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：

Appeal allowed
上訴得直

The two appellants were charged with 8 counts of fraud and were convicted after trial before Deputy District Judge Merinda Chow. The 1st appellant was sentenced to imprisonment for 4 years and 3 months and the 2nd appellant imprisonment for 4 years and 6 months.
兩名上訴人被控八項欺詐罪。案件經區域法院暫委法官周燕珠審訊後，兩名上訴人被裁定罪名成立，第一上訴人被判監四年零三個月，第二上訴人則被判監四年零六個月。

The two appellants applied for leave to appeal against their convictions and sentences. After hearing, we granted leave to appeal against convictions and, treating the hearing of the applications as the hearing of the appeal proper, allowed their appeal and quashed their convictions. At the same time, we refused the respondent’s application for a re-trial. We now set out the reasons for our judgment.
兩名上訴人就定罪及刑期提出上訴許可申請。本庭經聆訊後批准兩名上訴人針對定罪提出的上訴許可申請，並視該申請為正式上訴、批准他們的上訴及撤銷定罪。本庭同時拒絕答辯人所提出的重審申請。以下是本庭的判案理由。

Particulars of charges
控罪詳情

The particulars of the 8 charges were that, between 28 November 2002 and 30 December 2002, the two appellants deceived the Bank of China (hereinafter “BoC”) on 8 separate occasions. They falsely represented to BoC that there were genuine transactions underlying the letters of credit issued by BoC upon applications by one Harbour Best Development Limited (hereinafter “Harbour Best”), and induced BoC to make payments under the said letters of credit, which resulted in benefit to the 1st appellant and/or Harbour Best or in prejudice or a substantial risk of prejudice to BoC.
八項控罪的詳情指，兩名上訴人在 2002 年 11 月 28 日至 12 月 30 日期間分別八次欺騙中國銀行（簡稱「中銀」）。他們虛假地向中銀表示由中銀應「港惠發展有限公司」（簡稱「港惠」）的申請而發出的信用證是一項真正的交易，誘使中銀根據該信用證支付貨款，導致第一上訴人及/或港惠獲得利益，或導致中銀蒙受不利或有相當程度性會蒙受不利。

Agreed facts
同意案情

On the facts to which the parties had agreed, the 1st appellant owned and controlled a number of companies, among which Harbour Best and one Focus Developments Limited (hereinafter “Focus”) were relevant to the present case.
根據控辯三方所提出的同意案情，第一上訴人擁有多間公司的權制權，而與本案有關連的公司是港惠和「聚資發展有限公司」（簡稱「聚資」）。

The 2nd appellant was one of the partners of one Chi Shing Industrial Investment Development Company (hereinafter “Chi Shing”). Her husband Wong Kam Shing (王金成) was the other partner of Chi Shing.
第二上訴人是一間名為「志成實業投資發展公司」（簡稱「志成」）的其中一名合夥人，而志成的另一名合夥人是她的丈夫王金成。

Harbour Best held a bills facilities account with Yien Yieh Commercial Bank which was under the BoC Group. The 1st appellant was the sole authorized signatory of the account and could use the account to apply for letters of credit.
港惠擁有中銀集團旗下的鹽業銀行的押匯服務戶口。第一上訴人是該戶口的唯一授權簽名人，他可以利用該戶口申請信用證。

Harbour Best applied to BoC for 8 letters of credit in favour of Chi Shing on 8 different days between 28 November 2002 and 27 December 2002.
2002 年 11 月 28 日至 2002 年 12 月 27 日期間，港惠分別在八個不同的日子向中銀申請八張信用證，而有關信用證的受惠人就是志成。

Harbour Best submitted 8 applications for letters of credit to BoC and arranged for the relevant cargo receipts. Believing that there were genuine sale and purchase transactions between Harbour Best and Chi Shing, BoC issued 8 letters of credit to Chi Shing.
港惠向中銀提交八張信用證申請書，並安排相關的收貨單據，中銀確信港惠與志成之間存在真實買賣後向志成簽發了八張信用證。

Chi Shing presented the invoices, cargo receipts signed by Harbour Best and 8 letters of credit to BoC in support of Chi Shing’s applications for the release of monies under the 8 letters of credit. The 2nd appellant issued 8 sight drafts to BoC and requested BoC to release monies to Chi Shing pursuant to the 8 letters of credit.
志成將發票、港惠簽收的收貨單據(Cargo Receipt)和八張信用證交予中銀，作為申請發放八張信用證貨款的憑証。第二上訴人向中銀發出八張即期匯票(Sight Draft)，要求中銀按八張信用證發放貨款予志成。

The content of one of the cargo receipts signed by Harbour Best is shown below. With the exception of the transaction details, all the cargo receipts were in identical terms.
以下是其中一張港惠簽收的收貨單據，除了交易詳情外，其他收貨單據的內容都是相同的。

[signed by the 1st appellant.]
[第一上訴人簽署。]’

Accepting that there were substantial transactions between Harbour Best and Chi Shing and acting on the letters of credit and sight drafts presented by Chi Shing, BoC deposited 8 sums representing payments for the goods into Chi Shing’s bank account on various dates. Whenever Chi Shing received a payment, it immediately transferred the money to a bank account opened in the name of Focus and controlled by the 1st appellant. Subsequently, all the relevant payments were either deposited, in one go or by numerous instalments, into other bank accounts of Harbour Best or Focus or other corporate accounts controlled by the 1st appellant, or withdrawn in cash by someone.
中銀接納港惠與志成曾作出的實質交易後按志成提交的信用證和即期匯票，把八筆貨款於不同日子存入志成的銀行戶口內。當志成收到有關貨款後就立刻將該筆款項轉到一個由第一上訴人控制、以聚資名義所開設的銀行戶口內。稍後有關貨款全數一次或分作多次被存入港惠、聚資的其他銀行戶口或其他由第一上訴人控制的公司戶口內，又或者被人以現金形式提取。

According to the bank affidavits provided by the staff of BoC, had BoC known that there was no substantial transaction between the buyer and the seller, BoC would not have approved and issued the 8 letters of credit or released the payments for goods, in order to avoid unnecessary losses.
根據中銀職員提供的銀行誓章，若中銀知道買賣雙方並沒有進行實質交易的話，中銀是不會批出八張信用證或發放貨款，以免中銀蒙受不必要的損失。

The above are the relevant agreed facts. The two appellants exercised their right of silence in the course of the investigation.
上述是有關的同意案情。兩名上訴人在接受調查期間行使緘默權。

Evidence from the Social Welfare Department
社署的証供

The prosecution called two staff members of the Social Welfare Department (hereinafter “SWD”) to give evidence at trial. Their evidence showed that the 2nd appellant and her husband Wong Kam Shing had in the past made numerous applications to SWD for Comprehensive Social Security Assistance. The application form submitted by the 2nd appellant to SWD on 14 October 2004 showed that she had neither declared that she ran her own company and had income, nor had disclosed her ownership of Chi Shing or the said 8 transactions. When verifying the 2nd appellant’s assets, the staff of SWD found that she and her husband Wong Kam Shing were the directors of 4 companies and hence requested an explanation from her. She replied to SWD that she and her husband acted as “nominal directors” of a number of companies upon requests of their relatives and friends, but they had never received any remuneration or benefit from those companies, and those companies had not been in any substantial operation since their incorporation.
控方在原審時傳召了兩名社會福利署（‘社署’）職員作供，他們的証供顯示第二上訴人及其丈夫王金成過往曾多次向社署申請‘綜合社會保障援助’。根據第二上訴人在 2004 年 10 月 14 日向社署所提交的申請表內容，她沒有申報她本人經營公司和有收入，亦沒有披露她擁有志成及有關的八次交易。當社署職員在審核第二上訴人的資產時，發現她及其丈夫王金成是四間公司的董事，故此要求她作出解釋。第二上訴人對社署的回覆是她本人及丈夫應親友的要求，分別出任多間公司的「掛名董事」，他們從沒有獲得有關公司的任何薪酬及利益，而該些公司自成立以來都沒有任何實質的營運。

Prosecution’s stance
控方的立場

The respondent at trial took the stance that no substantial transaction of sale and purchase of raw plastic materials had been conducted between Harbour Best and Chi Shing. According to the written opening submissions of Counsel for the respondent, the business of Harbour Best included the manufacture of CDs. Harbour Best all along purchased from a supplier in Taiwan raw plastic materials for making CDs. However, according to the information in the letters of credit, the 1st appellant claimed to BoC that he had purchased 8 batches of raw plastic materials from Chi Shing. And tracing the movement of the funds under the 8 letters of credit, all the funds used by Harbour Best for the purchases would ultimately be deposited into bank accounts opened in the name of Harbour Best or bank accounts opened in the names of companies controlled by the 1st appellant.
答辯人在原審時所持的立場是港惠與志成之間並沒有進行任何實質的買賣塑膠原材料交易。根據答辯人代表律師的開案陳述書，港惠的業務當中包括生產光碟。港惠一直都是向台灣的物料供應商購買光碟的塑膠原材料；但根據信用證的資料，第一上訴人向中銀聲稱他向志成購買了八批塑膠原材料，而根據八張信用證的款項流程，所有港惠用於購貨的款項最終都會存入以港惠名義所開設的銀行戶口或由第一上訴人控制的公司名義所開設的銀行戶口內。

Defence of the 1st appellant
第一上訴人的答辯理由

Judge Chow ruled that the prosecution had established a prima facie case against the two appellants who then had a case to answer. The 1st appellant elected to give evidence.
周法官裁定控方提出了表面証據，兩名上訴人需要答辯，第一上訴人選擇作供。

The 1st appellant claimed that he also owned another company called Top Fortune Enterprises Limited (hereinafter “Top Fortune”), the business of which comprised the production of drama series, copyright distribution and the manufacture of VCDs. He said that Wong Kam Shing had suggested to him that he should set up a factory to produce PC pellets directly in order to supply the same to companies under his group for the manufacture of VCDs. As a result, he set up Top Fortune to produce the relevant materials. Subsequently, as it turned out that the materials required by the VCD manufacturing factory only took up one-third of the materials produced by Top Fortune, the remaining two-thirds, for which no buyer could be found, were stockpiled in the factory premises. The 1st appellant then sought to sell the batch of materials through Chi Shing in order to get out of financial trouble. The 1st appellant’s evidence on the said transactions can be summarized as follows:
第一上訴人聲稱他亦擁有另一間公司，即「德運企業有限公司」（簡稱「德運」），他的業務包括劇集製作、版權發行及視像光碟生產。他說王金成建議他開設廠房，直接生產塑膠拉粒以供應他集團旗下的公司生產影碟，故此他成立德運來生產有關的材料。後來由於光碟製造廠所需用的材料只佔德運生產的三分之一，其餘的三分二材料因找不到買家而囤積在廠房內。第一上訴人遂透過志成出售這批材料，以解決財政困難。第一上訴人就該項交易作出的証供簡述如下：

The 1st appellant sold the goods to Harbour Best.
第一上訴人將這些貨品售予港惠。

The transactions involved in the present case were the sale of goods by one of the companies in his group to an associated company, namely by Top Fortune to Harbour Best, and Chi Shing received the goods on behalf of Harbour Best. He said, “Chi Shing was my agent for the sale of this product …”.
涉案的交易是他旗下的相關的公司賣予相關的公司，即德運賣予港惠，而志成是代表港惠收貨。他說：「志成幫我代理呢隻產品嚟銷售….」。

The 1st appellant purchased goods from Top Fortune through Harbour Best because only Harbour Best had a credit facilities agreement with the bank. He obtained cash by means of Harbour Best’s letters of credit and then used the money to meet the production cost.
第一上訴人以港惠向德運買貨，是因為唯有港惠與銀行有信貸協議。他藉此以港惠的信用證套取現金支付生產成本。

It was out of sympathy that the 1st appellant invited Wong Kam Shing and the 2nd appellant to work for him. The work that Wong Kam Shing and the 2nd appellant did required no special skill.
第一上訴人請王金成及第二上訴人為他辦事，是出於同情。王金成與第二上訴人所做的事，並不需要特別技能。

The 1st appellant said that if the goods were sold directly by Top Fortune to Harbour Best, “it might be perceived as being similar to insider dealing as I felt it was not too good”.
第一上訴人說，如果貨物由德運直接售予港惠，「感覺上好似內幕交易，因為我覺得唔係幾好」。

The 2nd appellant
第二上訴人

The 2nd appellant elected not to give evidence but relied on the 1st appellant’s evidence as her defence.
第二上訴人選擇不作供，但依賴第一上訴人的証供作為她的答辯理由。

Judge Chow’s verdict
周法官的判決

Judge Chow had this to say in her Reasons for Verdict:
周法官在判案書這樣說：

“40.As mentioned above, I find that the eight transactions were false and there were no genuine transactions, and this was equivalent to acting dishonestly. The 2nd defendant [i.e. the 2nd appellant] assisted Harbour Best in obtaining letters of credit for $9.36 million knowing that it was improper to do so. The only inference that can be drawn is that she did not disclose the eight letters of credit so that it would not bring her trouble.”
「40.正如前言所裁定八次交易是虛假，並沒有真實交易，這等同行為不誠實。第二被告人（即第二上訴人）協助港惠取得 936 萬元的信用證，明知行為不當，唯一推論就是不把八次信用證揭露，以免帶來麻煩。」

“41.Having analysed the facts of the case, I do not accept the evidence given by the 1st defendant [i.e. the 1st appellant]. I find that the eight transactions were false and were for the purpose of obtaining $9.36 million in cash at a low interest rate by making use of the existing credit facilities that the 1st defendant had with the bank.”
「41.本席分析案情後，不接納第一被告人（即第一上訴人）之證供，裁定八項交易是虛假，目的在利用第一被告人與銀行現有的信用服務，以低利息套取現金 936 萬。」

Reasons for verdict
判決的理由

The most fundamental issue in the present case is whether the eight transactions were false. Judge Chow answered the question in the affirmative and held that no substantial transaction existed in the case. Her Reasons for Verdict showed that she did not accept that Chi Shing was an agent. She gave the following reasons for her verdict:
本案最基本的一項爭議點是八項交易是不是虛假的交易。周法官裁定它們是虛假的交易，案件不存在實質交易。判案書的內容顯示周法官並不認同志成是代理人。周法官基於以下的理由來作出裁決：

The 1st appellant, on the one hand, said that he set up Top Fortune in order to reduce cost, but on the other hand, he employed Wong Kam Shing for a sum of $20,000 and, in addition, paid to Chi Shing additional service fees in respect of the said transactions. The two were contradictory. [Paragraph 28]
第一上訴人一方面說成立德運以減低成本，另一邊卻要用 $20000元聘請王金成，再給志成本交易的額外服務費，兩者前後矛盾。[第 28 段]

Chi Shing was the beneficiary on the letters of credit and was the nominal seller. Without paying a cent, Chi Shing, in the capacity of the owner of the goods, claimed to BoC that it was the owner of the goods under the 8 letters of credit. There was no evidence to show that Chi Shing was the owner of the 8 batches of goods or had title to those goods. Similarly, there was no evidence to show that Chi Shing had either entered into a purchase agreement with Top Fortune or entered into a contract of sale with Harbour Best. [Paragraph 29]
志成在信用證上是受惠人，名義是賣方，未有支付分毫，卻以貨主身分向中銀聲稱為八張信用證的貨主，並無証供顯示志成是這八批貨物的貨主或擁有這批貨的物權。同樣，並無証供顯示志成與德運有購貨協議，或與港惠訂合了銷售合約。[第 29 段]

The 1st appellant admitted that the goods concerned were never delivered to Chi Shing and that all the raw materials were still in the warehouse owned by the 1st appellant. [Paragraph 30]
第一上訴人承認有關貨物從來沒有送過到志成，所有原料仍留在第一上訴人擁有的貨倉內。[第 30 段]

Given the 1st appellant’s admission that the goods were never delivered to Chi Shing, how could Chi Shing have delivered the goods? Chi Shing could not claim to be the owner of the 8 batches of goods as it had paid nothing to Top Fortune to purchase those goods. [Paragraph 35]
第一上訴人承認從沒有把貨物運去志成，那麼何來志成已送了貨？志成並沒有支付分毫予德運購八批貨物，不能稱為物主。[第 35 段]

Our views
本庭意見

With respect, we do not think that the reasons given by Judge Chow could support her finding that there had never been any substantial transaction between the two parties. Her finding apparently rested on her non-acceptance of the appellant’s claim that Chi Shing was an agent. In our judgment, the finding on the question of whether or not Chi Shing was an agent was wrong.
本庭不認為周法官所持的理由可以支持她裁定雙方沒有進行過實質交易的裁決。這個裁決明顯地是基於她不接納第一上訴人聲稱志成是代理人的說法。本庭認為有關志成是不是代理人的裁決是錯誤的。

Under the law of contract, an agent can represent his principal in conducting a transaction with another party, and is free to choose to disclose or not to disclose who the principal is. Judge Chow ruled that there was no evidence to show that Chi Shing was the owner of the goods or had title to the goods because she had wrongly taken into consideration some irrelevant factors. If Chi Shing was an agent of Top Fortune in selling the goods, it did not have to become the owner of the goods before it could conduct any transaction with Harbour Best. If Chi Shing was an agent, whether it had paid for the purchase of the goods was not a relevant factor either.
根據合同法，一名代理人是可以代表他的委託人 (principal) 與另一方進行交易。代理人是可以選擇披露或不披露委託人的身分。周法官裁定本案沒有証據可顯示志成是貨物的貨主或擁有這批貨物的物權是因她錯誤地將一些沒有關連的因素納入考慮之列。若果志成是一名代表德運銷售貨物的代理人，它不需要成為這些貨物的貨主才可與港惠進行交易的。若果志成是一名代理人，它是否曾經付款購買這批貨物亦不是一項有關連的因素。

It is true that there was no written agreement in respect of the transactions in the present case. However, neither a contract between an agent and the principal nor a contract for the sale and purchase of goods between an agent and another party is required by law to be in writing in order to take effect.
明顯地，本案的交易並沒有任何書面協議，但在法律上無論是代理人與委託人之間的合約或者代理人與另一方所達成的貨物買賣合約都不需要書面協議方可生效的。

Furthermore, even if the said goods had not been removed from the warehouse where they were originally stored, it did not mean that there was no substantial transaction between the parties. Under the law of contract, physical delivery of goods by the seller to the buyer is not a prerequisite to the completion of a sale and purchase transaction. In the present case, on the 1st appellant’s evidence, the relevant goods did exist and he had taken stock for the purpose of the said transactions.
另外，就算有關貨物並未被搬離過原本存放的貨倉也不表示雙方沒有進行實質的交易。根據合同法，貨物的賣主是不需要將貨物實質地送達買方才算是完成交易的。在本案，根據第一上訴人的証供，有關的貨物的確存在，他並為了這次交易作出盤點。

The only basis left of Judge Chow’s decision was that the 1st appellant on the one hand averred that he intended to cut cost but on the other hand incurred additional expenditure. This, however, only concerned the credibility of the 1st appellant’s evidence. In our view, this point did not substantively answer the question of whether Chi Shing acted as an agent in the said transactions.On the contrary, the other grounds that Judge Chow relied upon to dismiss what the 1st appellant said were plainly wrong. In our judgment, what the 1st appellant said about agency was not groundless. This being the case, Judge Chow’s ruling that Chi Shing was not an agent, and then her ruling that no genuine transaction existed in the case, were both unsafe.
周法官所依賴的理據只是第一上訴人一面堅稱他欲降低成本，但另一面卻作出額外支出的說法，但這說法只不過是涉及第一上訴人証供的可信性。本庭認為這一點未能實質解答志成是否在這次交易中擔當代理人的疑問；反而周法官在反駁這說法時所依賴的其他理據就明顯是錯誤的。本庭不認為代理人之說是沒有理據的。在這情況下，周法官裁定志成不是代理人，繼而裁定案件不存在真實的交易是項不穩妥的裁決。

Since the prosecution’s cases against the 1st and 2nd appellants rested on the same basis, Judge Chow’s finding that there was no substantial transaction in the case had a direct impact on the convictions of both appellants.
由於控方針對第一及第二上訴人都是基於同一理據，故此周法官就案件作出沒有實質交易的裁決是直接影響他們兩人的定罪。

Declaration made by the 2nd appellant in her application for public assistance
第二上訴人公援的申報

In her Reasons for Verdict, Judge Chow made mention of the evidence from SWD but did not state clearly whether she relied on it. At trial, the 2nd appellant objected to the prosecution adducing such evidence, but Judge Chow ruled that the evidence was admissible. As the staff of SWD had not inquired of the 2nd appellant about Chi Shing, the 2nd appellant did not disclose to the staff the operation of Chi Shing. We do not think that the evidence from SWD could support the charges in the present case.
周法官在判決書提及社署的証供，但沒有清楚說明她是否依賴有關的証供。第二上訴人在原審時反對控方提出有關証供，但周法官裁定法庭是可以接納社署的証供。由於社署的職員沒有就志成向第二上訴人作出查詢，第二上訴人因此沒有向他披露志成的運作。本庭不認為社署的証供能支持本案的控罪。

Mr. Lee, SC, submits on behalf of the 2nd appellant that the prejudicial effect of the relevant evidence on the 2nd appellant far outweighed its probative value. In light of our judgment that Judge Chow had failed to resolve the core question in the present case, it is not necessary for us to discuss the said submission any further.
代表第二上訴人的李柱銘資深大律師指，有關的証供對第二上訴人所產生的負面影響遠超於証供本身的實際成效。本庭認為周法官未能解決本案的核心問題，因此無須再就這點作出討論。

Proviso
但書

One of the matters being discussed at the appeal hearing was whether the verdict could be upheld by applying the proviso. The discussion turned on this question: even if Chi Shing was an agent, did the transaction in question still fail to constitute a substantial transaction from an objective point of view or from BoC’s point of view? However, there was no evidence from BoC in the case, and more importantly, the said discussion had nothing to do with the basis on which the prosecution at trial sought to hold the two appellants culpable. At trial, the prosecution completely denied any involvement of an agent in the transactions, and it was not the prosecution’s case that no genuine transaction existed even if Chi Shing was an agent. A defendant to a criminal prosecution will run his defence against the basis put forward by the prosecution in respect of the defendant’s culpability. If the prosecution wishes to rely on some other basis for holding the defendant culpable, it is incumbent upon the prosecution to make such a request to the court at trial so that the defence can respond as appropriate. In the present case, it is true that the prosecution could not possibly rely on the agency basis when the trial commenced because it came to be aware of the agency issue only when the appellant gave evidence. However, in any event, after the 1st appellant had given evidence in his defence, the prosecution still only relied on the basis that Chi Shing was not an agent in support of the argument that there was no substantial transaction between the two parties. To allow the prosecution to proceed with the hearing on another basis at this stage would be extremely unfair to the defence. Mr. Lee, Senior Assistant Director of Public Prosecutions for the respondent, has, in our view fairly and correctly, informed us that the prosecution will not on this basis invite us to apply the proviso.
在上訴聆訊時，其中一項議題是本庭可否引用但書來維持判決，有關的討論內容是即使志成是一名代理人，從客觀或者從中銀的角度有關的交易是否仍未能構成一項實質的交易呢 但本案欠缺中銀的証供，而更重要的是有關的討論並不涉及控方在原審時提出兩名上訴人需要負上刑責的理據。原審時控方的立場是全然否定交易中涉及代理人，而並不是即使志成是代理人本案仍不存在真實的交易。辯方在處理在刑事檢控的案件時是要根據控方就被告人的罪責所提出的理據來進行答辯。若控方欲依賴其他罪責為理據，他是有責任在審訊時向法庭提出要求，好讓辯方作出適當的回應。當然，本案的控方只是在上訴人作供時才獲悉代理人一事，因而沒法在開審時依賴另一理據；但無論如何，在第一上訴人作出答辯後，控方仍然只是依賴志成不是代理人來支持它認為雙方是沒有進行實質交易之說。若本庭在現階段批准控方以另一理由來進行聆訊，對辯方是極之不公平的。代表答辯人的李運騰高級助理刑事檢控專員向法庭表示辯方不會依賴這點來要求法庭使用但書。本庭認為這是一項公正及正確的立場。

Appeal allowed
批准上訴

For the above reasons, we allow the appeal of the two appellants.
基於上述原因，本庭裁定兩名上訴人的上訴得直。

Re-trial
重審

Mr. Lee has applied for re-trial.
李運騰大律師向法庭申請重審。

At trial, after the 1st appellant had given evidence and explanations in respect of the charges, Counsel for the respondent at trial indicated to Judge Chow that she might apply to adduce rebuttal evidence, including evidence on BoC’s stance towards the 1st appellant regarding the transactions. It can be seen from the transcript that Counsel did not indicate specifically that she would take actual action regarding the application. Judge Chow therefore did not specifically rule on this point; she merely asked the parties whether they would make closing submissions if she refused the application. Closing submissions from both parties did not follow instantly but were adjourned by Judge Chow to another day. Had Counsel for the respondent indeed intended to adduce rebuttal evidence, she could still have adduced it at the resumed hearing. But she had not done so.
當第一上訴人在原審就控罪作供及作出辯解後，當時代表答辯人的律師曾經向周法官表示她可能會申請提出反駁証據，包括中銀對第一上訴人就有關的交易所持的立場。本庭從聆訊記錄中看到律師沒有明確表示她會就有關申請採取實際行動，周法官因此亦沒有就這點作出明確的裁決；周法官只是說若她拒絕這項申請，雙方是否會作出結案陳詞。雙方的結案陳詞並非是隨即進行，周法官是另訂日期讓雙方作出結案陳詞。若果答辯人的律師確實是想提出反駁証供，她仍然是有機會在案件恢復聆訊時提出的，但她沒有這樣做。

In our judgment, having been made aware of the appellants’ defence, the respondent did have the opportunity to indicate to the court that the appellants were culpable on the relevant basis and to apply to adduce new evidence in support of its stance; but it did not take the opportunity to do so. An order for re-trial would in effect allow the respondent to bring a new prosecution on another basis. This, in our view, would be unfair to the appellants. We therefore refuse the application for re-trial.
本庭認為答辯人在獲悉上訴人的答辯理由後，若它當時向法庭表示上訴人須就有關理據負上刑責及提出新的証供來支持其立場的話，它是有機會這樣做的；但它沒有利用這個機會作出申請。若本庭批准重審，即是實質地給予答辯人以另一理據來提出一項新的檢控，本庭認為這對上訴人是不公平，因此拒絕重審申請。

Costs order
訟費命令

Mr. Lok, SC for the 1st appellant has applied for costs of the appeal on behalf of the 1st appellant. The 2nd appellant has made a similar application. As Mr. Lee has raised no objection to the applications, we order that both appellants be awarded costs of the appeal.
代表第一上訴人的駱應淦資深大律師申請第一上訴人的上訴訟費，第二上訴人亦作出同一申請。李運騰大律師不反對有關申請，故此本庭命令兩名上訴人可獲本上訴的訟費。

We refuse the 2nd appellant’s application for costs of the trial for the following reason. The prosecution had adduced prima facie evidence against the 2nd appellant in respect of the fraudulent acts in which she was involved. She had elected to remain silent during the investigation in respect of her conduct in dealing with the 8 letters of credit. She certainly had the right of silence, but her attitude had brought suspicion upon herself. For this reason, notwithstanding the quashing of her conviction, we exercise our discretion and refuse to award the 2nd appellant costs of the trial.
本庭拒絕第二上訴人提出的原審訟費的申請，理由是控方已就第二上訴人涉及的欺詐行為提供了表面証供，第二上訴人在接受調查時選擇就她處理八次信用證的行為保持緘默，這當然是她的權利；但她所持的態度令人對她的行為產生懷疑，因此雖然她的定罪被撤銷，本庭仍行使酌情權，裁定第二上訴人不可獲判原審的訟費。

Mr. Alex Lee, Senior Assistant Director of Public Prosecutions and Mr. Beney Wong, Senior Public Prosecutor, for the HKSAR.
答辯人：由律政司高級助理刑事檢控專員李運騰及高級檢控官黃志偉代表。

Mr. Lawrence Lok, SC, Mr. Eric Kwok, SC and Ms. Vivian Ho, instructed by Simon C. W. Yung & Co., for the 1st Applicant.
第一申請人：由翁宗榮律師行轉聘駱應淦資深大律師，郭棟明資深大律師及何慧嫻大律師代表。

Mr. Martin Lee, SC, Mr. Chase Pun and Mr. Joseph Lee, instructed by Howell & Co., for the 2nd Applicant.
第二申請人：由何和禮律師行轉聘李柱銘資深大律師，潘志明大律師及李祖詒大律師代表。