Hon Yeung VP (giving the judgment of the Court):
高等法院上訴法庭副庭長楊振權頒發上訴法庭判案書：

Introduction
引言

At all material times the 1st respondent Chan Chi-wan, Stephen (“Chan”) was the General Manager (Broadcasting) of Television Broadcasts Limited (“TVB”), and the 2nd respondent Tseng Pei-kun (“Tseng”) was the sole director cum shareholder of Idea Empire Advertising & Production Company Limited (“IEAP”).  Since IEAP’s incorporation in August 2008, it had business dealings with TVB, including entering into service agreements with TVB on behalf of outside bodies, so that those bodies could engage TVB artistes to participate in their business promotional activities.
在有關時段，第一答辯人陳志雲（陳）是電視廣播有限公司（無綫電視）的電視廣播業務總經理，第二答辯人叢培崑（叢）則是思潮廣告製作有限公司（思潮製作）的唯一董事兼股東。思潮製作在2008年8月成立後和無綫電視有業務往來，包括替一些外間機構和無綫電視訂立服務協議，令該些外間機構能聘用無綫電視藝員參與它們的業務推廣活動。

This appeal arose from the following incident: Through IEAP, Chan accepted $112,000 from Olympian City, a shopping complex under the Sino Group, for his performance in a Be My Guest show (“the additional Be My Guest show”), which was a sideshow within a show organized by TVB for Olympian City for publicity purposes, called New Year’s Eve Countdown for 2010, which was to take place on 31 December 2009.  The prosecution alleged that Chan accepted the $112,000 in contravention of section 9 of the Prevention of Bribery Ordinance, Cap 201 Laws of Hong Kong (“the Ordinance”), and Chan and Tseng were charged with one count of conspiracy for an agent to accept an advantage (charge 1).  Chan and Tseng each faced one further charge alternative to charge 1; they were respectively agent accepting an advantage (charge 2) and offering an advantage to an agent (charge 3).
和本上訴有關的事項源自陳透過思潮製作收取了信和集團旗下購物商場奧海城（奧海城）的112,000元，作為演出由無綫電視在2009年12月31日為奧海城舉辦的宣傳活動（“奧海城全城狂歡邁向2010”）中附加的“志雲飯局”（“附加志雲飯局”）。控方指陳收取了112,000元一事，違反了香港法例第201章《防止賄賂條例》（《條例》）第9條，因此檢控陳和叢一項串謀使代理人接受利益罪（第一項），並以一項代理人接受利益罪（第二項）和一項向代理人提供利益罪（第三項）分別檢控陳和叢作為第一項控罪的交替控罪。

In addition, Chan and Tseng were charged with one count of conspiracy to defraud (charge 5), and Tseng and Chan Wing-shuen, Wilson were charged with another conspiracy to defraud (charge 4).
控方亦指控陳和叢一項串謀欺詐罪（第五項）及叢和陳永孫另一項串謀欺詐罪（第四項）。

Chan, Tseng and Chan Wing-shuen denied all the charges and were tried before Acting Chief District Judge (as he then was) Poon Siu-tung (“the trial judge”).
陳、叢和陳永孫都否認全部控罪，並在區域法院署理首席法官（當時官階）潘兆童（原審法官）席前受審。

In respect of charges 1, 2 and 3, the position taken by Chan and Tseng was that when Chan participated in the New Year’s Eve Countdown for 2010 and performed in the additional Be My Guest show, he was not acting in the capacity of an agent of TVB.  The reason was that the additional Be My Guest show was not related to TVB’s affairs or business.  Both of them also stated that TVB had on many occasions granted Chan permission to accept remuneration for his participation in publicity activities of a similar nature, and so Chan had TVB’s permission to accept or acquiescence in accepting remuneration from Olympian City for his performance in the additional Be My Guest show.  The defence put forward by Tseng was that he, not being an employee of TVB, had no knowledge of the details of the work and contractual arrangements between Chan and TVB.  Neither Chan nor Tseng gave evidence, and they did not call any defence witness.
就第一、二和第三項控罪，陳和叢的立場是當陳參與“奧海城全城狂歡邁向2010”及演出“附加志雲飯局”時，他並非是以無綫電視代理人的身份行事，原因是“附加志雲飯局”和無綫電視的事務或業務無關。他們同時指無綫電視曾多次批准陳收取酬勞參與同類宣傳活動，因此陳是得到無綫電視的許可或默許就演出“附加志雲飯局”向奧海城收取酬金。叢提出的答辯是他並非無綫電視的職員，故不會了解陳和無綫電視的工作及合約細節。但陳和叢都沒有作供，亦沒有傳召任何辯方證人作供。

On 2 September 2011, the trial judge acquitted Chan and Tseng of all charges.  He dismissed the charges and ordered the Secretary for Justice (“the Secretary”), who represented the prosecution, to pay Chan’s and Tseng’s costs.
2011年9月2日，原審法官裁定陳和叢全部控罪罪名都不成立。原審法官撤銷所有控罪，並下令代表控方的律政司司長（司長）向陳和叢支付訟費。

For charges 1, 2 and 3, the trial judge found that Chan was not acting as an agent of TVB when he performed in the additional Be My Guest show, that the additional Be My Guest show was not related to TVB’s affairs or business, and that therefore what Chan did was not caught by section 9 of the Ordinance.  Moreover, the trial judge considered that even if Chan was acting in the capacity of an agent of TVB and the additional Be My Guest show was related to TVB’s business, TVB had either allowed Chan to accept the remuneration in question from Olympian City or acquiesced in his doing so.  The trial judge found that, as Chan’s understanding was that TVB would definitely allow him to accept remuneration for his performance in the additional Be My Guest show, he would think that he had no duty to apply to his superior for permission, nor was it necessary to do so.  The trial judge further found that both Chan and Tseng could rely on the defences provided in section 9 of the Ordinance, namely Chan had obtained TVB’s permission to accept $112,000 from Olympian City and/or he had lawful authority or reasonable excuse to accept the sum of money.  Section 9 of the Ordinance provides that:
就第一、二和第三項控罪，原審法官認為陳演出“附加志雲飯局”時，並非是以無綫電視代理人的身份行事，而“附加志雲飯局”亦和無綫電視的事務或業務無關，因此陳不受《條例》第9條的規管。另外，原審法官認為即使陳是以無綫電視代理人的身份行事，而“附加志雲飯局”和無綫電視的業務有關，無綫電視是容許或默許陳收取有關酬金。原審法官裁定陳理解無綫電視必會批准他收取酬金參與演出“附加志雲飯局”，故他會認為自己無責任、亦無必要向上級申請批准。原審法官亦裁定陳和叢都可以依賴《條例》第9條列出的抗辯理由，即陳有無綫電視的“許可”向奧海城收取112,000元及/或他有“合法權限”或“合理辯解”收取該筆款項。《條例》第9條如下：

“(1)Any agent who, without lawful authority or reasonable excuse, solicits or accepts any advantage as an inducement to or reward for or otherwise on account of his —
(1)任何代理人無合法權限或合理辯解，索取或接受任何利益，作為他作出以下行為的誘因或報酬，或由於他作出以下行為而索取或接受任何利益，即屬犯罪─

(a)doing or forbearing to do, or having done or forborne to do, any act in relation to his principal's affairs or business; or
(a)作出或不作出，或曾經作出或不作出任何與其主事人的事務或業務有關的作為；或

(b)showing or forbearing to show, or having shown or forborne to show, favour or disfavour to any person in relation to his principal's affairs or business, shall be guilty of an offence.
(b)在與其主事人的事務或業務有關的事上對任何人予以或不予，或曾經予以或不予優待或虧待。

… …
… …

(4)If an agent solicits or accepts an advantage with the permission of his principal, being permission which complies with subsection (5), neither he nor the person who offered the advantage shall be guilty of an offence under subsection (1) or (2).
(4)代理人如有其主事人的許可而索取或接受任何利益，而該項許可符合第(5)款的規定，則該代理人及提供該利益的人均不算犯第(1)或(2)款所訂罪行。

(5)For the purposes of subsection (4) permission shall —
(5)就第(4)款而言，該許可─

(a)be given before the advantage is offered, solicited or accepted; or
(a)須在提供、索取或接受該利益之前給予；或

(b)in any case where an advantage has been offered or accepted without prior permission, be applied for and given as soon as reasonably possible after such offer or acceptance,
(b)在該利益未經事先許可而已提供或接受的情況下，須於該利益提供或接受之後在合理可能範圍內盡早申請及給予，

and for such permission to be effective for the purposes of subsection (4), the principal shall, before giving such permission, have regard to the circumstances in which it is sought. ”
同時，主事人在給予該許可之前須顧及申請的有關情況，該許可方具有第(4)款所訂效力。

The Secretary was dissatisfied with the verdicts of not guilty given by the trial judge in favour of Chan and Tseng in respect of charges 1 to 3 and appealed by way of case stated pursuant to section 84 of the District Court Ordinance.
司長不服原審法官裁定陳和叢第一至第三項控罪罪名都不成立的裁決，並根據《區域法院條例》第84條以“案件呈述”方式提出上訴。

This Court handed down judgment on 21 November 2012.  The Secretary’s appeal was allowed, the verdicts of not guilty given by the trial judge in favour of Chan and Tseng in respect of charges 1 to 3 were set aside.
2012年11月21日，上訴法庭頒下判案書，裁定司長的上訴得直。上訴法庭撤銷原審法官裁定陳和叢第一至第三項控罪無罪的決定。

This Court found that the additional Be My Guest show was related to TVB’s business, and that when Chan accepted the $112,000 and when he performed in the additional Be My Guest show, he was acting in his capacity as an agent of TVB.  This Court also found that Chan did not have any permission recognized by the Ordinance or any lawful authority for accepting the said remuneration.
上訴法庭裁定“附加志雲飯局”和無綫電視的業務有關，而陳收取112,000元演出“附加志雲飯局”時是以無綫電視的代理人身份行事。上訴法庭亦裁定陳未獲得《條例》認可的“許可”，亦沒有“合法權限”收取該酬金。

This Court considered that the only issue that remained was whether Chan’s act of accepting the $112,000 could be supported by the defence of reasonable excuse.  At the trial, the trial judge did not set out all the evidence which could support the defence of reasonable excuse.  This Court took the view that the fair way to deal with the matter was to remit the case to the trial judge for him to decide whether Chan and Tseng should be allowed to raise the defence of reasonable excuse afresh, and if he allowed them to do so, he had to set out the factual elements pertaining to the defence and, on the basis of such factual elements, make a finding as to whether the defence of reasonable excuse was established.  At the same time, this Court ordered that the issue of costs was to be dealt with after the trial judge had given his verdicts.
上訴法庭認為案件餘下的唯一爭議點是陳收取112,000元一事能否受“合理辯解”的答辯理由支持。原審時，原審法官沒有將能支持“合理辯解”這答辯理由的證據全部列出。上訴法庭認為公平的做法是將案件發還原審法官由他決定是否會批准陳和叢重新提出“合理辯解”這答辯理由及如他批准的話，原審法官需要列出和該答辯理由有關的事實因素，並根據該些事實因素來裁定“合理辯解”這答辯理由能否成立。上訴法庭同時下令訟費議題要等候原審法官作出裁決後再作處理。

The background of this case, the issues arising therefrom and how they were dealt with were set out in the judgment handed down by this Court on 21 November 2012, and they will not be repeated here.
案件的背景和其引發的議題及處理方法已在上訴法庭於2012年11月21日頒下的判案書中詳細列出，故不再贅述。

The trial judge resumed the trial of the case on 20 and 21 February 2013 in accordance with the directions given by this Court.  No fresh evidence was adduced by any party during the resumed trial.  Chan relied on the following inferences drawn by the trial judge to support his defence that he had a reasonable excuse:
2013年2月20日至21日，原審法官按上訴法庭的指示續審案件。雙方在續審時都沒有再提交任何新證據。陳引用原審法官作出的以下推論來支持他有“合理辯解”的答辯理由：

TVB knowingly allowed Olympian City to approach Chan and TVB would not be so naive as to think that Olympian City could successfully invite Chan to perform without having to pay him anything.  In other words, TVB allowed Chan to accept the $112,000 from Olympian City as remuneration for his performance; and
無綫電視知道及容許奧海城接觸陳，而無綫電視是不會天真地認為奧海城無須向陳支付分文便能成功邀請到他。換句話說無綫電視是容許陳從奧海城處收取112,000元作表演酬金的；及

Chan had no reason whatsoever to suspect that TVB might decline to allow him to accept the remuneration, and the reason why Chan did not apply to his superior for permission was that he thought he had no duty or did not need to do so.
陳沒有任何理由會懷疑無綫電視會不批准他收受酬金，而陳不向上級申請批准，原因是他以為沒有責任或沒有需要提出申請。

Tseng’s position was that the defence of reasonable excuse invoked by Chan was also applicable to him.  Another argument advanced by Tseng was that if he honestly believed that Chan had obtained TVB’s permission for accepting the remuneration, he could rely on the defence of reasonable excuse.
叢的立場是陳提出的“合理辯解”這答辯理由對他亦適用。叢的另一立場是如他真誠地相信陳有獲得無綫電視的“許可”收取報酬，他是可以依賴“合理辯解”這答辯理由的。

On 7 March 2013 the trial judge handed down his Reasons for Verdict of the resumed trial.  He again dismissed charges 1 to 3, which were against Chan and Tseng.
2013年3月7日，原審法官頒下續審裁決理由書，再次撤銷針對陳和叢的第一至第三項控罪。

The trial judge took the view that the scope of the defence of reasonable excuse was wider than that of the defence of lawful authority, and that its purpose was to make up for the deficiency in the defence of lawful authority.  The trial judge quoted the following comment on p 288 of Bribery and Corruption Law in Hong Kong, 2nd Edition:
原審法官認為“合理辯解”這答辯理由的涵蓋面比“合法權限”這答辯理由廣闊，目的是以彌補“合法權限”作為辯護理由的不足之處。原審法官援引“Bribery and Corruption Law in Hong Kong” 2nd Edition, p 288的以下觀察：

The trial judge considered that it was reasonable for Chan to accept $112,000 for his performance in the additional Be My Guest show, and that it was also reasonable for him to agree to perform in that programme.  The trial judge remarked that although according to the employment contract between Chan and TVB, Chan was duty bound to apply to his superior if he wanted to engage in any outside work, it was not specified in the contract to whom he should apply for obtaining permission and all along the way he communicated with Chan Ching-cheong and Lee Po-on, both of them were members of TVB’s senior management, was to “inform” them of relevant matters.  The trial judge pointed out that the senior management of TVB had never required Chan to make any formal application and had never made any formal reply to his “informing” them, nor had they sent the “information” or applications to the personnel department for record.  The trial judge emphasized that starting from May 2009, on a total of 7 occasions Chan had taken up outside work for which he was paid and about which he had not informed TVB.  The trial judge considered that TVB could easily learn about such outside work from the media, but that TVB had never taken exception to that, nor had TVB indicated to Chan that they objected to or were concerned about his engagement in paid outside work.
原審法官認為陳收取112,000元演出“附加志雲飯局”是合理的，而他答應演出該節目亦是合理的。原審法官指出雖然根據陳和無綫電視簽署的僱傭合約，他有責任向上級申請從事外間工作，但合約上並沒有列明他要向誰人申請以取得許可，而他一直以來都是以“知會”方法和無綫電視高層陳禎祥和李寶安溝通。原審法官指出無綫電視高層從沒有要求陳作出正式申請，亦沒有就他的“知會”作出任何正式的回覆，更沒有將有關“知會”或申請交付人事部存檔。原審法官強調，自2009年5月開始，陳一共接受過7次收費的外間工作，但他都沒有知會無綫電視。原審法官認為無綫電視的高層很容易從傳媒方面得知該些外間工作，但無綫電視從來沒有提出過異議，更沒有向陳表示過會反對或關注他從事外間工作而收取費用。

At the resumed trial, the trial judge made further findings of facts and drew further inferences as follows:
原審法官在續審時作出以下額外事實裁定及推定：

Chan did not make use of the powers arising from his office to seek any reward, or to give any person any benefit, favour or convenience.  The mistake that Chan committed or what he failed to do was just that he did not follow the procedures prescribed in the employment contract to apply to his superior for approval of his undertaking outside work and accepting remuneration for such work.  There was no dishonesty on the part of Chan in the course of these events.
陳沒有藉職權以謀取報酬，或是因此而給予任何人利益、優待或方便。陳所做錯的或沒有做到的，是沒有根據僱傭合約向上級申請接受外間工作和收取他工作所得的報酬而已。而當中陳亦沒有任何不誠實的地方。

Chan had never deliberately hidden the fact that he had taken up outside work and had accepted remuneration.  Actually, he did not need to hide this matter at all.  Therefore, the $112,000 which he accepted could not be said to be secret commission or secret reward.
陳根本沒有刻意隱瞞他接受了外間工作和收取了報酬。而實際上，他也沒有任何需要隱瞞此事的必要。因此，陳收取的112,000元，不可以說得上是甚麼的秘密回佣或是秘密報酬。

Chan’s acceptance of Olympian City’s invitation to perform in the additional Be My Guest show had always been in the open, and Olympian City approached him by going through the usual procedure, ie through his manager company IEAP.  Different departments of TVB were involved in the production of the programme, and the programme had been discussed during meetings held by high ranking officers of different departments.  In the end, the programme was broadcast by TVB.  This shows that nobody had ever considered that this matter could be some sort of secret, or had ever attempted to hide it.
陳接受奧海城邀請演出“附加志雲飯局”此事一直是公開的，而奧海城亦是經過一般程序，即是經過他的經理人公司思潮製作以接洽他的。節目製作過程中，牽涉了無綫電視的不同部門，而節目亦在跨部門高層會議中作過討論，最後於無綫電視播出。這顯示，從來都沒有人認為這可以是甚麼秘密，或會企圖將此事隱瞞。

The cooperation between TVB and Olympian City was a proper transaction, and so was the cooperation between Olympian City, IEAP and Chan.  Throughout the incident, Chan had never acted in any way dishonestly, nor had he any improper intention and he had never deliberately held back anything from any person.  Everyone from the top to the bottom of TVB knew that Chan would take part in the performance, and his performance would do no harm but good to TVB.  His performance and acceptance of the remuneration did not conflict with any interest of TVB.  There was no reason at all why TVB would object to his acceptance of the remuneration for his performance .
無綫電視和奧海城合作是正當交易，奧海城和思潮製作及陳的合作也是正當交易。陳在整件事中沒有任何不誠實的地方或其他不當的意圖，亦沒有對任何人刻意隱瞞。無綫電視的上上下下也知道陳會參與演出，而陳的演出對無綫電視只會有利而無害，他的演出和收取報酬更與無綫電視沒有任何利益衝突，完全沒有理由，無綫電視會反對他收取報酬而演出。

The Court of Appeal’s message was that it was not sufficient to prove that Chan had lawful authority or reasonable excuse by solely relying on the fact that he had the principal’s acquiescence.  However, as far as reasonable excuse is concerned, the Court of Appeal did not say that in considering the issue of whether Chan had a reasonable excuse, the fact that the principal had granted acquiescence could not be taken into account.
上訴法庭所表達的，是陳不能單單依靠他已經得到了主事人的“默許”，便足以證明他有「合法權限」或「合理辯解」。但是，就「合理辯解」來說，上訴法庭沒有說明在考慮陳是否有「合理辯解」這議題時，是不能考慮主事人已經給予了“默許”這一環節的。

As for Chan’s acceptance of the remuneration, simply no one would expect that Chan would perform in the additional Be My Guest show for free.  The understanding reached between TVB and Olympian City was that the contractual price of $1,300,000 did not cover a guarantee provided by TVB that Chan would perform in the programme, and for this reason it became necessary for Olympian City themselves to invite him to perform in it.  It may well be asked: In this commercial transaction, what else could it mean other than Chan’s performing fee was to be paid by Olympian City?  If any party thought that Chan would agree to perform free of charge, then why is it that no one suggested that TVB should make the invitation directly, so that Olympian City would have no need to take all the trouble to contact Chan through IEAP?  Moreover, IEAP was a manager company; how could anyone expect that it would provide service for Olympian City free of charge?
有關收取報酬方面，根本上沒有人會認為陳演出這“附加志雲飯局”是會不收取酬勞的。無綫電視和奧海城的理解是，合約金額130萬元並不包括無綫電視須保證陳演出該節目，而亦因此而需要奧海城自行去邀請他演出。試問在這商業交易之中，這除了是代表陳的演出費用要由奧海城一方負責之外，還可以是代表甚麼？倘若有任何一方認為陳會答允免費演出，為何沒有人提出不如直接由無綫電視方面作出邀請，而用不著那麼費時失事，要奧海城經思潮製作聯絡陳？再者，思潮製作是一間經理人公司，試問又怎能期望它會免費為奧海城提供服務？

From this it can be seen that Chan’s acceptance of the remuneration could not possibly be a secret.  Could it be said that Chan would expect that something which everybody knew would nevertheless never get into the ears of Lee Po-on and so he intentionally refrained from reporting it to Lee Po-on or making the application?  When compared with Chan’s income and the remuneration he received on previous occasions for his outside work, $112,000 was not a particularly high figure.  Under such circumstances, why should Chan take any risk and deliberately hide it from Lee Po-on?
由此可見，陳收取報酬此事根本不可能是秘密。難道陳會期望，這些人所共知的事實，必定不會傳到李寶安的耳中，而故意不向李寶安報告或作出申請？相比於陳的收入和過往他就外間工作收取的酬金，112,000元並不是特別高的數目，又有甚麼理由，陳需要冒險在這情況之下刻意隱瞞李寶安？

Between June 2008 and January 2010, Chan engaged in outside work 20 odd times.  He received remuneration 18 times, out of which he informed his immediate superior 9 times (or as stated by the prosecution, he applied to his superior).  On one occasion in April 2009 he received a total of $410,000 for performing in a theatrical version of Be My Guest.  At that time his superior Chan Ching-cheong did not raise any objection.
2008年6月至2010年1月期間，陳曾參與過20多次的外間工作，有18次收取了報酬，而當中有9次是知會了他的直屬上司的（或如控方所指，有向上級申請的）。2009年4月的一次，他收取了總共410,000元以演出「志雲飯局」舞台版，他當時的上司陳禎祥也是沒有表示反對的。

Starting from as early as 2008, Chan’s notifications or applications concerning his outside work had not been subject to TVB’s formal internal approval procedures.  According to TVB’s internal guidelines, relevant documents about such approval had to be sent to the personnel department for record.  However, neither Chan Ching-cheong nor Lee Po-on had ever sent documents of this nature to the personnel department for record.  One may well imagine that all along neither of the two parties had taken the so-called approval procedures for undertaking outside work too seriously.
早於2008年開始，陳接受外間工作的通知或申請，已沒有依照無綫電視內部的正式程序批核。根據無綫電視的內部指引，相關的批核文件是必須送到人事部存檔的，而不論是陳禎祥或是李寶安，都從來沒有把類似的文件送往人事部存檔。可想而知，雙方對於這所謂接受外間工作的批核，一直都不是怎麼的認真處理。

Chan’s superiors (including Lee Po-on) had never indicated any objection to Chan’s taking up outside work and accepting remuneration for such work.  His performance in the additional Be My Guest show for Olympian City and TVB would only be beneficial to TVB and would caused TVB no harm.  For what reason would Chan deliberately conceal it from them?
陳接受外間工作和就工作收取報酬，他的上司（包括李寶安）是從來沒有表示過反對的。就為奧海城和無綫電視演出“附加志雲飯局”而言，對於無綫電視來說，只會是有益而無害，又會有甚麼理由，陳需要刻意隱瞞？

Lee Po-on did say in his evidence that supposing Chan applied to him at that time, he would not approve it, but he did not provide any reasonable ground to support his supposition.  This statement given by him is completely contrary to common sense and illogical.  Furthermore, there is no ground to support the argument that at the material time Chan could expect that in circumstances from which TVB would be benefited, not harmed, Lee Po-on would on that single occasion object to his performing in the show and accepting remuneration for it, and so he needed to deliberately hide it from Lee Po-on.
雖然李寶安曾經在作供時說若當時陳向他申請他也不會答應。但是，他卻沒有提出任何合理理由支持他的假設。李寶安這說法完全是有違常理和不合邏輯的。再者，亦沒有任何理據支持，陳於當時便能預測到，在對無綫電視有益而無害的情況之下，李寶安會單單在這次反對他的演出和收取報酬，而因而需要刻意向李寶安隱瞞此事。

Besides finding that Chan had TVB’s acquiescence in accepting the $112,000 involved in this case, the trial judge further held that Chan could rely on the defence of reasonable excuse provided in section 9(1)(a) of the Ordinance on the basis of the following findings of fact:
除了裁定陳有得到無綫電視的“默許”收取涉案的112,000元外，原審法官亦基於以下事實裁定認定陳可以依賴《條例》第9(1)(a)條列明的“合理辯解”這答辯理由：

“Chan’s and TVB’s way of handling and attitude towards outside work in the past
“就陳及無綫電視過往就外間工作的處理方法與態度

It can be gleaned from the mode of communication used between Chan and his superiors in respect of outside work in the past that at least starting from 2008, Chan, on his part, communicated by way of informing his superiors, rather than making applications.  Although according to the employment contract, Chan still had the duty to apply to his superiors, it was not specified in the employment contract or any other internal document of TVB to whom he, being a general manager, should make such application.
從過往陳與上級就外間工作的溝通模式可見，至少自2008年開始，陳一方已經採用了知會上級的方式，而並非申請。雖然僱傭合約上陳仍然是有責任向上級申請的，但僱傭合約或任何其他無綫電視的內部文件都沒有寫明作為總經理的他應該向何人申請。

Furthermore, starting from May 2009, there were 7 occasions on which Chan engaged in paid outside work but about which he did not inform his superiors.  Such outside work included to attend opening ceremonies of shops which provided luxurious goods and/or services, and to attend celebrating activities of banks, insurance companies and motor car companies.  TVB and Chan’s superiors could easily learn about such activities from the media.  It is hard to imagine that if TVB required Chan to apply for permission each time he wanted to take up outside work, they would allow him to go on behaving in this way without showing him their objection or concern.
再者，由2009年5月開始，陳有7次收費的外間工作，陳都是沒有知會上級的。這些外間工作，包括出席名店的新店開幕，銀行、保險、和汽車公司的慶祝活動等，無綫電視和他的上級都是很容易可以從傳媒等各方面得知的。難以想像的是，倘若無綫電視是要求陳每次接受外間工作都申請批准的話，會讓這種情況一直發生，而不向陳表示反對或關注。

Whether there was conflict of interest between Chan and TVB
陳及無綫電視是否存在利益衝突

There was no conflict of interest between Chan and TVB in respect of Chan’s acceptance of the remuneration for his performance for Olympia City in the additional Be My Guest show, which was part of the countdown activities.  In fact, it can be said that they had a common interest.
陳及無綫電視就陳收取報酬替奧海城演出該倒數活動中的“附加志雲飯局”是沒有利益衝突的，其實可以說得上是有共同利益。

Chan’s performance would not do any harm but only good to TVB.  His performance in the show and his acceptance of the remuneration did not give rise to any conflict of interest between he and TVB.  There was no reason at all that TVB would object to his accepting the remuneration for his performance.
而陳的演出對無綫電視只會有利而無害，他的演出和收取報酬更與無綫電視沒有任何利益衝突，完全沒有理由，無綫電視會反對他收取報酬而演出。

It is impossible that TVB did not know Chan accepted remuneration for attending the activities
無綫電視不可能不知道陳是收報酬出席活動

Everyone in TVB, from the top to the bottom, knew that Chan would take part in the performance.
無綫電視的上上下下也知道陳會參與演出。

TVB, being one of the bodies which organized the activities, cannot say they did not know that Olympian City would invite Chan to perform in the programme and that Olympian City would pay him.
作為其中一個主辦單位，無綫電視不能說它不知道奧海城會邀請陳演出該節目，而奧海城是會給予報酬的。

As far as remuneration is concerned, since there was no manager contract entered into between Chan and TVB and Chan just made use of his time after work to earn the remuneration, TVB was not entitled to draw any commission from it, nor did they have any say in determining the amount.  If TVB was interested in knowing how much the remuneration was and if they asked Chan or Olympian City about it, there is no reason to believe that they would refuse to provide the answer.
就酬金方面，因為陳與無綫電視之間沒有經理人合約，陳利用工餘時間賺取酬勞，無綫電視是無權從中抽取分文，或過問數額的。若無綫電視是有興趣知道酬金的數目而詢問陳或奧海城的話，亦沒有理由相信他們是會拒絕提供的。

Chan did not act in any way dishonestly nor did he have any improper intention
陳並沒有不誠實的地方或其他不當的意圖

The cooperation between TVB and Olympian City was a proper transaction, so was the cooperation between Olympian City, IEAP and Chan.  Throughout the incident, Chan had never acted in any way dishonestly, nor had he any improper intention and he had never deliberately hidden anything from any person.”
無綫電視和奧海城合作是正當交易，奧海城和思潮製作及陳的合作也是正當交易。陳在整件事中沒有任何不誠實的地方或其他不當的意圖，亦沒有對任何人刻意隱瞞。”

The trial judge concluded that at the material time Chan definitely or, at least, probably honestly believed that he was entitled to accept the remuneration of $112,000 from Olympian City for his performance in the additional Be My Guest show and that it was not necessary for him to apply to TVB for permission beforehand.
原審法官認定陳在案發時必然是，或起碼較有可能是誠實地認為他是有權為他演出的“附加志雲飯局”，向奧海城收取涉案的112,000元酬金，而無必要向無綫電視事先申請許可。

In the end, the trial judge found that Chan had a reasonable excuse in relation to his act of accepting the $112,000 as remuneration for his performance in the additional Be My Guest show and that the defence was also applicable to Tseng; therefore he once again cleared Chan and Tseng of all charges.
最終原審法官裁定陳就演出“附加志雲飯局”收取112,000元酬金的行為有“合理辯解”，而該答辯理由適用於叢，因此原審法官再裁定陳和叢全部罪名都不成立。

Chan and Tseng did not ask for costs in respect of charges 1 to 3, but they asked for an order that costs of charges 4 and 5 be paid by the prosecution.
陳和叢沒有就第一至第三項控罪申請訟費，但要求控方支付第四和第五項控罪的訟費。

The Secretary considered that the trial judge committed errors in relation to legal points involved in this case, and he appealed again by way of case stated pursuant to section 84 of the District Court Ordinance.  The Secretary asks this Court to set aside the verdicts of not guilty.  He also appeals against the costs order made by the trial judge and asked this Court to set aside the order.
司長認為原審法官就涉案的法律觀點犯錯，故根據《區域法院條例》第84條以“案件呈述”方式再提出上訴。司長要求本庭撤銷原審法官的無罪裁決，並同時就原審法官作出的訟費判令，提出上訴。司長要求本庭撤銷該訟費判令。

In this appeal which is again proceeded by way of case stated, the Secretary asked for this Court’s opinion of the following questions:
司長再提出的“案件呈述”是要求本庭就以下法律問題表達意見：

Question [1]:Did I (the trial judge) make the following findings of fact or draw the following inferences without any evidential support
問題[1]：本席（原審法官）是否在沒有證據支持下作出以下的事實裁斷或推定

TVB cannot say they did not know that Olympian City would pay Chan remuneration
無綫電視不能說它不知道奧海城會給予陳報酬

TVB acquiesced in Chan’s acceptance of remuneration paid by a third party for his performance in the additional Be My Guest show in the countdown programme?
無綫電視默許了陳就演出該倒數節目內的“附加志雲飯局”收取第三者給予的報酬

Question [2]:In finding that Chan and Tseng had a reasonable excuse, did I erroneously take into account the following factors
問題[2]：本席裁定陳及叢有合理辯解時錯誤地考慮以下各項因素

Chan did not have any dishonest intent
陳沒有不誠實意圖

The mistake that Chan committed or that which he failed to do was only that he had not made an application to his superior/principal
陳所做錯的或沒有做到的，只是沒有向上級/主事人申請

There was no conflict of interest between Chan and TVB
陳與無綫電視並沒有任何利益衝突

Chan did not deliberately conceal the fact that he accepted the remuneration?
陳沒有刻意隱瞞收受報酬

Question [3]:In finding that Chan and Tseng had a reasonable excuse, did I fail to take into account the following factors
問題[3]：本席裁定陳及叢有合理辯解時沒有考慮以下各項

Chan did not make any disclosure to his principal
陳沒有向其主事人作出披露

Chan’s performance in the additional Be My Guest show in the countdown programme was an act done in relation to his principal’s affairs or business and, as such, it was not outside work?
陳演出該倒數節目內的“附加志雲飯局”是與其主事人的事務或業務有關，而不是外間工作

Question [4]:Is my finding that Chan and Tseng had a reasonable excuse a conclusion or finding which no reasonable judge, properly applying his mind to the factors to be considered and giving himself the proper directions, could have come to?
問題[4]：本席就裁定陳及叢有合理辯解是否任何明理，妥為顧及考慮因素並向自己發出了適當指示的法官均不可能達致的結論或裁斷？

Secretary’s grounds of appeal
司長的上訴理由

Mr Eric Kwok SC, acting for the Secretary, started off by submitting that if Chan and Tseng wished to rely on the defence of reasonable excuse, it was incumbent on them to adduce sufficient and credible evidence which could create a reasonable doubt in the prosecution case against them, before they could rid themselves of the charges (see HKSAR v Chan Tat Chung Danny [2010] 2 HKC 268).  Mr Kwok SC stressed that if they wished to rely on the defence of permission provided in section 9(4) of the Ordinance, the burden was on them to establish on the balance of probabilities that Chan had obtained TVB’s permission to accept the $112,000 from Olympian City, and that further, the permission had to meet the criteria laid down in section 9(5) of the Ordinance.
代表司長的郭棟明資深大律師首先提出如要依賴“合理辯解”這答辯理由，陳和叢有責任提出充分且可信的證據，令控方指控他的案情出現合理疑點，才能脫罪。（見HKSAR v Chan Tat Chung Danny [2010] 2 HKC 268案）。郭資深大律師強調如他們要依賴《條例》第9(4)條所指的“許可”作為答辯理由，他們有舉證責任，以相對可能性較高的舉證標準證明陳有獲得無綫電視的“許可”，收取奧海城的112,000元，而該“許可”亦須符合《條例》第9(5)條定下的條件。

Mr Kwok SC’s position is that neither Chan nor Tseng had adduced evidence sufficient to support the defence of reasonable excuse which could create a doubt in the prosecution case against them.  Mr Kwok SC submitted that the inferred facts which the trial judge said could support the defence of reasonable excuse were not supported by sufficient primary facts.  The inferred facts found by the trial judge which Mr. Kwok SC referred to are set out below:
郭資深大律師的立場是陳和叢都沒有提出足夠證據支持“合理辯解”這答辯理由，令控方針對他們的指控有疑點。郭資深大律師強調原審法官指能支持“合理辯解”的“推論事實”沒有足夠的基本事實支持。郭資深大律師所指的是原審法官作出的以下“推論事實”，即—

TVB definitely knew that Olympian City would pay Chan remuneration for his performance in the publicity activities, and no one would suspect that TVB would not approve Chan’s acceptance of the remuneration;
無綫電視必然知悉奧海城必會給予陳演出有關宣傳活動的報酬，無人會懷疑無綫電視不會批准陳收取該酬金；

TVB acquiesced in Chan’s acceptance of remuneration for his performance in the publicity activities;
無綫電視有默許陳就演出該宣傳活動收取酬金；

Chan did not apply to his superior for permission to accept the remuneration because he thought he had no duty and did not need to make the application;
陳不向上級申請批准收取酬金是他認為無責任，亦無需要作出申請；

Chan did not deliberately conceal the fact that he engaged in outside work and accepted the remuneration, so the remuneration was not secret reward; and
陳沒有刻意隱瞞他接受了外間工作及收取了報酬，故該報酬並非秘密報酬；及

There was no reason why TVB would object to Chan’s accepting the remuneration.
無綫電視沒有理由反對陳收取該報酬。

Mr Kwok SC pointed out that when TVB processed their employees’ applications concerning outside work, they attached great importance to whether the outside work was related to TVB’s business, because outside work which was not related to TVB’s business was a matter about the employment contract and was governed by specific application procedures and principles pertaining to granting approval, but that if an employee accepted remuneration for outside work which was related to TVB’s business, the employee’s acceptance of the remuneration was subject to the criminal law, and that therefore TVB had different application procedures and approval-granting principles to govern such applications.  Mr Kwok SC submitted that for both kinds of activities, ie employees’ undertaking outside work and employees’ accepting advantages, TVB had a clear and definite policy and had prescribed application procedures, and that under such policy it was clearly stipulated that an employee could accept certain kinds of advantages only, which could not possibly include the $112,000 involved in the present case.
郭資深大律師指出無綫電視處理僱員在外間工作的申請時，十分注重該些外間工作是否和無綫電視的業務有關，原因是和無綫電視業務無關的外間工作屬僱傭合約問題，有其特定的申請程序和審批原則；但如僱員就和無綫電視業務有關的外間工作收取報酬，則僱員收取報酬一事會受刑法的規限。因此，無綫電視會有不同的申請程序和審批原則。郭資深大律師指出無綫電視就僱員從事外間工作及收取利益都有明確政策和申請程序，而該些政策更列明僱員只可以接受某些利益，但不可能包括涉案的112,000元。

Mr Kwok SC emphasized that in the past the activities for which Chan accepted remuneration with TVB’s approval were all outside work not related to TVB’s business.  Mr Kwok SC submitted that in making relevant findings of fact, the trial judge completely overlooked this important factor and unreasonably rejected the evidence of Lee Po-on, TVB’s General Manager, that if Chan applied to him for permission to accept remuneration for any performance which was related to TVB’s business, he definitely would refuse the application.  Mr Kwok SC considered that the trial judge erroneously rejected Lee Po-on’s evidence, in that the trial judge commented that Mr Lee’s dealing with such application in this way was “not supported by any reasonable ground, in contravention of the usual rules and illogical” (see paragraph 38 of the Reasons for Verdict of the resumed trial).
郭資深大律師強調陳以往獲無綫電視批准收取酬勞的活動都是外間工作，和無綫電視的業務無關。郭資深大律師力稱原審法官作出有關事實裁決是完全忽略這重要因素，更不合理地拒絕接納無綫電視總經理李寶安的證言，指如陳就參與和無綫電視業務有關的演出向他申請收取酬勞，他必會拒絕。郭資深大律師認為原審法官錯誤地否定李寶安的證言，因為原審法官指李先生這樣處理該類申請“沒有合理理由支持，有違常規及不合邏輯”（見續審裁決理由書第38段）。

Mr Kwok SC particularly referred to the fact that Chan had hosted 150 odd episodes of Be My Guest produced by TVB and had not accepted any extra remuneration, that Chan had never accepted any remuneration on account of his performing in any programme produced by TVB, ie taking part in performance which was related to TVB’s business, and that in addition, such way of handling the matter was contrary to TVB’s policy, therefore it was unlikely that TVB would permit Chan to accept $112,000 as remuneration from Olympian City through IEAP for his performance in the additional Be My Guest show.
郭資深大律師特別指出陳曾主持過無綫電視製作的150多集「志雲飯局」，但他都沒有收取任何額外酬勞，而他亦從來沒有因演出無綫電視製作的節目，即和無綫電視業務有關的演出而收取過酬金，再加上該做法和無綫電視的政策有抵觸，因此無綫電視不應會批准陳就演出“附加志雲飯局”透過思潮製作向奧海城收取112,000元酬金。

Mr Kwok SC considered that the trial judge had no basis to find that TVB definitely knew Olympian City would pay Chan $112,000 as remuneration for his performance in the additional Be My Guest show and that TVB would acquiesce in Chan’s acceptance of the $112,000.
郭資深大律師認為原審法官沒有基礎裁定無綫電視必然知悉奧海城會支付112,000元給陳作為他演出“附加志雲飯局”的報酬及會默許陳收取該112,000元。

Mr Kwok SC also took the view that when the trial judge considered the reasonable excuse factor, he lost sight of the fact that the purpose of the Ordinance was to ban secret commission, and that the $112,000 which Chan received from Olympian City on account of TVB’s business was precisely secret commission, and that therefore whether TVB suffered any loss or whether Chan deliberately concealed this matter had no bearing on the illegal nature of the $112,000 which Chan received from Olympian City through IEAP.
郭資深大律師亦認為原審法官在考慮“合理辯解”這因素時，忽略了《條例》要禁止“秘密佣金”的主旨，而陳因為無綫電視的業務而收取奧海城的112,000元正是“秘密佣金”。因此，不管無綫電視在事件中是否有損失或陳是否刻意隱瞞，都不影響陳透過思潮製作向奧海城收取的112,000元的違法性質。

Mr Kwok SC reiterated that the $112,000 which Chan received through IEAP from Olympian City was related to TVB’s business, that its nature was different from that of the outside work which he took up previously, and that therefore Chan should not have thought that he had no duty or did not need to apply to his superior for permission to accept the remuneration.  Mr Kwok SC also stressed that Chan did not make any or sufficient disclosure to TVB about his acceptance of Olympian City’s $112,000.
郭資深大律師重申陳經思潮製作向奧海城收取的112,000元是和無綫電視的業務有關，其性質和他曾從事過的其他“外間工作”不同，因此陳不應該認為他沒有責任或需要向上級申請批准以收取該酬金。郭資深大律師亦強調陳沒有就其收取奧海城112,000元一事向無綫電視作出過任何或足夠的披露。

Mr Kwok SC submitted that when dealing with the issue of reasonable excuse, the court should consider objective social norms.  He submitted that the fact that TVB allowed Chan to accept remuneration from Olympian City or acquiesced in his doing so, which the defence suggested, could not constitute the defence of reasonable excuse provided in the Ordinance.
郭資深大律師認為法庭在處理“合理辯解”這議題時要考慮客觀社會標準。他認為辯方所稱的無綫電視容許/默許陳向奧海城收取酬勞一事不能構成《條例》所列出的“合理辯解”這答辯理由。

Mr Kwok SC contended that the answers to the questions set out in the stated case should all be “yes”, and that this Court should direct the trial judge to find Chan and Tseng guilty as charged and to continue to hear the case on this basis.
郭資深大律師力稱其“案件呈述”列出的問題的答案都是“是”，而本庭應指示原審法官裁定陳和叢都罪名成立，並指示他以此基礎繼續審理案件。

Respondents’ position
答辯人的立場

The basic position taken by Chan’s legal representative Mr Tse SC, is that Chan’s defence of reasonable excuse was established and that the not-guilty verdicts given by the trial judge were correct.  Mr Tse SC considered that there was sufficient evidence in this case to support the verdicts.  He submitted that TVB knew that Olympian City would certainly pay Chan for his performance in the additional Be My Guest show and that therefore they acquiesced in Chan’s acceptance of the remuneration.  According to Mr Tse SC, evidence which supports the argument that TVB acquiesced in Chan’s acceptance of the remuneration includes: (1) the history of cooperation between Olympian City and TVB; (2) TVB knew of and did not object to Olympian City’s inviting Chan to take part in performing in the additional Be My Guest show; (3) TVB was not responsible for contacting Chan and inviting him to perform in the show, and Olympian City was left to contact him on their own; (4) the production fee of $1,300,000 agreed on between TVB and Olympian City did not include Chan’s performing fee; therefore, when Olympian City additionally paid $160,000 to invite Chan and another artiste Lai Yiu-cheung, they must have regarded them as performing guests, rather than artistes sent by TVB.
代表陳的謝華淵資深大律師的基本立場是陳的“合理辯解”這答辯理由已被確立，故原審法官的無罪裁決是正確的。謝資深大律師認為案件有足夠證據支持原審法官的裁決，指無綫電視知悉奧海城必會支付報酬給陳演出“附加志雲飯局”，故有默許陳收取該報酬。謝資深大律師指支持無綫電視默許陳收取報酬的證據包括：（一）奧海城與無綫電視的合作經驗；（二）無綫電視知道亦不反對奧海城邀請陳參與“附加志雲飯局”的演出；（三）無綫電視不負責聯絡及邀請陳演出，而交由奧海城親自聯絡他；（四）無綫電視和奧海城協議的130萬元製作費，並不包括陳的演出費用，故奧海城額外支付16萬元邀請陳和另一演員黎耀祥時，必然是視他們為表演嘉賓，而非無綫電視派出的藝人。

Mr Tse SC emphasized that TVB knew Olympian City would definitely pay Chan for his performance and that during the performance, both Chan and Lai Yiu-cheung put on Olympian City stickers to show that they were Olympian City’s guests, not artistes sent by TVB.  Mr Tse SC submitted that TVB knew in what capacity Chan acted when he performed in the additional Be My Guest show, ie he was a guest invited by Olympian City, not an artiste of TVB, and that TVB also treated Chan as one acted in that capacity.  In these circumstances, Mr Tse SC asserted that TVB knew Olympian City invited Chan to perform in the additional Be My Guest show and would pay Chan remuneration but TVB raised no objection, and that therefore TVB acquiesced in Chan’s acceptance of the remuneration from Olympian City for his performance in the additional Be My Guest show.
謝資深大律師強調無綫電視知悉奧海城必定會向陳支付演出費用，而演出時，陳和黎耀祥都貼上奧海城的貼紙，代表他們是奧海城的嘉賓，而非無綫電視派出的藝人。謝資深大律師認為無綫電視知道陳演出“附加志雲飯局”時的身份，即他是奧海城邀請的嘉賓，並非無綫電視的藝人，而無綫電視亦是以該身份看待陳。在上述情況下，謝資深大律師力稱無綫電視知悉奧海城邀請陳演出“附加志雲飯局”及會向他支付酬金，但沒有提出反對，因此無綫電視有默許陳向奧海城收取酬金演出“附加志雲飯局”。

Mr Tse SC emphasized that even though Lee Po-on claimed that he did not know Chan would take part in performing in the additional Be My Guest show, other controllers of TVB, including Ho Lai-chuen, Lok Yee-ling and other colleagues of different departments all knew about that, and that therefore at least TVB should know that Chan accepted remuneration for performing in the additional Be My Guest show.  Mr Tse SC said, in these circumstances, Chan believed that TVB acquiesced in his acceptance of remuneration for his performance in the additional Be My Guest show, and that if he made a formal application, TVB would grant the application.  Mr Tse SC asserted that in these circumstances Chan had a reasonable excuse to accept the $112,000.  Mr Tse SC stressed that Chan simply could not conceal the fact that he performed in the additional Be My Guest show, and that therefore he had no reason to deliberately refrain from applying to Lee Po-on for permission to accept remuneration from Olympian City for his performance.
謝資深大律師強調雖然李寶安聲稱他不知道陳會參與演出“附加志雲飯局”，但其他無綫電視總監，包括何麗全、樂易玲及其他跨部門同事都知道該事，因此無綫電視最少是應該知道陳是有收取報酬演出“附加志雲飯局”的。在上述情況下，謝資深大律師認為，陳相信無綫電視是默許他收取費用演出“附加志雲飯局”，而如他提出正式申請，無綫電視是會批准的。謝資深大律師力稱在上述情況下，陳是有“合理辯解”收取涉案的112,000元。謝資深大律師強調，陳根本不能隱瞞他演出“附加志雲飯局”一事，因此他亦沒有理由刻意不向李寶安申請以取得許可向奧海城收取演出費用。

Referring to the trial judge’s finding that Chan’s performance in the additional Be My Guest show was beneficial to both parties and his rejection of Lee Po-on’s evidence that if Chan applied for permission to accept remuneration from Olympian City for his performance in the additional Be My Guest show, he would refuse the application, Mr Tse SC submitted that the trial judge’s findings were not altogether unreasonable, that they were supported by evidence, and that therefore the Court of Appeal had no basis to reverse them.
謝資深大律師強調原審法官裁定陳演出“附加志雲飯局”對雙方都有利，亦不接納李寶安的證言指如陳申請收取奧海城費用演出“附加志雲飯局”，他會拒絕申請。謝資深大律師認為原審法官的裁決並非全不合理，亦是有證據支持的，因此上訴法庭無基礎推翻原審法官的事實裁決。

Mr Tse SC submitted that Chan did in the same way as what he did when he performed in the 150 odd episodes of Be My Guest in the past, ie he did not receive any remuneration from TVB for his performance in the additional Be My Guest show.  Mr Tse SC considered that in view of the fact that TVB had knowledge of, did not object to and even acted in such a way as to facilitate [Chan’s performance], TVB should not object to Chan’s acceptance of the $112,000 from Olympian City for his performance in that sideshow.
謝資深大律師指出和過往演出的150多集「志雲飯局」一樣，陳沒有因為演出“附加志雲飯局”向無綫電視收取任何報酬。謝資深大律師認為在無綫電視知情及不反對、更作出配合下，無綫電視不應會反對陳收取奧海城112,000元演出“附加志雲飯局”。

In Mr Tse SC’s view, the trial judge correctly took into account the factor of whether Chan had acted dishonestly in the incident, and the fact that Chan did not act dishonestly was necessarily one of the factors for determining whether Chan had a reasonable excuse.  Mr Tse SC’s position is that since Chan did not apply to TVB for permission in respect of his acceptance of the $112,000, he had to rely on the defence of reasonable excuse and that in dealing with this issue, the court should take into account the background of the incident in its entirety, including the way in which Chan and TVB handled applications of similar nature in the past, the absence of any conflict of interest between Chan and TVB in relation to his acceptance of the $112,000 from Olympian City and the fact that Chan did not deliberately conceal his acceptance of the remuneration.
謝資深大律師認為原審法官有正確地考慮陳在事件上是否有不誠實行事，而陳沒有不誠實行事亦必然是決定陳是否有“合理辯解”的因素之一。謝資深大律師的立場是陳沒有就收取涉案的112,000元向無綫電視申請許可，故要依賴“合理辯解”為答辯理由，而在處理該議題時，法庭理應將整件事件的背景，包括陳過往和無綫電視就同類申請的處理方法、陳收取奧海城112,000元一事和無綫電視並沒有任何利益衝突及陳沒有刻意隱瞞收取該報酬等事項考慮在內。

Mr Tse SC contended that Chan’s failure to disclose to TVB his acceptance of the remuneration from Olympian City was not of crucial importance in the incident.  Mr Tse SC did not agree with the Secretary’s view, and he argued that the trial judge did not overlook the fact that what happened in this case was related to TVB’s business.  He submitted that the crux of this case was that the trial judge found that Chan reasonably believed he was entitled to accept remuneration from Olympian City for his performance in the additional Be My Guest show, and that TVB not only knew about that but they should not object to Chan’s acceptance of the remuneration.
謝資深大律師亦認為陳沒有向無綫電視披露他有向奧海城收取酬金一事對事件並無舉足輕重的影響。謝資深大律師不同意司長的立場並指原審法官沒有忽略涉案事件和無綫電視的業務有關一事。他指出案件的重點是原審法官裁定陳會合理地認為他有權就演出“附加志雲飯局”收取奧海城酬金，而無綫電視不但知情，更不應反對陳收取酬金一事。

Mr Tse SC pressed the point that permission, lawful authority and reasonable excuse are three different defences provided for by statute in the case of an agent accepting an advantage, therefore the court should give different considerations to these different defences.  Mr Tse SC further argued that if Chan’s acceptance of the remuneration was illegal, then Olympian City should also have been charged.
謝資深大律師強調“許可”、“合法權限”和“合理辯解”是法例列明就代理人收取利益的不同答辯理由，因此，法庭應給予該些不同的答辯理由不同的考慮。謝資深大律師更指如陳收取酬金的行為是違法，則奧海城亦應受到檢控。

Mr Tse SC pointed out in his oral submissions that Chan’s performance in the additional Be My Guest show was not the first time he accepted remuneration from a third party for his doing an act in relation to TVB’s business.  He submitted that the undisputed documentary exhibit P27 showed that Chan had made application in respect of a certain performance which was related to TVB’s business and was granted permission to accept $50,000 from a third party as remuneration.  The content of exhibit P27 relied on by Mr Tse SC is as follows:
在其口頭陳述，謝資深大律師更指陳演出“附加志雲飯局”並非是他第一次和無綫電視業務有關的作為向第三者收取酬金。他指出無爭議的文件證物P27顯示，陳曾就一些和無綫電視業務有關的演出提出申請及取得許可，向第三者收取5萬元報酬。謝資深大律師依賴的證物P27的內容如下：

Please kindly note that I will attend the product launch of OSIM in the afternoon of 2 Apr 2009, for which I will be given a fee of HK$50,000.  I will take leave for the purpose.  I understand that the client has committed sponsorship for exposure in “Scoop” on Jade.
Please kindly note that I will attend the product launch of OSIM in the afternoon of 2 Apr 2009, for which I will be given a fee of HK$50,000.  I will take leave for the purpose.  I understand that the client has committed sponsorship for exposure in “Scoop” on Jade.

Mr Tse SC’s argument is that the above-mentioned performance was comparable to Chan’s performance in the additional Be My Guest show, and that Chan at that time was under the supervision of Chan Ching-cheong, who approved his acceptance of the $50,000; therefore, Chan’s acceptance of the $112,000 for his performance in the additional Be My Guest show was not the first time he accepted remuneration from a third party for his doing an act in relation to TVB’s business.  However, Mr Tse SC admitted that at the trial he did not ask Chan Ching-cheong about his understanding of the exact meaning of “the client has committed sponsorship for exposure in ‘Scoop’ on Jade’.  His argument is that the nature of that performance should be the same as that of the additional Be My Guest show.
謝資深大律師的立場是上述演出等同演出“附加志雲飯局”，而當時負責陳的上司陳禎祥有批准陳收取該50,000元，因此陳收取112,000元演出“附加志雲飯局”並非他第一次在和無綫電視業務有關的作為中向第三者收取報酬。但謝資深大律師承認原審時，他並沒有向陳禎祥查詢他如何理解“client has committed sponsorship for exposure in ‘Scoop’ on Jade”的確實性質。他的立場是該表演應該和“附加志雲飯局”的性質相同。

Mr Tse SC concluded that the trial judge’s finding that Chan’s acceptance of the $112,000 from Olympian City through IEAP was supported by a reasonable excuse was correct, and that the answers to the Secretary’s questions set out in the stated case should all be “No”.
謝資深大律師最終認為原審法官裁定陳透過思潮製作向奧海城收取112,000元一事有“合理辯解”支持的決定是正確的，而司長在“案件呈述”中提出的問題的答案全部都應該是“否”。

Ms Maggie Wong, counsel for Tseng, submitted that the trial judge’s verdicts were based on the following factors:
代表叢的黃珮琪大律師強調原審法官的裁決是建基在以下各點：

Chan’s performance in the additional Be My Guest show was something which took place in the open and Olympian City communicated with IEAP through the usual procedure;
陳演出“附加志雲飯局”一事是公開的，而奧海城亦是透過這正常程序來向思潮製作接洽；

The senior management of TVB must have discussed the programme and agreed that it could be broadcast;
無綫電視高層必會討論過有關節目，並同意其播出；

If Chan had agreed to perform in the additional Be My Guest show free of charge, the body which invited him to do so should have been TVB, and the invitation should not have been made through IEAP; therefore, no one would expect that Chan would agree to perform in the programme free of charge or that IEAP would provide their service free of charge;
如陳同意免費演出“附加志雲飯局”，應由無綫電視邀請他，而非透過思潮製作，因此沒有人會認為陳會免費演出該節目或思潮製作會免費提供服務；

Between June 2008 and January 2010, Chan engaged in outside work 20 times, accepted remuneration 18 times, and 9 times out of these he had informed his immediate company [sic];
2008年6月至2010年1月，陳有20次外間工作，18次有收取報酬，當中9次知會其直屬公司；

Starting from 2008, the notifications or applications which Chan made in connection with his engagement in outside work were not processed in accordance with the formal procedures provided for by TVB and TVB did not handle those applications seriously;
自2008年開始，陳因接受外間工作而作出的通知或申請，已沒有根據無綫電視定下的正式程序批核，而無綫電視亦沒有認真處理該些申請；

Lee Po-on had never objected to Chan’s taking up outside work and accepting remuneration, therefore the trial judge found that if Chan applied to him for accepting $112,000 for his performance in the additional Be My Guest show, he would not refuse; and
李寶安從來沒有反對陳在外間工作及收取報酬。因此，原審法官裁定如陳向他申請就演出“附加志雲飯局”收取112,000元，他不會不答應；及

There was no evidence which showed that Chan deliberately concealed the fact that he accepted $112,000 as remuneration.
沒有任何證據顯示陳有刻意隱瞞收取112,000酬金一事。

Ms Wong considered that there was sufficient evidence for the trial judge to make the findings of fact in question, particularly the one that TVB acquiesced in Chan’s acceptance of remuneration from a third party for his performance in the additional Be My Guest show.  She submitted that the trial judge’s findings of fact were not perverse, and that the Court of Appeal should not disturb them.
黃大律師認為原審法官有足夠證據作出有關的事實裁決，特別是無綫電視有“默許”陳就演出“附加志雲飯局”收取第三者的報酬一事。她認為原審法官的事實裁決，並非“有悖常理”，故上訴法庭不應更改。

Ms Wong contended that Chan had reason to expect that TVB would approve his acceptance of remuneration for doing outside work.  She submitted that not only that TVB should not object to Chan’s acceptance of remuneration for his performance in the additional Be My Guest show, they should even support it.
黃大律師強調陳有理由亦有期望無綫電視會批准他就外間工作收取報酬。黃大律師認為無綫電視不但不應會反對陳收取報酬演出“附加志雲飯局”，更應給予支持。

Ms Wong stressed that Tseng, not being an employee of TVB, had no knowledge of Chan’s employment terms, or the rules that Chan should follow, and that therefore he could not possibly know whether Chan was entitled to accept remuneration for his performance in the additional Be My Guest show.  Taking into account the cooperation relationship between TVB and Olympian City, Tseng would reasonably think that TVB would agree that IEAP could engage Chan and pay him remuneration for his performance in the additional Be My Guest show.  Ms Wong took the view that Tseng had reasonable grounds to believe that TVB knew of, allowed or acquiesced in Chan’s acceptance of remuneration for his performance in that programme.  Ms Wong asserted that these factors were sufficient to support Tseng’s defence of reasonable excuse.
黃大律師強調叢並非無綫電視的僱員，亦不知悉陳的聘用條件或守則，故不可能知道陳是否有權就演出“附加志雲飯局”收取酬金，而考慮到無綫電視和奧海城的合作關係，叢必會合理地認為無綫電視同意思潮製作聘用陳及向他支付酬金，以演出“附加志雲飯局”。黃大律師認為叢是有合理理由相信無綫電視是知道、容許或默許陳收取酬金演出該節目的。黃大律師力稱上述因素足以支持叢的“合理辯解”之答辯理由。

Ms Wong submitted that since the Secretary appealed by way of case stated, he had to prove that the trial judge had committed an error of law and that his findings of fact were such that no reasonable judge could have come to and were perverse.  Ms Wong considered that the trial judge’s findings of fact which the Secretary asked this Court to reverse did not meet this standard at all.  She cited Li Man Wai v Secretary for Justice (2003) 6 HKCFAR 466, Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336 to support her argument.
黃大律師指出司長是以“案件呈述”提出上訴，他必需證明原審法官在法律上犯錯及其達到的事實裁決是任何合理的法官都不會作出的，是有悖常理的。黃大律師認為司長要求上訴法庭推翻原審法官所作的事實裁決的申請完全不能達到上述標準。她援引Li Man Wai v Secretary for Justice (2003) 6 HKCFAR 466，Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336等案例支持其立場。

Ms Wong submitted that the scope of reasonable excuse was wider than that of lawful authority or permission, and that whether the defence of permission was available to a defendant should not adversely affect the availability of the general defences of lawful authority and reasonable excuse to that defendant.  She also argued that if a defendant honestly believed that he was justified in accepting a certain reward, even if he did not obtain permission from his employer, he could still rely on the defence of reasonable excuse.  Ms Wong asserted that if the principal knew of or acquiesced in his agent’s acceptance of remuneration or allowed the agent to do so, the agent’s acceptance of remuneration would not be a contravention of section 9 of the Ordinance.  Ms Wong stressed that in the circumstances of this case, there was sufficient evidence to show that Tseng honestly believed that Chan had obtained permission from TVB to accept remuneration from Olympian City for his performance in the additional Be My Guest show, and that therefore Tseng could rely on the defence of reasonable excuse.
黃大律師重申“合理辯解”涵蓋的範圍比“合法權限”或“許可”廣闊，而“許可”這答辯理由亦不應損害“合法權限”和“合理辯解”這一般性的答辯理由。她亦認為若一名被告人真誠地相信他是理應得到有關的報酬時，即使沒有取得其僱主的“許可”，他仍然是可以依賴“合理辯解”這答辯理由的。黃大律師力稱如主事人知道、容許或默許代理人收取酬金時，代理人收取酬金一事不會觸犯《條例》第9條。黃大律師強調，以本案的情況而言，有足夠證據顯示叢會真誠地相信陳有獲得無綫電視的“許可”向奧海城收取報酬，演出“附加志雲飯局”，而叢亦因此可以依賴“合理辯解”這答辯理由。

Ms Wong submitted that reasonable excuse and permission were two separate defences.  She emphasized that a defendant who had to rely on the defence of reasonable excuse must have accepted a reward without the permission granted by the principal under section 9(4) of the Ordinance, and that therefore in considering whether the defence of reasonable excuse was established, factors other than whether the agent had obtained the principal’s acquiescence had also to be taken into account, including what was in the mind of the defendant, whether he intended to conceal anything, whether he acted dishonestly, whether there was any conflict of interest, the background of the two parties concerned and the usual way of doing things.
黃大律師重申“合理辯解”和“許可”是兩個獨立的答辯理由，並強調當一名被告人要依賴“合理辯解”這答辯理由時，他所收取的報酬必然是未得主事人根據《條例》第9(4)條的“許可”。因此在考慮“合理辯解”這答辯理由能否成立時，除了主事人是否曾給予代理人默許外，亦要考慮其他因素，包括被告人的心態、他是否有意隱瞞、他是否不誠實行事、事件是否有利益衝突情況出現及雙方背景和一貫做法等。

According to Ms Wong, looking at Chan’s acceptance of the $112,000 from the point of view of the public, and adopting an objective standard, a reasonable man would consider that Chan had a reasonable excuse.
黃大律師認為以大眾的客觀標準去考慮陳收取112,000元一事，合理人士會認為陳是有“合理辯解”的。

Ms Wong cited a number of cases to support her contention that when a principal knew that his agent would accept remuneration from a third party, he could not raise any objection by arguing that he was not aware of the details or the exact amount involved.  Ms Wong’s position is that TVB could not claim that their acquiescence in Chan’s acceptance of the advantage in question was invalid by saying that they did not know how much Chan accepted from Olympian City and complaining that Chan did not make sufficient disclosure.
黃大律師亦援引多宗案例指當主事人知道代理人會從第三者收取酬勞時，他不能以不知具體的情況或確實金額來提出反對。她的立場是無綫電視不能以不知悉陳向奧海城收取金額多少及指陳沒有作出足夠披露為理由，來聲稱其“默許”陳收取利益的決定無效。

Although Ms Wong did not separate Tseng’s case from Chan’s case in her original written submissions, upon enquiry by the court, she submitted that the court should give separate consideration to whether Tseng had a reasonable excuse and should not be constrained by the finding which the court made in respect of the same defence invoked by Chan.  Ms Wong submitted that the relevant differences between Tseng’s case and Chan’s case included the following:
雖然黃大律師在其原本的書面陳詞沒有將叢和陳的情況分別出來，但在法庭的查詢下，她表示法庭應獨立考慮叢是否有合理辯解，而非受制於法庭就陳同一答辯理由所作的裁決的規限。黃大律師指叢和陳不同的有關因素，包括：

“(1)Tseng, through IEAP, accepted on behalf of Chan outside bodies’ engagement of Chan for his appearance at commercial activities.  Such activities were Tseng’s normal commercial activities.
“(一)叢透過思潮替陳接受外間機構聘請陳出席商業活動是叢的正常商業行為。

(2)Tseng was not TVB’s employee, so he would have no knowledge of the terms of the contract between Chan and TVB, the internal rules issued by TVB to their staff members, or the arrangements between Chan and TVB concerning outside bodies’ engagement of Chan for his appearance at commercial activities.
(二)叢並非無綫電視的僱員，他不會知悉陳和無綫電視之間的合約條款，無綫電視向員工發出的內部守則，或陳與無綫電視之間就陳接受外間機構聘請陳出席商業活動的安排。

(3)Regarding the activity involved in this case, it was Olympian City which, on their own initiative, contacted Tseng and asked him to engage Chan and Lai Yiu-cheung to perform in the additional Be My Guest show, and to negotiate with the two performers about their performance fees.  Olympian City notified TVB in advance that they would on their own invite Chan and Lai Yiu-cheung to appear in the additional Be My Guest show.  From the standpoint of Tseng, such arrangement showed that at the very least TVB acquiesced in Chan’s acceptance of remuneration from Olympian City for his appearance in that sideshow.  If this incident had nothing to do with remuneration, Tseng/IEAP would not have involved in it at all.  The prosecution also agreed that TVB should suspect or should know that Chan accepted remuneration in this activity.  In relation to this issue, Tseng’s position did not differ much from Olympian City’s.
(三)是次活動是奧海城主動聯絡叢來聘請陳和黎耀祥在附加志雲飯局演出及洽談兩位演出者的演出費用。奧海城事前已通知無綫電視奧海城會自行邀請陳和黎耀祥出席附加志雲飯局。站在叢的角度，這只能代表無綫電視最少已默許陳收取奧海城的酬勞出席該演出。若事件不涉及酬勞，根本不會有叢/思潮的參與。控方亦同意無綫電視應該懷疑或應該知道陳在此活動中有收取酬勞。叢的立場與奧海城在這議題上並無重大分別。

(4)TVB was aware of the above-mentioned arrangement, yet instead of raising any objection, they went on making preparations for the programme, with Chan and Lai Yiu-cheung being guests engaged by an outside body.
(四)無綫電視知道上述安排而沒有作出異議，反而繼續以陳和黎耀祥為外聘嘉賓的身份籌備該節目。

(5)On the day of the performance, TVB allowed Chan and Lai Yiu-cheung to put on Olympian City stickers and continued to recognize their status of being guests engaged by an outside body.”
(五)無綫電視在演出當日容許陳和黎耀祥貼上奧海城貼紙，持續地承認陳和黎耀祥為外聘嘉賓的身份。”

Ms Wong agreed that when a defendant sought to use reasonable excuse as his defence to a charge of agent accepting an advantage or offering an advantage to an agent, he bore the burden of proving the defence on the balance of probabilities, but she argued that when the charge was conspiracy for an agent to accept an advantage, the burden was on the prosecution to disprove defences such as lawful authority and reasonable excuse.  Ms Wong cited a number of cases, including Churchill v Walton [1967] 2 AC 224 and HKSAR v Ng Po On (2008) 11 HKCFAR 91, to support her argument.
雖然黃大律師同意如一名被告人要以“合理辯解”作為代理人接受利益或向代理人提供利益罪行的答辯理由，他有舉證責任在相對可能性較高的標準證明該答辯理由，但她指如控罪是串謀使代理人接受利益時，則控方有舉證責任推翻“合法權限”及“合理辯解”等答辯理由。黃大律師援引多宗案例，包括Churchill v Walton [1967] 2 AC 224及HKSAR v Ng Po On (2008) 11 HKCFAR 91等案支持其立場。

Ms Wong submitted that the answers to the questions raised by the Secretary in the stated case should all be “No”.
黃大律師認為司長在“案件呈述”提出問題的答案全都應該是“否”。

Discussion
討論

In Ng Po On, the issues which the Court of Final Appeal dealt with were about the interpretation of sections 14(1), 14(4) and 24 of the Ordinance.  Under section 14(1) of the Ordinance the Court of First Instance may make an order authorizing the Commissioner of the ICAC to require, by a notice in writing, a person to furnish a statutory declaration or a statement in writing enumerating certain information.  Section 14(4) of the Ordinance provides that any person on whom such a notice has been served who, without reasonable excuse, fails to comply with the terms of the notice shall be guilty of an offence.  It is laid down in section 24 of the Ordinance that in any proceedings related to the Ordinance, the burden of proving a defence of lawful authority or reasonable excuse shall lie upon the accused.  In Ng Po On, at the trial the magistrate held that the defendants bore the persuasive burden of proving that they had a reasonable excuse for their non-compliance with the notice.  A judge of the Court of First Instance quashed the defendants’ convictions, holding that a persuasive burden encroached on the presumption of innocence and that section 24 could be treated as imposing a merely evidential burden so far as section 14(4) was concerned.  On a remedial interpretation, the Court of Final Appeal read down section 24 in conjunction with section 14(4) so that they imposed an evidential burden instead of a persuasive burden.  So read down, the accused who raises the defence of reasonable excuse will be required to adduce sufficient and credible evidence to engender a reasonable doubt as to the prosecution case, but the prosecution will retain throughout the persuasive burden of proving non-compliance, encompassing a burden of negativing any purported reasonable excuse.
終審法院在上述Ng Po On案處理的議題涉及《條例》第14(1)、14(4)和24條的詮釋。根據《條例》第14(1)條，原訟法庭可作出命令授權廉政專員發出通知書，要求某人提交法定聲明或陳述書列明某些事項。《條例》第14(4)條列明，接獲通知書的人如沒有合理辯解下沒有履行通知書的要求則屬犯法。《條例》第24條則列明和《條例》有關的法律程序中，以具有合法權限或合理辯解為免責辯護的舉證責任在於被控人。在Ng Po On案，原審裁判官裁定被告人負有“須令人信服”的責任，以證明他們有合理辯解而不遵照通知書行事。原訟法庭法官撤銷被告人的定罪，並裁定“須令人信服”的責任侵犯了無罪推定，而就《條例》第14(4)條而言，第24條只可視為施加於被告人“提出證據”的責任。終審法院採用補救性詮釋方法，將第24條連同第14(4)條的意思限制為施加“提出證據”責任，而非“須令人信服”的舉證責任。按照終審法院的上述解釋，提出合理辯解的被控人須提供充分且可信的證據，以令控方的案情出現合理疑點，但控方一直負有證明被控人不遵從通知書的“須令人信服”的舉證責任，包括否定任何被指為構成“合理辯解”的舉證責任。

However, the Court of Final Appeal made it clear that the above-mentioned interpretation was exclusively concerned with how section 24 of the Ordinance affects the operation of section 14(4) of the Ordinance, and that when it came to consider other provisions in the Ordinance, such as sections 4, 5, 6, 7, 8 and 9, in which reasonable excuse also featured, such interpretation was not necessarily applicable.
但終審法院表明上述詮釋只涉及《條例》第24條如何影響《條例》第14(4)條的運作，而考慮《條例》其他涉及“合理辯解”的條款，例如第4、5、6、7、8和9條，該詮釋方法不一定適用。

In our view, whether a reverse burden of proof is inconsistent with the presumption of innocence is dependent on whether the reverse burden is related to an element of the offence in question or is related to a defence only.  The elements of the offence under section 14(4) of the Ordinance include (1) non-compliance with the terms of a notice; and (2) absence of a reasonable excuse.  Generally speaking, the act of omission of not complying with a notice cannot constitute an unlawful act, but in order to enable the Commissioner of the ICAC to carry out his statutory duties more effectively, section 14(4) of the Ordinance stipulates that non-compliance with the terms of a notice without reasonable excuse after the notice has been served is an unlawful act.
本庭認為逆轉舉證責任是否和無罪推論有抵觸，應根據逆轉舉證是和控罪所指的犯罪要素有關或只是和答辯理由有關。《條例》第14(4)條的犯罪要素是包括（一）沒有履行通知書的要求；及（二）沒有合理辯解。一般而言，不履行通知書這「不作為」本身不可能構成犯罪行為，但為了令廉政專員能更有效地執行其法定職責，《條例》第14(4)條將接獲通知書但在沒有合理辯解下拒絕履行通知書的要求列為犯罪行為。

HKSAR v Lam Yuk Fai (2006) 9 HKCFAR 281 is about the transfer of a travel document to another without reasonable excuse.  The offence has two limbs: the first is the transfer of a travel document, and the second limb requires that the transfer should be without reasonable excuse.  The Court of Final Appeal held that when a defendant was charged with conspiracy to transfer a travel document to another without reasonable excuse, the prosecution had the burden to negative the defendant’s reasonable excuse.  In Churchill v Walton [1967] 2 AC 224 the House of Lords dealt with the case in a similar way.  Viscount Dilhorne commented on page 237:
HKSAR v Lam Yuk Fai (2006) 9 HKCFAR 281案涉及沒有合理辯解下向另一人轉讓旅行證件。該罪行由兩部分組成：第一，轉讓旅行證件；及第二，須在沒有合理辯解下作出該轉讓。終審法院裁定當控方檢控被告人串謀在沒有合理辯解下向另一人轉讓旅行證件時，控方是有否定被告人有合理辯解的舉證責任。英國上議院法庭在Churchill v Walton [1967] 2 AC 224案以相同方法處理案件。Viscount Dilhorne 大法官在判案書第237頁強調：

The House of Lords held that when prosecuting someone for conspiracy to use gas oil in respect of which the required payment had not been made, the prosecution not only had to prove that the defendant had in fact used the oil, but also had to prove that when the defendant conspired to use the oil, he knew that the required payment had not been made. The reason was that using the oil was not per se unlawful, and that what constituted the unlawful act was that when using the oil, the defendant knew that the required payment had not been made.
英國上議院裁定在處理一項串謀使用一些沒有支付某些費用的燃油時，控方不但要證明被告人確有使用過該些燃油，更要證明串謀使用該些燃油時，被告人是知悉該些燃油是沒有支付過有關費用的，原因是使用燃油本身並非違法，違法行為是使用燃油時，被告人是知悉該些燃油是沒有支付過有關費用的。

The offences involved in the present case are agent accepting an advantage and offering an advantage to an agent.  Each offence comprises only three elements: (1) accepting or offering an advantage; (2) as a reward for certain conduct; and (3) such conduct was related to the principal’s affairs or business.  Without reasonable excuse is not an element of the offence (see HKSAR v Yan Pak Cheung [2009] 1 HKC 339 and Chan Tat Chung Danny, etc.).
本案涉及代理人接受或向代理人提供利益罪，構成該罪行的要素只有三項：（一）收受或提供利益；（二）作為某些行為的報酬；及（三）該行為是和代理人的主事人之事務或業務有關。沒有合理辯解並非該罪行的要素之一（見HKSAR v Yan Pak Cheung [2009] 1 HKC 339及Chan Tat Chung Danny 等案）。

Reasonable excuse is one of the defences applicable to the offence of agent accepting an advantage and the offence of offering an advantage to an agent, but according to section 24 of the Ordinance, the burden of proving this defence is on the defendant.  In our view, in the case of the offence of conspiracy for an agent to accept an advantage, the prosecution only needs to prove that the defendant entered into an agreement, the object of which was to enable an agent to accept an advantage for his doing an act in relation to his principal’s business, and that is sufficient to discharge the burden of proof required in respect of the offence.  The prosecution bears no burden to negative the defence that the defendant has lawful authority/reasonable excuse etc..  When the elements of the offence is proved, it is for the defendant to prove the defence of lawful authority/reasonable excuse according to the civil standard of proof.  Only if he is able to do so can he exonerate himself from any liability.
“合理辯解“是代理人接受或向代理人提供利益罪的答辯理由之一，但根據《條例》第24條，該免責辯護理由的舉證責任在被告人。本庭認為在串謀使代理人接受利益罪，控方亦只需要證明被告人和他人協議，目的是令代理人在和主事人的業務有關的作為收受報酬，已足以履行控罪所須的舉證責任。控方是沒有舉證責任否定被告人有合法權限/合理辯解等答辯理由。如罪行的要素已確立被告人要在符合民事案件的舉證標準下證明他有合法權限/合理辯解的免責辯護理由才能脫罪。

In section 9 of the Ordinance, three defences are set out to the offence of an agent accepting an advantage on account of his doing an act in relation to his principal’s business, namely lawful authority, reasonable excuse and permission.  Section 9(5) of the Ordinance provides that if an agent alleges that he accepted an advantage with the permission of his principal, the permission must fulfil the following two conditions in order to be effective:
《條例》第9條列出三項可以作為代理人就與其主事人業務有關的作為收取利益的免責理由，即“合法權限”、“合理辯解”和“許可”。《條例》第9(5)條列明如代理人指有其主事人的“許可”收取利益，該“許可”必須符合下列兩個條件方屬有效：

The permission shall be given before the advantage is accepted, or be applied for and given as soon as reasonably possible after acceptance of the advantage; and
“許可”須在接受利益前或在接受利益後在合理可能範圍內盡早申請及給予；及

The principal shall, before giving such permission, have regard to the circumstances in which it is sought.
主事人在給予許可前須顧及申請的有關情況。

The Ordinance does not state what can constitute lawful authority or a reasonable excuse.  This application[sic] does not involve any issue about lawful authority.  It is no easy matter to describe in a general way what constitutes a reasonable excuse in a case of an agent accepting an advantage.  Each case has its own particular facts, just as Kirby J said in Taikato:
《條例》並沒有列出甚麼能構成“合法權限”或“合理辯解”。本申請不涉及“合法權限”。在代理人收取利益案件，甚麼構成“合理辯解”絕非容易概括性地表述，每宗案件有其獨特的情況。誠如Kirby法官在Taikato案所述：

“ … it will usually be an impossible task for any court to say definitely what conduct will amount to a reasonable excuse.  More often it will be easier for the court to say what is not a reasonable excuse.”
“法庭不大可能指明甚麼行為可以構成‘合理辯解’。法庭較容易做到的是指出甚麼行為並不能構成‘合理辯解’。”

At the material time, Chan was the General Manager (Broadcasting) of TVB.  According to the employment contract between Chan and TVB, he could not undertake any outside work of whatever nature, whether paid or unpaid, before obtaining written consent of TVB.  Furthermore, TVB had implemented a clear and definite policy, which unequivocally stipulated that in respect of any matter related to TVB’s business, an employee could accept from a third party the following advantages only:
在有關時段，陳是無綫電視的電視廣播業務總經理。根據陳和無綫電視簽訂的僱傭合約，他在未能取得無綫電視的書面同意前，不得從事任何性質的外間工作，不論該些外間工作是否有報酬。無綫電視更有明確政策，表明僱員在和無綫電視業務有關的事宜，只能接受第三者提供的下列利益：

Non-cash gifts, advertising and promotional items, cash or gifts not exceeding $500 on any single festive programme [sic];
非現金禮品、廣告及宣傳物品，在節目每次收取現金或價值不超過500元的禮品；

Discounts which were equally available to other persons outside the company;
公司之外其他人都享有的折扣優待；

Normal business courtesies, such as a meal or other entertainment, provided that they were not so frequent or lavish that they might affect the proper discharge of the employee’s duties.
通常業務上的招待，例如餐飲及其他娛樂安排，但該些餐飲及娛樂安排不能太頻繁或太揮霍而影響僱員適當地履行其職務。

Originally, Chan’s applications for undertaking outside work were handled by Mr Chan Ching-cheong, Assistant Managing Director of TVB.  After he retired in May 2008, Chan’s applications were handled by Mr Lee Po-on, Group General Manager of TVB.
無綫電視的副董事總經理陳禎祥先生原先是負責處理陳從事外間工作的申請。他在2008年5月退休後，陳的申請改由無綫電視集團總經理李寶安先生負責。

Evidence shows that between June 2008 and January 2010, Chan engaged in outside work 20 times, out of which he accepted remuneration 18 times.  Chan stated that of these 18 times of his acceptance of remuneration for outside work, he informed his immediate superior only 9 times, and that very often he did not follow the official procedures prescribed by TVB for making applications and obtaining approval. For this reason, Mr Tse, Senior Counsel for Chan, emphasized that all along the two parties did not handle seriously matters concerning granting approval for Chan’s engaging in outside work, and that TVB had never objected to Chan’s acceptance of remuneration for his outside work.  Ms Wong also pointed out that in April 2009 Chan had accepted $410,000 for his performance in the theatrical version of Be My Guest show, and that his superior at that time, Chan Ching-cheong, did not object in any way.
有證據顯示，2008年6月至2010年1月，陳有20次外間工作，其中18次他有收取報酬。陳指出他就外間工作收取報酬的18次中，只有9次知會他的直屬上司，而他很多時都沒有依照無綫電視定下的正式程序提出申請及取得批核。因此，代表陳的謝資深大律師強調雙方對於他接受外間工作的批核，一直都不是認真處理，而無綫電視對他收取報酬，從事外間工作都從來沒有反對過。黃大律師亦指出在2009年4月，陳曾收過41萬元演出“志雲飯局舞台版”，而他當時的上司陳禎祥亦沒有任何異議。

We must point out that Chan’s acceptance of remuneration for his performance in the additional Be My Guest show cannot be equated with his acceptance of remuneration for his engagement in outside work.  As correctly pointed out by Mr Kwok SC, the work for which Chan engaged in and for which he accepted remuneration 18 times was outside work, which was not related to TVB’s business.  The nature of such work was totally different from that of the additional Be My Guest show in which he performed and accepted remuneration for his performance.  According to the finding we made earlier, Chan’s performance in the additional Be My Guest show was undoubtedly related to TVB’s affairs or business.  Chan’s acceptance of remuneration for his engagement in outside work was something about the employment contract between him and TVB, whereas his acceptance of $112,000 for his performance in the additional Be My Guest show was acceptance of an advantage by an agent for doing an act in relation to his principal’s business, and was governed by section 9(1)(a) of the Ordinance.
本庭應指出，陳收取報酬從事外間工作和他收取報酬演出“附加志雲飯局”一事，不可混為一談。誠如郭資深大律師正確指出，陳18次收取報酬從事的工作都是外間工作，和無綫電視的業務無關。該些外間工作和他收取報酬演出的“附加志雲飯局”性質完全不同。據本庭較早前作出的裁決，陳演出“附加志雲飯局”和無綫電視的事務或業務確實有關。陳收取報酬從事外間工作一事只與他和無綫電視簽署的僱傭合約有關。但陳收取112,000元演出“附加志雲飯局”，則屬代理人收受利益作出和其主事人的業務有關的作為，受《條例》第9(1)(a)條的管轄。

We do not agree that exhibit P27 can serve as proof that TVB had approved Chan’s acceptance of remuneration from a third party for his doing an act in relation to TVB’s business.  The content of exhibit P27 does not support this argument.  Exhibit P27 is entitled “Outside Job”.  Chan Ching-cheong gave evidence that Chan had never made any application to him for accepting remuneration from any outside body for his performance in any TVB programme.  He was shown 9 documents, including exhibit P27, and he clearly said that they were about Chan’s applications for outside work.  Lee Po-on also repeatedly stressed that TVB had never granted Chan permission to accept remuneration from a third party for his doing an act in relation to TVB’s business.  At the trial, Chan Ching-cheong’s and Lee Po-on’s evidence was not challenged, and no one put to them that what they said was incorrect.  Mr Tse SC had no basis to insist that exhibit P27 could prove that Chan’s acceptance of remuneration for his performance in the additional Be My Guest show was not the first time he accepted remuneration from a third party for his doing an act in relation to TVB’s business.
本庭不同意證物P27能證明無綫電視曾批准過陳就和無綫電視業務有關的作為向第三者收取報酬。證物P27的內容並不能證明該說法。證物P27的標題是“Outside Job”。而陳禎祥作供時，說陳沒有嘗試過向他申請收外間的酬勞作為做無綫電視的節目。證物P27等九份文件曾有向他展示，他表明這是和陳申請外間工作有關。李寶安亦多番強調無綫電視從來沒有批准過陳就和無綫電視業務有關的作為向第三者收取報酬。原審時，陳禎祥和李寶安的證言未受過挑戰，更沒有人指稱他們的說法不正確。謝資深大律師沒有任何基礎強稱證物P27能證明陳收取報酬演出“附加志雲飯局”並非是他首次就和無綫電視業務有關的作為向第三者收取報酬。

Chan Ching-cheong and Lee Po-on agreed that there were occasions on which Chan applied to TVB for permission to accept remuneration from a third party in relation to outside work.  If any of Chan’s applications met certain existing criteria, it would be granted by TVB.  However, they said with one voice that if Chan participated in TVB’s activities in front of the camera or other activities which were related to TVB’s business, TVB would not allow him to accept remuneration from a third party for that. They also confirmed that Chan had never applied to TVB for permission to accept remuneration from a third party for his involvement in any work which was related to TVB’s business.
陳禎祥和李寶安同意陳就外間工作曾向無綫電視申請許可向第三者收取報酬，而如陳的申請符合某些既定條例，無綫電視會批准他的申請，但他們都異口同聲表示如陳參加無綫電視幕前或其他活動，即和無綫電視業務有關的工作，無綫電視不會批准他向第三者收取報酬。他們亦確認陳從來沒有就其參與和無綫電視業務有關的工作向無綫電視申請過許可向第三者收取報酬。

Lee Po-on emphasized in his evidence that he would never grant permission to let Chan accept remuneration for his participation in any performance which was related to TVB’s business, and that Chan had never made any application for accepting remuneration from a third party for his taking part in any act in relation to TVB’s business.  Lee Po-on’s stance is not difficult to understand and his reason is obvious.  If TVB had approved Chan’s acceptance of remuneration for his doing an act in relation to TVB’s business, then TVB would have allowed a third party to profit from TVB’s business.  Such way of doing things would impair TVB’s reputation and would conflict with TVB’s interests.  Lee Po-on’s stance and statement were supported by reason; they were reasonable and credible.
李寶安作供時強調，如陳參與和無綫電視業務有關的演出而收取報酬，他一定不會批准，而陳亦從來沒有就其參與和無綫電視業務有關的作為作出申請向第三者收取報酬。李寶安的立場是不難理解的，原因亦是顯而易見的。如無綫電視批准陳就和無綫電視業務有關的作為收取報酬，則無綫電視會是容許第三者能透過無綫電視的業務謀取利潤。該做法會影響無綫電視的聲譽，亦會和無綫電視的利益有衝突。李寶安的立場及說法是有理可據的，亦是合理和合信的。

The trial judge, in rejecting Lee Po-on’s evidence referred to above, commented that since he had never objected to Chan’s acceptance of remuneration for engaging in outside work, it was impossible that he would object to Chan’s acceptance of remuneration for his performance in the additional Be My Guest show.  In making this finding, the trial judge did not take into account the fundamental difference between the outside work which Chan had engaged in and the additional Be My Guest show in which he performed.
原審法官拒絕接納李寶安的上述證言時，指出他從來沒有反對過陳就外間工作收取報酬，所以他不可能反對陳就演出“附加志雲飯局”收取報酬。作出上述裁決時，原審法官沒有考慮到陳曾演出的外間工作和演出“附加志雲飯局”的根本差別。

The trial judge, on the ground that TVB had on many occasions approved Chan’s acceptance of remuneration for his engagement in outside work, found that if Chan had made the application, Lee Po-on certainly would have approved his acceptance of the $112,000 for his performance in the additional Be My Guest show.  We consider that this finding made by the trial judge was made without basis and was wrong.
原審法官以無綫電視曾多次批准陳就外間工作收取報酬，裁定如陳提出申請，李寶安必會批准他收取112,000元演出“附加志雲飯局”。本庭認為原審法官作出的裁決是沒有根據的，亦是錯誤的。

We cannot overlook the fact that Chan had never made any application in connection with any work which was related to TVB’s business, and that he had never received any remuneration for any work of that nature.  His acceptance of remuneration for his performance in the additional Be My Guest show was the first time he received remuneration in the capacity of an agent for an act done in relation to his principal’s business.  Nor can we ignore that if the additional Be My Guest show had not been a live broadcast sideshow of the publicity activities organized by TVB for Olympian City, that show could have attracted the attention of only the shoppers in Olympian City and there could have been no way for it to reach the mass audience of TVB, and Chan could not possibly have been paid the remuneration by Olympian City.  TVB had no right to order Chan to perform in the additional Be My Guest show, but regardless of whether Chan performed in that sideshow, TVB could still receive the same amount of remuneration.  The trial judge did not take into account this consideration.
本庭不能忽視陳從來沒有試過就和無綫電視業務有關的工作作出申請或收取過任何報酬。他收取報酬演出“附加志雲飯局”是第一次以代理人身份就其主事人的業務有關的作為收取報酬。本庭亦不能忽視，如“附加志雲飯局”不是由無綫電視為奧海城舉辦的宣傳活動附加現場直播，該節目只可能吸引到奧海城的購物者，根本不可能吸引到無綫電視的大量觀眾，而陳亦不可能取得奧海城支付的報酬。無綫電視無權指令陳演出“附加志雲飯局”，但不論陳是否有演出該節目，無綫電視仍可以收取同一報酬。原審法官沒有將這因素考處在內。

The trial judge found that the reason for Chan’s failure to apply to his superior for permission to accept the remuneration was that he considered that he had no duty and had no need to do so.  This finding was made on the basis that Chan had, on many occasions, taken up outside work, accepted remuneration for such work and did not inform TVB, and that when he did notify the top management of TVB by way of “informing” them, without making any formal application, the top management did not require him to make any formal application, nor did they give him any formal reply or send such “information” or applications to the personnel department for record.  We do not agree with this finding made by the trial judge.
原審法官是根據陳曾多次從事外間工作收取報酬，都沒有知會無綫電視，而當陳沒有作出正式申請，只以“知會”方式通知無綫電視高層時，他們都沒有要求陳作出正式申請，亦沒有作出正式回覆，更沒有將該些“知會”或申請交付人事部存檔為理由，認為陳不向上級申請批准收取酬金是因為他認為無責任，亦無需要作出申請。本庭不同意原審法官的裁決。

In our judgment, the trial judge’s findings were made as a result of his misapprehension of the above-mentioned facts and his failure to properly take into account relevant considerations.  The conclusions he came to are those which no reasonable tribunal could have come to and, as such, are errors of law which can be reversed by an appellate court (see Li Man Wai v Secretary for Justice (2003) 6 HKCFAR 466).
本庭認為原審法官的裁決是建基在他對上述事實的誤解及沒有恰當地將有關的因素考慮在內。他得到的結論是合理的審裁機構都不會達致的，屬法律上的錯誤，上訴法庭有權推翻（見Li Man Wai v Secretary for Justice (2003) 6 HKCFAR 466案）。

If Chan considered that he had no duty and had no need to apply to TVB for approval in respect of his performance in the additional Be My Guest show, it was because he was ignorant of the law or misunderstood the law.  According to section 9(5) of the Ordinance, if Chan wanted to lawfully accept the $112,000 involved in this case, he had to apply to TVB and obtain their permission before he accepted the money, or apply for and obtain TVB’s permission as soon as reasonably possible after he accepted the money.  In addition, when he made the application, he had the duty to disclose to TVB all relevant circumstances in order to enable TVB to decide whether to give him such permission or not.  He could not use his ignorance or misunderstanding of the law as a reason for claiming that he was not governed by the law.  A defendant’s ignorance or misunderstanding of the law cannot constitute a valid defence.
如陳認為他無責任，亦無需要就演出“附加志雲飯局”向無綫電視申請及取得許可，他是對法律無知或誤解。根據《條例》第9(5)條，如陳要合法地收取涉案的112,000元，他必須在收取該款項前或在收到該款項後，在合理可能範圍內盡早向無綫電視提出申請及取得許可。他亦有責任在申請許可時，向無綫電視披露全部有關情況，以便無綫電視決定是否給予他許可。陳不能以他對法律的無知或誤解而強稱他不受法律的規管。一名被告人對法律的無知或誤解不能構成有效的答辯理由。

If Ms Wong’s stance is that as long as an agent honestly believes that he was justified in accepting a certain reward for his act done in relation to his principal’s business, even though he accepted the reward without the permission of his principal, he could rely on the defence of reasonable excuse, the stance she took was wrong and the case HKSAR v Peter Norman Elliott CACC 126/2003 she cited does not support her stance.
如黃大律師的立場是只要一名代理人就其主事人業務的作為真誠地相信他是理應得到某些報酬，而即使他沒有取得主事人的許可便收取報酬，他是可以依賴“合理辯解”作為免責理由，黃大律師的立場不正確，而她援引的HKSAR v Peter Norman Elliott CACC 126/2003案亦不支持該立場。

Chan and Tseng did not give any evidence in defence, nor did they adduce any other evidence to support their argument that there was a reasonable excuse which could support Chan’s acceptance of $112,000 from Olympian City through IEAP for his performance in the additional Be My Guest show.  The undisputed evidence shows that Chan had never accepted any remuneration from a third party in relation to TVB’s business and that TVB had never granted him permission to do that.  There was no evidential basis at all which could provide Chan with a reasonable ground to form the opinion that he was entitled to accept the $112,000 in question without obtaining permission from TVB.
陳和叢都沒有作供自辯或提出其他證據支持他們的立場，即他們有合理辯解來支持陳可以透過思潮製作向奧海城收取112,000元演出“附加志雲飯局”。無爭議的證據顯示，陳從來沒有試過就和無綫電視有關的業務向第三者收取報酬，而無綫電視亦從來沒有批准過他這樣做。陳根本沒有任何證據基礎能令他會有合理理由認為他有權在未取得無綫電視的許可下，收取涉案的112,000元。

We also consider that there was no objective factor which could provide Tseng with any reasonable ground for his opinion that Chan had obtained TVB’s permission to accept the $112,000 in question.  Tseng was Chan’s manager and was responsible for arranging outside work for Chan, but he had never arranged for Chan any work which was related to TVB’s business, nor is there any evidence which shows that Chan had received any remuneration from a third party in relation to such work.  Moreover, there is no evidence in this case that Tseng had ever asked Chan whether he could accept remuneration for engaging in work which was related to TVB’s business.  Chan did not furnish any reason, let alone convincing reason, which could show that he had reasonable grounds to think that Chan had obtained TVB’s permission to accept the $112,000 in question.
本庭亦認為沒有任何客觀因素令叢有合理理由認為陳已獲得無綫電視的許可收取涉案的112,000元。叢是陳的經理人，曾負責替陳安排外間工作。但叢從來沒有替陳安排過任何和無綫電視業務有關的工作，亦沒有證據顯示陳有就該些工作向第三者收取過報酬。案件亦沒有證據顯示叢有向陳查詢過他是否可以在一些和無綫電視業務有關的工作收取報酬。叢未能提出任何理由，更遑論令人信服的理由，指他有合理理由認為陳有獲得無綫電視的許可收取涉案的112,000元。

The trial judge placed emphasis on the fact that matters concerning Chan’s performance in the additional Be My Guest show all along proceeded in the open, that the production of the programme involved different departments of TVB, and that therefore TVB definitely knew that Chan would perform in the additional Be My Guest show.  The trial judge also stressed that no one would expect that Chan would perform in the additional Be My Guest show free of charge, and that for this reason TVB must have known that Olympian City would pay Chan remuneration.  In our view, the staff members who produced the additional Be My Guest show certainly knew that Chan would perform in the show, but those staff members were Chan’s subordinates and they had no duty to ask Chan whether he would accept remuneration for his performance in the additional Be My Guest show and whether, if he accepted any remuneration, he had obtained permission from Lee Po-on.  They would not know whether Chan had declared to Lee Po-on that he would perform in the additional Be My Guest show and further, they could not possibly know whether Chan had applied to Lee Po-on for permission to accept remuneration for his performance in that show.
原審法官強調陳演出“附加志雲飯局”一事一直是公開的，而該節目製作過程亦牽涉無綫電視的不同部門，因此無綫電視必然知悉陳會演出“附加志雲飯局”。原審法官亦強調沒有人會認為陳會免費演出“附加志雲飯局”，故無綫電視必定知悉奧海城會支付酬金給陳。本庭認為，“附加志雲飯局”的製作人員當然會知悉陳會演出該節目，但該些製作人員都是陳的下屬，他們沒有責任向陳查詢他是否會就演出“附加志雲飯局”收取報酬及如他有收取報酬，他是否獲得李寶安的許可。他們亦不會知悉陳是否有向李寶安報告會演出“附加志雲飯局”一事，更不可能知悉陳是否有向李寶安申請許可就演出該節目收取報酬。

The senior officer of TVB responsible for supervising Chan was Lee Po-on.  He gave evidence that before the event he simply did not know Chan would perform in the additional Be My Guest show, and that it was not until the night of the live broadcast of the show that he was aware that Chan performed in the show.  He strongly denied that he knew Chan would accept remuneration for his performance in the additional Be My Guest show.
負責陳的無綫電視上司是李寶安。他作供時表示他事前根本不知悉陳會演出“附加志雲飯局”，而他是在直播當晚才知悉陳的演出。他更極力否認他知悉陳會收取酬金演出“附加志雲飯局”。

In his evidence, Lee Po-on said that after the event, in early January 2010, he got wind of the fact that Olympian City paid a sum of money to a third party in connection with the publicity activities in question, and that therefore he instructed an accounting officer of TVB to ask Olympian City in a roundabout way whether they had paid extra money to IEAP in connection with the publicity activities.  A manager of Olympian City, Mr Au Kwok-hang, confirmed that he had received a telephone call from a staff member of TVB’s accounting department, who asked him matters about the payment of $160,000 by Olympian City to IEAP.  The above-mentioned evidence has not been challenged and it reveals that Lee Po-on did not know Chan would accept remuneration from Olympian City for his performance in the additional Be My Guest show.
李寶安作供時指他事後在2010年1月初收到消息顯示奧海城就有關的宣傳活動向第三者支付了金錢。因此他指派無綫電視一名會計員以“旁敲側擊”的方法向奧海城查詢是否就有關宣傳活動支付了額外金額給思潮製作。奧海城的經理區國恆先生確認曾收過無綫電視會計部職員的電話，向他查詢奧海城支付16萬元給思潮製作的事宜。上述未受挑戰的證據都顯示李寶安不知悉陳會就演出“附加志雲飯局”向奧海城收取酬金。

In fact, at the trial the defence did not put to Lee Po-on that he knew beforehand that Chan would perform in the additional Be My Guest show and that Chan would accept remuneration from Olympian City for his performance.
事實上原審時，辯方沒有向李寶安指他事前知悉陳會演出“附加志雲飯局”及陳會就該演出向奧海城收取報酬。

Chan’s acceptance of remuneration for his performance in the additional Be My Guest show was the first time he had ever accepted any remuneration for his doing an act in relation to TVB’s business.  A clear and definite company policy was in force in TVB, according to which an employee would not be allowed to accept any cash or gift in excess of $500.  The trial judge’s findings that Lee Po-on had acquiesced in Chan’s acceptance of the remuneration for his performance in the additional Be My Guest show, that TVB would have no objection to Chan’s acceptance of the remuneration for his performance in the additional Be My Guest show, and that Lee Po-on’s evidence that if Chan applied to him, he would not agree was contrary to common sense and illogical were not only devoid of any evidential basis, but were also at variance with the undisputed evidence.
陳收取報酬演出“附加志雲飯局”是他首次就和無綫電視業務有關的作為收取報酬。無綫電視有明確公司政策不會批准僱員收取任何超過500元的現金禮物。原審法官指李寶安默許陳收取報酬演出“附加志雲飯局”；無綫電視不會反對陳收取報酬演出“附加志雲飯局”；及李寶安表示即使陳向他申請，他也不會答應的說法是有違常理及不合邏輯的等等裁決，不但完全沒有證據基礎支持，更是不符合無爭議的證據。

Even if TVB or Lee Po-on ought to have known that Chan would perform in the additional Be My Guest show, it does not follow that they acquiesced in Chan’s acceptance of remuneration in circumstances where the requirements laid down in section 9(5) of the Ordinance were not met.  It is possible that Chan could perform in the additional Be My Guest show without charging any remuneration on account of the relationship with Olympian City.  In his evidence, Chan Ching-cheong said that whether Chan would receive any income for any performance was dependent on many considerations, for example, he performed free of charge because he wished to boost his personal fame.  Not only that Chan did not make any application to TVB before or after his performance, but he had never mentioned to TVB before or after the event that he had accepted any remuneration.  Under these circumstances, we consider that Chan could not hold that TVB would acquiesce in his acceptance of a secret reward without obtaining any permission, in violation of the Ordinance, by solely relying on the ground that TVB ought to have known that he would perform in the additional Be My Guest show.  We have to stress again that the additional Be My Guest show was the first occasion on which Chan accepted remuneration from a third party for his doing an act in relation to TVB’s business.  The argument that TVB acquiesced in his doing so is not supported by any evidence at all.
即使無綫電視或李寶安應該知悉陳會演出“附加志雲飯局”，亦不表示他們默許陳在沒有符合《條例》第9(5)條的情況下，收取酬勞。陳是可以因為和奧海城的關係而免費演出“附加志雲飯局”。陳禎祥作供時有說過陳表演是否有收入要視乎很多考慮，例如他希望提升個人的聲譽而免費演出。陳不但在表演前後都沒有向無綫電視作出申請，他事前事後都沒有向無綫電視提及收了酬金。在上述情況下，本庭認為陳不能單以無綫電視理應知悉他會就演出“附加志雲飯局”便認定無綫電視會默許他在違反《條例》，即沒有獲得許可的情況下收取秘密報酬。本庭要再強調，“附加志雲飯局”是陳第一次就和無綫電視業務有關的作為向第三者收取酬金，而指無綫電視默許他這樣做的說法是完全沒有證據支持的。

However Chan and Tseng phrased and embellished their grounds of defence, their primary ground of defence boils down to the assertion that TVB “must have known of”, “permitted” or “acquiesced in” Chan’s acceptance of the $112,000 as remuneration for his performance in the additional Be My Guest show from Olympian City through IEAP.  In the final analysis, the “knowledge”, “permission” or “acquiescence” relied on by Chan and Tseng points to the “permission” given by TVB in respect of Chan’s acceptance of the $112,000 in question.  However, in order to legitimize an act of accepting an advantage by relying on the permission given by the principal, the agent must follow the procedures prescribed in the Ordinance, ie the principal’s permission must be applied for and obtained before the advantage is accepted, or applied for and obtained as soon as possible after the advantage has been accepted.  If the court readily allows an act of accepting a secret reward to be legitimized by a permission which fails to meet the requirements laid down in the Ordinance, then the clear legislative intent will be defeated.
不論陳和叢如何形容或修飾他們的答辯理由，他們的基本答辯理由都是無綫電視“知道”、有“許可”或“默許”陳就演出“附加志雲飯局”透過思潮製作向奧海城收取112,000元酬金。陳和叢所稱的“知道”、“許可”或“默許”最終都是指無綫電視“許可”陳收取涉案的112,000元。但要以主事人的許可來將收取利益的行為合法化，代理人必需履行《條例》定下的程序，即在收取利益前申請及取得，或在收取利益後盡快申請及取得，主事人的許可。如法庭輕易容許一些未符合《條例》規定的許可來將一些收取秘密報酬的行為合法化，則會將明確的立法意圖毀於無形。

We agree that permission and reasonable excuse are two separate defences provided for by the Ordinance.  We also agree that reasonable excuse is wider in scope than permission.  However, when an agent claims that his principal would “permit” or “allow” him to do certain things, or “acquiesce in” his doing certain things, he must demonstrate that he has done all he could to comply with what the law requires of him, so as to legitimize his act of accepting an advantage; otherwise, the court will not find that he has a reasonable excuse to accept the advantage which is related to his principal’s business.  Under some circumstances, it is possible that an agent who does not have his principal’s permission but accepts an advantage which is related to his principal’s business can use reasonable excuse as his defence.  Take for example, an agent who has from time to time applied to his principal for permission to accept an advantage on account of his doing an act in relation to his principal’s business, and to whom the principal has always granted permission, will reasonably believe that under the same circumstances he can obtain his principal’s permission.  However, on one occasion, when the agent applied for permission from his principal pursuant to section 9(5)(b) of the Ordinance after he accepted an advantage, his principal, without informing him of any change, suddenly, for no reason, refuses to give him permission.  The agent cannot legitimize his acceptance of the advantage by the permission provided in the Ordinance, but it is highly likely that he can successfully convince the court that he has a reasonable excuse and thereby legitimizing his acceptance of the advantage.
本庭同意“許可”和“合理辯解”是《條例》列明兩個獨立的答辯理由。本庭亦同意“合理辯解”涵蓋的範圍較“許可”的範圍廣闊。但當一名代理人以其主事人會“許可”或“默許”或“批准”他這樣做時，他必須證明他有盡量履行法例對他的要求，將其收取利益的行為合法化，否則法庭不會認為他會有“合理辯解”就主事人的業務收取利益。某些情況下，一名代理人未有取得其主事人的許可而就其主事人的業務收取利益時，他或有可能以“合理辯解”作為免責理由。例如一名代理人一直有向主事人就和其主事人業務有關的作為申請許可收取利益，而其主事人一向都給予許可，該名代理人會合理地相信在相同情況時，他會取得其主事人的許可。但在有關的一次，該名代理人在收取到利益後根據《條例》第9(5)(b)條向主事人申請許可，但其主事人卻在沒有通知他有改變的情況下，突然無故拒絕給予許可。該名代理人不能根據《條例》列明的“許可”將其收取利益的行為合法化，但他極可能會成功說服法庭他有“合理辯解”，令其收取利益的行為合法化。

In the present case, whether before or after Chan accepted the $112,000 from Olympian City through IEAP, he did not apply to TVB for permission to accept the said advantage.  We consider that Chan is not entitled to contend that he had a reasonable excuse for accepting the secret profit of $112,000 in question.
在本案，陳透過思潮製作向奧海城收取112,000元前或後，都沒有向無綫電視申請許可，要求獲准收取該利益。本庭認為陳不能強稱他有“合理辯解”收取涉案的112,000元的秘密利益。

We are not prepared to delve into the issues of whether Chan or Tseng acted dishonestly, whether Chan deliberately conceal his acceptance of advantage from Olympian City for his performance in the additional Be My Guest show, and whether his performance and his acceptance of the advantage conflicted with TVB’s interests.  These factors are not elements of the offence which the prosecution must establish.  When Chan performed in the additional Be My Guest show, he put on Olympian City stickers.  This was what he had to do in order to fulfil one of the conditions stipulated by Olympian City and had nothing to do with TVB.  Therefore, the fact that Chan put on Olympian City stickers does not mean that at the material time he was not acting in the capacity of an agent of TVB.  Actually, except for the fact that the venue of the performance was different, the nature of Chan’s performance in the additional Be My Guest show was totally the same as that of his previous unpaid performance in the 150 odd episodes of Be My Guest produced by TVB.  Chan had no reason at all to think that he could accept the $112,000 in question from Olympian City.
對陳或叢是否不誠實行事、是否刻意隱瞞他就演出“附加志雲飯局”向奧海城收取利益；以及他的演出和收取報酬是否與無綫電視有任何利益衝突等等事項，本庭不打算深究。上述因素都並非是控方就有關控罪需要確立的要素。陳演出“附加志雲飯局”時貼上奧海城的貼紙亦只是按奧海城的條件之一行事，與無綫電視無關。因此，陳貼上奧海城的貼紙一事不表示他當時並非是以無綫電視代理人身份行事。事實上除了演出地點不同外，陳演出“附加志雲飯局”和他以往無酬演出過無綫電視製作的150多集「志雲飯局」的性質完全相同。陳根本沒有理由認為他可向奧海城收取涉案的112,000元。

The burden was on Chan and Tseng to prove, on the balance of probabilities, that Chan had a reasonable excuse to accept the remuneration of $112,000 from Olympian City through IEAP.  We hold that judging from the facts and the evidence of the case as a whole, neither Chan nor Tseng succeeded in establishing this defence.
陳和叢有舉證責任，以相對可能性較高的舉證標準去證明陳有“合理辯解”透過思潮製作向奧海城收取涉案的112,000元酬金。本庭認為以整體的案情及證據而言，陳和叢都不能確立“合理辯解”這答辯理由。

As for the questions raised by the Secretary, our answers are as follows:
就司長提出的問題，本庭的答案如下：

Question[1](a)“Yes”
問題[1](a)“是”

[1](b)“Yes”
[1](b)“是”

Question[2](a)“Yes”
問題[2](a)“是”

[2](b)“Yes”
[2](b)“是”

[2](c)“Yes”
[2](c)“是”

[2](d)“Yes”
[2](d)“是”

Question[3](a)“Yes”
問題[3](a)“是”

[3](b)“Yes”
[3](b)“是”

Question[4]“Yes”
問題[4]“是”

In our judgment, on the basis of the evidence in this case, the only reasonable outcome is that the trial judge should find Chan and Tseng guilty of charge 1, namely conspiracy for an agent to accept an advantage.
本庭認為，根據本案的證據，唯一合理的結果是原審法官應裁定陳和叢第一項串謀使代理人接受利益罪罪名成立。

We shall remit the case to the trial judge and order him to find Chan and Tseng guilty of the charge in question in accordance with our directions and to sentence them in respect of the charge.
本庭將案件發還原審法官，並下令他根據本庭的指示裁定陳和叢該項控罪罪名成立及就該控罪作出判刑。

Mr Eric Kwok, SC and Mr Felix Tam, Acting Senior Public Prosecutor, instructed by the Secretary for Justice, for the Appellant.
上訴人：由律政司委派資深大律師郭棟明及署理高級檢控官談立豐代表。

Mr Joseph Tse, SC and Mr Charles J Chan, instructed by Messrs Ivan Tang & Co, for the 1st Respondent.
第一答辯人：由鄧耀榮律師行轉聘資深大律師謝華淵及大律師陳永豪代表。

Ms Maggie Wong, Mr Derek Chan and Mr Samuel Sung, instructed by Messrs Ivan Tang & Co, for the 2nd Respondent.
第二答辯人：由鄧耀榮律師行轉聘大律師黃珮琪、大律師陳政龍及大律師宋紀源代表。