Hon Cheung, JA (giving 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：

Charges
控罪

The applicant, together with 3 other defendants, was charged with multiple charges in the District Court.  The applicant was the first defendant of the case.  She was charged with 7 charges.  H.H. Judge SM Sham convicted the applicant of the following charges after trial:
申請人與另外三名被告人在區域法院被控多項控罪，申請人是案件的第一被告人。她被控七項控罪。案件經法官沈小民審訊後，申請人被裁定以下五項罪名成立：

The 1st and 2nd charges of “Handling stolen goods”, contrary to section 24 of the Theft Ordinance, Cap. 210.
第一及第二項「處理贓物」罪，違反《盜竊罪條例》(香港法例第 210 章)第 24 條；

The 3rd charge of “Possessing equipment for making a false instrument”, contrary to section 76(1) of the Crimes Ordinance, Cap. 200.
三項「管有用作製造虛假文書的設備」罪，違反《刑事罪行條例》(香港法例第 200 章)第 76(1) 條；

The 4th and 5th charges of “Possession of an identity card relating to another person”, contrary to section 7A(1A) of the Registration of Persons Ordinance, Cap. 177.
第四及第五項「管有他人的身分證」罪，違反《人事登記條例》(香港法例第 177 章)第 7A(1A) 條。

Furthermore, the applicant pleaded guilty to one count of “Possession of a dangerous drug” (the 6th charge), contrary to section 8(1)(a) and (2) of the Dangerous Ordinance, Cap. 134.
另外，申請人承認一項「管有危險藥物」罪（第六項控罪），違反《危險藥物條例》(香港法例第 134 章)第 8(1)(a) 及 (2) 條。

Judge Sham sentenced the applicant to 5 years of imprisonment for charges 1 to 6.  The applicant applied for leave to appeal against both conviction and sentence.  Earlier, a single judge sitting in the Court of Appeal rejected the applicant’s application for leave to appeal against both conviction and sentence.  Now, the applicant renews her application for leave to appeal against her convictions on charges 1 to 5.  After hearing the application, this court has dismissed the application and will now give the reasons for judgment.
沈法官就第一至六項控罪判處申請人五年監禁。申請人不服定罪及判刑裁決，提出上訴許可申請，上訴法庭單一法官早前拒絕申請人就定罪和判刑提出的上訴許可申請。現申請人就其第一至第五項控罪的定罪更新其上訴許可申請。本庭於聆訊後駁回申請。現頒發判案理由。

Prosecution case
控方案情

Registered occupant at the hotel
酒店登記住戶

The applicant and the 3rd defendant (“D3”) of the case were the registered occupants of room 1529 of the Harbour Plaza Hotel from 15 August 2013 to 27 August 2013.  D3 signed the lease agreement with the hotel on 15 August 2013, and both of them were seen visiting and leaving the hotel in CCTV recordings since that day.  When the police entered the said room for execution of a search warrant on 27 August 2013, the applicant, D3 and the other 2 defendants of the case were all found inside the room.  The police seized multiple numbers of exhibits, including the following:
申請人與同案的第三被告人 (「D3」) 在 2013 年 8 月 15 日至 8 月 27 日期間是「8 度海逸酒店」1529 號房間的登記住戶。D3 於 2013 年 8 月 15 日與該酒店簽訂該房間的租約，CCTV 錄影紀錄顯示他們二人從該日起出入該酒店。警方於 2013 年 8 月 27 日進入該房間執行搜查令時，申請人、D3 及同案的另外兩名被告人均在該房間內，警方在該房間檢獲多項證物，包括如下物品：

About 1,934 stolen letters or documents (Charge 1);
約1,934 份被盜的信件或文件（第一項控罪）；

43 stolen bank cards (Charge 2);
43 張被盜的銀行卡（第二項控罪）；

Equipment for making a false instrument including: (i) an encoder, (ii) one mini optical disc together with a user manual for encoder, (iii) 34 blank cards, (iv) 2 card readers and (v) 2 smart /SIM card readers (Charge 3);
可用作製造虛假文書的設備，包括 (i) 一部編碼器、(ii) 一片迷你光碟連同編碼器的使用說明、(iii)  34張空白卡、(iv) 兩部讀卡器及(v) 兩部智能卡閱讀器（第三項控罪）；

2 identity cards relating to other persons (Charges 4 and 5);
兩張屬於他人的香港身分證（第四及第五項控罪）；

Dangerous drugs relating to Charge 6; and
第六項控罪相關的危險藥物；及

Notebook(s), computer(s) and items such as mobile phone(s)
記事簿、電腦以及行動電話等物品。

The scene where items were seized
檢獲物品的現場

As seen from the photos taken on the same day by the police identification bureau, some of the letters/documents as mentioned above in (1) were scattered on the floor between the bed and the window bay, while some were kept inside a transparent plastic container and file.  One of the identity cards as mentioned in (4) above was placed by the side of a printer on a desk, while the other was inside a “BULOVA” box contained in a red paper bag with the above-mentioned bank cards in (2). A hard paper box containing one encoder, bill/s, mini optical disc and blank magnetic cards was on top of the bed with 4 laptop computers.  Inside the bag on the window bay, there were card readers.  A number of mobile phones were seized from inside the room, including an iPhone 5 (“iPhone 5”) smartphone on the top of the cabinet by the bed.
從警方鑑證科於同日在現場所拍攝的相片可見，上述 (1) 段之信件/文件部分散落在床與窗台之間的地面上，部分收納於透明膠盒及文件夾內。上述 (4) 段之身分證，其一被置於枱上打印機旁邊。而另一張與上述 (2) 段之銀行卡同被置於床上一個紅色紙袋內的一個「BULOVA」盒子內。一個裝有編碼器、票據、迷你光碟及空白磁卡的硬紙盒及四部筆記型電腦皆被置於床上。窗台上擺放的袋裏有讀卡器。該房間內檢獲多部行動電話，包括擺放於床頭櫃上的一部智能電話 iPhone 5 (「iPhone 5」)。

The applicant’s fingerprints were found on documents, the plastic container that contained them and the two notebooks, which were seized at the scene.
警方從現場所檢獲的裝有文件的膠盒、文件及兩本記事簿上均發現附有屬於申請人的指模。

The above stated facts which the prosecution relied on, and the items seized were not in dispute.  They formed part of the admitted facts between the prosecution and the defence.
控方案情中所倚賴的上述事實及檢獲之證物並無爭議，為控辯雙方承認事實的一部分。

Information arranged from stolen letters for use in criminal activities
從被盜的信件所整理用於犯罪的資料

There was personal and bank information concerning others (others’ information) recorded in the above-mentioned 2 notebooks.  There was a USB memory stick (“USB”) attached to the Apple MacBook Pro (“Macbook”) computer being seized at the scene.  The said USB and the iPhone 5 mentioned above also contained others’ information.
上述兩本記事簿內寫有一些屬於他人的個人資料及銀行資料(「他人資料」)。現場檢獲的Apple MacBook Pro 電腦(「MacBook」）連接着一個 USB 記憶體(「USB」)，該 USB 以及上述 iPhone 5 亦存有一些他人資料。

The applicant’s reply
申請人的回應

On 27 August 2013, when arrested and cautioned by the police, the applicant said: “Those ice is for my own consumption.  Other items do not belong to me.”  The applicant willingly attended video-recorded interviews in the following 2 days, she remained silent or denied knowledge on items relating to charges 1 to 5.
在 2013 年 8 月 27 日當日，申請人被警方拘捕及經警誡下，回答：「啲冰係我食嘅，其它嘢唔係我。」申請人亦於其後兩天自願參與錄影會面，她就第一至五項控罪相關的物件的事宜保持緘默或否認知情。

In the video-recorded interview(s), the applicant admitted that the above said Macbook together with the USB connected to it, another Acer computer (“Acer computer”) and the iPhone 5 were her belongings.  She lent the Acer computer to D3 for his use.
申請人於錄影會面承認上述 MacBook 及連接該電腦的 USB、另一部 Acer 電腦(「Acer 電腦」)、以及 iPhone 5 是屬於她的物品。Acer 電腦是她借給 D3 使用。

Defence case
辯方案情

Living in the same room with the applicant
與申請人同住該房間

The applicant did not give evidence in the original trial, but she called D3 as the first defence witness.  D3 admitted that he committed the above mentioned charges 1 to 5 in the hotel room.  D3 claimed that although the applicant and he lived at the same premises for many days, she did not participate in his criminal activities.
申請人在原審時沒有作供，但傳召 D3 作為辯方第一證人。D3 承認在酒店房干犯了上述第一至五項控罪。D3 聲稱雖然申請人和他同住上址多日，但她並沒有參與他的犯罪活動。

D3 said in his evidence that he and the applicant were friends who had been acquainted for 2 to 3 years and were on good terms.  At the time when he moved into the room, the name of the applicant was registered so that another key card would be assigned.  He and the applicant each held a key card to the room.  Sometimes, D3 would have friends staying overnight, including the second defendant (“D2”) and the fourth defendant (“D4”).  The rental payment for the room was paid by D4.
D3 供稱，他與申請人是兩至三年前認識的朋友，雙方關係良好。當初搬入該房間時登記了申請人的名字以便獲發多一張房間匙卡。他和申請人各持有該房間的房卡。有時候 D3 的朋友亦會到該處留宿，其中包括同案第二被告人(「D2」) 及第四被告人(「D4」)。該房間的租金由 D4 支付。

D3 explained that he invited the applicant to live in that room together so that she did not need to carry heavy items while walking up four flight of stairs to go home all the time, as she had injured her arm/hand.  Whenever one of them went home, the other could still use the room.
D3 解釋，他邀請申請人一起居於該房間的原因是她手部受傷，以免她經常手持重物走四層樓梯回家。他們其中一人回家時，另一人仍可使用該房間。

Letters/Documents
信件/文件

D3 claimed that he rented the room to “do things”, he explained that he used the room to sort through letters that were stolen.  He rented the room because he did not want his girlfriend and his family to know (about this).  He said that all letters seized on the premises were stolen by himself and another friend named “Ah B”.  He needed the room to sort through the letters since it was inconvenient for him to store them at home.  As shown from the photos of the scene, after he had sorted the documents into categories, (he then) arranged and stored them securely into folders, and some of them were stored in a plastic container.  He discarded the unwanted documents onto the floor.  He had not shown the applicant the folder with the sorted documents.  However, at times when these things obstructed the applicant, she would move them to a corner.  The applicant had enquired about the use of those documents, D3 replied that he needed those to do things.  He did not tell the applicant the true situation, and he had never let the applicant assist in sorting through those documents.
D3 稱他租用該房間「做嘢」，他解釋是用該房間處理偷竊回來的信件。他租用酒店房間，因為不想讓家人及女朋友知道。他說在該房間所檢獲的信件都是他與另一名朋友「阿B」偷竊所得的信件，他需要以該房間整理信件，因為不方便將它們存放於家中。從現場相片可見，他將文件分類後，把文件整理妥當收納於文件冊，亦有一些存放在膠盒內，他將不要文件丟在地上；他並沒有將整理的文件冊展示予申請人看，但有時候，當這些物件阻礙到申請人，她會將它們搬到一角。申請人曾問 D3 文件的用途，D3 回答是他需要用來做事。他沒有告訴申請人真實情況，他亦從沒有讓申請人協助處理該等文件。

Bank cards and identity cards
銀行卡及身分證

D3 claimed that the red paper bag on the bed belonged to him.  He was also the one who put the bank cards and one identity card relating to the charge(s) into the “BULOVA” box that was inside the bag.  The applicant had never opened the “BULOVA” box to D3’s knowledge.  He emphasized that each of them had their own personal belongings and they would not touch each other’s stuff.  However, sometimes, they might put their own belongings into the same bag.  The identity card found on the table was in his (possession).
D3 稱在床上的紅色紙袋屬他所有，亦是他將控罪所涉及的銀行卡及一張身分證放置於該袋內的「BULOVA」盒子。據 D3 所知，申請人不曾打開該「BULOVA」盒子。他強調雙方都有各自的私人物品，不會碰對方的東西，但是有時候可能會把彼此的物品存放在同一個袋子裏。枱上的身分證亦是他（管有）的。

Encoder and mini optical disc
編碼器及迷你光碟

The encoder and the mini optical disc found inside the hard paper box on the bed by the police were purchased by D3 through the applicant’s Taobao account.  The applicant has the habit of shopping from Taobao site.  D3 found opening an account troublesome, since it required verification of identity as well as registration of a mainland phone number, therefore, (he) used the balance in the applicant’s account to shop, however, he hid his purchase of the encoder from the applicant.  He repaid the applicant in cash and arranged for courier to deliver the encoder to the hotel.  The mini optical disc contained the drivers to the encoder.
警方在該房間床上找到的硬紙盒內的編碼器及迷你光碟是 D3 透過申請人的淘寶網賬戶購買的。申請人有在淘寶網購物的習慣。而 D3 有感開賬戶困難，不但須認證身分，更須登記內地電話號碼，遂以申請人的賬戶內之餘款購物，但他隱瞞申請人購買該編碼器之事，以現金付還申請人，並讓速遞公司將編碼器等送遞到該酒店。迷你光碟內有該編碼器的驅動程式。

Computer(s) and USB
電腦及 USB

D3 said that the MacBook and the Acer computer seized by the police from the room belonged to the applicant.  He borrowed them from the applicant without telling her (his) purposes.  He had downloaded and installed software for the card readers in the Acer computer.  (He) tried to replicate the information stored in the bank cards onto the blank magnetic cards by connecting the card readers to the computer.  The applicant had not asked him about the software and he did not volunteer the information.
D3 供稱，在該房間裏被警方檢取的 MacBook  及 Acer 電腦屬申請人所有，他向申請人借用這兩部電腦，卻沒有告訴她用途。他曾在 Acer 電腦下載並裝設讀卡器相關的軟件，連接到讀卡器，嘗試用以讀寫銀行卡上的資料，將複製到空白磁卡上。申請人並沒有詢問他關於軟件的事情，他亦沒主動告知。

D3 had also tried to alter the words on the documents being scanned into the computer (PDF format) by using the MacBook, for example monthly statement of others.  (He) created false address proof for others, he did not tell the applicant about this, and he moved related files to the USB and deleted them from the MacBook.  The USB belonged to D3.
D3 亦嘗試以 MacBook 修改被掃描到電腦上的文件(PDF 格式)裏的文字，例如他人的月結單等，替他人製作虛假的地址證明文件，他沒有告知申請人此事，並會把相關檔案移至 USB 然後從 MacBook 中刪除，該 USB 是屬於 D3 個人的物品。

Notebook containing other’s information and D3’s purpose
記載他人資料的筆記及 D3 的目的

D3 said that after he had sorted through the documents, he jotted down information on the owners of the stolen letters into 2 notebooks. This is one “Gambol” notebook and a purple coloured notebook in order to activate the stolen bank cards.  He also intended to use the above-mentioned tools to replicate credit cards, however, he had not succeeded yet.
D3 稱，他將文件整理妥當後，把信件失主的他人資料抄寫於兩本記事簿內，即一本「Gambol」筆記簿及一本紫色記事簿，用於啟動被盜的銀行卡；他亦打算以上述儀器作複製信用卡等用途，但尚未成功。

He borrowed the purple coloured notebook from the applicant.  Later, he clarified that he bought it with the applicant.  After the applicant had taken out the loose pages she had written on, she lent it to D3 and had not touched it again.   D3 inserted new loose pages for use.  The “Gambol” notebook belonged to him, the applicant had not touched that notebook.
紫色的記事簿是他向申請人所借，後來 D3 澄清說是與申請人一起購買，申請人將自己所寫的活頁取出借給D3後就沒再碰它。D3 插入新的活頁使用。「Gambol」筆記簿屬於他本人，申請人沒碰該本筆記。

Mobile phones
行動電話

D3 said that after he left Hei Ling Chau Correctional Institution, he had no phone to use, therefore the applicant lent him the iPhone 5 together with the SIM card inside the phone.  In July 2013, he bought another phone, intending to transfer all the information to the new phone and returned the iPhone 5 to the applicant.  In fact, the numerous number of phones seized in the hotel room all belonged to the applicant.
D3 稱，2012 年他離開位於喜靈州的懲教設施後，因為沒有電話可用，申請人遂把 iPhone 5 連同放置其內的電話卡一併借給他使用。他於 2013 年 7 月買入另一部電話，打算將資料都轉移到新電話再把 iPhone 5 歸還申請人。實際上從酒店房間內檢獲的多部行動電話均屬於申請人。

Verdict by Judge Sham
沈法官的裁決

Judge Sham said that D3’s evidence in short, was that he admitted using the hotel room to conduct his criminal activities.  Although D3 lived in the same premises with the applicant, the applicant had nothing to do with this matter.  Judge Sham said:
沈法官說 D3 的證詞簡單而言是他承認利用酒店房間進行他的犯罪活動，雖然 D3 與申請人同住上址，但申請人與此事無關。沈法官說：

The question was whether the 3rd defendant’s evidence relating to the 1st defendant having nothing to do with this matter was credible.  If it was not, from the inference made by the evidence accepted by the court, whether I can reach an irresistible inference that the 1st and the 3rd defendant were carrying out criminal activities in the premises with the same criminal purpose.”
問題是第 3 被告的証詞特別關於第 1 被告與此事無關的說法是否可信，若不可信的話，從法庭所接納的證據來推斷，本席是否可以達至唯一的結論第 1 被告與第 3 被告是為著共同犯罪的目的在上址進行相關的犯罪活動。」

Judge Sham did not accept D3 as an honest witness, he said:
沈法官不接納 D3 是誠實的證人，他說：

“The 3rd defendant as a witness
「第 3 被告作為一位證人

Having heard his evidence in court, undoubtedly, he was not an honest witness.  I accepted his evidence only on his admission of his own criminal activities.  Concerning his explanation on behalf of the 1st defendant that it has nothing to do with her, his version was contradictory, I totally reject them, and found that he was only telling lies, hoping that he could deceive the court of what the 1st defendant’s involvement was.”
聽過他在庭上的供詞，毫無疑問，他並非是一位實話實說的証人。本席接納他的證供只是局限於他所承認自己進行犯罪活動這一方面，至於他為第 1 被告解說這事與她無關，他的解釋處處反駁，本席完全不接納，並認為他謊話連篇，只希望瞞騙法庭替第 1 被告開脫罷了。」

Judge Sham inferred that the applicant and D3 lived in the same room for the same criminal purpose.  Judge Sham found the applicant guilty of all relevant charges (except the 8th charge), he said:
沈法官推斷申請人與 D3 只是為共同犯罪目的而一起住在該房間。沈法官裁定申請人有關的控罪罪名成立(除第 8 控罪例外)，他說：

“Joint Enterprise
「共同行事（Joint Enterprise）

Based on the evidence before the court, I have absolutely no difficulty in reaching the only inference that the 1st defendant and the 3rd defendant, from the moment they moved into the hotel room, lived together for the same criminal purposes.  Only this could reasonably explain why they would live in the same room with such ordinary relationship.  Their purposes were the two purposes as D3 explained – sort and save the personal and bank information gathered from the letters stolen by D3 and use the information to activate credit cards of others for own use; or to input the above data onto blank cards with the help of the encoder, to replicate cards for use.”
基於法庭前的證據，本席完全沒有困難作出唯一的推斷第 1 和第 3 被告入住酒店房那一刻，他倆是為著共同犯罪目的而一起在那裡居住–這樣才能合理地解釋，為何他倆這般平常關係會住在同一酒店房間內。他們的目的就是第 3 被告所說那兩個目的–從第 3被告偷來的信件中，將別人個人及銀行資料整理存檔，利用有關資料啟動別人的信用卡拿來使用，又或是將空白的卡利用編碼器等設備寫上資料、［複］製信用卡以便使用。」

They acted in a joint enterprise under the same criminal purpose. Who did what was not material in the course of the crime, because in the legal concept of joint enterprise, one is responsible for another’s actions.
他們是為著同一犯罪目而共同行事，在犯罪過程中，究竟誰做什麼並不重要，因為在共同行事的法律概念中，每一個人都要為另一人所做的事負責。

All the letters or documents found inside the hotel room (contained) personal and bank information that belonged to others.  Part of those information could be found in the 1st defendant’s mobile phone (iPhone 5).  I have absolutely no difficulty in drawing the inference that she understood those information as being obtained through illegal means and that she possessed such information also for illegal purposes.  Undoubtedly, she was dishonest in doing so.”
在酒店房間內找到的信件或文件，全部都是屬於其他人的個人或銀行資料，部分的資料可以在第 1 被告的手提電話（iPhone 5）內找到，本席完全沒有困難推斷她了解到這些資料是從不法途徑獲得的，她管有這些資料也是作非法用途，毫無疑問她這樣做是屬於不誠實。」

Judge Sham opined that it was only neutral evidence that the applicant’s fingerprints were being found on items.  It was not surprising that she left her fingerprints since the applicant lived in that room.
沈法官認為物品上附有申請人的指模一事屬中性證據，因為申請人居住在該房間，留下指模不足為奇。

Judge Sham concluded that the prosecution had proved charges 1 to 5 beyond all reasonable doubt and convicted the applicant of these 5 charges.
沈法官裁定控方已在毫無合理疑點下證明第一至第五項控罪，判申請人此五項控罪罪名成立。

Grounds of appeal raised by the applicant
申請人的上訴理據

Counsel for the applicant, Ms. Chong, Sezen K. Y., submitted 9 grounds of appeal.  The court now deals with these grounds.
代表申請人的莊君如大律師共提出九項上訴理據。現本庭分別處理這些理據。

The 1st and the 2nd charges of “handling stolen goods”
第一及第二項控罪「處理贓物」罪

On the 1st and 2nd charges, Ms. Chong submitted the following 5 grounds:
就第一及第二項控罪，莊大律師提出以下五項理據：

Judge Sham did not specify on which one of the two limbs of “handling stolen goods” he convicted the applicant, his verdict was not clear.
沈法官沒有指明是基於「處理贓物」罪的兩款犯罪手法中的哪一款將申請人定罪，裁決不清晰。

There was insufficient evidence to prove that the applicant had legal possession or control of the stolen goods.
沒有足夠證據證明申請人對於贓物有法律上的管有或控制。

There was insufficient evidence to prove that the applicant assisted D3 in handling stolen goods in a joint enterprise.
沒有足夠證據證明申請人協助 D3 處理贓物，共同行事。

The applicant and D3 were jointly charged with having handled stolen goods for the benefit of another, however in this case, there was no evidence to prove who this other person was, since one of the fundamental ingredients for conviction was missing, the prosecution had failed (to prove its case).
申請人與 D3 共同被控為了另一個人的利益而處理贓物，但本案沒有任何證據證明另一人是誰，定罪的一個基本元素欠缺，控方未能舉證。

D3 was the thief who stole the stolen goods, he could not have committed “handling stolen goods” at the same time.  Therefore, he could not have handled the stolen goods with the applicant in a joint enterprise.  Judge Sham had wrongly applied the legal principle of “joint enterprise”.
D3 是盜取相關贓物者，他不能同時干犯「處理贓物」罪，因此不能與申請人共同行事處理贓物，沈法官錯誤地引用「共同行事」的法律原則。

Discussion
討論

Ground 1: did not specify which one of the limbs the conviction was based upon
理據一：沒有指明定罪是基於兩類犯罪手法的哪一類

Undoubtedly, there are 2 forms or limbs in “handling stolen goods”:
無疑「處理贓物」罪涉及兩類犯罪手法或方式：

The 1st form: receive or arrange to receive [the receive form].
第一類：收受(receive) 或安排收受(arrange to receive)(「收受方式」)。

The 2nd form: undertake or assist or arrange to undertake or assist in the retention, removal, disposal or realization by another person or for the benefit of another person [the assist form].
第二類：從事、協助　(undertake or assist)　或安排從事、協助　(arrange to undertake or assist) 　另一個人或為另一個人的利益而保留、搬遷、處置或變現(「協助方式」)。

Although section 24(1) involves 2 different forms of “handling stolen goods”, as pointed out in R v Nicklin (1977) 64 Cr App R 205, the section itself only creates a single offence of “handling stolen goods”.  Furthermore, even if the indictment has not expressively set out which limb the defendant was charged with, it does not amount to a defective indictment.  However, Nicklin pointed out at the same time, that if the prosecution had uncertainty about the form of handling the defendant had committed, they could cover both limbs by laying alternative charges.  These alternative charges would not violate the principle against “duplicity”.
雖然第 24(1) 條涉及兩種不同「處理贓物」罪的方式，但正如 R v Nicklin (1977) 64 Cr App R 205 指出，該條例本身只構成一條「處理贓物」罪。另外，就算公訴書沒有說明被告人是以哪一類方式行事，這也不構成公訴書欠妥。但 Nicklin　同時指出，如果控方未能確實被告人是以哪一類的方式行事，它可以在公訴書內以交替控罪的形式同時依賴第一及第二類方式行事。這交替控罪並不會違反「不可以有重叠控罪」的原則。

The facts of the Nicklin case demonstrate the importance of alternative charges.  In that case, the defendant was charged with receiving stolen goods, i.e., the 1st form of “receiving” “stolen goods”.  He pleaded not guilty, however, he pleaded guilty to assisting in the disposal of stolen goods by another person, i.e., he committed the crime in the form of “assisting”.  The prosecution did not accept the defendant’s plea on the limb of “assisting”.  The original trial Judge directed the jury that they could acquit the defendant of “handling stolen goods” in the form of “receiving”, but they could convict the defendant of “handling stolen goods” in the form of assisting.  At the end, the jury convicted the defendant of handling stolen goods in the form of assisting.  The Court of Appeal in England pointed out that, since the prosecution did not accept the defendant’s plea to committing “handling stolen goods” in the form of “assisting” and it did not put forward an alternative charge, the only charge the jury needed to consider was whether the defendant handled stolen goods in the form of “receiving”.  Under such circumstances, it was an unsatisfactory verdict for the defendant to be convicted of a charge he was not prosecuted for, therefore, the (conviction) needed to be quashed.
Nicklin 本身的案情顯示交替控罪的重要性。在該案，被告人是被控收受贓物，即第一類「收受方式」的「處理贓物」罪。他否認控罪，但承認協助他人搬遷失竊的物品，即以「協助方式」犯罪。控方沒有接受被告人承認以「協助方式」行事。原審法官指導陪審團他們可以裁定被告人以「收受方式」干犯「處理贓物」罪無罪，但可以裁定被告人以「協助方式」干犯「處理贓物」罪罪名成立。陪審團結果裁定被告人以「協助方式」干犯「處理贓物」罪罪名成立。英國上訴法庭指出由於控方沒有接納被告人承認他以「協助方式」干犯「處理贓物」罪及沒有提出交替的控罪，陪審團唯一需要處理的控罪就是被告人是否以「收受方式」處理贓物。在這情況下，被告人被裁定一項他沒有被檢控的控罪罪名成立，這裁決是不穩妥及需要被撤銷。

The Court of Appeal in Hong Kong endorsed the principle in Nicklin in The Queen v Keung Sai Chung and others CACC 19/1985, further, the court disagreed that other cases might support the argument that “handling stolen goods” involves two offences.
香港上訴法庭在 The Queen v Keung Sai Chung and others CACC 19/1985 確認 Nicklin 的原則及不同意其他案例可能支持「處理贓物」罪涉及兩種罪行的說法。

The indictment of this case set out 2 forms of handling stolen goods, however the prosecution did not lay any alternative charge.  At the outset of the original trial, the applicant did not take issue with these 2 limbs.  In the course of the trial, the defense put forward by the applicant was that she had absolutely no knowledge of the information on the letters or bank cards, nor did she know of their uses.  She had not taken part in (any) criminal activities.  Whether her actions constituted “handling stolen goods” in the form or “receiving” or “assisting” was not the issue in the original trial.  The applicant’s legal representative, Ms. Chong, only argued in her final submission that by setting out both forms of handling in the same set of particulars of offence, the prosecution might have violated the principle against duplicity.
本案的公訴書臚列了兩種處理贓物的方式，但沒有以交替控罪的形式提出檢控。申請人在原審開案時並沒有提出任何針對這兩類犯罪方式的爭議。在審訊期間，申請人提出的抗辯理由是她完全不知道涉案信件及銀行卡的內容及用處，和沒有參與犯罪活動。審訊的爭論點並不是她的行為是否構成「收受方式」或以「協助方式」干犯「處理贓物」罪。代表申請人的莊大律師只是在結案陳詞時才提出控方以兩種方式的指控一併寫在罪行詳情中，或者有違反「控罪不可以重叠」的原則。

Judge Sham dealt with this in his reasons for verdict.  He quoted section 24 of the “Theft Ordinance” and Archbold (2015) 22-219 to explain that the section creates a single offence, and he opined that it encompasses both limbs being covered in a single charge.  The applicant’s situation also encompassed both limbs:
沈法官在裁決理由書處理這一點。他引用《盜竊罪條例》第 24 條的條文及 Archbold (2015) 22-219 段說明該條例構成單一罪行，他認為可以涵蓋兩種犯罪模式單一處理而提出檢控，而申請人的情況亦涵蓋兩種犯罪模式：

From the discussion in the above legal literature, it is obvious that there is more than one form of handling stolen goods, however they can all be generalized into a single offence.  Therefore, the issue was not on whether multiple charges should be laid, rather it was on whether the particulars of offence had made it clear as to which form of dealing was being alleged.  It was the prosecution’s duty to expressly point out which limb they were relying on, so that the defendant can better prepare for his/her defence.   As regards laying one single charge or multiple charges, it was only a matter of practice, it seems that it was not a mandatory requirement of the law: in other words, I opined that the prosecution can still lay down a single charge to cover forms (1) and (2) of handling stolen goods.
從以上的法律文獻討論，很明顯縱使處理贓物罪可有不同模式進行，但都是歸納為單一罪行。因此重點不在於應否提出多項控罪控告，而是罪行詳情是否令人清楚明白所指控的模式是什麼。如未清楚，控方有責任指明他們依賴何種犯罪模式提出檢控，以便被告人知所應對。對於是否提出一項或是多項處理贓物罪只是處理手法而已，看來並不像屬於法則上的硬性規定；換句話說，涵概 (1) 和 (2) 的犯罪模式，本席認為控方仍可以單一處理贓物罪提出檢控。

In this case, the police found D1 in the hotel room.  Those stolen goods were also found in the hotel room.  Stolen information was found in D1’s mobile phone and the usb stick inserted into computer, obviously, the information would be used on crimes concerning credit cards.  D1 acted with others in crime, undoubtedly, not only for herself, but also for the benefit of another.  The above conditions encompass both limbs (1) and (2) of the offence, the prosecution’s allegation was very clear and the defence would have no difficulty understanding it.  Thus, in the circumstances of this case, I find that a single charge of handling stolen goods is not problematic and it was clear enough for the defence to understand the subject of the charge.
本案警方是在酒店房間內找到第 1 被告，而那些贓物也在酒店房間內。第 1 被告的手提電話和插著其電腦的手指內存有被盜的資料，而明顯這些資料會被用在與信用卡罪行之上。第 1 被告與他人一起作案，毫無疑問她不單只為了自己也為著別人的利益這樣做。這樣的情況涵概 (1) 和 (2) 的犯罪模式，控方的指控是相當清楚，辯方也不難明白。因此，在本案的情況，本席認為單一的處理贓物罪沒有問題，並足已令辯方了解控方所作的指控是甚麼。

The prosecution submitted an appeal case HKSAR v CHAN Wah-heung CACC127/2014, although the court mainly discussed the legal concept of “recent possession”, it was worth noting that when the Court of Appeal changed the conviction of theft by the original trial Judge to one of handling stolen goods, the court did not point out on which limb the conviction was based, seemingly taking handling stolen goods as one single offence.”
在控方呈遞的一宗上訴庭案例陳華香CACC 127/2014，雖然上訴庭在該案主要談論「新近管有」的法律概念，但值得留意的是上訴庭更改原審法官盜竊罪之定罪為處理贓物罪時，也沒有指明是 (1) 和 (2) 的犯罪模式，看來是將處理贓物罪視為單一罪行處理而已。」

This court opines that although the prosecution had not charged the applicant with alternative charges on the forms of “handling stolen goods”, the particulars of offence had set out both forms in the indictment, which is different from Nicklin.  According to the circumstances of this case, it is obvious that the applicant had committed the crime in the form of receiving.
本庭認為雖然控方在本案沒有以交替控罪的形式檢控申請人以哪一類方式「處理贓物」罪，但公訴書的詳情同時列出兩種方式的犯罪行為，這與 Nicklin 案情不同。根據本案情況，申請人是明顯以「收受方式」干犯控罪。

First of all, D3 admitted that he stole the letters and bank cards.  Judge Sham summarized the criminal activities D3 had admitted on each charge, in which was mentioned that D3 admitted renting the hotel room for convenience in sorting through letters, his purposes including:
首先，D3 是承認他偷取信件及銀行卡。沈法官撮要了 D3 就每項控罪所承認的犯罪活動後，提到 D3 承認租住酒店房間是為了方便整理偷來信件的資料，其目的包括：

To activate credit cards belonging to others by using the personal and bank information (he) stole for use; and
利用偷來的個人及銀行資料來啟動屬於他人的信用卡以便使用；及

To use the encoder to try duplicate the blank cards into credit cards for use.
利用編碼器等設備嘗試把那些空白卡複製成信用卡以便使用。

The Appeal Court of England in R v Dolan (1976) 62 Cr App R 36 (page 39) pointed out that if a defendant handled stolen goods in the course of theft, that would not amount to having committed “handling stolen goods”.  However, if the defendant handled the stolen goods in another occasion after the act of theft, he might have committed both “theft” and “handling stolen goods”.  Therefore, the act of theft had been completed when D3 took away the stolen documents from the letter boxes and left the building.  He then brought the letters back to the hotel and sorted through them for information arrangement and record at a later time, he had already committed “handling stolen goods”.  The Court of Appeal confirmed the legal principle of Dolan in HKSAR v. CHENG Chi-wai [2012] 4 HKC 290, 598 D-E.
英國上訴庭在 R v Dolan (1976) 62 Cr App R 36 (39 頁)一案亦指出，一名被告若在偷竊過程中處理贓物，是不會干犯「處理贓物」罪的。但若該被告是在發生偷竊之後的另一場合處理那些贓物，他是可以干犯了「偷竊」罪和「處理贓物」罪。因此 D3 在大廈信箱拿偷竊的文件離開時，偷竊過程已經完結。他之後把信件帶回酒店房間及在較後時間把信件內的資料整理存檔，他亦已干犯了「處理贓物」罪。上訴庭在 HKSAR v. CHENG Chi-wai [2012] 4 HKC 590, 598 D-Ｅ確認 Dolan 的法律原則。

The applicant was the registered occupant of the room.
申請人是該房間之登記住戶。

The two computers claimed to have been borrowed by D3 were used to download software relating to the card readers and to sort through others’ information that was stolen respectively; and that information was stored in the USB connected to one of the computers.
D3 所聲稱向申請人借用兩部電腦，曾分別使用它們下載閱卡器的軟件及處理被盜的他人資料；而資料存放於接到其中一部電腦的 USB。

D3 claimed that he borrowed the applicant’s iPhone 5, in which there was information of others and D3 had not transferred the information to his own phone by the time he was arrested.
D3 聲稱借用申請人的 iPhone 5，其中存有他人資料，而 D3 被捕時仍未將資料轉移至自己的手機。

The encoder set out in the 3rd charge was purchased through the applicant’s Taobao account.
第三項控罪所指的編碼器乃透過申請人的淘寶網賬戶所購得。

One purple-coloured notebook containing others’ information was lent to D3 for his use after the applicant had bought it.
一本記載有他人資料的紫色記事簿是由申請人購入後借給 D3 使用。

To summarize the facts of the case, the prosecution had adduced sufficient evidence to prove that the applicant and D3 shared the same criminal purpose and committed in the room, “handling stolen goods” in the first form of “receiving”:
綜觀案情，控方是提出足夠證據證明申請人和 D3 是有共同犯罪目的在房間內干犯包括第一種「收受方式」行事的「處理贓物」罪：

Both the applicant and D3 were registered occupants of the hotel room and intended to stay for 47 days until 30 September.  The applicant had lived there for 13 days up to the 27 August when the police raided the room.  If it wasn’t for the police operation, the applicant would have continued her stay in the room for a longer time.
申請人和 D3 均是酒店房間的登記住客，打算租住 47 日至 9 月 30 日。直至警方於 8 月 27 日進行搜查，申請人已經在那裏居住了 13 天，若不是警方的行動，申請人會在房間繼續居住多一段日子；

From the photos submitted by the prosecution, the hotel room was of an open plan with no partitioned space.  The majority of the documents and letters were scattered on the floor inside the room, the applicant must have been aware of their existence and had the opportunity to touch, read and understand their content;
從控方提交的照片所顯示，該酒店房間是開放式，沒有獨立私人空間，而涉案的文件及信件大部分都是凌散地被擺放在房間內，申請人必然知道這些文件的存在，亦有機會接觸、閱讀及了解文件的內容；

The scattered documents and letters did not belong to either the applicant or D3.  The documents contained personal information.  Simply from the names printed on the documents, there was no question the applicant knew they were stolen properties;
這些被隨處擺放的文件或書信都不屬於申請人或D3，文件本身載有個人資料，單看印在文件上的名字申請人必然已知它們是被偷竊的財物；

The applicant and D3 were not girlfriend and boyfriend, they were not in any way related, when the applicant saw these stolen properties, she should have returned to her own home.  There was no reasonable excuse for her to continue her stay in the hotel room;
申請人和 D3 並非是男女朋友，關係非親非故，申請人看到這些被偷竊的財物理應離開返回自己家居住，實在沒有合理的理由繼續留在酒店房間；

Although D4 paid for the rental of the hotel room, the key cards were used by the applicant and D3;
雖然房租是由 D4 支付，但房卡就由申請人和 D3 管有和使用；

D3 claimed that he borrowed the iPhone 5 from the applicant, however, it was the latest model amongst all the applicant’s mobile phones found in the hotel room.  Others’ personal and bank information was stored in the phones’ memory.  Although D3 claimed that he had borrowed the phone for at least 2 weeks, he had not finished transferring the criminal information into his own Samsung phone, this claim was completely incredible;
D3 聲稱借用了申請人的 iPhone 5 電話，可是這部手提電話是申請人當時在酒店房間內擁有的數部電話中最為新款的一部，而手機內存有他人的個人及銀行資料。D3 雖然聲稱已借用了電話最少兩個星期，但仍未能將iPhone 5 內犯罪的資料傳送到自己的 Samsung 手提電話內，這說法難以置信；

D3 claimed the he had borrowed 2 of the applicant’s computers to conduct his criminal activities, including scanning the stolen documents into the MacBook in order to sort through the stolen personal and bank information, but he saved the data in the USB stick (when the police raided the room, this usb stick was attached to the MacBook).  Regarding the Acer computer borrowed from the applicant, D3 used it to download some software that could read smart card readers.  However, D3 had 2 computers of his own, Sony and Lenovo, and the latter could be used to manage things the MacBook managed.  Furthermore, the applicant still needed her 2 computers for use at times.  D3 said that he didn’t want others, including his girlfriend and her family (sic) to find out about his criminal activities, therefore, he did not carry out his crimes in the rented residence he shared with his girlfriend and specifically chose to live in a hotel room.  If the explanation was true, D3 had no reason to use the applicant’s computers and phones to commit crimes.
D3 聲稱借用了申請人兩部電腦進行他的犯罪活動，包括將偷來的文件內容掃描 (scan) 入 MacBook 從而處理偷來的別人的個人及銀行資料，但他將資料存放在 USB 的手指內(在警方搜查酒店房間時，這隻手指正插着 MacBook)。至於從申請人借用的 Acer 電腦，D3 利用它上網下載一些可閱讀智能卡閱讀器的軟件。可是 D3 自己已擁有兩部電腦 Sony 和 Lenovo，後者更能處理 MacBook 所處理的事項，況且申請人有時仍需要用她的兩部電腦。D3 說他不想其他人包括女朋友和她的家人知道他的犯罪活動，所以不在他和女朋友在佐敦租住的地址犯案，而特別選擇租住酒店房間。若這解釋屬實，D3 更沒有理由使用申請人的電腦及電話犯案；

The encoder was purchased through the applicant’s Taobao account.  This process required the use of personal identification number, and would also leave transaction record in order to allow the applicant to trace what product she had bought.  However, D3 explained that he did not ask the applicant to buy it for him through her Taobao account like previously, because he did not want her to know about it.  This explanation contained irreconcilable inconsistency; and
編碼器是透過申請人的淘寶網戶口購買得來的，過程需要使用個人密碼，亦會留下交易記錄容許申請人可以追查買的是什麼產品。可是 D3 解釋因不想她知道所以沒有一如以往要求申請人在網上代購，這說法存在著不解的矛盾；及

At one time, D3 claimed it was the applicant who bought the purple-coloured notebook and he borrowed it from the applicant for recording others’ personal and credit card information after they had moved into the hotel room.  However, he said at another time, that the purple-coloured notebook was bought by the 2 of them together and lent to him for his use.  He gave contradictory versions and the fingerprints of the applicant were found on the notebook.
D3 一時聲稱申請人購買紫色簿，當他們入住酒店之後，他才向申請人借用並記載着別人的個人及信用卡資料，但一時又說紫色簿是他們倆人一起購買然後借給他使用，說法前後不一樣。再者，在這本簿上有申請人的指模。

According to these evidence, Judge Sham could correctly infer that the applicant was in possession of others’ information that was obtained by illegal means and was in a joint enterprise with D3.  Their joint purpose was to sort through the stolen letters of others for personal and bank information to activate credit cards belonging to others for their use (charges 1 and 2), and to input data onto the 34 blank cards mentioned in charge 3 by using the encoder to try to duplicate credit cards for use (charge 3).
根據這些證供，沈法官是可以正確地推論申請人是管有這些從非法途徑獲得的他人資料，與 D3 共同行事。他們的共同目的就是從偷來的信件中，整理存檔後，利用他人的個人及銀行資料啟動他人的信用卡並拿來使用(控罪一及二)及將第三項控罪提及的 34 張白色卡用編碼器等設備輸入資料後嘗試複製信用卡以便使用(控罪三)。

As the applicant and D3 were in joint possession of the stolen goods and acted together, she committed “handling stolen goods” in the form of “receiving”.
既然申請人和 D3 共同管有贓物，共同行事，她便以「收受方式」干犯了「處理贓物」罪。

Nonetheless, this court does not agree there was sufficient evidence to support that the applicant committed “handling stolen goods” by way of “assisting”.  First of all, according to section 24 of the “Theft Ordinance”, “another person” mentioned in the form of “assisting” must be another person other than the co-accused: R v Tsang chi-ho & others [1997] 3 HKC 36, paragraphs 21-22 & 33; R v Gingell [2000] 1 Cr App R 88, 89.  According to paragraphs 58 & 59 of the reasons for verdict, Judge Sham found that “another person” in this case was D3.  However, D3 and the applicant were co-accused in the same case, therefore, Judge Sham convicted the applicant of handling stolen goods for the benefit of D3 was wrong.
但本庭不同意本案有充分的證據支持申請人以「協助方式」干犯「處理贓物」罪。首先，《盜竊罪條例》第 24 條以「協助方式」罪行所述的「另一人」必須是案件共犯以外的另一人：R v Tsang Chi-ho & others [1997] 3 HKC 36, 第 21-22 及 33 段；R v Gingell [2000] 1 Cr App R 88, 89。根據判案理由書第 58 及 59 段來看，沈法官裁定這另一人是 D3。但 D3 與申請人是本案共同被控的共犯，故此沈法官認為申請人是為了 D3 的利益而行事而將申請人定罪是錯誤的。

Mr. Chan, counsel representing the respondent, submitted that the two charges of handling stolen goods (i.e., 1st and 2nd charges) involved a total of 1,934 letters and 43 bank cards; upon police arrival, they found those documents and credit cards scattered inside the room. The prosecution case alleged that the applicant and D3 acted in a joint enterprise, and those letters and bank cards were stolen at different times. Depending on how the applicant dealt with any one of the documents or any one of the bank cards, it might involve different ways of handling.  Therefore, the prosecution did not know and could not point out in what way the applicant dealt with any one of the letters or bank cards.  Judge Sham could not have concluded in what ways the applicant dealt with each and every letter or bank card, and in turn could not have determined whether the form of dealing was one of “receiving” or “assisting”.  Therefore, the “better way” mentioned in Nicklin is not applicable to this case.
代表答辯人的陳大律師指出本案的兩項處理贓物罪(即第一及第二項控罪)共涉及 1,934 份信件和 43 張銀行卡，而警方到場時發現該些文件及信用卡都是凌散地分布在房間內。控方案情指申請人和 D3 是共同行事，而該些信件或銀行卡是在不同時段被偷去。視乎申請人用怎樣的手法去處理某一份文件或某張銀行卡，當中可涉及不同的處理贓物模式。因此，控方不知道也不能指出申請人是如何處理某份信件或銀行卡。沈法官亦不可能逐一斷定每份信件和每張銀行卡是怎樣由申請人處理，繼而再逐一斷定處理贓物的手法是屬於「收受方式」或「協助方式」。因此，Nicklin 所提及的「比較好的做法」並不適用於本案。

This court does not agree that the indictment was improper on the ground that the prosecution could not have proved who stole which document or could not have categorized the documents. The real issue of this case was that since the prosecution had set out 2 limbs in the indictment, the prosecution has to therefore proceed with these two limbs in the form of alternative charges.
本庭不同意控方不可能證明誰偷取那一份文件或未能把眾多文件分類作為公訴書不妥善的解說。本案真正的議題是既然控方在兩類犯罪方式同時列在公訴書內，控方便需要以交替控罪形式處理這兩類犯罪方式。

Mr. Chan said that according to D3’s testimony, after he was being arrested and cautioned, he told the police in the hotel room that the letters seized were stolen earlier by him and “Ah B”.  The time was in about 2013, and the location(s) were the buildings which the persons concerned resided.  Therefore, part of the letters and bank cards seized in the hotel room were stolen by “Ah B”, but the quantity was uncertain.  Concerning these letters and bank cards stolen by “Ah B’, the applicant committed “handling stolen goods” in the form of “assisting”.  After she had received the stolen goods, she undertook or assisted in the disposal of those goods by sorting through and storing personal & bank information for the benefit of “Ah B”.
陳大律師說根據 D3 的證詞，他被拘捕及警誡後曾對警員說在酒店房內檢獲的信件是他和「阿B」於早前偷取的，時間是 2013 年左右，而地點是當事人居住的大廈。因此，在酒店房間內的部分信件和銀行卡是由「阿B」偷取的，但數量就不能確定。對於該些由「阿B」偷取的信件和銀行卡，申請人以「協助方式」干犯「處理贓物」罪。她接收了這些被偷竊物件後為「阿B」的利益從事或協助處理贓物，把個人及銀行資料整理存檔。

This court disagrees with this argument.  In fact, the prosecution did not discuss the point of “Ah B” being “another person”.  Judge Sham did not use “Ah B” as “another person” to support the applicant’s commission of “handling stolen goods” in the form of “assisting” either.  Judge Sham only dealt with this issue generally as mentioned above.  This court found that the verdict based on the form of “assisting” was unsatisfactory.  However, it has no effect on the verdict based on the form of “receiving”.
本庭不同意這論點。其實，控方在原審時沒有討論「阿B」是另一人的論點。沈法官亦沒有以「阿B」是另一人的論點支持申請人以「協助方式」干犯「處理贓物」罪。沈法官只是籠統地以上文所述的理由處理這議題。本庭認為涉及以「協助方式」犯罪的裁決是不穩妥的。但這無損以「收受方式」犯罪的裁決。

This court must point out that when defence counsel found that the charge(s) had not expressly set out which form the prosecution was relying on, he/she should have submitted to the court at the outset of the trial and asked the prosecution to make appropriate replies.  At the same time, this court opines that stating both limbs in the indictment does not conform with the requirement of legal principle.  The appropriate way was to set out expressly that the second limb was an alternative charge.  This would cause the court as well as both parties to note at an early stage and deal with the criminal elements in the two forms of crime.
本庭必須指出當辯方律師察覺控罪沒有清楚說明控方是依據哪一類犯罪方式行事，便應該在案件開審時向法庭提出及要求控方作出對控罪的適當回應。同時，本庭認為在本案控方只是在公訴書把兩種犯罪的手法同時列出並不符合現時法律原則的要求。適當的做法是將第二類方式的罪行寫明是交替的控罪。這令法庭及雙方及早關注及處理兩類犯罪方式的犯罪元素。

Ground 2: Insufficient evidence to prove legal possession of or control over stolen goods
理據二：沒有足夠證據證明對於贓物有法律上的管有或控制

Regarding ground 2, Ms. Chong submitted that “possession” required conscious control and custody, in this case, there was no evidence to prove how the applicant obtained the stolen goods from D3 or how she controlled and managed them jointly with D3.  The only evidence, i.e., the applicant lived in the same hotel room where the stolen goods were kept was insufficient to convict her: constructive possession or the power to control does not constitute “possession”.
就理據二，莊大律師稱，就「管有」所需的有意識地控制及保管，本案並沒有證據證明申請人如何從 D3 接收贓物或與其進行共同控制或管理，而唯一的證據即申請人與 D3 同住於藏有贓物的酒店房間並不足夠裁定其有罪：形式上的管有 (constructive possession) 或有能力管制並不足夠構成「管有」。

This court disagrees with this argument and had given analysis above.
本庭不同意這說法，本庭已經在上文分析過這點。

Ground 3: Insufficient evidence to prove that the applicant assisted D3 in handling the stolen goods in a joint enterprise
理據三：沒有足夠證據證明申請人協助D3處理贓物，共同行事

Ms. Chong submitted that if the prosecution was accusing the applicant of the crime in the 2nd limb, there was insufficient evidence to prove how the applicant undertook, or assisted in the retention, removal, disposal or realization (of the stolen goods). Handling (such stolen goods) without knowledge or mere non-disclosure of the stolen goods to the police did not constitute assistance.
莊大律師陳詞指出，如控方控告申請人的是第二類犯罪方式，本案沒有足夠證據證明申請人如何從事或協助另一人保留、搬遷、處置或變現贓物；而不知情下處理 或純粹未能向警方披露贓物並不構成協助。

This court has already dealt with this argument above.  This court agrees that the prosecution had not adduced enough evidence to support that the applicant had committed the crime in the 2nd form of “assisting”.
本庭已經在上文處理了這論點。本庭同意控方在本案是未提出充分證據支持申請人以第二類「協助方式」犯罪。

Ground 4: One basic element for conviction was missing as the prosecution failed to prove who was the other person
理據四：控方未能舉證證明另一人是誰，定罪的一個基本元素欠缺

This court has dealt with this argument above.
本庭已在上文處理這點。

Ground 5: Judge Sham had wrongfully applied the legal principle of joint enterprise
[2000] 1 Cr App R 88,89ingellhers 理據五：沈法官錯誤地引用共同行事的法律原則

Ms. Chong quoted paragraphs 42, 44 to 45 from the Reasons for Verdict.  She submitted that there were 2 issues in the legal concept from which Judge Sham inferred and found that the applicant acted in a joint enterprise with D3 for the same criminal purpose, that each person is responsible for the other’s action.  Firstly, as D3 admitted stealing and pleaded guilty to it, he could not have committed “handling stolen goods”.  He, therefore, could not have committed the said crime with the applicant in a joint enterprise.  Secondly, it seemed that Judge Sham had applied the co-conspirators principle to D3’s testimony and convicted the applicant, when there was insufficient independent evidence to prove the applicant and D3 shared the same criminal intention.  She submitted that Judge Sham was wrong in applying that principle.
莊大律師引用裁決理由書第　42　段、第　44　段至　45　段。她說沈法官作出申請人和　D3　共同犯罪目的的推論及在共同行事的法律概念中，每個人都須為另一人所做之事負責的裁決存有兩個問題，第一是　D3　既然承認偷竊並認罪，他便不能同時干犯「處理贓物」罪。他亦不能與申請人共同行事而干犯該罪。第二個問題是沈法官似乎引用串謀者原則，以針對　D3　的證供將申請人定罪，卻沒有足夠獨立證據證明申請人與　D3　皆有共同犯罪意圖，她認為沈法官錯誤引用該原則。

Ms. Chong submitted that Judge Sham inferred the applicant and D3 shared the same criminal intention on the basis that there were images of others’ information in the hotel room as well as the iPhone5.  However, she submitted that it was doubtful as to whether the applicant was in possession of the iPhone 5, therefore, there was no independent evidence to prove that the applicant was in possession of others’ information therein as well as in the hotel room, or that she participated in the sorting through (of the information), saving or activating or duplicating credit cards, or infer that the applicant carried out such acts in consensus with D3.
莊大律師指出，沈法官是基於該房間及 iPhone 5　內有他人資料的影像，推論申請人與　D3　皆有共同犯罪意圖；然而她指申請人是否管有該　iPhone 5　成疑，故而沒有獨立證據證明申請人管有其內及該房間裏的他人資料，或參與該等資料的整理、存檔、或以之啟動或複製信用卡，或推論申請人與　D3　共同協議作出這些事。

This court has dealt with the argument on whether the applicant and D3 were in a joint enterprise and has confirmed that Judge Sham’s verdict was correct.  This court has also dealt with the principle when a defendant committed “theft” and “handling stolen goods” at the same time.
本庭已經在上文處理申請人和 D3 共同行事這議題及確認沈法官的裁決是正確的。本庭亦在上文處理一名被告人同時干犯「盜竊」及「處理贓物」罪的原則。

The 3rd charge (Possessing equipment for making a false instrument)
第三項控罪（管有用作製造虛假文書的設備）

Regarding charge 3, Ms. Chong’s argument (ground 6) was that there was insufficient evidence to prove the applicant was in legal possession or control of the relevant equipment in this case.  Ms. Chong pointed out that although D3 bought the encoder through the applicant’s Taobao account, this encoder was a machine with versatile functions and not contraband.  It could be used on key cards to offices, for storage of information etc., and was not limited to being used on bank cards or illegal activities; and its operation also required certain level of computer skills.  There was no evidence in this case to prove that the applicant had possessed and operated the said encoder, or had sufficient skills to use it to make false instrument (counterfeit bank cards).
就第三項控罪﹐莊大律師的論點(理據六)是本案沒有足夠證據證明申請人對於相關設備有法律上的管有或控制。莊大律師指出，雖然 D3 透過申請人的淘寶網賬戶購入編碼器，但是這種可用以讀寫磁卡的編碼器是一種功能廣泛的機器並非違禁品，可用於辦公室門匙卡、儲存資料等用途，不一定是用於銀行卡或非法用途，操作亦須具備某程度之電腦技術；而本案中沒有證據證明申請人曾管有及操作該編碼器、具備足夠技術利用之製作虛假文書（假銀行卡）。

This court disagrees with the argument.  The police found equipment including 1 encoder, 1 mini optical disc with user manual, 34 blank white cards, 2 card readers and 2 smartcard readers inside the room.  It was a batch of equipment capable of making counterfeit credit cards.  D3 admitted in court that he tried to use equipment such as the encoder to write the personal information stolen onto the blank cards, to duplicate credit cards for use.  Judge Sham has sufficient evidence to support the verdict that the applicant and D3 jointly committed the crime and were in joint possession of the stolen goods and equipment such as the encoder in the room.  Under the circumstances of a joint enterprise, each co-accused has to be responsible for actions of another, therefore, whether the applicant had sufficient computer skills to operate the equipment, such as the encoder, was not relevant.
本庭不同意這說法。警方在房間內找到的設備包括一部編碼器、一張迷你光碟連編碼器使用說明、34 張空白的白色卡、兩部讀卡器及兩部智能卡器，是一批可以用作製造虛假信用卡的物件，D3 在庭上已承認他曾嘗試利用編碼器等設備把偷竊回來的個人資料寫在空白的卡上、複製信用卡以便使用。沈法官有足夠證據支持裁決申請人和 D3 共同犯事和共同管有房內贓物及編碼器等設備。在共同行事的情況下，每個共犯都要為其他人所做的事情負責，因此申請人是否具備足夠的電腦技術來操作編碼器等設備並不重要。

The 4th and 5th charges (possession of an identity card relating to another person)
第四及第五項控罪（管有他人身分證）

Regarding charges 4 and 5, Ms. Chong submitted (Ground 7) that there was insufficient evidence to prove that the applicant had legal possession or control of the identity cards relating to other persons.  Ms. Chong submitted that the only evidence regarding charges 4 and 5 was that the applicant was the registered occupant of the room, and that the 2 identity cards relating to others were found therein, however, there was no proof that the applicant was in possession of the said identity cards.
就第四及第五項控罪﹐莊大律師說(理據七)本案沒有足夠證據證明申請人對於該等他人的身分證有法律上的管有或控制。莊大律師說本案就第四及第五項控罪的證據只有申請人是該房間登記住客，而該兩張他人身分證是於該房間找到，而沒有申請人管有該等身分證的證明。

The police found an identity card and an entry permit for Hong Kong and Macau residents belonging to a female named LAW on top of the table in front of the TV cabinet inside the room.  The iPhone 5 belonging to the applicant which was in her possession had 62 printed copies of photos, 1 of the images was “LAW’s” identity card and UnionPay card.  The said identity card was reported lost in July 2013.
警方在房間內的電視枱前面枱頭位置找到一張屬於姓羅女子(「羅」)的身分證及回鄉卡。屬於申請人並由她管有的 iPhone 5 電話內載有 62 個照片打印本，其中一個影像就是「羅」的身分證和銀聯卡。該身分證是早前於 2013 年 7 月被遺失的。

Another identity card was placed inside the red paper bag on top of the bed.  It was also from this same red paper bag that the police found the 43 stolen bank cards on that day.  The said identity card was reported lost in October 2012.
另一身分證是被放置在床上一個紅色紙袋裏。警方當日亦是在這個紅色紙袋內找到涉及第二項控罪的 43 張銀行卡贓物。該身分證是早前於 2012 年 10 月被遺失。

Furthermore, the said iPhone 5 also contained others’ information, including an image of an insurance letter relating to a female named Wu (transliteration).  The police also found the said insurance letter on the window bay of the room.
此外，該 iPhone 5 電話亦載有屬於其他人的資料，其中包括一名姓胡女子的保險信件的影像，而警方在房間的窗台上也找到該保險信件。

This court found that Judge Sham had sufficient evidence to support his verdict on the applicant being in joint possession of the said stolen goods including the 2 identity cards in the room with D3.
本庭認為沈法官有足夠證據支持他裁決申請人和 D3，並共同管有房內各種贓物包括這兩張身分證。

All 5 charges
全部五項控罪

Ms. Chong submitted 2 grounds regarding all charges as follows:
就全部控罪，莊大律師提出如下兩項理據：

Ground 8: Judge Sham did not consider each charge separately
理據八：沈法官沒有獨立考慮每一條控罪

This court does not agree with Ms. Chong that Judge Sham only convicted the applicant on the general principle of joint enterprise, without having considered each charge separately whether there was fundamental independent evidence to infer that the applicant and D3 were in a joint enterprise, and that he had not considered the applicant’s level of participation separately.  This court has given a detailed analysis above and will not repeat itself.
本庭不同意莊律師聲稱沈法官只是基於共同行事的原則把申請人籠統地定罪，沒有單獨考慮每一條控罪是否有最基本的獨立證據推論申請人和 D3 共同行事，亦沒有獨立考慮申請人就每一條控罪的參與程度。本庭已在上文詳細分析，故不須重複有關理由。

Ground 9: Judge Sham dealt with D3’s testimony inappropriately and did not give the applicant the benefit of the doubt
理據九：沈法官不恰當地處理 D3 的證供，沒有給予申請人疑點利益

Ms. Chong submitted that the principle of balancing and accepting defence’s evidence was not whether the evidence given by the defence witness was accepted by the court as facts, because the defendant did not have the duty to prove the facts of the case.  As long as the defence witness evidence might be true, it is sufficient to amount to a doubt.  (Sze Kwan Lung & others v HKSAR (2004) 7 HKCRAR 475).  In this case, D3’s evidence relating to the applicant might be true.  Judge Sham’s reason for rejecting D3’s evidence was far-fetched.
莊大律師指出衡量及接納辯方證供的原則，並不是辯方證人的證供必須為法庭信納為事實，因為被告沒有舉證事實的責任，只要辯方證人的證供有可能屬實，而這已足以構成一個疑點。(Sze Kwan Lung & others v HKSAR (2004) 7 HKCFAR 475) 。本案 D3 關於申請人的證供有可能屬實，沈法官拒絕接納 D3 證供的理由十分牽強。

This court disagrees with this argument.  Judge Sham’s rejection of D3’s testimony was a mere finding on facts.  He has already set out detailed analysis in his reasons for verdict and this court finds that the verdict was correct.
本庭不同意這說法。沈法官不接納 D3 的證供純粹是一項事實的裁決。他在判案理由書上已詳細分析理由，本庭認為有關裁決是正確的。

Conclusion
總結

For the above reasons, this court dismisses the application.
基於上述原因，本庭駁回有關申請。

Ms. Sezen K.Y. Chong, instructed by Chan & Co., Betty, assigned by DLA, for the applicant.
申請人:由法律援助署委派陳嘉慧律師行轉聘大律師莊君如代表。

Mr. David Chan, ADPP of the Department of Justice, for the respondent.
答辯人: 由律政司助理刑事檢控專員陳大偉代表。