Hon Tang VP (giving the judgment of the Court):
上訴法庭副庭長鄧國楨頒發上訴法庭判案書：

The Applicant herein (Yu Wai Man) was convicted on the following three charges after trial before District Judge Li:
申請人（余偉文）在區域法院法官李瀚良席前經審訊後被裁定下列三項控罪罪名成立：

Charge 1:“Bookmaking”, contrary to section 7(1)(a) of the Gambling Ordinance, Cap. 148 of the Laws of Hong Kong; and
控罪一：違反香港法例第148章《賭博條例》第7(1)(a)條「非法收受賭注」罪；及

Charges 2 & 3:“Dealing with property knowing or having reasonable grounds to believe that it represented the proceeds of an indictable offence”, contrary to section 25(1) and (3) of the Organized and Serious Crimes Ordinance, Cap. 455 of the Laws of Hong Kong.
控罪二和三：違反第455章《有組織及嚴重罪行條例》第25(1)及(3)條「處理已知道或合理相信為代表從可公訴罪行的得益的財產」罪，

Charge 1 alleged that the Applicant “engaged in bookmaking between 8 March 2006 and 30 June 2006 (both dates inclusive) in Hong Kong”.  Charge 2 alleged that “between 1 January 2004 and 22 June 2006 (both dates inclusive) and in Hong Kong, the Applicant dealt with a property, namely, a total sum of HK$1,000,393 in an account with the Hong Kong and Shanghai Banking Corporation Limited (Account 1), knowing or having reasonable grounds to believe that such property in whole or in part directly or indirectly represented the proceeds of an indictable offence”.  Charge 3 alleged that “between 29 January 2004 and 21 June 2006 (both dates inclusive) and in Hong Kong, the Applicant dealt with a property, namely a total sum of HK$809,765 in an account with the Hong Kong and Shanghai Banking Corporation Limited (Account 2), knowing or having reasonable grounds to believe that such property in whole or in part directly or indirectly represented the proceeds of an indictable offence”.
控罪一指申請人「於2006年3月8日至2006年6月30日期間（包括首尾兩日）在香港，從事收受賭注」。控罪二指申請人「於2004年1月1日至2006年6月22日期間（包括首尾兩日）在香港，知道或有合理理由相信某項財產，即在香港上海滙豐銀行有限公司帳戶（帳戶一）內的合計港幣1,000,393元的款項，全部或部分、直接或間接代表從可公訴罪行的得益而仍處理該財產」。控罪三指申請人「於2004年1月29日至2006年6月21日期間（包括首尾兩日）在香港，知道或有合理理由相信某項財產，即在香港上海滙豐銀行有限公司帳戶（帳戶二）內的合計港幣809,765元的款項，全部或部分、直接或間接代表從可公訴罪行的得益而仍處理該財產」。

In respect of Charge 1, the Applicant was sentenced to 15 months’ imprisonment and fined $56,500.  In respect of Charges 2 and 3, he was sentenced to 27 months’ imprisonment for each charge.  The sentences for Charges 2 and 3 were ordered to run concurrently, and 10 months of the sentence for Charge 1 was ordered to run consecutively to the sentences for Charges 2 and 3, making a total term of 37 months.
申請人就控罪一遭判刑15個月及罰款56,500元，就控罪二及控罪三則各被判監27個月。控罪二及控罪三的刑期同期執行，而控罪一的刑期中的10個月與控罪二及控罪三的刑期分期執行。申請人需服的總刑期為37個月監禁。

The Applicant now applies to this Court for leave to appeal against conviction.
申請人不服定罪，現向本庭申請上訴許可，希望能獲准就定罪上訴。

Synopsis of the prosecution case
控方案情摘要

At the time of the incident, the Applicant was a senior police constable and resided with his family at Ngau Chi Wan Disciplined Services Quarters.  On the evening of 1 July 2006, the police arrived at the Applicant’s residence to execute an anti-gambling authorization and conduct a search.
案發時申請人是一名高級警員，與家人居住在牛池灣紀律部隊宿舍。2006年7月1日晚上，警方到申請人的住所執行打擊賭博的授權書，並進行搜查。

As those inside the Applicant’s premises refused to open the door, the police had to break into the premises.  After gaining entry into the premises, police officers saw the Applicant and his wife standing in the living room, where a football match was being broadcast on the television.  Among the exhibits seized from the living room were a notebook of A4 size and two sheets of paper (Exhibit P6).
由於住所內的人拒絕開門，警方需破門入屋。進入申請人的住所後，警員發現申請人及其妻子站在客廳內，客廳內的電視機正播放足球賽事。警員在客廳搜獲的證物包括一本A4大小的筆記簿及兩張紙（證物P6）。

Police officers found two ATM cards from a wallet on the Applicant’s person.  They also found in the living room two passbooks relating to the bank accounts referred to in Charges 2 and 3.  One of the passbooks belonged to the Applicant, and the other to one Yu Wai Keung.  Subsequently, the police seized from a drawer of the Applicant’s writing desk at Kwun Tong Police Station, where he was attached to, a private and confidential letter dated 23 February 2004 from the Hong Kong Bank to Yu Wai Keung, informing him that the ATM card of the account referred to in Charge 3 and the relevant PIN number were ready for collection.
警員從申請人身上的銀包搜獲兩張銀行的提款卡，在客廳則搜獲與本案第二和第三項控罪所述的銀行戶口的存摺，一本屬於申請人而另一本則屬於一名叫余偉強的人士。其後警方在申請人駐守的觀塘警署其寫字枱的抽屜內檢獲滙豐銀行於2004年2月23日寄給余偉強的一封私人密件，內容是通知余偉強領取有關第三項控罪所述帳戶的自動櫃員機咭和該咭的私人密碼。

Between 1 January 2004 and 22 June 2006 (both dates inclusive), the Applicant dealt with a total sum of HK$1,000,393 in Account 1; between 29 January 2004 and 21 June 2006 (both dates inclusive), he dealt with a total sum of HK$809,765 in Account 2.  The said two figures were net of items such as wages.
經剔除包括薪金等的款項後，申請人於2004年1月1日至2006年6月22日期間（包括首尾兩日），曾處理帳戶一共港幣1,000,393元的款項，於2004年1月29日至2006年6月21日期間（包括首尾兩日），曾處理帳戶二共港幣809,765元的款項。

Charge 1
控罪一

In respect of Charge 1, the thrust of the prosecution case was that Exhibit P6 contained “bookmaking records” of the bookmaker.
就控罪一，控方的基本立場是證物P6中有記錄從事收受賭注的人（bookmaker）的「收注記錄」。

For the purpose of proving that P6 contained bookmaking records, the prosecution called as its principal witness Sergeant 46070 Ling Sai Kei (PW4).  His evidence, which he gave as a gambling expert, was not disputed.
為了證明P6是收注記錄，控方傳召的主要證人為控方第四證人警長46070凌世祺。雙方對他以賭博專家身份作出的證供並沒有爭議。

Sergeant Ling’s evidence was that the betting records were kept in an A4 size single line writing pad (Exhibit P6), of which tens of pages contained handwritings on both sides.  There was no dispute that Exhibit P6 was written by the Applicant.  For the sake of convenience, the pages in P6 which contained handwritings were individually marked with the numbers 1 to 47.  The police subsequently took photographs of P6 and those photographs formed Exhibit P90.  The photographs were enlarged (Exhibit P91A) for easy reference at trial.  P6, P90 and P91A had the same subject-matter.
根據凌警長的證供，賭注記錄載於一本A4大小的單行書寫簿，其中有數十頁（包括底和面）都被人書寫過（證物P6）。雙方同意證物P6是由申請人寫的。為方便起見，P6內曾經被書寫過的頁數分別被編為1至47號。警方後來將證物P6拍照編成證物P90，再將相片放大編成證物P91A以方便審訊。證物P6、P90和P91A是同一證物。

According to Sergeant Ling’s expert evidence, 43 pages of P6 were soccer betting records which detailed the kick off time, the classification of the matches, the names of the teams (or referred to in short as “handicap”), the odds and the wagers etc.  The sergeant deduced from the contents and layout of P6 that the bets fell into the following two categories:
根據凌警長的專家證供，P6其中43頁是波纜記錄，而記錄有顯示開賽時間、賽事種類、球隊名稱（或簡稱「盤口」）、賠率及投注金額等等。從P6的內容及模式，他推斷有關賭注分為以下兩種：

(1)Soccer bookmaking (see Exhibit P104A for details). Exhibit P104A contained 9 photographs showing bookmaking records and, on Sergeant Ling’s analysis, a total of 19 bets were involved.  The exhibit P104A showed that the code names of the two punters were H and T.
（第一）收受足球賭注，詳情見證物P104A。證物P104A內有涉及收受賭注記錄的9張相片，經凌警長分析過內容後，發現內裡牽涉共19項賭注。證物P104A顯示投注人代號為H或T兩人。

(2)Soccer bets.
（第二）投注足球的賭注。

Sergeant Ling pointed out that the first type of betting records were made by the author thereof in respect of bets he accepted from the punters as a bookmaker and banker, involving wagers totalling HK$56,500.  The second type of betting records related to the bets placed with other bookmakers by the author of the records on behalf of himself or other punters, involving wagers totalling approximately HK$650,000.  Sergeant Ling pointed out that there was insufficient evidence to show whether the second type of betting records had anything to do with illegal gambling.
凌警長指第一種賭注記錄是原作人記下已經收受的賭注，與投注人對賭，而涉及的賭注合共港幣$56,500。第二種賭注是記錄原作人協助本身或他人將有關的賭注向外作出投注，而涉及的賭注合共約港幣$650,000。凌警長指未有足夠證據確定第二種賭注是否與非法賭博活動有關。

The key issue in the present case was whether the first type of records constituted bookmaking records, as section 7(1)(a) of the Gambling Ordinance provides that:
本案的關鍵在於第一種賭注，是否是一項收受賭注的記錄，原因是《賭博條例》第7(1)(a)條列明：

“(1) Any person who ―
「(1)任何人如─

(a)engages in bookmaking, whether on one occasion or more than one occasion;
(a)一次或多次從事收受賭注；

commits an offence …”
即屬犯罪，…」

District Judge Li, the trial judge, stated in his judgment that:
原審法官李瀚良在其判詞指出：

“3.The defendant neither gave evidence nor called any defence witness.  In respect of Charge 1, defence counsel mainly queries whether the betting records in question involve any bets accepted by the author of the records as a bookmaker.  Defence counsel raises several other possibilities including ‘betting against each other’, ‘joint betting’ and ‘bets placed with other bookmakers’ etc.  In respect of Charges 2 and 3, defence counsel argues that there is no evidence proving that the defendant knew what the ‘indictable offence’ referred to in the charges was.”
「3.被告人沒有作供，也沒有辯方證人。就第一控罪辯方律師主要質疑涉案的賭注記錄簿是否包含收注項目。辯方提出其他幾個可能性包括『對賭』、『合夥投注』和『投注其他外圍』等。就第二和第三項控罪，辯方律師指沒有證據證明被告人知道控罪所指的是甚麼『可公訴控罪』。」

In paragraph 17 of his judgment, the trial judge had this to say:
原審法官在判詞第17段指出：

“c.In respect of the 19 bets referred to by PW4, the defence has raised other possibilities:
「c.就控方第四證人指出的19項收注項目，辯方提出其他可能性。

i.The first possibility is ‘betting against each other’. The defence submitted that if ‘H’ and ‘T’ were the defendant’s friends, their bets in private should not be regarded as bookmaking on the part of the defendant as there was no element of trade or business.  PW4 accepted such a possibility existed but pointed out that if they were merely betting against each other, the odds would not have to be so complicated.  On my analysis in paragraphs 19 to 21 below, the odds in most of these 19 bets were better than those offered by the Hong Kong Jockey Club.  Some of the handicaps were different from those of the Jockey Club, and some even adopted the Asian handicap odds of Macauslot.  I agree with PW4 that things would not have to be so complicated if they were friends ‘betting against each other’.
i.第一種可能是『對賭』，辯方指若被告人與『H』和『T』是朋友，他們私下的賭注，不應是收受外圍賭注因沒有生意或業務的成份。控方第四證人同意有此可能，但他指出若是對賭，不必這般複雜。根據本席以下第19至21段的分析，這19項收注項目的賠率大部份比香港賽馬會提供的好，而部份的盤口更與馬會的不同，有些更採用澳彩亞洲盤口，本席同意控方第四證人所說，若是朋友『對賭』，不必如此複雜。

ii.The second possibility is ‘joint betting’.  The defence submitted that these 19 bets were possibly made jointly by the defendant, ‘H’ and ‘T’.  PW4 tried to disprove that assumption by using photograph 16 of Exhibit P90A as an example.  Two of the entries on that page read: ‘0345, UEFA Champions League, Chelsea, –0.5, 2B’ and ‘Barcelona, 0.5, 10/3B, H’. Chelsea and Barcelona were the two opposite teams in the soccer match on that day.  In the former entry, the defendant bet on Chelsea; in the latter entry, on the defence’s assumption, the defendant and ‘H’ placed a joint bet on Barcelona.  PW4 said it would be irrational for the defendant to bet on the two opposite teams at the same time.  I agree with PW4’s analysis that it would be irrational for the defendant to bet in this way.  The bets were contradictory, the winnings would be reduced even if either team won the match, and in the event of a draw, the defendant would lose even more.
ii.第二種可能是『合夥投注』，辯方指這19項可能是被告人與『H』和『T』合夥投注。控方第四證人以證物P90A第16張相為例反證造假設。該頁其中兩項是『0345　歐冠　車仔　受半　2B』和『巴塞　半10/3B　H』，這兩隊當天對賽，前者被告人投注車路士。若照辯方的假設，後者是被告人與『H』合夥投注巴塞隆拿。被告人同時投注對賽的雙方，控方第四證人認為不合常理。本席同意控方第四證人的分析，被告人這投注方式互相矛盾，不但減低贏錢的數目，若賽和的話，輸的更多，本席認為不合常理。

iii.Another assumption of the defence is that ‘H’ might be the bookmaker.  If this assumption were valid, then according to the two bets cited above, i.e. ‘0345, UEFA Champions League, Chelsea, –0.5, 2B’ and ‘Barcelona, 0.5, 10/3B, H’, the defendant would have placed bets with different bookmakers on both sides of the same match.  I consider this irrational for the same reason.
iii.辯方的另一假設是『H』可能是收注人，若這假設成立，以上提及的兩項投注項目『0345　歐冠　車仔　受半　2B』和『巴塞　半10/3B　H』，便是被告人分別向不同外圍收注人投注對賽的雙方，同樣道理，本席認為不合常理。

iv.The defence has pointed out that the above scenario only applies to one of the 19 bets and hence cannot be relied upon to rule out the possibility that the other bets related to joint betting.  Were this assumption valid, it would mean that ‘H’ sometimes bet against the defendant, sometimes placed bets with the defendant jointly, and sometimes acted as a bookmaker.  This proposition about the shifting roles of ‘H’ is in my view far-fetched and irrational.
iv.辯方指這19項收注項目只有一項出現以上問題，不能用作推翻其餘項目有關合夥等等的其他可能性。若此論據成立，便會出現『H』一時與被告人對賭，一時與被告人合夥投注，又一時是收注的情況，本席認為『H』角色變換的講法甚為牽強，並不合理。

v.Yet another assumption of the defence is that the defendant placed bets on behalf of ‘H’ and ‘T’.  I accept PW4’s argument that it would be irrational for the defendant to place bets on behalf of others in his own name because he would then run the risk of being dunned by the bookmakers for payment and his own betting limit would then be lowered.
v.辯方的另一假設是被告人替『H』和『T』投注，控方第四證人認為被告人用自己的名義替他人投注，自己便要承擔被收注人追數的風險，而且降低自己的投注限額，實不合理，本席接受這論據。

vi.The various possibilities raised by the defence are sheer assumptions, and I find nothing in the evidence before me which supports those possibilities.  It is true that the defence does not bear the burden of proof, but there must be some evidence to support the assumptions it makes.  In the absence of such evidence, and in light of the analysis in sub-paragraphs (i) to (v) above, I do not accept the defence’s assumptions.
vi.以上辯方提出的各種可能性，本席在呈堂證據中沒有發現任何證據支持這些可能性，純是辯方的假設。辯方當然沒有舉證責任，但就這些假設，也須提出一些證據支持這講法，完全沒有任何這方面的證據，加上以上(i)至(v)段的分析，本席不接受辯方的假設。

d.I notice that those 19 betting records contain only the names of the teams but not the dates and times of the matches.  The defence points out that they do not look like bookmaking records as they are very different from the detailed records kept by the Hong Kong Jockey Club.  According to PW4, off-course bookmakers normally accept bets only one day before the match, and so it is sufficient to record the names of the teams without more.  And according to PW5, the Hong Kong Jockey Club starts accepting bets about one week before the matches and simultaneously accept bets relating to matches held on several dates, and it is therefore necessary to specify the date and code number of each match.  I accept the evidence of the two prosecution witnesses.  In my view, as off-course bookmakers accept bets only one day before the matches, and they do not operate on a scale comparable to that of the Hong Kong Jockey Club, their betting records cannot be mentioned in the same breath with ― and need not be as detailed as ― those of the Hong Kong Jockey Club.  Exhibit P6 does contain sufficient information, and there should be no question of any confusion on the part of the bookmaker.”
d.本席留意到19項收注項目沒有註明日期和比賽時間，只有球隊名字。辯方指出這與香港賽馬會的詳細記錄相距甚遠，不似是收注記錄。根據控方第四證人所講，外圍賭波通常在賽前一天才收注，所以球隊名稱已是足夠資料。而根據第五控方護人所講，香港賽馬會同時接受幾日賽事的投注，約在一星期前開始收注，所以投注人須要說明日期和賽事編號。本席接受兩位控方證人的證供，基於收注的時間是賽事前一天，加上沒有香港賽馬會收注的規模，本席認為外圍賭波記錄不能跟香港賽馬會比較，也不需如後者般詳盡，證物P6的資料已經足夠，收注人不應混淆。」

Apart from Sergeant Ling, the prosecution also called another gambling expert (PW7) upon request of the defence.  The trial judge made the following observations on PW7’s evidence:
除凌警長外，控方亦應辯方的邀請，傳召另一名賭博專家，即控方第七證人作供。原審法官就控方第七證人的證供有以下說法：

“18.Another gambling expert in the present case (PW7) reached a preliminary conclusion after examining Exhibit P6 that it related to illegal off-course soccer betting activities and that the author (i.e. the defendant) acted as a ‘punter’.  As to why he only conducted a preliminary analysis, PW7 explained that his superior had asked him to ascertain as soon as possible whether the relevant exhibit related to illegal soccer betting activities, so that his superior could decide whether to transfer the defendant to another post.  PW7 therefore submitted his report in about two days’ time without carrying out a detailed analysis.  He did notice what he suspected to be bookmaking items, but as he was not sure about it, he made no mention of it in his report.  Subsequently, upon request of the defence, he attended court to hear PW4’s evidence, and after consideration, he agreed with PW4’s conclusion that Exhibit P6 showed that the defendant accepted bets as a bookmaker and placed bets with off-course bookmakers at the same time.  This notwithstanding, there is nothing improper with his preliminary conclusion.  The defence called into question PW7’s reliability as a witness for the reason that he had failed to submit further reports to explain his change of views.  I have carefully considered what PW7said.  His report stated clearly that it contained his preliminary analysis and preliminary conclusion.  Moreover, it was unlikely for PW7 to have overlooked the 19 betting records in question which were conspicuous.  I accept his explanation that he made no mention of them in the preliminary report as he was still not sure.  As to the defence’s complaint that he changed his views, I do not think this affected his evidence.  Having heard PW4’s analysis and cross-examination in court, he had sufficient information to enable him to reconsider his views.  I see nothing improper with this.  Furthermore, it was only after hearing what PW4 said and making his own assessment that he arrived at his conclusions.  I accept his evidence.”
「18.本案另一名賭博專家（控方第七證人）審閱證物P6，他的初步結論指證物P6涉非法外圍賭波活動，原作人（即被告人）的角色是‘投注人’。他解釋當時只做初步分析，是應上司要求，盡快決定有關證物是否屬非法賭波，以便決定將被告人調職，所以約兩天內他呈交報告，沒有作詳細分析。雖然當時他已發現懷疑收注項目，但因未能肯定，所以沒有在報告內提及。後來他應辯方要求到法庭旁聽控方第四證人的證供，經考慮後，他同意控方第四證人的結論，證物P6顯示被告人是收注人，同時也投注外圍波。雖然如此，他的初步結論是沒有問題的。辯方質疑控方第七證人改變看法，沒有提供進一步報告交代，是不可靠的證人。本席小心考慮過控方第七證人的講法，他的報告清楚寫明是初步分析和初步結論。其次，涉案的19項收注項目十分明顯，控方第七證人不應錯過，本席相信他的解釋，在未肯定前他索性不在初步報告提及。至於辯方批評他改變看法，本席認為不影響他的證供，他在法庭聽過控方第四證人的分析和盤問後，有充份資料再考慮自己的看法，沒有不妥。何況，他是聽過控方第四證人的講法，自己再作分析才下結論的，本席接受他的證供。」

Mr Wong SC, Counsel for the Applicant on appeal, submits that it was unsafe for the trial judge to accept the evidence of Sergeant Ling and PW7 because the content of P6 was messy and included a number of inexplicable figures.  Mr Wong also casts doubts about the reliability of Sergeant Ling’s evidence.
申請人在上訴時由王正宇資深大律師代表。王資深大律師指出，原審法官接納凌警長和控方第七證人的證據並不穩妥，因為P6除了相當混亂之外，更出現不少未能解釋的數字。王資深大律師亦質疑凌警長證供的可靠性。

In his detailed judgment, the trial judge clearly explained why he accepted the evidence of Sergeant Ling and PW7.  His conclusion on this point is in our view impeccable.  Furthermore, this is a finding of fact which the appellate court should not lightly disturb.
原審法官在其詳細的判詞內已清楚解釋他接納凌警長和控方第七證人的證供的理由。關於這點，本庭認為原審法官的結論是無懈可擊的。況且這是基於事實的裁斷，上訴法庭不該在這方面作出干預。

In addition, in paragraph 17 of his judgment, the trial judge provided the following detailed, lucid and reasonable explanation on the more significant queries and possibilities raised by the defence:
再者，在判詞第17段，對於辯方提出幾項比較重要的質疑和可能性，原審法官都有作出以下詳細清楚和合理的解釋：

“a.The defence submits that Exhibit P6, with its messy content, does not look like records of a bookmaker, who is expected to keep clear records to enable him to settle accounts with punters.  I do notice quite a number of inexplicable figures in the exhibit, but on the whole, the various records of bets placed and bets received are clearly laid out, and the codes of the suspected punters are clearly recorded.  I accept PW4’s evidence that bookmakers habitually settle accounts the day following the relevant match, so that before they record the bets accepted or placed for a match on another day, usually the balance has already been worked out clearly and hence there should be no question of the bookmakers being confused.
「a.辯方指證物P6相當混亂，不似是收注人記錄，後者的記錄必定清楚以便與投注人結數。本席留意到有關證物中出現不少未能解釋的數字，但整體而言，各項投注或收注記錄清晰列出，有關懷疑投注人的代號也十分清楚記錄。本席接受控方第四證人的講法，收注人慣常在賽事翌日便會結數，所以在記錄另一天賽事的收注或投注項目之前，通常已計清結餘，對收注人而言不應有混淆。

b.The defence submits that there are many inexplicable figures in the ‘ledger’ and that, contrary to PW4’s evidence that accounts are settled within one or two days, the ‘ledger’ covers matches spanning several months.  PW4 has pointed out that, depending on the relationship between the bookmaker and the punter, there are many possible ways of settling accounts.  Furthermore, the figures in Exhibit P6 are accompanied by ‘+’ or ‘-’ signs, for instance, photos 31 and 47 of Exhibit P90A clearly indicate settlement of accounts.  I have examined Exhibit P6 carefully and notice that many pages have been torn out of it, and I believe photo 47 depicts one of those pages.  Furthermore, this exhibit also includes a sheet of paper of a different size, with figures written on it in red ink.  These indicate that the A4 size book in Exhibit P6 is not a complete record, and this, I believe, is one of the reasons why PW4 could not trace the figures.  On the above analysis, I accept PW4’s evidence that Exhibit P6 contains the ‘ledger’ of punters ‘H’ and ‘T’.”
b.辯方指『流水賬』有多處數目不能解釋，而『流水賬』包括幾個月的賽事，與控方第四證人指一至兩日結數的講法不符。控方第四證人指結數的方式視乎收注人與投注人的關係，有很多可能性。其次，證物P6簿內的數目有『加』或『減』號，如證物P90A第31和47張相的內容，明顯有結算的情況。本席曾小心查閱證物P6，其中多處有撕掉的痕跡，而第47張相片相信是從簿中撕掉的其中一頁。其次，此證物也包括一張不同大小的紙張，上有一些用紅筆寫的數字。這些均顯示證物P6中的A4簿並非完整記錄，本席相信是控方第四證人未能追溯數字來歷的原因之一。基於以上分析，本席接受控方第四證人所講，證物P6包含投注人『H』和『T』的『流水賬』。」

The trial judge said in paragraph 17(c)(vi) of his judgment that:
就原審法官在第17(c)(vi)提及：

“... It is true that the defence does not bear the burden of proof, but there must be some evidence to support the assumption it makes. …”
「…辯方當然沒有舉證責任，但就這些假設，也須提出一些證據支持這講法…」

In this respect, Mr Wong SC submits that the trial judge had erroneously imposed the burden of proof on the Applicant, in particular because the trial judge mentioned the term “evidential burden” in footnote 75.  On this issue, we agree with what Mr Tam, Counsel for the prosecution, has said:
王資深大律師認為原審法官誤把舉證的責任放在被告人的身上，尤其因為原審法官在註錄（footnote 75）提及“evidential burden”。對於這點本庭同意控方覃大律師所說：

“33.It might strictly speaking not be proper for the trial judge to use the phrase ‘evidential burden’ in expressing what he had in mind, but what he intended to express was clear.  Both of the expert witnesses gave evidence that the 19 records were ‘records of bets accepted’, and there was no evidence to support a reasonable inference that they are not ‘records of bets accepted’ as PW4 and PW7 had suggested.  Anything is ‘possible’ in this world, but it does not mean that every possibility is a ‘reasonable inference’.  The trial judge’s conclusion was that, in the absence of supporting evidence, the possibilities of ‘betting against each other’ and ‘joint bettings’ were not ‘reasonable inferences’.”
「33.可能原審法官用‘evidential burden’一詞來表達他的意念嚴格來說未必正確，但他想表達的意念是明顯的。兩位專家證人的證供均指有關的19個項目是『收注項目』而沒有證供支持一個合理推論它們並非如PW4和PW7所言的『收注項目』。在這世界上什麼也有『可能』，但這並不表示每一個可能性都是一個『合理推論』。原審法官的結論是『對賭』、『合夥投注』等可能性，在缺乏證據支持下，並非是『合理的推論』。」

Mr Wong SC complains that Sergeant Ling based his conclusion in respect of those 19 bets on the form and contents of Exhibit P6, which were both “hearsay evidence”.  However, in Oei Hengky Wiryo v HKSAR (No 2) (2007) 10 HKCFAR 98, the Court of Final Appeal gave a final judgment on this issue, which is that an expert witness can make inferences about the nature and contents of a document on the basis of its form and contents, and a witness who takes such an approach is not relying on “hearsay evidence” because the approach does not involve the making of any assumption concerning the truth or otherwise of the transaction that the document records.
王資深大律師批評控方凌警長對該19項投注的結論是基於P6的格式和內容，而格式和內容均是「傳聞證供」。但這論點在Oei Hengky Wiryo v HKSAR (No 2) [2007] 10 HKCFAR 98，終審法院已有結論。專家證人使用文件的格式和內容來作為基礎，從而推斷文件的性質和內容的做法，並不涉及就該文件所記錄的交易的真偽作出任何假設，所以不是依賴「傳聞證供」。

Furthermore, McHugh NPJ said:
再者，終審法院非常任法官馬曉義有以下說法：

“63.In the present case, Sgt Ling Sai Kei identified the documents seized from Kam’s home and office as the type of records kept by a bookmaker betting on soccer matches.  In his opinion, the documents appeared to record soccer matches, odds, handicaps and bets between bookmakers and punters and to have been prepared by a person who was a ‘teng jai’ or bookmaker’s agent.  Sgt Ling Sai Kei reached his opinion by reference to the form and contents of the documents — by their numbers, letters, codes, columns and arrangement.  As the decision of this Court in Secretary for Justice v. Lui Kin Hong (1999) 2 HKCFAR 510 shows, no breach of the hearsay rule occurs because a judge takes into account the form and contents of a document in determining its nature.  Nor does using the contents of the documents for that purpose make any assumptions concerning the truth or falsity of the transactions that the document purports to record.  Consequently, the learned trial judge committed no breach of the hearsay rule by adopting the opinion of Sgt Ling Sai Kei who had taken into account the form and contents of the documents in determining that they were bookmaking documents.  Nor did Sgt Ling Sai Kei’s opinion or the learned judge’s acceptance of it rely on the truth of their contents in determining the nature of the documents.”
“63.In the present case, Sgt Ling Sai Kei identified the documents seized from Kam’s home and office as the type of records kept by a bookmaker betting on soccer matches.  In his opinion, the documents appeared to record soccer matches, odds, handicaps and bets between bookmakers and punters and to have been prepared by a person who was a ‘teng jai’ or bookmaker’s agent.  Sgt Ling Sai Kei reached his opinion by reference to the form and contents of the documents – by their numbers, letters, codes, columns and arrangement.  As the decision of this Court in Secretary for Justice v. Lui Kin Hong (1999) 2 HKCFAR 510 shows, no breach of the hearsay rule occurs because a judge takes into account the form and contents of a document in determining its nature.  Nor does using the contents of the documents for that purpose make any assumptions concerning the truth or falsity of the transactions that the document purports to record.  Consequently, the learned trial judge committed no breach of the hearsay rule by adopting the opinion of Sgt Ling Sai Kei who had taken into account the form and contents of the documents in determining that they were bookmaking documents.  Nor did Sgt Ling Sai Kei’s opinion or the learned judge’s acceptance of it rely on the truth of their contents in determining the nature of the documents.”

The principal ground of appeal put forward by Mr Wong SC cannot be sustained.
王資深大律師提出的主要上訴理據不成立。

In passing sentence for Charge 1, the trial judge said:
就第一項控罪原審法官判刑時說：

“9.The first charge of bookmaking involves 19 bets and a wager of approximately $56,500.  On the facts, they are illegal activities on a small scale.  … As the present case only involves a small scale operation, I adopt a starting point of 15 months’ imprisonment, and for the first charge, I sentence the defendant to 15 months’ imprisonment and a fine of $56,500.”
「『9.就第一項收受賭注罪，所涉賭注為19項，賭款約$56,500元，案情顯示是小規範的犯罪行為。…本案只屬小規模，本席以15個月為量刑起點，就第一項控罪判被告人入獄15個月，另罰款$56,500。』」

On 29 April 2009, upon the invitation of this Court, Mr Wong SC made further submissions to this Court.  He stressed that the fact that the Applicant was fined exactly $56,500 for Charge 1 illustrated that the trial judge convicted the Applicant by relying on the truth of the contents of Exhibit P6.  Mr Wong SC asserted that the conviction in reliance on the contents of Exhibit P6 went against the principle that the court should not rely on “hearsay evidence”.
2009年4月29日，王資深大律師應本庭的邀請再作陳詞時強調，原審法官就第一項控罪判處申請人罰款$56,500整。從這點顯示，原審法官有依賴證物P6的內容的真實性而判處申請人第一項控罪成立。王資深大律師力陳原審法官依賴證物P6的內容來定罪有違反法庭不可依賴「傳聞證據」的原則。

Mr Tam, Counsel for the Respondent, agrees that the trial judge did rely on the contents of Exhibit P6, but he also points out that the defence case at trial was that Exhibit P6 merely recorded bets placed by the Applicant on behalf of others rather than (as the prosecution suggested) recording bets accepted by the Applicant as a bookmaker.  This explained why Mr Alan Hoo SC, Counsel for the Applicant at trial, did not take issue with the admissibility of Exhibit P6 at any stage of the trial.
代表答辯人的覃民輝大律師同意原審法官有依賴證物P6的內容，但覃大律師同時指出，原審時辯方指控方證物P6只記錄了申請人替別人下賭注而並非控方所指，它記錄了申請人收取別人賭注的事實。這立場正解釋了原審時代表申請人的胡漢清資深大律師為何從沒有在審訊任何階段對證物P6的可接納性（admissibility）提出異議。

The main issue in the present case is whether the court could in the circumstances of the case accept Exhibit P6 as evidence of bookmaking records.
本申請的重點是在於在本案的情形下，法庭能否接納P6為收注記錄之事實的證據。

As Mr Tam has pointed out, in cases such as HKSAR v Or Suen Hong [2001] 2 HKLRD 669 and Oei Hengky Wiryo v HKSAR, the issue under discussion was whether the relevant prosecution exhibits were bookmaking records.  In the aforesaid two cases, the bookmaking records involved were not made by the respective defendants, and the prosecution was unable to prove that the bookmaking records were actually related to the matches that had been held.  Hence, in adducing evidence on that issue, the prosecution could not violate the principle against admitting “hearsay evidence”.  In the aforesaid cases, the courts also took the view that it was not a violation of that principle for the expert witnesses to conclude, on the basis of the form and contents of the relevant documents, that those documents were bookmaking records.
正如覃大律師指出，HKSAR v Or Suen Hong [2001] 2 HKLRD 669和Oei Hengky Wiryo v HKSAR 等案所討論的議題是控方證物究竟是否是賭博記錄。在該兩宗案例，涉案的賭博記錄都不是由案中被告人書寫的，控方亦不能證明那些賭博記錄確與曾經舉行過的賽事有關，所以控方使用那些證據不能違反法庭不可接納「傳聞證據」的原則。在該些案件，法庭同時認為專家證人根據文件的格式和內容而得出結論，即該文件是賭博記錄的做法，亦不違反這原則。

The present case differs from the aforesaid two cases in that the prosecution alleged that Exhibit P6 were the bookmaker’s bookmaking records, and those records were made by the Applicant.  The defence case at trial was that Exhibit P6 merely recorded bets placed by the Applicant on behalf of others, whereas the prosecution asserted that it recorded bets accepted by the Applicant as a bookmaker.  Paragraph 11-7 of Archbold Hong Kong 2009 discusses “hearsay evidence” and the circumstances in which evidence constitutes “hearsay evidence”, making reference to the case of R v Kearley [1992] 2 AC 228.  The defendant in that case was charged with possession of drugs.  After the defendant was arrested at home, police officers stayed at his home for several hours, during which time 15 incoming calls were received and 9 people visited the premises.  Some of the callers and visitors intended to buy drugs from the defendant.  The issue was whether what the callers or visitors said could be admitted as evidence proving the defendant had possessed drugs for the purpose of trafficking.  Of the five judges sitting in the House of Lords, three concluded that the above evidence was hearsay and therefore inadmissible, but the other two judges considered the evidence admissible.
本案與上述兩案例的分別在於控方指P6是收受賭注人（bookmaker）的收注記錄，而收注記錄是由申請人所書寫的。原審時辯方辯稱控方證物P6只記錄了申請人替別人下注的事項，而控方卻指它記錄了申請人收取別人賭注的事項。Archbold Hong Kong 2009第11-7段載有「傳聞證供」及在哪種情況下證供屬「傳聞證供」的討論，當中提到R v Kearley [1992] 2 AC 228案。該案被告人被控藏毒，當被告人在家被警方拘捕後，警方在其家逗留數小時，期間有15人致電，亦有9名訪客，部分來電者和訪客都是想向被告人購買毒品。問題是這些來電者和訪客的說法能否被接納為被告人藏毒作販賣用途的證據。英國上議院5位法官中，有3位認為這屬於傳聞證供，不能接納，但另外2位大法官卻認為可以接納。

However, Archbold Hong Kong 2009 says:
但Archbold Hong Kong 2009提出：

“If the defendant, while present when the police answer the incoming phone call but not close enough to hear the caller, shouts instructions to hang up because ‘it’s the police’, the ratio in Kearley still applies to prohibit the admissibility of what was said by the caller: R v O’Connell [2003] EWCA Crim 502, CA.  However the observed response of the defendant to the fact of the call is admissible and ‘in themselves [on the facts of this case] provided powerful evidence of his involvement in the supply of drugs’ (at para 8).”
“If the defendant, while present when the police answer the incoming phone call but not close enough to hear the caller, shouts instructions to hang up because ‘it’s the police’, the ratio in Kearley still applies to prohibit the admissibility of what was said by the caller: R v O’Connell [2003] EWCA Crim 502, CA. However the observed response of the defendant to the fact of the call is admissible and ‘in themselves [on the facts of this case] provided powerful evidence of his involvement in the supply of drugs’ (at para 8).”

In R v O’Connell [2003] EWCA Crim 502, the English Court of Appeal also said:
英國上訴法庭在R v O'Connell [2003] EWCA Crim 502案亦指出：

“10.In Kearley what the caller had to say was purely hearsay.  That would not be so if, of course, it is directly communicated to the hearer, the defendant or appellant as the case may be, and he responds to it.”
“10.In Kearley what the caller had to say was purely hearsay. That would not be so if, of course, it is directly communicated to the hearer, the defendant or appellant as the case may be, and he responds to it.”

In his judgment, the trial judge did not clearly explain the basis on which he admitted Exhibit P6 as evidence.  However, as mentioned above, there was no dispute as to the admissibility of Exhibit P6 at trial.  Mr Tam has pointed out that the contents and records of P6 were written by the Applicant himself and not by any other person, and the nature of the exhibit was no different from a video recording showing the Applicant receiving bets on soccer matches over the phone.  And as Sergeant Ling said in the course of giving evidence (transcript of recording T24T):
原審法官在其判詞沒有清楚交代他是以甚麼基礎來接納P6為證據的。但正如上文所述，原審時就P6的可接納性（“admissibility”），雙方並無爭議。覃大律師指出，P6的內容和記錄，是申請人自己而非由別人所書寫的，它的本質與由攝錄機拍攝申請人在電話收受波纜的情況並無分別。又如凌警長在作供時說（錄音謄本T24T）：

“... to my understanding, ‘H’ minus $1,700 denotes the win or loss of this punter ‘H’ after the soccer match on which he had placed bet took place.  As to why it is minus $1,700, I have tried to do my own calculations but have no idea how the figure came about.”
「…我理解為『H』減$1,700呢，呢個係一個經過賭波之後，『H』呢個投注人佢嘅勝負嘅結餘嚟嘅，至於點解嚟到呢度係減$1,700呢，我係亦都嘗試計過，唔知點計得出嚟。」

P6 contained handwritten records by the Applicant of soccer bets that he accepted.  The exhibit could therefore be admitted as evidence and was not “hearsay evidence” that the court was debarred from relying upon.
P6是由申請人親手書寫以記錄他收受足球賽事的賭注，所以是可以被接納為證供而不是法庭不可依賴的「傳聞證供」。

Needless to say, it was only upon the analysis of the expert witnesses that P6 could be held to contain records of bets accepted by the Applicant.  In paragraph 19 of his judgment, the trial judge gave a detailed analysis of the factual matrix which, the judge stressed, lent support to what Sergeant Ling and PW7 said.  The judge arrived at the following conclusion:
當然，P6必須經專家證人分析後才能被裁定為申請人收受賭注的記錄。原審法官在判詞第19段有詳細分析種種現象及強調該些現象支持凌警長和控方第七證人的說法。原審法官作出以下的結論：

“22.On the above analysis, I am satisfied that the 19 items referred to by PW4 and PW7 are bookmaking records.”
「22.基於以上的分析，本席確信控方第四和第七證人指出的19項目是收注項目。」

After consideration, we take the view that P6 was in effect as if the Applicant had written the words “received from Mr X a wager of $1,000 on the soccer match”.  Similarly, when the police broke into the premises, if the Applicant said of his own accord that:
經分析後，本庭認為P6的效果有如申請人親筆寫下「收某君賭波賭注$1,000」相同。如果警方破門入屋時，申請人自願說：

“I have only accepted a few bets, please give me a chance.”
「我只是收少少賭注，請給我一次機會」

then such confession could also be admissible as evidence of what had actually happened.
申請人的上述招認同樣是可以被接納為事實的證據。

Charges 2 and 3
控罪二及三

With regard to Charges 2 and 3, the trial judge pointed out that the two main elements of the two charges were:
至於控罪二及三，原審法官指出這兩項控罪有以下兩項要素：

dealing with money in the bank,
一）處理銀行款項；

having known or believed on reasonable grounds that the property represented the proceeds of an indictable offence.
二）已知道或合理相信代表可公訴罪行的得益的財產。

As the trial judge pointed out, the case of Oei Hengky Wiryo has made it clear that it is not necessary for the prosecution to specify the indictable offence referred to in the charge.  Mr Wong SC has not taken issue with the court’s finding that the Applicant is the person who dealt with the money in the bank.
正如原審法官指出，Oei Hengky Wiryo 已說明控方不需指明控罪所指的是甚麼可公訴罪行。至於法庭判處申請人是處理其銀行款項的人，王資深大律師並無異議。

The trial judge also stated clearly as follows:
原審法官亦清楚指出：

“33.... the decided cases have established that, in determining whether an inference can be drawn that the defendant ‘had reasonable grounds to believe’, the court should consider two matters: (a) whether there were objective factors which would lead a reasonable man to believe that the money in question represented, in whole or in part, the proceeds of an ‘indictable offence’; (b) whether the defendant was aware of these objective factors.  If both questions are answered in the affirmative, the inference can be drawn, provided that it is the only reasonable inference.
「33.…根據案例，在決定是否能推斷『有合理理由相信』這問題時，應作兩方面考慮：甲」是否存在客觀因素令一個合常理的人相信，涉案款項全部或部份是源自『可公訴罪行』的得益；乙）被告人是否知道這些客觀因素。若兩者的答案都是肯定，推斷便能成立。不過，這推斷應該是唯一合理的推斷。

Objective factors
客觀因素

34.As set out in paragraph 13 above, the information provided by the bank in its affirmation reveals that a total of 114 cash deposits and 65 transfers have been made to the two accounts in question.  These deposits and transfers ranged from $500 to $30,000 and involved a total sum of over $1.3 million.  There have also been four cheque/bank draft deposits involving approximately $400,000.  The lack of any evidence showing the sources of these deposits would have led a reasonable man to believe that these sums stemmed from an ‘indictable offence’.
34.本席已在上文第13段列出，銀行誓章的資料顯示，共有114項現金存款和65項轉賬入涉案兩戶口，共涉款130餘萬。這些款項由$500至3萬不等，還有4項支票／本票存款約40萬，沒有任何證據顯示存款的來源，這情況必會令一個合常理的人相信這些款項源自『可公訴罪行』。

Whether the defendant was aware of these objective factors
被告人知否這些客觀因素

35.The defendant, who kept the passbooks and ATM cards of the two accounts in question, must have been aware of the transactions in the accounts.  Furthermore, as analyzed in paragraph 32 above, the defendant frequently made deposits to and transfers with the two accounts and therefore must have been aware of the transactions involving the sums in question in the two accounts.
35.兩涉案戶口的存摺和提款卡由被告人保管，他一定知道戶口的賬目。其次，本席已在上文第32段分析過，被告人是頻密使用兩戶口存款和轉賬的人，他一定知道涉案款項在兩戶口的情況。

36.According to another set of agreed facts, the defendant obtained cash advance of over $300,000 with his credit card between 16 December 2003 and 8 June 2006.  However, there is no evidence showing any direct link between this sum of money and the two accounts in question, and in my view the cash advance cannot account for the transactions in the accounts in question.  Even if I accepted all he said, the money only represents about one-sixth of the amount involved in the two charges, and there is no evidence on the sources of the rest of the money.
36.根據另一份同意事實，被告人自2003年12月16日至2006年6月8日共有信用卡透支30餘萬元。沒有任何證據顯示這些款項與涉案戶口有直接關係，本席認為並不能作為解釋涉案戶口的款項。就算全盤接納被告人的講法，這數額只佔涉兩控罪款項約六份之一，就餘下的數目，沒有任何證據顯示其來源。

37.By reason of the analysis set out in paragraphs 29 to 36, I am satisfied that the defendant had reasonable grounds to believe that the money in the two accounts directly or indirectly represented the proceeds of an indictable offence, and that he dealt with the money.  I convict the defendant on Charges 2 and 3.”
37.基於第29至36段的分析，本席確信被告人有合理理由相信兩戶口內款項直接或間接代表可公訴罪行，而他處理這些款項。本席裁定被告人第二和第三項控罪罪名成立。」

Mr Wong SC submits that the trial judge erred in paragraph 34 of his judgment by mentioning the sources of the deposits.  In his submission made in both English and Chinese, Mr Wong SC said that “the source of the property”:
就判案書第34段，王資深大律師指出原審法官犯錯，原因是他提及存款的來源。王資深大律師在其中英並用的陳詞指「財產來源」：

“... is only relevant to the knowing limb.”
“… is only relevant to the knowing limb”.

With respect, we are of the view that Mr Wong SC has misunderstood the judgment in Oei Hengky Wiryo.  The Court of Final Appeal said that in respect of the element of “having reasonable grounds to believe that the property represents the proceeds of an indictable offence”, the prosecution does not have to prove that the property actually represents proceeds of an indictable offence.  This, however, does not mean that the source of the property is irrelevant to the question of whether there are “reasonable grounds to believe that the property represents proceeds of an indictable offence”.  What the trial judge said in paragraphs 34 and 36 of his judgment is that the objective factor of the source of the property being unknown would lead a reasonable man to believe that the money in question came in whole or in part from “an indictable offence”.  But as Mr Tam has pointed out, the trial judge never said in his judgment that the lack of any evidence showing the sources of the money would certainly lead a reasonable man to believe that the money in question represented the proceeds of an indictable offence.
本庭認為王資深大律師誤解了Oei Hengky Wiryo案的判決，終審庭指出關於有合理理由相信為代表從可公訴罪行的得益的財產時，控方不需要證明財產是實際從可公訴罪行得到的得益，但這亦不是指財產來源對有否「合理理由相信代表從可公訴罪行的得益」沒有任何關係。在判案書第34段及第36段，原審法官所指出的是財產來歷不明，來歷不明的客觀因素會令一個合常理的人相信，涉案款項全部或部分源自「可公訴罪行」。但是正如覃大律師指出，原審法官在其判案書從未指出因為沒有任何證據顯示款項的來源，便必會令一名合理的人相信有關款項代表可公訴罪行得益的財產。

Paragraph 4.4.1(d) and (e) of the skeleton submission of Mr Wong SC reads as follows:
王資深大律師的陳詞大綱4.4.1(d)和(e)段指出：

“(d)However, whether or not the accused ‘had’ such grounds is not dependant upon what he had believed at the time.  This was so held in HKSAR v MA Zhujiang & Anr [2007] 4 HKLRD 285 {5} where this Court said: [p.13, para 63]
“(d)However, whether or not the accused ‘had’ such grounds is not dependant upon what he had believed at the time. This was so held in HKSAR v MA Zhujiang & Anr [2007] 4 HKLRD 285 {5} where this Court said: [p.13, para 63]

‘… we are satisfied the correct construction of the terms of section 25(1) of the Ordinance [OSCO] is as stated in Shing Siu Ming in respect of section 25(1) of DTROP, and there is no reason to infer into the phrase ‘having reasonable grounds to believe’ the additional element of actual belief …’
‘... we are satisfied the correct construction of the terms of section 25(1) of the Ordinance [OSCO] is as stated in Shing Siu Ming in respect of section 25(1) of DTROP, and there is no reason to infer into the phrase ‘having reasonable grounds to believe’ the additional element of actual belief ...’.

(e)Since the issue must be determined irrespective of an accused’s ‘actual belief’, it follows that any explanation offered by an accused of what he believed at the time is irrelevant.  And this is so even when a court accepts such explanation to be reasonably true.
(e)Since the issue must be determined irrespective of an accused's ‘actual belief’, it follows that any explanation offered by an accused of what he believed at the time is irrelevant. And this is so even when a court accepts such explanation to be reasonably true.

(f)Accordingly, the failure of an accused to give any reasonable explanation (to the police or the court) about what he had believed in respect of the ‘origin’ of the property or the circumstances regarding his dealing with the property must be irrelevant.
(f)Accordingly, the failure of an accused to give any reasonable explanation (to the police or the court) about what he had believed in respect of the ‘origin’ of the property or the circumstances regarding his dealing with the property must be irrelevant.

(g)The direct consequence of the above must be that a court, with respect, is not permitted to rely upon such failure in anyway to hold that ‘grounds’ existed.  Indeed, ‘origin’ only concerns the ‘knowing limb’ and not the ‘reasonable grounds limb’ [vide: HKSAR v WONG Ping-sui & Anr (2001) 4 HKCFAR 29 where the property was ICAC money.]”
(g)The direct consequence of the above must be that a court, with respect, is not permitted to rely upon such failure in anyway to hold that ‘grounds’ existed. Indeed, ‘origin’ only concerns the ‘knowing limb’ and not the ‘reasonable grounds limb’ [vide: HKSAR v WONG Ping-sui & Anr (2001) 4 HKCFAR 29 where the property was ICAC money.]”

With respect, the above submission shows that Mr Wong SC has misunderstood the judgment in MA Zhujiang.  What the Court of Appeal held in that case is that the phrase “having reasonable grounds to believe” in section 25 means the defendant was aware of the relevant reasons, but the prosecution does not have to prove that the defendant actually believed that the money originated from an indictable offence.  Mr Wong SC has taken the Court of Appeal’s judgment to mean that the court can convict the defendant no matter whether he knew what actually happened and that, for this reason, any explanation that the defendant may care to provide will not serve any purpose because it will not constitute a defence even if it may be true.  Such an interpretation indicates that Mr Wong SC has misunderstood the Court of Appeal’s judgment.  The judgment in MA Zhujiang does not say that any explanation offered by the defendant in respect of the money will never constitute a defence.  The Court of Appeal merely pointed out that the prosecution does not have to prove that the defendant actually believed that the property originated from an “indictable offence”.
這亦顯出王資深大律師對MA Zhujiang案的判決有誤解。上訴庭在該案指出第25條下的「有合理理由相信」的意思是被告人知悉該等理由，但控方毋須證明被告人確實相信款項來自可公訴罪行，王資深大律師將上訴庭的判決引申為無論被告人知否實情，他亦可以被判罪成，所以被告人任何解釋也是沒有用，因為就算他的解釋可能是真的也不構成答辯理由。王資深大律師的立場顯示他對上訴庭判決的誤解。MA Zhujiang一案並非指即使被告人對款項有解釋也不構成答辯理由，上訴庭只是指出控方不需證明被告人確實相信財產源自「可公訴罪行」。

On the facts of the present case, Mr Wong SC has failed to put forward any argument to convince us that the trial judge’s verdict on Charges 2 and 3 was unsafe and unsatisfactory in any respect.
根據本案的案情，王資深大律師沒有提出任何論點令本庭認為原審法官就第二和第三控罪所作的判決有任何不穩妥之處。

We dismiss the Applicant’s application for leave to appeal against conviction on all the three charges.
本庭駁回申請人針對第一、二及三控罪的定罪上訴許可申請。

Mr Simon Tam, Senior Public Prosecutor of the Department of Justice, for the Respondent.
答辯人：由律政司高級檢控官覃民輝代表。

Mr Wong Ching Y, SC and Ms Sylvia Tung, instructed by May Cheng & Co, for the Applicant.
申請人：由鄭氏律師行轉聘王正宇資深大律師及童秀儀大律師代表。