Hon Poon JA (giving the reasons for judgment of the Court):
高等法院上訴法庭法官潘兆初頒發判案理由書：

Introduction
前言

A1. Conviction
A1.定罪

The applicant was charged with two charges 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.
申請人被控兩項「處理已知道或相信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》第25(1) 及(3) 條。

The first charge particularized that the applicant, between the 14th day of September, 2010 and the 2nd of February 2012, both dates inclusive, in Hong Kong, knowing or having reasonable grounds to believe that property, namely, a total sum of €1,680,267.40 European currency, $77,169.33 United States currency and $69,381.99 Hong Kong currency in the account with The Hongkong and Shanghai Banking Corporation Limited(“HSBC”) in the name of China Mineral Offshore Holdings Limited(“China Mineral Offshore”) (“account 1”), in whole or in part directly or indirectly represented the proceeds of indictable offence, dealt with the said property.
控罪一的控罪詳情指申請人於2010年9月14日至2012年2月2日期間（包括首尾兩日）在香港，知道或有合理理由相信某項財產，即China Mineral Offshore Holdings Limited （"China Mineral Offshore"）名下香港上海匯豐銀行有限公司（"匯豐"）帳戶（"帳戶一"）的總額為1,680,267.40歐元、美金77,169.33元及港幣69,381.99元的款項，全部或部分、直接或間接代表從可公訴罪行的得益而仍處理該財產。

The second charge particularized that the applicant, between the 24th day of November 2010 and the 4th day of October 2011, both dates inclusive, in Hong Kong, knowing or having reasonable grounds to believe that property, namely, a total sum of €1,042,796.16 European currency and $870,017.75 Hong Kong currency in the account with the Hongkong and Shanghai Banking Corporation Limited(‘account 2”) in the name of Asian Green Technology Holdings Limited (“Asian Green”), in whole or in part directly or indirectly represented the proceeds of indictable offence, dealt with the said property.
控罪二的控罪詳情指申請人於2010年11月24日至2011年10月4日期間（包括首尾兩日）在香港，知道或有合理理由相信某項財產，即Asian Green Technology Holdings Limited （"Asian Green"）名下匯豐帳戶（"帳戶二"）的總額為1,042,796.16歐元及港幣870,017.75元的款項，全部或部分、直接或間接代表從可公訴罪行的得益而仍處理該財產。

The applicant pleaded not guilty to all the charges and stood trial before H. H. Judge Gary Lam (“the trial judge”).
申請人否認所有控罪，在區域法院法官林嘉欣（"原審法官"）席前受審。

The trial judge found him guilty of both charges on 5 February 2014 and sentenced him to a total of 4 years and 6 months’ imprisonment on 21 February 2014.
2014年2月5日，原審法官裁定申請人兩項控罪都罪名成立。同年2月21日，原審法官判申請人總刑期共4年6個月的監禁。

A2.Abandonment of appeal
A2. 放棄上訴

The applicant applied for leave to appeal against the two convictions by filing Form XI on 3 March 2014. On 14 April, the Court informed him of the arrangement of setting the matter down for hearing and directed him to file grounds of appeal and written submissions within 7 days. He did not do as directed.  The Court later set the matter down for hearing for 10 July 2014.
2014年3月3日，申請人提交表格XI，就其兩項定罪申請上訴許可。4月14日，法庭通知申請人有關排期聆訊的安排及要求申請人在七天內呈交上訴理據及書面陳詞，申請人卻沒有按法庭的指示行事。之後，法庭把案件排期在2014年7月10日聆訊。

The applicant filled in a “Prisoner’s Statement” on 30 May 2014:
2014年5月30日，申請人填寫「犯人陳述書」：

“I am determined to cancel the application to appeal against conviction in respect of DCCC 721/2013. I understand that once the appeal is cancelled, I cannot under general circumstances apply to appeal against the convictions in this case again.”
“我堅決為案件編號DCCC 721/2013申請取消上訴不服定罪，我明白取消上訴後，在一般情況下我是不能夠再次為此案申請有關上訴不服定罪。”

On 3 June 2014, the applicant signed and submitted to the Court a Notice of Abandonment of Appeal to abandon his application for leave to appeal against conviction. The Prisoner’s Statement was attached to the Notice of Abandonment of Appeal. On 4 June, the Court informed the applicant that his application for leave to appeal was dismissed as he had abandoned it.
2014年6月3日，申請人簽署並向法庭呈交「放棄上訴通知書」，放棄其定罪上訴許可申請；「放棄上訴通知書」附帶了「犯人陳述書」。6月4日，法庭通知申請人其上訴許可申請已因他放棄上訴而被撤銷。

A3.Two applications
A3.兩項申請

On 10 November 2014, the Court of Final Appeal handed down its judgment on HKSAR and Pang Hung Fai.
2014年11月10日，終審法院頒下香港特別行政區訴彭洪輝的判詞。

On 29 September 2015, the applicant applied to court to ask the Court of Appeal to treat his Notice of Abandonment of Appeal as a nullity and to restore his application for leave to appeal (“application to treat the abandonment as a nullity”). He filed an affirmation by Chiu Bo Kwong (transliteration) (“Mr Chiu”), a fellow prisoner, to support his application.
2015年9月29日，申請人向法庭提出申請，並存檔他自己曾和他一起服刑的囚友趙保光（"趙先生"）的誓章作支持，要求上訴法庭視其「上訴許可通知書」為無效（nullity）及重啟他的上訴許可申請（"「將放棄上訴視作無效的申請」"）。

The applicant said in his affirmation that when he initially lodged the appeal, he was not legally represented. He was misled by Mr Chiu into believing that an application to appeal would jeopardize his chance of getting parole, and only gave up the appeal as he also had used up all his savings on the trial. The wording used in the Prisoner’s Statement was taught to him by Correctional Services Officers when they arranged him to sign the Notice of Abandonment of Appeal. He had not sought legal advice, and was under the impression that even if the Notice of Abandonment of Appeal had been filed, he could still restore the appeal in future as long as there was ground to do so. The abandonment would not lead to the permanent loss of the chance to appeal. Mr Chiu also made an affirmation to confirm that on a day in March 2014, he told the applicant that if he insisted on applying for appeal, his chances of getting parole from the Release under Supervision Board would be jeopardizied.
申請人在其誓章中稱，他當初提出上訴時並沒有聘請律師，被趙先生所誤導，以為申請上訴一事會影響其得到假釋的機會，並因積蓄在原審時幾已耗盡，故此才放棄上訴；｢犯人陳述書｣的用詞是懲教署人員安排他簽署「放棄上訴通知書」時所教的；他沒有諮詢法律意見，亦以為即使存檔「放棄上述通知書」，只要日後有理據仍可重啟上訴，不至於永久喪失上訴機會。趙先生亦作出了一份誓章，確認他曾於2014年3月某天告訴申請人，如果他堅持上訴會影響向他釋囚委員會申請假釋的機會。

The applicant learned of the Court of Final Appeal’s decision on HKSAR v Pang Hung Fai after he had abandoned the appeal. After seeking legal advice, he felt that there was strong ground to appeal against the convictions in the present case. He therefore made an “application to treat the abandonment as a nullity” and attached the “preliminary grounds of appeal against conviction” drafted by his counsel, Mr Wong Man Kit, SC and the transcript of the trial proceedings to the affirmation. Mr Wong advanced a total of eleven grounds of appeal with ground one being the most important one, namely, the trial judge did not apply the legal principle laid down by the Court of Final Appeal in HKSAR v Pang Hung Fai and therefore erred in finding that the applicant had reasonable ground to believe that the properties in charge one and charge two was “black money”.
申請人在放棄上訴後，得悉終審法院案件香港特別行政區訴彭洪輝的判決，並在諮詢法律意見後，認為本案有強力的不服定罪上訴理據，於是作出｢將放棄上訴通知視作無效的申請｣，他並於誓章內附上代表他的資深大律師黃敏杰所草擬的「初步不服定罪上訴理由書」及原審聆訊謄本。黃資深大律師提出共十一個上訴理由，最主要的上訴理由是「理據一」，即原審法官沒有應用終審法院在香港特別行政區訴彭洪輝一案中所定下的法律原則，因而錯誤地裁定申請人有合理理由相信控罪一及控罪二的款項是「黑錢」。

The applicant considered that it was not fair to him if he was unable to appeal again, and said that if the Court of Appeal found that the Notice of Abandonment of Appeal was still valid and rejected his application to treat the abandonment as a nullity, he would apply to ask the Court of Appeal to advise the Chief Executive to refer the present case to the Court of Appeal to deal with pursuant to section 83P (“section 83P”) of the Criminal Procedure Ordinance (“the section 83P application”).
申請人認為如果他再不能上訴對他是不公平的，又說即使上訴法庭裁定「放棄上訴通知書」仍然有效，而拒絕「將放棄上訴視作無效的申請」，他會申請要求上訴法庭能夠忠告行政長官根據《刑事訴訟程序條例》第83P條 （"第83P條"） 將本案轉交上訴法庭處理（"「第83P條的申請」"）。

A4.Application refused
A4.申請拒絕

On 22 January 2016, after hearing the matter, we rejected the application to treat the abandonment as a nullity and the section 83P application. We now give reasons for the decision.
2016年1月22日，本庭經聆訊後，拒絕｢將放棄上訴視作無效的申請｣及「第83P條的申請」。本庭現頒下判案理由書。

B.The trial
B. 審訊

B1.Facts of the case
B1.案情

The two companies involved in the case were set up in 2010. They opened the accounts involved in the case with The Hong Kong and Shanghai Banking Corporation Limited on 14 September and 24 November respectively. Their shareholder was an Irishman by the name John Hegarty (“Hegarty”). The only director of these two companies was a company called LB Corporation Services Ltd (“LBCS”) solely owned by the applicant. LBCS had once been also the company secretary of Asian Green. The applicant was the sole signatory of the bank accounts of the two companies involved in the case. He was also the sole owner of Scripo Limited (“Scripo”), a BVI company and A&C Business Consultant Ltd (“A&C”), and was the sole signatory of the bank accounts of the companies. The accounts involved in the case had a number of deposits and withdrawals made with the bank account of Scripo, and A&C had been the company secretary of the two companies involved in the case. The applicant transferred on 31 July 2010 the shares he solely owned in A&C to his elder sister. She and her mother were to become the directors of the company.
涉案的兩間公司成立於2010年，並分別於同年9月14日及11月24日在匯豐開設涉案賬戶。它們的股東是一位名為John Hegarty（"Hegarty"）的愛爾蘭人士。這兩家公司的唯一董事是申請人全權擁有的公司LB Corporation Services Ltd（「LBCS」），而LBCS曾兼任Asian Green的公司秘書。申請人是兩家涉案公司銀行賬戶唯一簽署人的，他也全權擁有BVI公司Scripo Limited（"Scripo"），以及A&C Business Consultants Ltd（"A&C"），並且是公司銀行賬戶的唯一簽署人。涉案賬戶有多項進出是與Scripo的銀行賬戶往來，而A&C曾為涉案兩家公司的公司秘書。申請人於2010年7月31日將自己全權擁有的A&C的股份轉給姊姊，由她與母親就任董事。

The evidence given by two of the prosecution witnesses showed that they were deceived abroad. From February to May 2011, they wired a total of €1,238,616.88 and €36,135.78 to account 1 and account 2 respectively to purchase the shares of China Mineral Offshore and Asian Green.
控方兩位證人的證供顯示，他們於海外遭受詐騙，於2011年2月至5月期間，分別將總額為1,238,616.88歐羅及36,135.78歐羅的款項匯到賬戶一及賬戶二，以購買China Mineral Offshore及Asian Green的股份。

Record showed that there were deposits in the total amounts of €1,680,267.40, US$77,169.33 and HK$69,381.99 made into account 1 from the time it was opened to the time it was closed. When that account was closed on 2 February 2012, its balance was $0. The transaction record included: 5 withdrawals made from that account by the applicant for a total amount of €13,000,000 in cash and transfer in the sum of €85,000 to the account of Transworld Management Limited etc. From the time account 2 was opened to the time it was closed, deposits in the total amount of €1,042,796.16, US$71,359.69 and HK$870,017.75 had been made to it. Its closing balance on 4 October 2011 was $0. Transaction record included: several large sums were withdrawn from it for transfer to the account of Transworld Management Limited etc. A number of large sums were also paid in and out of the bank account of Scripo from the two accounts in question. Transfer made to Scripo totalled almost HK$5 million and the total amount transferred back from Scripo to the accounts involved in the case was over HK$3.4 million
紀錄顯示，賬戶一由開設至結束，共有總金額為1,680,267.40歐羅、77,169.33美元、及69,381.99港元的款項存入；該賬戶於2012年2月2日結束時結餘為 $0；交易紀錄包括：申請人從該賬戶提款五次共13,000,000歐羅的現金及轉賬金額85,000歐羅至Transworld Management Limited的賬戶等。賬戶二於由開設至結束，共有總金額為1,042,796.16歐羅、71,359.69美元、及870,017.75港元的款項存入；該賬戶於2011年10月4日結束時結餘為 $0；交易紀錄包括：轉賬數筆大額款項至Transworld Management Limited的賬戶等。兩個涉案賬戶亦有多筆大額款項進出Scripo的銀行賬戶，轉賬至Scripo的款項總值港幣近五百萬元，而Scripo轉回涉案賬戶的款項則為總值港幣三百四十多萬元。

The applicant had no dispute regarding the transaction records of the accounts involved in the case and the Scripo account and the fact that the two prosecution witnesses were deceived into making deposits. The dispute was whether the applicant knew that there was property in the accounts known or believed to represent the proceeds of indictable offence, ie, “black money”.
申請人對於涉案賬戶及Scripo的賬戶的交易紀錄及兩位控方證人被詐騙存入款項的情況並無爭議。爭議點是，申請人是否得悉涉案賬戶的款項中有已知道或相信為代表從可公訴罪行的得益的財產即「黑錢」。

As regards the records showing the movements of funds the company accounts involved in the case and those controlled by the applicant (Scripo o, LBCS and A&C) had with his personal account/s and the exchanges of currencies etc, the prosecution argued that judging by the pattern of the movements of the funds, including the large-sum transactions taken place within short periods of time and the quick withdrawals of money deposited with substantial parts of it transferred to the company accounts the applicant controlled or to his personal account/s etc, they could prove that he had knowledge and was dealing with “black money”.
就涉案賬戶與其它由申請人所控制的公司賬戶（Scripo、LBCS 及A&C）與他個人賬戶的款項往來與貨幣轉換等紀錄，控方指出，其資金流動模式，包括短時間內有大額交易、資金存入不久被提取等，而且有相當部分的款項轉到了申請人所控制的公司或個人賬戶中，可以證明申請人知道並在處理「黑錢」。

The applicant said that he worked in accounting since he obtained the degree in accounting in 1992, and he set up his own company in 1997. Later, in April 2010, he joined Lehman Brown CPA Company Limited (“Lehman Brown CPA”) as a partner at the invitation of an old acquaintance, Dickson Leung. The Beijing head office of Lehman Brown CPA was an accounting firm with over two hundred members of staff. The applicant was under the supervision of Dickson Leung, Russell Brown and Zhou Han etc in the Beijing head office. The applicant only became a registered accountant in 2013. At the time of the offence, the registered accountants of Lehman Brown CPA were Dickson Leung and the wife of the applicant.
申請人說，他從1992年取得會計學位後，就從事會計工作，於1997年成立自己的公司。其後，他於2010年4月應舊相識Dickson Leung的邀請加入 Lehman Brown CPA Company Limited（雷博會計師事務所有限公司）（"Lehman Brown CPA"）成為合夥人。Lehman Brown CPA在北京的總行是一家擁有超過二百名員工的會計師事務所，申請人受北京總行Dickson Leung、Russell Brown、Zhou Han等管轄。申請人於2013年才成為註冊會計師，案發時Lehman Brown CPA的註冊會計師是Dickson Leung及申請人的妻子。

There is no dispute that the wife of the applicant became a 25% shareholder of Lehman Brown CPA on 1 October 2010. Lehman Brown CPA transferred some business of secretarial services companies to the applicant, and all the aforesaid companies, with the exception of Scripo, used the same registered business address. The applicant said LBCS was set up exactly for dealing with the business relating to Lehman Brown CPA, and Scripo was set up as a company to collect the marketing fee of LBCS.
不爭議的事實是，申請人的妻子於2010年10月1日成為了Lehman Brown CPA的25%股東；Lehman Brown CPA轉介了一些秘書公司服務的業務給申請人，而上述各公司除了Scripo外，都是使用同一個公司註冊營業地址。申請人稱他正是為了處理與Lehman Brown CPA相關的業務而成立了LBCS，並且成立Scripo作為收取LBCS銷售費用（marketing fee）的公司。

The applicant recalled that he was introduced by a senior partner of the Beijing head office to a client by the name John Calipari (“Mr C”) in May 2010. Mr C instructed the applicant to set up a company and to open a bank account with Hegarty as the beneficial owner of the company. The applicant claimed that he had perused the information of the investment project and the documents on the trustee agreement between Mr C and Hegarty etc. As he had seen similar business model in other clients, he did not suspect anything. He believed that Mr C was a decent businessman and therefore opened the account involved in the case at his request. He later dealt with the deposits in the account according to the instructions Mr C gave. After the applicant had withdrawn cash from HSBC, he would usually hand the money over to Mr C direct in the bank to leave evidence under the supervision and monitoring of the HSBC.
申請人憶述，他於2010年5月得到北京總行的高級合夥人介紹一位名為John Calipari（"C先生"）的客戶，C先生指示申請人設立公司並開設銀行賬戶，以Hegarty為公司的實益擁有人。申請人稱他曾閱覽投資項目的資料、C先生與Hegarty之間的信託協議 (trustee agreement)等文件；因為曾見其它客戶有類似的經營模式(business model)，故此申請人沒有任何懷疑。他相信C先生是正當商人，故應其要求開立了涉案賬戶，及後依照對方發出的指示處理涉案賬戶裏的存款。申請人於滙豐提取現金後，一般會直接在銀行內把款項交給C先生，以便在滙豐的監控紀錄留下證據。

On being asked if he had kept on file the documents Mr C gave him, the applicant explained that he was unable to photocopy the relevant documents due to the limitations of the venue/s of the meeting/s. He had asked Mr C for copies but was in the end not given them. The applicant agreed that he should keep copies. As regards what he knew about the source of the deposits, the applicant said he learned from Mr C that the money was paid in by investors for purchasing shares.
被問及有沒有將C先生提供的文件存檔時，申請人稱因為會面地點所限他未能影印相關文件；他曾向C先生索取副本但對方最終都沒有給他。申請人同意應留存一個副本。對於存款來源的認知，申請人稱他從C先生處得悉，資金是投資者存入用以購買股份的。

As regards the question of the transfers he made from the accounts involved in the case to the bank accounts controlled by him, including those of Scripo and A&C, and the transfer back to the two accounts involved in the case part of the money from the aforesaid accounts, the applicant explained that it was because his personal cash flow was insufficient, so Mr C agreed to lend him the money of the two companies involved in the case to help with cash flow.  The loans and repayments he made could be found in the transaction records. He agreed that only Hegarty was the beneficial owner of the money but he claimed that he had carefully read his trustee agreement which said that Mr C had full authority to make decisions. The applicant also claimed that he had given Mr C a winning soccer lottery ticket to repay part of the loan.
就申請人將涉案賬戶款項轉至其控制下的銀行賬戶，包括Scripo與A&C，亦有部分款項從該等賬戶往回轉賬至兩個涉案賬戶一事，申請人解釋這是因為他自己個人現金流量不足，所以C先生同意將兩家涉案公司的款項借予他周轉，而交易紀錄裏可見其借款與還款情況。他同意Hegarty才是資金的實益擁有人，但稱他曾細閱對方的信託協議，內容指C先生有全權作決定。申請人並稱他曾把中獎的足球彩票交予C先生償還部分借款。

B2.The findings of the trial judge
B2.原審法官的裁決

In the analysis of the trial judge, the applicant had been in the accounting business for a number of years. He also testified that he knew he must keep proper file on the relevant documents when providing his service and dealt with his own money and that of the clients separately. There was no dispute that the applicant had dealt with the money in the two accounts involved in the case, and the two companies did not have any actual business. Besides, their transaction records showed pattern of “money laundering”: huge sums of money were received within a short span of time and withdrawn in full shortly afterwards.
原審法官分析，申請人從事會計業務多年，亦供稱他知道提供服務時必須妥善地將相關文件存檔及把客戶的金錢與自己的分開處理。申請人處理了兩個涉案賬戶內的款項是並無爭議的事實，兩家涉案公司並沒有實際業務，而其賬戶交易紀錄顯示有「洗黑錢」模式：短期內接收大量存款，並在不久後全數被提取。

he trial judge did not believe the applicant’s claims that he had read documents such as the trustee agreement and the investment projects and that he only carried out the instructions because he trusted Mr C. The trial judge took the view that for someone as experienced as the applicant, it was not possible that not one single copy was kept in the file. He pointed out that the applicant had even failed to carry out this most basic due diligence. He did not accept what he said regarding this and considered that for someone as experienced as the applicant, such degree of negligence was inconceivable.
原審法官不相信申請人的說他曾閱讀信託協議及投資項目等文件並且因為相信C先生才依照指示而行。原審法官認為以申請人的經驗，不會連一份副本都沒有存檔；原審法官指出這是連最基本的「盡職調查」（due diligence）而申請人都未能做到。原審法官不接納此說法，認為以申請人的經驗不可能如此疏忽。

The trial judge pointed out that the applicant had emailed Mr C telling him that the bank was concerned with “money laundering” activities and therefore knew that the business of the company and the source of the money were very important. On top of that, with the applicant’s experience in the business, he should be clear about the risks that existed in dealing with the money in the accounts involved in the case, but he had never tried to find out the background of the clients and the content of the deposits. This was deliberately “turning a blind eye” to the source of the deposits in the relevant bank accounts. As regards the applicant’s claim that he relied on the vetting of HSBC, the trial judge took the view that this was untenable, as HSBC was not aware of the affairs of Mr C and so could only vet the applicant who was the sole signatory of the account.
原審法官指出，申請人曾以電郵告知C先生銀行關注「洗黑錢」的活動，因此也知道公司業務及款項來源很重要；再加上申請人的業務經驗，他理應清楚處理涉案賬戶的款項存在的風險，卻從沒有嘗試去了解客戶背景和存款內容，這是刻意對相關銀行賬戶內存款的來源「不聞不問」(turning a blind eye) 。至於申請人聲稱他依賴滙豐的審核，原審法官認為是站不住腳的說法，因為滙豐並不知道C先生的事情，故只可能審核申請人（賬戶的唯一簽署人）。

As regards the applicant’s claim that he did not know the source of the money and the background of the depositors, nor did he try to verify what Mr C said. The trial judge took the view that it was “fantasy tale” that the applicant did not only turn a blind eye to the pattern of the payments in and out of the accounts in question (frequent deposits were made which were then withdrawn within a few days), he also never suspected anything. All he said in explanation was because he trusted Mr C. He also blindly carried out his instructions, going so far as to make use of clients’ money to help with his own cash flow in breach of professional ethics.  Besides, no written record whatsoever was kept whether it was a large amount transaction, a loan or a repayment to client.
就申請人稱並不知道款項來源及存款者的背景，也沒查證C先生所言是否屬實，原審法官認為，申請人對涉案賬戶頻密的存入款項和數天內提取的提存模式不聞不問也沒半點懷疑，只說他（申請人）相信C先生，盲目按指示行事，甚至違反專業操守動用客戶的資金作周轉；而且不論是大額的交收、借用及歸還客戶的款項都完全沒有任何文字紀錄，是「天方夜談」。

In view of the above reasons, the trial judge found that at the time of the offence, the applicant absolutely had reasonable ground to believe that the money in the accounts in question came from source of an unlawful nature, and dealt with it with such knowledge. He therefore found the applicant guilty.
基於上述的理由，原審法官裁斷，申請人在案發時絕對有合理理由相信，涉案賬戶內的款項來源為非法性質，並在此認知下處理款項，所以裁定申請人罪名成立。

C.“Application to treat the abandonment as a nullity”
C. 「將放棄上訴視作無效的申請」

We will first discuss the “application to treat the abandonment as a nullity”.
本庭首先討論「將放棄上訴視作無效的申請」。

C1.Legal principles
C1.法律原則

This Court discussed in detail the relevant local and English cases, as well as those of other common law jurisdictions, including R v Medway, R v Bridges in HKSAR and Lai Siu Cheung, before laying down the legal principles applicable to Hong Kong in respect of an application to treat the abandonment as a nullity. They can be summarized as follows:
在香港特別行政區訴黎兆祥，本庭詳細分析本地、英國和其他普通法司法管轄區的有關案例，包括R v Medway， R v Bridges，然後確立了適用於本港的將放棄上訴視作無效的法律原則。這些原則可撮要如下：

(1)Once an appeal has been dismissed, the Court of Appeal is functus officio. It does not have inherent jurisdiction to hear an appeal that has been dismissed. To do so would require statutory authorization and for that none exists, save the power conferred by section 83P.
（一）當駁回上訴後，上訴法庭的職責便已完成（functus officio），上訴法庭並無固有司法管轄權（inherent jurisdiction）聆訊已遭駁回的上訴。上訴法庭要處理已被駁回的上訴，必須得到明文的條例授權方可；在這方面，惟一的條例是第83P條。

(2)Therefore, the Court of Appeal no longer has the jurisdiction to deal with the appeal once it has been abandoned, and therefore dismissed.
（二）因此，上訴一旦因上訴人放棄上訴而被駁回，上訴法庭便再無司法管轄權處理該上訴。

(3)If an applicant applies to the Court of Appeal to restore the hearing of his appeal that has been abandoned and therefore dismissed, he must prove that as a matter of law, his abandonment may properly be treated as if it had never occurred, that is his abandonment was in law a nullity. It is only then that leave may be granted to the application. This is the only situation where the Court of Appeal may restore the hearing of an appeal that has been dismissed due to abandonment.
（三）上訴人若申請要求上訴法庭重新聆訊因其放棄而遭駁回的上訴，他就必須證明在法律上，其上訴可視為從未被放棄；即其放棄上訴在法律上屬於無效，其申請才會得到批准。這是唯一的情況，上訴法庭可以重新聆訊因放棄上訴而被駁回的上訴。

(4)The only test to establish that an appellant’s act of abandoning the appeal is a nullity is that the court must be satisfied that the abandonment was not the result of a deliberate and informed decision, in other words, the appellant’s mind did not go with the act of abandonment.
（四）確立上訴人放棄上訴的行為為無效的唯一準則是，上訴人不是在知情的情況下刻意決定放棄上訴，即上訴人的意願跟其放棄行為互不相稱。

(5)Whether the abandonment may be treated as a nullity concerns the applicant’s understanding of the effect or consequences of the document he is signing or, perhaps, misapprehending the effect at law of an appeal were he to persist. An appellant who, properly informed, knows what the document is that he is signing and the effect of it and, with that knowledge, deliberately signs the Notice of Abandonment of Appeal, may not satisfy the court that his act of abandonment is a nullity.
（五）上訴人放棄上訴可否算為無效是關乎他是否了解他所簽署之放棄上訴通知書的效用或後果，或者對於他假若堅持上訴的法律結果是否有所誤解。若上訴人在恰當了解有關情況下，知道他所簽署的是什麼文件，亦知道他所簽署的文件的效用，而他在這種知情的情況下，刻意簽署放棄上訴通知書，其放棄行為便不會被視為無效。

(6)If an applicant relies on the ground of having been given wrong advice to support his application:
（六）若上訴人依賴獲得的錯誤意見為理由，以支持其申請：

(i)If the wrong advice he relied on goes to the nature or effect of the act of abandonment, then the Notice of Abandonment may be treated as a nullity.
（1）如果上訴人所依賴的錯誤意見，與該放棄行為的性質或效果有關，則該放棄通知書會被視作無效。

(ii)If he signed the Notice of Abandonment of Appeal under the influence of the wrong legal advice he was given about the prospects of success on his appeal, the Court of Appeal may not treat the Notice as a nullity as it was wrong advice regarding the merits of the appeal which does not go to the signing of the Notice of Abandonment or its nature or effect.
（2）如果上訴人是受到在上訴勝算方面錯誤的法律意見的影響而簽署了放棄上訴通知書，上訴法庭不會視該通知書無效，因為這是關於上訴的是非曲直的錯誤意見，與簽署該放棄通知書或與其性質或效果無關。

C2.Grounds and submissions of the applicant
C2.申請人的理由及陳詞

32.The applicant said in his affirmation:
申請人在其誓章說：

“4.Later, I met a prisoner who was serving his sentence while I was serving my sentence at Tong Fuk Correctional Institute. His name was Chiu Bo Kwong. When he learned that I was applying for leave to appeal against the convictions, he told me that if I applied for appeal, my chances of getting parole would be jeopardized. I understood that Mr Chiu was imprisoned for theft and was released on parole in February 2015 to stay at Phoenix House and regained liberty in August 2015.
“4.其後，我在塘福懲教所服刑期間認識了一名正在服刑的囚犯，他名叫趙保光先生。當他知道我正在申請不服定罪上訴，便向我透露如果我申請上訴的話，我的假釋機會將會受到影響。我了解趙保光先生是因盜竊罪入獄，並於2015年2月獲假釋入住豐力樓，2015年8月已重獲自由。

5.As the chance to be released on parole was extremely important to me, and at that time, I firmly believed what Mr Chiu Bo Kwong said, that is, if I applied for appeal, my chances of getting parole would be jeopardized; besides, at that time I had spent almost all my savings on the trial, I therefore decided to abandon the appeal.
5.由於假釋的機會對本人而言極為重要，而本人當時亦深信趙保光先生所言，即倘若本人申請上訴的話，我假釋的機會將會受到影響；加上當時本人已花了差不多所有積蓄在原審上，我便因此決定放棄上訴。

…
…

9. …Although it was written on the Prisoner’s Statement that I understood that I could not under general circumstances apply to appeal against the convictions in this case again, I did not know at that time that once I abandoned the appeal, I would lose the chance to appeal for good. At that time, I thought if in future I hoped to appeal again, I could do so as long as I had the grounds to do so. The wording in this Prisoner’s Statement was taught to me by the Correctional Officers of the Tong Fuk Correctional Institute. At that time, I had not sought any legal advice.
9.….雖然犯人陳述書寫上我明白在一般情況下我是不能夠再次為此案申請有關不服定罪的上訴，但本人當時並不知道倘若我一旦放棄上訴，我將會永久喪失上訴機會。本人當時以為如果日後我希望再上訴，只要我有理據亦可以繼續上訴。此犯人陳述書上的用詞是由塘福懲教所懲教署人員教我填寫。我當時並沒有諮詢任何法律意見。

…
…

11.Later, I learned that a crucial judgment was made by the Court of Final Appeal in HKSAR and Pang Hung Fai (FACC8/2013). After seeking legal advice, I believed that I had strong grounds to appeal against the convictions entered in the trial. Besides, it was my intention to lodge an appeal last year; it was only abandoned as I was misled by Mr Chiu Bo Kwong into believing that applying for appeal would jeopardize my chance of getting parole. When I abandoned the appeal, I thought I could still appeal again in future as long as I had the grounds to do so, that’s why I wrote to the court, hoping that the appeal could be restored…”
11.後來本人得悉終審法院在香港特別行政區訴彭洪輝一案 (FACC 8/2013) 中有關鍵性的判決，在諮詢法律意見後，本人認為自己有強力理據就原審提出不服定罪的上訴，再加上本人去年是原本打算上訴的，只是因為被趙保光先生誤導以為上訴會影響我獲取假釋的機會，我才放棄上訴。當我放棄上訴時，我是以為日後只要我有理據是仍然可以再次上訴的，所以去信法庭希望可以重啟上訴。…”

The applicant’s submissions can be summarized in three points:
申請人的說法可歸納為三點：

(1)The applicant wrongly believed the advice Mr Chiu gave that “applying for appeal against conviction will jeopardize the chance of getting parole”. As a result, he abandoned the appeal.
（一）申請人誤信趙先生就“申請不服定罪上訴會影響假釋機會”的說法，因而放棄上訴；

(2)When he abandoned the appeal, he thought that he could still appeal again in future as long as he had grounds to do so; and
（二）當申請人在放棄上訴時以為日後只要有理據便仍然可以再次上訴：及

(3)He is now aware of the decision by the Court of Final Appeal in HKSAR and Pang Hung Fai and having sought legal advice, he feels that he has strong ground to appeal against the convictions.
（三）申請人現得悉終審法院在香港特別行政區訴彭洪輝的判決，在諮詢過法律意見後認為自己有強力理據就定罪提出上訴。

Mr Wong, SC referred the Court to the English cases of R v Maxim Julian Bellos and R v Keating and urged upon us that the circumstances of the present case were identical to those in Keating: The applicant was likewise misled by other people (the counsel representing him) into thinking that lodging an appeal would bring about bad consequences and therefore filed a Notice of Abandonment under the misconception. His act of abandonment should be treated as a nullity.
黃資深大律師援引英國上訴法庭案例R v Maxim Julian Bellos及R v Keating一案，力陳本案的情況與Keating案完全相同：申請人同樣是被他人（代表他的大律師）誤導，以為上訴將會引致不良後果，在不了解情況下作出放棄通知，其放棄上訴行為應被視作無效。

C3.Respondent’s submissions
C3. 答辯人的陳詞

Mr William Tam, SC, Deputy Director of Public Prosecutions, acting for the Respondent argued that according to the legal principles established in the relevant cases, the focus of the test determining whether or not a Notice of Abandonment of Appeal might be treated as a nullity was whether or not the court was satisfied that the abandonment was not the result of a deliberate and informed decision, and whether or not the applicant did not understand the nature and effect of the Notice that he was signing. A deliberate decision made on the basis of wrong legal advice might not render the Notice to be nullified as it did not go to whether or not he was aware of the nature and effect of the document. Mr Tam, SC stressed that the Court of Appeal would not enquire if the grounds of appeal were strong before finding that the Notice of Abandonment should be treated as a nullity.
代表答辯人的副刑事檢控專員譚耀豪資深大律師稱，根據有關案例所確立的法律原則，能否將放棄上訴通知視作無效的測試準則的重點在於法庭是否信納申請人放棄上訴的決定並非知情和刻意作出，及是否不了解其簽署的通知書的性質和效力；而建基於錯誤的法律觀點而作出的刻意決定不能導致通知放棄無效，因為這與是否知悉文件的性質與效力無關。譚資深大律師強調，在裁定放棄通知無效之前，上訴法庭不會查究上訴理據是否有力。

Mr Tam, SC argued that the fact that the applicant was misled by Mr Chiu into believing that “applying for appeal may jeopardize his chance of getting parole” had nothing to do with his understanding of the nature and effect of the Notice of Abandonment of Appeal. The was no discussion and analysis in Keating on the question of whether the applicant did it knowingly and deliberately, and at the time when the decision in Maxim Julian Bellos was given, the UK had already repealed the Criminal Appeal Act, Section 17, a section that carried effect similar to that of section 83P of the Ordinance. Different legal frameworks require consideration of different factors, and therefore no parallel can be drawn. These two English cases are not binding on the courts of Hong Kong either.
譚資深大律師力指，申請人因為趙先生而誤信「上訴會影響假釋機會」，與他知悉放棄上訴通知書的性質和效力的認知無關。Keating案的判詞並沒有討論和分析是否知情和刻意的問題；而Maxim Julian Bellos判決時英國已經廢除與該條例第83條P相約效力的Criminal Appeal Act, Section 17，法律架構不同導致要顧及的因素不同，故此不能借鏡，這兩個英國案例在香港亦沒有約束力。

As regards the applicant’s submission that he learned about the decision in Pang Hung Fai after his appeal had been dismissed, Mr Tam, SC submitted that Lai Siu Cheung laid down the principle that the prospects of success was not the basis for considering whether or not the Notice of Abandonment should be treated as a nullity. And the fact that the applicant regretted the decision after learning about Pang Hung Fai and made an application to treat the abandonment as a nullity showed that he understood the nature and effect of the Notice. Besides, after the applicant had submitted the Notice of Abandonment on 3 June 2014, he waited until 29 September 2015 before he applied for treating the abandonment as a nullity. And according to Ooi Lim Khoon,  the longer the delay, the more difficult it may be for the applicant to convince the court that he changed his mind not only because he had reconsidered the prospects of success of the appeal.
至於申請人稱他在上訴申請被駁回後得悉彭洪輝 案的判決一事，譚資深大律師方指出黎兆祥 案確立了勝算機會並非考慮放棄通知是否無效的基礎；而申請人得悉彭洪輝 案後後悔而作出將放棄上訴通知視作無效的申請，顯示申請人理解通知書的性質和效力。而且，申請人於2014年6 月3 日提交放棄通知書後，直至2015年9月29日才要求將之視作無效；而根據Ooi Lim Khoon案，延誤越長則申請人可能更難說服法庭他並不是只是重新考慮（上訴勝算）後改變了想法。

Mr Tam, SC argued that the applicant was only trying to justify himself when he said: “when abandoning the appeal, (I) thought (I) could appeal again in future as long as (I) had the grounds to do so”. It was not convincing because it was clearly stated on the Notice of Abandonment of Appeal that the applicant gave up all further legal proceedings, and it was also written in the applicant’s statement: “(I) understand that after cancelling the appeal, under general circumstances…, (I) cannot not apply to appeal against the convictions in this case again.”
譚資深大律師認為申請人稱「在放棄上訴時以為日後只要有理據便仍然可以再次上訴」是自圓其說，不能令人信服。因為在「放棄上訴通知」上清楚書明申請人放棄一切進一步法律程序，而申請人的陳述書上亦寫着他「明白取消上訴後，在一般情況下，…是不能夠再次為此案申請有關上訴不服定罪。」

C4.The views of this Court
C4. 本庭的意見

As pointed out above, if the applicant gave up the appeal because he was misled by wrong advice that caused him to misunderstand the consequence of insisting on pursuing the appeal, although his act of signing the Notice of Abandonment of Appeal was deliberate, in the eyes of the law, he did not do it knowingly.  When an appellant was misled by wrong advice into believing that his sentence may be affected if he insisted on pursuing the appeal, this principle is also applicable. The Court may treat the abandonment of the appeal as a nullity: see R v Johnson, the other Australian case referred to in R v Bridges; R v Keating and R v Maxim Julian Bellos. Therefore, we do not accept the submission of Mr Tam, SC in paragraph 36 above.
如上文指出，如上訴人放棄上訴是因為受到錯誤的意見誤導，以致他對堅持上訴的後果有所誤解時，雖然他簽署放棄上訴通知書是刻意的行為，但在法律上卻不是在知情之下作出的。當上訴人受到錯誤的意見誤導，以為堅持上訴會影響其刑期時，這個原則也適用，法庭可視其放棄上訴為無效：見R v Bridges 所引用的另一澳洲案例R v Johnson; R v Keating 及R v Maxim Julian Bellos。因此，本庭不接納譚資深大律師在上文第36段的陳詞。

However, we are of the view that the applicant had failed to produce evidence to satisfy us that we should accept that he was misled by Mr Chiu into misunderstanding the consequence of insisting on pursuing the appeal when he signed the Notice of Abandonment of Appeal and that he did not abandon his appeal knowing exactly what he was doing.
可是，本庭認為申請人未能提出可信納的證據，來說服本庭接納當他簽署「放棄上訴通知書」時，受趙先生的誤導，以致他對堅持上訴的後果有所誤解，而不是在知情的情況下放棄其上訴。

First, in R v Keating, it was understandable why the appellant accepted the advice of the counsel. But in the present case, Mr Chiu was only a fellow prisoner of the applicant. There is no evidence to show that he was a lawyer or legally-trained. It was neither reasonable nor credible that the applicant should deeply believe what he said.
首先，在R v Keating，上訴人接納代表他的大律師的意見是情有可原。但在本案中，趙先生只是申請人的囚友，沒有證據證明他是律師或受過法律專業訓練，申請人深信趙先生的說法既不合理，也不可信。

Further, the applicant had not produced any evidence to prove that what Mr Chiu said was wrong at law. Mr Wong, SC cited Regulation 6 of the Prisoner (Release under Supervision) Regulations. The regulation provides that when considering an applicant’s case, the Board shall give effect to the matters mentioned in the First Schedule. However, the matters set out in the First Schedule do not necessarily support the claim that what Mr Chiu said was wrong. In our view, Mr Wong, SC has failed to convince us that what Mr Chiu said was wrong in law.
再者，申請人並沒有提出任何證據，證明趙先生的說法在法律上是錯誤的。黃資深大律師引援《囚犯（監管下釋放）規例》第6規例。該規例訂明，釋囚委員會考慮申請個案時，須按附表1所述的事項予以考慮，但附表1所列的事項卻不一定支持趙先生的說法是錯誤的。本庭認為，黃資深大律師未能說服本庭趙先生的說法在法律上是錯誤的。

Lastly, the applicant was a professional accountant and a well-educated person. He understands Chinese and English. In his Prisoner’s Statement, he wrote: I am determined to cancel the application to appeal against conviction in respect of DCCC 721/2013. I understand that once the appeal is cancelled, I cannot under general circumstances apply to appeal against the convictions in this case again.” Directly above where the applicant’s signature appeared on the Notice of Abandonment of Appeal, it clearly stated: “I…now inform you, I abandon all further legal proceedings in respect of the appeal”. In our view, it was impossible for the applicant not to know that after he had signed the Notice of Abandonment of Appeal, he would no longer be able to appeal against conviction again. He claimed that it was his understanding at that time that after abandoning the appeal, he could still apply to appeal in future as long as he had grounds to do so. Clearly, it was after he became aware that the decision in Pang Hung Fai might be to his advantage and he hoped to appeal again that he used the excuses that he was misled by Mr Chiu, was taught the wording by the officers of Tong Fuk Correctional Institute when filling in the document, had not sought legal advice and thought that he could still appeal again in future as long as he had the grounds to do so etc. to explain why he indicated he knew what consequences there would be in the Prisoner’s Statement and the Notice of Abandonment of Appeal. As pointed out by the respondent, he was trying to justify himself. We do not accept this.
最後，申請人是專業會計師和有學識之人，懂中文和英文。他在「犯人陳述書」寫明：｢我堅決為案件編號DCCC 721/2013 申請取消上訴不服定罪，我明白取消上訴後，在一般情況下，我是不能夠再次為此案申請有關上訴不服定罪。｣在｢放棄上訴通知書｣申請人簽名的正上方明確寫著｢本人…現向你發出通知，本人放棄關於該上訴的一切進一步法律程序。｣本庭認為，申請人不可能不知道當他簽署｢放棄上訴通知書｣後，他便不能再次就定罪提出上訴。他說他當時的理解是在放棄上訴後，只要日後有理據仍可提出上訴，這明顯是他在得知彭洪輝案的判決可能對他有利，希望可以再次上訴，所以才指被趙先生誤導、沒有諮詢法律意見、｢犯人陳述書｣上的用詞是由塘福懲教所懲教署人員教他填寫，以及以為日後只要有理據便仍然可以再次上訴等等作為藉口，來解釋為何在「犯人陳述書」和「放棄上訴通知書」表示知道放棄上訴的後果。這正如答辯人所指，是自圓其說，本庭不予信納。

As regards the applicant’s reliance on Pang Hung Fai, this is relevant to what prospects of success his appeal had. However, as pointed out above, the legal advice the applicant got regarding the prospects of success of the appeal when he abandoned the appeal is not a ground at all in considering whether his Notice of Abandonment of Appeal should be treated as a nullity, less so the legal advice he got after he had abandoned the appeal.
至於申請人依賴彭洪輝案這點，這與他上訴的勝算多少有關。可是，正如上文指出，當申請人在放棄上訴時所得到就上訴勝算機會的法律意見，根本不是考慮放棄上訴通知書是否無效的理由，更諻論在放棄上訴後所得到的法律意見。

In view of the above reasons, we consider that the applicant has failed to prove that his Notice of Abandonment of Appeal was a nullity and we dismiss his application to treat the abandonment as a nullity.
基於上述理由，本庭認為，申請人未能證明其「放棄上訴通知書」無效，本庭拒絕「將放棄上訴視為無效的申請」。

D.The section 83P application
D. 「第83P條的申請」

We next deal with the section 83P application.
本庭繼而處理｢第83P條的申請｣。

D1.The provision
D1. 條例的規定

Section 83P of the Criminal Procedure Ordinance provides:
《刑事訴訟程序條例》第83P條規定：

“(1)Where a person has been convicted on indictment…, the Chief Executive may, if he thinks fit, at any time either-
“（1）如某人循公訴程序被定罪…，行政長官如認為適合，可在任何時間 ─

(a)refer the whole case to the Court of Appeal and the case shall then be treated for all purposes as an appeal to the Court of Appeal by that person; or
（a）將整宗案件轉交上訴法庭，而該案件就所有目的而言，須視作為該人向上訴法庭提出的上訴；或

(b)if he desires the assistance of the Court of Appeal on any point arising in the case, refer that point to the Court of Appeal for its opinion thereon, and the Court of Appeal shall consider the point so referred and furnish the Chief Executive with its opinion thereon accordingly.
（b）如他意欲上訴法庭就案件中出現的任何論點給予協助，可將該論點轉交上訴法庭以取後其意見，而上訴法庭須考慮該如此轉交的論點，並須據此就該論點向行政長官提供意見。

(2)A reference by the Chief Executive under this section may be made by him either on an application by the person referred to in subsection (1), or without any such application.
（2）行政長官根據本條作出的轉交，可應第(1)款所提述的人的申請而作出或在無該申請的情況下作出。

(3)For the avoidance of doubt, it is hereby declared that this section also applies in a case where an appeal has been heard and determined by the Court of Final Appeal.”
（3）為免生疑問，特此宣布，本條亦適用於上訴已經由終審法院聆訊和裁的案件。”

According to section 83P(2), a convicted person may make an application to the Chief Executive and the Chief Executive may also refer the matter to the Court of Appeal without any such application. Section 83P(1) gives the Chief Executive unfettered discretion to consider whether or not to refer a certain case to the Court of Appeal. Mr Tam, SC informed this Court, when the Chief Executive received a petition made under section 83P, he would refer the matter to the Department of Justice and the Legal Policy Division of the Department of Justice would take over the matter and compile a legal opinion report after consulting the Prosecutions Division for the consideration of the Chief Executive.  Factors the Chief Executive would consider included the prospects of success of the appeal, whether there was any delay in the application and the finality of the case etc. Prospects of success of the appeal are not the only determining factor.
根據第83P(2)條，被定罪的人士可向行政長官作出有關申請，行政長官也可以在無該申請時，把案件轉交上訴法庭。第83P(1)條給予行政長官全面的酌情權 (unfettered discretion)，考慮是否將某宗案件轉交上訴法庭。譚資深大律師告訴本庭，當行政長官收到第83P條的呈請後，他會把個案轉文律政司，而律政司的法律政策科會接手，並會在諮詢檢控科的意見後，編寫法律意見書供行政長官考慮，而行政長官所考慮的包括上訴的勝算機會、申請有否遲誤、案件的終結性等因素，上訴的勝算機會並非惟一決定性的因素。

If the Chief Executive refused to refer the matter to the Court of Appeal, the applicant may apply for judicial review against the decision: see R v Secretary of State of the Home Office Department, Ex p Hickey and Others (No 2).
若行政長官拒絕將案件轉交上訴法庭，申請者可以就其決定提出司法覆核：見R v Secretary of State of the Home Office Department, Ex p Hickey and Others (No 2) 。

When the Chief Executive refers the matter to the Court of Appeal, it will treat the matter as having been granted leave to appeal and hear it accordingly: see R v Chart.
當行政長官將案件轉交上訴法庭時，上訴法庭會把案件當作已得到上訴許可批准來審理：見R v Chart。

D2.The submissions of the applicant
D2.申請人的陳詞

Mr Wong, SC referred us to R v Tam Kwok, R v Wong Wai Leung, and HKSAR v Lai Siu Cheung, and emphasized that the Court of Appeal had the power to consider if there was sufficient merit in the grounds of appeal before giving its advice and assistance to the Chief Executive to refer the matter to the Court of Appeal. Mr Wong, SC submitted the following grounds of appeal to assist the Court of Appeal to decide whether it should advise the Chief Executive:
黃資深大律師援引R v Tam Kwok, R v Wong Wai Leung,以及HKSAR v Lai Siu Cheung，並強調上訴法庭有權考慮上訴理據是否充足，而作出忠告及協助行政長官，將案件轉交上訴法庭。黃資深大律師提出下述的上訴理據，以方便上訴法庭考慮是否忠告行政長官：

(1)The trial judge failed to use the correct test: Instead of asking ‘Whether anyone looking at the grounds that the applicant was aware of objectively would believe or should know that the property being dealt with was “black money”’, he used, by mistake, the concept of a common sense, right-thinking member of the community. In other words, he used the test of whether an average reasonable man would so believe (see Pang Hung Fai and HKSAR v Wing Kit and Ye Fang );
（一）原審法官沒有使用正確的測試準則：「任何人客觀地看 [申請人] 知道的理由是否會相信或應該知道被處理的財產是『黑錢』」，而錯誤地使用「常人」（a common sense, right-thinking member of the community）的概念即一般合理的人會否相信（參考彭洪輝 案及HKSAR v Wing Kit and Ye Fang）；

(2)The trial judge made no finding on the beliefs, thoughts and intentions of the applicant regarding the property being dealt with and the people and matters relating to it, and the effect they had on whether or not the applicant reasonably believed that the property being dealt with was “black money” (see HKSAR v Yeung Ka Shing Carson and HKSAR and Yang Sigai);
（二）法官沒裁定申請人對被處理的財產及相關的人與事的信念、思維、意圖，及其對申請人是否合理相信被處理的財產為「黑錢」的影響（參考HKSAR v Yeung Ka Shing Carson及香港特別行政區 訴 楊思概 ）；

(3)Charge one and charge two contained duplicitous charge for they prosecuted the applicants for the dealings he had on numerous dates over a period of time. The total amounts in the charges were the aggregates of the smaller amounts that were involved in a number of dealings (see  HKSAR v Salim, Majed, Yeung Ka Shing Carson and Yang Sigai);
（三）控罪一及控罪二內含重複罪行（重覆控罪Duplicitous Charge），因其檢控的是在一段時間內多個日子的處理行為，由多項涉及金額較小的處理行為，累積而成控罪的總金額（參考HKSAR v Salim, Majed、Yeung Ka Shing Carson案及楊思概 案）；

(4)The prosecution must prove that the property being dealt with was “black money”; and in the present case, the money that was proved to have been obtained by deception in charge one was only the over 1.2 million euros that Mr K deposited into the account, and the over 30000 euros that Mr H deposited into the account in charge two (see Oei Hengky Wiryo, Yeung Ka Shing Carson and Yang Sigai);
（四）控方必須證明被處理的財產是「黑錢」；而在本案中，被證明是詐騙所得的款項，控罪一中只有K先生存入的一百二十多萬歐羅，而控罪二中只有H先生存入的三萬多歐羅（參考Oei Hengky Wiryo案、Yeung Ka Shing Carson案及楊思概 案）；

(5)According to Pang Hung Fai, the trial judge should consider from the perspective of the applicant the factor that the applicant had immense trust in Mr C. The trial judge failed to do so.
（五）原審法官沒有根據彭洪輝 案須從申請人的角度去考慮到申請人對C先生抱有很大信任的原因；

(6)The trial judge failed to follow the principle laid down in Pang Hung Fai to consider that the applicant had informed the HSBC the business plan and situation of Mr C, and HSBC allowed the applicant to open the account in question which strengthened the trust the applicant had in Mr C. Besides, there had previously been other customers who requested for the same kind of service. This also reduced the suspicion that the applicant had.
（六）原審法官沒有根據彭洪輝 案的原則去考慮申請人曾將C先生的業務計劃及情況告知滙豐，而滙豐也批准申請人開涉案的賬戶；此舉增強申請人對C先生的信任。而且以前有其它客戶要求同類服務，亦減低了申請人的懷疑；

(7)The prosecution had no evidence to prove that the applicant knew that Mr C was deceiving people into depositing money into account one and account two, and the failure to conduct due diligence was not the same as knowing that the money was obtained by deception;
（七）控方並沒有證據證明申請人知道C先生詐騙他人把款項存入賬戶一及賬戶二；而沒有做「盡職調查」不等同於知道款項是詐騙所得；

(8)The trial judge and the prosecution agreed that the applicant had no duty to investigate the source and background of the deposits and the depositors, but found the applicant guilty of the charges on the basis that he did not conduct due diligence to find out about the background of the clients, the source of the deposits and the background of the depositors.
（八）原審法官與控方同意申請人沒有責任去調查存款及存款者的來源背景，卻基於申請人沒有做「盡職調查」去了解客戶的背景、存款來源及存款者的背景而裁定申請人罪名成立；

(9)The trial judge rejected the evidence of the applicant that he had seen the business documents of Mr C; and
（九）原審法官拒絕接納申請人說有看過C先生的業務文件的證供；以及

(10)It was wrong for the trial judge to say that the applicant turned a blind eye to the frequent deposits made to the accounts which were then withdrawn shortly. The applicant explained in his evidence that he understood that this matched the business mode of Mr C, and the holders of the accounts receiving the money looked like professional people and so he had no suspicion.
（十）原審法官稱申請人對涉案賬戶頻密的存入款項短期內被提出不聞不問是錯誤的。申請人在證供解釋，他理解這與C先生的業務方式脗合，而收款賬戶看似專業人士，故此才沒有懷疑。

(11)On the basis of the above grounds, the convictions against the applicant in both the first and the second charges were obviously unsafe and unsatisfactory.
（十一）基於上述所有理據，控罪一及二的定罪都是非常明顯地不安全及不穩妥。

The submissions of Mr Wong, SC mainly centred around ground one. He pointed out that according to the judgment the Court of Final Appeal made in HKSAR and Pang Hung Fai, the reasons that a court had to consider were not only the facts but also some of the relevant circumstances. It should consider the applicant’s beliefs, understanding and prejudices and not to omit these concepts based on those of a reasonable man from the considerations as viewed through the eyes of the applicant, and the correct test for “having reasonable grounds to believe” is “would anyone looking objectively at the reasons known to the defendant believe or should know that the property being dealt with represented the proceeds of an indictable offence”.
黃資深大律師的陳詞主要是環繞理據一。他指出依據香港特別行政區訴彭洪輝案中終審法庭的判詞，法庭要考慮的理由，不止是情況(facts)，還有一些相關的環境；考慮申請人的信念、理解和偏見，不能以常人的概念將這些應考慮的角度從申請人的概念移走；及「會令常人有理由相信」的正確測試準則是「任何人客觀地看被告知道的理由是否有會相信或應該知道被處理的財產為代表從可公訴罪行的得益」。

Mr Wong, SC submitted that the trial judge did not follow the above principles, and it could be seen from footnotes 16-18 of the judgment of this case that he erred as below in his decision:
黃資深大律師指，原審法官沒有依照上述的原則，而從本案判詞的註腳16-18可見，其判決有如下錯誤：

(1)The guilty verdict was based on the applicant turning a blind eye to the source of the deposits. Relied wrongly on the Court of Appeal cases of Wan Yet Kwai and Tam Lap Shek, the wrong test was used: the trial judge said as long as the applicant had reasonable ground to believe that he himself might be dealing with black money, even if there might exist other possibilities, he was still guilty. The “test of sufficiency” was also wrongly relied on;
（一）該有罪的判決基於申請人對存款來源不聞不問，錯誤依賴上訴法庭案件Wan Yet Kwai和Tam Lap Shek，使用了錯誤的測試準則：原審法官稱只要申請人有合理理由相信自己可能正在處理黑錢，即使有其它可能性存在，申請人依然有罪；亦錯誤依賴了「足夠證據測試準則」；

(2)He never considered the matter through the eyes of the applicant with his beliefs, understanding and prejudices. Instead, he removed them with the concepts of “someone with common sense, a right-thinking reasonable person”;
（二）沒有從申請人的信念、理解和偏見的角度考慮，而將之以「一位具常識、持正當思維的合理人士」的概念移走；

(3)Even if it was known that the money in question was improper, it did not mean that it must relate to an indictable offence and represented the proceeds of that offence. According to paragraph 112 of Pang Hung Fai, the court must be satisfied that the applicant knew/and had reasonable ground to believe that the money represented the proceeds of an indictable offence. There is no such evidence in the present case.
（三）即使知道涉案的款項是不適當的，也不代表必定與可公訴罪行有關而且是代表該罪行的得益，根據彭洪輝 案的第112段，法庭必須信納申請人知道/有合理理由相信款項為代表從可公訴罪行的得益，而本案沒有這樣的證據。

Finally, Mr Wong, SC submitted that if this Court rejected the section 83P application, he still hoped that we would express our views on the grounds of appeal the applicant advanced.
最後，黃資深大律師說，若本庭拒絕「第83P條的申請」，他仍希望本庭可以就申請人的上訴理由表達本庭的看法。

D3.Submissions of the Respondent
D3.答辯人的陳詞

Mr Tam, SC took the view that section 83P was a discretion conferred on the head of the Executive, under the separation of powers, in the absence of exceptional circumstances, it should be left to the Chief Executive himself to decide.
譚資深大律師認為第83P條是賦予行政機關首長的酌情權，在三權分立的制度下，除非情況非常特殊，否則應由行政長官自行作決定。

Mr Tam, SC pointed out that according to HKSAR v Hung Chan Wa & Another, time might not be extended for the re-opening of an appeal even on the ground that a subsequent judgment had held the previous understanding of the law to be incorrect. There must be finality in litigation.
譚資深大律師指出，根據HKSAR v Hung Chan Wa & Another,即使法庭經上訴案件宣佈之前沿用的法律原則有錯誤，也不一定能為上訴時效已過的案件提供重開上訴的理由，案件必須有終結性。

Mr Tam, SC replied as follows to the grounds of appeal the applicant intended to advance:
而就申請人所擬提出的上訴理據，譚資深大律師回應如下：

(1)In respect of the first ground, even after Pang Hung Fai, the Court had dismissed a number of applications for appeal that relied on the same type and the same grounds of appeal. Even if a subsequent judgment had held the previous understanding of the law to be incorrect, it does not mean that the appeal must be allowed. It must depend on the facts of the case, the evidence, the credibility of the witnesses and the findings of facts etc. Paragraph 85 of HKSAR and Pang Hung Fai also pointed out that the judge and the jury in many cases might not accept at all the evidence the defendant gave regarding his beliefs, understanding or prejudices on people or things. In the present case, the trial judge had the benefit of observing and listening to the witnesses. After considering the overall circumstances, he had sufficient reason not to accept the explanation the applicant gave in his evidence in this regard:
（一）就上訴理據一，即使在彭洪輝案後，亦有多宗依賴同類同上訴理據的案件的上訴申請被駁回，即使應用（後知是）錯誤的法律原則，並不等同上訴必然得直，而是必須視乎該案的案情、證供、證人可信性和事實裁決等。香港特別行政區訴彭洪輝案第85段亦指出，法官和陪審團可能在很多案件中全盤不接納被告人在審訊中就對人物或事情信念、理解或偏見的證供；而在本案中，原審法官在是耳聞目睹的優勢下，作出全盤考慮後，有充份理由不接納申請人在這方面的辯解供詞：

(1)The applicant had had about 18 years of experience in accounting;
申請人有約18年會計工作經驗；

(2)He knew nothing at all about the background and business of Mr C and Hegarty, the men behind the two companies involved in the case. He did not know them.
他對兩間涉案公司背後的C 先生和Hegarty的背景和業務完全沒有認知，並不相識；

(3)In these circumstances, he still agreed to be the sole account holder and signatory;
在這情況下他仍同意擔任唯一開戶人和簽署人；

(4)Knowing full well that there was the risk of money laundering, he withdrew and transferred away a total of about HK$28 million within a short time when he did not have a good understanding of the nature and use of a number of large-amount deposits made overseas and knowing that the two companies involved in the case had no actual business in Hong Kong; and
明明知道有洗黑錢的風險，卻在不了解多筆海外存入的大額款項的性質和用途、也知兩間涉案公司在香港沒有實質業務的情況下，把總值約2,800萬港元款項短時間提出調走；及

(5)No document and receipt were kept in the file. The only excuse he gave was he trusted Mr C.
沒有任何文件收據存檔，而辯解只是他相信C先生；

In the absence of credible excuse, the guilty verdict was a matter of course. Therefore, this ground lacked merit.
在沒有可信服的辯解下，定罪裁決是必然的，故此該理據並不充分。

(2)As regards grounds 2 to 4, they concerned points of law that the Court of Final Appeal was going to deal with. These points were not settled yet;
（二）就上訴理據二至四，這涉及終審法院將要審議的法律問題，議題並未有定案；

(3)In relation to grounds 5, 6, 9 and 10, the reply was the same as that to ground 1.
（三）就上訴理據五、六、九和十，回應同上訴理據一。

(4)In respect of ground 7, the decided cases on money laundering did not require the prosecution to prove that the defendant knew the details behind the offence before he could be convicted.
（四）就上訴理據七，洗黑錢的案例並沒要求控方證明被告知道背後罪行的詳情才可定罪。

(5)As regards ground 8, although the applicant did not have any duty under the law to make investigation, it was untenable that the applicant who was a professional accountant should actively participate in flow of funds activities with money whose source was unknown without making investigation when there were clear signs that money laundering activities were going on.
（五）就上訴理據八，雖然申請人沒法律責任作出調查，但是明顯在有洗黑錢活動跡象的情況下，申請人作為專業會計師不調查便積極參與不名來歷資金的調轉活動，是說不通的。

Mr Tam, SC concluded by saying that the Court of Appeal should not express any view on the discretion contained in section 83P of the Ordinance.
譚資深大律師總結稱，上訴法庭不應就該條例第83P條所述的酌情權作出任何意見。

D4.The views of this Court
D4. 本庭的意見

Section 83P does not give the Court of Appeal power to invite the Chief Executive or “advise or assist” him to refer a case to the Court of Appeal. The cases Mr Wong referred us to did mention that the Court of Appeal might, pursuant to section 83P, invite the Chief Executive to refer the case to the Court of Appeal where the Court of Appeal could not treat the abandonment as a nullity when the appellant had abandoned the appeal and therefore suffered unfairness as a result of not being able to restore the appeal. But those cases only mentioned the big principle of preventing injustice but did not discuss in detail how the Court of Appeal should go about it.
第83P條沒有給予上訴法庭權力可以邀請行政長官或「忠告或協助」行政長將案件轉交上訴法庭。黃大律師所引援的案例，的確提到當上訴人因放棄上訴而上訴法庭不能視其放棄上訴為無效，而上訴人因此不能重新上訴會對他構成不公，上訴法庭可按第83P條邀請行政長官把案件轉交上訴法庭。但那些案例只提及防止不公義的大原則，卻沒有詳細討論上訴法庭該如何行事。

In our view, even if the Court of Appeal had the power, it should not invite the Chief Executive to refer the case to the Court of Appeal casually on application made pursuant to section 83P.
本庭認為，即使上訴法庭有權亦不宜隨便就應申請根據第83P條邀請行政長官把案件轉交上訴法庭。

First, as mentioned above, pursuant to section 83P(2), a convicted person may at any time, without having to apply to the Court of Appeal first, make the relevant petition himself to the Chief Executive to request the Court of Appeal to invite or to “advise or assist” the Chief Executive to refer the case to the Court of Appeal. As a matter of fact, if an applicant feels that not allowing him to appeal is not fair to him, he should immediately act on his own pursuant to section 83P to petition the Chief Executive without having to spend time again to wait for the hearing and decision of the Court of Appeal.
第一，如上文說，根據第83P(2)條，被定罪人士可隨時自行向行政長官提出有關的呈請，而無需先向上訴法庭申請，要求上訴法庭對行政長官發出邀請或提出「忠告和協助」，將案件轉交上訴法庭。其實，申請者若覺得不容許上訴對他是不公平的，他應即時自行按第83P條向行政長官提出呈請，不用再花時間等待上訴法庭的聆訊和決定。

Secondly, it appears that there is not much point in reality to ask the Court of Appeal to do this. It is because even if the Court of Appeal did so, it would not be binding on the Chief Executive. Mr Wong, SC submitted that if the Court of Appeal did so, its reasons and decision carried quite a lot of weight, it would be more powerful then the person applying for it by himself. But he also agreed that however much weight the Court of Appeal’s opinion had, it had no binding effect on the Chief Executive at all. And in fact, it is also not possible for the Chief Executive to only obey the invitation or “advice or assistance” of the Court of Appeal without making his own independent consideration, or he would be undermining his own comprehensive discretion under section 83P. The law does not allow this. On the contrary, even if the Court of Appeal does not invite or “advise or assist” the Chief Executive to refer the case to the Court of Appeal, it will not hurt the interest of the applicant, because he can still petition the Chief Executive pursuant to section 83P. The limited and precious judicial resources of the Court of Appeal should not be spent on these applications that are not of much practical point.
第二，要求上訴法庭這樣做看實際意義不大，因為即使上訴法庭這樣做，也不會對行政長官有約束力。黃資深大律師說，若上訴法庭這樣做，其理據及決定甚具份量，並比該人士自己的申請更有力；但他也同意，無論上訴法庭的意見有多重量，對行政長官其實毫無約束力。而事實上，行政長官也不可能只是依從上訴法庭的邀請或「忠告和協助」而不作出獨立的考慮，否則他就是自削其在第83P條的全面酌情權。這是法律所不容許的。反過來說，即使上訴法庭不邀請或提出「忠告和協助」給行政長官，將案件轉交上訴法庭，也不會損害申請者的權益，因為他仍然可以向行政長官提出第83P條的呈請。上訴法庭有限及寶貴的司法資源不應用這些實際作用不大的申請上。

Thirdly, the Court should respect the comprehensive discretion that section 83P confers on the Chief Executive when considering and deciding whether or not it should refer a certain case to the Court of Appeal. In the absence of extremely exceptional circumstances, the Court of Appeal should not take the initiative to advise or assist the Chief Executive to refer a case to the Court of Appeal, because when it does so, it is very likely that people may misunderstand it to mean that the Court is trying to influence the Chief Executive on how he should exercise its comprehensive discretion under section 83P. The Court of Appeal should avoid doing so the best it can.
第三，法庭應該尊重第83P條所給予行政長官全面的酌情權，來考慮並決定是否將某宗案件轉交上訴法庭；除非有非常特殊的情況，上訴法庭不應主動忠告及協助行政長官將案件轉交上訴法庭。因為當上訴法庭這樣做時，大有可能會另人誤以為法庭試圖影響行政長官如何按第83P條行使其全面的酌情權。上訴法庭應該盡量避免這樣做。

As regards what the extremely exceptional circumstances are under which the Court of Appeal may invite the Chief Executive to consider exercising his discretionary powers under section 83P would depend on the actual circumstances of each case. Overall speaking, the applicant must put forward cogent and forceful important points to convince the court that his conviction is clearly so unsafe and unsatisfactory that disallowing him to appeal is clearly unfair to him. It is not sufficient for an applicant to merely say that the prospects of success of his appeal are reasonably arguable.
至於何謂非常特殊的情況，上訴法庭可以邀請行政長官考慮行使第83P條的酌情權，須視每宗案件實際的情況而定。總的而言，申請者必須舉出強而有力的重點，說服法庭其定罪是明顯不安全和不穩妥，不容許他上訴對他不公是顯而易見的；但若申請者單單說他的上訴勝算有合理可爭議之處，是不足夠的。

In the present case, the applicant only said that his appeal had very good prospects of success but the respondent did not agree to that. After carefully considering the grounds of appeal and submissions from both sides, we consider that the applicant has not been able to put forward cogent and forceful important points to convince us that his convictions are clearly unsafe and unsatisfactory, or that disallowing him to appeal is clearly unfair to him. In other words, the applicant has not been able to convince this court that there are any extremely exceptional circumstances that require us to take the initiative to advise and assist the Chief Executive to refer the case to the Court of Appeal.
在本案中，申請人只說其上訴有很大勝算的把握，但答辯人並不同意；而本庭小心考慮過上訴理據和雙方的陳詞後，認為申請人未能夠舉出強而有力的重點，說服本庭其定罪是明顯不安全和不穩妥，或不容許他上訴對他不公是顯而易見的。換言之，申請人未能說服本庭有任何非常特殊的情況，本庭需要根據第83P條主動忠告及協助行政長官將案件轉交上訴法庭。

In the result, we dismiss the section 83P application.
因此，本庭拒絕「第83P條的申請」。

Mr Wong, SC requested us to express our views on the grounds of appeal the applicant advanced should this Court reject the section 83P application. As regards this, it is our view that we do not have the jurisdiction to express our view on an appeal that is not commenced before us. And even if this Court (does have) the jurisdiction over the (case), it is also extremely inappropriate to do so. Therefore, we reject the request of Mr Wong, SC.
至於黃資深大律師請求若本庭拒絕「第83P條的申請」，仍可以就申請人的上訴理由表達本庭的看法。本庭認為，本庭沒有司法管轄權，對某宗不是在本庭席前展開的上訴，表達我們的看法，而即使本庭該司法管轄權件，這也是極不合適的做法。因此，本庭拒絕黃資深大律師的請求。

Mr Tam Yiu Ho, William, SC, Deputy Director of Public Prosecutions and Miss Sham Wing Yan, Jessie, Public Prosecutor of the Department of Justice, for the Respondent.
答辯人：由律政司副刑事檢控專員資深大律師譚耀豪及檢控官岑穎欣代表

Mr Wong Man Kit, SC and Tung S.Y. Sylvia, instructed by Messrs Morley Chow Seto, for the Applicant.
申請人：由麥樂賢同綽瑩司徒悅律師行轉聘資深大律師黃敏杰及大律師黃秀儀輔代表