Hon Cheung JA (giving the judgment of the Court):
上訴法庭法官張澤祐頒發上訴法庭判案書：

Initially, the present application for leave to appeal involved three applicants, namely the 1st, 2nd and the 3rd Applicants, who were respectively the 1st, 2nd and 3rd Defendants at trial.  On the day of the hearing, Counsel for the 3rd Applicant applied for an adjournment of the case and we allowed the application. It followed that we were only concerned with the applications of the 1st and 2nd Applicants.  We now deliver the judgment on the relevant applications.
本上訴許可申請原本有三名申請人，即第一、第二及第三申請人，亦即原審時的第一、第二及第三被告人。由於第三申請人的代表律師在聆訊當日申請將案件押後及該申請獲本庭批准，本庭因此只需要處理第一及第二申請人的申請。現本庭頒發有關申請的判案書。

The 1st Applicant
第一申請人

The 1st Applicant was indicted for four charges.  Three of them (i.e. Charges 1, 3 and 5) were for the offences of ‘offering advantages to an agent’, contrary to section 9(2)(a) of the Prevention of Bribery Ordinance (Cap. 201 of the Laws of Hong Kong); the remaining one (i.e. Charge 7) was for the offence of ‘conspiracy to defraud’, contrary to the common law.
第一申請人被控四項控罪，其中三項控罪（即第一、三及五項控罪）是「向代理人提供利益罪」，違反《防止賄賂條例》（香港法例第 201 章）第 9(2)(a) 條。另外一項控罪是「串謀詐騙罪」（即控罪七），違反普通法。

The 1st Applicant pleaded guilty to the charges before Deputy District Judge Albert Wong (hereinafter ‘Judge Wong’) and was sentenced to imprisonment for 40 months.  The 1st Applicant applied for leave to appeal against sentence.
第一申請人於區域法院暫委法官黃崇厚席前承認控罪。黃法官判處第一申請人四十個月監禁。第一申請人就刑期提出上訴許可申請。

The 2nd Applicant
第二申請人

The 2nd Applicant was charged with two counts of ‘accepting advantages as an agent’ (i.e. Charges 8 and 9), contrary to section 9(1)(a) of the Prevention of Bribery Ordinance.  He pleaded not guilty to the charges.  After trial, Judge Wong convicted the 2nd Applicant on Charge 8 and acquitted him on Charge 9.  For Charge 8, Judge Wong sentenced the 2nd Applicant to imprisonment for 3 years.  The 2nd Applicant applied for leave to appeal against conviction.  Originally, the 2nd Applicant also applied for leave to appeal against sentence, but on 11 June 2009 he filed a notice of abandonment of application for leave to appeal, and we dismissed the application on the same day.
第二申請人被控兩項「代理人接受利益罪」（即第八和第九項控罪），違反《防止賄賂條例》第 9(1)(a) 條。第二申請人否認控罪。黃法官審結案件後就第八項控罪裁定第二申請人罪名成立，而就第九項控罪就罪名不成立。黃法官就第八項控罪判處第二申請人入獄三年。第二申請人就定罪提出上訴許可申請。第二申請人原本亦就刑期提出上訴許可申請，但於 2009 年 6 月 11 日提交放棄針對刑期上訴許可通知書，法庭亦於同日撤銷該申請。

The 2nd Applicant’s application in relation to sentence
第二申請人定罪申請

We begin by dealing with the 2nd Applicant’s application for leave to appeal against conviction on Charge 8.
本庭首先處理第二申請人針對第八項控罪的定罪上訴許可申請。

Background
背景

The 1st Applicant was Managing Director of Centaline Property Agency Limited (hereinafter ‘Centaline’) and, as such, was responsible for the sale and purchase and leasing of industrial and commercial premises and shop premises.  The 2nd Applicant was General Manager of Li & Fung Trading Limited (hereinafter ‘Li & Fung’) and, as such, was responsible for property transactions of the Li & Fung Group.  It was alleged that in a property transaction involving Jebsen Motor Group Building (hereinafter ‘Jebsen Building’), the 1st Applicant offered a bribe of $800,000 (i.e. Charge 1) to the 2nd Applicant, who then accepted the bribe (i.e. Charge 8).
第一申請人是中原地產代理有限公司（「中原」）的董事兼總經理，負責工商業樓宇、商舖的買賣及租賃事務。第二申請人是利豐貿易有限公司（「利豐貿易」）的總經理，負責利豐集團的物業交易事務。第一申請人在一宗涉及捷成汽車集團大廈（「捷成大廈」）的物業買賣交易向第二申請人提供 $800,000 的賄款（即第一項控罪），第二申請人接受了該筆賄款（即第八項控罪）。

In his Reasons for Sentence against the 1st Applicant, Judge Wong summarized the relevant property transaction as follows:
黃法官在針對第一申請人所作出的判刑理由書內將有關的物業交易簡述如下：

In mid 2005, [Centaline] was engaged as the agent in a property transaction.  Subsequently, in response to the request of the 2nd Defendant, the 1st Defendant took $800,000 from the commission payable to Centaline by the employer of Li & Fung and then gave that sum to the 2nd Defendant as rebate.  For that purpose, the 1st Defendant, having made a false claim to [Centaline] that his own company Wang Him (宏謙) had rendered services to [Centaline], took $1,000,000 as consultancy fee, of which $800,000 was given to the 2nd Defendant and the remaining $200,000 was retained for tax payment by the company that had been used as the vehicle of swindling the money.
「3．2005 年年中，中原地產被聘用在一宗物業買賣交易中擔任代理，之後第一被告人答應第二被告人的要求，從利豐的僱主給予中原的佣金之中取了 800,000 元交給第二被告人作為回佣，為了這樣做，第一被告人向中原地產虛稱自己的公司宏謙(譯音)曾為中原地產提供服務，並取了 1,000,000 元的顧問費，其中 800,000 元交了給第二被告人，餘下的 200,000 元留給騙財工具那間公司作為交稅之用。」

The prosecution’s case against the 2nd Applicant
針對第二申請人的控方案情

The third prosecution witness (PW3) was an agent in the employ of Centaline.  In February 2006, she came to know that the owner of Jebsen Building intended to sell the property.  She informed the 2nd Applicant of that and went with him to the building for an inspection.  Thereafter, the 2nd Applicant negotiated with the vendor’s representative about the purchase of Jebsen Building, and Centaline was appointed as the agent in the transaction.  On 4 May 2006, i.e. when the vendor and the purchaser were about to sign the purchase proposal, the vendor indicated that he was not prepared to pay commission to Centaline.  PW3 had a dispute with the vendor.  The 2nd Applicant persuaded PW3 to sign the contract as soon as possible, saying that if PW3 did not do so, the vendor would ignore them.  In order to make Centaline a party to the contract, PW3 asked his subordinate (the fourth prosecution witness) to sign the relevant documents for and on behalf of Centaline.  The contract provided that the Purchaser would pay Centaline 1% of the purchase price (i.e. $2,400,000) as commission.
控方第三證人（第三證人）是任職「中原」的代理人，她於 2006 年 2 月獲悉「捷成大廈」的業主有意出售物業，於是通知第二申請人及與他一同到該大廈視察。之後，第二申請人與賣主的代表商議購買「捷成大廈」，「中原」獲委任為該交易的地產代理。在 2006 年 5 月 4 日，即買賣雙方預備簽署購買建議書時，賣主表示不願意支付「中原」的佣金。第三證人與賣方發生爭執。第二申請人勸第三證人儘快簽署合約，否則賣方不會理會他們。第三證人為了「中原」可成為合約的其中一方，於是吩咐下屬（即控方第四證人）代表「中原」簽署有關文件。合約條款訂明買家會向「中原」支付成交價百分之一（即$2,400,000）的佣金。

Subsequently, the Independent Commission Against Corruption (hereinafter ‘ICAC’) entered the scene.  On 9 May 2006, when the 1st and 2nd Applicants met in a hotel in Kowloon, ICAC officers covertly took video and audio recordings of the meeting.  The following is an account of the conversation between the two Applicants during the meeting, as summarized by Judge Wong:
之後，廉政公署（「廉署」）介入事件。當第一申請人與第二申請人於 2006 年 5 月 9 日在九龍一間酒店內會面時，「廉署」人員秘密地錄影和錄音兩人的會面情況。以下是黃法官簡述兩人會面時的談話內容：

Initially, the 1st Defendant mentioned that a commission was payable for the Jebsen Building transaction and asked what should be done.  The 2nd Defendant replied that the vendor refused to pay a commission to Centaline and also criticised Salomy for mishandling the matter (note: Salomy is the English name of PW3).  Then the 1st Defendant told the 2nd Defendant that commission from only one party had been received and then asked the 2nd Defendant whether he considered an adjustment necessary.  The 1st Defendant said that Salomy once told him that a lot of people had to be given a share of the commission in this transaction, and that she was a bit aggrieved and requested him to discuss the matter with the 2nd Defendant.  The 2nd Defendant replied, “I have done what I have to do.”  When the 1st Defendant suggested a 10% reduction, the 2nd Defendant replied, “10% means as much as $200,000.  A reduction of only $100,000 will be fine with me.” In the end, the 2nd Defendant suggested a reduction of $150,000.  The 2nd Defendant did some calculations and asked, “That means 100?”  The 1st Defendant replied “100” and further said “also in cash.”  The 2nd Defendant then mentioned Hang Fat and said “You people have already received it?”  The 1st Defendant indicated that he had no idea and would seek confirmation from the company.
「第一被告人初時提及捷成大廈那宗交易要付佣金，該怎麼辦。第二彼告人的回應是，有關賣家不肯付佣金給中原，也批評 Salomy 處理不當(註: Salomy 是控方第三證人的英文名字)。後來第一被告人對第二被告人說，現在只收得一方的佣金，問他是否覺得需要調整一下，Salomy 曾對他說：這宗交易有很多人需要分佣金，她有些不服氣，要求他和第二被告人商量。第二被告人回應說：『我已經做了我要做的。』第一被告人提出減 10%，第二被告人說『10%? 廿個喇喎，減 100,000 元我就冇所謂。』最後，第二被告人提出：減番 $150,000。在計算後，第二被告人說『即係 100 喇?』，第一被告人回應說『100 喇。』，也說『都係老現。』。此後，第二被告人提起恆發，並說『收咗喇，你哋?』，第一被告人表示不知情，會向公司求證。」

On the agreed facts, the end purchaser of Jebsen Building was Li & Fung (1937) and Centaline was the agent of that property transaction.
根據同意案情，「捷成大廈」的最終買家是「利豐(1937)」，而「中原」是該宗物業交易的物業代理。

On 9 August 2006, Centaline paid $1,000,000 to one Wang Him Investment Company Ltd (宏謙投資有限公司) (hereinafter ‘Wang Him’) for the transaction.  The 1st Applicant was a shareholder and director of Wang Him.  The bank records showed that on 11 August 2006 the 1st Applicant withdrew cash in the sum of $800,000 from his bank account.
2006 年 8 月 9 日，「中原」就該宗物業交易支付了 $1,000,000給「宏謙投資有限公司」（「宏謙」）。第一申請人是「宏謙」的股東及董事。根據銀行記錄，第一申請人在 2006 年 8 月 11 日從他的銀行戶口提取了 $800,000 的現金。

On the same day, the 2nd Applicant asked the sixth prosecution witness (PW6) to fetch something for him and PW6 did so accordingly.  They had been friends for 7 to 8 years and also had business dealings with each other.
同日，第二申請人請求控方第六證人（第六證人）替他拿取一些物件，第六證人答應他的要求。雙方是認識了七、八年的朋友，彼此亦有生意往來。

On the afternoon of the same day, one Mr. Chan phoned PW6 and made an appointment for a meeting, and they met afterwards.  They were tailed by ICAC officers.  PW6 boarded a vehicle driven by the 1st Applicant.  The 1st Applicant handed to PW6 a paper bag containing banknotes and told him to pass the paper bag to the 2nd Applicant.  PW6 then alighted the vehicle and went to a bank.  He counted the banknotes in the bag, the total amount of which was $800,000.  He phoned the 2nd Applicant, asking him how the money was to be dealt with.  The 2nd Applicant instructed him to deposit the money with the bank.  PW6 kept cash in the sum of $240,000 for his own use and deposited the remaining cash into nine different bank accounts in his name or in his wife’s name.
當日下午，一名姓陳的男子致電第六證人約他會面，之後雙方會面。廉署派員跟蹤兩人。第六證人登上由第一申請人駕駛的一輛汽車，第一申請人將一個裝着鈔票的紙袋交給第六證人，並囑咐他將該紙袋交給第二申請人。第六證人之後下車，前往一間銀行，他點算袋內的鈔票，其總數為 $800,000。他致電第二申請人，問他如何處理該筆款項，第二申請人吩咐他將該筆款項存入銀行。第六證人將 $240,000現金留給自己使用，其餘的款項分別存入他自己和他的妻子的九個不同銀行戶口內。

When the 2nd Applicant asked PW6 to fetch something for him, he gave PW6 $500 to buy a calling card to facilitate communication.  PW6 then purchased a calling card for a phone number 67482689.  The records of the telephone company showed that at 1:29 p.m. on 11 August 2006 PW6 phoned the 2nd Applicant using that phone number.  In addition, before PW6 met the 1st Applicant, i.e. between 2:14 p.m. and 3:12 p.m., he phoned the 1st Applicant thrice using the same phone number.  PW6 confirmed that he had telephone conversations with the 1st and 2nd Applicants in the said period of time and that he phoned the 2nd Applicant using the said phone number at 5:17 p.m. of the same day.
在第二申請人要求第六證人替他拿取物件時曾給他 $500去購買一張電話卡以便聯絡。第六證人於是購買了一張號碼為 67482689 的電話卡。根據電話公司記錄，在 2006年 8月11日下午1時29分第六證人曾以該電話號碼致電第二申請人。另外，第六證人和第一申請人會面之前，即下午2時14分至3時12分這段時間內，第六證人亦曾以該電話號碼三次致電第一申請人。第六證人證實他於該時段內曾分別與第一申請人和第二申請人通過電話及於同日下午5時17分以該電話號碼致電第二申請人。

Acting on the 2nd Applicant’s instructions, between 12 August and 5 September 2006, PW6 gave money totalling $130,000 to the 2nd Applicant on three occasions, transferred a sum exceeding $170,000 to five persons who had lent money to the 2nd Applicant, repaid (on behalf of the 2nd Applicant) sums owing by the 2nd Applicant to two banks, and deposited $50,000 into a bank account held by the seventh prosecution witness (PW7).  PW7 testified that upon PW6’s request he opened a bank account for use by the 2nd Applicant.  PW6 said that apart from borrowing approximately $200,000 from the 2nd Applicant, he had already returned to the 2nd Applicant the remaining sum.
第六證人依照第二申請人的指示在 2006 年 8 月 12 日至 9 月 5 日期間將 $130,000分三次交給第二申請人、將一筆逾 $170,000 的款項轉賬給曾經借錢給第二申請人的五名人士、替第二申請人還款給兩間銀行及將 $50,000 存入控方第七證人的銀行戶口內。第七證人供稱他是應第六證人的要求開設一個銀行戶口以供第二申請人使用。第六證人指他除了向第二申請人借了約 $200,000 外，其餘的款項已全數交還給第二申請人。

The 2nd Applicant neither gave evidence in court nor called any witness.
第二申請人沒有出庭作證及沒有傳召證人。

Judge Wong’s assessment of PW6
黃法官對第六證人的評核

In paragraph 54 of his judgment, Judge Wong wrote:
黃法官在判案書第 54 段這樣說：

Having considered the evidence as a whole, although in my view PW6 had indeed concealed certain facts, his testimony that in receiving and handling the sum of money he was merely acting upon the 2nd Defendant’s instructions is, in my view, credible and reliable.
「考慮了整體證據，雖然，本席認為，控方第六證人並非沒有隱瞞一些事實，但是，他所說的收取和處理這筆金錢是依照第二被告人的指示而行事，這方面的證詞，本席認為是可信、可靠的。」

Before making the above findings, Judge Wong had taken into account the fact that PW6 was a witness under immunity and might have given false evidence in order to protect his own interest.  Judge Wong had also considered the following parts of the evidence given by PW6 which were unreasonable and incorrect:
黃法官在作出上述裁決之前曾考慮過第六證人是一名特赦證人及他可能為了保障自己的利益而作出不真實的證供。黃法官亦考慮過以下第六證人所作出的部分不合理及不正確的證供：

When the 2nd Applicant asked him to collect something for the 2nd Applicant, he did not enquire of the 2nd Applicant about what it was that he had to collect.
當第二申請人要求他替第二申請人拿取物件時，他沒有向第二申請人詢問所要拿取的物件是甚麼。

When he discovered that it was banknotes that he had collected, he did not immediately contact the 2nd Applicant or return home.  Instead, he went to a bank and counted the banknotes thereat.
當他發現他收取的物件是鈔票時，他不是立刻聯絡第二申請人或折返家中，而是到一間銀行點算鈔票。

He testified that after he counted the banknotes he phoned the 2nd Applicant.  However, according to the telephone records, the two of them did not have any telephone conversation during the relevant period.
雖然他供稱他在點算鈔票後曾致電第二申請人，但根據電話記錄，兩人在有關時間內並沒有通過電話。

When the 2nd Applicant instructed him to deposit the received sum into a bank account, he unilaterally decided to deposit the sum into nine different bank accounts for the reason that ‘[using] bank accounts would appear to be better, safer and more convenient.’
當第二申請人指示他將收取到的款項存入銀行戶口內，他竟然以「戶口看來好一點，這較安全和方便」的理由而自行決定將該筆款項分別存入九個不同的銀行戶口內。

He admitted that from the said sum he had taken more than $200,000 to his residence.  When being cross-examined as to whether he was the owner of the said $200,000 odd, he prevaricated.
他承認他曾將該筆款項中的二十多萬元帶返自己的住所內。當他被盤問是不是該二十多萬元的物主時，他支吾其詞。

He did not clearly indicate whether he had given the 2nd Applicant a written record showing how the said sum had been handled.
他沒有清楚表明他有否將一份處理有關款項的記錄交給第二申請人。

He could not tell the exact date on which he gave the sum of $50,000 to the 2nd Applicant.
他不能確實說出他將五萬元交給第二申請人的日期。

He exercised his right of silence and refused to answer the question of whether his evidence in court was false, and when Defence Counsel put to him that the 2nd Applicant had never instructed him to collect the $800,000, he again exercised his right and refused to respond.
他行使權利拒絕回答他在庭上作出的證供是否虛假的提問及拒絕回應辯方大律師提出第二申請人根本沒有指使他去拿取 $800,000 的指控。

In respect of the absence any telephone record to show that PW6 and the 2nd Applicant had any telephone conversation during the relevant period, Judge Wong said:
黃法官就電話記錄沒有顯示第六證人和第二申請人在有關時間內通過電一事說：

While not thinking lightly of the significant of the situation, I have considered the possibility that the two of them might have used another phone number and the possibility that the instruction alleged by PW6 was in fact not obtained at that stage.
本席沒有輕視這情況的重要性，但也顧及兩人是否使用了其他電話號碼的可能性，或控方第六證人所稱的指示並非在那階段所得到的可能性。

Judge Wong opined that PW6 did not candidly recount the truth in court because he was well aware that the sum that he handled was obtained by improper means.
黃法官認為第六證人沒有在庭上坦白說出真相是由於他明知所處理的款項是經不適當的途徑得來的。

As regards PW6’s evidence that he took upon himself the decision to deposit the sum of money into nine different bank accounts, Judge Wong said:
黃法官就第六證人供稱他是自作主張，將該筆款項分別存入在九個不同的銀行戶口內的證供這樣說：

In my view, he merely failed to explain candidly why he had done so.  His conduct was akin to that of many people who know that the money they are handling is of dubious origin and are determined to conceal how the money has been handled.
本席認為，他只是沒有坦白地解釋他為何如此做而已，他的表現和很多知道自己在處理的金錢是有問題的、或無論如何想隱瞞這筆金錢的處理的人的做法，是相若的。

As to when PW6 gave the sum of $50,000 to the 2nd Applicant, Judge Wong took the view that he might have made a mistake in recalling the date of the incident.
至於第六證人是於何時將五萬元交給第二申請人的問題，黃法官認為他可能記錯了發生該事件的日期。

The first ground of appeal
第一上訴理由

The first ground of appeal advanced by the 2nd Applicant relates to whether he had received $800,000 from PW6.  Mr. Wong Man Kit SC and Mr. Edwin Choy, Counsel for the 2nd Applicant, submitted that Judge Wong had not only made an erroneous finding on PW6’s credibility but had also adopted speculative evidence and a wrong standard of proof.  The 2nd Applicant highlighted the following two points:
第二申請人的第一項上訴理由是關於他有沒有向從第六證人收取過 $800,000。代表第二申請人的黃敏杰資深大律師及蔡維邦大律師指黃法官就第六證人的可信性作出錯誤的裁定及引用猜測性的證據和錯誤的舉證標準。第二申請人強調以下兩點：

The telephone records did not show that during the material period PW6 had any telephone conversation with the 2nd Applicant.
電話記錄沒有顯示第六證人在有關時段內和第二申請人通過電話。

PW6 refused to answer questions put to him by defence lawyers in court.
第六證人在庭上拒絕回答辯方律師提出的提問。

The 2nd Applicant relied on the Court of Final Appeal case of Ong Chun Ying v. HKSAR (2007) 10 HKCFAR 318.  The defendant in that case was charged with and convicted on one count of assault occasioning actual bodily harm.  At trial, the victim gave unequivocal evidence that she was attacked by the defendant 10 minutes after she returned to a certain unit at 10 a.m. on the day of the incident.  On the other hand, the defendant put forward an alibi that between 10 and 11 a.m. on the material day he was physically at a restaurant and it would take approximately 30 minutes for him to travel to the scene of the crime from the restaurant.  The magistrate convicted the defendant but said that it was ‘not possible to be sure as to exactly when this assault is alleged to have taken place’ and concluded that the defendant’s alibi covered ‘only part of the material period’.
第二申請人引用終審法院案例 Ong Chun Ying v. HKSAR [2007] 10 HKC FAR 318的案例。該案的被告人被控一項「襲擊致造成身體傷害罪」及被判處罪名成立。原審期間，受害人作出毫不含糊的證供，指她於案發當日上午 10 時返回某單位後十分鐘遭被告人襲擊。被告人則提出不在犯罪現場的證據，指自己於當日上午10 時至11 時之間身處某家酒樓，而從該酒樓前往案發地點需時約 30 分鐘。原審裁判官判被告人罪名成立，但同時裁定“本席無法肯定涉案襲擊被指發生的確實時間”，並斷定被告人所提出的不在犯罪現場的證據“只涵蓋關鍵時段的一部分”。

The Court of Final Appeal allowed the defendant’s appeal and quashed the conviction.  The views of the Court of Final Appeal can be found in paragraph 1 of the summary of holdings:
終審法院判被告人上訴得直，撤銷定罪判決。終審法院的觀點可見於該判案書批註的第一段：

When a court says in a criminal case that it was not sure of something, that is normally said in the context of acquitting an accused on the basis of a reasonable doubt.  Here, the view that it was “not possible to be sure as to exactly when this assault is alleged to have taken” formed a vital part of the thought process by which the Magistrate convicted the defendant, which represented a view of the facts that was unsupported by evidence.  Thus, the defendant was denied the benefit of a reasonable doubt on a crucial matter.  [see paras. 11, 15]
「在刑事案件中，每當法庭指出它未能肯定某些事項，這通常是指基於合理疑點而判處被告人無罪。在本案中，“本席無法肯定涉案襲擊被指發生的確實時間”的說法是原審裁判官達致定罪判決的思路歷程的重要一環，但該說法不獲呈堂證據支持。因此，被告人在關鍵事項上未能因合理疑點而獲益。（見第 11 及 15 段）」

The 2nd Applicant pointed out that whether PW6 had phoned him or not was highly crucial to the prosecution case because the prosecution wholly relied on PW6’s evidence to prove that PW6 had collected and handled the $800,000 for and as instructed by the 2nd Applicant.  Thus, the communication between the 2nd Applicant and PW6 during the material period was highly crucial to that allegation.
第二申請人指第六證人有否致電給他與控方的案情有重要的關係，理由是控方是完全依賴第六證人的證供去證明第六證人是按照他的指示去拿取 $800,000 及替他處理該筆款項，因此第六證人與他在案發時段內的溝通對該項指控是非常重要。

The 2nd Applicant submitted that, in respect of this issue, Judge Wong had erred in the same way as the magistrate in Ong Chun Ying had.  In face of the inconsistency between PW6’s evidence and the telephone records, Judge Wong had not only denied the 2nd Applicant the benefit of doubt but had also held, in the absence of evidence and upon sheer speculation, that PW6 and the 2nd Applicant might have used another phone number or that the 2nd Applicant might have instructed PW6 at some other point of time.  The 2nd Applicant contended that, as Judge Wong could not be certain at what time and using what number PW6 had talked to the 2nd Applicant on the phone, the telephone records relied on by the 2nd Applicant should have been accorded substantive reasonable doubt in the same manner as the alibi put forward by the defendant in Ong Chun Ying had been, but Judge Wong had failed to give the 2nd Applicant the benefit of doubt.
第二申請人指黃法官就這個議題與 Ong Chun Ying 一案中的原審法官所犯的錯誤是相同的。縱使第六證人的證供與電話通話記錄出現矛盾，他不但沒有將疑點利益給予第二申請人，反而在沒有證據的基礎下單憑推測來裁定第六證人與第二申請人有可能使用過其他電話號碼，或第二申請人有可能在另一個時段指示第六證人行事。第二申請人指黃法官根本不能肯定第六證人在何時用那一個電話與第二申請人通話，所以第二申請人所依賴的電話記錄就應如 Ong Chun Ying 一案的被告人所提出的不在場證供被接納為實質的合理疑點，但黃法官沒有將疑點利益歸予第二申請人。

The 2nd Applicant further submitted that, given PW6’s refusal to answer the question of whether he had given false evidence, Judge Wong was not accepting PW6’s evidence beyond reasonable doubt.
另外，第二申請人指既然第六證人拒絕回答他是否作出虛假證供的提問，黃法官就不是在毫無合理疑點的情況下接納第六證人的証供。

Our views
本庭意見

In fact, in the circumstances of the case as a whole, the prosecution had in our view provided sufficient evidence to support the allegation that the 2nd Applicant had received the bribe of $800,000.  First, as mentioned above, the 1st Applicant met the 2nd Applicant on 9 May 2006.  Apart from giving a brief summary of the particulars of the meeting (see the extract above), Judge Wong made the following findings on the details of the conversation at the meeting:
其實，綜觀案情，本庭認為控方已提出了充分的證據去支持第二申請人收受 $800,000 賄款的指控。首先，正如上文所述，第一申請人與第二申請人曾於 2006 年 5 月 9 日會面，黃法官除了就雙方會談內容作出簡述（已節錄於上文）外，他亦就有關會面的談話內容作出以下的裁決：

In their conversation, the two of them mentioned the transaction over Jebsen Building.  The 1st Defendant told the 2nd Defendant that as no commission could be obtained from the vendor, he requested the 2nd Defendant to lower the amount.  During the conversation, the 2nd Defendant said that the sum could be reduced by $150,000.  The 1st Defendant mentioned “231” and the 2nd Defendant, who seemed to be making some calculations, said “just take 230, that is 115, that is 100.”  Subsequently, the 1st Defendant also suggested 80%.’
雙方在談話時提及捷成大廈的交易，第一被告人對第二被告人說，因為收不到賣家的佣金，所以要求第二被告人減低金額。談話的時候，第二被告人曾說可減 $150,000，第一被告人提及「231」，第二被告人似在計算間說出 「當 230 喇，即係 115 喇，即係 100 喇。」，之後第一被告人也提出八成。

The prosecution submitted that “231” was the $2,310,000 commission that Centaline was supposed to receive in the first place (note: the vendor had all along agreed to pay Centaline 1% of the purchase price, and prior to reaching a final agreement, the vendor and purchaser had once agreed that the purchase price of the property upon completion was $231,000,000).  “230” meant $2,300,000, a round figure of the purchase price of the property.  Half of this amount was “115”.  Reduced by $115,000, the figure would become $1,000,000, and 80% thereof would be $800,000.  $800,000 was precisely the amount the 2nd Defendant received from the 1st Defendant.  In my view, this was no sheer coincidence but was precisely the benefit that the 2nd Defendant received from the 1st Defendant as a result of the transaction.  The fact that he arranged for PW6 to collect the money indicates that he knew the 1st Defendant would give him the money.
控方指出，「231」正是指中原最初應收到的佣金 $2,310,000 (註：買家一直同意支付中原成交價 1% 的佣金，而在最終協議達成之前，買賣雙方一度同意成交價為 231,000,000 元)，「230」 是指 $2,3000,000，取成交價的整數，這數的一半是 115，再減 $150,000便是 $1,000,000，再計八成便是 $800,000。$800,000 正是第二被告人從第一被告人處收到的金額，本席認為這絕非偶然，正是第二被告人因這宗交易從第一被告人收到的利益。他安排控方第六證人前往領取，反映他是知道第一被告人會給他這筆金錢的。」

The above conversation lent support to the prosecution’s case that the 1st Applicant had agreed to give the 2nd Applicant $800,000 as commission.
上述談話內容支持了控方提出第一申請人是同意給予第二申請人 $800,000回佣的指控。

According to PW6’s evidence, as instructed by the 2nd Applicant, PW6 met the 1st Applicant, collected $800,000 from him and deposited the money into bank accounts (except that he retained $240,000 for his own use) and gave the money to some other people.
根據第六證人的證供，他依照第二申請人的指示去與第一申請人會面及向他收取 $800,000、把款項存入銀行（除了其中 $240,000留給自己使用外）及將款項交給其他人士。

The following items of evidence reinforced the credibility of the above testimony:
以下的證據也支持了上述証供的可信性：

Before he met PW6, the 1st Applicant went to a bank to withdraw $800,000 in cash.  This fact was consistent with the earlier testimony that the 1st Applicant had discussed with the 2nd Applicant about offering the 2nd Applicant a bribe of $800,000 and that PW6 had collected $800,000 from the 1st Applicant.
第一申請人與第六證人會面之前先到銀行提取了 $800,000現金，這事實與早前第一申請人與第二申請人商討向第二申請人提供 $800,000 賄款及第六證人向第一申請人收取了  $800,000 的證供吻合。

The telephone records showed that on the day PW6 collected the sum, he had a number of telephone conversations with the two applicants.
電話記錄顯示第六證人在領取鈔票當日多次與兩名申請人通過電話。

As PW6 and the 1st Applicant had never met, it was reasonable to infer that the meeting between the two of them had been arranged by the 2nd Applicant and that it was the 2nd Applicant who had instructed PW6 to participate in the matter.
第六證人與第一申請人素未謀面，因此該次兩人會面是由第二申請人安排及是他指使第六證人參與其中的推論是合理的。

PW6 subsequently transferred the money to the accounts of other people who, as it transpired, were all related to the 2nd Applicant.
第六證人其後將款項轉賬到其他人士的戶口內，這些人士都是與第二申請人有關連的。

This being the case, Judge Wong’s finding that PW6 had contacted the 2nd Applicant using another phone number was not based on speculation.  We do not think that the propositions in Ong Chun Ying applied to the present case, because the point of time when PW6 obtained the 2nd Applicant’s instructions was not a key issue in the present case.
在這情況下，黃法官裁定第六證人曾以其他電話號碼與第二申請人聯絡並不是基於猜測。本庭不認為 Ong Chun Ying 一案的論點適用於本案，因為第六證人在何時取得第二申請人的指示並非本案的重點。

It is true that the witness’s refusal to answer the question of whether he was giving false evidence, as well as his failure to respond to the allegation that the 2nd Applicant had never instructed him to collect the $800,000, would materially affect the credibility of his evidence.  That said, we have to consider the relevant factual background.  The offences in respect of which PW6 had been granted immunity related merely to the charges pertaining to the present case.  The immunity did not cover the offence of perjury as a prosecution witness.  In putting forward the relevant allegations, Defence Counsel cross-examined PW6 about the nature of the immunity and requested Judge Wong to give appropriate warning to PW6.  The Judge reminded PW6 of his right to seek permission from the court not to answer a question if he considered that the evidence he was to give in answering the question might incriminate him.  The Judge then asked PW6 whether he would exercise his right and seek permission not to answer the relevant question or whether he was prepared to answer the question.  In these circumstances, we take the view that PW6 might have refused to answer questions or enquiries because he thought that he was entitled not to answer them, not because he was giving false evidence.  Obviously, it was only after observing PW6’s manner and demeanour when he testified at trial and considering various items of forceful circumstantial evidence of PW6 having followed the 2nd Applicant’s instructions that Judge Wong held that PW6’s evidence on major issues was credible and reliable.  We see nothing improper with the Judge’s findings.
無疑，當該名證人拒絕回答其所作的供詞是否虛假的提問及不回應第二申請人沒有指使他去收取 $800,000 的指控是會實質地影響他的供詞的可信性，但本庭必須考慮有關事情的背景。第六證人被特赦的罪行只是涉及本案的控罪，並不包括他作為控方證人在法庭上作出虛假證供的罪行。辯方大律師在作出有關的指控時曾盤問第六證人有關特赦內容及要求黃法官向第六證人作出適當的警告。黃法官提醒第六證人若他認為他作出的證供可能會構成令他入罪的證據，他是有權向法庭申請不回答有關的提問。黃法官接着問他會否行使該權利向法庭申請不回答問題或者是回答問題。本庭認為在這情況下第六證人拒絕回答提問及質詢可能是因為他認為自己有權不作答而不是因為他作過虛假供詞。明顯地，黃法官在審訊時觀察了第六證人在作供時的神態和表現，他也考慮過各項針對第六證人是依照第二申請人的指示而行事的強而有力環境證供後才裁定第六證人在主要事項上所作出的證供是可信及可靠。本庭不認為黃法官的裁決是錯誤的。

The second ground of appeal
第二上訴理由

The 2nd Applicant submitted that in the absence of any evidential basis, Judge Wong found that the 2nd Applicant, as an agent of Li & Fung Trading, had received advantages so the Li & Fung (1937) completed the sale and purchase of Jebsen Building and engaged Centaline as estate agent for that sale and purchase transaction.
第二申請人指黃法官在毫無證據的基礎下裁定第二申請人身為「利豐貿易」的代理人收取利益致使「利豐(1937)」完成「捷成大廈」的買賣交易及聘用「中原」為「捷成大廈」買賣交易的地產代理。

The 2nd Applicant also argued that Charge 8 was defective, the reason being that the 2nd Applicant was an agent of Li & Fung at the material time and, although he had received advantages, he had only caused a third party company (not being the principal), namely Li & Fung (1937) to engage Centaline as the estate agent, and this did not constitute any offence under section 9(1)(a) of the Prevention of Bribery Ordinance.
另外，第二申請人指第八項控罪是有缺陷的，因為第二申請人於相關時間為「利豐貿易」的代理人，縱然他有收取利益，他亦只有致使一間第三者（非主事人）公司，即「利豐(1937)」聘用「中原」為地產代理，這並沒有觸犯《防止賄賂條例》第 9(1)(a) 條的罪行。

Particulars of Charge 8
第八項控罪詳情

The particulars of Charge 8 were as follows:
第八項控罪的控罪詳情是

Ho Wai-jon [the 2nd Applicant], being an agent, namely General Manager of Li & Fung (Trading) Limited, on or about 11 August 2006, in Hong Kong and without lawful authority or reasonable excuse, accepted an advantage, namely a gift, loan, fee, reward or commission consisting of a sum of HK$800,000.00, from CHAN Ngan-lau [the 1st Applicant], as an inducement to or reward for or otherwise on account of the said Ho Wai-jon doing or having done any act in relation to his principal’s affairs or business, namely causing Li & Fung (1937) Limited to engage Centaline Property Agency Limited as an agent in a property transaction (namely the purchase of the property at Nos. 924-926, Cheung Sha Wan Road, Kowloon, Hong Kong).
何偉中[第二申請人]，作為代理人，即利豐(貿易)有限公司的總經理，於或約於 2006 年 8 月 11 日在香港，無合法權限或合理辯解而從陳雁樓[第一申請人]接受利益，即接受形式為一筆港幣 800,000.00 元的饋贈、貸款、費用、報酬或佣金，作為該何偉中作出或曾經作出與其主事人的事務或業務有關的作為(即致使利豐(1937)有限公司在一宗物業交易(即購買香港九龍長沙灣道 924-926 號的物業)中聘用中原地產代理有限公司作為代理)的誘因或報酬，或由於該何偉中作出或曾經作出上述作為而接受該利益。

The relationship among the companies
各公司關係

We should start by elucidating the relationship among the companies mentioned in Charge 8, the 2nd Applicant’s scope of duties, and the background of Li & Fung (1937) which was the ultimate buyer of Jebsen Building.  According to Dr. William K. Fung (ninth prosecution witness, PW9), Group Managing Director of Li & Fung Group, Li & Fung Trading was a wholly owned subsidiary of Li & Fung Limited, and Li & Fung (1937) was a shareholder of Li & Fung Limited.  Li & Fung Trading carried on trading business and, adopting the same policy as that of Li & Fung Limited, did not own any real property.  Should Li & Fung Group need to purchase real property, this would be done through Li & Fung (1937).  The 2nd Applicant was employed by Li & Fung Trading and, as such, his duties were to liaise with various departments of the company to ascertain their needs in respect of land use, to look for suitable real properties and make recommendations to the company in this regard.
本庭首先交代第八項控罪所提及的各公司的關係、第二申請人的職權及「捷成大廈」交易最終買主是「利豐(1937)」的背景。根據利豐集團的集團總經理(Group Managing Director)馮國倫（即控方第九證人）所說，「利豐貿易」是「利豐有限公司」的子公司，由後者全資擁有。「利豐(1937)」是「利豐有限公司」的股東。「利豐貿易」從事貿易生意，它的政策和「利豐有限公司」一樣，不會擁有物業，利豐集團如有需要會由「利豐(1937)」購買物業。第二申請人的僱主是「利豐貿易」。他的職責是聯絡公司內各部門以了解用地需要、物色合適的物業及向公司作出建議。

Mr. Robert Adam is the Chief Operating Officer of Li & Fung Limited and a director of Li & Fung Trading.  In 2004, he established a Global Property Committee within Li & Fung Group.  The Committee did not have legal status, nor was it a separate legal person.  The Committee’s duties covered the entire Group as it was responsible for looking for suitable office premises for the various companies within the Group.  Although the 2nd Applicant was not a member of the Committee, he was assigned to look for suitable real properties and make recommendations thereon to the Committee.  The 2nd Applicant was not employed by the Committee; he was merely employed by Li & Fung Trading to look for real properties in the sole capacity as an agent of Li & Fung Trading.
Robert Adam是「利豐有限公司」的首席營運經理(Chief Operating Officer)及「利豐貿易」的董事。他在 2004 年成立了利豐集團的「全球物業委員會」(Global Property Committee)。這委員會既沒有法定地位，也不是獨立法人，它的職能涵蓋整個集團，負責為集團內各公司物色合適的辦公處所。雖然第二申請人並非這委員會的成員，但他被委派物色合適的物業，並推介給委員會。第二申請人並非受僱於該委員會，他只是受僱於「利豐貿易」，進行物色物業的工作，他唯一的身分是「利豐貿易」的代理人。

Ms. Belinda Fung was a person-in-charge of Li & Fung (1937).  According to her witness statement, as Li & Fung Group was in need of land in order to expand its business, the 2nd Applicant was assigned to look for real properties for lease or for sale in Cheung Sha Wan area on behalf of the Group.  After the 2nd Applicant recommended Jebsen Building to the Group, as the landlord indicated that the property was only available for sale, the transaction was, pursuant to the established policy of the Group, passed to Li & Fung (1937) for handling.  When Ms. Belinda Fung took over the matter, the 2nd Applicant told her that Centaline was the agent in the said property transaction.
Belinda Fung 是「利豐(1937)」的負責人。根據她的證人陳述書，利豐集團因要擴張業務，需要用地，因而委派第二申請人在長沙灣一帶物色一些租賃或出售的物業以供集團使用。當第二申請人向集團建議「捷成大廈」後，由於業主表示只會將該物業出售，基於利豐集團的一貫政策，該項交易就轉交「利豐(1937)」接手處理，而當 Belinda Fung 接手時，第二申請人告訴她「中原」是該物業的代理。

Judge Wong’s ruling
黃法官的裁決

In his judgment, Judge Wong had this to say:
黃法官在判案書這樣說：

After 27 April 2006, the 2nd Defendant was no longer involved in the matter, which was handled solely by Belinda Fung on behalf of Li & Fung 1937.  However, without the initial participation of Li & Fung Trading, this transaction would never have come about, nor would Centaline have become the agent of the transaction and hence been able to earn a commission.  The 1st Defendant gave the 2nd Defendant this sum of money as a token of appreciation, and this was something which the 2nd Defendant would certainly have understood.
雖然，第二被告人在 06 年 4 月 27 日之後，已沒有跟進，而交易已由 Belinda Fung 全權代表利豐 1937，可是沒有利豐貿易最初的參與，不會有這宗交易，中原也不會成為交易的代理得到佣金，第一被告人給第二被告人這筆金錢是為了報答他，第二被告人一定了解。

In the present case, there was no direct and clear evidence on the circumstances in which Centaline continued to be the estate agent.  It would appear from Belinda Fung’s witness statement that Centaline was initially engaged by Li & Fung Trading and was then engaged by Li & Fung 1937.  In the circumstances, I am of the view that it was Li & Fung Trading which caused [the subsequent events] and it was on this basis that the 2nd Applicant received the sum of money, and this must have been his intention and understanding.
中原在甚麼情況下繼續作為地產代理，案中沒有直接和清晰的證據，從 Belinda Fung 在書面陳述書所述，應該是利豐貿易起初任用中原，利豐 1937 繼續任用，本席認為，以本案的情況，構成利豐貿易的致使，第二被告人收取這筆金錢亦基於此，這也必是他的心意和理解。

I find that the sum of money received by the 2nd Defendant from the 1st Defendant constitutes an advantage within the meaning of the Ordinance, and that he received the advantage as an agent of Li & Fung Trading.  When he received the money, he must have fully understood that it was a reward in relation to his having done an act concerning his principal’s affairs or business, namely causing Li & Fung 1937 to engage Centaline as the agent for the relevant property transaction, or that it was a benefit given to him for his having done the said act.  This, in my view, is the only reasonable inference that can be drawn from the evidence as a whole.
本席裁定，第二被告人從第一被告人收取這筆金錢，是條例所列的利益，他是以利豐貿易的代理人的身分，收取這利益的。他在收取的時候，一定完全理解，這是作為他曾經作出與其主事人的事務或業務有關的作為，即致使利豐 1937 在涉案的物業交易中聘用中原為代理的報酬，或由於他曾經作出上述作為而付出的利益，本席認為，這是整體證據支持的唯一合理推論。

The Prevention of Bribery Ordinance
《防止賄賂條例》

Section 9(1)(a) of the Prevention of Bribery Ordinance provides as follows:
《防止賄賂條例》第 9(1)(a) 條規定：

Any agent who, without lawful authority or reasonable excuse, solicits or accepts any advantage as an inducement to or reward for or otherwise on account of his ―
「任何代理人無合法權限或合理辯解，索取或接受任何利益，作為他作出以下行為的誘因或報酬，或由於他作出以下行為而索取或接受任何利益，即屬犯罪

doing or forbearing to do, or having done or forborne to do, any act in relation to his principal’s affairs or business;
作出或不作出，或曾經作出或不作出任何與其主事人的事務或業務有關的作為；」

The 2nd Applicant’s submissions
第二申請人的論點

The 2nd Applicant’s arguments ran as follows:
第二申請人的論點是：

In the sale and purchase of Jebsen Building, he was merely responsible for looking for a suitable property and carrying out preliminary discussions with the vendor, and the decisions to purchase the said property and engage Centaline as agent were made by Li & Fung (1937).  There was no evidence to show that he had participated in the process or influenced Li & Fung (1937) in its decisions.  The reason was that he was merely an employee and an agent of Li & Fung Trading and did not have any employment or agency relationship with Li & Fung (1937).
他於「捷成大廈」買賣交易中只是負責物色物業及與賣方進行初步洽商，而最終決定購買該項物業和聘用「中原」為代理均是「利豐(1937)」作出的決定。本案沒有任何證據可證明他曾參與有關過程或曾影響「利豐(1937)」的決定，原因是他只是「利豐貿易」的僱員及代理人，他和「利豐(1937)」並沒有任何僱傭或主事人/代理人的關係。

The engagement of Centaline as agent by Li & Fung Trading and the subsequent engagement of Centaline as agent by Li & Fung (1937) were two distinct matters and not necessarily related.  However, in the absence of any supporting evidence, Judge Wong inferred from the above matters that the 2nd Applicant had caused Li & Fung (1937) to complete the property transaction and engage Centaline as its estate agent.
「利豐貿易」最初任用「中原」為代理與後來「利豐(1937)」繼續任用「中原」為代理的兩件事並沒有必然的關係，但黃法官卻在沒有任何其他證據支持下而推斷上述情況足以構成申請人“致使「利豐(1937)」完成物業交易和聘用「中原」為地產代理”的推論。

Under section 9(1)(a) of the Prevention of Bribery Ordinance, the prosecution bore the burden of proving that any act done by the 2nd Applicant to solicit or accept any advantage must have been in relation to his principal’s affairs or business.  As the prosecution failed to produce any evidence of the 2nd Applicant having caused Li & Fung (1937) to complete the property transaction and engage Centaline as estate agent, his conviction was unsafe.
根據《防止賄賂條例》第 9(1)(a) 條，控方有舉證責任去證明，若他曾作出索取或收取利益的行為，有關行為必須跟他的主事人的事務或業務有關。控方未能提出任何可支持他致使「利豐(1937)」達成物業交易和聘用「中原」為地產代理的證據，因此他的定罪是不穩妥的。

Besides, applying the legal principle set out in Commissioner of the Independent Commission Against Corruption v. Ch’ng Poh [1997] HKLRD 652, the prosecution bore the burden of proving that the 2nd Applicant’s “act” was in relation to his principal’s affairs or business.
另外，根據 Commissioner of the Independent Commission Against Corruption v. Ch’ng Poh [1997] HKLRD 652 的法律原則，控方是有舉證責任去證明他的“作為”必須跟其主事人的事務或業務有關。

The 2nd Applicant submitted that the evidence in the present case did prove the following facts:
第二申請人指本案有證據證明以下事實：

The 2nd Applicant was merely an agent and employee of Li & Fung Trading but not an agent of Li & Fung (1937).  He was instructed by a third party (i.e. the Global Property Committee of Li & Fung Group) to look for real properties, report his findings to the Committee and make recommendations accordingly.
第二申請人只是「利豐貿易」的代理人及僱員，他並不是「利豐(1937)」的代理人。他是受第三者（即利豐集團的全球物業委員會）的委託去物色物業、將結果向該委員匯報和作出推介。

The general affairs and business of Li & Fung Trading did not involve investment projects such as sale and purchase of real properties.
「利豐貿易」的事務及業務並不涉及物業買賣的投資的工作。

Li & Fung (1937) and Li & Fung Trading were separate entities and should not be regarded as one single entity.
「利豐(1937)」、「利豐貿易」兩間公司是獨立個體，不能被視為一體。

Strictly speaking, Li & Fung (1937) was merely a shareholder of Li & Fung Limited and was not under Li & Fung Group which was headed by Li & Fung Limited.  Hence, the business of Li & Fung (1937) (including the transaction over Jebsen Building and the engagement of Centaline as estate agent) was not the business of the 2nd Applicant’s principal.
嚴格來說，「利豐(1937)」只是「利豐有限公司」的股東之一，它並不屬於以「利豐有限公司」為首的「利豐集團」。因此，「利豐（1937）」的業務（包括「捷成大廈」交易和聘用「中原」為地產代理）並不是第二申請人的主事人的業務。

To sum up, the 2nd Applicant’s ‘act’ in respect of the transaction over Jebsen Building in fact related only to the business of Li & Fung (1937) which had never been the 2nd Applicant’s principal.  Accordingly, the charge against him pursuant to section 9(1)(a) was misconceived and his conviction was unsafe.
總括而言，第二申請人就「捷成大廈」交易所作出的“行為”實際上只是與「利豐（1937）」的業務有關，但「利豐（1937）」由始至終均非他的主事人，因此控方以第 9(1)(a) 條向他提出起訴是不恰當的，而他的定罪亦是不穩妥的。

In the Privy Council case of Ch’ng Poh, Lord Lloyd of Berwick elucidated section 9(1)(a) of the Prevention of Bribery Ordinance, as follows:
在 Ch’ng Poh一案，英國樞密院的 Lord Lloyd of Berwick 法官對《防止賄賂條例》第 9(1)(a) 條的內容作出以下的釋闡：

… Section 9 is the only section in the [Prevention of Bribery Ordinance] dealing with persons other than public servants.  It is confined to agents.  It does not say, like with section 4, that the agent must have been acting in his capacity as an agent.  Instead the act done (or not done) by the agent must be an act done or not done in relation to his principal’s affairs … the alternative words serve the same purpose.  They are clearly intended to be restrictive.  It is not enough that the recipient of the bribe should be an agent in fact …
「……(《防止賄賂條例》)第 9 條是該條例中唯一處理公務員以外的條文，但它只局限於代理人。它沒有如第 4 條般說明代理人必須要在進行代理的職能。取而代之的是那個已完成(或未完成)的作為必須要是“與其主事人有關的”... 這些代替的字句的作用是一樣的，他們是具有規限性的意義。收受賄款的人事實上是代理人並不足夠 ...

So what do the limiting words mean?  They mean that, for the section to apply, the person offering the bribe must have intended the act or forbearance of the agent to influence or affect his principal’s affairs … it is an essential ingredient of the offence under section 9 that the action or forbearance of the agent should be aimed at the principal …
這些規限性的字眼有甚麼意思呢? 它們的意思是若第 9 條得以應用，提供賄款的人必須要意圖代理人的作為或不作為是去影響其主事人的業務...第 9 條的這個控罪的必要元素是代理人的作為或不作為必須要以其主事人為目標...」

Our views
本庭的意見

On the authority of Ch’ng Poh, in seeking to establish a defendant’s guilt for an offence under section 9(1)(a) of the Prevention of Bribery Ordinance, the emphasis is that the act or forbearance of the agent must be aimed at his principal.  If the defendant received a bribe solely by reason of his being an agent but the receipt of the bribe had nothing to do with his principal, then the defendant is not proved guilty of the offence.  This principle leaves no room for doubt.  However, as the Court of Appeal clearly stated in A. G. v. Ling Kar Fai (No.1) [1997] HKLRD 671 and HKSAR v. Tham Chee Seng [1998] 3 HKC 654, in dealing with a charge under section 9(1)(a) or (b), the court has to take into account the intention of the recipient of the advantage.  In the present case, the 2nd Applicant’s intention in accepting the $800,000 was that the money served as an inducement to or reward for his doing an act, and the relevant act was to cause his principal to engage Centaline in the property transaction.  The 2nd Applicant was fully aware how Li & Fung Group’s property needs were to be addressed, and Belinda Fung deposed in her witness statement that when the 2nd Applicant briefed her on the details of the property transaction, she already came to know that Centaline was the agent in that transaction.  On the evidence, the 2nd Applicant demanded a rebate from the 1st Applicant concerning the transaction, and after the 2nd Applicant referred the Jebsen Building transaction to Li & Fung (1937) for handling, he still telephoned PW3 at the time of execution of the contract by the parties, with a view to persuading her to sign the proposal, and he had also telephoned Belinda Fung, informing her that Centaline was dunning her for the commission.  All these events lent support to Judge Wong’s finding that the 2nd Applicant’s intention and understanding in accepting the bribe were that it was a reward for his causing his principal Li & Fung (1937) to engage Centaline as agent in the relevant transaction.
根據 Ch’ng Poh 一案，要証明被告人違反了《防止賄賂條例》第 9(1)(a) 條的規定的重點在於代理人的作為或不作為必須要針對其主事人。如果被告人收取賄款純粹是由於他是一名代理人，但收取賄款與其主事人是毫無關連的話，有關的控罪是不能成立的。這個原則是毋庸置疑的。但正如上訴法庭 A. G. v. Ling Kar Fai (No. 1) [1997] HKLRD 671 及 HKSAR v. Tham Chee Seng [1998] 3 HKC 654兩宗案例說明，法庭在處理第9(1)(a) 或 (b) 條的控罪時所需要考慮的是收受利益者的意圖，即本案第二申請人接受 $800,000 的意圖是該款項是作為他作出的行為或由於他作出該行為的誘因或報酬，有關的行為是致使其主事人在該交易中聘用「中原」。第二申請人是清楚知道利豐集團處理物業需要的辦事形式，而 Belinda Fung 在她的證人陳述書內亦說當第二申請人就交易的細節向她作出簡介時，她已得悉中原是該次物業交易的代理。本案的證據亦顯示第二申請人要求第一申請人就有關交易給他回佣、當第二申請人將「捷成大廈」交易交給「利豐(1937)」自行處理後，他在雙方簽署合約的階段仍致電第三證人勸她簽署建議書，以及他曾致電 Belinda Fung通知她「中原」正在催促她支付佣金。上述事件均可以支持黃法官裁定第二申請人收受賄款的意圖和理解是因為他在有關交易中致使其主事人「利豐(1937)」聘用「中原」為代理的報酬。

Furthermore, pursuant to section 11(1) of the Prevention of Bribery Ordinance, even though the 2nd Applicant had not materially and directly participated in the course of the transaction or influenced the decisions of Li & Fung (1937), this would be irrelevant to the question of his guilt or otherwise under section 9(1)(a) as long as he did hold the aforesaid belief.  Section 11(1) of the Prevention of Bribery Ordinance provides as follows:
另外，根據《防止賄賂條例》第 11(1) 條，如果第二申請人確實有如此信念，就算他沒有實質直接參與交易的過程或影響「利豐(1937)」的決定與他是否違反第9(1)(a) 條控罪是無關的。《防止賄賂條例》第 11(1) 條說：

If, in any proceedings for an offence under any section in this Part, it is proved that the accused accepted any advantage, believing or suspecting or having grounds to believe or suspect that the advantage was given as an inducement to or reward for or otherwise on account of his doing or forbearing to do, or having done or forborne to do, any act referred to in that section, it shall be no defence that ―
「在因本部任何一條所訂罪行而進行的法律程序中，如經證明被控人接受任何利益，且接受時相信或懷疑，或有理由相信或懷疑所獲給予的利益是作為他作出或不作出，或曾經作出或不作出該條所指作為的誘因或報酬，或是由於他作出或不作出，或曾經作出或不作出該等作為而獲給予的，則以下情況不得成為免責辯護

he did not actually have the power, right or opportunity so to do or forbear;
被控人實際上沒有權力、權利或機會作出或不作出該作為；

he accepted the advantage without intending so to do or forbear; or
被控人接受該利益但無意作出或不作出該作為；或

he did not in fact so do or forbear.
被控人事實上未有作出或不作出該作為。」

In our view, the prosecution had proved that when the 2nd Applicant accepted the $800,000, he believed or had grounds to believe that the bribe was given as a reward for his causing Li & Fung (1937) to engage Centaline as its estate agent.  It was irrelevant to the offence whether he had actually done the act or whether he had the power to do so.  The bribe was given to him not purely because he was an agent but because, as stated in the charge against him, it was in relation to his principal’s business.  Therefore, the prosecution had established the element of causation as required by the offence.
本庭認為控方已經證明了第二申請人在接受該 $800,000 時是相信或有理由相信他所獲得的賄款是他作為他致使「利豐(1937)」聘用「中原」為地產代理的報酬。至於他事實上有沒有這樣做或者他是沒有權力這樣做都是與控罪無關的。申請人之所以獲得賄款並非純粹由於他是一名代理人，而是如控罪所指與他的主事人的業務有關，故此控方已證實了控罪所要求的因果關係。

We now turn to the issue of whether Li & Fung (1937) was the 2nd Applicant’s principal.  The 2nd Applicant’s submission that Li & Fung (1937) was not his principal was, in our view, a highly technical point.  On a narrow view of the matter, Li & Fung (1937) did not appear to be the 2nd Applicant’s principal because the 2nd Applicant was not an employee of Li & Fung (1937), he was no longer involved in the sale and purchase transaction after Li & Fung (1937) took over it, and Li & Fung (1937) eventually became the purchaser.  However, in Hong Kong, it is common in conveyancing transactions for purchasers to use other limited companies to execute sale and purchase agreements.  In the present case, Li & Fung (1937) was not an independent company which had nothing to do whatsoever with Li & Fung Trading or Li & Fung Limited.  Given the close connection among Li & Fung Trading, Li & Fung (1937) and Li & Fung Limited and the fact that Li & Fung (1937) eventually became the purchaser, we consider that, taking a broad view of the matter, Li & Fung (1937) was also the 2nd Applicant’s principal: by reason of the internal operation of Li & Fung Group, Li & Fung (1937) became the 2nd Applicant’s principal upon taking over the transaction from Li & Fung Trading.  Accordingly, Judge Wong’s ruling was in our judgment correct.  Nor was Charge 8 defective.
本庭現在要考慮「利豐(1937)」是不是第二申請人的主事人這個論點。本庭認為第二申請人聲稱「利豐(1937)」不是他的主事人是一個極為技術性的觀點。從狹隘的角度來看，第二申請人不是「利豐(1937)」的僱員、他在「利豐(1937)」自行處理該買賣交易後就再沒有參與事件及「利豐(1937)」最終成為買主的事情均令「利豐(1937)」看來好像不是第二申請人的主事人。但在香港的物業交易中買方往往會使用另一間有限公司去簽署買賣合約是慣常的做法。本案中的「利豐(1937)」並非是與「利豐貿易」或「利豐有限公司」全無關連的獨立公司。根據「利豐貿易」、「利豐(1937)」及利豐有限公司的密切關係及「利豐(1937)」最終成為買主的背景，本庭認為從宏觀的角度來看，「利豐(1937)」亦是第二申請人的主事人：基於利豐集團的內部操作，該宗交易由「利豐(1937)」從「利豐貿易」接手而成為第二申請人的主事人。因此，本庭認為黃法官的裁決是正確的。第八項控罪也不存有缺陷。

The third ground of appeal
第三上訴理由

At the investigative interview with ICAC officers, the 2nd Applicant, under caution, denied the charge against him.  Judge Wong made the following findings on the record of the interview:
第二申請人在接受廉政公署調查時在警誡下否認控罪。黃法官就有關的會面記錄作出以下的裁決：

In deciding where the truth lies, I have taken account of all the evidence.  If the exculpatory part of the 2nd Defendant’s statement is true, may be true or gives rise to a reasonable doubt, then I have to acquit the 2nd Defendant.  In my view, the 2nd Defendant’s denial is superficial and short of details.  Coupled with the fact that he has not testified in court, I do not accept the exculpatory part of his statement.
本席考慮了整體證據以決定真相所在，如果陳述中足為第二被告人開脫的部分是真的、可能是真的、或造成合理疑點的話，本席當判第二被告人無罪。本席認為，第二被告人的否認是片面的，也不具細節，也因第二被告人沒有出庭作證，本席不信納第二被告人在陳述中的開脫部分。

This notwithstanding, I will not convict the 2nd Defendant solely on this basis, because a defendant does not bear the burden of proof, which always rests with the prosecution.  In assessing whether the prosecution has proved beyond all reasonable doubt that the 2nd Defendant has committed the offence, I have all along borne in mind that he has no conviction record.
雖然這樣，本席不會因此便裁定第二被告人有罪，因為被告人並沒有任何舉證責任，舉證責任一直都在控方身上。本席在評估控方是否在毫無合理疑點的尺度下證明了第二被告人干犯了控罪的時候，一直緊記第二被告人是沒有任何刑事定罪紀錄的。

The 2nd Applicant submitted that Judge Wong should not have rejected the exculpatory statement that he had made at the interview on the basis that he had not testified in court, because he had the right to elect not to give evidence in court.  He cited the following guidelines given by the Court of Final Appeal in HKSAR v. Lee Fuk Hing [2005] 1 HKLRD 349:
第二申請人指他選擇不在法庭上作證是他的權利，黃法官不應因此而不接納他於會面記錄中所作出的開脫陳述。第二申請人引用終審法院就 HKSAR v. Lee Fuk Hing [2005] 1 HKLRD 349一案所作出的指引：

There was a right to silence, in consequence of which suspected persons in Hong Kong should be and routinely were given a caution informing them in unqualified term that they need not speak.  In the whole of these circumstances, it was inappropriate in Hong Kong to use a person’s silence against him in any way.
「保持箴默的權利是存在的。由於疑犯有保持箴默的權利，他們通常，亦應該被警戒及完全地知會他們並沒有需要說話。在香港，在任何情況下，用任何方式利用疑犯的箴默權利都是不適當的。」

In addition, the 2nd Applicant submitted that Judge Wong had unreasonably criticized the 2nd Applicant’s denial of the charges in the record of interview as superficial and lacking in details.
另外，第二申請人認為黃法官批評他在會面記錄中否認控罪的辯解是片面、不具細節是不合理的。

We do not think that Judge Wong had erred in any way on this.  He had made it clear to the Applicant that he had the right to elect not to give evidence in court and that the court would not draw any adverse inference against him if he exercised his right.  We do not consider that Judge Wong’s findings had encroached upon the right of silence which the law had conferred on the 2nd Applicant.  As a matter of law, the court is not bound to accord any weight to a defendant’s out-of-court exculpatory statement, such as his denial under caution of the charges against him, because the defendant may have made such a statement purely with a view to protecting his own interest or absolving himself from criminal liability.  Furthermore, the record of interview showed that, apart from a making bare denial of the charges against him, the 2nd Applicant had not provided any particulars to support his exculpatory statement.
本庭不認為黃法官就這事犯上任何錯誤。黃法官清楚指出申請人在庭上選擇不作供是他的權利，法庭不會對他作出不利的揣測。本庭不認為黃法官的裁決違反了法律賦予第二申請人的箴默權原則。根據法律原則，法庭就被告人在法庭以外在警誡下作出否認控罪的開脫陳述是可以不給予比重的，理由是有關陳述只是被告人維護其利益及為了脫罪而作出的辯解。再者，第二申請人在會面記錄的開脫罪行部分也確實是沒有提供任何細節，他只是純粹否認控罪。

For the above reasons, the 2nd Applicant’s application for leave to appeal against conviction is dismissed.
基於上述原因，本庭駁回第二申請人針對定罪的上訴許可申請。

The 1st Applicant’s application for leave to appeal against sentence
第一申請人針對刑期的上訴許可申請

We have hereinabove referred to the facts of Charge 1 against the 1st Applicant as summarised by Judge Wong.  We now refer to the Judge’s summary of the facts pertaining to the remaining three charges:
本庭已將黃法官就第一申請人的第一控罪的案情簡述節錄於上文，以下是黃法官對其他三條控罪案情的簡述：

Charge 3
「第三控罪

In July 2005, a member company of Li & Fung Group purchased certain premises in Hong Kong Textile Factory Industrial Building.  The 2nd Defendant suggested that the Group appoint [Centaline] as its agent, and [Centaline] was engaged accordingly.  In that connection, the 1st Defendant offered approximately $412,000 to the 2nd Defendant as an advantage.  In order to obtain the said sum, the 1st Defendant falsely represented to [Centaline] that a company named Classic Look had provided consultancy services to [Centaline], as a result of which he fraudulently obtained $518,645.
05 年 7 月，利豐集團一間成員公司購入了香港紗廠工業大廈內的一些物業，第二被告人建議集團委託中原地產為代理，中原地產因此被聘用，第一被告人為此向第二被告人提供了大約 412,000 元的利益，為了要取得這筆款項，第一被告人向中原地產虛稱一間 Classic Look 公司曾向中原地產提供顧問服務，騙取了 518,645 元。

Charge 5
第五控罪

In February 2006, Li & Fung Trading rented certain properties.  The 2nd Defendant suggested that the company appoint [Centaline] as its agent, and [Centaline] was engaged accordingly.  In that connection, the 1st Defendant provided approximately $200,000 to the 2nd Defendant as an advantage.  In order to obtain the said sum, the 1st Defendant falsely represented to [Centaline] that [Wang Him] had provided consultancy services, as a result of which he fraudulently obtained $267,797.
06 年 2 月，利豐貿易租用了一些物業，第二被告人向公司建議委託中原地產為代理，中原地產因而被聘用，第一被告人為此向第二被告人提供了大約 200,000 元的利益，為了要取得這筆款項，第一被告人向中原地產虛稱宏謙提供了顧問服務，騙取了 267,797 元。

[the rented property concerned was Ng Fat Building (吳發大廈)]
[有關的租用物業是吳發大廈]

Charge 7
第七控罪

In April 2005, in order to raise money to pay commission, the 1st Defendant, conspiring with the 3rd Defendant and PW1, submitted documents which falsely represented that [Wang Him] was a referral agency, thereby causing [Centaline] to believe that the representation was true and hence pay Wang Him $275,000 as referral fee.
05 年 4 月，為了要籌得一筆金錢支付回佣，第一被告人與第三被告人連同控方第一證人串謀提交文件，虛稱宏謙是一間轉介公司，令中原地產信以為真，支付了宏謙 275,000 元的介紹費。」

[the property concerned was at 98 Fa Yuen Street]
[有關的物業是花園街 98 號物業]」

Judge Wong adopted the following starting points for the various charges: imprisonment for 3 years in respect of Charge 1; imprisonment for 30 months in respect of Charge 3; imprisonment for 30 months in respect of Charge 5; and imprisonment for 2 years in respect of Charge 7.
黃法官就各項控罪採用以下的量刑基準：第一控罪為三年監禁；第三控罪為三十個月監禁；第五控罪為三十個月監禁；而第七控罪為兩年監禁。

As the 1st Applicant pleaded guilty to the charges, the various terms of imprisonment were reduced by one-third to the following: 24 months in respect of Charge 1; 20 months in respect of Charges 3 and 5; and 16 months in respect of Charge 7.  The sentences for the first three charges were ordered to run concurrently, but these terms were ordered to run consecutively to the sentence for Charge 7, making a total term of 40 months.
由於第一申請人承認控罪，在扣減認罪的三分之一刑期扣減後，各項刑期為：第一項控罪是二十四個月監禁；第三及第五項控罪是二十個月監禁；第七項控罪是十六個月監禁。首三項刑期同期執行，但與第七項控罪的刑期分期執行，總刑期是四十個月監禁。

The 1st Applicant’s background
第一申請人的背景

The 1st Applicant is 49 years of age and comes from the grass roots.  He studied diligently, worked part-time after school and obtained a degree from the university, following which he worked in the business sector.  He joined Centaline in 1996 and was promoted to the post of director a few years later.  The mitigation letters written for him by the senior officers of Centaline revealed that the 1st Applicant had assisted Centaline in boosting its business and had made a lot of contributions to the company.  Scores of staff members of Centaline had also written to the court, seeking to mitigate the 1st Applicant’s sentence.  Outside office hours, the 1st Applicant took part in a number of social services.
第一申請人現年 49 歲，出身於草根階層，他努力讀書，課餘兼職，取得大學學位，畢業後投身商界。他於1996 年加入「中原」，數年後已獲擢升為董事。「中原」高層人員為他撰寫的求情信顯示第一申請人協助「中原」提升業務及對公司作出不少的貢獻。數十名「中原」的職員均致函法庭，為第一申請人求情。第一申請人在工餘亦參與多項的社會服務。

The submission on mitigation
減刑的陳詞

Mr. Pang, Counsel for the 1st Applicant, submitted that the sentence was manifestly excessive.  He submitted that the 1st Applicant did not take the initiative to offer bribe to the 2nd Applicant; in fact, the 2nd Applicant sought a rebate from PW3, who then related the request to the 1st Applicant, and hence the 2nd Applicant was the culprit.  Mr. Pang also submitted that Centaline had in fact not suffered any loss ― the 1st Applicant’s act increased the business turnover of Centaline, and therefore Centaline would not possibly have suffered any loss; had the 1st Applicant not agreed to give rebate to the 2nd Applicant, Centaline would not have been engaged as the agent in the relevant property transaction.  Mr. Pang further pointed out that Judge Wong had not reduced the 1st Applicant’s sentence as appropriate in light of his previous good record.
代表第一申請人的彭耀鴻大律師指刑期明顯是過重。他指第一申請人並非主動向第二申請人提供賄款，事實上是第二申請人向第三證人索取回佣，而第三證人向第一申請人轉達有關要求，因此始作佣者是第二申請人。彭大律師亦指「中原」實際上並沒有受到損失，因為第一申請人的行為提高了「中原」的營業額，因此「中原」根本不會有損失；假若第一申請人不答應給予第二申請人回佣，「中原」就不會獲聘為該項物業交易的代理人。彭大律師指黃法官亦沒有就第一申請人的良好行為記錄給予他一個適當的刑期扣減。

Our views
本庭意見

In our view, in order to uphold Hong Kong’s reputation as an international commercial centre, Hong Kong courts must impose severe punishment on those who practise commercial corruption.  Although the 1st Applicant did not take the initiative to offer the bribe to the 2nd Applicant, he actively took part in the corruption, making false documents to deceive his employer and dishonestly obtaining money in order to pay the bribe to the 2nd Applicant.  The 1st Applicant had also bribed the 2nd Applicant in two other property transactions.  As a senior officer of Centaline, the 1st Applicant had not only failed to set an example by prohibiting his subordinates from doing corrupt acts and urging them to report such acts, but rather had directly participated in illegal activities.  This cannot be allowed by the law.
本庭認為香港法庭必須對所有干犯商業貪污者嚴厲懲處，以維持香港作為國際商業都市的聲譽。雖然第一申請人不是主動向第二申請人提供賄款，但他積極參與賄賂活動、製造虛假文件去欺騙其僱主，以及不誠實地取得金錢以支付賄款給第二申請人。第一申請人亦在其他兩次物業買賣交易中向第二申請人提供賄款。第一申請人作為「中原」的高層成員，不但沒有以身作則，禁止下屬進行貪污勾當或舉報有關行為，反而直接參與不法的行動，這是法律所不容的。

While it is true that the activities in which the 1st Applicant took part had increased the business turnover of Centaline, we do not agree with Mr. Pang’s submission that Centaline had not suffered any loss.  In our view, all estate agents must conduct property transactions in a legitimate manner.
明顯地，第一申請人所參與的活動的確提高了「中原」營業額，但本庭對彭大律師指「中原」沒有受到損失的說法不表認同。本庭認為地產代理人必須以合法的方式去進行物業交易。

As regards the 1st Applicant’s good record and contribution to the community, we consider that given the serious nature of this type of cases, it was correct for Judge Wong not to further reduce the 1st Applicant’s sentence.  What the 1st Applicant did as a senior officer of Centaline plainly constituted a serious breach of trust.
至於第一申請人的良好行為記錄及對社會的供獻，本庭認為在就這類嚴重的案件，黃法官不再給予第一申請人刑期扣減是正確的做法，因為申請人作為「中原」的高層成員，他的行為明顯是嚴重違反了誠信。

To support his contention that the 1st Applicant’s sentence was manifestly excessive, Mr. Pang cited the sentences in 10 other cases of the same nature (see the Appendix to this judgment for details).  We must reiterate that the sentence(s) for each case is/are considered on its own facts and, as different cases involve different facts, the sentences imposed may not necessarily be the same.  The paramount consideration is that on the facts of the present case, the sentence imposed on the 1st Applicant is not manifestly excessive.  In our judgment, whether individually or taken as a whole, the sentences imposed on the 1st Applicant by Judge Wong are appropriate.
彭大律師引用本判案書附件的另外十宗同類案件的量刑來支持他認為本案的量刑明顯過重的觀點。本庭必須重申每宗案件的量刑是根據其案情而作出的，由於每宗案件的案情有別，所以其量刑也不一定是相同的。最重要的原則是第一申請人獲判的刑期就本案案情而言是沒有明顯過重。本庭認為不論黃法官所判的個別刑期或整體刑期皆是第一申請人所應獲判的適當刑期。

Conclusion
總結

The application in respect of sentence is dismissed.
本庭駁回針對刑期的申請。

Appendix
附件

Mr. Alex Lee, Senior Assistant Director of Public Prosecutions and Mr. Edmond Lee, Senior Prosecutor, for the Respondent.
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李俊文代表。

Mr. Robert Pang, instructed by Cheung & Choy, for the 1st Applicant.
第一申請人: 由張世文蔡敏律師事務所轉聘彭耀鴻大律師代表。

Mr. Wong Man-kit SC, Mr. Edwin Choy and Mr. Joe Chan, instructed by Sit, Fung, Kwong & Shum, for the 2nd Applicant.
第二申請人:由薛馮鄺岑律師行轉聘黃敏杰資深大律師,蔡維邦大律師及陳偉彥大律師代表。