Hon Yeung JA (giving the judgment of the Court):
上訴法庭法官楊振權頒發上訴法庭判案書：

There remain only 7 applicants in the present case. Three of them are companies, namely the 4th Applicant Chung Luen (Holdings) Limited (hereinafter “Chung Luen Holdings”), the 7th Applicant Yau Luen Hong International Limited (hereinafter “Yau Luen Hong”) and the 9th Applicant Kwong Ming International (Holdings) Limited (hereinafter “Kwong Ming International”). The other four applicants were the persons-in-charge of those companies.
本案只餘下七名申請者，包括三間公司，即第4申請人中聯（集團）有限公司（“中聯集聯”），第7申請人，友聯行國際有限公司（“友聯行”）和第9申請人光明國際有限公司（“光明國際”）。另外四名申請人則是公司的負責人。

The 3rd Applicant Chan Charn Sum was a person-in-charge of Chung Luen International, the 5th Applicant Chan Charn Lam and the 6th Applicant Shum Kit Yee were directors and persons-in-charge of Yau Luen Hong, whereas the 8th Applicant Iu Kwong Wa was a director of Kwong Ming International.
第3申請人陳燦森是中聯國際的負責人，第5申請人陳燦林和第6申請人岑潔儀是友聯行的董事及負責人，而第8申請人姚光華則是光明國際的董事。

On 6 April 2006, following a complaint and investigations thereof, the Hong Kong Customs and Excise conducted searches at a number of warehouses of Chung Luen Holdings and Yau Luen Hong, located at On Lok Factory Building, Ha Heung Road, Kowloon. Large quantities of “fake” Maling Brand and Narcissus Brand canned food were found upon search.
2006年4月6日，香港海關在接獲投訴及作出調查後搜查中聯集團和友聯行位於九龍下鄉道安樂工業大厦的多個貨倉，結果搜出大批“冒牌”梅林牌及水仙花牌罐頭食品。

Chan Charn Sum admitted that the canned products found inside the Chung Luen Holdings warehouses were purchased by him on behalf of Chung Luen Holdings for sale.
陳燦森承認負責為中聯集團購入從其貨倉搜出的罐頭食品作銷售之用。

Chan Charn Lam and Shum Kit Yee also admitted that the canned products found inside the Yau Luen Hong warehouses were purchased by them and owned by Yau Luen Hong.
陳燦林和岑潔儀亦承認友聯貨倉搜出的罐頭食品是由他們負責採購得來，屬友聯行所有。

The “fake” canned products found inside the Yau Luen Hong warehouses included 51,840 cans of “Maling Brand” pickled cabbage which were supplied to Yau Luen Hong by Kwong Ming International.
在友聯行貨倉搜獲的“冒牌”罐頭中，有51,840罐“梅林牌”雪菜是由光明國際供應給友聯行的。

On 10 April 2006, Customs officers arrested Iu Kwong Wa, a director of Kwong Ming International. Iu Kwong Wa admitted that Kwong Ming International had supplied to Yau Luen Hong a batch of “Maling Brand” pickled cabbage, including the 51,840 cans of pickled cabbage found inside the Yau Luen Hong warehouses on 6 April 2006. Customs officers seized from the office of Kwong Ming International an invoice dated 7 March 2006. The invoice, issued and signed by Iu Kwong Wa, indicated that Kwong Ming International had sold the said 51,840 cans of “Maling Brand” pickled cabbage to Yau Luen Hong.
2006年4月10日海關關員拘捕了光明國際的董事姚光華。姚光華承認光明國際曾將一批“梅林牌”罐頭雪菜，包括在2006年4月6日在友聯行貨倉搜獲的51,840罐雪菜，供應給友聯行。關員在光明國際的辦事處檢獲一張日期為2006年3月7日的發票。該發票由姚光華簽發，顯示光明國際有出售該批51,840罐“梅林牌”雪菜給友聯行。

As a result of the incident, the applicants and a few other persons were charged with offences contrary to section 9(2) of the Trade Descriptions Ordinance, Cap. 362 of the Laws of Hong Kong.
事件導致各申請人和另外數名人士被控違反香港法例第362章《商品說明條例》第9（2）條。

The five charges against Chung Luen Holdings, Chan Charn Sum and one other director, as well as the two charges against Yau Luen Hong, Chan Charn Lam and Shum Kit Yee, were that they had in their possession, for sale or for the purpose of trade, goods to which forged trademarks were applied. The charge against Kwong Ming International and Iu Kwong Wa was that they had sold goods to which forged trademarks were applied.
針對中聯集團、陳燦森和另一董事的五項控罪以及針對友聯行、陳燦林和岑潔儀的兩項控罪都指他們管有應用偽造商標的貨品作出售或商業用途。針對光明國際和姚光華的一項控罪則指他們出售應用偽造商標的貨品。

All applicants pleaded not guilty to the respective charges. The case was tried before Deputy District Judge Johnny Chan.
各申請人都否認控罪。案件在區域法院暫委法官陳仲衡席前審理。

Having called all its witnesses, the prosecution applied to amend all the charges by substituting, in respect of the goods which the applicants had allegedly possessed or sold, “to which false trade descriptions were applied” for “to which false trademarks were applied”. According to the proposed amendments, Kwong Ming International and Iu Kwong Wa were charged under section 7(1)(a)(ii) of the Trade Descriptions Ordinance (for having supplied goods to which false trade descriptions were applied), whereas the other applicants were charged under section 7(1)(b) (for having in their possession, for sale or for the purpose of trade, goods to which false trade descriptions were applied).
控方在傳召了所有控方證人作供後，申請修訂全部控罪，將申請人管有或出售的貨品上有“應用偽造商標”的指控，改為有“應用虛假商品說明”的指控。修訂的控罪是指光明國際和姚光華違反了《商品說明條例》第7(1)(a)(ii)條(供應已應用虛假商品說明的貨品)而其餘申請人則違反了第7(1)(b)條（管有已應用虛假商品說明的貨品作出售或商業用途）。

The defence opposed the prosecution’s application to amend the charges, but to no avail. Judge Chan took the view that the original charges were defective and that the proposed amendments were necessary in the circumstances of the case. In allowing the prosecution’s application to amend the charges, Judge Chan made the following ruling:
辯方反對控方的修訂申請，但不成功。陳法官認為原控罪欠妥，而修改控罪亦符合案件所需。在作出批准控方修訂控罪時，陳法官有以下裁定

The evidence against the defendants does not change as a result of [the amendments to the charges]. It is just that they no longer have to deal with the issues of who owned the relevant trademarks or whether they were forged. In relation to the COFCO’s trademarks and descriptions, the defence also had ample opportunity to cross-examine the witnesses. In my view, neither the prosecution’s evidence nor the basis of the prosecution’s case is altered.
被告所面對的證供並沒有因此（修改控罪）而改變，只是他們無須處理有關商標是誰所擁有及是否偽造的問題。有關中糧的商標說明，於證人接受盤問時，辯方亦有充足的機會對證人作出挑戰。法庭認為控方的證據並沒有改變，而指控的基礎亦沒有變更。”

Having allowed the prosecution’s application to amend the charges, Judge Chan adjourned the trial to enable the defence to re-assess its position and formulate a proper response to the amended charges.
陳法官批准了控方的修訂申請後，將案件押後聆訊以便辯方有機會重新評估形勢及就修訂後的控罪作出適當回應。

In order to ensure a fair trial, Judge Chan ordered that, at the resumed hearing, the defence would be entitled to cross-examine the prosecution witnesses again in respect of the amended charges.
陳法官下令聆訊重開時，控方證人需就修訂後的控罪再接受辯方的盤問，確保審訊公平。

Judge Chan also made a costs order to ensure that the applicants would not suffer any pecuniary loss in respect of costs as a result of the amendments.
陳法官更頒下訟費判令，使各申請人不會因為修訂控罪而蒙受任何和訟費有關的經濟損失。

When the trial resumed, the prosecution reopened the examinations-in-chief for some witnesses. The defence raised no objection thereto.
審訊重開後，控方有重開對部份證人的主問，辯方沒有反對。

After trial, with the exception of a charge against Chung Luen Holdings, Chan Charn Sum and one other director, all charges against the applicants were found established and they were convicted accordingly.
經審訊後，除了針對中聯集團、陳燦森和另一董事的一項控罪外，所有申請人的全部控罪都成立。

Except Chan Charn Lam who was sentenced to imprisonment for a total of 10 months, all the applicants were sentenced to fines ranging from a few thousand dollars to tens of thousands of dollars.
除了陳燦林被判入獄共10個月外，其他申請人則被罸款數千至數萬元不等。

All applicants have applied for leave to appeal against convictions. Chan Charn Lam previously applied for leave to appeal against sentence, but he subsequently withdrew the application.
全部申請人都提出上訴許可申請希望獲准就定罪上訴。陳燦林亦曾就判刑提出上訴許可申請，但其後放棄。

We therefore only have to deal with the applicants’ applications in respect of convictions.
因此，本庭只需處理各申請人就定罪的申請。

Prosecution’s case and evidence
控方的立場和證據

China National Cereals, Oils & Foodstuffs Corporation (hereinafter “COFCO”) is the owner of the trademarks of “Maling” and “Narcissus” in Hong Kong and the PRC. The Customs alleged that the marks of “Maling” or “Narcissus” and other marks of COFCO had been applied to the canned products in question without the approval or knowledge of COFCO, and therefore those products were goods to which false trade descriptions were applied.
中國糧油食品（集團）有限公司（“中糧油”）是“梅林牌”和“水仙花牌”在香港及國內的商標擁有人。海關指涉案的罐頭食品是未在中糧油批准或知情下應用了“梅林”或“水仙花”商標及其他中糧油標記，故屬虛假商品說明的商品。

The search and seizure of the goods, which was not in dispute, was tendered as evidence by way of Admitted Facts. In addition, the prosecution called the following witnesses to give evidence at trial: Mr. Zhu Bing (朱兵), Manager of COFCO; Mr. Zhang Jing (張靜), Business Manager of COFCO Industrial Food Import & Export Company Limited (hereinafter “COFCO Industrial Food”), and Mr. Kam Wing Shing (金永成), Manager of Hong Kong Dah Fat Company Limited (hereinafter “Dah Fat Company”).
除了搜獲涉案貨品的證據因不具爭議而以承認事實書呈堂為證外，控方傳召了中糧油的經理朱兵先生，中糧工業食品進出口有限公司（“中糧工業食品”）的業務經理張靜先生及香港大發食品有限公司（“大發食品”）的經理金永成先生作供。

According to Mr. Zhu, COFCO owned the trademarks of “Maling Brand” and “Narcissus Brand” but had at different times authorized various companies to apply the “Maling” and “Narcissus” trademarks to canned food.
朱先生指出中糧油是“梅林牌”和“水仙花牌”商標的擁有人，但中糧油曾在不同時段授權不同公司使用“梅林”和“水仙花“商標於罐頭食品上。

Mr. Zhu agreed that COFCO had changed its company name more than once since 31 August 1998, details of which were as follows:
朱先生同意中糧油自1998年8月31日開始曾不止一次改公司名稱，詳情如下：

Until 31 August 1998, the full name of COFCO was ‘China Cereals, Oils and Foods Import and Export Company (an unincorporated body)’. On 31 August 1998, it was changed to ‘China Cereals, Oils, Foods Import and Export (Group) Company Limited (a body corporate)’. Since 1 September 1994 the name has been changed to its current one, namely ‘中國糧油食品（集團）有限公司 (a body corporate)’, and its name registered in English is China National Cereals, Oils and Foodstuffs Import & Export Corporation.
1998年8月31日前中糧油全名為‘中國糧油食品進出口總公司（非法人團體）’。1998年8月31日改名為“中國糧油食品進出口（集團）有限公司（法人團體）”，而在2004年9月1日則再改為目前名字，即‘中國糧油食品（集團）有限公司（法人團體）’，而以英文註冊的名字為China National Cereals, Oils and Foodstuffs Import & Export Corporation.”

Having compared the information shown on the canned food found from the applicants’ premises with the information he had on hand, Mr. Zhang Jing concluded that the trademarks displayed on the canned food in question had been applied without the authorization of COFCO. In respect of the various items of canned food particularized in the charges, Mr. Zhang Jing examined the samples of the canned food one by one and explained why they were fake goods. His conclusion was based on the labels of the cans, names of the distributors, dates of manufacture, the descriptions of the names of the companies granting and receiving authorization, and the investigation he had conducted.
根據從各申請人處搜獲的涉案罐頭食品上的資料和他手上的資料作出比較，張靜先生得出的結論是該批罐頭食品顯露的商標是未經中糧油授權下使用的。就各項控罪所指的罐頭，張靜先生逐一驗證不同罐頭的樣本及解釋為何它們都是假貨。張靜先生得出的結論是根據罐頭標籤、經銷商名字、貨品出產日期、授權及獲授權公司名字的描述和他作出的調查而作出的。

Mr. Kam Wing Shing said that Dah Fat Company was one of the three distributors who were authorized to sell goods under the “Maling Brand” and “Narcissus Brand” in Hong Kong. He explained how Dah Fat Company would handle complaints from the public about product quality and the presence of fake goods. He said that when a problem arose, Dah Fat Company would buy a small quantity of the goods for investigation and, if necessary, send the goods to COFCO in Beijing for verification.
金永成先生指出大發食品是中糧油在香港獲准銷售“梅林牌”及“水仙花牌”貨品的三間經銷商之一。他就市民投訴貨品質量及冒牌貨出現的處理方法向法庭解釋，並指出有問題時，大發食品會購買小量貨品研究及在有需要時會將有關貨品寄往北京的中糧油認證。

Applicants’ defence
申請人的答辯理由

Apart from the explanations given by individual applicants on how they obtained the fake canned products in question, no challenge had been mounted by the defence on the elements of the charges or the prosecution’s case. Individual applicants also explained the confessions that they made to the Customs officers upon arrest. In essence, however, the applicants’ position at trial was that they wished to establish the defence under section 26 of the Trade Descriptions Ordinance.
除了個別申請人就如何取得涉案冒牌罐頭食品的情況向法庭解釋外，辯方沒有挑戰各控罪的要素或反駁控方的立場。個別申請人亦有就他們被捕後向關員的招認作出解釋，但各申請人原審時的基本立場只是希望能確立《商品說明條例》第26條賦予的免責辯護。

Judge’s findings
原審法官的裁定

Having carefully analyzed the evidence of both parties, Judge Chan held that, save and except the 5th Charge against Chan Charn Sum and Chung Luen Holdings, all charges against the applicants were established. The Judge held that, apart from the canned products particularized in the 5th Charge, all the canned products in question bore the trademarks of “Maling” or “Narcissus” or other marks owned by COFCO, which indicated that they were distributed with the authorization of COFCO or related to COFCO; in fact, however, the goods were neither distributed by/manufactured with the authorization of COFCO or COFCO Industrial Food, nor related to COFCO or COFCO Industrial Food.
陳法官經詳細分析雙方的證據後裁定除了針對陳燦森和中聯集團的第五項控罪外，其餘全部控罪都確立。陳法官裁定除控罪五的罐頭外，其餘涉案的罐頭，都有“梅林”“水仙花”的商標或其他中糧油標記，顯示獲中糧油授權經銷或和中糧油有關，但它們都並非中糧油或中糧工業經銷或授權出產的貨品，亦和中糧油或中糧工業無關。

Judge Chan rejected both the applicants’ explanations that they had no knowledge of the matter and other exculpatory explanations given by them, and accordingly held that they could not rely on the defence of mistake or accident under section 26 of the Trade Descriptions Ordinance. On that basis, Judge Chan held that, save and except the 5th Charge against Chung Luen Holdings and Chan Charn Sum, all charges against the applicants were established.
陳法官亦否定各申請人指對事件不知情或無罪的解釋，故不能根據《商品說明條例》第26條以錯誤、意外等理由作為免責辯護。因此，除了針對中聯集團和陳燦森的第五項控罪外，陳法官裁定針對各申請人的全部控罪都成立。

Grounds of appeal
上訴理由

The applicants do not take issue with most of the findings of fact by Judge Chan. They also accept the Judge’s conclusion that they had failed to establish any defence under section 26 of the Trade Descriptions Ordinance.
各申請人對陳法官的事實裁決大部份不表異議，亦接納陳法官指他們未能根據《商品說明條例》第26條確立任何免責辯護的理由。

Indeed, the applicants basically agree that, on the findings of fact made by Judge Chan, he was correct in convicting the applicants on the charges.
事實上各申請人基本上同意根據陳法官裁定的事實，裁定他們各項控罪有罪的決定是正確的。

The main ground of appeal put forward by Mr. Kwok, SC, Counsel for the applicants, is that procedural irregularities and injustice arose when Judge Chan allowed the prosecution to amend the charges by substituting “false trade descriptions” for “forged trademarks”.
代表各申請人的郭棟明資深大律師主要的上訴理由是指陳法官批准控方修訂控罪將有關“偽造商標”的指控改為是“虛假商品說明”的指控，構成程序上不規則，亦導致不公平的情況出現。

Mr. Kwok, SC submits that Judge Chan erroneously held that, despite the amendments to the charges, the defence would still have ample opportunity to challenge the evidence of the prosecution witnesses or the basis of the prosecution’s case would remain the same. It is contended that by the time the charges were amended, the applicants could not reverse what they had already done by way of defence to the original indictment. And the way the applicants had defended the case made it easier for the prosecution to prove the amended charges. The amended charges therefore caused injustice to the applicants.
郭資深大律師強調陳法官錯誤地裁定控罪經修訂後，辯方有充足機會挑戰控方證人的證供或控方的指控的基礎沒有變更。郭資深大律師力稱當修訂控罪時，辯方根據原公訴書作出的答辯行為已不能逆轉，該些答辯行為亦令控方較容易確立新修訂的控罪。因此修訂控罪對申請人不公平。

Mr. Kwok, SC has also pointed out in his written submissions that the trial had to be adjourned following the amendments to the charges, and the ensuing delay was unfair to the applicants, and, contrary to what the Judge said, such unfairness could not be eliminated by the costs order made by the Judge.
郭資深大律師亦在書面陳述中指修訂控罪而導致的押後聆訊安排產生延誤，對申請人做成不公平，但陳法官作出的訟費命令不能如其所稱可以消除對申請人做成的不公平。

Mr. Kwok, SC further submits that, in the absence of any finding by the Judge as to which of the trade descriptions on the canned products as particularized in the charges were false or why they were false, the applicants’ convictions were unsafe.
郭資深大律師更指陳法官沒有裁定控罪所涉的罐頭上的商品說明那些屬虛假或該些說明為何是虛假，因此裁定申請人有罪是不穩妥的決定。

Discussion
討論

Judge Chan gave a detailed account of the evidence by Mr. Zhang Jing. The Judge pointed out that the canned products in question bore not only the trademarks of “Maling” or “Narcissus”, but also the name of COFCO or a similar name such as COFCO Industrial Food or the former name of COFCO.  The Judge also pointed out that the products were packaged in a similar way, using packaging paper of the same colour, and that there were statements indicating that COFCO had authorized companies with names similar to COFCO to sell the products.
陳法官詳細列出張靜先生的證供。陳法官指出涉案的罐頭不單有“梅林”或“水仙花”的商標，亦有用上中糧油或相若的名字，如中糧工業，舊中糧和相似的包裝，包括包裝紙的顏色，更有陳述顯示中糧油有授權其他和中糧油公司名字類似的公司銷售。

Judge Chan was satisfied that the above trademarks, names, packaging and statements etc. would lead one to believe that, contrary to the truth, the canned products in question were manufactured, produced, processed and reconditioned by COFCO, or that they were approved by COFCO or fell within the type of products approved by COFCO.
陳法官認定採用上述商標，名字，包裝、陳述等等都會令人相信涉案罐頭是中糧油製造、生產、加工和修復，或得到中糧油的認可或與它所認可的類型相符，但實際是非真有其事。

The Judge made the following findings in paragraph 146 of his Judgment:
原審法官在判案書第146段作出以下裁決：

The Court is of the view that PW14’s testimony clearly indicates that the canned products in Charges 1 to 4 and 6 to 12 were products to which false trade descriptions were applied. Although the trade descriptions were false in different ways and to different extents, they obviously led one to believe that the canned products were manufactured, produced, processed and reconditioned by COFCO, or were at least related to COFCO and of a type approved by COFCO. When the name of COFCO was applied to the canned products, one would naturally think that the products were made by COFCO. If a name similar to ‘COFCO’ was used, such as ‘former COFCO’, and even packaging similar to PX75 or packaging paper of the same colour was used, people would easily be misled. If information such as COFCO, COFCO Industrial Food, ‘Maling’ or ‘Narcissus Brand’ was applied to the canned products with which such information had in fact no connection, such description or display would be false to a material degree.
法庭認為控方證人十四的證詞清楚顯示控罪一至四，六至十二的罐頭是應用了虛假商品說明的貨品，他們的虛假程度方式有別，程度亦有別，但均清楚使人相信是中糧製造、生產、加工和修復，或最少是與中糧有關，並經中糧認可，類型相符。當罐頭是用上中糧的名字，當然是會使人想到貨品是中糧的出品。如用上與「中糧」相若的名字，如「舊中糧」，甚至如PX75與相似的包裝，頻色紙包裝，亦會使人容易被誤導。中糧、中糧工業、「梅林」、「水仙花牌」等資料若用於罐頭上，而非真有其事，此一虛假程度屬於關程度的說明或顯示。”

Mr. Kwok, SC submits that Judge Chan did not make any findings on which of the trade descriptions on the canned food in question were false or why they were false. With respect, we cannot accept this submission which is in our view misconceived. Given the factual matrix of the present case, the way in which Judge Chan dealt with the case was reasonable, correct and amply sufficient. He had set out the results of the verification by Mr. Zhang in relation to each charge, and as a matter of fact, at trial the defence never challenged the prosecution’s case on whether the elements of the charges had been established. The Judge cannot be faulted for not having dealt with the relevant issues in greater depth.
郭資深大律師指陳法官沒有裁定涉案罐頭的商品說明那些是虛假或為何該些說明是虛假。本庭認為該陳詞不正確，本庭不接納。以本案背景而言，陳法官的處理方法合理、正確亦十分足夠。法官已就每一項控罪列出張先生核正的結果，而事實上原審時，辯方完全沒有就控罪要素是否成立一事反駁控方的立場。原審法官沒有更詳盡處理有關議題是無可厚非的。

Section 23 of the Criminal Procedure Ordinance, Cap. 221 of the Laws of Hong Kong, provides as follows:
香港法例第221章《刑事訴訟程序條例》第23條列明：

Where, before trial or at any stage of a trial, it appears to the court that the indictment is defective, the court shall make such order for the amendment of the indictment as the court thinks necessary to meet the circumstances of the case unless, having regard to the merits of the case, the required amendments cannot be made without injustice.
凡在審訊前或在審訊的任何階段，法庭覺得公訴書欠妥，法庭須作出其認為符合案件情況所需的命令以修訂公訴書，但如在顧及案件的是非曲直後，覺得作出所需的修訂必會造成不公正，則屬例外。”

The above provision states in clear language that the court has both the power and duty to amend a defective indictment unless the amendments will cause injustice.
上述條例的用詞是明確的，在公訴書欠妥時，法庭不但有權，更有責任修訂公訴書，除非修訂會導致不公平。

On the question of how the court should amend an indictment pursuant to section 23 of the Criminal Procedure Ordinance, the Court of Appeal laid down clear guidelines in the case of AG v Chan Hung Hoi [1987] HKLR 969.
在該如何根據《刑事訴訟條例》第23條修訂公訴書，上訴法庭在AG v Chan Hung Hoi [1987] HKLR 969案有明確指引。

In that case, having reviewed a number of English authorities, Roberts CJ held that it was open to a judge to order the amendment of an indictment if the evidence adduced at trial did not support the allegations contained in the indictment, provided that the amendment would not lead to injustice.
當時首席按察司羅拔時，經審閱過多個英國判例後指出，在審訊過程假若證據不支持公訴書的指控時，法庭可以修訂公訴書，只要修訂不會做成不公平。

Roberts CJ concluded (at p. 974) that:
羅拔時首席按察司在判案書第974頁作出以下結論：

The trial judge has a power to consider, of his own motion, whether to amend the indictment in accordance with its provisions.
主審法官有權主動考慮是否根據有關條款修訂公訴書。

There is no duty on him to exercise that power of his own motion.
主審法官沒有責任必需主動考慮修訂公訴書。

If application is made for such amendment by the Crown or the defence, the judge is obliged to consider the application.
但如控方或辯方作出修訂的申請，則主審法官必需考慮修訂申請。

In considering that application, the judge is obliged to make such amendment as is necessary to meet ‘the circumstances of the case’, unless the required amendments ‘cannot be made without injustice’.
考慮修訂申請時，主審法官必需作出符合案件情況所需的修訂，除非作出的修訂必會做成不公平。

This power may be exercised at any time during the course of trial, in the case of a District Court up to the moment of delivery of judgment.
修訂公訴書的權力可以在審訊任何階段行使，以區域法院案件而言，是在頒下判案書前的任何一刻。”

Mr. Kwok, SC contends that the original indictment alleged that forged trademarks had been used on the products in question, whereas the amended indictment alleged that false trade descriptions had been used on those products. With this change of allegation, the issues to be addressed by the defence also changed. Therefore, it is submitted, the amendments to the indictment caused injustice to the applicants.
郭資深大律師強調原公訴書上的控罪指貨品用了偽造商標的而修訂後的控罪則指貨品用了虛假說明，指控不同，辯方要處理的問題亦有別。因此修訂公訴書對申請人做成不公平。

It goes without saying that the allegations in the original indictment must be different from those in the amended indictment, which is what makes an amendment necessary in the first place. The fact that the defence may, as a result of the amendment, have to deal with certain issues that may otherwise not arise does not necessarily mean that the amendment will cause injustice. If an amendment to the indictment is not allowed for the reason that it will alter the allegations against the defence and hence cause injustice, the court’s power to make such amendments will become illusory.
當然修訂前和修訂後公訴書的指控必然有別，否則無需修訂。修訂後的公訴書亦可能導致辯方要處理一些修訂前不一定要處理的問題，但這不表示修訂必會做成不公。假若因修訂公訴書會導致針對被告人的指控有別故做成不公，而不批准修訂，則修訂的權力便形同虛設。

In the present case, the improper conduct being alleged against the applicants both before and after the amendments to the indictment was essentially the possession or supply of canned products that suggested, contrary to the truth, that they were related to COFCO. The prosecution all along alleged that the batch of canned food was not products of “Maling” or “Narcissus Brand” and hence had nothing to do with COFCO. In our view, the alleged improper conduct was basically the same both before and after the amendments to the indictment. We have not ignored the principle that a broad approach should be taken in considering the scope of “improper conduct” (see the decision by the Court of Final Appeal in Poon Chau Cheong v SJ [2000] 2 HKLRD 636). In all the circumstances of the case, the “irreversible” (as submitted by Mr. Kwok, SC) information disclosed by the applicants in the defence to the original indictment was in fact insignificant and no question of injustice would have arisen.
在本案，修訂前和修訂後所指的不當行為，基本都是指申請人管有或供應的罐頭食品顯示它們是和中糧油有關的貨品，而事實上並非如此。由始至終，控方指該批罐頭食品並非是“梅林”或“水仙花牌”的出產，因而和中糧油無關。本庭認為修訂前和修訂後指控申請人的不當行為基本上相同。本庭不能忽視考慮“不當行為”的範圍時應採納較宏觀的方法（見終審法院在Poon Chan Cheong v SJ [2002] 2HK 279案的判決）。郭大律師所指申請人就原控罪答辯時所透露的“不可逆轉”資料，以整體案件而言，實在是微不足道，亦不會導致任何不公平的情況出現。

The key issue pertinent to the present application is not whether the amendments gave rise to new issues for the defence, but whether the defence had been given ample opportunity to properly deal with the issues that arose from the amendments to the indictment.
和本申請有關的重要議題並非辯方是否因修訂而要處理新的問題，而是在修訂公訴書後，辯方是否有足夠機會適當處理修訂後的公訴書所引發的問題。

If an amendment to the indictment will alter the allegations against a defendant but he is not given ample opportunity to raise a defence that he wishes to raise to the new allegations, and the defendant will be able to raise such defence if the prosecution’s allegations are made well in advance, then the amendment will cause injustice.
假若修訂公訴書會改變了對被告人的指控，但被告人不能獲得足夠機會就新的指控提出其希望提出的答辯理據而假若控方一早提出新的指控時，辯方能提出該些答辯理據，則修訂會導致不公平情況出現。

The present case, however, is entirely different from the above scenario. The prosecution’s case against the applicants had all along been that they had possessed or sold canned products that appeared to be related to COFCO, i.e. they were of “Maling Brand” or “Narcissus Brand”, but in fact those products were in no way related to COFCO and were fake products.
但本案絕非和上述情況有關，控方由始至終都指各申請人管有或出售一些表面上似和中糧油有關的罐頭貨品，即梅林牌或水仙花牌罐頭，而事實上該些貨品和中糧油完全無關，屬冒牌貨品。

As COFCO had changed its name many times, it was somewhat difficult to adduce evidence in respect of the trademarks. The allegations in the indictment were therefore amended to those involving false trade descriptions. This did not alter the substance of the allegations against the applicants or the evidence in relation thereto.
由於中糧油曾多次更改公司名字，令商標一事在舉證上有一些困難，故將公訴書的指控改為虛假商品說明，但指控申請人的實質無變，證據亦是一樣。

Furthermore, after the indictment was amended, the applicants were given ample opportunity to put forward such defence as they wished. At trial, the applicants were well aware of the prosecution’s case and were able to defend the prosecution’s allegations as they wished and call witnesses to testify on their behalf. On the other hand, the amendments to the indictment did not result in any substantial change to the evidence for the defence.
再者，修改公訴書後，申請人有足夠機會作出其希望作出的答辯理據。原審答辯時，各申請人都明確知悉控方立場。他們亦能就控方對他們的指控作出他們希望作出的答辯理由及傳召證人為他們作供。反觀他們的答辯證據亦不會因修訂公訴書有任何實質的改變。

As a matter of fact, whether at trial or at the present stage, the applicants were unable to specify what real impact on their defence or what kind of injustice had been caused by the amendments to the charges.
事實上，不論是原審或在目前階段，申請人都不能明確指出修改公訴書對他們的答辯有任何實質的影響或會導致甚麼不公正的後果。

After the trial resumed, the prosecution reopened the examinations-in-chief for the purpose of highlighting the key issues of the case. The prosecution’s failure to apply to the Judge for permission to do so was a procedural omission and the defence did not raise any objection at that time. The merits of the case had not been affected whatsoever, and no injustice had been caused.
案件審訊經押後重開時，控方有重開主問，目的是將案件的重點帶出。雖然控方應先向原審法官申請，但這是程序上的一些疏漏，當時辯方亦沒有提出反對，所以對事件的是非曲直毫無影響，更不會導致任何不公正之處。

The fact that the defence now relies on the omission as a ground of appeal serves to demonstrate the weakness of the defence.
在上訴階段，辯方卻以這點作為上訴理由，可稱是理屈的表現。

We have considered the grounds of appeal put forward by the applicants and find none of them meritorious. In our judgment, Judge Chan was correct in finding the applicants guilty and their convictions are neither unsafe nor unsatisfactory. The applicants’ applications for leave to appeal against conviction are dismissed.
本庭已考慮過各申請人提出的上訴理由，該些上訴理由不具任何說服力。本庭認為陳法官裁定各申請人有罪的決定是正確的，並無不穩妥之處。本庭拒絕批准各申請人就定罪上訴。

Mr. David Leung, Senior Public Prosecutor, for the Respondent.
答辯人：由律政司高級檢控官梁卓然代表。

Mr. Eric Kwok, SC and Ms. Phyllis To, instructed by Simon C W Yung & Co., for the 3rd to 9th Applicants.
第三至第九申請人：由翁宗榮律師行轉聘資深大律師郭棟明及陶靄穎大律師代表。