Hon Cheung JA (delivering the reasons of 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 two counts of Fraud, contrary to section 16A of the Theft Ordinance, Cap 210. Deputy District Court Judge Yip, as he then was, convicted the Applicant on both counts after trial and sentenced him to 15 months’ imprisonment. The application applied for leave to appeal against convictions. This Court dismissed his application after hearing. The reasons are as below:
申請人被控兩項「詐騙」罪，違反《盜竊罪條例》(《條

Particulars of offence
例》) (香港法例第210章）第16A條。案件經區域法院暫委法官葉佐文(當時官階)審理後，申請人被裁定兩項罪名成立及被判監15個月。申請人就定罪提出上訴許可申請，本庭在上訴聆訊後駁回申請，以下是本庭的判案理由。

It is alleged in the two charges that the Applicant, an employee of Dah Chong Limited (Dah Chong Hong), concealed the interests he had in two companies, and induced Dah Chong Hong to engage the two companies to provide training and consulting services to its employees.
控罪詳情

The particulars of the first charge were:
該兩項控罪指申請人身為大昌貿易行有限公司(「大昌行」)的僱員，隱瞞他在兩間公司擁有權益的事實，並誘使「大昌行」聘用該兩間公司為其僱員提供訓練及顧問服務。

‘[The Applicant], between 15th day of May 2006 and the 7th day of September 2007, in Hong Kong, by deceit, namely, by concealing from and failing to disclose to Dah Chong Hong Limited of his or his parents’ interests in Comwell Management Consultant Company Limited whilst the said [Applicant] was an employee of Dah Chong Hong Limited and was under a duty to make full disclosure of any existing or potential conflict with Dah Chong Hong Limited’s interest, and with intent to defraud, induced Dah Chong Hong Limited to engage Comwell Management Consultant Company Limited to provide training and consulting services to Dah Chong Hong Limited, which resulted in benefit to Comwell Management Company Limited or in prejudice or a substantial risk of prejudice to Dah Chong Hong Limited.
第一項控罪的控罪詳情如下：

Except the period of offence and name of the company, the particulars of the 2nd charge were the same as the first one. The period of offence of the 2nd charge was between 15th May 2006 and 8th October 2007, the name of the company was Host International Company Limited (Host).
「[申請人]於2006年5月15日至2007年9月7日期間在香港，藉作欺騙(即向大昌貿易行有限公司隱瞞和沒有向大昌貿易行有限公司披露他或他父母在金滙管理顧問有限公司的權益，而當時該[申請人]是大昌貿易行有限公司的僱員並有責任全面披露任何與大昌貿易行有限公司之間現有或潛在的利益衝突)並意圖詐騙而誘使大昌貿易行有限公司聘用金滙管理顧間有限公司向大昌貿易行有限公司提供訓練及顧問服務，導致金滙管理顧問有限公司獲得利益，或導致大昌貿易行有限公司蒙受不利或有相當程度的可能性會蒙受不利。」

Prosecution Case
第二項控罪的控罪詳情除了犯案期間和公司名稱外都與第一項控罪相同。第二項控罪的犯案期間是由2006年5月15日至2007年10月8日，公司名稱是「灝鍶國際有限公司」(「灝鍶」)。

The shareholder and director of the aforesaid Comwell Management Consultant Company Ltd (Comwell) and Host were the Applicant’s parents. According to the evidence of the Applicant’s ex-wife (PW1), she and the Applicant took care of the business of the two companies from 1997 and 1998, the respective years when the companies were founded, to 2003. He was responsible for organizing training programmes and she handling paperwork and internal affairs. The parents of the Applicant had never taken care of the business of the two companies. The Applicant’s ex-wife divorced him in 2003 and she had never again taken care of the business of the two companies since then.
控方案情

The Applicant had been employed by Dah Chong Hong since 24th June 2002 as Training Manager and attached to the Human Resources Section of Dah Chong Hong. His scope of duties included organizing training programmes for the staff of Dah Chong Hong, identifying suitable training services companies, and recommending some companies to his supervisor/s for providing training to the staff of Dah Chong Hong.
上述的「金滙管理顧問有限公司」(「金滙」)及「灝鍶」的股東及董事分別是申請人的父母親。根據申請人的前妻(控方證人之一)的證供，這兩間公司的業務分別自1997及1998年成立以來至2003年都是由她和申請人打理的。申請人負責策劃訓練課程，而她則負責處理文件及內務。申請人的雙親從沒有打理過這兩間公司的業務。申請人的前妻在2003年與申請人離婚，之後就再沒有打理這兩間公司的業務。

In respect of the first charge, on the recommendation of the Applicant, Dah Chong Hong awarded seven training contracts to Comwell between February 2006 and September 2007. Dah Chong Hong paid a total of HK$1,056,500 to Comwell for the seven contracts.
申請人自2002年6月24日受聘於「大昌行」，職位是培訓經理，隸屬於「大昌行」的人力資源部。申請人的工作範圍包括為「大昌行」員工安排培訓課程、物色合適的培訓服務公司及向其上司推薦一些公司為「大昌行」的職員進行培訓。

In respect of the second charge, on the recommendation of the applicant, Dah Chong Hong awarded five training contracts to Host between August 2006 and October 2007 and paid it HK$670,996.05.
關於第一項控罪，在2006年2月至2007年9月期間「大昌行」在申請人推薦下批出七份培訓合約給「金滙」。「大昌行」就有關的七份合約共支付了HK$1,056,500給「金滙」。

The Prosecution alleged that when recommending Comwell and Host to Dah Chong Hong, the Applicant did not declare his or his parents’ interests in Comwell and Host. The supervisor of the Applicant said in making the selection, he would consider the experience of the contractors, their capabilities and charging rates before deciding to whom the contract should be awarded. The Applicant would then be informed of the result orally. Had he been aware of the interests the Applicant had in the Companies when considering the courses the Applicant recommended or when making payment, he would no doubt have refused to accept the companies he recommended.
至於第二項控罪，在2006年8月至2007月10月期間「大昌行」在申請人的推薦下批出五份培訓合約給「灝鍶」及支付了HK$670,996.05給「灝鍶」。

Code of Conduct
控方指申請人在推薦「金滙」及「灝鍶」給「大昌行」時沒有就他或他的父母在「金滙」及「灝鍶」的權益作出申報。申請人的上司表示他在批核培訓合約前會考慮承辦商的資歷、能力和價錢，然後將結果以口頭形式通知申請人。假若他在考慮申請人所推薦的課程或付款時知道申請人在有關的公司擁有權益的話，他一定不會接納申請人所推薦的有關公司。

The learned judge ruled that the applicant had obtained from Dah Chong Hong an English copy of staff Code of Conduct (the Code), item 1.4 of which deals with conflicts of interests. Dah Chong Hong had given the Chinese version of the Code to its staff. As both parties agreed in the appeal that the English and the Chinese versions are the same, this Court therefore adopts the Chinese version of item 1.4:
《紀律守則》

‘1.4Conflict of Interest Situations
葉法官裁定申請人從「大昌行」獲取一份英文版本的僱員《紀律守則》(《守則》)，守則的第1.4項是處理利益衝突的規則。「大昌行」亦有派發《守則》的中文版本給其員工。由於在上訴時控辯雙方均同意中、英版本的內容相同，本庭因此採用中文版本第1.4項的內容：

Conflict of interest situations arise when the personal interests of employees compete or conflict with the interests of Company.  Such situations at best can lead to divided loyalty and at worst can result in corruption or other questionable practices.
「1.4 處理利益衝突情況

The most common types of conflict of interest situations employees may be involved in are:
產生利益衝突是指當僱員的個人利益與公司的利益互相競爭或有抵觸。在這種情況下，輕則僱員會分弱對公司的忠誠，而重者則會導致貪污或誘發其他不正當的行為。

having undeclared financial interests in any supplier, contractor or party that do business with the Company;
以下是僱員最常遇到的幾類利益衝突情況:

offering assistance to the Company’s competitors through taking on part-time employment of “consultancy” service;
與本公司有商業往來的任何供應商、承包商或團體中擁有財務權益，而未作聲明；

engaging in production of services or goods in competition with the Company;
藉任兼職或提供「顧問」服務以協助本公司的競爭對手；

performing outside work on the Company’s premises and using the Company’s time and assets; and
私下參與提供服務或製造貨品的商業活動，與公司競爭生意；

giving unduly favourable treatment to particular supplier, contractor, customer, job applicant or subordinate for personal reasons.
在公司內從事外間的工作及擅用公司的時間和資產；及

Every employee of the Company should take it as his personal responsibility to avoid engaging in situation that may lead to or be involved in conflict of interest.  He should at all times ensure that his dealings with customers, suppliers, contractors and colleagues do not place him in a position of obligation that my lead to a conflict of interest.
為私人理由特別優待某供應商、承包商、顧客、職位申請人或下屬。

In cases where an employee or his immediate family might have engaged in or are considering engaging in business, investments or activities that might have existing or potential conflict with the Company’s interests, it is the responsibility of the employee to discuss and make full disclosure in writing to the General Manager, Group Human Resources & Administration.’
所有僱員都有責任避免牽涉在利益衝突的情況或可能引致利益衝突的情況中。與顧客、供應商、承包商及同事在公事往還時，應時常保持警覺，確保不會因而負上責任而引致日後出現利益衝突情況。如某僱員或其直系親屬正從事或考慮從事一些與本公司有利益衝突或可能會有衝突的事務、投資或活動，他有責任以書面向集團人力資源及行政總經理申報並詳述其全。」

Decision of the learned judge
葉法官的裁決

The learned judge ruled that the Applicant clearly knew that according to the Code, he had the duty towards Dah Chong Hong to declare his interests in the two companies, but he intentionally and dishonestly concealed or failed to disclose them. He was therefore guilty of Fraud.
葉法官根據《守則》裁定申請人是清楚知道他有責任向「大昌行」申報他在該兩間公司擁有權益，但他蓄意及不誠實地隱瞞或不披露事件，因此申請人是干犯了「欺騙」罪。

Section 16A of the Ordinance
《條例》第16A條

Section 16A of the Ordinance states:
《條例》第16A條說：

‘(1)If any person by any deceit (whether or not the deceit is the sole or main inducement) and with intent to defraud induces another person to commit an act or make an omission, which results either -
「(1) 如任何人藉作任何欺騙(不論所作欺騙是否唯一或主要誘因)並意圖詐騙而誘使另一人作出任何作為或有任何不作為，而導致—

in benefit to any person other than the second-mentioned person; or
(a) 該另一人以外的任何人獲得利益；或

in prejudice or a substantial risk of prejudice to any person other than the first-mentioned person.
(b) 該進行誘使的人以外的任何人蒙受不利或有相當程度的可能性會蒙受不利，

the-first mentioned person commits the offence of fraud and is liable on conviction upon indictment to imprisonment for 14 years.
則該進行誘使的人即屬犯欺詐罪，一經循公訴程序定罪，可處監禁14年。

(2)For the purposes of subsection (1), a person shall be treated as having an intent to defraud if, at the time when he practices the deceit, he intends that he will by the deceit (whether or not the deceit is the sole or main inducement) induce another person to commit an act or make an omission, which will result in either or both of the consequences referred to in paragraphs (a) and (b) of that subsection.’
(2) 為施行第(1)款，任何人如在進行欺騙時意圖藉所進行的欺騙(不論所進行的欺騙是否唯一或主要誘因)誘使另一人作出任何作為或有任何不作為，而因此會導致該款(a)及(b)段所提述的兩種後果或其中一種後果產生，則該人須被視為意圖詐騙。」

According to 16A(3), ‘deceit’ is defined as: ‘any deceit (whether deliberate or reckless) by words or conduct (whether by act or omission) as to fact or as to law, including a deceit relation to the past, the present or the future and a deceit as to the intentions of the person practising the deceit or of any other person.’
根據第16A(3)條，「欺騙」的定義是：「就事實或法律而以語言文字或行為作出的任何欺騙，包括與過去、現在或將來有關的欺騙，以及就進行欺騙的人或任何其他人的意圖而作出的欺騙，而在本定義中，行為指任何作為或不作為，欺騙則指蓄意或罔顧後果地作出的欺騙」。

Grounds of Appeal
上訴理由

Mr David Ma, Counsel for the applicant, submitted that the key to this case lay with the following four points:
代表申請人的馬維騉大律師指本案的關鍵在於以下四點：

Whether or not the Code can give the Prosecution sufficient basis to make the Applicant legally obliged to make the disclosure?
《守則》可否給予控方一個足夠的基礎令申請人負上法律責任作出披露；

Was the Applicant in breach of the stipulations of the Code?
申請人有否違反《守則》的規定？

If he were, should he therefore be held criminally liable?
就算申請人有違反《守則》的規定，他是否因此而須負上刑責？

Was he dishonest?
申請人是否不誠實？

Mr Ma submitted that the answer to all four questions was ‘No’.
馬大律師指上述四個問題的答案都是「不」。

Whether or not the Code can give the Prosecution sufficient basis to make the Applicant legally obliged to make the disclosure?
《紀律守則》能否提供控方一個足夠的基礎令申請人負上法律責任作出披露？

Mr Ma submitted that according to paragraph 1.4 of the Code, there is ‘conflict of interest’ when ‘the personal interests of employees compete or conflict with the interests of the Company’. As ‘mutual competition’ is not applicable to the present case, the only issue is therefore ‘conflicting interests’.
馬大律師指出根據《守則》第1.4段，「利益衝突」是指「僱員的個人利益與公司的利益互相競爭或有抵觸」。由於「互相競爭」不適用於本案，故此本案只涉及「利益抵觸」的爭議。

He said that the pre-condition of the entire item 1.4 is that it must be interpreted as in the above, that is, merely by not declaring his interests in the two companies does not mean that the applicant necessarily had ‘conflicting interests’. Whether or not there were ‘conflicting interests’ depends on whether his own personal interests conflicted with those of Dah Chong Hong. No doubt, before deciding which contractors to engage, the most important consideration Dah Chong Hong had was whether the contractors provided good quality services at reasonable prices. But the Prosecution had neither adduced evidence on the quality of services or level of charges of the two companies, nor evidence on the level of charges of other companies providing similar services. In passing sentence, the learned judge even said expressly that he agreed to the submission of the defence on this. Mr Ma submitted that in the absence of such evidence, the Court could not properly find if the interests the applicant had in the two companies were in conflict with those of Dah Chong Hong. If they were not, it could not have constituted the so-called ‘conflict of interest’ in item 1.4, and the applicant was not therefore bound by it to declare.
他說整項1.4段都必須以上述的解釋作為先決條件，即若申請人只是擁有該兩間公司的權益而不作申報，這不等於他必定有「利益衝突」。「利益衝突」的存在應視乎他個人的利益與「大昌行」的利益是否有抵觸。毫無疑問，「大昌行」在決定聘用哪一間承辦商前，最重要的考慮是它們的服務質素是否優良及價錢是否合理，但控方既沒有就該兩間公司的服務質素或收費水平提出證據，也沒有提出證據來反映其他公司對於同類形的服務收費水平。葉法官在判刑時更明言他同意辯方有關方面的陳詞。馬大律師稱在缺乏這些證據支持下，法庭是不能恰當地裁定申請人在該兩間公司擁有權益有否與「大昌行」的利益抵觸。若沒有的話，便不能構成第1.4段內的所謂「利益衝突」了，因此申請人亦不會受制於申報的規定。

First, this Court is of the view that the charges allege that the applicant concealed and failed to disclose his and his parents’ interests in the two companies, and this concerns false representations through ‘omission’. The Court of Appeal in the case of HKSAR v Chan Shu Hung and Sze Yuen Nau (CACC512/2001) agreed to the following point of law: For a concealment of facts to be transformed into a false representation, the precondition is that the concealing party has a duty to disclose the relevant facts to the party from whom the facts are concealed. In other words, unless the parties have a special relationship or are bound by contract of a special nature so that the concealing party has the duty to disclose to the other party the facts, otherwise, the concealment of those facts would not be transformed into false representation.
首先本庭認為有關的控罪是指申請人向「大昌行」隱瞞及沒有披露他和雙親在該兩間公司擁有權益的事，這是涉及「不作為」(‘omission’)的虛假陳述。上訴法庭在香港特別行政區訴陳樹雄及施緣鈕（CACC 512/2001）一案中同意以下的法律觀點 ：隱瞞事實這一點要構成虛假陳述的先決條件是隱瞞一方有責任向對方披露有關事實，換句話說，除非雙方有特殊關係或合約的性質特殊，令隱瞞一方有責任向對方披露有關事實，否則隱瞞該些事實不會構成虛假陳述。

In the present case, the Applicant is an employee of Dah Chong Hong. According to the Code, one of the situations where personal interests conflict with the interests of the Company is when the ‘employee has undeclared financial interests in any supplier, contractor or party that does business with the Company.’ The Code also says that in cases where an employee or his immediate family might have engaged in or are considering engaging in business, investments or activities that might have existing or potential conflict with the Company’s interests, it is the responsibility of the employee to discuss and make full disclosure in writing to the General Manager, Group Human Resources and Administration. This Court finds that in the light of the employee/employer relationship between Dah Chong Hong and the Applicant and the stipulations of the Code, the Applicant had the duty to disclose to Dah Chong Hong the interests in question.
在本案，申請人是「大昌行」的僱員，根據《守則》僱員的個人利益與公司的利益有抵觸的其中一種情況是「僱員與公司有商業往來的任何供應商、承包商及團體中擁有財務權益而未作出聲明」。《守則》更說如僱員或其直系親屬正從事或考慮從事一些與公司有利益衝突或可能會有衝突的事務、投資或活動，他是有責任以書面形式向集團人力資源及行政總經理申報並詳述其全。本庭裁定鑑於申請人與「大昌行」的僱主/僱員關係，再加上《守則》的規定，申請人是有責任向「大昌行」披露其權益的。

Why were the interests the Applicant had in the two companies in conflict with those of his employer? The answer is obvious. It was the Applicant’s duty to recommend to his employer contractors who were interested in getting the training contracts of Dah Chong Hong, contracts which the training companies he or his parents owned were also interested in getting. Such connection firstly had ‘potential’ conflict with the interests of the employer, as the employer selected contractors basing on the recommendations of the Applicant. ‘Real’ conflict of interests arose when, in order to get the contracts, the Applicant refrained from recommending to his employer companies which offered terms similar to, or even more favourable than, those offered by his own companies. The Code required that employees to disclose to the employer when the former situation arose for the purpose of dealing with such ‘potential’ conflict of interests. Even if in the end, the applicant did not make use of his office to make unreasonable recommendations, his employer was still entitled to make the selections on fully informed basis. In the present case, the evidence the Prosecution relied on was had Dah Chong Hong been aware of the interests the applicant had in the two companies, it would not have selected them as its service providers.
為何申請人在該兩間公司擁有權益會與他的僱主的利益產生衝突呢？答案是明顯的。申請人的職務是向僱主推薦一些希望取得「大昌行」培訓課程合約的承辦商，而他本人或他雙親所擁有的培訓公司亦有意取得「大昌行」的合約，這個關係與其僱主的利益首先產生「潛在」的利益衝突，因為其僱主是根據申請人的推薦而選用承辦商的。當申請人為了爭取承辦合約而不向其僱主推薦一些與他的公司有相約或甚至更好條件的承辦商時就會產生「實際」的利益衝突。《守則》規定僱員需要在第一種例子出現時向僱主作出披露，這就是針對這種「潛在」的利益衝突情況。就算最終申請人沒有利用職權作出不合理的推薦，但他的僱主是有權在獲悉全部事實的情況下作出選擇。本案控方所依賴的證據是「大昌行」如得悉申請人在這兩間公司擁有權益的話，它就不會選擇它們為「大昌行」提供服務。

For the above reasons, this Court does not accept the submission of Mr Ma. As mentioned earlier in this judgment, since there existed potential conflict between the personal interests of the Applicant and those of Dah Chong Hong, the Applicant had to disclose his interests to his employer, the Prosecution does not have to adduce the evidence Mr Ma said it has to before it could prove that the Applicant was under a duty to disclose.
基於上述原因本庭不同意馬大律師的陳述。正如上文所說，申請人本身的利益及「大昌行」的利益已存有潛在利益衝突情況，所以申請人是有需要向其僱主披露其利益的，控方是無須提供馬大律師所指的證據才可以證明申請人須負上披露的責任。

Was the Applicant in breach of the stipulations of the Code?
申請人有否違反《紀律守則》的規定？

Mr Ma submitted that there is no evidence in the case to show that the applicant knew or believed that the interests he had in the two companies were in conflict with those of Dah Chong Hong. In the absence of evidence on the quality of service and charges, the Prosecution could not rule out the possibility that the Applicant had borne in mind the interests of Dah Chong Hong, and brought about the possibility where the interests of Dah Chong Hong were not in conflict with those he had in the two companies. Besides, how the so-called ‘conflict of interest’ referred to in item 1.4 should be interpreted was up to the judgment of the employee (i.e., the Applicant). When there is no evidence to show that the interests the Applicant had in the two companies conflicted with (harmed) those of Dah Chong Hong, the Prosecution failed to prove that the Applicant knew that he had the duty to declare. Merely proving that the Applicant had been given the Code and understood its contents does not mean that it had been proved that he knew or believed that the interests he had in the two companies were in conflict with those of Dah Chong Hong, and hence under the duty to disclose.
馬大律師指案件沒有證據顯示申請人是知道或相信「大昌行」與他在有關的兩間公司擁有權益會產生抵觸。在沒有有關服務質素及價錢的證據的情況下，控方不能排除申請人是有顧及「大昌行」的利益，而達致一個「大昌行」的利益沒有與他在有關的兩間公司擁有權益有抵觸的可能性。況且，如何闡釋第1.4段內所謂「利益衝突」是要依賴僱員(即申請人)的判斷。在缺乏可顯示「大昌行」的利益與申請人在有關的兩間公司擁有權益有抵觸(侵害)的情況下，控方是未能證明申請人是知道他有責任作出申報的。單單證明到申請人曾獲派《守則》及明白它的內容不等於證明到申請人是知道或相信他在有關的兩間公司擁有權益與「大昌行」的利益有抵觸，他因而有申報的責任。

As mentioned earlier in this judgment, this Court is of the view that the correct approach to analyze this case is to see if the position of the Applicant vis-a-vis the interests of the Company could give rise to any potential conflict or inconsistency of interests; if so, such conflict or inconsistency was sufficient to require the applicant to declare; the Prosecution did not have to adduce further evidence to prove that the acts of the Applicant had actually breached the stipulations on conflict of interests.
本庭認為正如上文所說，分析本案的正確方法是申請人的立場與公司的利益是否出現潛在的利益衝突或抵觸，如果有的話這類的衝突或抵觸足以令申請人作出申報，控方無須提供進一步的證據來證明申請人的行為是實際上違反了利益衝突的規定。

If he were in breach of the Code, should he therefore be held criminally liable?
就算違反《紀律守則》，申請人是否因此須負刑責？

Mr Ma said the Code was not legally binding; the worst that could happen to the applicant for breaching the Code was to be dismissed by Dah Chong Hong but not to be held criminally liable.
馬大律師說《守則》並沒有法律約束力，違反《守則》的最嚴重後果只不過是申請人會被「大昌行」解僱，而不是他須負上刑責。

This Court agrees that looking at the Code alone, it imposes restrictions on the civil acts of the employees vis-a-vis Dah Chong Hong, but this Court is of the view that if the Applicant was in breach of the Code, and had the dishonest intention to defraud Dah Chong Hong, inducing it to award contracts to Comwell and Host, this can constitute a criminal offence under section 16A. Breaching the Code is an important piece of evidence to support the charge. ‘Deceit’ is interpreted as to mean any deceit whether by ‘act’ or ‘omission’; the latter means to conceal facts that should have been disclosed to the employer. The Applicant’s failure to declare was an ‘omission’. If his intention was dishonest as mentioned later in this judgment, this constitutes the offence of ‘Fraud’.
本庭同意單以《守則》來說，它是「大昌行」與其僱員在民事行為上的制約，但本庭認為申請人若違反《守則》，並且有不誠實的意圖欺騙「大昌行」，誘使它批出合約予「金滙」及「灝鍶」，這是可以構成第16A的刑事罪行的。違反《守則》是支持控罪的其中一項重要的證據。「欺騙」的釋義包括以「行為」所作出的欺騙，而行為亦包括「不作為」，「不作為」即是隱瞞需要向僱主披露的事實。申請人不作出申報是一種「不作為」，若其意圖如下文所說是不誠實，這就可構成「欺詐」罪。

Was the Applicant dishonest?
申請人是否不誠實？

Mr Ma submitted that breaching the Code was not equal to being dishonest. The main consideration an employee has when deciding whether or not to observe the Code is if he will be punished or even dismissed by the Company, a situation where the element of honesty or dishonesty does not usually exist.
馬大律師說違反《守則》並不等於不誠實。僱員是否遵守《守則》主要是考慮到自己會否被公司處罰或甚至被解僱，這情況通常都不存在誠實與否的因素。

This Court agrees that civil and criminal liabilities are different. In this case, the learned judge had rejected the defence that the applicant had made disclosure to his supervisor. According to the Code, the applicant was required to disclose to his employer the interests he had in the two Companies, but he chose not to do so, and elected not to give evidence. In these circumstances, the learned judge was entitled to infer that the intention the applicant had was a dishonest one.
本庭同意民事及刑事責任是有分別的。在本案葉法官已經拒絕接納申請人曾經向其上司作出披露的辯稱。根據《守則》申請人是需要向其僱主披露他在該兩間公司擁有權益的，但他選擇不這樣做，同時他更選擇不作供自辯。葉法官在這情況下是有權作出申請人的意圖是不誠實的推論。

Mr Robert Lee, Senior Assistant Director of Public Prosecutor, of the Department of Justice, for the Respondent
答辯人：由律政司署理高級助理刑事檢控專員李鏡鏞代表。

Mr David Ma, instructed by Tang, Wong and Cheung, for the Applicant
申請人： 由鄧黃張律師事務所轉聘馬維騉大律師代表。