Hon Chu J (giving the reasons for  of the Court):
由高等法院原訟法庭法官朱‍芬‍齡頒發上訴法庭判案理由書：

The Applicant was charged in the District Court with one count of conspiracy to defraud, contrary to common law and sections 159E(2) and 159C(6) of the Crimes Ordinance, Cap. 200. He pleaded not guilty and was convicted after trial. On 27 June 2006, he was sentenced to 6 years’ imprisonment.
申請人在區域法院被控一項串謀詐騙罪，違反普通法，《刑事罪行條例》第 200 章第 159E(2)和159C(6)條。他否認控罪，經審訊後被判罪名成立，在2006 年6 月27 日被判入獄6 年。

The Applicant applied for leave to appeal against conviction and sentence.
申請人不服定罪和刑罰，申請上訴許可。

At the hearing, the Applicant abandoned his application for leave to appeal against conviction, which was accordingly dismissed.
由於申請人在本聆訊時放棄有關定罪的上訴許可申請，該申請為本庭撤銷。

The facts
案情

The present case involves a fraudulent scheme in which a shell company was set up and dishonoured cheques were issued for the purpose of dishonestly obtaining goods from suppliers. A total of 19 suppliers had been defrauded, and the total value of the goods obtained was over $7 million. The facts as found by the trial judge are outlined below.
本案是一宗以成立空殼公司和開出不能兌現支票的手法，向貨物供應商詐騙貨物的案件。控罪共涉19 名供應商，被騙貨物總值700 多萬元。經原審法官裁定的事實可簡述如下。

In September 2003, the Applicant and one Cheung Tung Wah (張‍東‍華) (“Cheung”) set up a company called Shun Bo Enterprise Limited (transliteration) (信寶實業有限公司) (“Shun Bo”). The Applicant and Cheung were the shareholders and sole directors of Shun Bo. In November of the same year, the Applicant and Cheung opened two current bank accounts and they were both authorized signatories of those accounts. The Applicant and Cheung gave false addresses when they applied for the company registration and business registration of Shun Bo and when they opened the said bank accounts.
2003 年9 月申請人與一位名為張‍東‍華的人成立了信寶實業有限公司(“信寶”)。申請人和張‍東‍華是信寶的股東，亦是唯一的兩名董事。同年11 月，申請人和張‍東‍華在銀行開設了兩個往來賬戶。他們兩人是該等賬戶的授權簽名人。在辦理信寶的公司註冊及商業登記和開設銀行賬戶時，申請人和張‍東‍華都提供了虛假的住址。

Between April and July 2004, the conspirators (as particularised in the charge) contacted suppliers in the names of the Applicant and Cheung and ordered goods from them under the name of Shun Bo. The goods were delivered between late June and early July of that year. Shun Bo purported to pay for the goods by issuing cash cheques or post-dated cheques to the suppliers. All those cheques were to be drawn upon the said bank accounts and most of the cheques were signed and issued on Friday 9 July 2004.
在2004 年4 月至7 月期間，控罪詳情提及的串謀者，並以申請人和張‍東‍華的身份與供應商接洽，以信寶的名義向他們訂購貨物。貨物在同年6 月底及7 月初交付。信寶向這些供應商開出現金支票或期票，以支付貨款。這些支票都是由上文提及的銀行賬戶發出，而且大部分都是在2004 年7 月9 日(星期五)簽發的。

On 12 July 2004, the only employee of Shun Bo went to work as usual but discovered that everything in the company had been moved away. The suppliers were informed on the same day that none of the said cheques was honoured. And some of the suppliers were yet to collect the cheques when the office of Shun Bo was vacated.
2004 年7 月12 日當信寶的唯一職員上班的時候，發覺公司所有的物品全被搬空。同日，供應商獲悉支付貨款的支票全數不能兌現。亦有部分供應商在信寶人去樓空前未及拿到支付貨款的支票。

The Applicant was subsequently arrested. He made a cautioned statement in which he admitted he had signed blank cheques on a number of occasions and confirmed that all the dishonoured cheques were issued by Cheung and him. He also said in his statement that he and Cheung had been friends for years and that it was by reason of the trust he had in Cheung that he agreed to assist one Yuan Wan Hoi (袁‍雲‍海), a friend of Cheung’s, in setting up Shun Bo and the bank accounts for a remuneration of $5,000 per month.
申請人在被捕後，於警誡下作出供詞。他承認多次簽發空白的支票，亦確認所有不能兌現的支票都是經由他和張‍東‍華簽發的。申請人在供詞中同時稱與張‍東‍華是多年朋友，因為相信他，故此同意以每月5,000 元的酬勞，協助張‍東‍華的朋友袁‍雲‍海開設信寶和相關的銀行賬戶。

Sentence by the trial judge
原審法官的判刑

The Applicant, now aged 45, is a married man with two daughters who have come of age. He has a clear record.
申請人現年45 歲，已婚，有兩名已成年的女兒。他過往沒有干犯刑事罪行的記錄。

When passing sentence, the trial judge pointed out that the present case involved a premeditated fraudulent scheme and that the circumstances of the offence were very serious. The judge took the view that the value of the goods obtained was an important sentencing consideration which would be indicative of the length of sentence. Having considered the sentencing guidelines in R. v. Trevor Clark (1998) 2 Cr App R 137 and Secretary for Justice v. Wong Kay Din, CAAR 7/1998 which laid down tariffs on the basis of the amount defrauded, and taking into account the mitigating circumstances submitted on behalf of the Applicant, the trial judge sentenced the Applicant to 6 years’ imprisonment.
原審法官在判刑時，指出本案是一宗處心積累的行騙案，情節是非常嚴重。他認為涉案貨物的價值是一個重要的量刑考慮因素，對刑期的長短可產生指標的作用。經參閱R. v. Trevor Clark (1998) 2 Cr App R 137和Secretary for Justice v. Wong Kay Din, CAAR7/1998案中所提及以行騙金額作基準的量刑指標，以及辯方提出的求情因素後，原審法官作出6 年監禁的判刑。

First ground of appeal
第1項上訴申請理由

The Applicant’s first ground of appeal is that the trial judge had erred in principle by applying the sentencing guidelines for cases involving a breach of trust.
申請人的首項申請理由指原審法官引用破壞誠信的判刑準則，犯了原則上的錯誤。

There is no doubt that the present case is one of commercial fraud involving no breach of trust. It is also true that the two cases of R. v. Trevor Clark and Secretary for Justice v. Wong Kay Din referred to by the trial judge, as well as HKSAR v. Cheung Mee Kiu [2006] 4 HKLRD 776, a case cited by Mr. Cheung at this hearing, are all cases involving a breach of trust. However, the reason why the trial judge referred to those cases was that he thought those cases showed that the value of the property obtained could be a guide to sentencing. The trial judge also pointed out that the Applicant was no less culpable than an offender in an ordinary breach of trust case because he conspired with others to perpetrate a well-planned fraud that involved setting up a company for the purpose of gaining the trust of the suppliers and then deceiving them.
無疑本案在本質上是一宗商業騙案，當中不涉破壞誠信。此外，原審法官參考的兩宗案例——R. v. Trevor Clark和Secretary for Justice v. Wong Kay Din，以及張‍大律師在本申請中援引的HKSAR v. Cheung Mee Kiu [2006] 4 HKLRD 776案，都是一些涉及破壞誠信的案件。然而原審法官之所以提及這些案例，是因為他認為這些案例顯示涉案財物的價值可作為量刑的指標。原審法官亦指出申請人及串謀者成立公司，有計劃地去騙取供應商的信任，從而進行詐騙，因此就刑責而言，不低於一般破壞誠信的罪行。

In his Reasons for Sentence, the trial judge further stated that, regardless of whether the cases he cited were appropriate sentencing guidelines for the present case, the value of the goods dishonestly obtained should be an important sentencing consideration in the present circumstances, which involved a substantial amount of over $7 million.
原審法官在判刑理由書中進一步說明，不管他所提及的案例是否適合作為量刑指標，單就本案的情況而言，被騙取的貨物的金額應該是一個重要的考慮因素，因為700 多萬元是相當大的數目。

In our view, the trial judge clearly knew that the present case did not involve any breach of trust, and he adopted R. v. Trevor Clark and Secretary for Justice v. Wong Kay Din only to the extent of taking the value of the property obtained by deception as indicative of the sentence. In this respect, he had not erred in principle. As the trial judge emphasized, this was a premeditated and organized commercial fraud which took place for nearly 10 months and resulted in the loss of goods with a total value in excess of $7 million. This was a very serious offence. One can never overstate the harm that commercial frauds of this nature can inflict upon Hong Kong’s status as an international commercial and trade centre.  These are all aggravating factors.
本庭認為原審法官是清楚知道本案不涉破壞誠信。本庭認為他採納R. v. Trevor Clark和Secretary for Justice v. Wong Kay Din案的做法，祇是以被騙財物的價值作為量刑的參考指標，這點並沒有犯上原則上的錯誤。如原審法官所強調，這是一宗經過部署、有計劃的商業詐騙，當中歷時近10 個月，而且涉及的貨物損失超過700 萬元，是很嚴重的案件。而且這些商業騙案對作為國際商業和貿易中心的香港會造成莫大的損害。這些都加重了本案的嚴重性。

Mr. Chan cited the judgment of the Court of Appeal in R. v. Chow Tat Ming [1997] HKLRD 353 to support his contention that the sentence imposed by the trial judge was excessive. The defendant in that case was charged with 10 counts of obtaining property by deception and 5 counts of theft. The particulars alleged that he obtained, within one month, jewellery with a total value of over $6.8 million by deception, namely by using cheques which were subsequently dishonoured. The Court of Appeal held that, in view of the value of the lost property and the defendant’s culpability, a starting point of 5 years’ imprisonment was appropriate.
陳‍大律師向本庭提出上訴法庭在R. v. Chow Tat Ming [1997] HKLRD 353案的判決，以支持他指原審法官量刑過重的立場。在該案中，被告人被控10 項以欺騙手段取得財物罪和5 項盜竊罪。控罪指他在一個月間以不能兌現的支票騙取價值逾680 萬元的珠寶。上訴法庭認為按財物損失金額和被告人的刑責，以5 年作為量刑起點是合適的。

On the facts in the present case, including the number of suppliers involved and the value of the goods lost, we consider that a term of 6 years’ imprisonment upon conviction after trial is on the high side but not manifestly excessive.
本庭認為以本案的情況而言，包括所涉供應商的數目和損失貨物的價值，經審訊後判以6 年監禁雖是偏高，但並非明顯過高。

The first ground of appeal therefore fails.
首項申請理由不成立。

Second ground of appeal
第2項上訴申請理由

The Applicant’s second ground of appeal is that, when passing sentence, the trial judge had not duly considered that fact that the Applicant had agreed to a substantial body of facts, thereby sparing the prosecution the need to adduce evidence and saving time.
申請人的第2 項申請理由指原審法官在判刑時，沒有適當考慮申請人在審訊時同意了大量案情，從而節省控方舉證的時間。

It is true that at trial the Applicant agreed to a large part of the suppliers’ evidence and did not dispute the voluntariness of his cautioned statement, and this obviated the need for the suppliers to testify in court and therefore saved the court’s time. However, whether this constitutes a mitigating factor will depend on circumstances of the particular case: see HKSAR v. Lam Tsz Leung [2006] 2 HKC 295, at 316, paragraph 49.
申請人在審訊時確是同意了大部分供應商的證人供詞，亦沒有爭議他在警誡下作出的供詞是自願作出。誠然，申請人此舉省卻了這些供應商出庭作供的麻煩，亦節省了審訊的時間。然而，這是否構成減刑因素，須視乎個別案件而言：HKSAR v. Lam Tsz Leung [2006] 2 HKC 295，316第 49 段。

In the present case, the trial judge made it clear for sentencing purposes that he had taken into account that much of the evidence before him had been agreed by both the prosecution and the defence, but in view of the gravity of the case and the amount involved, he held that a sentence of 6 years’ imprisonment should be imposed. We see nothing improper in his reasoning and conclusion in this respect.
在本案中，原審法官在量刑時明確表示他已考慮到案中很多證供是透過控辯兩方同意而呈堂，但有鑑於案件嚴重和涉案金額，他認為應判予6 年監禁。本庭認為原審法官在這方面的考慮和結論，並無不妥。

The second ground of appeal also fails.
第 2 項申請理由不成立。

Third ground of appeal
第3項上訴申請理由

The third ground of appeal is that the Applicant was not the mastermind and his participation was confined to setting up Shun Bo and signing blank cheques at the initial stage. He had not contacted the suppliers to deceive them.
第 3 項申請理由指申請人並非主謀，他祇參予前期成立信寶和簽發空白支票的工作，而沒有與供應商聯絡，騙取貨品。

This ground was put forward as a mitigating factor at trial but was not accepted by the trial judge. We consider that the Applicant was an indispensable part of and played a significant role in the fraudulent scheme. Whether he was the mastermind had no relevance to his culpability.
申請人這項減刑理由，在審訊時已提及，但不為原審法官所接納。本庭認為，申請人是整個騙局中不可或缺的一員，扮演著重要的角色。至於他是否主謀，對他的刑責沒有重大的影響。

This ground of appeal fails.
這項申請理由不成立。

Fourth ground of appeal
第4項上訴申請理由

The fourth ground of appeal is that the trial judge, having overlooked the point that the Applicant had been manipulated into setting up Shun Bo and his name had subsequently been borrowed by the conspirators to perpetrate the fraud, mistakenly imputed the whole scheme to the Applicant.
第 4 項申請理由指原審法官忽略了申請人是被人利用來開設信寶，以及串謀者其後借用申請人的名字進行詐騙，因此錯誤地把整個騙局歸咎申請人。

However, the Applicant did not give evidence at trial. The relevant record of interview showed that he had provided exculpatory explanations, including that he had misplaced his trust on Cheung, but these explanations were not accepted by the trial judge. As a matter of fact, in convicting the Applicant, the trial judge found that the Applicant was well aware from the very beginning that Shun Bo was set up for the purpose of perpetrating fraud. The trial judge also found that the conspirators’ subsequent use of the names of the Applicant and Cheung in contacting suppliers and purchasing their goods was part and parcel of the whole fraudulent scheme. For these reasons, the fact that the Applicant had not directly contacted suppliers did not reduce the Applicant’s culpability or constitute a mitigating factor.
然而，申請人在審訊時沒有作供。他在會面記錄中為自己開脫而作的解釋，包括他誤信張‍東‍華的說法，亦不獲原審法官信納。事實上，原審法官在定罪時，裁定申請人自始便知悉成立信寶的目的是為進行詐騙。至於後期其他串謀者以申請人和張‍東‍華的身份與供應商聯系和洽購貨物，原審法官裁定這是整個詐騙的一部分。是故，申請人沒有直接接觸供應商不構成減輕刑責或減刑的原因。

The fourth ground of appeal also fails.
第 4 項申請理由亦不成立。

Conclusion
總結

For the above reasons, we dismiss the Applicant’s application for leave to appeal against sentence.
基於上述理由，本庭拒絕申請人就判刑方面的上訴許可申請。

Mr. Patrick Cheung, Deputy Principal Government Counsel, and Miss Sally Yam, Senior Government Counsel, for the HKSAR.
控方：由律政司副首席政府律師張維新及高級政府律師任可代表香港特別行政區。

Mr. Chan Siu Ming, instructed by Yaddy Cheung & Co., for the Applicant.
辯方：由張雅棣律師行轉聘陳銚明大律師代表申請人。