only serves to protect an informer’s information from discovery by others (e.g. the person being reported), so as to prevent the latter from knowing the identity of the former. In the present case, if Tai was prosecuted for the offence of accepting advantages, the information provided by the applicants would be protected by the provision. However, it does not mean that the applicants would, in their trial, automatically be entitled to the above exclusion from admissibility. We do not think that was the purpose or intent of the legislature in enacting the provision.
本庭確認，從其目的及上下文，第30A（1）條，包括第30A(1)(a)條，只是適用於保障舉報人的資料不會披露給他人(例如被舉報的人)，以防後者得悉前者的身份。在本案的情況而言，若然 “戴”被檢控收受利益罪的話，申請人所提供的資料便會受 “該條文”保障。但這不等如申請人可以在自己的審訊中，自動獲得上述的呈堂豁免。本庭認為這並不是立法會訂立“該條文”的目的或意思。

When should a caution be given?
哪時候應該給予警誡?

It is convenient at this juncture to discuss another ground of appeal, namely that PW1 did not caution the applicants until after Part III was concluded. The applicants contend that, had PW1 cautioned them earlier, they would have had an opportunity to consider whether to continue the conversation or decide to remain silent from then on.
在這階段方便討論另一項上訴理由，即有關PW1到第三部份完結，才對申請人作出警誡。申請人認為，若果PW1早一些作出警誡，申請人便會有機會考慮是否繼續說下去，或決定從此保持緘默。

The undisputed legal principle is that when a law enforcement officer has objective grounds for suspecting that a person has committed an offence, he should administer a caution to that person, even though the evidence may not be sufficient to support a prima facie case of guilt (see R v Nelson and Rose [1998] 2 Cr App R 399, 404). The question in the present case is the point of time at which, objectively, PW1 should have had reasonable grounds for suspecting that the applicants had committed an offence.
不爭的法律原則，是當一名執法人員客觀上有理由懷疑一名人士干犯了罪行，他便應該施行警誡，即使證據未足以表面上定罪 (看 R v Nelson and Rose [1998] 2 Cr App R 399, 404)。問題是在本案中，哪時候PW1客觀上是應該合理懷疑申請人干犯了罪行。

At trial, the applicants took the stance that before the end of Part I, PW1 would not have had reasonable grounds to suspect that the applicants had committed any offence. However, the trial judge was of the view that, solely on the basis of Part I, he had “already reached the only conclusion that the prosecution had proved the charge in question beyond reasonable doubt, and it is in fact not necessary to consider the remaining parts” (see paragraph 65). The applicants’ position now is not that the trial judge erred in reaching this conclusion, but that PW1 should, at “a certain stage” (which counsel is unable to specify) before the end of Part I, already have had reasonable grounds to suspect that the applicants had committed an offence.
原審時，申請人的立場是第一部份完結之前，PW1不會有合理懷疑申請人干犯了罪行。但原審法官認為，純粹基於第一部份，他 “已達至唯一結論控方已在毫無合理疑點下證明有關控罪，餘下的部分其實也不用作考慮” (看第65段)。申請人現時的立場，並不是原審法官這結論犯錯，而是第一部份完結之前 “某階段”(但大律師未能說明哪階段)，PW1已應該有合理懷疑申請人干犯了罪行。

We do not accept this contention. The fact that counsel is unable to point to a specific stage in Part I at which PW1 should have had reasonable grounds to suspect that the applicants had committed an offence serves to indicate that this ground of appeal is unrealistic. Now we can go through Part I slowly, even repeatedly, to understand the context. By contrast, at that time, PW1 was not informed in advance of what the applicants would say, and it was therefore unreasonable to expect him to interrupt before he heard the entirety of what the applicants had to say. And at trial, it was common ground that Part I was admissible as evidence. In the absence of any evidence of the speed of the applicants’ speech at that time, it is not open to the applicants to raise this point on appeal.
本庭不接納申請人這說法。大律師未能說出在第一部份哪階段PW1應有合理懷疑申請人干犯了罪行，正是反映出這項上訴理由不符現實。現時我們可以慢慢閱讀第一部份，還可以重複翻讀，從而知道其上文下理，但PW1當時沒有預先獲得通知申請人會說什麼，因此要求他未聽完申請人所說而插口並不合理。而原審時，各方已接納第一部份可以呈堂。在沒有申請人當時說話的速度有關證據的情況下，申請人不可以到上訴這階段才提出這點。

The absence of contemporaneous record of the original content
欠缺即時及原文記錄

We now turn to another ground of appeal, namely that PW1’s notes were not a contemporaneous record of the original content and had not been provided to the applicants for confirmation, and these, it is submitted, adversely affected their weight and fairness.
在這階段方面處理另一項上訴理由，即PW1的筆記欠缺即時及原文記錄，又沒有給予申請人確認，所以申請人認為影響其份量及公平性。

At trial, PW1 did mention the notes he took in the course of interviewing the applicants. Although the notes were not produced to the court as an exhibit, they were made available to the defence for inspection. Upon his application, we allowed the 2nd applicant to refer to those notes at the hearing of this application. It was clear from the notes that PW1 did not record the words of complaint verbatim and part of the notes was taken in the form of diagrams.
PW1接見申請人時所作出的筆記，原審時他有提及。雖然筆記沒有作為呈堂證物，但有供辯方查閱。本庭應第二申請人的申請，准許他在本申請聆訊援引該些筆記。從筆記看，明顯地PW1沒有逐個字記錄“投訴說話”，而部份還是以圖表形式記錄。

Nevertheless, in our view, the trial judge, as an arbiter of fact and having seen and heard PW1 testify, was entitled to accept his testimony and attach weight to it. Although at trial PW1 said he had forgotten some details, counsel for the applicants has not shown us what significance those details had. Nor has counsel for the applicants pointed out any self-contradiction, inconsistency or error in PW1’s evidence. And the applicants did not go into the witness box to give evidence to refute PW1’s evidence. Therefore, although the notes were not a contemporaneous record of the original content and had not been provided to the applicants for confirmation, the trial judge was entitled to accept PW1’s testimony and we do not think this was unfair to the applicants.
但本庭認為，原審法官作為事實裁決者，經過耳聞目睹PW1作供，是有權接納他的證供，及給予比重。雖然原審時PW1說他已忘記了一些枝節，但申請人的大律師沒有向本庭指出那些枝節有什麼重要性。申請人的大律師亦沒有向本庭指出PW1的證供有任何自相矛盾、或前後不符、或有任何出錯之處。申請人亦沒有在證人台上作證，提出證供與PW1對質。因此，即使筆記欠缺即時及原文記錄，又沒有給予申請人確認，原審法官有權接納PW1的證供，而本庭不認為對申請人有任何不公。

Payments made to Tai
給予 “戴”的款項

At this juncture we would mention in passing another ground of appeal put forward by the applicants which also relates to a finding of fact by the trial judge. Counsel for the applicants submits that, while the particulars of offence alleged that the applicants agreed to pay $30,000 per month to Tai, the cheque record in the Agreed Facts showed that the payments were not regular monthly payments.
在這階段順帶申請人另外一項上訴理由，亦是有關原審法官的事實裁定。申請人的大律師說， 檢控詳情指申請人同意每月支付$30,000給“戴”，但同意事實內的支票記錄顯示款項並非是每月定期支付。

The cheque record showed that from December 2007 to July 2009 payments were made on and off, but in each month from July 2009 to November 2010 there was a particular day within which two $30,000 cheques were issued.
支票記錄顯示，由2007年12月起至2009年7月止這段時間內，付款是斷斷續續的，但由2009年7月起至2010年11月止，每月定期會有一日內支出兩張$30,000支票的情況出現。

The trial judge noted this point and addressed it in detail. He pointed out that the 33 cheques involved a total sum of $990,000 and this was consistent with the allegation that the applicants gave Tai $30,000 each time. Moreover, the date shown on the last cheque was also the time when the works were expected to be completed, and this tallied with the allegation that the applicants made payments to Tai for the purpose of making the works smoother. That some of the payments were not made strictly in accordance with the agreement did not mean that the agreement had never existed. We think that the trial judge was justified in taking this view.
原審法官有留意這點，也有作出詳細的討論。他指出33張支票合共$990,000，與申請人每次給予“戴”$30,000的說法吻合。另外，最後的支票日期，亦是工程預算完成的時間，這是與申請人給予“戴”款項是為該工程順利一些的說法吻合。付款有部份不依足協議進行，並不等如從來沒有該協議存在。本庭認為原審法官這看法有理。

Other grounds of appeal raised by the 2nd applicant
第二申請人個别的上訴理由

We now discuss the grounds of appeal raised by the 2nd applicant alone. The first ground is that in his testimony PW1 did accept that the 2nd applicant had spoken less. The 2nd applicant submits that the trial judge failed to thoroughly consider whether he (the 2nd applicant) had adopted what the 1st applicant said.
這階段方便討論第二申請人個别 提出的上訴理由。第一點是基於PW1作供時接納了第二申請人比較少說話。第二申請人認為，原審法官沒有充分考慮到他(即第二申請人)是否採納了第一申請人所說的話。

PW1’s testimony showed that initially he had asked the two applicants to be interviewed separately. However, they made it clear that they wished to be interviewed together, and they apparently intended to act together. Besides, when the 1st applicant voiced the complaint about Tai, the 2nd applicant did not absent himself, or ask the 1st applicant not to continue, or expressly state that he had limited knowledge of the matter, or indicate that he had no idea about what the 1st applicant said, or indicate that he wanted to draw a clear line between himself and what the 1st applicant said. The above evidence indicated that the two applicants were sharing the same stance, and the 2nd applicant did not give evidence in court with a view to refuting this prima facie view. We see nothing in this ground of appeal.
從PW1的證供可見，他原本要求把兩名申請人分開接見，但是他們卻表明想一起被接見，看來有共同行動的意向。另外，當第一申請人說出有關姓 “戴”的投訴時，第二申請人沒有離開，或要求第一申請人不要繼續說，或表明他自己知情度有限，或表示他不清楚第一申請人所說的話，或表示要與第一申請人所說劃清界線。以上證據顯示申請人兩人的表態是一樣的，第二申請人亦沒有在庭上作供以圖反駁這表面看法。本庭認為這上訴理由不能成立。

The second ground of appeal raised by the 2nd applicant was that he was hired by STE and CNCHK at the same time and therefore had reasons to believe that Tai was also in a dual capacity and hence could properly accept payments from STE. The 2nd applicant submits that this constituted a reasonable excuse.
第二申請人第二點個别上訴理由，是他同時受聘於 “新輝”及 “中化”，所以他有理由相信 “戴”亦是雙重身份，所以收取“新輝”款項是沒有問題。第二申請人認為這構成合理辯解。

We do not accept this submission. There was no evidence concerning whether Tai had any position or duty at STE. Nor was there evidence that the 2nd applicant believed that Tai was in a dual capacity. The case law has established the principle that where a defendant does not testify, the court should not speculate about facts which may provide a defence on his behalf. In our view, the fact that the applicants had to pay Tai in the dark and then reported Tai to the ICAC was evidence that the applicants took the view that paying Tai was an illegal act, and this was inconsistent with a reasonable excuse. We reject this ground of appeal.
本庭不接納這說法。案中沒有證據顯示“戴”在“新輝”有什麼身份或職責，亦沒有證據顯示第二申請人相信 “戴”是有雙重身份。案例確立，當一名被告人沒有作證時，法庭不應該替他忖測事實以作為答辯理由。本庭認為申請人要暗地裏給錢予  “戴”、與及他們前往廉署舉報 “戴”，這些證據都顯示他們認為給錢予 “戴”是非法行為，與合理辯解不符。本庭駁回這項上訴理由。

The 2nd applicant also contends that the prosecution failed to prove that he had any illegal motive when he signed the cheques in question, because when he signed most of the cheques he was not a director or shareholder of STE but an employee of CNCHK.
第二申請人亦認為控方未能證明他簽署有關支票時有違法的動機，因為他簽署大部份的支票時，不是  “新輝”的董事或股東，而是  “中化”的職員。

However, the cheques signed by the 2nd applicant were STE’s, not  CNCHK’s. He had caused STE to make payments to the main contractor’s employee, and when the payments started, he was a director of STE and knew very well why the payments were made. In any event, even if he had given up his shareholding or resigned as director, he was not someone far away from the worksite and ignorant of the operation of the works. Being the Chief Supervisor of the site, he would have been familiar with the works. STE had been incurring these expenses, which involved a considerable amount of money, for as long as three years. He could not possibly have signed over 30 cheques blindly and, for no reason, given almost one million dollars away to a staff member of the main contractor who was unable to offer any assistance to STE. This contention is unrealistic.
但第二申請人所簽署的是“新輝”的支票，並非是“中化”的支票。他導致“新輝”支付款項給大判所聘的職員，而開始支付時，他是“新輝”的董事，清楚知道付款的理由。無論如何，即使他已退股或辭去董事一職，他不是一名在遠離地盤、不懂得工程運作的人。他是地盤總監，對工程業務應該熟悉。“新輝”有這數目不少的支出長達三年之久，他不可能盲目地簽署了超過30張支票，無緣無故地饋送差不多一百萬元給一名對 “新輝”提供不到任何幫助的大判職員，這不是符合現實的說法。

Should discretion be exercised to exclude the words of complaint from evidence?
應否行使酌情權，剔除“投訴說話”作為證據?

The final ground of appeal emphasized by counsel for the applicants is that initially the applicants uttered the words of complaint in the capacity of informers. They argue that public policy encourages the public to report corruption, and therefore even if the words of complaint were admissible as evidence, the court should have exercised its discretion to exclude them. The applicants confirmed that at trial they had not made  this application to the trial judge.
最後，申請人的大律師強調的上訴理由，是基於申請人原本是以舉報人身份作出“投訴說話”。他們認為公共政策鼓勵公衆舉報貪污，所以即使“投訴說話”可以呈堂作為證據，但法庭應該行使酌情權，剔除“投訴說話”。申請人確認，原審時他們沒有向原審法官作出這項申請。

The applicants rely on some decided cases such as Secretary for Justice v Lam Tat Ming [2000] 2 HKLRD 431 (in which the defendant told an undercover police officer about the offence he had committed) and HKSAR v Chan Kau Tai [2006] 1 HKLRD 400 (in which law enforcement officers obtained evidence in breach of constitutional rights).
申請人援引了一些案例，例如: Secretary for Justice v Lam Tat Ming譯音林達明 [2000] 2 HKLRD 431(被告人告訴卧底警員他所干犯的罪行)，與及HKSAR v Chan Kau Tai 陳裘大 [2006] 1 HKLRD 400 (執法人員違反憲法權利而獲得證據)。

In our view, the principle established by these cases is that a court would exercise its discretion to exclude a piece of evidence if it considers that its admission would deprive the defendant of a fair trial.
本庭認為，這些案例確立的原則，是若果法庭認為納入某項證據會導致被告人得不到公平的審訊，法庭會行使酌情權將它剔除。

It is certainly uncommon for an informer to be prosecuted. However, the ultimate question is: would the admission of the words of complaint deprive the applicants of a fair trial? The case law indicates that the court should consider all the circumstances in answering that question.
無疑，舉報人反而被檢控，這情況不是常見。但最終的問題是，“投訴說話”的納入是否會令到申請人得不到公平的審訊? 案例顯示，法庭應該考慮全盤情況。

First, the present case does not involve violation of any of the applicants’ constitutional rights.
首先，本案沒有違反申請人的任何憲法權利。

Furthermore, the applicants, who on their own initiative went to the office of the ICAC, must have known that PW1 was a law enforcement officer.
另外，申請人自行前往廉政公署的辦公室，必然知道PW1是執法人員。

PW1 had not threatened or induced them to speak. Nor was there any law enforcement officer who had done anything unfair to them. As discussed above, until the applicants finished uttering the words which comprised Part I, PW1 had no reason to caution them.
PW1沒有威迫或利誘他們說話，亦沒有任何執法人員對他們作出過任何不公的行動。本庭已經討論過，申請人說完第一部份之前，PW1是沒有理由需要向他們作出警誡。

If the applicants thought that what they said as informers would not be used to prosecute them, that was a misunderstanding on their own part. Before they said anything, they could have made it clear to PW1 that they were only prepared to give a non-prejudicial statement.
若果申請人以為因為他們是舉報人，所以說話不會被用來檢控自己，這是他們自己的誤解。他們說話前可以預先與PW1澄清他們只是願意給予 “不具損害性口供”(non-prejudicial statement)。

In Lam Tat Ming the Court of Final Appeal stated (at 441) that the test of unfairness is not that of a game governed by a sportsman’s code of fair play. Unfairness in this respect is to be judged by the court against, and only against, what is required to secure a fair trial for the accused. However, it is important to observe that in a just society, the conviction of the guilty is in the public interest, as is the acquittal of the innocent.
終審法院在林達明案已述明(第441頁)，一名被告人是否遭受不公的測試，並不是運動員公平競賽的遊戲規則。法庭行事唯一的準則，是在使到被告人獲得公平的審訊。然而必須注意，在公義的社會中，將有罪的人定罪、與判無辜的人無罪，同樣促進公衆利益。

Bribery is a very serious offence and has been likened by the court to a cancer in the community. Those who give or accept bribes are direct causes of corruption, striking at the spirit of a fair and clean society. The applicants did not testify in court that they thought they would not be prosecuted when they confessed, or that what they had said would not be used as evidence against them. But even had they done so, they could not, as persons who had offered bribes, expect sympathy from the court. That said, following conviction, their conduct of reporting the acts of another offender to the authorities would usually be considered by the court for sentencing purposes (and as a matter of fact, the trial judge in the present case did reduce each applicant’s sentence by two months).
賄賂是十分嚴重的罪行，法庭曾經描述這罪行為社會的癌細胞。給予或收取賄款的人都是直接導致社會腐敗，打擊公平廉潔社會精神。申請人沒有在庭上作證說自招時他們以為不會被檢控，或他們的說話不會用來作為對付自己的證據，但即使如是，他們作為行賄者都不可以期望法庭會給予同情。然而他們舉報其他犯法者的行為，法庭一般會在定罪後判刑時給予考慮(而在本案中，原審法官確有給予申請人兩個月扣減)。

Furthermore, the relevant evidence showed that the applicants did not report Tai immediately but instead gave him bribes for as long as three years and in a total sum of almost one million dollars. That the two applicants reported the matters to the ICAC after three years was not due to remorse but was due to disputes between them and Tai. We do not see any unfairness which required the exercise of discretion to exclude the words of complaint.
另外，有關證據顯示申請人沒有即時舉報 “戴”，還在3年悠長的時間內向他行賄，賄款高達差不多一百萬元。兩人經過3年的時間才前往廉署舉報，並非出自悔意，而是因為他們與 “戴”有糾紛。本庭看不到有任何不公的情況，令至行使酌情權剔除 “投訴說話”。

In our view, the above decision finds support in the Court of Appeal case of R v Ho Chung Yum CACC 120/1985. In that case, the Court of Appeal stated expressly that under the common law there is no public policy that informers will not be prosecuted. The question to be considered by the court is: if an informer was at the time of the offence merely acting in the interest of law and order, e.g. an undercover agent, then clearly he had no intent to commit the offence; on the other hand, if in fact an informer did commit the offence and made a report thereafter, it would not be unfair for the authorities to decide to prosecute him and the court would have no reason to exercise its discretion to exclude the informer’s admission from evidence.
本庭認為，上述決定獲上訴法庭 R v Ho Chung Yum 譯音何松蔭CACC120/1985一案支持。在該案中，上訴法庭述明，普通法沒有不檢控舉報者的公共政策。法庭需要考慮的問題，是如果舉報者犯案時只是為秉行守法，例如卧底探員，那麼明顯地他是沒有犯法的意圖，但如果舉報者實情上犯了法，而事後才去舉報，當局檢控他的決定沒有任何不公，法庭亦沒有理由行使酌情權，剔除舉報者承認犯法的證據。

For the above reasons, we dismiss the applicants’ application for leave to appeal.
基於以上理由，本席不批准申請人的上訴許可申請。

Mr Selwyn Yu SC and Ms Queenie Ng, instructed by Messrs. Wong & Associates, for the 1st Applicant
第一申請人: 由黃宇豪律師行轉聘余承章資深大律師及伍頴珊大律師代表

Mr Richard Wong and Mr Danny Chan, instructed by Messrs. Pauline Wong & Co, for the 2nd Applicant
第二申請人: 由王婕妤律師事務所轉聘黃達華大律師及陳健強大律師代表

Mr William Tam, Deputy Director of Public Prosecutions of the Department of Justice, for the Respondent
答辯人: 由律政司副刑事檢控專員譚耀豪代表