Hon Poon J (giving the Reasons for Judgment of the Court):
高等法院原訟法庭法官潘兆初頒發上訴法庭判案理由書：

Introduction
引言

The applicant (Leung Oi Yin Scarlette) was charged with 16 charges of theft (Charges 1 to 6), 11 charges of using a false instrument (Charges 17 to 27) and one count of possessing a false instrument (Charge 28).  She pleaded guilty to Charges 17 to 28 but not guilty to Charges 1 to 16.  On 27 March 2014, she was convicted after trial by H.H. Judge Eddie Yip (trial judge) of all 16 charges of theft.  On 15 April 2014, she was sentenced to imprisonment for 5 years and 6 months in total.  The applicant, represented by Mr Robert Pang SC, applied for leave to appeal the conviction of all charges of theft.
申請人（梁靄燕）被控16項盜竊罪（控罪一至十六）、11項使用虛假文書罪（控罪十七至廿七）及1項管有虛假文書罪（控罪廿八）。她承認第十七至廿八項控罪，但否認第一至十六項控罪。2014年3月27日，經審訊後，區域法院葉佐文法官（原審法官）裁定申請人十六項盜竊罪全部罪名成立。4月15日，原審法官判處申請人入獄共5年6 個月。申請人不服定罪，由彭耀鴻資深大律師提出申請，要求獲准就所有盜竊罪的定罪上訴。

10 February 2015, this court refused the application after the hearing.  Here are the reasons.
2015年2月10日，經聆訊後，本庭拒絕申請。本庭現頒下判案理由書。

Prosecution case
控方案情

The prosecution case may be summarised as follows:
控方的案情可撮要如下。

Gainford International Limited (“Gainford”) was set up on 17 August 1993 and mainly engaged in sales of machinery and material of circuit boards.  At the material time of the present case, Gainford had three shareholders who were also directors.  The major shareholder-cum-director was Tse Chun Yip (“Tse”) who owned 80% of the shares; and the other two shareholders-cum-directors were Tse Chun Kei (transliteration) and Chu Wing Yin (transliteration).  Tse returned to Gainford to deal with its matters only two days a week and mostly remained in the Mainland for the rest of the time.
佳輝工業國際有限公司（“佳輝”）在1993年8 月17日成立，業務主要是銷售線路板物料和機器。在本案案發時段，佳輝共有三名股東兼董事，最大股東兼執行董事是謝俊業（“謝”），他持有80% 股份；另外兩名股東兼董事是謝俊基及朱永賢。謝每星期只有兩天到佳輝走一趟處理佳輝的事宜，其餘時間則多在國內。

Wong Chi Kit (“Wong”) joined and started to work in Gainford in 1994, and his job title at the material time was Information Technology and Accounting Manager.
王智傑（“王”）在1994年加入佳輝工作，於案發時段的職銜是資訊科技和會計經理。

In late 1999, the applicant through Wong’s introduction joined Gainford to work as a part-time accounting officer, and after a few months, she changed to work on a full-time basis and was appointed the Financial Controller, responsible for the financial arrangements of Gainford and dealing with the bank accounts of Gainford and Tse, including the main bank account that Gainford used for the payments in and out in the course of business (“Hang Seng current account”) and the account that Tse had opened with Dah Sing Bank under his own name for keeping the reserve fund of Gainford (“Dah Sing fixed deposit account”).
申請人在1999年底經王介紹加入佳輝為兼職會計，數個月後轉為全職並獲委任為財務總監，負責佳輝的財務安排，處理佳輝及謝的銀行賬戶，包括佳輝用作業務營運收支的主要銀行賬戶（“恒生往來賬戶”）及謝以其個人名義在大新銀行開立一個用作存放佳輝後備資金的賬戶（“大新定期賬戶”）。

In 2001, Tse in his own name opened an account for forex margin trading with an account for settlement of forex margin transactions (“Dah Sing forex account”).  All the funds used for forex margin trading came from the reserve fund of Gainford.  The applicant was authorized by Tse to operate the Dah Sing forex account on behalf of Gainford, and she was only required to provide the account number and the operation code and then she could place orders directly by phone with the Finance Department of Dah Sing Bank to do forex margin trading.  The orders in respect of all 41 transactions done after the Dah Sing forex account had been opened were placed by the applicant in person.
2001年，謝以其個人名義在大新銀行開立一個外滙孖展買賣戶口及外滙孖展交易結算戶口（“大新外滙賬戶”）。透過大新外滙賬戶買賣外滙孖展的資金全部來自佳輝的後備資金。申請人獲謝授權代佳輝操作大新外滙賬戶，申請人只須提供該賬戶的號碼和操作密碼，可以直接用電話向大新銀行財資部落盤進行外滙孖展買賣。大新外滙賬戶開戶後所有的41次交易全由申請人親自落單進行。

The information of the transactions of forex margin [trading] done by the applicant on behalf of Gainford would be given to Wong to do the accounts, and Wong compiled a Gainford Cash Position Report for Tse’s reference.
申請人代佳輝所作的外匯孖展員賣交易資料會交予王入賬，而王便負責製備佳輝的《現金流量報告表》予謝參考。

In mid-2004, Tse looked at the Cash Position Reports of the company, which showed a decrease in free cash.  Wong explained to him that there had been a deficit of over two million dollars because of the forex margin transactions done by the applicant.  Tse therefore instructed the applicant not to trade forex on [margin] anymore.  Being busy at work, Tse did not closely follow up the above instruction.
2004中，謝看到公司的《現金流量報告表》顯示流動資金減少，王向他解釋因為申請人買賣外滙孖展虧損了超過二百多萬元。謝於是指示申請人不要再進行買賣外滙孖。由於工作繁忙，謝沒有刻意跟進上述的指示。

In late November 2004, Tse noticed that the updated Cash Position Report showed a continuous decrease in the free cash of Gainford, which amounted to over one hundred thousand dollars each month.  He learnt from Wong that the applicant had not stopped forex margin trading.  Thus he dressed the applicant down and repeated the instruction, telling her that she must immediately stop and close the forex margin trading account (ie Dah Sing forex account), and then transfer the money to other accounts for fixed deposit.
2004年11月底，謝看到更新了的《現金流量報告表》顯示佳輝流動資金持續減少，每月達十多萬元，他從王口中得知申請人並沒停止買賣外滙孖展，於是訓示申請人，並重申指示她要立刻停止買賣外滙孖展及結束外滙孖展賬戶（即大新外滙賬戶），然後將錢轉入另外賬戶做定期存款。

Although having been instructed by Tse to stop twice, the applicant still continued to trade forex on margin through the Dah Sing forex account, and between January 2005 and October 2008, she had transferred the property of Gainford and choses in action under Tse’s name to the Dah Sing forex account for 16 times in order to settle the deficit resulted from forex margin transactions, which involved a total amount of $11,468,449.79:
雖然申請人收到謝兩次指示，但是她仍然繼續用大新外滙賬戶買賣外滙孖展，並且在2005年1月至2008年10月期間用佳輝的財產和謝名下的據法權產轉賬至大新外滙賬戶以結算外滙孖展交易的虧損共16次，涉及金額共$11,468,449.79：

Between 3 and 31 January 2005, the applicant continued to do forex margin trading through the Dah Sing forex account, and opened 33 new forex margin contracts;
2005年1月3日至1月31日期間，申請人繼續在大新外滙賬戶買賣外滙孖展，共落盤新做了33宗外滙孖展合約；

(2)By 31 January 2005, there were still 14 open forex margin contracts;
(2)2005年1月31日，大新外滙賬戶內仍有14宗外滙孖展合約未平倉；

(3)31 January 2005, the applicant transferred $6,353,661.84 from the Dah Sing forex account to the Dah Sing fixed deposit account for fixed deposit of one month;
(3)2005年1月31日，申請人從大新外滙賬戶內轉賬$6,353,661.84至大新定期賬戶做一個月定期；

(4)After 31 January 2005, the applicant continued to trade forex on margin through the Dah Sing forex account, and the monthly ledger report she submitted to Gainford did not reveal any of these subsequent forex margin transactions but showed only the renewal of one mature fixed deposit;
(4)2005年1月31日後，申請人繼續在大新外滙賬戶買賣外滙孖展，她交給佳輝之每月銀行賬戶結餘分項表並沒顯示其後的外滙孖展交易，只顯示出1 項定期存款於到期時獲續期；

(5)Between 2 March 2005 and 27 October 2008, when money was needed for closing positions because deficit incurred by forex margin transactions was recorded in the Dah Sing forex account, the applicant transferred money from the Dah Sing fixed deposit account to the Dah Sing forex account.  Sometimes when time was tight, the applicant even terminated some fixed deposit contracts in the Dah Sing fixed deposit account before maturity and transferred the money so made available to the Dah Sing forex account in order to close positions;
(5)2005年3月2日至2008年10月27日期間，大新外滙賬戶內的外滙孖展交易錄得虧損需要資金來平倉，申請人便從大新定期賬戶轉賬資金入大新外滙賬戶。有時時間緊逼，申請人還索性把大新定期賬戶內某些尚未到期的定期存款合約提早結束，抽調資金轉賬入大新外滙賬戶來平倉；

(6)Between 2 March 2005 and 27 October 2008, the applicant transferred 14 sums of money from Tse’s Dah Sing fixed deposit account into the Dah Sing forex account so as to close positions;
(6)2005年3月2日至2008年10月27日期間，申請人從謝的大新定期賬戶轉賬14筆款項入大新外滙賬戶來平倉；

(7)7 November 2005, the applicant transferred two sums in a total of $1,500,000.00 from the Hang Seng current account of Gainford to the Dah Sing forex account for closing positions.
(7)2005年11月7日，申請人從佳輝的恒生往來賬戶轉賬兩筆款項共$1,500,000.00入大新外滙賬戶來平倉。

The details of the 16 transfers mentioned in items (6) and (7) above are set out as follows:
上文第 (6) 及 (7) 項提到的16次轉賬詳情如下：

These 16 transfers are the respective thefts referred to in Charges 1 to 16.
這16次的轉賬賬分別就是第1至16項控罪所指的盜竊罪。

On 18 November 2006, the applicant covertly completed and submitted a form to instruct Dah Sing Bank to change the correspondence address from the office of Gainford to her personal address for receiving documents issued by the bank, such as monthly statements and Renewal Confirmations of fixed deposits.  After that, Gainford could not receive those bank documents or know about the actual situation and the balance in the accounts with Dah Sing Bank.
2006年11月18日，申請人私下填寫及提交表格指示大新銀行，將銀行發出的《月結單》及《定期續存書》等文件的收信地址由佳輝寫字樓更改至她本人地址。其後，佳輝無法收到該些銀行文件或得知大新銀行賬戶的真實情況和結餘。

On 30 April 2009, being not satisfied with the applicant’s working performance, Tse Chun Kei instructed her to pass his personal affairs and bank accounts in his name to Fan Sheung Moon, the Administrative Assistant of the Marketing Department.  Fan Sheung Moon asked the applicant for those bank documents but she failed to produce them even after stalling for a long time.
2009年4月30日，謝俊基因不滿申請人的工作表現，指示申請人把他個人事務及名下銀行賬戶交給巿場部行政助理范常滿處理，范常滿向申請人索取該些銀行文件，申請人遲遲未能提交。

From June 2009 onwards, over a period of several months, the applicant gave Fan Sheung Moon four false Renewal Confirmations and seven false monthly Consolidated Statements.  The period in question was from June to December 2009, ie the period involved in Charges 17 to 27.  Subsequently, Fan Sheung Moon came to know that the applicant had covertly changed the correspondence address.  He checked a batch of replacement Renewal Confirmations of fixed deposits and monthly Consolidated Statements issued by Dah Sing Bank and discovered that the actual balance should be four million odd dollars instead of twelve million as shown by the documents provided the applicant.  The applicant was also in possession of a false Consolidated Statement purportedly issued by Dah Sing Bank, which is the subject matter in Charge 28.
2009年6月起數個月內，申請人陸續將交給范常滿4份虛假《定期續存書》和7份虛假按月《綜合結單》，相關時段由2009年6月至12月，即涉案第十七至廿七項控罪。其後，范常滿得悉申請人私下更改了收信地址。他核對大新銀行補發的一批《定期續存書》及按月《綜合結單》後，發現實際結餘應是四百餘萬元，而非申請人提供的文件所顯示是一千二百萬元。申請人還管有控罪廿八所指的一份偽造的大新銀行綜合結單。

On 28th May, 2010 Tse dismissed the applicant.  Around 8:30 pm on the same day, Tse, Tse Chun Kei, Wong, Fan Sheung Moon, the applicant and her husband discussed in a meeting about discovering false bank documents and missing of company funds.  The applicant admitted at the meeting that there had been a deficit of about eight million Hong Kong dollars but denied having got any personal gain.  Tse Chun Kei took an audio-record during the meeting and the two audio recordings were produced to the court by consent of both parties as prosecution exhibits.  On 20 October 2010, PC6256 Fung Shu Pui (transliteration) arrested the applicant in her residence for the offence of using a false instrument.  The applicant said under caution, “I understand.  The things were done by me, which have nothing to do with Mr Wong.”
2010年5月28日，謝解僱申請人。同日晚上約8 時30分，謝、謝俊基、王、范常滿、申請人和申請人的丈夫開會相討有關發現偽造銀行文件和公司失錢一事。申請人在會議中承認虧損了約八百萬港元，但否認得到任何個人利益。謝俊基在會議期間錄音，兩段錄音記錄後控辯雙方同意呈堂為控方證物。2010年10月20日，警員6256馮書培在申請人的住所內就使用虛假文書罪拘捕申請人。申請人在警誡下說：「我明白，啲野係我自己整既，唔關王生事。」

The forensic accountant of the Hong Kong Police Force has given expert opinion, pointing out that between 1 February 2005 and 31 May 2009, the actual loss incurred by the unauthorised forex transactions done by the applicant was HK$7,521,686.00.
香港警務處法證會計師給予專家意見，指出從2005年2月1日至2009年5月31日期間，申請人所作之未獲授權外匯交易所招致的實際損失為港幣7,521,686.00元。

Defence case
辯方案情

At the trial, the applicant elected [not] to give evidence or call any witness.
申請人在審訊時選擇下作供，也不傳召證人。

In the cross-examination of Tse by Mr Charles Chan of Counsel representing the applicant, it was the defence’s allegation that all things done by the applicant had been done on his instructions, that he had never told the applicant to stop forex margin trading and that on the contrary had told her to continue in the hope of making up for the loss.  Tse denied all such suggestions put by the defence.
從代表申請人的陳永豪大律師向謝的盤問可見，辯方指申請人所做的一切都只是按他的指示去做，他從沒有叫申請人停止買賣外匯孖展，反而叫她繼續買賣，望能以填補損失。謝對辯方的說法一概否認。

Main issue in dispute
主要的爭議

The main issue in dispute was whether Tse had twice told the applicant to stop trading margin and she just ignored his instructions, or not only had Tse given no such instruction, but he even told her to continue to trade on margin in the hope of making up for the loss.  The determination of this issue wholly depended on the credibility and reliability of Tse’s testimony.
控辯雙方的主要爭議是，到底謝有否兩次叫申請人停止買賣孖展而她不理會指示，抑或謝不單沒有這樣，反而叫她繼續買賣孖展，望能以填補損失。這爭議如何定奪全在於謝的證言是否可信和可靠。

Trial judge’s reasons for verdict
原審法官的裁決理由

The trial judge first dealt with the defence challenges on Tse’s testimony point by point:
原審法官首先逐一處理辯方質疑謝證言的攻擊：

“Challenges to the victim’s credibility and reliability
「事主的可信性及可靠性如何受質疑

20.According to para 12 of the Submissions, the victim had twice instructed the accused to stop margin trading, which was in mid and late 2004 respectively, and Wong Chi Kit was also present on the occasion in late 2004, however, para 15 stated that Wong Chi Kit in his testimony did not mention such instructions or his presence.  I find that Wong Chi Kit does not have a clear memory on the details and his testimony is not satisfactory.
20.《陳詞》第12段指事主聲稱向被告作出兩次指示停止買賣外匯孖展，分別是於2004年年中及年底，而年底該次給予指示時王智傑也在場，第15段指王智傑證詞沒提及這指示或自己在場。本席認為王智傑對事情細節沒有清晰記憶，證詞並不穩妥。

21.According to paras 16 and 17 of the Submissions, there has been seven times that the victim was unwilling to give an answer when being asked why he did not request the accused to explain the reason for not complying with his first instruction of stopping forex margin trading when he instructed her on the second occasion.  The victim has repeatedly emphasized in court that he had forgiven the accused.  I understand that he has not been prudent in financial management or handled matters systematically.  The accused did not earn much.  Her non-compliance of his first instruction had already incurred a loss of several hundred-thousand dollars.  Whatever explanation she gave simply could not help.  He, though being unwilling, could only accept the reality.  That he continued to employ the accused meant that he still accepted the accused’s overall working performance.  I think the way in which he responded in court was not completely unreasonable.
21.《陳詞》第16及17第段指事主在庭上共7次也不願意回答為何給予第二次指示期間，他沒問被告為何違反第一次要她停止買賣外匯孖展的指示。事主在庭上重覆強調已原諒了被告，本席了解他的理財態度並不審慎，做事也沒特定系統，被告收入不高，違反他第一次的指示之後造成額外虧損數十萬元，不論提出甚麼解釋也於事無補，他只是無奈地接受既成現實，繼續聘用被告代表他仍然接受被告整體工作表現，本席認為他在庭上的回應方式並非全不合理。

22.Para 18(1) of the Submissions queries why the victim has not asked the accused the profit and loss in forex margin trading.  I understand that he was busy at work and just did not stay long at Gainford, and forex margin trading was definitely not what he was most concerned with.  Had he paid more attention on this matter, it would have been discovered before the deficit reached two million odd.
22.《陳詞》第18(1) 段質疑事主沒向被告詢問買賣外匯孖展的賺蝕。本席了解他工作繁忙，在佳輝逗留時間有限，買賣外匯孖展決非他最關注事情，若他對這事情裝載的話，也不會讓虧損達到二百多萬才發現。

23.Para 18(2) of the Submissions queries why the victim first said that he had not mentioned to other shareholders about using the reserve fund of the company on forex margin trading, but subsequently changed and said that he had told them.  I understand that he owned 80% of the shares and could decide by himself what Gainford was going to do.  He might not remember if other shareholders had been informed or take it seriously.
23.《陳詞》第18(2) 段質疑事主初說沒向其他股東提及使用公司儲備來買賣外匯孖展，其後改口說曾向他們提及。本席了解他持股80%，可自行決定佳輝做甚麼，他未必記得或深究有否知會其他股東。

24.Paras 18(3) and (4) of the Submissions recount Wong Chi Kit’s testimony and query if there was a ‘meeting of three’ and if the victim had instructed her to stop forex margin trading.  I find that [Wong] Chi Kit does not have a clear memory on the details and his testimony is not satisfactory.
24.《陳詞》第18(3) 及(4) 段援引王智傑證詞，質疑有否“三人會面”及事主有否指示被告停止買賣外匯孖展。本席認為不智傑對事情細節沒有清晰記憶，證詞並不穩妥。

25.Paras 18(5) and (7) of the Submissions respectively query that the victim, solely by reading P16 (61) or the Cash Position Report, could not possibly know that deficit had been resulted in forex margin trading and hence he probably had looked at other materials and might have known about the deficit privately but did not give an account to the court frankly.  I understand that he sometimes requested Wong Chi Kit to provide him other documents or explain some details that were not set out in the documents, which might enable him to know about the deficit incurred by forex margin trading.
25.《陳詞》第18(5) 及(7) 段分別質疑事主不可能單憑閱讀P16(61) 或《現金流報表》等文件便可知外匯孖展有虧損，他應有看過其他資料，更可能私下知道虧損一事，可是沒有坦白向法庭交代。本席了解他有時會要求王智傑提供其他文件或解釋一些文件上沒有列出的詳情，憑此他可知道外匯孖展的虧損。

26.Para 18(7) of the Submissions also suggests that the wording used by Wong Chi Kit in describing these documents, eg ‘monthly investment portfilo’, ‘monthly portiolo’, ‘investment result’, ‘FX settlement’, etc, may carry different meanings, and it would be difficult for the victim to fully understand if there was any deficit with the forex margin trading.  I find that Wong Chi Kit does not have a clear memory on the details and his testimony is not satisfactory.
26.《陳詞》第18(7) 段並指王智傑形容上述這些文件上的用詞，例如“monthly investment portfilo”，“monthly portiolo”，“investment result”，“FX settlement”等都可能有著不同含意，事主難以看通外匯孖展有否虧損。本席認為王智傑對事情細節沒有清晰記憶，證詞並不穩妥。

27.Para 18(8) of the Submissions mentions that the accused placed a fixed deposit in the amount of $6,353,661.84 by using fund of Gainford on 31 January 2005.  Defence argues this does not show that the accused was carrying out part of the victim’s instructions given on the second occasion (namely transferring money into another account and making it fixed deposit) because the accused probably would not have been trading forex on margin and placing a fixed deposit at the same time.  I find that the accused did trade forex on margin and place a fixed deposit at the same time by way of privately withholding the record of forex margin transactions and providing untrue material to Wong Chi Kit at appropriate moments, giving a false impression that she had carried out the instructions.
27.《陳詞》第18(8) 段提及2005年1月31日被告用佳輝資金作定期存款$6,353,661.84，辯方指這並不反映被告此舉是履行事主的第二次指示部份內容（即是將錢轉入另外的賬戶做定期存款），因為被告應不會一邊繼續買賣外匯孖展，另一邊則做定期存款。本席認為被告確有同時買賣外匯孖展及做定期存款，方法是私下將外匯孖展的交易紀錄扣起，並適時向王智傑提供不實資料，造成她已履行指示的假象。

28.Paras 18(8) and (9) of the Submissions mention that a balance in the sum of $412,607.00 has remained in the Dah Sing forex account from 31 January 2005 to 30 January 2007, which can be seen in the Ledge Report compiled by Wong Chi Kit in relation to the period from 1 January 2001 to 1 June 2010 (printed on 1 June 2010).  As I interpret the meaning of this part of the submissions, the defence seems to be suggesting that if the accused had tried to create a false impression of having placed a fixed deposit as instructed, there would not have been a balance of $412,607.00 remaining in the Dah Sing forex account because the victim might learn from the computer system that this account had not been closed and then discovered her non-compliance.
28.《陳詞》第18(8) 及(9) 段提及由2005年1月31日起至2007年1月30日，有一筆$412,607.00的結餘一直留在大新外匯賬戶，這從王智傑所編製相關2001年1月1日至2010年6月1日的Ledge Report（於2010年6月1日列印）可見。本席詮釋這陳詞的意思，辯方似是指被告若要泡製已按指示做定期存款的假象，不會有$412,607.00的結餘留在大新外匯賬戶，因事主或會在電腦系統中看到這個賬戶尚未結束，發現她違反指示。

29.The facts admitted by the accused include that Dah Sing Bank informed and confirmed with her on 20 November 2006 that the bank had acceded to her request made on 18 November 2006 and changed the correspondence address of the victim to her personal address.  Nevertheless, it was only on 1 June 2010 that the above Ledge Report was printed out.  In other words, between 20 November 2006 and 1 June 2010, the genuine record of the Dah Sing forex account was in the accused’s hand, and it was up to her to decide what information was to be provided to Wong Chi Kit for making accounts record.  The report compiled by Wong Chi Kit could only rely on the oral or documentary data provided by her.
29.被告所承認的案情包括2006年11月20日已獲大新銀行因應其2006年11月18日之申請通知她，確認已將事主通訊地址改到她本人地址。可是上述該Ledge Report是於2010年6月1日才列印出來的，換句話說，2006年11月20日至2010年6月1日期間，大新外匯賬戶的真實紀錄盡在被告手中，她可決定交甚麼資料給王智傑入賬，王智傑所撰寫的報告只能取材於她提供的口頭或文件數據。

30.I have seen from the affidavit of the staff of Dah Sing Bank that there was no such balance in the sum of “$412,607.00” in the Dah Sing forex account.  As I understand, this is probably the total sum obtained by adding up various smaller amounts over the period from 31 January 2005 to 30 January 2007.  Had the victim directly checked each item of the breakdown and given some thought, it might have been very clear.  However, he was not even able to tell how many and what accounts he had with Dah Sing Bank when being asked.  Having taken care of his financial matters for years, the accused definitely knew full well of his carefree attitude towards financial matters.  There was simply no need to worry that he would check the accounts on the computer.
30.本席從大新銀行職員的誓章看到大新外匯賬戶並無任何“$412,607.00”的結餘，本席了解這應是2005年1月31 日至2007年1月30日期間不同細數相加而成，事主若直接查看每項明細及作出推敲，也許會一清二楚，可是他連自己在大新銀行有多少賬戶或有甚麼賬戶也答不出，被告為他理財多年，對他這鬆懈理財方法自然瞭如指掌，那怕他會在電腦查賬。

31.Para 18(10) of the Submissions suggests that the bank record showed that the fixed deposit of $6,355,611.44 remained unchanged for months while there should at least be some interest, and it was impossible that the victim did not notice this.  I think that the victim might not notice this given the small amount of the interest.
31.《陳詞》第18(10) 段指該定期存款$6,355,611.44多月來在銀行紀錄顯示沒有改變，至少應有利息，事主不可能沒發現。本席認為利息不多，事主未必留意到。

32.Para 18(11) of the Submissions argues it is impossible that the victim has not noticed that he had signed a form to apply to Dah Sing Bank for change of correspondence address.  I find that he might not notice this document when he signed.
32.《陳詞》第18(11) 段指事主不可能沒留意簽署了一份向大新銀行申請更改通訊地址的表格。本席認為他簽名時未必會留意到這份文件。

33.Para 18(12) of the Submissions contends that it was impossible that the victim did not ask anything about the result of the litigations in the Mainland.  As I understand, Gainford was well financed, and given that those litigations did not involve much money, there was no need for the victim to be over-concerned.”
33.《陳詞》第18(12) 段指事主不可能對內地的官司輸贏不問。本席了解佳輝財政充裕，該些官司所涉數額不大，事主不須太著緊。」

And then trial judge dealt with five different issues:
原審法官然後處理5個不同的議題：

“Why was it not until November 2006 that the accused instructed Dah Sing Bank to change the correspondence address
「為何被告等到2006年11月才向大新銀行指示更改通訊地址

34.Para 19 of the Submissions suggests that the accused was not trying to hide from the victim the truth of continuing trading forex on margin by changing the correspondence address kept by Dah Sing Bank to her personal address.  In my view, changing the address could indeed effectively prevent her colleagues from opening bank documents and discovering records of ongoing margin trading. Nevertheless, before the address was changed on 18 November 2006, she might not have thought of or dared to use this method.  As time went by, she has straightened out her thought and come around to it, which then becomes useful.
34.《陳詞》第19 段指被告更改大新銀行的通訊地址到其本人地址並非要暪著事主繼續買賣外匯孖展。本席認為更改地址這方法確可有效防範同事拆開銀行文件發現仍有買賣孖展的紀錄，但是2006年11月18日更改地址之前，她未必想到用這方法，也未必敢用這方法，隨著時間過去，她想通了、看通了便用得著。

The accused had no motive to steal money to continue with forex margin trading
被告沒有動機偷錢去繼續買賣外匯孖展

35.According to para 20 of the Submissions, there is no evidence showing that she could get any benefit by hiding from the victim the truth of continuing with forex margin trading.  In my view, the fact that within one year she managed to get her job changed from a part-time basis to a full time one and then be promoted to a post above Wong Chi Kit showed that apart from daily routine work, the victim must have appreciated her knowledge on investment very much and hence entrusted her with the forex trading on margin.  In mid-2004, after she had caused Gainford a loss of two odd million dollars, the victim instructed her to stop but she just covertly disregarded him with overt pretence of compliance.  All these simply reflect her reluctance to admit failure.  She hoped to win back the loss but things just went against her wish.
35.《陳詞》第20 段指沒證供顯示她暪著事主繼續買賣外匯孖展對她有任何利益。本席認為她能夠在1年之間從兼職做到全職，並晉升至王智傑之上，除了日常工作之外，事主對她在投資方面的認識定是非常讚賞，於是委託她買賣外匯孖展。2004年年中，她令佳輝損失二百餘萬元，事主指示她停手，她卻陽奉陰違，無非是不服輸心態作祟，期望收復失地，誰料事與願違。

The victim exercised his right and did not answer questions
事主行使權利不答問題

36.Para 21 of the Submissions states that the victim has elected not to answer some questions which may be self-discriminating.  I understand that those questions are related to other litigations and are put for the sole purpose of testing the credibility of his testimony.  His election of not to answering in my view, does not affect the credibility of his testimony.
36.《陳詞》第21 段指事主就一些可能引致罪己的問題選擇不回答。本席了解該些問題有關其他官司，純作測試他證詞的可信性，他選擇不回答，本席認為這並不影響他證詞的可信性。

Challenge the victim’s testimony with PW2’s testimony
以第2證人的證詞質疑事主的證詞

37.Paras 23 and 24 of the Submissions challenge the victim’s credibility and reliability on the basis of Wong Chi Kit’s testimony.  I am of the view that Wong Chi Kit does not have a clear memory on the details and his testimony is not satisfactory.
37.《陳詞》第23 及24 段以王智傑證詞作為基礎質疑事主的可信性及可靠性。本席認為王智傑對事情細節沒有清晰記憶，證詞並不穩妥。

The victim and others confronted the accused afterwards
事發後事主等人與被告對質

38.Para 25 of the Submissions states that on 28 May 2010, when the victim and Tse Chun Kei confronted the accused, the victim pretended not to know anything in the attempt to deceive other shareholders.  I have listened to the two audio recordings but do not agree with this part of the submission.  On the contrary, the accused admitted that the deficit was eight million dollars and expressed willingness to compensate.  In my view, if it had only been on the victim’s instructions that the accused traded on margin and he had never told her to stop, she would have definitely blamed the victim for being a bad loser and capricious, not to mention willing to pay the victim and other shareholders eight million as compensation.”
38.《陳詞》第25 段指2010年5月28日事主及謝俊基與被告對質時，事主裝作不知情，企圖蒙騙其他股東。本席聽過該兩段錄音，並不認同這項陳詞，相反地，被告承認虧損數目為八百萬元及願意賠償，本席認為被告若只是按事主指示買賣孖展，而事主從來沒叫停的話，被告必會力陳事主反口覆舌，輸打嬴要，遑論願意賠償八百萬給事主及其他股東。」

Finally, the trial judge gave the verdict:
最後，原審法官裁決：

“Verdict
「本案裁決

39.The accused has a clear record, for which I have adopted views more favourable to her in considering her propensity of committing the crime in this case.  In light of the above analyses, I find that the victim had instructed the accused to stop trading forex on margin back in mid-2004, and in late 2004, in addition to reiterating such instruction, he also instructed her to close the forex margin account and place fixed deposits with the money.  The accused did not comply with the instructions given on these two occasions, and, while knowing full well that she had no authority from Gainford, privately appropriated the funds of Gainford in the total amount of $11,468.449.79, and traded forex on margin while keeping the victim and other shareholders of Gainford in the dark.
39.被告並無刑事紀錄，本席考慮其犯案的傾向性時應採對她較有利的觀點。本席基於上文種種分析，認為事主在2004年年中已指示被告停止買賣外匯孖展，在2004年年底除了重申這指示之外，並另指示被告將該外匯孖展賬戶結束及將錢轉做定期存款。被告違反這兩次指示，明知不獲授權而私下挪用佳輝的資金共$11,468.449.79，暪著事主及佳輝其他股東買賣外匯孖展。

40.In my view, a reasonable man would consider the accused act as dishonest, and the accused also knew that she would be considered by a reasonable as dishonest.  The prosecution has proved Charges 1 to 16 beyond reasonable doubt.  The accused is convicted as charged.”
40.本席認為一個思想合理的人會視被告行為屬不誠實，而被告亦知道一個思想合理的人會視之為不誠實。控方已在毫無合理疑點準則證明第1至16項控罪，被告罪名成立。」

Grounds of appeal
上訴理據

Mr Robert Pang SC, advanced four grounds of appeal on behalf of the applicant, which have been considered by us one by one.
彭耀鴻資深大律師代表申請人提出四項上訴理由。本庭現逐一審視。

Ground 1
理據一

Ground 1 criticises the trial judge for wrongfully overlooking or failing to accord sufficient weight to a number of matters in considering the credibility of Tse’s testimony.  Mr Pang put forward five arguments to support this first ground.
理據一批評原審法官在考慮謝證供的可信性時，錯誤地忽略了多個事項，或沒有給予這些事項足夠比重。彭資深大律師提出5個論點以支持理據一。

Argument 1
論點一

First, Mr Pang commented that the evidence in the present case have inherent improbability in the following three regards potentially:
首先，彭資深大律師認為本案的證據潛在以下3 個固有不可能之處。

26.1Firstly, Mr Pang said that after Tse had requested the applicant to stop forex speculation and she ignored, he again gave specific instructions to tell her to stop but did not take any step to ensure her compliance.  Mr Pang criticised Tse’s act for being not only at variance with what a normal and reasonable superior would do but also illogical.  On the face of it, Mr Pang’s point seems reasonable, however, it just cannot stand if Tse’s evidence is considered thoroughly in its entirety.  The reasonable inference to be drawn from the undisputed part of Tse’s testimony was that Tse had trusted the applicant very much, otherwise, he would not have authorized her to deal with the Hang Seng current [account], Dah Sing fixed deposit accounts and Dah Sing forex account; and that he knew nothing whatsoever about margin trading and it was the applicant who suggested trading on margin and he wholly relied on her in operating the Dah Sing forex account.  In 2004, when he discovered the deficit of two million odd dollars resulting from margin trading, he still forgave the applicant and only told her twice to stop trading but did not withdraw the authorization given to her for handling the bank accounts, showing that he still trusted her.  Under such circumstances, it is understandable that Tse did not at that time take any step to ensure the applicant’s compliance with his instructions.
26.1第一，彭資深大律師指，謝要求申請人停止外滙炒賣後，她仍無視其指示，於是他再度發出明確指示要求申請人停止外滙炒賣，但他卻不採取任何措施去確保申請人聽從其指示。彭資深大律師批評謝的行為既不符合一個正常而合理上司的作為，也違反邏輯。表面看來，彭資深大律師的說法似乎有理，但若仔細考慮謝的整體證供，便知道他的立場不能成立。根據謝不具爭議的證供而得出的合理推論是，謝對申請人十分信賴，否則不可能授權她處理恒生往來賬戶平、大新定期賬戶及大新外滙賬戶；而他對孖展買賣全不熟悉，是申請人提議買賣孖展，而他亦全靠申請人操作大新外滙賬戶。當2004年他發現孖展買賣已虧損了兩百多萬，他仍然原諒申請人，只是兩次叫她停止買賣，但沒有從她收回處理銀行賬戶的授權，可見他仍然信任她。在這種情形下，謝當時沒有採取任何措施去確保申請人聽從其指示，是可以理解的。

26.2Secondly, [according to] Mr Pang, it was illogical that the applicant, while having no personal benefit, still continued with forex speculation despite Tse having already instructed her to stop on two separate occasions.  On the face of it, it seems that the applicant had not got any personal financial benefit by contravening Tse’s instructions and continuing with margin trading, but this does not necessarily mean that her behaviour was illogical.  As pointed out by trial judge, Tse highly appreciated the applicant’s knowledge in investment, and it might be due to her reluctance to accept failure that she disregarded Tse’s instructions.
26.2第二，彭資深大律師申請人在毫無個人得益的情況底下，仍然會無視謝兩度發出的指示而繼續外滙炒賣的指示，此舉不合邏輯。表面看來，申請人似乎沒有從違反謝的指示而繼續買賣孖展得到個人經濟得益，但這不等於她的行為是不合邏輯。正如原審法官指出，謝對申請人在投資方面的認識定是非常賞識，而她漠視謝的指令，可能是出於不服輸的心理。

26.3Thirdly, Mr Pang said that Tse could not have signed the form of applying to the bank for changing the address of his personal account from the Gainford address to the applicant’s residential address without noticing the nature of the document, and that the applicant would not have put herself at risk by [asking Tse] to sign the form in the hope that he would not notice its content.  Mr Pang criticized trial judge for being unreasonable in accepting Tse’s claim of having no knowledge about the change of the address of the account because when he signed the “address amendment form”, he might not notice that it was an application made to the bank for changing address.  Mr Pang further said that Tse had testified that his staff would put all the documents to be signed on his desk but would not explain the contents to him one by one, and he would read them by himself.  Moreover, given that an application for changing address was not a document of daily routine, the applicant’s act could have been revealed as long as Tse had paid a little attention to the content of the form before signing it, hence it did not make sense that the applicant would have taken such a big risk to ask Tse to sign that form.  In our view, there is nothing wrong for trial judge to accept Tse’s testimony.  According to his testimony, he did not necessarily know the content of the documents that he signed, thus it was not impossible that the applicant would have taken such risk.  Mr Pang argued in his oral submission that the applicant made the application for changing address on 18 November 2006 which was almost two years after Tse had given the applicant the instruction, and if the applicant had really contravened the instructions, she should have the address changed as soon as possible so as to disguise the truth.  Nevertheless, conversely, why did the applicant have to change the address if it was not for disguising the truth?  Even if the applicant’s version, namely Tse had told her to help hiding from other shareholders the loss in margin trading, was accepted, there was just no need to change the address because it sufficed that he simply told her to keep the monthly statements and renewal confirmations of fixed deposits away from them.  Making a change from the company address to the applicant’s personal residential address aroused suspicion even more easily.
26.3第三，彭資深大律師指，謝不可能在沒留意的情況下簽署了一份向銀行申請更改他個人戶口地址的表格，把地址從佳輝改為她個人的住址；而申請人亦不會冒險謝要求簽署該表格並希望他人不會留意表格內容。彭資深大律師批評，原審法官指謝在簽署「更改地址通知書」時，未必會留意那是一份向銀行申請更改地址的表格，因此接受謝對更改戶口地址不知情的說法，這是不合常理的。彭資深大律師又指，謝作供時指公司職員會把所有要簽署的文件交放到他桌面，但不會逐一向他講解內容，而他自己會閱讀的；再者，更改地址申請並非一般日常常用的文件，謝只要在簽署前稍稍留意表格內容，便會揭發申請人的行為，而申請人仍然會冒這樣大的風險要求謝簽署該表格，實是於理不合。本庭認為原審法官接納謝的證供沒有不妥之處。而根據他的證供，他對他所簽署的文件內容不一定會知道，申請人冒上剛才說的風險亦非不可能。口頭陳述時，彭資深大律師指出，申請人更改地址是在2006 年11月18日提出的，事隔謝給予申請人指示差不多兩年之久，申請人若真的有違反指示，理應盡快更改地址以隱瞞真相。但是，掉過頭說，若非要隱瞞事實的真相，申請人又可必要更改地址？即使接納申請人的說法，即謝叫她幫忙瞞著其他股東，不讓他們知道買賣孖展的損失，根本亦無需更改地址，因為只要叫她不讓他們看到銀行發出的月結單及定期續存書便可，把地址改從公司的地址為申請人的個人住址更容易惹人疑竇。

We find all the above points put forward by Mr Pang to support the inherently unreliability of the testimony fail.
本庭認為，彭資深大律師上述有關證供存在固有不可靠性的說法全不成立。

Argument 2
論點二

Mr Pang said in the second argument that the applicant had continued forex speculation with loss incurred could be easily seen on the contemporaneous documents, such as bank statements, which Tse all along could have obtained readily.  Tse, however has explained this in detail in his testimony.  He said that it was never his practice to personally open and read the mails sent directly from the banks to his company or those forwarded to his company by his “company secretary”, and the mails sent to his company would first be received by the Accounts Department and then passed to the applicant for her to open and read.  The applicant should pass documents required to be put into the accounts record to Wong.  Not only did Tse never open letters by himself, he just did not even know what mails he got.  The applicant had the authority to open and read all bank documents.  In our view, as pointed out by trial judge, had Tse directly checked each item of the breakdown in the Dah Sing forex account and given some thought, he might have been very clear of the real situation.  However, he was not even able to tell how many and what accounts he had with Dah Sing Bank when being asked.  Having taken care of his financial matters for years, the applicant definitely knew full well of his carefree attitude towards financial matters, and there was simply no need to worry that he would check the accounts on the computer by himself.
彭資深大律師的第二個論點是，申請人繼續參與外滙炒賣及蒙受損失一事在銀行結單等即時文件可一目了然，而謝一直可以輕易獲取該些銀行結單的。但是，謝在作供時已經就這方面作了詳盡的解釋。他說他從沒有親自拆閱由銀行直接寄去他公司的郵件或拆閱由他的「公司秘書」轉寄去他公司的郵件的習慣，而寄往他公司的郵件是會由會計部收妥後交予申請人拆閱。如果文件是需要入賬做紀錄的那一類，申請人便應交給王入賬。謝不但從不會親自拆信，他也不會知道有甚麼郵件寄了給他。所有銀行信件申請人都有權拆閱的。本庭認為，正如原審法官指出，如果謝直接查看大新外匯賬戶的每項明細並作出推敲，他也許會一清二楚真實的情況，可是他連自己在大新銀行有多少個賬戶或有甚麼賬戶他也答不出，申請人為他理財多年，對於他這鬆懈的理財方式自然瞭如指掌，那用怕謝會自己在電腦查賬。

Therefore, Mr Pang’s second argument fails.
因此，彭資深大律師第二個論點不成立。

Argument 3
論點三

Mr Pang’s third argument is that Tse has refused to answer some possibly self-incriminating questions in respect of certain offences, which must have an impact on the credibility of his testimony.  Mr Pang submitted as follow:
彭資深大律師的第三個論點是，謝拒絕回答可能在某些罪行上自證其罪（self-incriminating）的問題，這必定影響其證供之可信性。彭資深大律師的陳詞如下：

30.1Firstly, when a witness is asked some questions during cross-examination for his credibility to be assessed, which may be “self-incriminating”, the witness is entitled to exercise the right against self-incrimination and refuse to answer.  If that witness so decides, the court is entitled to draw adverse inferences against him: para 25 in the judgment of HKSAR v Smith, Ma Theresa Sanggalang, HCMA 246/2012, 18 January 2013 (unreported).
30.1首先，當一名證人在盤問下被問及一些測試其可信性的問題時，若該些問題有機會導致其「自證其罪」，該證人是有權行駛其「自證其罪」特權，拒絕回答該些問題。而若該證人決定行駛權利不回答問題，法庭有權作出對其可信性不利的推斷：HKSAR v Smith, Ma Theresa Sanggalang, HCMA 246/2012（未經彙報），2013年1月18日的判案書第25段。

30.2Further, that a person exercises the right to refuse to answer questions certainly affects the overall evidence of the case, in the sense that the completeness of the evidence is hampered.  In analyzing the credibility and reliability of a witness, the court needs to consider the evidence of the case in its entirety, and such analysis is therefore affected by the witness’s refusal to answer: para 72 in the judgment of HKSAR v Ying Jim Ming, Jimmy & Ors, HCMA 432/2009, dated 6 May 2010 (unreported).
30.2此外，證人行駛權利拒絕回答問題，必然對案件整體證供有所影響，令證供缺乏完整性。而法庭分析一名證人的可信可靠性時，需要考慮到案件整體證供，因此證人拒絕回答問題此舉必然影響法庭就其可信可靠性的分析：HKSAR v Ying Jim Ming, Jimmy & Ors, HCMA 432/2009（未經彙報），2010年5月6日的判案書第72段。

30.3As far as the present case is concerned, Tse exercised his right when being asked a series of questions involving falsifying documents in civil litigations and refused to answer all such questions for seven times.  Although he was entitled to do so, the refusal definitely affected the analysis made by the court on the credibility and reliability of his evidence.  First, Tse has refused to answer some questions relevant to his credibility, thereby deprived the court of the whole picture of the issue concerned.  Second, Tse gave evidence selectively, revealing his purposeful selective and calculating character and showing that he is one of those witnesses who prefer not telling the court the whole truth to carefully protecting himself.
30.3就本案情況而言，謝被問及一連串涉及在民事訴訟中造假文件的問題時行駛其權利，一律拒絕回答有關問題七次，雖然可行，但必然影響法庭對其證供可信可靠性的分析。第一，謝拒絕回答一些與其可信性有關的問題，導致法庭對有關議題缺少了一個全面的了解。第二，謝選擇性地作供，展示了其故意取捨、有計謀的一面，亦顯示他是會小心保護自己而不向法庭全盤托出的那類證人。

30.4After the court has given a witness warning against self-incrimination, if the witness elects to answer, he may face subsequent criminal prosecution; if the witness elects not to answer, he would certainly have to face criticism of the court for his election and accept being regarded by the court as an uncooperative witness withholding something, which would have an impact on the overall evidence of the party he is testifying for.
30.4當法庭給予一名證人警告提醒其免使自我入罪權利（warning against self-incrimination）後，該證人若選擇回答，他其後可能要面對被刑事起訴；若他選擇不回答，必然要面對法庭對他此舉的批評，接受法庭會視他為不合作或有所隱瞞之證人，對他代表一方的整體證供亦會有所影響。

30.5In fact, trial judge mentioned the following point when giving the warning against self-incrimination:
30.5其實，原審法官在給予免使自我入罪警告時提及到以下一點：

“Of course, whether you answer or not answer has its respective advantages; and that means whether you answer or not has its respective disadvantages … What are the pros and cons of giving an answer, and what are the pros and cons of not answering? Or what may be the implication in future, for example, I ── ‘Would the development of my matter as a whole be affected, or would I personally be affected?’ You may discuss with your lawyer.”
“固然，當然你答有答嘅好處，唔答有唔答嘅好處，即係答有壞處，唔答亦都有壞處…答有咩嘢好處、唔好處，唔答有咩嘢好處、唔好處呢？又或者日後有咩嘢牽連呢，譬如我──「會唔會影響到我成件事嗰個發展，或者影響到我個人呀咁呢？」你就可以同你律師傾。”

The above warning given by trial judge told us that election of not to answer had its disadvantages.  Among what trial judge said, “would the development of my matter as a whole be affected” must be referring to whether the prosecution case as a whole would be affected by a refusal to answer; and “I personally be affected” must be referring to whether giving an answer would be self-incriminating.  Nevertheless, trial judge in giving the verdict did not analyze how Tse’s credibility and reliability and the prosecution case as a whole were affected by his election of not to answer, and on the contrary, he said that Tse’s election of not to answer did not affect his credibility.
以上原審法官的警告道出了證人選擇不回答是有其壞處的。其中，原審法官所指的「會唔會影響到我成件事嗰個發展」必然是指不回答會否影響控方整體案情；而「影響到我個人」必然是指回答會否使自證其罪。可是，原審法官在裁決時，並沒有就謝不回答之選擇對其可信可靠性及控方整體案情之影響作出分析，反而說謝選擇不回答並不影響其可信性。

In response to Mr Pang’s suggestions in the above paras 30.1 and 30.2, the respondent said that the court could not draw any adverse inference against a witness who has refused to answer possibly self-incriminating questions and cited Wentworth v Lloyd (1864) 10 HL Case 589 in support.
對於彭資深大律師在上文30.1及30.2段的主張，答辯人的回應是，法庭不能因證人拒絕回答可能自證其罪的問題而作出對他不利的推論。答辯人引援Wentworth v Lloyd (1864) 10 HL Case 589以支持這論點。

In the course of testifying in court, a witness may exercise the common law privilege to refuse to answer possibly self-discriminating questions, which is a deep-rooted legal principle established for a long time: see Riberio PJ’s judgment at p156D-F in HKSAR v Lee Ming Tee & Another (2001) 4 HKCFAR 133.  This privilege is not only a principle of the law of evidence, but also the fundamental and substantial right of a witness, of which the importance is obvious.  When a witness testifies under oath in court, he must answer questions raised by the judge and both the prosecution and the defence, or he may be held in contempt of court; and in facing possibly self-incriminating questions, if he does not have the privilege to refuse to answer them, he would be put in a trilemma: (1) if the answer must be true, it might be self-incriminating; (2) it would be perjury if the answer is false; and (3) refusal to answer may lead to accusation of being in contempt of court.  This privilege not only protects the witness from criminal liability arising from his own testimony, but also ensures that he would not give false evidence or be held in contempt of court because of refusing to answer relevant questions.
在法庭上作證期間，一位證人可行使普通法所賦予的特權，拒絕回答可能自證其罪的問題，這是由來已久、根深蒂固的法律原則：見HKSAR v Lee Ming Tee & Another (2001) 4 HKCFAR 133，常任法官李義的判詞第156頁D-F行。這特權不僅是證據法的原則，更是證人基本及實質的權利，其重要性顯而易見。當一位證人在法庭上宣誓下作供，他必須回答法官和控辯雙方的問題，否則可能被指蔑視法庭；面對可能自證其罪的問題，若沒有拒絕回答這些問題的特權，他便會陷在三難之間：（一）若回答則必須說真話，這可能自證其罪；（二）若以假話回答便是作假證供；（三）若索性不回答，則可能被指蔑視法庭。這項特權不僅保護證人以免他因自己的證供招來刑責，亦能確保他不會作假證供或因拒絕回答相關的問題而被指蔑視法庭。

Since this is the essence of this important privilege, the court cannot, solely on the basis of the witness’s refusal to answer potentially self-incriminating questions, infer that his evidence is incredible or unreliable for the reason that his evidence is incomplete, otherwise the actual function of the privilege would be undermined.  If the court were bound to find a witness’s evidence incredible or unreliable because of his refusal to answer possibly self-incriminating questions, the witness might then choose to answer those self-incriminating questions (regardless of the truthfulness of the answers) in order to ensure the credibility of his evidence; and if he does so, he just cannot be protected by the privilege.  I therefore cannot accept Mr Pang’s proposition.
這既是這項重要特權的本質，法庭便不能單單因為證人拒絕回答可能自證其罪的問題，便以其證供缺乏完整性為理由，推斷他的證供不可信或不可靠；否則便會削弱這項特權的實際效用，因為若證人拒絕回答可能自證其罪的問題，法庭便必然認為他的證供是不可信或不可靠的，證人可能為了確保他的證供可信，選擇回答那些自證其罪的問題（無論答案是真是假都好），他若真的這樣做，便得不到特權的保障。因此，本庭不能接納彭資深大律師的主張。

Both cases cited by Mr Pang are of the Court of First Instance, which do not bind this court.  In any event, in those two cases, the Court of First Instance only held that trial judge may assess the credibility of a witness’s overall evidence by considering his refusal to answer possibly self-incriminating questions, however, this does not mean that the court has to infer a witness’s evidence to be incredible because he has refused to answer.
彭資深大律師所引援的兩個案例，都是原訟法庭的案件，對本庭無約束力。無論如何，在那兩件案件中，原訟法庭法官只是認為原審裁判官可以因證人拒絕回答可能自證其罪的問題，而考慮他證供整體的可信性，但這不是說法庭必然會因證人拒絕回答那些問題便推斷他的證供不可信。

On the other hand, we agree that when a witness refuses to answer possibly self-incriminating questions, his evidence may be incomplete as a whole, and therefore the court cannot be barred from drawing adverse inferences against him solely because he has exercised his privilege under common law.  In the case of Wentworth v Lloyd cited by the respondent, what is involved, inter alia, is legal profession privilege.  The House of Lord held the view that the court could not draw any adverse inference against the credibility of a witness who has exercised this privilege, or otherwise no one would dare to seek legal advice, as Lord Westbury has said:
另一方面，本庭認同當一位證人拒絕回答可能自證其罪的問題時，他整體的證供可能不完整，所以法庭不能單單因為他是行使普通法所賦予他的特權，就不能作出對他證供不利的推論。答辯人所引援的Wentworth v Lloyd一案，其中所涉及的是法律專業特權（legal profession privilege），上議院認為法庭不能因證人行使這特權便作出對他可信性不利的推斷，否則無人敢尋求法律意見，正如上議院法官Lord Westbury說：

“As Lord Brougham says, when speaking, in Bolton v The Corporation of Liverpool (1 Myl and K 94, 95), of the supposed right to compel the disclosure of such communications, ‘It is plain that the course of justice must stop if such a right exist.  No man will dare to consult a professional adviser with a view to his defence, or to the enforcement of his rights.’  The exclusion of such evidence is for the general interest of the community, and therefore to say that when a party refuses to permit professional confidence to be broken, everything must be taken most strongly against him, what is it but to deny him the protection which, for public purposes, the law affords him, and utterly to take away a privilege which can thus only be asserted to his prejudice.  I have been drawn aside from considering the facts of this case through an apprehension that the authority of the Master of the Rolls might be hereafter asserted as establishing what appears to me to be a most serious departure from the principles of the law of evidence applicable to professional confidence.”
“As Lord Brougham says, when speaking, in Bolton v The Corporation of Liverpool (1 Myl and K 94, 95), of the supposed right to compel the disclosure of such communications, ‘It is plain that the course of justice must stop if such a right exist.  No man will dare to consult a professional adviser with a view to his defence, or to the enforcement of his rights.’  The exclusion of such evidence is for the general interest of the community, and therefore to say that when a party refuses to permit professional confidence to be broken, everything must be taken most strongly against him, what is it but to deny him the protection which, for public purposes, the law affords him, and utterly to take away a privilege which can thus only be asserted to his prejudice.  I have been drawn aside from considering the facts of this case through an apprehension that the authority of the Master of the Rolls might be hereafter asserted as establishing what appears to me to be a most serious departure from the principles of the law of evidence applicable to professional confidence.”

Wentworth v Lloyd did not have the so-called legal principle laid down as suggested by the respondent.  Therefore, we cannot accept the respondent’s proposition either.
Wentworth v Lloyd一案並無有定下如答辯人所謂的法律原則。因此，本庭也不能接納答辯人的主張。

In our view, when a witness declines to answer possibly self-incriminating questions, the court may consider and determine if his overall evidence would be affected by looking at the actual situation of the case.  On one hand, the court has to recognise that the witness is perfectly entitled to enjoy such privilege and cannot infer that he is untrustworthy or unreliable solely because he has declined to answer those questions; on the other hand, the court has to realise that the witness’s testimony may be incomplete to a certain extent and this may affect the analysis and assessment made by the court on his evidence as a whole.  It all depends on the actual situation of the case.  In general, if the questions concerned are irrelevant to the dispute(s) in the case, the court would be slow in drawing adverse inference against the witness, however, if the questions are relevant, then the court may consider and determine whether this would affect the credibility of his evidence as a whole by looking at the actual situation.
本庭認為，當證人拒絕回答可能自證其罪的問題時，法庭可以根據案件實際的情況而考慮及決定這會否對他整體證供有影響。一面，法庭要確認證人絕對有特權這樣做，不能單單因他拒絕回答那些問題便推斷他不可信或不可靠；另一面，法庭亦要知道在某程度上說，證人的證言可能並不完整，因而可能影響法庭對他整體證供的分析及評估。一切視乎實際情況而定。一般說來，若有關的問題和案件的爭議無關，法庭不會輕易對證人作出不利的推斷，但若問題和案件的爭議有關，則法庭可根據實際情形考慮和決定是否影響他證供的可信性。

In the present case, the questions that Tse refused to answer were only related to other civil litigations, which, although were relevant to his honesty, were asked merely for testing the credibility of his testimony.  It was the trial judge’s view that Tse’s election of not to answer those questions did not affect the credibility of his testimony.  We find that trial judge as the judge of facts was perfectly entitled to make such a finding.
在本案中，謝選擇不回答的問題都只是有關於其他的民事訴訟，雖然都和他是否誠實有關，但問這些問題的目的純粹是測試他證詞的可信性，原審法官認為謝選擇不回答那些問題並沒有影響到謝證詞的可信性。本庭認為原審法官作為事實裁斷者，絕對有權作出這樣的裁斷。

Therefore, Mr Pang’s third argument fails.
因此，彭資深大律師第三個論點不成立。

Argument 4
論點四

Mr Pang’s fourth argument was that when Tse was asked why he did not request the applicant to explain after discovering the applicant had ignored his instructions and continued with forex speculation, he repeatedly avoided the questions and beat around the bush, indicating that he must be untrustworthy.  When Tse was being cross-examined by the trial judge, the trial judge obviously found those questions important and pertinent and that Tse deliberately refused to answer them, however, in his reasons for verdict, he found “the way how [Tse] responded in court was not completely unreasonable”.
彭資深大律師的第四個論點是，謝在被問及為何發現申請人無視其指示繼續炒賣外滙後，並沒有要求申請人作出解釋時，他多次迴避問題，並且轉彎抹角，此舉必然顯示謝並不可信。原審法官在盤問謝的時候明顯認為該些問題是重要而到題的，亦明顯認為謝是故意不作答，但到裁決理由時，卻認為謝「在庭上的回應方式並非全不合理」。

Tse’s evidence is in fact very clear.  When Tse first found out the applicant had not complied with his instructions, he did dress her down but did not request her to explain why she had “disobeyed the order”.  When being asked if he had requested for any explanation, he was not evasive.  His answer was “No”.  As to why no explanation was requested, he also responded spontaneously.  He said he at that time thought that the loss could not be reverted and that he himself should also be held responsible because he had at the beginning given the applicant the “power to place orders”.  At that time, he forgave the applicant.
謝的證供其實十分清晰。當謝首次發現申請人沒有聽從他的指示時，他有怪責申請人但並無要求她解釋為甚麼她「抗旨」。他並沒有迴避他有否要求解釋。他的答案是：「冇」。至於為什麼不要求解釋，他也即時作出了回應。他說他當時心態是輸了便輸了，他本人也有些責任，因為一開始是他給申請人「落盤權」的。當時他原諒了申請人。

Therefore, Mr Pang’s fourth argument fails.
因此，彭資深大律師第四個論點不成立。

Argument 5
論點五

Mr Pang’s fifth argument was the obvious difference between the testimonies of Tse and Wong on the issue of whether there had been a meeting of three in late November 2004.  The former said the applicant was requested to stop speculating in the market in that meeting of three, but the latter said there was no such meeting.
彭資深大律師第五個論點是，就有否在2004年11 月底舉行三人會面的課題上，謝和王的證供有明顯分歧，前者說的確曾在那次三人會面中要求申請人停止炒賣，而後者則指該三人會面並無發生。

In our view, trial judge must have his reasons for accepting Tse’s evidence, and we are in no position to intervene.  Therefore, Mr Pang’s fifth argument fails.
本庭認為，原審法官接納謝的證供，自有其理由支持，本庭沒有立場可以干預。因此，彭資深大律師第五個論點不成立。

In light of the above reasons, Ground 1 fails.
基於上述理由，理據一不成立。

Ground 2
理據二

Ground 2 criticises trial judge for wrongfully suggesting that Wong did not have a clear memory on the issue of whether there had been any meeting of three while in fact Wong clearly specified in his testimony that there had been no such meeting.
理據二批評原審法官錯誤地指出王對有否舉行三人會面的課題沒有清晰的記憶，而事實上他作供時清晰明確地指出該三人會面並無發生。

Actually, in the cross-examination of Wong, he was never asked if, as he could remember, there had been any “meeting of three”.  Instead, he was only asked about the circumstances under which Tse told him about the Dah Sing forex account.  Wong never said that it was a meeting.  He could not even remember if there was any colleague near him.  The trial judge thought that since Wong no longer had any clear recollection of the details of the event, it was not unsafe to say so.
其實，王在盤問中並沒有被問及在他記憶裡曾否有一個“三人會議”。王在盤問中只被問到的是謝向他講述大新外匯賬戶時的情況。王從沒有說那一次是一個會議。他連有沒有其他同事在他附近也記不到。原審法官認為由於王對事情的細節已無清晰記憶，這說法並無不穩妥之處。

Ground 2 fails.
理據二不成立。

Ground 3
理據三

Ground 3 criticises the trial judge for wrongfully justifying the deficiencies of or inherent improbabilities in the prosecution case or Tse’s evidence and those justifications lacked evidential basis.
理據三批評原審法官錯誤地為控方案情或謝證供的不足或固有不可能的地方作出解釋，而該些解釋是沒有證據基礎的。

Mr Pang puts forward four points:
彭資深大律師指出4點：

49.1In his testimony, Tse first said he had not mentioned to other shareholders about using Gainford’s reserve to trade forex on margin, and subsequently changed to say that he had.  As to the defence’s attack on such contradiction in this part of the testimony, the trial judge said that Tse who had a shareholding of 80% did not necessarily remember or concern if other shareholders had been informed, which in fact has never been PW1’s explanation.
49.1謝作供初時指其沒有向其他股東提及使用佳輝的儲備來買賣外滙孖展，其後改口說曾向他們提及，就辯方對這證供上的矛盾的攻擊，原審法官指謝持股80%，未必記得或深究其有否知會其他股東，但事實上控方第一證人從未以此作解釋。

49.2Tse claimed that by looking at exhibit P16(61) or P27 (Cash Position Report), one would know Gainford’s forex account  had suffered loss in the speculation in the market, but in fact, these two documents alone could tell no detail of the forex account.  The defence suggested this showed that Tse had other materials which enabled him to privately know the loss in speculation through the forex account.  However, the trial judge just by conjecture said that Tse “sometimes would ask [Wong] to provide other documents or explain some of the details which were not set out in the documents” without specifying what documents Wong had provided or what factual basis he relied on.
49.2謝聲稱從證物P16(61) 或證物P27（現金流表）可知佳輝外滙戶口有炒賣損失，但事實上單看這兩份文件並不會得知外滙戶口的詳情，辯方指這顯示謝有其他資料令他私下知道外滙戶口有炒賣損失，而原審法官卻推測他「有時會要求［ 王 ］提供其他文件或解釋一些文件上沒有列出的詳情」，原審法官既沒有指出王是提供甚麼文件，亦沒有指出其依賴甚麼事實基礎。

49.3When Tse was being asked about his litigations in the mainland, he said he did not care if he won or lose or had any memory.  The defence contended that it was unreasonable to say so, and in the absence of any evidential support, the trial judge found that Gainford was well financed and those litigations in the mainland did not involve much money, and thus Tse did not need to be over-concerned.
49.3當謝被問及其內地官司的事項時，他指自己對輸贏不聞不問或無記憶，辯方認為這說法並不合理，而原審法官卻在沒有證據支持的情況下指佳輝財政充裕，而那些內地官司涉及數額不大，謝不需要太著緊。

49.4As to why the applicant had hidden the ongoing forex speculation from Tse without any benefit, the trial judge said the applicant was “unwilling to admit failure and hoped that she could win back the loss” but in fact there was never any evidence in this regard.
49.4就申請人為何會在沒有得益的情況下瞞著謝繼續炒賣外滙，原審法官指申請人「無非是不服輸心態作崇，期望收復失地」，但事實上本案從沒有這方面的證據。

In our view, these challenges on Tse’s evidence are in such bits and pieces that we are not going to deal with them one by one.  There is overwhelming evidence in the present case, which has never been disputed by the applicant and is sufficient to support the truthfulness of what Tse has said.
本庭認為，這些對謝證供的攻擊都是比較零碎，本庭不擬逐一處理。本庭認為，本案存在強而有力並且是申請人從不爭議的證據，足以支持謝的說法屬實。

On 28 May 2010, Tse, Tse Chun Kei, Wong, the applicant and her husband, five of them, had a meeting, and Tse Chun Kei made an audio recording.  According to the transcript of the audio recording, Tse said that back in late 2004, he had already told the applicant to stop speculation and also requested her to give an account for the serious loss caused to the company, and the applicant and her husband agreed to consider making compensation, which is consistent with Tse’s testimony in court.  Furthermore, it would be unreasonable that the applicant did not explain or clarify in the meeting if the applicant’s version was true, and it would make no sense at all that the applicant had to help Tse continue to hide the truth when Tse criticised her for not complying with his instructions of stopping speculation in the market and requested her to give an account and compensation.  The only irresistible inference is that Tse’s version is true and the applicant’s false.
2010年5月28日，謝、謝俊基、王、申請人和她的丈夫舉行五人會議，謝俊基把會議錄音。根據錄音謄本，謝曾提到2004年底已叫申請人停止抄買，他又要求申請人對公司做成的嚴重損失作出交代，而申請人及她的丈夫同意考慮作出賠償。這與謝作證時所說的吻合。再者，若申請人的說法屬實，她斷沒有理由不在會議中道明原諉，而當謝指責她沒有依其指示停止抄買，又要求她交代和賠償時，她更沒有理由要幫謝繼續隱瞞真相。唯一及無可抗拒的推論是，謝的說法是真的，申請人的說法是假的。

Ground 3 fails.
理據三不成立。

Ground 4
理據四

Ground 4 is a consolidated ground and cannot help bringing the applicant’s case any further.  In our view, the conviction of the applicant is neither unsafe nor unsatisfactory.
理據四是綜合的理由，對申請人沒有進一步的幫助。本庭認為，申請人的定罪並無不安全或不穩妥之處。

Ground 4 fails.
理據四不成立。

Conclusion
結論

With none of the grounds of appeal established, the application is refused.
因為上訴的理據無一成立，本庭拒絕申請人的申請。

Ms Virginia Lau, Acting Senior Assistant Director of Public Prosecutions, of the Department of Justice, for the respondent
答辯人：由律政司署理高級助理刑事檢控專員劉少儀代表。

Mr Robert Pang SC and Ms Alison Choy, instructed by Messrs Chan & Tsu, for the applicant
申請人：由陳崔律師事務所轉聘彭耀鴻資深大律師及蔡悅兒大律師代表。