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：

The three charges
三項控罪

The Applicant was charged with the following three offences:
申請人被控以下三項控罪：

Being an agent, conspiring to accept an advantage, contrary to sections 9(1)(a) and 12(1) of the Prevention of Bribery Ordinance (Cap. 201 of the Laws of Hong Kong) and the common law;
作為代理人而串謀接受利益，違反《防止賄賂條例》（香港法例第 201 章）第 9(1)(a) 及 12(1) 條和普通法；

Being an agent, conspiring to accept an advantage, contrary to sections 9(1)(a) and 12(1) of the Prevention of Bribery Ordinance and sections 159A and 159C of the Crimes Ordinance (Cap. 200 of the Laws of Hong Kong);
作為代理人而串謀接受利益，違反《防止賄賂條例》第 9(1)(a) 及 12(1) 條和《刑事罪行條例》（香港法例第 200 章）第 159A 及 159C 條；

Conspiracy to defraud, contrary to the common law.
串謀詐騙，違反普通法。

The Applicant pleaded not guilty to the charges. After trial before Deputy District Judge Yim, the Applicant was convicted on all three charges. He was sentenced to imprisonment for 4 years for each of Charges (1) and (2), and the sentences were ordered to run concurrently. He was sentenced to imprisonment for 2 years for Charge (3), and 6 months of the term was ordered to run consecutively to the sentences for Charges (1) and (2). The total term of imprisonment was therefore 4 years and 6 months.
申請人否認控罪。案件經區域法院暫委法官嚴舜儀審理後，申請人被裁定三項罪名成立及被判處入獄四年六個月；當中第一及第二項控罪的刑期分別是四年監禁，兩項刑期同期執行，而第三項控罪的刑期是兩年監禁，其中的六個月與第一及第二項控罪的刑期分期執行。

Furthermore, in respect of Charges (1) and (2), the Applicant was ordered to pay compensation in the respective sums of HK$800,000 and HK$650,000, totalling HK$1,450,000, to his employer AIG Finance (Hong Kong) Limited (hereinafter “AIG Finance”) (formerly known as “SPC Credit Limited” (hereinafter “SPC Credit”)). The Applicant applied for leave to appeal against the convictions.
另外，申請人就第一及第二項控罪需分別向其僱主美國國際信貸（香港）有限公司（‘美國國際’）（前稱‘美國太平洋信貸有限公司’）（‘太平洋’）賠償HK$800,000及 HK$650,000，合共HK$ 1,450,000 。申請人對定罪不服，提出上訴許可申請。

Having heard the application, we refused to grant leave. We now set out our reasons for the decision.
本庭經聆訊後拒絕申請，以下是本庭的判案理由。

Overview of the prosecution case
控方案情概覽

Charges (1) and (2)
第一及第二項控罪

The Applicant was formerly employed by AIG Finance as a branch manager. AIG Finance did not allow its employees to solicit or accept any advantage from customers in the course of business dealings. During the period between October 1990 and December 1999, the Applicant conspired with one Fung Bing Yan (馮炳仁) (hereinafter “Fung”) (i.e. PW2), a client of AIG Finance, and other persons concerned, whereby the Applicant, in his capacity as an agent of AIG Finance, assisted Fung and those other persons in obtaining loans from AIG Finance, and Fung provided the Applicant with an advantage whenever a loan was obtained.
申請人是美國國際的一名前分行經理。美國國際是不容許僱員在處理公司業務時向僱客索取或收受利益。1990年10月至1999年12期間，申請人串謀一名美國國際的客戶馮炳仁（‘馮’）（即控方第二証人），以他作為美國國際代理人的身份協助馮及其他有關人士取得美國國際的貸款，而馮會在獲得每筆貸款後向申請人提供利益。

Charges (1) and (2) respectively covered the periods from October 1990 to 1 August 1996 and from 2 August 1996 to December 1999. During these two periods, Fung offered the Applicant bribes in the total sum of approximately HK$10,000,000.
涉及第一及第二項控罪的時間分別由 1990年10月至1996年8月1日及由1996年8月2日至1999年12月。馮於該兩段期間向申請人提供賄款合共約HK$10,000,000。

Charge (3)
第三項控罪

Charge (3) alleged that between October 1990 and August 1999 the Applicant and Fung conspired to defraud AIG Finance by agreeing to supply false information and documents to AIG Finance, thereby causing AIG Finance to grant the loans. The loans were secured by some pieces of land in the New Territories which were owned by Fung. Of the 7 pieces of land in question, 6 related to Charge (3). These securities were falsely described as “land on which buildings have been erected”. In fact, no building whatsoever had been erected on 5 of the 7 pieces of land on which 3-storey village houses were claimed to have been erected; and nothing other than a dilapidated house was found on another piece of land on which a 3-storey village house was claimed to have been erected.
第三項控罪指申請人與馮在1990年10月至1999年8 月期間串謀欺詐美國國際，兩人協議向美國國際提供虛假資料及文件，致令美國國際批出貸款。馮以位於新界的土地作為有關貸款的抵押品，在涉案的七塊土地中有六塊是與第三項控罪有關的，這些抵押品被虛假報稱為「已建有建築物的土地」，但事實上其中五塊報稱建有三層高的新界村屋的土地上並沒有任何建築物；而另外一塊報稱建有三層高的新界村屋的土地上就只有一間破屋。

Details of the aforesaid 7 pieces of land were as follows:
上述的七塊土地的資料如下：

The Remaining Portion of Lot No. 719 in Demarcation District (“DD”) No. 111 of Ha Che, Yuen Long (hereinafter “Property 1”)
元朗下輋第 111 約第 719 號地段餘段 （後稱為“物業1”）

Lot No. 28 in DD No. 111 of Ha Che, Yuen Long (hereinafter “Property 2”)
元朗下輋第 111 約第 28 號地段（後稱為“物業2”）

Lot No. 212 in DD No. 111 of Wing Ning Lane, Pat Heung, Yuen Long (hereinafter “Property 3”)
元朗八鄉永寧里第 111 約第 212 號地段（後稱為“物業3”）

Lot No. 156 in DD No. 111 of Tai Shan Village, Pat Heung, Yuen Long (hereinafter “Property 4”)
元朗八鄉台山村第 111 約第 156 號地段（後稱為“物業4”）

Lot No. 23 in DD No. 120 of Tin Liu, Yuen Long (hereinafter “Property 5”)
元朗田寮第 120 約第 23 號地段（後稱為“物業 5”）

Lot No. 75 in DD No. 120 of Tin Liu, Yuen Long (hereinafter “Property 6”)
元朗田寮第 120 約第 75 號地段（後稱為“物業 6”）

Ground Floor to 2nd Floor, Lots Nos. 36 and 37 in DD No. 111 of Wing Ning Lane, Pat Heung, Yuen Long (hereinafter “Property 8”)
元朗八鄉永寧里第 111 約第 36 及 37 號地段地下至二樓（後稱為“物業8”）

Investigations by the Bank
銀行的調查

By the end of 2000, Fung was indebted to AIG Finance for a sum in the range of HK$10,570,000 to HK$14,350,000. Upon investigations and re-valuation of the securities, AIG Finance found that the aforesaid pieces of land were in a state as described in paragraph 7 hereinabove, and that the actual values of the securities when the loans were granted were much lower than their estimated values.
2000年底馮欠美國國際的貸款額達 HK$10,570,000至HK$14,350,000。美國國際進行調查及重新對抵押品作出估價，發現上述第7段中所敍述的土地情況及有關的抵押品在獲批出貸款時的實際價值遠低於其估值。

Investigations by the ICAC
廉政公署的調查

The matter was subsequently investigated by the ICAC. Before the ICAC took any action, the Applicant left Hong Kong for the USA on 1 May 2002. On 27 October 2006, law enforcement officers arrested the Applicant in the USA pursuant to a warrant of arrest issued by the Hong Kong court. The Applicant agreed to return to Hong Kong for trial and was extradited back to Hong Kong by the ICAC on 3 January 2007.
案件其後由廉政公署展開調查。在廉署對申請人採取行動前，申請人於 2002 年 5 月 1 日離開了香港前往美國。申請人於 2006 年 10 月 27 日在美國被執法人員根據香港法庭頒發的通緝令逮捕。申請人同意回港受審，並於2007 年 1 月 3 日由廉署引渡回港。

Fung’s evidence
馮的証供

Apart from holding a full-time job as a legal clerk in a solicitors’ firm, Fung ran businesses in developing village houses and transporting containers. Fung became acquainted with the Applicant in 1986 and then introduced to the Applicant some potential clients who would like to obtain loans. When after a long lapse of time the loans were still not granted, Fung made enquiries with the Applicant, who replied that “those above want tea money of HK$5,000 to HK$7,000 for each transaction”. Fung then relayed the Applicant’s request to the clients, who then agreed to pay tea money. Subsequently the loans were approved, and the tea money given by the client was handed to the Applicant in cash by Fung.
馮的正職是一間律師行的法律文員，他還經營村屋發展及貨櫃運輸生意。1986 年馮認識申請人，之後他介紹一些想申請貸款的客戶給申請人認識。後來馮因貸款申請遲遲未批出向申請人查詢，申請人的答覆是：「上面要茶錢，每宗約HK$5,000 至HK$7,000」。馮將申請人的要求轉告有關客戶，該客戶同意繳付茶錢。後來貸款獲批核，馮將該客戶繳付的茶錢以現金形式交付申請人。

Between October 1990 and July 1999, Fung and the Applicant entered into an agreement on the following terms. The Applicant would process the loan applications referred to him by Fung and submitted to AIG Finance. For any successful application for a loan not secured by landed property, Fung would give the Applicant tea money equivalent to 10% of the loan amount; for any successful application for a loan secured by landed property, the Applicant could obtain tea money in an indeterminate sum. Fung paid the bribes to the Applicant in cash except on one occasion when the money was paid by means of a cash cheque. Furthermore, the Applicant would introduce clients to Fung’s solicitors’ firm for the purpose of executing deeds, and Fung would give the Applicant a commission equivalent to 40% of the legal fees paid by each client.
在 1990 年 10 月至 1999 年 7 月期間，馮與申請人達成協議：申請人替他辦理向美國國際申請貸款事宜，在涉及沒有以房屋土地作為抵押品的申請成功批出後，馮會以該貸款額的一成作為給予申請人的茶錢；而在涉及有房屋土地作為抵押品的申請成功批出後，申請人則可索取無定額的茶錢。馮除了有一次提供賄款給申請人時是用現金支票外，其餘每次都是以現金來支付賄款的。另外，申請人會介紹客戶到馮的律師行訂定契約，馮會以每個客戶所支付的律師費的四成作為給申請人的回佣。

The transactions in which Fung obtained loans through the Applicant and offered bribes to the Applicant are set out below:
馮經申請人安排獲得貸款及馮向申請人提供賄款的交易項目如下：

On Fung’s evidence, he would be granted a larger loan amount where a building was erected on the mortgaged land. Fung sought assistance from a Lands Department Inspector and obtained from him some construction or occupation permits falsely alleged to have been issued by the Lands Department. The permits falsely claimed that some buildings were erected on the vacant lands mortgaged by Fung. The Applicant also demanded Fung to supply false income proof or false company accounts in respect of the loan applicants.
根據馮的証供，若果抵押的土地上建有建築物的話，他會獲批出較高的貸款額。馮向一名地政總署的地政督察尋求協助及從這名地政督察取得一些訛稱是地政總署簽發的建築或入伙批文，虛假地報稱馮用作抵押的空置土地上建有建築物。另外，申請人亦要求馮提供貸款申請人的虛假收入資料或虛假的公司帳目。

Due to financial difficulties, Fung ceased to make any repayment to AIG Finance after he made repayment on 24 May 2000. He went to the Mainland on the same day. Later, the Applicant called Fung, informing him that a police officer had gone to the Mongkok Branch to check his documents and asking him not to return to Hong Kong. In late 2000, Fung was arrested at the border when he was returning to Hong Kong from the Mainland. He was granted bail and subsequently five charges were laid against him. The Applicant was involved in three of those charges, two being conspiracy to offer an advantage to an agent and the other being conspiracy to defraud.
馮因為經濟出現困難，在2000 年 5 月 24 日向美國國際還款後就再沒有繼續作出還款。同日他前往內地。之後他接到申請人的電話說有警員到旺角分行查看他的文件及叫他不要回港。在 2000 年底馮從內地回港時在邊境被捕，他獲准保釋，後來被起訴五項控罪，其中三項是與申請人有關的：其中兩項是串謀向代理人提供利益罪，另一項為串謀詐騙罪。

Fung pleaded guilty before the District Court on 3 December 2002 and was sentenced to 45 months’ imprisonment on 14 January 2004. By the time he gave evidence in the present case, he had served his term and been released from prison.
馮於 2002 年 12 月 3 日在區域法院承認控罪及於 2004 年 1 月 14 日被判處 45 個月監禁。他就本案出庭作供時已經刑滿出獄。

Apart from the present case, in December 2003 Fung gave evidence as a prosecution witness in a case against the Lands Department Inspector. On 9 December 1993, Fung pleaded guilty to obtaining a driving licence by using false information and was fined HK$3,000.
另外，馮於 2003 年 12 月就地政總署地政監督被控的一案出庭作控方証人。馮在 1993 年 12 月 9 日承認以虛假資料取得駕駛執照的控罪及被判處罰款 HK$3,000。

Evidence of AIG Finance
美國國際的証供

According to one Mr. Leung Tak Cheung (梁得彰) (PW1), the officer-in-charge of the “Mortgage and Loan Release Policy Department” of AIG Finance, a branch manager of the bank could freely select which solicitor or surveyor to engage when handling a loan application. The policy of the bank was that, upon a surveyor being selected, the branch manager would give instructions to the surveyor. The surveyor would first give a verbal valuation of the mortgaged land and would then prepare a written valuation report. Before making recommendations to the bank on the loan application, the branch manager had to obtain the verbal valuation. A formal valuation report would be prepared only after the loan application met with preliminary approval. Whether final approval of the loan application was to be granted or not would depend on the assessment in the formal valuation report.
根據美國國際有「抵押放款政策部」主管梁得彰（控方第一証人）的証供，銀行分行經理在處理貸款申請時是可以自行決定選用哪一位律師或測量師的。銀行的政策是在選定測量師後由分行經理向測量師發出指示。測量師會先作出抵押土地的口頭估價，繼而作出書面估價報告。分行經理向銀行推薦貸款申請前先要獲得口頭估價，待有關的貸款申請獲初步批出後才作出一份正式的估價報告，而貸款申請最終是否獲批出就要視乎正式估價報告所作出的評估。

Evidence of Vigers
威格斯的証供

On the evidence of the staff members of Vigers, only the Applicant had instructed the surveyors at Vigers to compile valuation reports. They testified that they would only make verbal valuations and formal valuation reports upon requests by AIG Finance. They would not disclose to the loan applicants the valuations of the properties, nor had they disclosed to Fung the valuations of his properties. They said that as the Applicant had not given them instructions for valuation in good time and the procedures of ascertaining the locations of the village houses were rather complicated, they were unable to obtain the maps for the relevant lots from the Lands Department to ascertain the exact locations of the houses. They could only rely on the Applicant and Fung, or someone appointed by them, to take the valuers to the lots in question for inspections. They made valuations of the lots, on which buildings were found, on the basis of the site inspections.
威格斯工作人員的証供顯示只有申請人一人曾向威格斯測量師作出估價報告的指示。他們供稱他們只會根據美國國際的要求作出口頭估價及正式估價報告，他們是不會向貸款申請人透露物業的估值，亦沒有告訴過馮有關他的物業的估值。他們說由於申請人指示他們提交估價的時間不充裕，而確定村屋位置的程序又頗為繁複，他們因此未能從地政署取得有關地段的地圖以確定物業的正確位置，唯有依賴申請人和馮或他們委派的人曾帶領威格斯的估價員到達有關的地段視察，而該地段上的土地是建有建築物的，他們是以當日視察土地的情況作出估價的。

No evidence from the Applicant
申請人不作供

The Applicant elected not to give evidence in his defence. Nor did he call any witness.
申請人選擇不作供自辯及不傳召任何証人。

Findings by Judge Yim
嚴法官的裁決

Judge Yim accepted Fung’s evidence and found that the Applicant knew that the information stated in the land documents was false. The Judge also held that the Applicant intentionally arranged for valuers at Vigers to be taken to other sites for inspections.
嚴法官接納馮的証供及裁定申請人是知道有關土地文件的資料是虛假的。另外，申請人是蓄意安排，令威格斯的估價員被帶到別的物業視察。

Grounds of defence
答辯理由

The Applicant advanced the following grounds of defence:
申請人所依賴的答辯理由如下：

Fung fabricated his evidence in order to frame up the Applicant;
馮提供虛假証供誣衊申請人；

The Applicant never received any advantage from Fung;
申請人沒有收取馮任何利益；

The Applicant did not know that the information contained in the loan application documents supplied by Fung was false, nor did he have doubts about the truth and accuracy of the information;
申請人不知道馮向他所提供的貸款申請文件內的資料是虛假的，他亦沒有懷疑其真確性；

The Applicant relied on the false information supplied by Fung in respect of the properties to obtain the verbal reports;
申請人是依賴馮所提供的虛假物業資料來索取口頭報告的；

Fung arranged for the valuers at Vigers to carry out inspections at sites that matched the false information, as a result of which they provided valuation reports that were at variance with the facts;
馮安排威格斯估價員到與假資料相符的土地視察，致令威格斯估價員作出與事實不符的估價報告；

Since 1996, because of his good relationship with Fung, the Applicant had become less vigilant and had been negligent in processing the documents submitted by Fung.
自1996 年開始，由於申請人與馮的關係良好，以致降低了警覺性，而疏忽地處理馮所提交的文件。

Dealing with the evidence of an accomplice
從犯証供的處理

Fung was an accomplice of the Applicant in respect of the present offences. The court has to be particularly cautious in dealing with the evidence of an accomplice who has turned his back to testify for the prosecution against a defendant. The reasons for this are obvious. The accomplice, who has participated in criminal activities, will hardly be a good and veracious witness. He may also have all sorts of personal reasons to incriminate the defendant. One reason is to obtain a benefit, such as a more lenient sentence for lessened culpability or a reduction in sentence if he had assisted the prosecution in securing the defendant’s conviction. He may also have grudges against the defendant and, as an act of revenge, turns his back and give evidence as a prosecution witness against the defendant.
馮是一名與申請人共同犯案的罪犯。法庭在處理一名從犯轉作控方証人去指証被告人時須特別小心。原因是顯而易見的：既然該名從犯是有份參與犯罪行為的人士，他不會是良好、誠實的証人。他亦有可能懷有各種私人的理由去指証被告人，希望藉此獲取利益，如減輕罪責以獲判較輕的刑期或者協助控方使被告人入罪可獲刑期扣減；他亦可能與被告人有私人因怨，為了報仇而轉作控方証人去指証被告人。

Legal principles
法律原則

Under the old law of Hong Kong, in convicting a defendant on the evidence of an accomplice, the court must warn itself that, in the absence of corroboration, it was dangerous to convict a defendant solely on the evidence of an accomplice. Having so warned itself, the court could convict the defendant on the evidence of an accomplice even though it was uncorroborated. As the rules relating to the warning were highly mechanical and technical, the legal requirement that the court had to give itself a warning has been abrogated by section 60 of the Criminal Procedure Ordinance (Cap. 221 of the Laws of Hong Kong). It is intended that, with the abolition of the rigid requirement, the court or the jury can focus on the assessment of all the supporting evidence and circumstantial evidence before giving due weight to the evidence of the accomplice. See R v Chu Ip Pui [1997] HKLRD 549.
香港的舊有法律是法庭在根據從犯的証供將一名被告人定罪時必須作出自我警告：除非案件有佐証(corroboration)，否則只依賴從犯的証供去作出定罪的裁決是危險的。如法庭在作出了自我警告後，就算案件沒有其他佐証，它仍然是可以根據從犯的証供將被告人定罪。由於有關的警告規則是極為機械性及技術性，故此在《刑事程序條例》（香港法例第 201 章）第 60 條中法庭必須首先作出自我警告的法律條文已被廢除，目的是在廢除了機械性的要求後，法官或陪審團將注意力集中在衡量所有支持控罪的証供及環境的証供上，然後才對從犯的証供給予適當的分量，見：R v Chu Ip Pui [1997] HKLRD 549。

However, the abolition of the requirement that the court had to warn itself against the evidence of an accomplice, as well as the fact that the court can, as always, convict a defendant on the uncorroborated evidence of an accomplice, does not mean that the court is not bound to deal with the evidence of an accomplice seriously. In R v Makanjuola [1995] 1 WLR 1348, the English Court of Appeal pointed out (at 1351D) that a judge may give proper directions to the jury on the credibility of an accomplice in light of the facts of a particular case. Where there are extremities in the case, e.g. the evidence shows that the accomplice has lied in his testimony, or has made false allegations in the past, or has a hatred of the defendant, it is necessary for the judge to give the jury a clear warning that a safe and proper approach is to convict the defendant on the evidence of the accomplice where, and only where, there is other evidence in the case that supports the accomplice’s evidence.
雖然法庭需就從犯的証供作出自我警告的規定已被撤銷及一如既往可以在沒有佐証的情況下依賴從犯的証據來將一名被告人定罪，但這並不表示法庭不需要嚴謹地處理從犯的証供。英國上訴法庭在R v Makanjuola [1995] 1 WLR 1348 (1351D) 指出法官是可因應案件的個別情況就從犯証人的可信性對陪審團作出適當的指引。案件在出現某些極端的情況時，如証供顯示從犯在法庭作証時說謊、從犯之前曾作過虛假的指控、對被告人懷有仇恨等，法官就有需要向陪審團發出一個強烈的警告：一個穩妥的做法就是案件必須存有其他可支持從犯証供的証據才可根據他的証供將被告人定罪。

Judge Yim’s views
嚴法官的立場

The first two grounds of appeal put forward by the Applicant are directed at the way in which Judge Yim dealt with Fung’s evidence. Mr. Lawrence Lok, SC, leading Mr. Edwin Choy, Counsel for the Applicant, submits that Judge Yim had not properly dealt with Fung’s evidence.
申請人就本案提出的首兩項上訴理由都是針對嚴法官在處理馮的証供時的做法。代表申請人的駱應淦資深大律師及蔡維邦大律師指嚴法官沒有適當地處理馮的証供。

It is obvious that Judge Yim clearly appreciated that Fung, as an accomplice, might have incriminated the Applicant by reason of self-interest. The following extracts from her judgment show that she repeatedly warned herself that she must cautiously approach Fung’s evidence:
在本案嚴法官明顯地清楚了解馮作為一名從犯有可能為了個人利益而作供指証申請人。從以下的判決節錄中可見她多次警惕自己必須小心處理馮的証供：

It is to be noted that the prosecution is relying mainly on the evidence of the alleged accomplice Fung Bing Yan. Although Fung has pleaded guilty and served his custodial sentence, the present case involves other persons connected with Fung. When he first provided his witness statement, he was not yet sentenced. Furthermore, he joined the witness protection programme and was receiving government subsidies under ICAC’s arrangement. I remind myself to be cautious when dealing with his evidence.
注意控方主要依賴其聲稱的串謀共犯馮炳仁的證供，雖然馮認罪並服刑完滿，但本案涉及其他與馮有關的人，最初他提供證人供詞時並未判刑，此外他亦參加了證人保護計劃，正在接受廉署安排下的政府資訊，提醒自己需要謹慎處理他的證供。

Fung gave evidence that on 3 December 2002 he pleaded guilty before the District Court to five charges, three of which involved the defendant, two being ‘conspiracy to offer an advantage to an agent’, and one being ‘conspiracy to defraud’ (see Exhibit P231). He testified at the trial of a Lands Department Inspector Lee Yui Yuen (李銳元) in December 2003. He was sentenced to 45 months’ imprisonment on 14 January 2004. He has now served the sentence and been released from prison. Besides, on 9 December 1993 he was convicted upon his own plea of obtain a driving licence by using false information and was fined $3,000. In view of the fact that the witness had over a long period of time been acting fraudulently for his own gain, I remind myself that I must assess his evidence with caution.
馮作證稱他在 2002 年 12 月 3 日在區域法院承認五項控罪，其中三項與被告有關，兩項為串謀向代理人提供利益罪，一項為串謀詐騙罪（參看證物 P231）。他在 2003 年 12 月在地政總署地政督察李銳元的審訊作證，在 2004 年 1 月 14 日被判 45 個月監禁, 現已刑滿出獄。此外，他在 1993 年 12 月 9日承認以假資料取車牌被定罪判罰 $3,000注意到證人曾長時間為個人利益而作欺詐行為，提醒自己要謹慎考慮他的證供。

Under cross-examination, Fung agreed that he had received ICAC’s subsidies over the past year. Upon re-examination, [he] added that, since December 2002 when he joined the programme, he has received a total of more than $220,000 as government subsidies and rental subsidies, including monthly living expenses of $2,860 for him and his wife since his release from prison (i.e. approximately $57,000) and medical expenses of approximately $16,000. The defence submits that the witness had reasons for fabricating or exaggerating his evidence. It is to be noted that the subsidies provided by the ICAC to the witness, although of a limited amount, serve to provide him and his wife with some protection over their living. In light of this, I remind myself that I must assess his evidence with caution.’
盤問期間馮同意他近一年一直接受廉署資助。覆問時補充自 2002 年 12 月參加計劃至今收取了政府資助連租金共 22 萬多元，當中包括自他出獄後每月提供給他和太太的 $2,860 生活費（即約 $57,000），和約 $16,000醫療費。辯方案情指證人有作偽證或誇大證供的理由。注意到廉署向證人提供的資助雖然有限，但亦為證人兩夫婦提供了生活保障，提醒自己要謹慎考慮他的證供。’

First ground of appeal
第一項上訴理由

The Applicant’s first ground of appeal is that Judge Yim had not properly considered the factors that undermined Fung’s integrity. The first factor relied on by the Applicant was whether Fung had led the investigators at Vigers to the sites in question for inspections.
申請人在第一項上訴理由中指嚴法官沒有適當地考慮針對馮誠信的不利因素。申請人依賴的第一點因素是涉及馮是否曾帶領過威格斯的調查員到有問題的土地視察。

Fung denied having led the staff members of Vigers to the sites in question for inspections. He said he had accompanied those staff members to check and see the village houses but denied having led them to inspect the properties in question. Judge Yim accepted Fung’s evidence. The Applicant submits that on the evidence Judge Yim had overlooked the possibility that Fung might have fabricated the evidence in this regard, and that she had also overlooked the adverse effect of such evidence on Fung’s integrity. A staff member of Vigers (PW5 Ho Kai Kwong (何繼光)) confirmed that the “Flat Viewing Agreement” (i.e. the “Written Instructions”) in relation to Property 6 contained the words “persons to be contacted for inspection, Mr. Fung”.
馮否認曾帶領威格斯的工作人員到有問題的土地視察。他說他曾陪同威格斯的工作人員去察看村屋，但不承認曾帶領他們去視察有問題的物業。嚴法官接納馮的証供。申請人指証據顯示嚴法官是忽略了馮就這方面有可能作出虛假的証供，她更忽略了這些証供對馮的誠信的負面影響。威格斯的一名工作人員（控方第五証人何繼光）確認涉及物業 6 的「睇樓紙」即「書面指示」上記載了以下的文字：‘persons to be contacted for inspection, Mr. Fung.’（即「視察土地的聯絡人：馮先生」）。

Upon review of the valuation reports, staff members of Vigers found out that one Mr. Fung had led the valuers to inspect the properties;
威格斯員工在覆核估價報告時，發現有一名馮先生曾帶領估價員去視察物業；

Most of Vigers’ Written Instructions indicated that one Mr. Fung was responsible for leading the valuers to inspect the properties in question.
在大部分威格斯的書面指示中都顯示有一位馮先生負責帶領估價員去審查有關的物業。

In our view, while the contents of the Written Instructions could of course be regarded as relevant evidence, Judge Yim had also taken into account the oral evidence of the staff members of Vigers that they were not sure whether they were led by Fung to inspect the properties in question. In our view, it was for the trial judge to assess how much weight was to be attached to the evidence. Therefore, even if the Written Instructions mentioned that it was Fung who led the staff members of Vigers to inspect the properties in question, this does not mean that Judge Yim erred in accepting Fung’s evidence in this regard. Furthermore, even on Ho Kai Kwong’s evidence, he could not be sure that the Mr. Fung referred to in the Written Instructions was this Mr. Fung whom we are dealing with. As pointed out by Mr. Alex Lee for the Respondent, given that Fung had admitted that no building was erected on the properties in question, that the Lands Department approval documents submitted by him contained false information and that he had defrauded AIG Finance, there was simply no need for him to fabricate evidence in this regard.
本庭認為書面指示的內容當然可被視為有關連的証據，但嚴法官同時亦有考慮過威格斯工作人員的口頭証供，稱他們不肯定是否由馮帶領他們去審查涉案的物業。本庭認為評核証供應該給予多少份量的責任在於原審法官，故此就算書面指示提及過是馮帶領威格斯工作人員去審查涉案物業也不代表嚴法官接納馮這方面的証供是錯誤的。另外，就算根據何繼光的証供，他亦不能肯定書面指示中記載的馮先生是否就是馮本人。正如代表答辯人的高級助理刑事檢控專員李運騰說，既然馮已經承認了在有關的物業上是沒有建築物的、他所提交的地政署批文的資料是虛假的及他欺騙了美國國際，他根本無須就這方面作假証供。

Furthermore, the Applicant submits that although Fung denied having attempted to bribe the staff members of Vigers, it would appear from the following that Judge Yim might have overlooked the fabricated evidence given by Fung in this regard:
另外，申請人指雖然馮否認曾經嘗試賄賂威格斯的工作人員，但從以下幾點來看，嚴法官有可能忽略了馮就這方面作出虛假証供：

Fung admitted that he had given red packets containing cash of HK$2,000 to $3,000 to the staff members of Vigers during the Chinese New Year;
馮承認他曾經在農曆新年期間給威格斯員工內有 HK$2,000 至HK$3,000的紅封包；

PW5 confirmed that, in the course of following up the sites in question, he received reports that Fung had attempted to give other colleagues red packets containing cash of approximately HK$10,000;
第五証人確認在跟進有關問題土地期間收到報告稱馮曾經嘗試給其他同事內有約 HK$10,000 的紅封包；

A staff member of Vigers named Chong Chi Yan (莊志仁) testified that during the Chinese New Year in 1996, he visited Fung’s company. During the visit, Fung took out a wad of $1,000 banknotes and put them into a red packet. He then handed the red packet to Chong and said that it was lucky money for him and another staff member of Vigers. Chong estimated the total value of the wad of banknotes at HK$10,000. He immediately refused to take the red packet and, upon returning to his company, reported the “lucky money incident” for record purposes.
一名威格斯員工莊志仁証供稱，在 1996 年農曆新年他曾到過馮的公司。馮當時拿出一疊千元紙幣放進一個紅封包，然後將該紅封包交給他及說這是給他和一名威格斯員工的利是。莊估計這疊紙幣約有共約HK$10,000。他即時拒絕接受該紅封包及回到公司後將「利是事件」公開以備案。

In our judgment, Judge Yim dealt with the relevant issues sufficiently. She stated in paragraph 38 of her judgment that:
本庭認為嚴法官其實已經充分處理了有關的議題。她在判決書第 38 段說：

‘Leung Kim Wah (梁劍華) said that he reported the ‘lucky money incident’ to Ho Kai Kwong a few days after he learnt about it (i.e. in the beginning of 1996). However, on Ho Kai Kwong’s evidence, it was only when he was investigating some problems that he had found with the valuation of Fung Bing Yan’s property that he came to know that Fung Bing Yan had given lucky money to the subordinates. This is consistent with Chong Chi Yan’s testimony that in 2001, when Vigers inquired of him about the valuation of Fung Bing Yan’s property, he took the initiative to report the ‘lucky money incident’ to Ho Kai Kwong. After consideration, I have reservations about Leung Kim Wah’s testimony that he reported the incident to Ho Kai Kwong within days after he knew of it. After consideration, I accept the evidence of Ho Kai Kwong. In my view, the fact that Chong Chi Yan had been working for the company for only 9 months or so reflects that the staff members of Vigers were generally aware of Fung Bing Yan’s habit of giving lucky money during the New Year. They did not report the matter to their superior, thinking that it was not necessary to do so. After consideration, I accept Fung Bing Yan’s evidence that had not given tea money to the staff members of Vigers in order to have them prepare false valuation reports.’
‘梁劍華說他知悉“利是事件”後數天向何繼光報告（即1996 年初），但根據何繼光的證供他是在發現馮炳仁物業估價出問題後調查期間，才得知馮炳仁曾給利是下屬，此與莊志仁的證供指在 2001 年威格斯向他查詢馮炳仁物業估價時，他再主動向何繼光報告“利是事件”是一致的。考慮後對於梁劍華說知悉事件幾天已跟何繼光報告有保留。考慮後接納何繼光的證供，注意莊志仁當時只入職大半年，認為此反影威格斯員工普遍知道馮炳仁新年期間有派利是習慣，不認為須要呈報，故知道後亦無人向上報告。考慮後接納馮炳仁證供指他沒有給茶錢威格斯人員做假估價報告。’

Another issue relates to the procedures by which Fung handed to his employer, i.e. the solicitors’ firm, the Lands Department approval documents containing the false information for the purpose of preparing “certified copies”. The Applicant contends that Fung knew that he had been working in that firm for years and that his colleagues placed great trust on him, and so he took advantage of the circumstances to defraud the firm and carry through his plan.
另外一項議題是關於馮將他獲得的虛假資料地政署批文交給他受僱的律師行作「確認副本」手續。申請人說由於馮知道他在該律師行工作多年，他的同事對他有很大的信任，所以他利用這些有利條件來欺騙律師行及使他的計劃得呈。

In fact, Fung admitted that he had supplied the originals of the approval documents containing the false information to the solicitors’ firm for the purpose of preparing certified copies. His intention was to prepare false instruments. Judge Yim dealt with this issue in paragraph 31 of her judgment. We do not think that she had overlooked this issue.
其實馮已承認他將虛假資料批文的正本交給律師行作確認副本手續，意圖偽造虛假文書。嚴法官在判決書第 31 段已處理了這個議題。本庭不認為嚴法官忽略了這個議題。

Another argument advanced by the Applicant relates to the size of the mortgage loans granted by the bank in respect of Property 8. Fung said that AIG Finance granted a 90% mortgage loan for Property 8, and not the usual 70% loan. Therefore, in respect of the three units of the Property, the red packets given by Fung to the Applicant as tea money each contained HK$20,000 and not just a few thousand or ten thousand dollars. However, according to the Admitted Facts, all three buyers of Property 8 said that the mortgage loans granted to them by AIG Finance were equal to 70%, and not 90%, of the purchase price of the Property. This shows that what Fung said was not the truth and that Judge Yim overlooked the evidence in this regard when determining the case.
申請人提出的另一個論點是關於銀行批出物業 8的按揭貸款的比率。馮說美國國際就物業8所批出的按揭貸款是九成而不是慣常的七成，故此馮就該物業的三個單位所給予申請人的茶錢是每個內藏HK$20,000 的紅封包而不是數千或一萬元左右。但根據同意案情的証供，三名物業 8 的買家均說美國國際批核給他們的按揭貸款比率是樓價的七成而非九成，這顯示馮說的並不是事實，而嚴法官在作出裁決時的確忽略了這方面的証供。

We think that there were indeed discrepancies in the evidence concerning the sizes of the mortgage loans granted by the bank. Judge Yim stated in paragraph 73 of her judgment that she appreciated the discrepancies in this aspect. She said:
本庭認為有關銀行批出的按揭貸款比率的証供的確存有分歧，嚴法官在判決書第 73 段內說她理解有關方面的分歧，她說：

‘The witness said he had to give commission to the defendant because AIG Finance could provide a 90% mortgage loan, and the percentage granted at the end of the day was not something  he could control. The evidence shows that the witness had cash-flow problems in 1997 and to him it was very important to ensure that the buyer could obtain the loan smoothly because otherwise the transaction would fall through and he would then risk losing his cash income. It is understandable that the witness agreed to and did offer tea money to the defendant, who could ensure the approval of the loans.’
‘證人說他要給被告佣金因為美國國際可以提供九成按揭，認為最終以多少成數批出非他能控制，證供顯示證人在 1997 年現金周轉有困難，確保買家順利貸款對他很重要，否則要冒交易告吹，失去現金收入的風險，證人因被告能確保批出貸款，跟雙方協議而向被告提供茶錢可以理解。’

In our view, there were sufficient reasons to support the Judge’s finding that Fung was a veracious witness.
本庭認為本案存有足夠的理據去支持法官裁定馮是一名誠實的証人。

Second ground of appeal
第二項上訴理由

Evidence in support of the accomplice’s allegations
支持從犯指控的証供

The thrust of the Applicant’s second ground of appeal is that Judge Yim had not sought independent evidence to corroborate Fung’s evidence before she accepted Fung’s account. The Applicant submits that although the prosecution alleged that he had received advantages up to tens of millions of dollars from Fung over the years, no banking transaction documents had ever been produced to prove the alleged unusual transactions in the Applicant’s bank account. The Applicant also contends that although Fung said he had given him a cash cheque, the prosecution had never tendered any bank record in relation to the cheque. The Applicant further submits that although Fung claimed that whenever a mortgage loan in respect of the site in question was successfully granted, the Applicant would ask Fung to pay him 10% of the mortgage loan as a reward, the prosecution had never produced any banking transaction record between the relevant bank accounts.
第二項上訴理由的重點是申請人認為嚴法官在接納馮的証供之前沒有先尋求其他獨立的証據去支持馮的說法。申請人說雖然控方指他多年來收受馮數以千萬元的利益，但控方從沒有提供任何銀行戶口往來的文件以証明申請人的銀行戶口內有不尋常的金錢往來記錄。申請人又說馮說過他曾經給予他一張現金支票，但控方從沒有提供過有關該支票的銀行記錄。另外，申請人說馮聲稱在每一項有問題土地的按揭貸款成功獲批後，申請人都會向馮收取按揭貸款的一成作為報酬，但控方從沒有提供過有關帳目的銀行戶口往來記錄的文件。

In the present case, it is true that the prosecution had not adduced evidence in relation to the bank accounts. This, however, would not debar Judge Yim from accepting the evidence that Fung had given bribes to the Applicant and that Fung had supplied false documents to the Applicant for the purpose of obtaining the loans. The two parties had been conspiring for as long as 10 years or so, and it was not impossible for the Applicant to have dealt with the bribes in cash without leaving any trace of having done so. Furthermore, as stated in paragraphs 40 and 41 hereinbelow, Judge Yim was entitled to rely on the facts of the case as a whole to hold that the Applicant had knowledge of the false information and, accordingly, that the Applicant did take part in the scheme with a view to obtaining an unlawful advantage. This being the case, Judge Yim was correct in finding that Fung had indeed bribed the Applicant. In other words, there was sufficient evidence in the case to support Fung’s allegations against the Applicant.
在本案，控方的確沒有提供過有關銀行帳目的証據，但這不表示嚴法官不可以接納馮支付賄款給申請人及馮提供虛假文件給申請人來獲取貸款的証供。雙方串謀的期間長達約十年，申請人不留痕迹地處理現金賄款並不是不可能發生的。另外，正如下文第40及41段所說嚴法官是可以根據整體案情來判斷申請人是知道有關的虛假資料，繼而裁定申請人是有份參與其事，他的目的是為了獲取不正當的利益。在這情況下，嚴法官裁定馮的確曾經支付賄款給申請人是正確的裁決。換句話說，本案是存有充分的証據可支持馮對申請人的指控。

Whether the Applicant knew that the documents were false
申請人是否知道虛假文件

The defence of the Applicant was that he did not know that the information in the documents in question was false. The Applicant said that according to the testimony of Leung Tak Cheung (PW1), when AIG Finance was processing Fung’s application for a mortgage loan, they did not notice anything wrong with the information in the documents. The bank had in place an internal mechanism for approving loans and reviewing documents, and the bank never noticed any irregularity in the application and approval processes. This, the Applicant submits, proved that the Applicant, just like AIG Finance, did not notice any problem with the documents submitted by Fung in support of the loan applications.
申請人的答辯理由是他不知道涉案的文件資料是虛假的。申請人指根據控方第一証人梁得彰的証供，美國國際在審批馮的按揭貸款申請時並沒有察覺文件的資料有不妥之處。雖然銀行內部有批核及複查文件的基制，但銀行從沒察覺申請及批核過程中出現不規則的現象，這可引証了申請人都是與美國國際一樣察覺不到馮的貸款申請文件存有問題。

In our judgment, it did not follow from the bank’s failure to notice any problem with the information in the documents that the Applicant was also unable to notice anything wrong with such information. This was because, in processing the applications for mortgage loans, the bank was relying on and acting upon the recommendation reports prepared by the Applicant and the documents verified by him. On the evidence, the Applicant was responsible for first-stage assessment of the applications. In fact, Judge Yim also considered whether under the mechanism the bank would have noticed anything wrong with the information in the documents. She said:
本庭認為銀行未能察覺文件的資料有不妥之處並不能支持申請人也可察覺不到文件的資料有不妥的說法，因為銀行是依賴及根據申請人的推薦報告及申請人核實文件來審批按揭貸款申請的。根據証供，申請人是負責第一階段的評核工作。其實，嚴法官已經考慮過銀行在有關機制下會否察覺不到文件的資料有不妥之處一事。嚴法官說：

‘Leung Tak Cheung said that, back in the time of SPC Credit, if an application was at variance with the company’s requirements for granting loans, e.g. the interest rate being applied for was lower than that set by the company, or the loan amount being applied for exceeded a specified upper limit (see Exhibit P48), then the applicant had to apply for a waiver. The branch manager was the most senior person in charge of a branch, and he reported to the district manager. For each application, there would be an officer recommending it, one endorsing it and one approving it. Each approving officer had his own authority. As there was this system of division of labour, the papers and information submitted by a client should already have been checked by the time of submission of a recommendation. The approving officer would rely on the contents of the loan proposal to make a decision, signing and approving the loan only when he considered it appropriate to do so. The company had a mechanism for randomly reviewing the applications after they had been approved. The witness thought that those who were familiar with the operation would know the concerns of the approving officers. The witness said that at the material time mortgage loans relating to village houses took up approximately 5% of the total mortgage loans. He added that in view of the changes in the senior staff of the company, those who were familiar with the operation would know the probability of an application being selected for review and of the areas on which the review would focus.’
‘梁得彰說在太平洋時代，若個案與公司放款受信的要求有抵觸須要申請豁免，例如申請較公司要求低的利率，或要求超過某種放款額的最高限制（參看證物 P48）。分行經理是分行最高負責人，再上是區域經理。每宗個案都會有推薦人，贊同人，和批核人，每個批核人員有不同權限。因為有分工制度，呈交建議書時應已審閱客人提交的文件和資料，批核人員作出批核決定時基於貸款建議書的內容，認為可以批才簽名批核的。公司有事後抽查個案的制度。認為熟悉運作的人會知道批核人員專注什麼事項。證人說在有關時間村屋的抵押貸款佔總按揭大約 5%，另注意有關時間公司高層曾變動，認為熟悉運作的人會知道個案被選中作事後覆核的機會率有多少，和覆核時會專注那些事項。’

We do not think that the Applicant’s argument is cogent enough to render Judge Yim’s verdict less safe or less satisfactory.
本庭不認為申請人所提出的這一點論點可以削弱嚴法官判決的穩妥性。

Evidence in support of the convictions
支持定罪的証供

The most important issue in the present case is whether there was sufficient evidence to prove that the Applicant had taken part in the conspiracy to defraud. We think that Judge Yim had thoroughly considered the relevant evidence and concluded that such evidence was sufficient to support Fung’s allegation that the Applicant had taken part in the conspiracy. The matters considered by the Judge included:
本案最重要的議題是案件是否存有足夠的証據去証明申請人曾參與串謀詐騙一事。本庭認為馮法官已經充分考慮到有關的証據及認為有關的証據是足以支持馮對申請人參與詐騙的指控。嚴法官所考慮的包括以下各點：

In 1990 and 1992, the Applicant was well aware that Fung was residing in Pik Shui House but reported Property 4 as his residence;
1990 年及 1992 年，申請人明知馮的居所是碧水樓，但卻呈報物業 4 為自住物業；

In October 1990, the value of Property 4 was estimated by Vigers at $2,900,000, but in February of that year Property 4 was sold at a price of merely $230,000. The Applicant never expressed any suspicion about it;
1990 年 10 月，威格斯就估計物業 4作出的估價是值 290 萬，但該物業在同年 2 月的成交價祇有 23 萬。申請人對此從沒有表示懷疑；

In January 1995, when the Applicant was processing the mortgage loan applications in relation to Properties 5 and 6, he accepted the balance sheet of Ngan Tak Li even though it had not been verified by an auditor. Furthermore, the Applicant never filled in the date of the “Deed of Equitable Mortgage”;
1995 年 1 月，申請人在處理物業 5 及 6 的按揭貸款申請時，竟接收銀得利未經核數師確認的收支報表。此外，申請人一直沒有在「衡平法按揭契約」上填寫日期；

In February 1996, the Applicant allowed a loan to be released to Fung prior to execution of the mortgage loan documents in respect of Properties 5 and 6 and when the interest of the bank was not adequately safeguarded;
1996 年 2 月，申請人容許在物業 5 及 6 的按揭貸款文件仍未簽妥前及在銀行保障不足的情況下批出貸款予馮；

The Applicant never questioned why Fung left Properties 5 and 6 vacant all along and repeatedly mortgaged them instead of selling them;
申請人從沒質疑馮何以一直將物業 5 及 6丟空，不將它們出售套現，反而一再將它們抵押；

In early 1998, Fung applied to the bank for a loan under the name of To Chi Hung. The transaction records of To’s bank account were inconsistent with his income proof, but the Applicant never raised any query.
1998 年初，馮以陶志雄的名義向銀行申請借貸，陶的銀行往來記錄與其薪金證明不相符，但申請人沒有提出過任何質詢。

Third ground of appeal
第三上訴理由

The Applicant submits that the evidence in the case was insufficient to support the charge of conspiracy to defraud against the Applicant. We have dealt with the relevant evidence hereinabove and do not accept this ground of appeal.
申請人指本案沒有充分的証據足以支持控方對申請人串謀詐騙的指控。本庭已在上文處理了有關的証據。本庭不接納這項上訴理由。

Conclusion
總結

We conclude that Judge Yim’s decision was correct and, accordingly, dismiss the application for leave to appeal against the Applicant’s convictions.
本庭認為嚴法官的裁決是正確的，故此本庭拒絕針對定罪的上訴許可申請。

Mr Alex Lee, Senior Assistant Director of Public Prosecutions, for the Respondent.
答辯人：由律政司高級助理刑事檢控專員李運騰代表。

Mr Lawrence Lok, SC and Mr Edwin Choy, instructed by Reimer and Partners, for the Applicant.
申請人：由翁靜晶律師事務所轉聘駱應淦資深大律師及蔡維邦大律師代表。