Hon Cheung JA (delivering the Reasons for Judgment of the Court):
上訴法庭法官張澤祐頒發上訴法庭判案理由書：

The Applicant was charged with one count of “theft”, contrary to section 9 of the Theft Ordinance (“Ordinance”) (Cap 210 of the Laws of Hong Kong).
申請人被控一項「盜竊罪」，違反《盜竊罪條例》 （‘《條例》’）（香港法例第 210 章）第 9 條。

The Applicant was convicted after trial by District Judge Li and was sentenced to imprisonment for 2½ years.  She applies for leave to appeal against both conviction and sentence.  She is represented by Mr Chan Siu-ming of Counsel in the application regarding conviction and acts in person in the application regarding sentence.
案件經區域法院李瀚良法官審理後，申請人被裁定罪名成立及判處兩年半監禁。申請人就定罪及刑期提出上訴許可申請。有關定罪的申請由陳銚明大律師作為她的代表，而刑期的申請則由申請人親自處理。

Prosecution Case
控方案情

According to the prosecution case, the applicant, being the wife of PW1’s brother, was PW1’s sister-in-law.  They used to be on good terms, with  the applicant often looking after PW1 who suffered from mental illness.  PW1 owned a bank account with a deposit of about $1,000,000.00.  PW1 was ill and had to stay in the hospital.  In order to make it more convenient for the applicant to handle matters relating to the said bank account, PW1 suggested having the applicant’s name added to the bank account with either one of them being authorized to make withdrawals from the account by herself.  The applicant agreed to PW1’s suggestion.  Subsequently, as PW1 had to be hospitalized again, she handed to the applicant for safe custody the passbook and ATM card of the said bank account to which the applicant’s name had been added.  When PW1 was discharged from the hospital, the applicant returned the passbook and ATM card to her.  By that time, the deposit of $1,000,000.00 had in fact been withdrawn by the applicant, but PW1 did not realize this at once.  Subsequently, PW1 found that only $3,000 remained in her bank account, but she did not suspect the applicant and instead went with her to the police station to make a report.
控方案情顯示申請人與第一控方証人是姑嫂關係。申請人是第一控方証人的嫂嫂，兩人關係良好，申請人經常照顧患有精神病的第一控方証人。第一控方証人擁有一個存款約 $1,000,000.00 的銀行戶口。第一控方証人因病要在醫院留醫，她為方便申請人替她處理戶口事宜，因而提議在該戶口加入申請人的名字，兩人中任何一人都有權提款。申請人同意第一控方証人的建議。後來，第一控方証人因再次要在醫院留醫，而將已加入申請人名字的戶口存摺和提款咭交給申請人代為保管。第一控方証人出院後，申請人將她的存摺和提款咭交還給她，其實此時戶口內的 $1,000,000.00 存款已經被申請人提取了，但第一控方証人沒有即時察覺此事。第一控方証人其後發現戶口只剩下 $3,000，但她還未對申請人產生懷疑，並與她一同到警署報案。

PW1 said she had never promised to lend money to the applicant or authorized her to use the money in her bank account. Under cross-examination, PW1 indicated that she was prepared to lend money to the applicant if the applicant made such a request.
第一控方証人說她從沒有答應過她會借錢給申請人，也沒有授權她可動用戶口內的款項。第一控方証人在接受辯方盤問時表示若申請人問她借錢，她是會答應的。

Shortly after she accompanied PW1 to make a report to the police, the applicant went to the police station alone and admitted to the police constable who had previously handled the case that she had withdrawn the money from the bank account without PW1’s consent.  Thereafter, a number of recorded interviews were conducted with the applicant, who admitted that she had withdrawn the $1,000,000.00 from PW1’s bank account without PW1’s consent.
申請人在陪同第一控方証人報案後不久單獨到警署，並向早前處理該案件的警員承認她是在沒有得到第一控方証人同意情況下提取了戶口的存款。之後，申請人作出了多份會面記錄，並承認她是在未經第一控方証人的同意下擅自提取她戶口內的 $1,000,000.00。

The applicant’s evidence
申請人的証供

The applicant alleged that the confession statement was not made by her voluntarily.  She testified that at the material time her business was suffering a deficit and facing problems with cashflow.  In addition, she had to look after PW1.  As a result, she felt stressed-out.  When PW1 knew about her situation, she gave her the passbook and indicated that she could use the money in the bank account.
申請人指有關的招認口供並非在她自願的情況下作出的。她供稱她當時經營的生意出現虧蝕，資金週轉不靈，又加上要照顧第一控方証人，所以感到壓力很大。當第一控方証人知道她的情況後，便將存摺交給她，並向她表示她可動用戶口內的款項。

The Judge’s findings
李法官的裁決

The Judge found that the confession statement made by the applicant to the police was voluntary.  He accepted PW1’s evidence that she had not given any consent to the applicant to use the money in the bank account.  He did not accept the applicant’s evidence that she used the money in the bank account to repay business debts.  The Judge took the view that the applicant’s evidence was incredible and that she had withdrawn the money in question without PW1’s consent.  The Judge held that the applicant’s act was dishonest.
李法官裁定申請人向警員作出的招認口供是出於自願的。李法官接納第一控方証人的証供，她沒有同意讓申請人運用戶口的存款。李法官不接納申請人將戶口的款項來償還生意上的欠債的証供。李法官認為申請人的供詞不可信，她是在沒有取得第一控方証人的同意下提取有關款項的。李法官裁定申請人的行為是不誠實的。

The issue of “dishonesty”
「不誠實」的爭議

The only ground of appeal that the applicant has put forward relates to the issue of whether or not she was dishonest.  The applicant relies on section 3(b) of the Ordinance:
申請人提出的唯一上訴理由是有關她是否不誠實的爭議。申請人依賴《條例》第 3(b) 條：

On this issue, the Judge made the following finding:
李法官就這項爭議點作出以下裁決：

Mr Chan for the applicant submits that, in holding that the applicant could not rely on section 3(b) as her defence, the Judge erred by merely focusing on the point that it was not by reason of business debts that the applicant used the money in the account.  PW1 testified that if the applicant were in financial difficulties, she would lend money to her; what PW1 said was not confined to business debts but encompassed all sorts of financial difficulties.  Furthermore, the evidence showed that the applicant was in fact under financial difficulties.  The Judge, it is submitted, erred in completely failing to consider whether she could rely on section 3(b) and hence failing to further consider on that basis whether she had been dishonest.  Mr Chan submits that such an error rendered the conviction unsafe and unsatisfactory.
陳大律師指李法官只是着重申請人不是因生意債務動用該戶口的款項而裁定申請人不可以依賴第 3(b) 條作為辯護理由是錯誤的，因為第一控方証人曾作供說，如申請人有經濟困難，她是會借錢給她的。第一控方証人所說的並不只局限於生意債務，而是任何形式的經濟困難，況且証供顯示申請人事實是有經濟困難的，原審法官完全不考慮她可否引用第 3(b) 條是犯了錯誤，即沒有在此基礎上再考慮她是否不誠實。陳大律師指這個錯誤的做法會導致定罪不安全及不穩妥的。

Mr Chan also submits that it was improper for the Judge to hold, without taking into account the following factors, that whether the applicant had been dishonest could not be determined by reference to section 3(b):
陳大律師又指李法官在沒有考慮以下的因素就認定不可以第 3(b) 條來考慮申請人是否不誠實是不穩妥的做法：

PW1 and the applicant were sisters-in-law;
第一控方証人與申請人是姑嫂關係；

PW1 and DW2 (the applicant’s husband) had both testified that the applicant was in need of an overdraft account; and
第一控方証人的口供及第二辯方証人（申請人的丈夫）的口供說申請人需要透支戶口；及

DW3 (a friend of the applicant’s) had testified that the applicant had borrowed $250,000 from him, which served to show that the applicant was indeed under financial difficulties.
第三辯方証人（申請人的朋友）的口供說申請人曾向他借了 25 萬元，這可証明申請人是有經濟困難的。

Discussion
本庭的見解

If the applicant held a genuine belief, then she did not have a “dishonest” intent when she committed the alleged offence.  Mr Chan concedes that the applicant must have already held such a belief when she withdrew the money.  With respect, we do not agree with Mr Chan’s submission that the court could invoke section 3(b).  A precondition of applying the provision is the existence of a factual basis to prove that the applicant had such belief.  The applicant alleged that PW1 had indicated that she might use the money in the account, but as the Judge has already rejected the allegation as fact, the applicant could not rely on it to support her claim of the relevant belief.
若果申請人持有一個真實的信念，這表示她作出控方指稱的犯罪行為時不存有「不誠實」的意願。陳大律師同意有關的信念必須在申請人提取存款時已經存在。本庭不同意陳大律師所指法庭可以引用第 3(b) 條的陳詞。本庭認為引用這條文的先決條件是案件存有事實的基礎來証明申請人是有這樣的信念。申請人聲稱第一控方証人曾表示她可運用戶口內的款項，但由於李法官已經否定了該項事實，因此本庭認為申請人不能依賴這一點來支持她有關的信念。

The applicant also alleged that according to PW1’s evidence, she would lend money to the applicant if the applicant met with financial difficulties and asked for a loan.  In our view, first, those words were not uttered by PW1 prior to the offence, and furthermore, the facts of the present case showed that when the applicant withdrew the money, she was clearly aware that it was improper to do so without PW1’s consent.  In her first confession statement, the applicant had this to say:
申請人另指第一控方証人的証供是若申請人有經濟困難而向她借錢的話，她是會借錢給申請人的。本庭認為首先這番話並非是第一控方証人在案發前說的，另外本案的案情更顯示申請人在提取存款時是清楚知道自己在未獲得第一控方証人的同意下作出有關行為是不當的。申請人在她的第一份的招認口供內這樣說：

This was entirely different from the belief that at trial the applicant alleged she held, namely that PW1 would have consented to her withdrawing the money had she known about it.  Had the applicant held such a belief, she would not have admitted she was wrong and would instead have explained to the police and insisted that she considered herself entitled to withdraw money from the account in question because she believed PW1 would consent even if PW1 knew about the withdrawal.
這更與她在原審時所聲稱若第一控方証人知情會同意她提取存款的信念大相逕庭。若申請人真的有這個信念，她就不會承認犯錯，而應該理直氣壯地向警方解釋她認為自己是有權提取有關戶口內的存款的，因為她相信第一控方証人就算知道申請人提取她戶口內的存款也會表示同意。

Ever since PW1 realized the withdrawal from her bank account, the applicant had not told anyone, including PW1, that she had withdrawn the money solely because she believed PW1 would consent to what she did.  Quite apart from the dearth of evidence in this connection, the applicant actually said in another confession statement:
申請人在第一控方証人獲悉她戶口內的存款被人提取後從沒有向包括第一控方証人在內的任何人說出她是因相信第一控方証人會同意她的做法才會提取存款。本案不單完全沒有這方面的証據存在，反而申請人在另一份招認口供卻說：

This statement plainly shows that the applicant could not possibly have held any exculpatory belief at the time of the offence.
這份口供內容正正顯示出申請人在犯案時不可能存在有關可令她脫罪的信念。

For these reasons, we are of the view that even if the Judge, in holding that the applicant could not rely on section 3(b) as a defence solely on the ground that it was not because of business debts that she took away the money, was taking a relatively narrow view of the matter, this does not mean that it was wrong for him to reject the applicant’s reliance on section 3(b) as a defence.
因此，本庭認為就算李法官只因申請人不是為生意債務而動用戶口內的存款這一項理由便作出她不可依賴第 3(b) 條作為答辯理由的裁決是較狹隘的看法，但這也不表示他否定申請人可以引用第 3(b) 條作為答辯理由的裁決是錯誤的。

Conclusion on the application in respect of conviction
定罪申請的總結

For the above reasons, we dismiss the application for leave to appeal against conviction.
基於這個原因，本庭駁回有關針對定罪的上訴許可申請。

Sentence
刑期

Turning to sentence, this Court pointed out in the case of HKSAR v. Cheung Mee Kiu that where the amount involved in theft by breach of trust fell between $250,000.00 and $1,000,000.00, an appropriate sentence would be imprisonment for 2 to 3 years.
至於刑期方面，本庭在 HKSAR v. Cheung Mee Kiu (張美嬌[譯音])一案中指出若違反誠信的盜竊行為涉及的金額是$250,000.00 至 $1,000,000.00，適當的刑期是兩年至三年的監禁。

In the present case, the Judge adopted a starting point of 3 years.  Having considered the fact that the applicant had already repaid $120,000.00 to PW1 and her husband had undertaken to make every effort repay the outstanding sum on her behalf within 3 years, the Judge reduced the term by 6 months, to 2 years and 6 months.  We see nothing improper with this sentence and accordingly dismiss the application for leave to appeal against sentence.
在本案，李法官以三年為量刑基準，但在考慮過申請人已經償還了 $120,000.00 給第一控方証人和她的丈夫承諾會盡量在三年內替她償還餘下欠款的因素再給予她六個月的減刑，最終刑期為兩年六個月監禁。本庭認為這是一項適當的刑期，故此本庭駁回針對刑期的上訴許可申請。

Ms Evena Chan, 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陳月好代表。

Mr Chan Siu Ming, instructed by Joseph C T Lee & Co on assignment by the Legal Aid Department, for the Applicant (application re conviction).
申請人（定罪申請）：由法律援助署委派李全德律師行轉聘陳銚明大律師代表。

The Applicant in person (application re sentence).
申請人（刑罰申請）：無律師代表，親自出席。