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

The Applicant was charged with one count of “dealing with property representing proceeds of an indictable offence”, contrary to section 25(1) of the Organized and Serious Crimes Ordinance (Cap. 455 of the Laws of Hong Kong).  He pleaded not guilty to the charge.  After trial before Deputy District Judge Sham, the Applicant was convicted and sentenced to 6½ years’ imprisonment.  He applied for leave to appeal against sentence.  After the hearing, we allowed the application, treated the application as the appeal proper, and reduced the term of sentence to 5 years and 8 months.  The reasons for our judgment are set out below.
申請人被控一項「處理公訴罪行得益的財產」罪名，違反《有組織及嚴重罪行條例》(香港法例第 455 章)第 25(1) 條。申請人否認控罪。經區域法院暫委法官沈小民審理後,申請人被裁定罪名成立及被判監六年半。申請人就刑期提出上訴許可申請。本庭經聆訊後批准申請，視申請為正式上訴及將刑期更改為五年八個月監禁。以下是本庭的判案理由。

Prosecution case
控方案情

The facts of the case revealed that in February 1996 a purchaser from a subsidiary of Chuang’s Consortium International Limited (‘the Purchaser’) purchased a property situated at Ground Floor, 15 Robinson Road (‘the Property’) for HK$105,000,000.00.  The Purchaser and vendors to that property transaction were represented by different solicitors’ firms.
案情顯示一間屬於莊士機構國際有限公司名下的買家（‘買家’） 在1996 年 2 月以 HK$105,000,000.00 購入一所位於羅便臣道 15 號地下的物業(‘該物業’)，買家和賣家分別由不同的律師行代表處理該宗樓宇買賣交易。

On 23 February 1996, the Purchaser and two persons claiming to be the owners of the Property signed a provisional sale and purchase agreement in respect of the Property.  On the same day, the Purchaser sent a bank draft in the sum of HK$15,825,000.00 to the solicitors’ firm acting for the owners in payment of the first deposit as required for the purchase.  The owners instructed the firm to draw a cheque in the same amount in favour of a person named ‘So Chi Yin’.  Upon receipt of the cheque, So Chi Yin presented it in a bank and withdrew the cash.
買家和兩名聲稱是該物業的業主於當1996 年 2 月 23 日簽署了一份購買該物業的臨時買賣合約。買家於同日將一張面值 HK$15,825,000.00 的本票交到業主的律師行，作為購買該物業所需支付的第一次訂金。業主指示律師行開出一張和第一次訂金相同銀碼的支票給一名叫「蘇志賢」的人士。蘇志賢在收到支票後到銀行兌現該張支票，並提取走現金。

On 22 March 1996, the Purchaser and the vendors signed a formal sale and purchase agreement.  The Purchaser delivered a bank draft in the sum of $15,825,000.00 to the solicitors’ firm acting for the owners in payment of the second deposit as required for the purchase.  The owners instructed the firm to transfer the above sum to the Applicant by way of a cash cheque in his favour.
1996 年 3 月 22 日買賣雙方再簽署一份購買該物業的正式買賣合約。買家發出一張面值 $15,825,000.00 的本票給業主的律師行作為購買該物業須支付的第二次訂金。業主指示律師行把這筆訂金以現金支票形式發給申請人。

On 22 March 1996 the Applicant and another male cashed the cheque in a bank.
1996 年 3 月 22 日申請人與另一名男子到銀行對兌這張現金支票。

The property transaction was in fact a sham.  The real owners of the Property had neither consented to sell the Property nor signed any document to convey the Property.  In the transaction, the Purchaser was defrauded of HK$31,650,000.00 being the total sum of the two deposits.
這宗物業交易其實是一個騙局，該物業的真正業主並沒有同意出售該物業，他們也沒有簽署過任何買賣文件。買家在這次交易中被騙去 HK$31,650,000.00，即兩次的訂金的總額。

The Applicant left Hong Kong via Lowu on 25 March 1996, and thereafter the Immigration Department did not have any record of the Applicant entering or leaving Hong Kong.  Ever since he left Hong Kong, the Applicant had resided on the Mainland.  He smuggled himself back into Hong Kong in 2005 and was arrested by the police in March 2006.  During his stay on the Mainland, the Applicant had smuggled himself into Hong Kong for four times.
申請人於1996 年 3 月 25 日經羅湖離開香港。之後香港入境處再沒有他進出香港的記錄。申請人離港後一直在大陸居住。直至 2005 年偷渡回港，並於 2006 年 3 月被警方拘捕。申請人在內地居住期間曾經四次偷渡回港。

So Chi Yin, who withdrew the first deposit, was arrested by the police and prosecuted for the same charge in 1996.  The charge was stated to involve the sum of HK$15,825,000.00.  After trial before District Judge Barnes (as she then was), So Chi Yin was convicted and sentenced to 4 years’ imprisonment.  Judge Barnes adopted a starting point of 4 years.  Despite So Chi Yin had pleaded not guilty, Judge Barnes took into account that he had not disputed all aspects of the prosecution case and hence reduced the term by 6 months.  In the end, So Chi Yin was sentenced to a term of 3½ years.
提走第一筆訂金的蘇志賢在 1996 年被警方拘捕及被根據同一罪名檢控。控罪所涉及的款額是 HK$15,825,000.00。案件經區域法院張慧玲法官審理後，蘇志賢被裁定罪名成立及被判監四年。張法官以四年監禁為量刑基準，雖然蘇志賢否認控罪，但由於張法官認為他並不是對所有的控方案情都提出爭議，因此再給他六個月的刑期扣減，最終刑期定為三年半監禁。

Dissimilar sentences imposed on co-defendants
同案被告不同的刑期

The ground of appeal advanced by the Applicant is that he is being unfairly treated by reason of the great disparity between the sentences passed on him and So Chi Yin.
申請人今次提出上訴的理由是他與蘇志賢所遭判的刑期相距甚遠，對他不公平。

In HKSAR v. Leung Yiu Ming and another [2000] 1 HKLRD 247, this Court (Nazareth VP, Stuart Moore VP and Wong JA) discussed the issue of dissimilarity in sentences imposed on two co-defendants.  As this Court observed, two scenarios are involved. The first is where there is a disparity between sentences passed on the same occasion by the same judge, in which case the sentence can be varied by the appellate court if the judge has not properly apportioned the culpability between the co-defendants.  The second scenario is where different sentences are passed on the co-defendants by different judges on different occasions, in which case, save in exceptional circumstances, the appellate court only has to consider whether the sentence imposed on the particular appellant is appropriate.
本庭（黎守律、司徒冕副庭長及王見秋上訴法庭法官）在 HKSAR v. Leung Yiu Ming and another [梁耀明（譯音）] [2000] 1 HKLRD 247 一案中就同案兩名被告各獲得不同刑期的處理方法作出討論。本庭認為這類爭議涉及兩種情況：第一是同一案件中同一位法官判處各被告不同的刑期，在這情況下如果原審法官沒有適當地分配刑責，上訴法庭是可以更改刑期的；第二是不同的法官對同一案件中的不同的被告人作出不同的刑期，在這情況下除非案件存有特殊的案情，否則法庭唯一需要考慮的是提出上訴被告人的所獲判的刑期是否適當。

The present case falls into the second scenario discussed above.  It follows that, unless the Applicant can show that there are exceptional circumstances, the only issue we have to consider is whether the sentence passed on him is appropriate or not.
本案是屬於上述的第二種情況，故此除非申請人能指出本案存有其他特殊的情況，否則本庭唯一需要考慮的是他所遭判的刑期是否適當。

Sentencing principles
量刑原則

As far as the offence of “dealing with property representing proceeds of an indictable offence” is concerned, no sentencing guidelines have been laid down as the facts vary from case to case.  Nevertheless, the following factors may be considered for sentencing purposes:
由於「處理公訴罪行得益的財產」這類案件涉及不同的案情，故此法庭沒有給予量刑指引的，但以下各點是可以列為量刑的參考因素：

Although no direct relationship necessarily exists between “dealing with property representing proceeds of an indictable offence” and the underlying indictable offence, if the underlying indictable offence can be identified, then the court, in passing sentence for “dealing with property representing proceeds of an indictable offence”, can take into account the sentence for that indictable offence;
雖然「處理公訴罪行得益的財產」控罪與有關的公訴罪行不一定有直接關係，但若果有關的公訴罪行是可以確認的，那麼法庭是可以在「處理公訴罪行得益的財產」控罪量刑時考慮有關公訴罪行本身的刑期。

The criminality of “dealing with property representing proceeds of an indictable offence” lies in assisting, supporting and encouraging the relevant indictable offence;
「處理公訴罪行得益的財產」控罪的罪責是協助、支持及鼓勵有關的公訴罪行。

The extent to which the person charged with “dealing with property representing proceeds of an indictable offence” knew of the indictable offence;
法庭需要考慮「處理公訴罪行得益的財產」控罪的被告人對公訴罪行的知情度。

The amount of money involved in “dealing with property representing proceeds of an indictable offence” is also a relevant consideration.
涉及「處理公訴罪行得益的財產」控罪的款額亦是一項有關連的考慮因素。

See R v. Karen Monfries [2004] 2 Cr App R (S) 3, 9.
見R v. Karen Monfries [2004] 2 C R App R (S) 3, 9。

While the sentencing court is entitled to take into account the sentence of the underlying indictable offence, this Court (Stuart-Moore VP and McMahon J) held in HKSAR v. Chen Szu Ming CACC 270/2005 that the court, in considering the sentence for “dealing with property representing proceeds of an indictable offence”, should only do so on the basis of that offence itself rather than of the underlying indictable offence.  That said, the defendant’s knowledge of the underlying indictable offence will of course constitute an aggravating factor.
雖然法庭可以考慮公訴案件本身的刑期，但本庭在（司徒冕副庭長及原訟法庭法官麥明康）在HKSAR v. Chen Shu Ming (陳思銘) CACC 270/2005 一案中指出法庭在作出「處理公訴罪行得益的財產」控罪量刑時是必須以該項控罪本身，而不應該以有關的公訴罪行作為量刑基礎。當然若果被告人對有關的公訴罪行是知情，這是一個會令他被加重刑責的因素。

Authorities
案例

The following are several decided cases in which the amounts involved are similar to that in the present case:
與本案涉案款額相若的有以下數宗案例：

In HKSAR v. Renato Cemine Tandoc CACC 377/2002, the defendant pleaded guilty to a number of charges including one count of “using a false instrument” and four counts of “dealing with property representing proceeds of an indictable offence”.  The defendant dealt with a sum of HK$13,000,000.00 being the proceeds in a fraud case.  He was sentenced to imprisonment for 2 years and 8 months for count one and imprisonment for a total of 3 years and 4 months for the remaining four counts.  The two terms were to run consecutively, making a total of 6 years.
HKSAR v. Renato Cemine Tandoc CACC 377/2002 一案的被告人承認多項控罪：第一項是「使用假護照」罪，另外四項是「處理公訴罪行得益的財產」罪。被告人處理欺詐案的收益款額達 HK$13,000,000.00。第一項控罪的刑期是兩年八個月監禁，其餘各項控罪的刑期合共三年四個月監禁，與第一項刑期分期執行，總刑期為六年監禁。

In HKSAR v. Chen Szu Ming (CACC 270/2005), the defendant pleaded guilty to “dealing with property representing proceeds of an indictable offence”, the property being a sum of HK$14,000,000.00.  The defendant had knowledge of the underlying indictable offence.  He was sentenced to imprisonment for 3 years and 4 months.  This Court affirmed the sentence and agreed with the starting point of 5 years adopted by the trial judge.
HKSAR v. Chen Sze Ming (陳思銘) (CACC 270/2005)，被告人承認「處理公訴罪行得益的財產」控罪，款額是 HK$14,000,000.00。被告人對有關的公訴罪行是知情的。他所獲判的總刑期是三年四個月監禁。本庭維持原判及同意原審法官所採用的五年量刑基準。

In HKSAR v. Xu Xia Li & Another CACC 395/2003, one of the defendants was convicted of dealing with $11,000,000.00 being property representing proceeds of an indictable offence.  She was sentenced to 3 years’ imprisonment, but on appeal this Court (Woo VP and Yuen JA) reduced the term to 2 years and 9 months.
HKSAR v. Xu Xia Li & Another（許厦禮[譯音]及另一人） CACC 109/2005，其中一名被告被裁定處理 $11,000,000.00 的公訴罪行得益財產罪名成立。原本刑期為三年監禁，但本庭（胡國興副庭長、上訴法庭法官袁家寧）將之更改為兩年九個月監禁。

In HKSAR v. Oei Hengky Wiryo CACC 109/2005, the defendant was convicted on one count of “conspiracy to commit bookmaking” and two counts of “dealing with property representing proceeds of an indictable offence”.  The latter offences involved two sums of $236,766,329.00 and $11,495,116.00.  It was accepted that the defendant only dealt with parts of the two sums.  This Court (Stuart-Moore VP, Stock JA and McMahon J) affirmed the sentences imposed for those two offences, namely imprisonment for 4 years and imprisonment for 18 months.  The total term was 5½ years.
HKSAR v. Oei Hengky Wiryo CACC 109/2005，被告人被裁定一項「串謀收受賭注」罪及兩項「處理公訴罪行得益的財產」罪名成立。後者所涉及的金額分別為 $236,766,329.00 及 $11,495,116.00。法庭接受被告人只是處理這兩筆金額的部分款項。本庭（司徒冕副庭長、上訴法庭法官司徒敬及原訟法庭法官麥明康）維持分別四年及十八個月監禁的刑期。被告人所獲判的總刑期為五年半監禁。

In HKSAR v. Ma Zhujiang and Another CACC 491/2005, D1 was convicted on three counts of “dealing with property representing proceeds of an indictable offence”, the property being a sum of HK$20,000,000.00.  This Court (Ma CJHC, Stock JA and McMahon J) affirmed the sentence of 5 years’ imprisonment imposed by the trial judge.
HKSAR v. Ma Zhujiang and Another（馬珠江及另一人） CACC 491/2005，第一被告人被裁定三項「處理公訴罪行得益的財產」罪名成立。涉案金額約為 HK$20,000,000.00。本庭（馬道立首席法官、上訴法庭法官司徒敬及原訟法庭法官麥明康）維持原審法官判處的五年監禁刑期。

In HKSAR v. Shing Siu Ming & Ors [1999] 2 HKC 883, D2 and D3 were each convicted on one count of “dealing with property representing proceeds of an indictable offence”.  They dealt with HK$2,645,729.00 and AUD$1,527,000.00 respectively, both sums being proceeds of heroin trafficking.  The two defendants were each sentenced to 7 years’ imprisonment.  The evidence showed that a sum of HK$46,900,000.00, being the proceeds of drug trafficking, was remitted from Australia to Hong Kong, and the two defendants had taken positive steps to assist D1 who was charged with conspiracy to traffic in heroin.  This Court (Power V-P, Mayo and Stuart-Moore JJA) affirmed the said sentences.
HKSAR v. Shing Siu Ming & Ors (成小明[譯音]及其他被告) [1999] 2 HKC 883，案件的第二及第三被告分別被裁定一項「處理公訴罪行得益的財產」罪名成立。第二被告所處理的金額是 HK$2,645,729.00。第三被告所處理的金額是澳幣$1,527,000.00。有關的款項是販運海洛英的收益。兩名被告各被判七年監禁。証據顯示毒品的收益被人從澳洲滙到香港，款額達 HK$46,900,000.00。兩名被告長以實際行動協助被控串謀販運海洛英的第一被告人。本庭（上訴法庭副庭長鮑偉華、上訴法庭法官梅賢玉及司徒冕）維持原本刑期不變。

The Applicant’s role
申請人的角色

The Applicant’s ground of defence was that he was involved in the present case purely because he rendered assistance to a friend.  That friend said he might obtain a sum of money from a relative and asked the Applicant whether he would assist him in opening a Chinese restaurant in case he did get the money.  Subsequently, that friend told the Applicant he had been given the money and asked the Applicant to collect the cheque from a solicitors’ firm and cash it at the bank on his behalf.  The Applicant did as told.  He alleged that he had no knowledge whatsoever about the whole incident being a fraud, and that the cash he withdrew from the bank was taken away by another man involved in the same case.  He had been unable to contact the said friend ever since then.  He subsequently left Hong Kong because prior to the incident he had promised some other friends to help look after their business on the Mainland.
申請人的答辯理由是他牽涉本案純粹是因為他幫助一位朋友。這位朋友之前告訴申請人他可能從親戚手上拿到一筆錢。他問申請人如果他真是有錢，申請人會不會協助他開辦酒樓業務。申請人表示同意。後來這位朋友告訴申請人他已獲得金錢，並要求申請人替他到律師行拿取支票及到銀行兌現有關支票。申請人照他的話去做。他辯稱他對整件事件是一宗欺詐案件完全不知情，他從銀行提出來的現金是涉案的另外一名男子拿走的。他之後一直聯絡不上他的朋友。他離開香港的原因是在案發前他已經答應了另一班朋友到內地替他們打理生意。

Deputy Judge Sham rejected the Applicant’s defence, holding that the Applicant not only had knowledge of the fraudulent scheme but also participated in it by withdrawing the cash from the bank in person.  He clearly knew the money came from a sham.  In his Reasons for Sentence, the Deputy Judge said:
沈法官不接納申請人的答辯理由。他裁定申請人對這個騙局是知情的，並參與其中一個環節，他的角色就是親自到銀行提取那筆現金。他是清楚知道那筆錢是來自一個欺詐騙局的。沈法官在量刑理由書內這樣說：

In the present case, the victim company was defrauded of more than $31 million, although for sentencing purposes I will of course only take into account the $15 million plus that the defendant dealt with.  It is obvious from the facts of the case that the deceit was orchestrated and well-planned.  I do not know how many people were involved and will not make any unnecessary speculation in that regard.  I am just shocked to learn that, despite the involvement of professionals from the beginning of the transaction, the culprits still managed to obtain such a large sum of money by deceit.
「在本案，受害公司一共被騙去三千一百多萬元，當然本席只會就被告所處理的一千五百多萬元作出量刑。從案情顯示，這個行騙手法很明顯是經過精心策劃和佈署，至於當中涉及多少人，本席並不知曉，亦不會作無謂的揣測，本席只是驚嘆交易過程，從開始就由專業人士參與其內，但仍然都可以令不法之徒成功騙去這麼多金錢。

Defendant, I am satisfied that you were well aware of such a sham and took an active part in it.  It was submitted on your behalf that you were not the mastermind.  But I can tell you that you certainly played a pivotal role in this incident.  But for your willingness to let others use your name and to withdraw the money from the bank in person, this criminal enterprise would not have succeeded … .
被告人，本席認為你是清楚知道這騙局，並且積極參與其中，你的律師說，你並非主謀，但本席可以告訴你，在事件中，你肯定是扮演一個非常重要的角色，沒有你願意借出名義和親身到銀行提款，這個犯罪勾當就不能成事.....。

I believe some other culprits in this incident are still at large, enjoying the ill-gotten money which originated from their crime.  The logic is simple: if offenders who are caught do not have to pay a relatively high price for what they did, this will become a big temptation which lures even more like-minded people to deceptively obtain more money by taking their chances, because in this case they know that they will at most only be imprisoned for a short term even if they are caught.
在這次事件中，本席相信，有其他犯事者已逍遙法外，享受著他們犯罪得來的不義之財。道理很簡單，如果被找獲的犯事者也不用付出相對較大的代價，這只會成為極大的誘惑，只會鼓勵更多有相同想法的人以博一博的心態，去騙得更多，因為在這情況下，他們知道最終事敗，一旦要坐監也只不過是一段短的時間。

In our daily lives, we often hear stories about people employing all sorts of illegal means to defraud others of money, and in some cases the amount involved exceeds that in the present case.  Judging from the cases handled by the courts, this offence is so prevalent that, in my view, it can only be curbed by sufficiently deterrent sentences.  Ideally, the term of the sentence should be linked to the amount of money being defrauded, but it is for the Court of Appeal to lay down sentencing guidelines in this connection at what the Court considers to be an appropriate time.
在我們日常生活中，經常可以聽到有人以各樣的不法手段去騙取他人金錢，有些例子所涉及的金額比本案還要多，從法庭所處理的案件來看，情況是非常普遍，本席認為最終的判刑須具足夠的阻嚇力才可以遏止這種歪風，最理想的是所騙的金錢和刑期掛勾，但這點只能留待上訴庭認為適當的時候向下級法院作出量刑指引。」

Discussion
本庭的意見

We accept that the underlying indictable offence in the present case concerns an orchestrated fraudulent scheme.  Although professionals were involved in the whole transaction, they failed to notice anything deceitful and the Purchaser was defrauded of more than $30 million.  In our judgment, the Applicant not only had knowledge of the scheme but also participated in it.  He should therefore bear a higher level of culpability and receive a more severe sentence.
本庭同意涉及本控罪的原本公訴罪行是一宗經過周詳計劃的欺詐騙局。雖然整個買賣交易是有專業人士參予，但他們並沒有察覺案件存有欺詐成分，買家被騙去三千多萬元。本庭認為申請人不但對案件知情，他更參與其中一環節，所以他須負上較重的刑責，法庭須判處他一個較嚴峻的刑期。

At the same time, we are not persuaded by the approach adopted by Deputy Judge Sham that in light of the prevalence of fraud cases in the society, a severe punishment should be imposed on the Applicant in order to achieve a deterrent effect.  In determining whether a deterrent sentence is to be imposed for a particular type of offence, the court must first obtain information about the prevalence of that offence as a basis for sentencing, and also consider the usual sentences imposed for similar offences.  In our view, a sentencing judge should follow the established sentencing principles and adopt a sentence appropriate to the type of offence in question.  The judge should not enhance a sentence so that it departs from the usual sentence appropriate to the same type of offence, simply because of his own views on certain social issues.  Such an approach is unfair to the defendant and, what is more, amounts to a disregard of sentencing principles.
但本庭不認同沈法官所說因社會上出現頗多的欺詐案，因而要對本案申請人施以重刑以起阻嚇作用的做法。法庭考慮是否對某類案件採取阻嚇性刑罰之前必須先取得有關類別案件的普遍性的資料作為理據，並須同時考慮同類案件一般被判處的刑期。本庭認法官在量刑時需要落實一些已經訂立的量刑原則及採用一個適用於該類案件的刑期。法官不應該只就他個人對社會事情的看法而將刑期調高至偏離一般同類案所件適用的刑期。法官這樣做不單止是對被告人不公道，更甚的是他忽視了量刑原則。

Although Deputy Judge Sham said he would only sentence the Applicant on the basis of the $15,000,000.00 that he had dealt with, it appears from his Reasons for Sentence that of the sentence was in fact based on the facts of the fraud case.  Although the Applicant had knowledge of the fraud and participated in the scheme, he was not charged with “fraud”.  Judging from the Deputy Judge’s imposition of a term of as long as 6½ years, the only conclusion we can draw is that he had placed undue emphasis on the underlying indictable offence at the time of sentencing.
沈法官雖然說他只會就申請人所處理的 $15,000,000.00作出量刑，但從判刑理由書來看，有關的刑期其實是根據欺詐案件本身的案情而作出的。雖然申請人對有關的欺詐行為是知情的，並且參與其中一環節，但他並不是被控「欺詐罪」。另外從沈法官採用高達六年半監禁的刑期來看，本庭唯一的結論是他在量刑時的確是過份着重整個公訴罪行。

Conclusion
總結

Having taken into account the sentences imposed for similar offences and the Applicant’s culpability, we consider that the appropriate term of imprisonment should be 5 years and 8 months.
本庭在考慮過同類案件的刑期及申請人的刑責後認為適當的刑期是五年八個月監禁。

Ms. Winsome Chan, Senior Government Counsel, for the Respondent.
答辯人：由律政司高級政府律師陳淑慧代表。

Mr. Paul Wu, instructed by Kevin Ng & Co. on assignment by the Legal Aid Department, for the Applicant.
申請人：由法律援助署委派吳建華律師行轉聘吳建五大律師代表。