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

The charges
控罪

The Applicant was charged with 38 counts of “theft”, contrary to section 9 of the Theft Ordinance (Cap. 210 of the Laws of Hong Kong), and one count of “furnishing false information”, contrary to section 19(1)(b) of the Theft Ordinance.
申請人被控三十八項「盜竊罪」，違反《盜竊罪條例》（香港法例第 210 章）第 9 條及一項「提供虛假資料罪」，違反《盜竊罪條例》第 19(1)(b) 條。

The other defendant to the case (D2) was charged with 4 counts of “dealing with property known or believed to represent proceeds of an indictable offence”, contrary to section 25(1) and (3) of the Organized and Serious Crimes Ordinance (Cap. 455 of the Laws of Hong Kong).
同案的第二名被告人被控四項「處理已知道或相信為代表從可公訴罪名的得益的財產罪」，違反《有組織及嚴重罪行條例》（香港法例第 455 章）第 25(1) 及 (3)條。

After trial before District Judge Stanley Chan, the Applicant and D2 were convicted and sentenced to imprisonment for 5 years and 3 months and 12 months respectively. They both applied for leave to appeal against conviction. D2 filed a “notice of abandonment” on the day before the hearing of the present application, and D2’s application was dismissed accordingly. We now deal with the Applicant’s application.
案件經區域法院陳廣池法官審理後，申請人和第二被告人均被判罪名成立及分別被判入獄五年零三個月和十二個月。兩人對定罪提出上訴許可申請。第二被告人於本申請聆訊前一天提交「放棄通知書」，法庭根據該份文件撤銷第二被告人的申請。本庭現處理申請人的申請。

Facts of the case
案情

From March 2003 to late 2004 or early 2005, the Applicant was employed as an accounting clerk by one Silverart (Hong Kong) Limited (“Silverart HK”). Silverart HK was established by Wong Tuen Hung (王端雄) (PW1) who had also formed a company named Silverart (Quan Zhou) Handicraft Company (“Silverart QZ”) in Mainland China. Silverart QZ was engaged in manufacturing handicraft products whereas Silverart HK was responsible for selling those products. Whenever Silverart HK received payment for the goods, it would retain approximately 20% thereof for itself and then remit the remaining amount to Silverart QZ to enable that company to pay its workers’ wages and purchase materials.
申請人在  2003 年 3 月至 2004 年底或 2005 年初於一間名為銀藝（香港）有限公司（‘香港銀藝’）的公司任職會計文員。香港銀藝是由第一控方証人王端雄(‘PW1’) 開設的，他亦在內地開設另一間名為銀藝（泉州）工藝公司（‘泉州銀藝’）的公司。泉州銀藝是負責生產手工藝品，而香港銀藝負責銷售有關產品。香港銀藝在收到貨款後會先扣除約百分之二十的費用，然後將餘款滙給泉州銀藝作為支付工資及購買財料之用。

The 38 counts of “theft” alleged that between 27 March 2003 and 6 December 2004, without permission from her employer, the Applicant made out company cheques and withdrew funds from the company’s bank accounts, thereby appropriating for her personal use large sums of money that belonged to the company.
三十八項的「盜竊罪」指申請人在 2003 年 3 月 27 日至 2004 年 12 月 6 日期間，在未得僱主批准下開出公司支票及從公司的銀行戶口提款，挪用大筆公司款項供其個人使用。

The 39th count alleged that the Applicant provided false accounting documents to Silverart’s accountant with intent to conceal her misconduct.
第 39 項控罪指申請人為了遮掩其不當行為而向銀藝的會計師提供虛假會計文件。

After the Applicant took up employment with PW1, she suggested to PW1 that the company should find ways to broaden the source of profit and economize on expenditure, and also offered to help the company reduce expenses. For this reason, she gained the trust of PW1. In October 2003, PW1 set up two other companies, namely Hong Kong Wing Kam (香港榮鑫) and Shenzhen Wing Kam (深圳榮鑫) respectively. PW1’s wife (i.e. PW2) held 99% of the shares of Wing Kam, and the remaining 1% was gifted to the Applicant as a token of appreciation of her contribution to the company.
申請人獲 PW1 聘用後建議 PW1 公司要開源節流及替公司節省開支，她因此獲  PW1 信任。 PW1 於 2003 年 10 月開設另外兩間公司：香港榮鑫及深圳榮鑫。榮鑫的百分九十九股權是屬於 PW1 的妻子（即PW2），餘下的百分之一股權是 PW1 為答謝申請人對公司的供獻而贈送給她的。

Silverart had three major bank accounts. As PW1 had to go to the Mainland frequently for business, he would from time to time sign four or five crossed cheques which were then kept by the accounts department. Whenever the accounts department issued a cheque, it would retain a photocopy of the cheque, the payment request form and the cheque stub, and would also make a record of the purpose of issuing the cheque. Furthermore, Silverart would carry out transactions via internet accounts held by the company with two of the banks. For each transaction, the accounting staff would input data on the webpage of the bank and PW1 would then key in the password. When PW1 was out of Hong Kong, he would tell a staff member of the company (e.g. the secretary) the password over the phone, and the staff member would then take steps to complete the banking transaction on the internet.
銀藝有三個主要的銀行戶口。PW1 因經常要到內地工作，所以簽署了四至五張劃線支票，交給會計部保管，每當會計部發出支票後會保留有關支票的影印本、付款申請表及支票存根，亦會在有關文件上記錄開出支票的用途。另外，銀藝亦會使用其中兩間銀行的網上戶口來進行交易，會計人員先在銀行網頁上輸入資料，然後由 PW1 輸入密碼，每當 PW1 不在香港時，他會打電話給如秘書的公司職員，將密碼告訴他們，讓他們進行銀行網上交易程序。

In December 2003, the Applicant told PW1 that the company was short of funds. She offered to help the company with her own money, saying that her ex-husband was very rich. She neither imposed any condition for helping the company nor asked PW1 to pay interest on the sums that she might disburse on behalf of the company.
申請人於 2003 年 12 月對 PW1 說公司的資金緊絀，她並主動提議由她斥資協助公司，她說她的前夫很富有，她沒有提出協助公司的條件，也沒有說過要收取她代公司墊支款項的利息。

In early 2004, the Applicant was admitted into hospital and suggested to PW1 that he did not have to pay her salary for the period between March and June 2004. From July 2004 onwards, the Applicant worked only a day or two per week and an hour or two per day. In November 2004, the Applicant told PW1 that the company did not have sufficient funds to pay the factory and suppliers. PW1 became suspicious of this apparent shortage of funds because Silverart should enjoy a business turnover of as much as USD 2 to 3 million per year. He requested the Applicant to check the books with the accounting staff of Silverart QZ. As a result of this exercise, PW1 became aware that Silverart HK was indebted to the Mainland factory for at least HK$ 2 million.
2004 年初申請人需要入院留醫，她提議 PW1 無須支付由 2004 年 3 月至 6 月期間的薪金給她。從 2004 年 7 月開始，申請人每星期只上班一至兩天，而每天的工作時間亦只是一至兩小時。2004 年 11 月申請人告訴 PW1 公司沒有足夠的款項去付款給工廠及供應商。PW1 考慮到銀藝每年的生意額應高達二、三百萬美元，他因此對公司資金短缺一事感到懷疑。他要求申請人與泉州銀藝的會計職員核對賬目。賬目經核對後，PW1 獲悉香港銀藝欠內地的工廠最少二百多萬港元。

From December 2004 to early 2005, the Applicant seldom went to work. During that period, debt collectors sought repayment from Silverart HK. PW1 tried to find out why the funds of the company became so tight, and in the course of his investigations he discovered that large sums of money had gone into the bank accounts of the Applicant and D2. PW1 made a report to the police on 31 January 2005. Subsequently, from the information provided by the banks and the documents supplied by the accountant, PW1 realized that the companies suffered losses of approximately HK$9,350,000 (Silverart suffered losses of approximately HK$8,355,000 and Wing Kam approximately HK$995,000) in respect of a number of cheque payments and internet transactions handled by the Applicant. The amounts involved in the charges laid against the Applicant and D2 were HK$3,700,000 and HK$420,000 respectively.
申請人自 2004 年 12 月至 2005 年初開始甚少上班。在這段期間香港銀藝被人追收欠款，PW1 在調查公司的資金為何那麼緊絀時發現有一大筆公司資金分別流入申請人和第二被告人的銀行戶口內。PW1 於 2005 年 1月31 日報警。之後，PW1根據銀行的資料及會計師提供的文件發現多項經申請人處理的支票付款及網上交易令公司損失約 HK$9,350,000（銀藝損失約 HK$8,355,000；榮鑫損失約 HK$995,000）。申請人和第二被告人於本案被控的控罪所涉及款項分別是約HK$3,700,000和 HK$420,000.

The Applicant’s case
申請人的案情

The Applicant and D2 elected not to give evidence in court.
申請人及第二被告人選擇不出庭作供。

DW1’s testimony
DW1 的証供

The Applicant called Zhuang Xiao Hui (莊曉輝) (DW1) to give evidence. DW1 used to work in Silverart QZ and Shenzhen Wing Kam and came to know the Applicant in 2003. PW1 had told DW1 that the Applicant was in charge of the finances of the company and had provided funds to help him (PW1). DW1 said that he and the staff of Shenzhen Wing Kam regarded the Applicant as the boss. DW1 said that the Applicant had provided funds to help Wing Kam and paid the rentals, electricity fees and water charges when Wing Kam was established. DW1 also said that the Applicant had lent money to PW1 and that PW1 had requested him to persuade the Applicant to lend him money.
申請人傳召莊曉輝 (DW1) 作証。DW1 曾分別任職於泉州銀藝及深圳榮鑫。他於 2003 年認識申請人。PW1 曾經告訴 DW1 申請人是負責管理公司的財務及曾斥資協助他。DW1 說他和深圳榮鑫的員工都認為申請人是老闆。DW1 說申請人曾斥資協助榮鑫，榮鑫成立時的租金、水電費等支出都是由申請人繳付的。DW1 指申請人曾借貸給 PW1 及 PW1 曾要求他勸申請人借貸給他。

The contents of the Applicant’s cautioned statements
申請人的警誡供詞內容

The police took statements from the Applicant on two occasions. In brief, the Applicant made the following statements under caution:
警方就案件分別兩次向申請人錄取口供，申請人作出的警誡供詞簡述如下：

Since November 2003, the Applicant had lent money to PW1 on many occasions, and following each loan PW1 had made repayment. The largest loan amount was approximately $3,000,000.
自2003 年 11 月開始，申請人多次借貸給 PW1，PW1 每次借貸後都有作出還款，當中最高的貸款額約 $3,000,000；

The Applicant granted loans to PW1 in the following ways:
以下是申請人借貸給 PW1 的方式:

She made repayments to creditors on behalf of PW1,
她代 PW1 還款給債主，

She made payments to suppliers of goods and materials on behalf of PW1,
她代 PW1 支付貨款給物料供應商，

She made deposits into the bank accounts of Silverart,
她存款入銀藝的銀行戶口內，

She provided Silverart QZ with funds to enable it to operate,
她提供資金給泉州銀藝，使其業務得以運作，

Upon PW1’s requests, she lent money to others on his behalf.
她應 PW1 的要求代 PW1 貸款給其他人士。

The Applicant said that the reason for lending money to PW1 was that she had provided two to three million dollars to help Wing Kam, and that the factory of Silverart QZ was responsible for manufacturing Wing Kam’s products. Furthermore, PW1 agreed to Silverart and Wing Kam doing business together, and the Applicant and PW1 were business partners. As they were both the proprietors of Silverart, she kept lending money to PW1 and Silverart in order to support the company’s business.
申請人指她借貸給 PW1 的原因是她曾斥資二至三百萬元協助榮鑫，而榮鑫的產品是由泉州銀藝的工廠負責生產的，以及 PW1 同意銀藝與榮鑫合作做生意，她和 PW1 是生意上拍檔。由於兩人是銀藝的老闆，所以她不斷借貸給 PW1 及銀藝以支持公司的業務。

The Applicant’s loans to PW1 and Silverart were recorded in a computer. However, the computer broke down in 2004 and those records were therefore lost.
申請人向PW1 及銀藝作出的貸款是有電腦記錄的，但該部電腦在 2004 年壞掉，亦因此失去有關的貸款記錄。

As to the fact that the Applicant’s ex-husband (i.e. Lam Wai Keung (林偉強)) was named the payee on cheques made out by PW1 in repayment of the loans, the Applicant explained that her ex-husband’s name was put down as the payee because she wanted to press PW1 for repayment ― she hoped that PW1 would think that it was her ex-husband who pressed him for repayment and hence would make repayments promptly.
申請人就 PW1 在還款給她的多張支票抬頭人寫上她前夫的名字（即林偉強）一事解釋說她以她前夫名字作為支票抬頭人是為了催促 PW1 還款，她希望 PW1 以為是她前夫催促他還款就會早日還款給她。

The Applicant said that Exhibit P143 (a list showing the breakdown of loans from Idy) was an accounting form used in the past, and that this kind of form was no longer used because it did not allow detailed and clear accounting records to be made.
申請人說証物 P143 （向 Idy 借款明細表）是早期採用的賬目記錄表，但由於這種款式的記錄表不能詳細及清晰地記錄賬目，所以現時已沒有再使用這種款式的賬目表了。

D2’s record of interview by the police
第二被告人的警方會面記錄

The cautioned statements made by D2 at the interview with the police can be summarized as follows:
第二被告人在警方會面時作出的警誡供詞簡述如下：

The Applicant had obtained a loan of $350,000 from D2 in order to assist PW1 and the operation of his company.
申請人曾向他借貸 $350,000 用來協助 PW1 及其公司作為營運；

The Applicant had repaid credit card debts for PW1 and lent money to PW1 so that he could pay the suppliers. PW1 and PW2 had repeatedly said that they were grateful to the Applicant for lending money to them in order to help them.
申請人為 PW1 清還信用卡欠款及借貸給 PW1 支付款項給供應商。PW1 及 PW2 曾多次說他們感激申請人為協助他們而向他們作出借貸。

D2 and his friends had lent $1,100,000 to the Applicant and PW1. PW1 and PW2 had requested the Applicant to ask her ex-husband to lend money to PW1.
第二被告人聯同他的朋友曾經借了 $1,100,000 給申請人及PW1。PW1 及 PW2 要求申請人向她的前夫提出借貸給PW1 的請求。

When D2 was asked whether there was any record showing deposits made by PW1’s company into D2’s bank accounts, he replied that the money represented repayment from the Applicant and PW1 to him. The Applicant had asked him to deliver a sum of money to Shenzhen for the purpose of paying the expenses of Shenzhen Wing Kam.
當第二被告人被問到他的銀行戶口有沒有出現由 PW1 公司存入的款項記錄時，他的答覆是這筆款項是申請人及 PW1給他的還款。申請人叫他將一筆錢送到深圳去，用以支付深圳榮鑫的開支。

The funds of Silverart QZ over the past few years were provided by the Applicant.
泉州銀藝近數年的資金都是由申請人提供的。

The Applicant provided funds to PW1’s two companies. The Applicant was the top leader of the company, and the Applicant and PW1 were both bosses of the companies. The Applicant and PW1 were emotionally attached to each other in a special way.
申請人向 PW1 的兩間公司提供資金。申請人是公司的最高領導人，申請人及 PW1都是公司的老闆。申請人與 PW1 之間存在特殊感情。

He had viewed the computer record of a loan of $7 million granted by the Applicant to PW1. Subsequently, the Applicant told him that the relevant record was lost because the computer had broken down.
他曾看過申請人借款七百萬元給 PW1 的電腦記錄。後來申請人告訴他因電腦壞掉失去有關記錄。

D2 granted the loan to PW1 by giving him, face-to-face, banknotes in Hong Kong currency. PW1 would then give cash in Renminbi to Silverart QZ.
第二被告人貸款給 PW1 的形式是親身與他見面，然後將港幣現金交給他，而 PW1 就會以人民幣現金支付給予泉州銀藝。

Our views on the first ground of appeal
本庭對第一上訴理由的意見

In support of her first ground of appeal, the Applicant relies on the principle set out in DPP v. Myer [1998] AC 124, HKSAR v. Lai Man Choi and Ng Shui Lun (CACC 628/2002, at paragraph 24) and HKSAR v. Ho Kin Hang Kenneth (CACC 152/2005, at paragraph 32), namely that the contents in defendant A’s cautioned statement which are unfavourable to defendant B cannot be used as evidence against defendant B, but the contents in defendant A’s cautioned statement which are favourable to defendant B can be used in support of defendant B’s defence. The prosecution has not taken issue with this principle.
申請人依據 DPP v. Myer [1998] AC 124 和香港特別行政區訴賴文財及吳瑞麟 CACC 628/2002 第 24 段；HKSAR v Ho Kin Hang Kenneth CACC 152/2005 第 32 段所定的原則，即被告甲在其警誡供詞上不利於被告乙的內容是不可以用作指証被告乙的，但是被告甲警誡供詞內有利於被告乙的警誡供詞卻是可以用作支持被告乙的辯護理由來支持第一上訴理由。控方就這項原則沒有提出任何異議。

In our view, when Judge Chan said he would consider the cautioned statements of the two defendants separately and individually, he did not want any unfavourable evidence given by one defendant against the other to influence him into making a ruling adverse to that defendant.
本庭認為陳法官說他會個別及獨立地考慮兩名被告人的警誡供詞，他這樣做的用意是他不想當其中一名被告人對另外一名被告人作出不利的証供時會影響他的判斷，致令他對這名被告人作出不利的裁決。

When Judge Chan was dealing with the Applicant’s case, he did not indicate that he had to consider such evidence from D2 that was favourable to the Applicant. Nevertheless, on the facts of the case, in particular the fact that the money involved in the charge against D2 also came from PW1’s company, the prosecution’s case against the Applicant had a close connection with that against D2. In our view, Judge Chan had in fact considered the evidence concerning D2, but in the end he did not accept the evidence in D2’s record of interview. D2, like the Applicant, said in a sweeping manner that the Applicant had lent money to PW1. In the absence of any solid evidence to support this statement, the prosecution’s allegation would not have been undermined even if another person had made the same statement. As D2 did not testify in court, his confession was nothing more than an exculpatory statement that he made outside the court, that statement being unsworn and not having been cross-examined or challenged. Judge Chan did not err when he decided not to attach any weight to that statement.
雖然陳法官在處理申請人的案情時沒有表示他需要考慮第二被告人有利申請人的答辯供詞，但縱觀整件案情，特別是第二被告人控罪所涉及的款項也是來自 PW1 的公司，控方針對申請人及第二被告人的案情是有緊密關係的。本庭認為陳法官其實已考慮過有關第二被告人的証供，但他最終都不接納第二被告人的會面記錄供詞。第二被告人像申請人一樣都是籠統地說申請人借貸給 PW1。在沒有任何實質証據可支持有關說法的情況下，即使有另一人重申有關說法也不會削弱控方的指控。由於第二被告人並沒有出庭作証，因此他的招認供詞只是一份在法庭以外所作、未經宣誓、未經盤問及質詢的辯白，陳法官不給予比重並非是錯誤的裁決。

More importantly, in our view, it is clear from Judge Chan’s refusal to accept D2’s defence when considering the charge against D2 that he regarded D2 as an unreliable witness. This being the case, there was nothing wrong even if Judge Chan did not consider such evidence from D2 that was favourable to the Applicant.
本庭認為更重要的是陳法官在處理第二被告人的控罪時不接納他的辯白，這明顯表示他認為第二被告人不是一名可靠的証人。在這情況下就算陳法官沒有考慮第二被告人作出有利申請人的証供都沒有不妥。

It is quite obvious that D2 was not an independent witness and what he said in his record of interview showed that he was protecting the Applicant. Their relationship was apparent from the following facts: the lease of the company of which D2 was the proprietor was signed by the Applicant, and the Applicant was a signatory to that company’s bank account. The Applicant had persuaded the staff of PW1’s company to switch over to D2’s new company. Judge Chan ruled that they were close friends before the Applicant became an employee of Silverart. The Applicant even parked a car that she had purchased at a location owned by D2. The Applicant recommended D2 to understudy in Silverart Shenzhen. The business of D2’s new company was also happened to be the same as that of PW1’s company, namely gift manufacturing. Judge Chan ruled that the Applicant and D2 were not simply casual acquaintances.
明顯地，第二被告人不是一名獨立証人，他的會面記錄內容顯示他是在維護申請人。從以下事情可見兩人的關係：第二被告人擁有自己的公司，他的公司租約是由申請人簽署的，而該公司的銀行戶口亦有申請人的簽名。申請人曾游說 PW1 公司的員工轉到這間新公司工作。陳法官裁定兩人在申請人入職銀藝之前已經是稔熟的朋友。申請人甚至將她購買的一輛汽車停泊在屬於第二被告人的地方。申請人推薦第二被告人到深圳銀藝學習。第二被告人所開設的新公司與 PW1 的公司的製造禮品生意亦雷同。陳法官裁定這兩人並非泛泛之交。

The fourth ground of appeal
第四項上訴理由

The Applicant contends that Judge Chan did not properly analyze or deal with the evidence from DW1 that was favourable to the Applicant.
申請人指陳法官沒有適當地分析或處理 DW1 作出有利於申請人的証供。

Judge Chan’s finding that DW1 was not a reliable witness is a finding of fact. Judge Chan did not err when he refused to accept DW1’s testimony. PW1 and PW3 had both accused DW1 of having disclosed to the Applicant and D2 information on the company. There was ample evidence in the present case to support Judge Chan’s finding.
陳法官裁定 DW1 不是一名可靠的証人是一項事實的裁決。陳法官不接納 DW1 的証供是沒有錯誤的。PW1 和 PW3 都指稱 DW1 曾向申請人及第二被告人透露公司的資料。本案具有充分的証據支持陳法官的裁決。

The fifth ground of appeal
第五上訴理由

The Applicant submits that Judge Chan erred in ruling that the Applicant’s failure to give evidence in her own defence served to strengthen the prosecution’s case.
申請人指陳法官認為由於申請人不作供自辯，因而加強了控方案情這個裁決是錯誤的。

In Li Defan v. HKSAR (2002) 5 HKCFAR 320, the Court of Final Appeal held that:
在 Li De Fan and HKSAR [2002] 5 HKCFAR 320 一案香港終審法院指出：

In an appropriate case, the judge is entitled to point out that the jury may, but need not, consider that the prosecution case on a particular issue relevant to guilt is strengthened by the absence of the defendant from the witness box.
在適合的案件中，法官有權指出，陪審團可以(但不一定要)認為被告人不到證人欄作供變相加強了控方在某項與被告人是否有罪有關的爭議點上的案情的舉證力量。

However, the cases in which such comment is permissible or even necessary will be exceptional, and each case must depend upon its own facts. The kind of case in which the judge may feel that the jury need additional comment is where the defence case involved alleged facts which:
然而，容許甚至有必要作出上述評論的案件是罕有的，而確實情況必須視乎個別案情而定。法官或認為需要向陪審團作額外評論的案件的種類，是當辯方聲稱的事實：

are exculpatory and at variance with the prosecution evidence or additional to it;
屬辯白性質，並與控方證據不一致或超出該等證據的範圍；

must, if true, be within the defendant’s knowledge; and
若然屬實，必須落在被告人的知悉的範圍內；及

the defence is relying on some extra-judicial explanation which is neither supported by any document nor established by defence evidence.
屬於被告人所倚賴的一些司法以外的解釋，而該解釋既沒有任何文件支持，亦得不到辯方證據證實。

Such comment should identify the issue to which the defendant’s election not to give evidence may be relevant, and the nature and strength of such comment must not be such as to contradict or nullify the essentials of the standard direction.
上述評論應指明可能與被告人選擇不作供有關的爭議點，而該等評論的性質和力量絕不能與上述標準指引的基本要素相悖或使之失效。

In HKSAR v. Leung Chi Wah Earnest and another (CACC 275/2007), the Court of Appeal elaborated on the issue of whether the prosecution case can be strengthened by the defendant’s election not to testify in court, as follows:
上訴法庭在 HKSAR v. Leung Chi Wah Earnest (梁志華) and other （CACC 275/2007）一案對被告人不出庭作供是否可加強控方案情的舉証力量的議題作出以下的闡釋：

Even though the defendant does not testify in court, where he calls other witnesses or evidence and such evidence tends to support his defence, the court cannot regard the defendant’s absence from the witness box as a fact which strengthens the prosecution case. (paragraphs 102 to 108)
雖然被告人沒有出庭作供，但當被告人有傳召其他証人或將其他証據呈堂，而該些証據是傾向於支持被告所提出的辯護理由的話，法庭便不可以視被告人不出庭作供為可以加強控方案情的舉証力量。（第 102-108 段）

Similarly, where the defendant relies on inherent deficiencies in the prosecution case as his defence, and such prima facie deficiencies do exist at trial, the court cannot regard the absence of the defendant from the witness box as a fact which strengthens the prosecution case. (paragraphs 115 to 124)
同樣地當被告人是倚賴控方案情的潛在弱點去辯護時，而在審訊時控方案情又的確存在著表面的潛在弱點時，法庭便不可以視被告人不出庭作供為可以加強控方案情的舉証力量。(第 115-124 段)

The court cannot, on the basis that it has rejected evidence favourable to the defence, regard the defendant’s absence from the witness box as something which strengthens the prosecution case. Whether the defendant’s absence from the witness box can be regarded as strengthening the prosecution case is to be determined at the conclusion of both the prosecution and defence cases and does not depend on what evidence is eventually accepted by the court. (paragraphs 109 to 114)
法庭不能夠因為已經拒絕接納有利於辯方的証據而視被告人不出庭作供為可以加強控方案情的舉証力量。法庭是否可以視被告人不出庭作供為可以加強控方案情的舉証力量是取決於當控辯雙方都已舉証完畢之時，而並非取決於法庭最終決定接納什麼証據。 (第 109-114 段)」

Mr Wong, SC and Mr Chan for the Applicant submit that Judge Chan had erroneously applied the legal principles in Li Defan. Judge Chan ruled that the prosecution case was sufficient to establish the Applicant’s guilt because, it is submitted, the Applicant had not given evidence in her own defence and Judge Chan had refused to accept the exculpatory evidence given by the two defendants in their cautioned statements.
代表申請人的黃敏杰資深大律師及陳世傑大律師指陳法官錯誤地引用 Li De Fan 的法律原則。他們認為陳法官是由於申請人不作供自辯及不接納兩名被告人在警誡供詞的辯白而認定控方証據的力度已達到可以証明申請人有罪的程度。

We need not discuss whether the principles laid down in Li Defan are applicable to the present case. This is because, in our view, in the circumstances of the case, there was sufficient basis for Judge Chan to reject the exculpatory evidence given by the Applicant and D2 in their cautioned statement as well as DW1’s evidence. Furthermore, the prosecution case contained no reasonable doubts, and the Applicant had elected not to give any explanation for matters within her knowledge, e.g. the source of funds with which she allegedly made payments for PW1 or the flow of the funds. In light of these, the evidence was sufficient so that, even without resorting to the principles in Li Defan, Judge Chan could have concluded that the Applicant was guilty and convicted her accordingly.
本庭不需要討論Li Defan 所訂立的原則是否適用於本案。原因是本庭認為基於本案的情況，即案件具有充分的理據來支持陳法官不接納申請人與第二被告人在警誡供詞所作出的辯白及 DW1 的証供的裁決、控方案情並不存在合理疑點及申請人選擇不就一些在她認知範圍以內如她聲稱她替 PW1 支付款項的來源或資金流向的事情作出解釋，就算陳法官不依賴 Li Defan 的原則，本案其實已具有充分的証據讓他對申請人作出定罪的推斷及裁決。

Conclusion
總結

For the above reasons, the application is dismissed.
基於上述理由，本庭駁回申請。

Ms Mary Sin, Senior Assistant Director of Public Prosecutions, for the Respondent.
答辯人：由律政司高級助理刑事檢控專員冼佩霞代表。

Mr Wong Man Kit, SC and Mr Kevin Chan, instructed by Tang, Lai & Leung, for the Applicant.
申請人：由梁鍚鐮、黃國基、吳志彬律師行轉聘黃敏杰資深大律師及陳世傑大律師代表。