Hon Kwan JA (giving judgment of the Court):
上訴法庭法官關淑馨頒發上訴法庭判案書：

Background
背景

The three Applicants were the three Defendants in District Court Criminal Case No. 1159 of 2008 (hereinafter known as “D1, D2 and D3” respectively).  They were jointly charged with one count of “Conspiracy to defraud”, contrary to Common Law and punishable under s.159C(6) of the Crimes Ordinance (Cap. 200).  The particulars of offence are as follows:
三名申請人是區域法院刑事案件2008年第1159號的三名被告人（以下分別簡稱 “D1、D2及D3”）。他們共同被控一項「串謀詐騙」罪，違反普通法並可根據《刑事罪行條例》（第200章）第159C(6)條懲處。控罪詳情如下：

“D1, D2 and D3, between the 1st day of March 1999 and the 31st day of May 2000, in Hong Kong, conspired with each other and with TANG Chun Lam and other persons unknown to defraud FOO Siew-choo Anna Aileen (“PW1” in short) of the sum of   $500,000.00 United States currency by dishonestly and falsely representing to PW1 that:
「D1、D2及D3，於1999年3月1日至2000年5月31日期間在香港，互相串謀與鄧春霖及其他身份不詳的人串謀，詐騙胡秀珠Anna Aileen（簡稱 “PW1”）US$500,000.00，即不誠實及虛假地向PW1表示：

the said $500,000.00 United States currency was to be invested in a high yield scheme to be managed by the top 25 European banks;
US$500,000.00將會投資於一個由最頂尖的25間歐洲銀行管理的高收益計劃；

PW1 would receive $1.5 million United States currency to $2 million United States currency per month for ten months;
PW1會每月收取US$1,500,000至US$2,000,000，為期10個月；

PW1’s “investment of $500,000.00 United States currency” was guaranteed by UBS AG Jersey Branch (“UBS” in short) in that she could withdraw $500,000.00 United States currency from the said UBS after the 3rd day of May 2000 under a Bank Guarantee No. BG9905CI351. ”
PW1的「US$500,000.00投資」獲瑞士銀行澤西島分行（簡稱 “UBS”）作出擔保，即她可於2000年5月3日後，以編號BG9905CI351的銀行擔保書從UBS提取US$500,000.00。」

In late May 2000, PW1 made a report to the police for assistance.  Between 2000 and 2003, the three defendants and other persons were investigated by the police.  But it was not until October 2008 that the three defendants were arrested.  In November of the same year, they were charged with the above offence.  The case was heard by Her Honour Judge Mary Yuen in the District Court on 18 May 2009.  All three defendants applied for a permanent stay of the criminal proceedings on the ground of gross delay on the part of the prosecution in bringing them to trial, thereby causing their failure to call certain witnesses to give evidence.  Having heard the evidence and submissions, Judge Yuen refused the application.  The trial then commenced and lasted for 10 days.  On 9 June, the three defendants were convicted as charged.  On 24 June, D1 and D3 were each sentenced to immediate imprisonment for 12 months, whereas D2 was sentenced to immediate imprisonment for 18 months.
PW1在2000年5月底報警求助，警方在2000至2003年向三名被告人及其他人士調查，但要到2008年10月才逮捕三名被告人，同年11月向他們提出上述控罪，案件在2009年5月18日在區域法院法官源麗華席前聆訊。三名被告人都以控方檢控出現嚴重延誤，導致他們不能傳召某些證人作供為理由，申請永久擱置刑事程序。源法官聽取證據和陳詞後，拒絕了申請。審訊於是展開，維時10天。6月9日，裁定三人罪名成立。6月24日，判處D1及D3即時監禁12個月，D2即時監禁18個月。

The three defendants were aggrieved by the convictions and applied for leave to appeal against convictions in July 2009.  On 6 August 2009, the Department of Justice was granted leave by the Chief Judge of the High Court to apply for review of sentences imposed on the three defendants on 10 August.  The application for review of sentences and the application for leave to appeal against convictions are now dealt with together by this Court.
三人不服定罪，於2009年7月就定罪提出上訴許可的申請。2009年8月6日，律政司獲高等法院首席法官給予許可，在8月10日申請覆核三人的判刑。覆核判刑的申請，和上訴定罪許可的申請，由本庭一併處理。

Prosecution Case
控方案情

At the time of the offence, D1 was an experienced insurance agent, D2 a practicing solicitor in Hong Kong and D3 a self-employed financial consultant.  D1 had been acquainted with PW1 for no less than 10 years.
案發時D1是資深的保險從業員，D2是香港執業律師，D3是自僱的財務顧問。D1與PW1相交不下於10年。

As early as in 1996, PW1 had heard D1 say that he was also engaged in some high return investment programmes for other people, in addition to his insurance work.  In 1998, D1 mentioned to PW1 again about a high return investment programme, the minimum investment sum of which being US$1,000,000 and the investor could receive a return as high as US$1,500,000 to US$2,000,000 per month in the following 10 months.
早於1996年，PW1已聽D1說過他除了做保險外，也有替人做些高回報的投資項目。1998年間，D1再向PW1提起高回報投資，投資金額最低為US$1,000,000，在投資的10個月內投資者每月可獲取高達US$1,500,000至US$2,000,000的回報。

PW1 was due to retire in mid-1999.  In around March or April of the year, she asked D1 to calculate the sum of her provident fund for her to decide whether she should receive provident fund or pension.  Meanwhile, D1 introduced those high return investment programmes to her again.  This time D1 told PW1 that only an investment sum of US$500,000 was required for her to participate in the investment programme, that she could still receive a return as high as US$1,500,000 to US$2,000,000 per month in the following 10 months, and that the capital of the investment programme would be used in backward countries for development.  D1 further stated that a big businessperson surnamed Tang wished to participate in the investment programme by contributing a total sum of US$30,000,000.  D1 said PW1 could participate in the high return investment programme together with the big businessperson surnamed Tang.
1999年，PW1在年中退休。在3、4月間，她要求D1計算她的公積金金額，以決定拿取公積金還是退休金。與此同時，D1再向她介紹這些高回報的投資項目。這次D1說她只需用US$500,000投資金額，即可參與該投資項目，在投資的10個月內她每月仍可獲取一樣高達US$1,500,000至US$2,000,000的回報。投資項目的資金是拿去落後國家做開發。D1更指當時有一名鄧姓大戶想以US$30,000,000總資金參與該投資項目，PW1大可與該鄧姓大戶一同參與該高回報的投資項目。

After persuasion by D1, PW1 became interested in this investment programme.  In recommending the said investment to PW1, D1 said it would be looked after by he himself, along with a solicitor and an investment expert, and UBS would issue to PW1 a guarantee, pursuant to which PW1 could get her investment sum back in full one year later if the investment was unsuccessful.  D1 elaborated that PW1 had to share half of her profit with D1 and the participating solicitor and investment expert.  According to D1’s explanation, irrespective of whether PW1’s investment was successful or not, so far as she was concerned, it would be a sure-fire situation where there would not be any risk of loss.
在D1游說下，PW1對這投資項目產生興趣。D1向她推介說該投資有他、一名律師，和一名投資專家代為操心，PW1並可獲UBS發出的擔保書，若投資不成功，可於一年後根據擔保書取回全數投資金額。D1闡述，PW1需要把她的一半利潤分與D1及參與該投資項目的律師及投資顧問。根據D1的解說，PW1的投資成功與否，對她來說，都只會贏、不會有虧蝕的風險。

PW1 thus felt at ease to participate in the investment recommended by D1, and agreed to contribute US$500,000 for her participation in the investment programme.  Later, through the introduction of D1, PW1 came to know D2 and D3 who were the participating solicitor and investment expert as referred to by D1.  From then onwards, D1, D2 and D3 played their respective roles of a friend, a solicitor and an investment expert together on a number of different occasions.
PW1因此放心參與D1推介的投資，答應拿出US$500,000參與該投資項目。後來，D1介紹了D2及D3給PW1認識，他們就是D1所說的參與律師和投資專家。D1，D2及D3隨後共同多次在不同的場合上合演著朋友、律師、及投資專家的角色。

On 20 April 1999, D1 introduced D2 to PW1, saying D2 was a solicitor of Cheung, Chan and Chung Solicitors and Notaries and would act as a middleman and notary public in this investment programme.  D1 further said that D2 was at the same time representing the big businessperson and PW1, that D2 would “watch over” the investment programme on behalf of both parties in order to ensure the investment would go on smoothly, and that D2 would communicate on behalf of both parties should there be any problem.  In the presence of D2, D1 also pointed out to PW1 that D2 had dealt with similar investment programmes for other people before, and that D2 was very familiar with this kind of investment.  D1 reassured PW1 by telling her not to worry and pointed out again that the capital of US$30,000,000 would be invested in some backward countries for development, and that after PW1 had injected the capital, if the investment was successful, she could receive a return of US$1,500,000 to US$2,000,000 per month and half of her profit would be shared amongst D1, D2 and an investment expert.
1999年4月20日，D1介紹D2給PW1認識，說D2為張、陳、鍾律師樓的律師，在這投資項目中擔任中間人和公證人。D1並說D2同時代表大戶與PW1，D2會代表兩方「看著」那投資項目，確保投資順利，如有問題D2會代兩方溝通。D1在D2面前又向PW1指出，D2過往也會替其他人處理同類的投資項目，D2對此等投資甚為熟識。D1叮囑PW1不用擔心，再次指出US$30,000,000的資金將會投放於開發一些落後國家，她投入資金後，如投資成功，可每月獲取US$1,500,000至US$2,000,000的回報。她的一半利潤將由D1、D2及一名投資專家分享。

D2 did not raise any objection to what had been said by D1.  D2 also said he was well acquainted with the big businessperson who was running a huge business in the mainland, D2 would also “watch over” the progress of the said investment programme, and PW1, having with her the cash guarantee issued by bank, could feel at ease as she could get her principal back if the investment was not successful.
D2對D1的言詞無異議，D2還說他熟識該大戶，該大戶在內地有龐大的生意，D2也會「看著」該項投資的進展，且PW1有銀行現金擔保書在手，如投資不成功她大可取回本金，她可以放心。

On 27 April 1999, as appointed, PW1 went to the solicitors firm where D2 was working, and signed a set of Joint Venture Contract.  During this meeting D1 introduced D3 to her, saying that D3 was an investment expert.  D3 told PW1 that all along he had been engaged in this kind of high return investment.  D1 once again mentioned that the total capital of the programme was US$30,000,000 and the big businessperson was called Tang Chun Lam; PW1 was only required to contribute capital in the sum of US$500,000 whereas D1, D2 and D3 did not have to contribute any capital and the three of them would only assist in handling the investment programme; when the investment was successful, PW1 could get half of the profit as her share, while the remaining half of the profit would be shared amongst D1, D2 and D3.  Then the four of them signed a set of Joint Venture Contract (Prosecution Exhibit P-1).
1999年4月27日，PW1依約往D2工作的律師事務所，簽署合作契約。這次會面D1介紹D3給她認識，說D3是投資專家，D3對PW1說自己一向是做這些高回報投資。D1再提及項目的總資金是US$30,000,000，大戶叫鄧春霖，PW1只須提供US$500,000的資金，而D1、D2及D3不用拿出資金，他們三人只協助處理投資項目的工作。投資成功時，PW1可分得一半利潤，餘下的一半利潤由D1、D2及D3三人分享。隨後四人簽署合作協議書（控方證物P-1項）。

It was confirmed in the body of the contract that: PW1 shall contribute capital in the sum of US$500,000; D1, D2 and D3, as the “facilitator”, through an associated party, could arrange for the issuance of bank instruments (including a bank guarantee for a term of one year) and for the application for joining a high return investment programme to be managed by the top 25 European banks; D1, D2, D3 and PW1 agreed to set up a joint venture company in which PW1, D1 and D3 shall be its directors, PW1 shall hold half of its shares, and the facilitator shall hold the other half;  the facilitator’s associated party and the above mentioned joint venture company would form another joint venture company in which the associated party shall hold five-sixths of its interests while the latter shall hold one-sixth, and profit from investment shall be shared according to such proportion.  Attached to the contract was a copy of bank guarantee in the sum of US$30,000,000 as a specimen for reference, issued by UBS Jersey Branch in February 1999.  The same format and content would be adopted in the US$500,000 guarantee to be issued to PW1.
協議書內文確定PW1提供US$500,000的資金。D1、D2、D3作為撮成者 (facilitator) ，通過有聯繫的一方 (associated party)，有能力安排銀行函件的簽發（包括為期一年的銀行擔保書），和申請加入一個高回報投資項目，由歐洲頂尖的25間銀行管理。D1、D2、D3及PW1同意成立一間合作公司，由PW1、Dl及D3出任董事，PW1佔一半股份，撮成者佔另一半。撮成者的聯繫一方，與前述的合作公司，將組成另一合作公司，聯繫一方佔5/6權益，後者佔1/6，以此比例分享投資的利潤。協議書附有一張US$30,000,000的銀行擔保書副本作為參考樣本，由UBS澤西島分行在1999年2月發出，發給PW1的US$500,000擔保書將會採用相同的格式及內容。

Pursuant to the contract, PW1 set aside HK$100,000 from the US$500,000 investment sum as earnest money, and paid HK$20,000 for the acquisition of two companies, namely Artwin Investment Limited （雅慧投資有限公司）(“Artwin”) and Lansome Investment Limited （利森投資有限公司）(“Lansome”) at the request of D2.  Artwin was the first joint venture company referred to in the contract, in which PW1 held three-fourths of its shares and D2 held one-fourth.  Lansome was the joint venture company between Artwin and Tang Chun Lam, in which D2, Tang Chun Lam and PW1 were its directors, D2 also acted as its secretary, and Tang Chun Lam and Artwin respectively held five-sixths and one-sixth of its shares.
PW1依照協議書，在US$500,000的投資金額內撥出HK$100,000作誠意金，又應D2要求，支付HK$20,000購買兩間公司，分別為Artwin Investment Limited（“Artwin”；雅慧投資有限公司） 與Lansome Investment Limited（“Lansome”；利森投資有限公司）。Artwin是協議書所說的第一間合作公司，PW1佔3/4股份，D2佔1/4股份。Lansome是Artwin和鄧春霖的合作公司，由D2、鄧春霖和PW1出任董事， D2兼任秘書，鄧春霖及Artwin各佔5/6及1/6股份。

On 28 April 1999, PW1 went to D2’s solicitors firm and signed another set of Joint Venture Contract (Prosecution Exhibit P-5) whereby Tang Chun Lam was appointed as the programme agent.  At the time of execution, Tang Chun Lam was not present, and PW1 signed in the capacity of Artwin’s director.  The body of the contract stated that: the investor shall pay capital in the sum of US$500,000; the programme agent would arrange for the issuance of a bank letter with a face value of US$30,000,000; the facilitator (namely, D1, D2 and D3) and the programme agent could arrange for the issuance of bank instruments (including bank guarantee) and for the application for joining a high return investment programme to be managed by the top 25 European banks.
1999年4月28日，PW1到D2的律師事務所簽署另一份合作協議書，委任鄧春霖為項目代理人 (programme agent)（控方證物P-5項）。簽署時鄧春霖不在場，PW1以Artwin的董事身份簽署。內文指投資者須支付US$500,000資金，項目代理人會安排面值US$30,000,000的銀行書函，撮成者（即D1、D2及D3）與項目代理人有能力安排銀行書函（包括銀行擔保書），並能申請加入由歐洲首25間頂尖銀行管理的高回報投資項目。

On the following day, PW1, accompanied by D1, D2 and D3, opened a bank account with Hang Seng Bank for Lansome, signatories whereof being PW1 and Tang Chun Lam.  Tang Chun Lam was not present at that time.
翌日，PW1在D1、D2與D3陪同下，到恆生銀行為Lansome開設銀行賬戶，由PW1及鄧春霖作賬戶簽署人，鄧春霖當時不在場。

On 3 May 1999, as prompted by D1 and D2, PW1 deposited HK$907,240 into Lansome’s account with Hang Seng Bank.  On the same day, she transferred US$370,000 from her Citibank account in New York to Lansome’s account with Hang Seng Bank.
1999年5月3日，在D1及D2的催促下，PW1把HK$907,240存入Lansome的恆生銀行賬戶。同日，她亦從她在紐約Citibank的賬戶，轉數US$370,000入Lansome在恆生銀行的賬戶。

At the request of D1 and D2, PW1 signed some blank withdrawal slips in respect of Lansome’s account.
在D1及D2的要求下，PW1簽署了空白的Lansome賬戶提款單。

D1 had told PW1 that bank guarantee was a matter to be dealt with between banks, and that the guarantee should be sent by post to a bank designated by PW1.  Therefore, on 4 May 1999 PW1 wrote to D2, asking D2 to inform the guarantee-issuing bank on her behalf to send the guarantee to Citibank, the bank designated by her.  On 7 May, PW1 wrote to Citibank, asking them to receive the bank guarantee on her behalf.  Nevertheless, Citibank has never received any bank guarantee wherein PW1 is named as the beneficiary.
D1曾對PW1說銀行擔保書是銀行與銀行之間的交往，擔保書應寄給PW1的指定銀行，因此PW1在1999年5月4日去信D2，要求D2代為通知簽發擔保書的銀行，把擔保書寄到她的指定銀行Citibank。5月7日，PW1去信Citibank，要求代為接收銀行擔保書。但Citibank一直未有收到以PW1作為受益人的銀行擔保書。

Later, D1 told PW1 that D2 had mentioned to him that the bank guarantee had been sent by post to Tang Chun Lam, and that Tang Chun Lam had received a letter from the bank in acknowledgement of receipt of capital in the sum of US$500,000 from PW1.
後來，D1對PW1說D2曾向他提及銀行擔保書已寄給鄧春霖，鄧春霖並收到銀行確認收到PW1 US$500,000資金的信件。

On 8 May 1999, Tang Chun Lam withdrew HK$900,000 in cash from Lansome’s account with Hang Seng Bank and remitted, in the name of Lansome, US$338,000 from the same account to a bank account opened in the name of Auan Li in Singapore.  On 5 June 1999, Tang Chun Lam further withdrew in cash HK$7,600 and HK$240,124 (which was converted from US$31,000) from Lansome’s account with Hang Seng Bank.  By then, the US$500,000 deposited by PW1 had almost been wholly taken away, with a remaining balance of US$275.
鄧春霖於1999年5月8日在Lansome的恆生銀行賬戶取去現金HK$900,000，並以Lansome名義從該賬戶電匯US$338,000到新加坡以Auan Li名義開設的銀行賬戶。1999年6月5日，鄧春霖再於Lansome的恆生銀行賬戶提取現金HK$7,600及以US$31,000折算的HK$240,124。這時候，PW1存入的US$500,000，已差不多全數被提走，只餘下US$275。

Between May and June 1999, on one occasion while D1, his wife, D2, D3 and PW1 were having meal together in a restaurant, D2 passed an envelope of China Sources Co. Ltd. across the dining table to PW1.  The envelope contained a Letter of Guarantee with number BG9905CI351 in the amount of US$500,000 dated 3 May 1999 and issued by UBS to PW1, as well as a Bloomberg Security Display Print-out of the same day (Prosecution Exhibit P-11).  The documents were circulated to every person at the table.  D1 said he had called UBS for checking and found no problem, and that UBS was also one of the 25 biggest European banks.  D2 said Tang Chun Lam was a big businessperson and reassured PW1 by telling her not to worry.  D3 said he had checked via the Internet and that the bank guarantee bore signatures of two colours and thus it should be genuine document.  D1, D2 and D3 told PW1 not to show the bank guarantee to other people or to photocopy it.
1999年5至6月期間，D1、其妻子、D2、D3與PW1在酒家會面進餐。D2在餐桌上交出一個China Sources Co. Ltd. 的信封給PW1，載有註寫為UBS在1999年5月3日，簽發給PW1的US$500,000擔保函，編號BG9905CI351，及Bloomberg同日的Security Display Print-out（控方證物P-11項）。桌上各人傳閱該些文件。D1說他曾致電UBS查過沒有問題，UBS亦是歐洲25間最大銀行之一。D2說鄧春霖是大戶，叮囑PW1不用擔心。D3說在網上查過，又謂該銀行保函上有兩種顏色的簽署，應該是真確文件。D1，D2和D3叮囑PW1，不要讓他人看該銀行擔保書，及影印這文件。

In June 1999, D1 told PW1 that his wife had a safety box and it could be used to safe-keep the bank guarantee on PW1’s behalf.  PW1 then handed the bank guarantee to D1 for safe-keeping.  In June 1999, PW1 returned to Canada for settlement.
1999年6月期間，D1向PW1說他妻子有保險箱，可代PW1保管該銀行保函。PW1於是將銀行擔保書交予D1保管。她在1999年6月回到加拿大定居。

Since PW1 deposited US$500,000 into Lansome’s bank account, she has never received what all the Defendants had claimed to her, namely, a monthly profit in the sum of US$1,500,000 to US$2,000,000 for a period of 10 months.
PW1自從把US$500,000存入Lansome的銀行賬戶後，沒有收到各被告人聲稱為期10個月的每月US$1,500,000至US$2,000,000的利潤。

In November 1999, D1 called PW1, telling her that there were changes to the investment programme.  He said he had already signed a new set of Joint Venture Contract (Prosecution Exhibit P-21) on behalf of Artwin, and that PW1 could continue to participate in the said programme with the original conditions but D2 asked PW1 to further contribute a sum of HK$200,000.  PW1 told D1 that she did not have any extra money.  Afterwards, D2 told PW1 that the investment programme could still continue to proceed without PW1 making further contribution.  PW1 then agreed.
1999年11月，D1致電PW1，聲稱投資有更改，他說已代表Artwin簽署新的合作協議書（控方證物P-21項），PW1可以用原本的條件繼續參與該項目，但D2要求PW1多付HK$200,000。PW1告訴D1，她已經沒有額外資金。後來D2向PW1說，不需要再加錢，投資項目都可以繼續進行，PW1便同意了。

On 30 March 2000, PW1 returned to Hong Kong for holiday and had a gathering with D1 and D2, during which D2 told PW1 that the chance of success in the investment was high.  With her mind at ease, PW1 returned to Canada in April 2000.  In early May 2000, PW1’s bank guarantee was due to mature.  She asked D1 to get her investment sum of US$500,000 back on her behalf.
2000年3月30日，PW1在香港度假，與D1及D2聚會，言談間D2向她說投資成功機會高。PW1安心在2000年4月返回加拿大。2000年5月初，PW1的銀行擔保書到期，PW1要求D1代她取回US$500,000投資。

On 17 and 18 May of the same year, PW1 learnt from D1 that they had lost contact with Tang Chun Lam, which resulted in their enquiries with the bank as to the authenticity of the bank guarantee.  On 25 May 2000, UBS Jersey Branch replied to PW1’s solicitor that the bank had never issued such guarantee in the sum of US$500,000 and that the document was a forgery.  On 28 May, PW1 returned to Hong Kong.  After having consulted her lawyers, she made a report to the police on 31 May.
同年5月17至18日，PW1從D1口中獲知他們與鄧春霖失去聯絡，因而引發他們向銀行求證擔保書的事情。2000年5月25日澤西島的UBS回覆PW1的律師，告知銀行從未有發出該US$500,000擔保書，該文件是偽造的。PW1在5月28日回港，與自己的律師商討後，她在5月31日報警。

In October 2008, the police arrested D1, D2 and D3.  On 30 October 2008, under caution, D2 participated in a video-recorded interview conducted by the police.
警方在2008年10月拘捕D1、D2及D3，D2在2008年10月30日在警誡下，向警方提供了錄影會談。

The prosecution asserted that when D1, D2 and D3 made the three false representations in respect of the investment programme which allegedly would involve no risk of loss but would generate lucrative profits as specified in the particulars of offence, they did not really believe those representations to be true, and that those false representations were dishonest acts of persuasion which in the end led to tremendous financial loss suffered by PW1.  In paragraph 47 of her reasons for verdict, the trial judge has pointed out the crux of the case:
控方指稱，當D1、D2及D3對PW1作出控罪中三項有關那無虧蝕風險、但利潤極為豐厚的投資項目的虛假陳述時，他們根本不相信那些陳述是真的，而那些虛假陳述，是屬於不誠實的游說行為，最終導致PW1蒙受重大的經濟損失。原審法官在裁決理由書第47段，點出案件的關鍵：

“The crux of the case lies on whether the three defendants did anticipate any risk of financial loss to be suffered by PW1?  Was there any consensus amongst the three of them to persuade PW1 to participate in the investment programme, and were they fully aware that their acts of persuasion done to PW1 were dishonest?”
「全案癥結在乎3名被告是否有預見[PW1] 經濟受損的風險? 他們3人之間有否達到共識要游說[PW1] 參與該投資項目，而他們是否確知他們對[PW1] 的游說行為是不誠實的?」

Whether a defendant is proved to be dishonest must depend on two criteria.  Firstly, was his act dishonest according to the ordinary standard of reasonable and honest people?  This is an objective standard.  Secondly, was the defendant aware that his act was dishonest according to the said standard?  This is a subjective standard.  Both criteria must be met before the element of dishonesty can be proved.
證實被告人是否不誠實，須取決兩個條件。第一，按明理而誠實人士的一般標準，他的行為是否不誠實，這是客觀標準。第二，被告人是否明知根據該標準，其所作所為屬不誠實，這是主觀標準。這兩個條件都要符合，不誠實的元素才得以證實。

Defence Case
辯方案情

The three Defendants did not dispute that PW1’s guarantee in the sum of US$500,000 and the Bloomberg Security Display Print-out were false, nor did they dispute that they had signed the contracts mentioned above.  They did not deny that the three representations as specified in the particulars of offence did not materialize.  The particulars of offence, however, also stated that the conspirators, in addition to the three defendants, also included Tang Chun Lam and “other persons unknown”.  The question was whether the defendant knowingly joined the conspiracy to dishonestly defraud PW1.  The key areas of defence rested on the respective knowledge, belief and mentality of each defendant in relation to the investment programme, and on whether they believed or might have believed the three representations as specified in the particulars of offence to be true.
三名被告人並無爭議PW1的US$500,000擔保書，和Bloomberg的Security Display Print-out都是虛假的，亦無爭議他們簽署了之前所述的協議書。他們不否認，控罪中的三項陳述，都沒有實現。但控罪詳情也有表明，串謀人士除了三名被告人，還有鄧春霖和「其他身份不詳的人」，問題是被告人是否知情地加入串謀，不誠實地向PW1詐騙。各被告人對投資項目的認知、信念和心態，他們是否相信或可能相信控罪中三項陳述是真確的，便是抗辯的重點。

PW1 was the only witness who gave evidence at the trial.  D2’s cautioned statement, which was a mixed statement, was produced in court as evidence without objection.  All three defendants elected not to give evidence or call any witness.
PW1是審訊中唯一的作供證人。D2的警誡口供在沒有反對下，以混合式證據呈堂。三名被告人都選擇不作供，他們也沒有傳召證人。

Verdict of the Trial Judge
原審的裁決

As none of the defendants gave evidence in court, the trial judge had to draw inferences on the mentality and intent of the three defendants at the material time, based on all the relevant evidence including circumstantial evidence, in deciding whether they were “innocent pawns being made use of by swindlers, or members of the fraudulent plot”.  Having analyzed all the details of the circumstantial evidence, the judge took the view that it was against common sense with regard to ordinary investment that the investment programme could generate a high return while involving no risk of loss at all.  As regards the suggestion that in the absence of sufficient collateral, the bank would undertake an extra risk which was equivalent to 9 times the value of the collateral, the judge was of the view that even an adult who had some knowledge on investment would not find such suggestion possible.  The only reasonable inference that could be drawn from the fact that the three defendants did not seek direct authentication of the bank guarantee from UBS through proper channels prior to May 2000 was that they knew fully well that the document was false.  In her reasons for verdict, Judge Yuen has separately analyzed and dealt with the mentality and intent of each defendant, and finally came to conclusion that on the standard of proof of beyond reasonable doubt, it was impossible for the three defendants to believe that the three representations made by them to PW1 might materialize or might be true.  The judge found that the representations made by them to PW1 were dishonest acts of persuasion and that they were guilty of conspiracy to defraud.
由於各被告人沒有在庭上自辯，原審法官便要綜合案中所有有關的證據，包括環境證供，去推斷三名被告人當時的心態和意圖，以裁斷他們是「被騙徒利用的無知棋子，或是騙徒圈套中的成員」。分析過種種環境證供的細節，法官認為該投資回報高，又全無虧蝕風險的投資項目，有違一般投資的常理。至於銀行在沒有足夠抵押下，承擔額外九倍抵押品的風險，法官認為略有投資認識的成年人，也不會接受這指稱有可能發生。而三名被告人在2000年5月之前，不循正途向UBS直接求證銀行擔保書，唯一合理推斷是他們都清楚明白文件是虛假的。在裁決理由書，源法官對各被告人的心態和意圖，作出個別分析處理。最後得出的結論是，以無合理疑點的基準，三名被告人是沒有可能相信，他們對PW1的三項陳述，是有可能發生或有可能是真確的。法官於是裁定，他們對PW1的陳述是不誠實的游說行為，串謀詐騙罪罪名成立。

Defendants’ Grounds of Appeal
被告人的上訴理由

Both D1 and D3 were represented by Mr. Joseph Tse, SC.  In D1’s Amended Perfected Grounds of Appeal, the following grounds were put forward in support of his argument that the conviction against him was unsafe and unsatisfactory:
D1和D3，都是由謝華淵資深大律師代表。D1的經修訂完備上訴理由，提出了以下幾個理由去支持論點，他的定罪是不安全及不穩妥的：

PW1, without the leave of the court, read her witness statement(s) every night during the period while she was giving evidence;
PW1沒有法庭批准下，作供期間每晚閱讀她的證人供詞；

The trial judge misunderstood PW1’s evidence in that she thought PW1 was saying that the investment scheme recommended to her by the defendants was “risk-free”.
原審法官錯誤理解PW1的證詞，以為她說眾被告人向她推銷的，是一個「無風險」的投資計劃；

The trial judge had taken a preconceived view by holding a firm belief that D1 was a member of the conspiracy, before analyzing the facts relevant to him;
原審法官採用了一個先入為主的觀念，已認定D1是串謀一份子，才分析與他有關的案情；

The trial judge on her own initiative departed from the prosecution case and found, in the absence of any evidential basis, that the investment scheme did not exist at all;
原審法官擅自偏離控方案情，在沒有證據基礎下，裁定投資計劃本身不存在；

As a result of the trial judge’s misunderstanding of PW1’s evidence, she embarked upon speculation and found on her own initiative that the scheme did not exist at all, so that she erroneously found that D1 must have become suspicious of the scheme;
基於原審法官對PW1的證詞的誤解，而進行猜測及擅自裁定投資計劃本身不存在，導致錯誤裁定D1必對計劃生疑；

On a number of occasions the trial judge embarked upon speculation against D2 by quoting from D2’s cautioned statement.  She reversed the burden of proof, actually had adopted the standard of proof for civil cases and had overlooked the material evidence in the case, such as exculpatory evidence which was favourable to D1.
原審法官屢次引用D2的警誡供詞，來針對D1之猜測。她把舉證責任顛倒，實際採納了民事舉證標準，和忽略了案中重要的證據，例如是對D1有利開脫的證據。

D3’s grounds of appeal are similar to D1’s and need not be repeated here.
D3的上訴理由，與D1類似，毋需覆述。

D2 was represented by two counsel, Mr. Kevin Chan and Ms. Fiona Nam, who submitted the Perfected Grounds of Appeal containing the following points:
D2是由陳世傑及藍凱欣兩位大律師代表，提交的完備上訴理由，有以下幾點：

The trial judge erroneously refused the three defendants’ application for a permanent stay of these criminal proceedings.  She erroneously found that the evidence that Tony Yue, the witness that the defendant wished to call, could give would only be hearsay evidence which would not and could not be of any assistance so far as the issues at trial were concerned.  She also failed to take into account any possible remedial measures or remind herself of the relevant directions in order to avoid, counteract or reduce the risk of unfairness;
原審法官錯誤拒絕三名被告人的申請，永久擱置這刑事程序。她錯誤裁定被告人欲傳召的證人Tony Yue，可作的證供只屬傳聞證供，不會和不能對審訊的爭論點有所幫助。她也沒有考慮可能的補救方法，或作出一些提醒自己的指示，去避免、抵消或減少不公平的風險；

The trial judge should not have negated the existence and truthfulness of the investment scheme as claimed by D2 to PW1;
原審法官不應否定，D2對PW1聲稱投資計劃的存在和真實性；

The trial judge had given inappropriate weight to the account in D2’s statement which was a mixed statement;
原審法官給予D2的混合式口供內的陳述，不恰當的比重；

The trial judge erroneously and inappropriately drew unfavourable inferences against all the defendants.
原審法官錯誤地和不恰當地，對各被告人作出不利的推論。

In the opinion of this Court, amongst all the grounds of appeal, the crucial ones are D2’s in respect of the application for stay of criminal proceedings.
本庭認為眾多的上訴理由，具關鍵性的是D2提出有關擱置刑事程序的理由。

Application for Stay of Criminal Proceedings
擱置刑事程序的申請

At the commencement of the trial, all three defendants applied for a permanent stay of these criminal proceedings mainly on the ground that due to the gross delay in prosecution, they were unable to call witnesses whose evidence would be favourable to their defence.  D1 and D3 put forward two witnesses, namely Rodney Tang and Tony Yue, whereas D2 stated that Tony Yue was his key witness.  This Court only needs to discuss the evidence that Tony Yue could give.  It is not necessary for us to deal with the evidence that Rodney Tang could give, as it is not relied upon by the grounds of appeal.
審訊開始時，三名被告人都申請永久擱置這刑事程序，主要的原因，是由於控方檢控的嚴重延誤，他們未能傳召對於他們抗辯有利的證人。D1和D3提出的證人有兩位，是Rodney Tang 和Tony Yue ，D2就提出Tony Yue 是他的重要證人。本庭只需集中討論Tony Yue可作的證供，毋需處理涉及Rodney Tang可作的證供，因為上訴理由，沒有依賴他可作的證供。

In 2000, the police had taken witness statements from PW1 and the three defendants but had all along been unable to locate Tang Chun Lam.  The name “Tony Yue” was provided by D2 to the police in 2000.  In December 2003, the police arrested Tony Yue who then gave a statement under caution.  In January 2004, pursuant to the advice of the Department of Justice, no prosecution was brought against him and he was released unconditionally.  It was not until 2008 that decision was made to prosecute and arrest the three defendants upon review of the advice by the Department of Justice.  Each defendant had been having the status of a witness prior to his arrest in October 2008.
在2000年間，警方已錄取了PW1及三名被告人的證人供詞，但一直未能找到鄧春霖。Tony Yue 的名字，是D2在2000年向警方提供。2003年12月，警方拘捕Tony Yue，在警誡下向他錄取了一份口供。2004年1月，根據律政司意見，不對他起訴，獲無條件釋放。三名被告人是後來2008年律政司覆核意見，才決定起訴和拘捕的。各被告人在2008年10月被捕前，一直是證人身份。

It was not until January 2009 when D2’s lawyers received the “list of unused material” that they discovered that Tony Yue had once been arrested in December 2003 and released subsequently.  D2’s lawyers then asked the police to provide them with a copy of Tony Yue’s video-recorded interview.  They came to know about what had been said by him during the interview only after viewing the video-tape in March 2009.  Since 2001, the contact between D2 and Tony Yue had become less frequent.  In March 2009, D2’s lawyers advised D2 to contact Tony Yue immediately.  But D2 no longer had contact information of Tony Yue.  He had tried to contact Tony Yue through the people who were acquainted with Tony Yue, by fax and by telephone, but to no avail.
2009年1月，D2的律師收到「未用於檢控的資料列表」，才發現Tony Yue在2003年12月曾被捕和後來獲釋，於是向警方索取Tony Yue的錄影會面記錄，要在2009年3月看到影帶才知道他的口供內容。D2自2001年後，跟Tony Yue的聯繫逐漸疏遠。他的律師在2009年3月建議他馬上聯絡Tony Yue，D2已沒有他的聯絡資料，他曾嘗試找Tony Yue，但透過聯絡認識Tony Yue的人、傳真和電話，都沒有成果。

On the third day into the trial, the prosecution provided to D2’s lawyers a movement record of Tony Yue, which showed that between December 2003 and October 2008, he entered Hong Kong for 143 times.  But in 2008, there was an obvious drop in the number of times that he entered Hong Kong.  After all the defendants had been arrested in October 2008, Tony Yue entered Hong Kong only once in April and once in May of 2009.  On the third day into the trial, the prosecution also provided to D2’s lawyers a telephone number which might belong to Tony Yue.  But after attempts had been made, they were told that the person who answered the phone claimed that he did not know Tony Yue.
到審訊的第三天，控方向D2的律師提供Tony Yue的出入境記錄，顯示他在2003年12月至2008年10月，有143次入境，但在2008年的入境次數，就明顯減少，而在各被告人2008年10月被捕後，Tony Yue就只在2009年4月和5月分別入境一次。控方也在審訊的第三天，提供了一個可能是Tony Yue的電話號碼給D2的律師，但嘗試後得知接聽電話的人聲稱不認識他。

D2 claimed that but for the delay in prosecution, there could have been a feasible chance of contacting Tony Yue successfully in 2003 to ask him to testify for his defence.
D2聲稱，若非控方在檢控有所延誤，在2003年他是有切實的機會聯絡到Tony Yue，為他辯護作證。

Tony Yue’s Role as Alleged by D2
據D2所稱Tony Yue的角色

In D2’s cautioned statement, he claimed that Tony Yue and Tang Chun Lam were the masterminds behind the entire investment scheme, and that Tony Yue himself had knowledge about the investment scheme.  According to D2’s record of interview, Tony Yue was his friend in America, whom D2 came to know through the introduction of a client from his law firm.  Tony Yue told D2 that he had done some finance-related work for the US Government before.  In 1999, Tony Yue introduced Tang Chun Lam to D2.  To the knowledge of D2, Tang Chun Lam was engaged in trading and financial work and had a company known as China Sources.  D2 had also been to the company’s office situated in Sheung Wan.
D2在他的警誡口供宣稱，Tony Yue和鄧春霖是整個投資計劃背後的始作俑者，而Tony Yue本身對該投資計劃是有認知的。根據D2在會面記錄所述，Tony Yue是他的一位在美國的朋友，由他在律師行的客人介紹認識。Tony Yue告訴D2，他有幫助美國政府做些牽涉到金融的工作。Tony Yue在1999年，介紹了鄧春霖給D2認識。據D2所知，鄧春霖是做貿易和金融工作的，有一間公司，名稱是China Sources，D2亦有到過公司在上環的寫字樓。

In 1999, Tony Yue and Tang Chun Lam had separately shown D2 some letters of credit and guarantees issued by banks.  Tony Yue had shown and told D2 that he had obtained a guarantee in the sum of US$30,000,000 in which Tang Chun Lam’s company was named as the beneficiary, and that they were having some investment programmes in progress.  Tony Yue also asked D2 if he had got any investors interested in participating in it so that they could co-operate together in making money.  D2 chose to ask his friend D3 as, to the understanding of D2, D3 was engaged in trading and financial business in the mainland and had a wider connection.  Afterwards, D3 introduced D1 to D2.
1999年間，Tony Yue和鄧春霖都分別給了一些銀行信用證和保證書給D2看，Tony Yue展示和告訴D2他已經有一張US$30,000,000元的保證書，受益人是鄧春霖的公司，而他們正在進行一些投資項目，並詢問D2有沒有投資者有興趣參與，可合作賺錢。D2選擇了找朋友D3，因為根據D2理解D3在大陸有做貿易和金融生意，圈子比較大，而D3後來就介紹了D1給D2認識。

In D2’s record of interview, he also mentioned that both Tony Yue and Tang Chun Lam had explained to him about the operation of the investment scheme.  After a sum of principal was injected by an investor, a major bank in Europe would issue a bank guarantee with a face value 10 times higher than the principal sum to guarantee the principal sum for a period of one year.  Meanwhile, they would make further investment by using this bank guarantee.  D2 chose to participate in this investment programme because he believed in the representations made by Tony Yue and Tang Chun Lam and that they already had a guarantee in the sum of US$30,000,000.
D2在會面記錄亦有提到，Tony Yue和鄧春霖都有向他解釋該投資計劃的運作。投資者投入本金後，歐洲的大銀行會開一張面值大十倍，為期一年的銀行保證書去擔保這個本金，而他們會在利用這張銀行保證書去再做一個投資。D2是因為相信Tony Yue和鄧春霖的陳述，和他們已經有一張US$30,000,000元的保證書，而選擇去參與這項投資。

Tony Yue’s Video-Recorded Interview
Tony Yue的錄影會面

The account given by D2 above is substantiated by Tony Yue’s video-recorded interview.  Tony Yue said there had been a cooperative relationship between him and Tang Chun Lam, and he had knowledge about the operation of the investment programme. Tony Yue admitted that through him D2 came to know about the investment programme, and that as a result of what he had said, D2 came to have contact with Tang Chun Lam.
D2上述的聲稱，在Tony Yue的錄影會面得到印證。Tony Yue說他和鄧春霖有合作關係，而他是知道投資計劃的運作，他承認是因為他D2才知道該投資計劃，是基於他的說話，才令D2接觸到鄧春霖。

Tony Yue, an American citizen, was engaged in investment business mainly in finance, and had his own financial company in the United States.  He said he arranged an investment plan with a higher-than-usual return for his clients by making use of his connection with banks, and the investment locations were mainly in Europe.  Through his friend, Mr Chiu, he came to know Tang Chun Lam.  In 1999 Tony Yue came to know through Mr Chiu that Tang Chun Lam and a person known as Lee Ching Ming (transliteration) [李政明] wanted to invest a sum of money on investment programmes.  Tang Chun Lam told Tony Yue that Lee Ching Ming could have a bank guarantee in the sum of US$30,000,000 issued to Tony Yue, asking Tony Yue to help in making investment.  The content of the investment scheme was that an investor had to inject money, which then would be used for drawing a “credit line” for the purpose of bills trading.  The investor’s money would be put into their bank(s) in the name of the investor.  As regards how the credit line would be arranged, it was a matter for the company in the United States to deal with, and it would not be revealed to him.  His role was a middleman.  If it was successful, he would have 1% commission.
Tony Yue 是美國公民，從事金融為主的投資業務，在美國有財務公司。他說他是利用與銀行的關係，為客戶安排一個高於一般回報的投資，投資地點大部份在歐洲。他是透過一個朋友趙先生認識鄧春霖，他在1999年從趙先生得知，鄧春霖和一個叫李政明的人，有一筆資金想做投資項目。鄧春霖告訴他，李政明可以給他開一張US$30,000,000的銀行保證書，叫Tony Yue幫手做投資。投資計劃內容是投資者將資金投入，用以拉一條credit line做票據買賣。投資者的資金，將會以投資者名下放在他們的銀行。至於如何安排到credit line則是美國那邊公司的安排，不會告訴他。他的角色是中間人，事成的話會有1%佣金。

Tony Yue had given some documents pertaining to investment process and profit to Tang Chun Lam.  When he introduced the investment programme to Tang Chun Lam, he mentioned that (a) programme manager of the programme would make transactions with the invested capital.  Tony Yue was not responsible for making arrangement of the investment, instead he would ask his friend in America, who worked as a broker, to find a programme manager.  This broker friend would keep the information of the programme manager confidential and would not reveal it to Tony Yue.
Tony Yue 有給予鄧春霖一些關於投資程序和利潤的文件。他向鄧春霖介紹投資項目時，提到項目的programme manager 會用投入的資金做買賣。Tony Yue不是負責安排投資，而是透過他一個美國做經紀的朋友去找programme manager，經紀朋友會把programme manager的資料保密，不會告訴他。

Tony Yue said D2 came to know about the said investment scheme because D2 had been acquainted with him before and had known that he could deal with the said investment scheme.  Tony Yue told Tang Chun Lam and D2 clearly that he could make it provided that there was a verified bank guarantee.  From the beginning to the end, Tony Yue had never told Tang Chun Lam the details of the scheme because he had to wait for the programme manager to inform him in black and white.
Tony Yue說D2 知道有關該投資計劃的事，是因為D2以前認識他，並且知道他可以做到該投資計劃。他跟鄧春霖和D2說得很清楚，只要有一張經查證的銀行保證書，他就可以做到。從頭到尾，他都未有將投資項目的詳細計劃告訴鄧春霖，因為他要等programme manager白紙黑字告訴他。

Tony Yue did not think the investment scheme was problematic.  He knew that there were occasions in the United States where programme managers were summonsed by court and examined on matters relating to the profit they made, and that this type of investment scheme did exist because he had a friend who had earned profit from it and another friend who had earned commission from it.  Although he had never successfully introduced this type of investment scheme, he had personally made such referral on one or two occasions.  He started to be engaged in this type of investment scheme since 1995.  He said that after an investor had produced a copy of bank guarantee, once it had been verified, the investor could then apply for making investment.  He knew that there were really people who managed to make investment in this way, and he had personally seen successful cases.  He did not know the content of the investment scheme.  Based on his experience, he believed that this type of investment scheme did exist.
Tony Yue不認為投資計劃有問題，他知道美國有programme manager被法院傳召去詢問關於他們賺取的利潤，而這種投資計劃是真有其事的，因為他有一個朋友正從中獲利，也有另一個朋友從中賺取佣金。他雖然沒有成功介紹這種投資計劃，但他曾經手介紹一兩宗，他是從1995年開始做這種投資計劃的。他說投資者出示銀行保證書副本，經查證後就可以申請投資，他知道真的有人做到投資，亦親眼見到有人成功。他並不知道投資計劃的內容，他憑經驗相信這種投資計劃確實存在。

Further, on 20 November 1999, Tony Yue also signed an Investment Contract [Prosecution Exhibit P-20] with Tang Chun Lam, Artwin and D2, in which it was stipulated that Tony Yue was responsible for implementing and arranging the application for participating in the said investment scheme.  On 30 November 1999, D1 on behalf of Artwin signed the new Joint Venture Contract [Prosecution Exhibit P-21], because the arrangement in the original contract had been revised by the Investment Contract dated 20 November.
另外，Tony Yue亦在1999年11月20日，與鄧春霖、Artwin和D2等，簽署了一份投資協議書（Investment Contract；控方證物P-20項），當中訂明他會負責執行和安排申請參與該投資計劃。D1在1999年11月30日代表Artwin 簽署新的合作協議書（控方證物P-21項），是因為11月20日的投資協議書，修訂了原有協議的安排。

During the video-recorded interview of Tony Yue, he had been asked about the subsequent enquiries made with UBS for verifying the bank guarantee.  He said it was probably in 1999 but did not say clearly about the exact time.  Apparently it took place after the signing of the Investment Contract on 20 November.
Tony Yue在錄影會面，有被問及後來向UBS查證銀行保證書的事。他說應該是1999年，但沒有說清楚確實的時間，這似乎是簽署11月20日的投資協議書之後。

Mr. Chan submitted that as can be seen from the above, Tony Yue’s role was very important in that he not only introduced the investment programme in question to Tang Chun Lam, but also facilitated the cooperation between D2 and Tang Chun Lam.  Tony Yue assisted Tang Chun Lam in verifying the bank guarantee and possessed knowledge to a certain extent about the operation of the investment, for instance, about the possibility of using a credit line for the purpose of bills trading.  Tony Yue had made a considerable amount of representations to D2, thereby influencing the belief of D2.  According to Mr. Chan, the evidence that Tony Yue could give was highly relevant to the question as to whether it was impossible for D2 to believe the three representations as specified in the offence to be true, and it could be said that Tony Yue was an extremely crucial witness for the defence of D2.
陳大律師陳述，從上述可見，Tony Yue的角色十分重要，他不但介紹有關投資項目給鄧春霖，亦撮合了D2和鄧春霖的合作。他曾協助鄧春霖查證銀行保證書，亦對投資的運作，有一定的認識，例如可以用credit line做票據買賣。他對D2作了相當的陳述，因而影響了後者的信念。Tony Yue可作的證供，對裁定D2是否不可能相信控罪中三項陳述是真確的，陳大律師說有舉足輕重的影響，Tony Yue可說是對於D2的辯護，是極為關鍵的證人。

Applicable Law
適用的法律

The court has an inherent power to stay criminal proceedings permanently, although such power is exercised only in highly exceptional circumstances.  Where no practical remedial measure is available to remedy a situation whereby a fair trial for the accused is impossible and the continuation of the prosecution would amount to an abuse of process, a permanent stay of criminal proceeding would be granted by the court.  This is a more frequently adopted ground.  Another ground, which is relatively rare, is that although a fair trial is feasible, the entire prosecution has involved a serious abuse of process which offends the court’s sense of justice and propriety, then a stay of the criminal proceeding might also be granted by the court.  For the relevant legal principles, see the judgment of the Court of Final Appeal in HKSAR v. Lee Ming Tee [2001] 1 HKLRD 599.
法庭有固有的權力，去永久擱置刑事程序，雖然這權力是在極特殊的情況下才行使。假若沒有可行的補救方法，致使被告人不可能得到公平的審訊，繼續進行檢控，會構成濫用程序，法庭便會批准永久擱置刑事程序，這是比較多引用的理由。另一較為罕見的理由，是審訊即使可以公平地進行，但由於整個檢控涉及嚴重的濫用程序，令致法庭認為這是不公不義的，法庭亦可擱置刑事程序。有關的法律原則，參照終審法院在HKSAR v. Lee Ming Tee的判決 [2001] 1 HKLRD 599。

The ground adopted by the defendants in the present case is the first one, which is more commonly used.  The defendants contended that because they were unable to locate and call Tony Yue to give evidence in court, their defence had been unfairly prejudiced, whereby it was impossible for them to have a fair trial.  As regards this argument, the defendants had the burden of proof on the balance of probabilities.
本案被告人引用的理由，是第一個較為常見的理由，被告人的爭議，是由於未能尋獲Tony Yue出庭作供，對他們的抗辯造成不公平的損害，因而令他們不可能得到一個公平的審訊。就這爭議，被告人負有舉證責任，舉證標準是以相對可能性衡量。

On the point of law regarding a missing witness, reference can be made to R v. Lam Tat Chung Paul & Anr. (1994) 6 HKPLR 147.  The learned trial judge, His Honour Judge Jackson in the District Court [as he then was], had set out in detail and comprehensively 14 applicable legal principles.  In assessing the importance of this witness, it is necessary for the court to consider all evidence relevant to the issue, including any statements made by this witness.  Whether or not the defendant can give the evidence which the witness is expected to give is not a factor which the court can take into account, because the defendant has the right to remain silent and the right to elect not to give evidence.  In considering whether the defendant can have a fair trial, it is necessary for the court to weigh the public interests of the two sides.  Firstly, anyone who has committed a criminal offence must be brought to justice.  Secondly, the community expects trials to be fair and to take place within a reasonable time after a defendant has been charged.  The evidence that a missing witness is expected to give need not be determinative of the issues of the case, but it must in a material way assist the accused, and therefore, the absence of such evidence would result in unfairness at trial.
就著失蹤證人的有關法律觀點，可參看R v. Lam Tat Chung Paul & Anr. (1994) 6 HKPLR 147。主審法官區域法院法官翟克信（當時官階）在第171頁G行至174頁B行，詳盡和全面地列舉了14個適用的法律原則。在衡量這名證人的重要性時，法庭須考慮有關爭議的所有證據，包括這證人的任何證詞。至於被告人可否就這名證人可作供的事情作證，則不入考慮之列，因為被告人有保持緘默的權利，有權選擇不作供。在考慮被告人可否得到公平的審訊，法庭須權衡兩方面的公眾利益，第一是干犯刑事罪行者，必須繩之於法，第二是公眾期望在被告人被起訴的合理時間內，審訊會公平進行。失蹤證人可作的證供，不需要對案件起決定性的作用，但須是實質地對被告人有幫助的，故此缺少這證供會對審訊造成不公。

When an application for a stay of criminal proceedings is put before the court, it is the duty of the judge to consider whether there are any possible remedial measures to avoid or minimize the risk of unfairness, for example, by adjournments, by rulings on evidence, or by certain directions to the jury.  It is only when no practical remedial measures are available, whereby a fair trial has become impossible, that it is necessary for the court to exercise its inherent power to stay the proceedings (Secretary for Justice v. Cheung Chung Chit [2003] 3 HKLRD 447 paragraphs 13, 27, 29 and 30).
法官面對擱置刑事程序的申請時，有責任考慮有沒有可能的補救方法，以避免或減少不公平的風險，例如是押後審訊、就證據作出某些裁斷，或對陪審團作出某些指示。如果是沒有可行的補救方法的話，導致公平的審訊不可能，法庭這才需要行使固有的權力，把程序擱置(Secretary for Justice v. Cheung Chung Chit [2003] 3 HKLRD 447 第13、27、29和30段)。

Prosecution Submissions
控方的陳詞

One of the main reasons relied upon by the trial judge in refusing the application for a stay of the criminal proceedings was that even if Tony Yue were called to give evidence, his evidence would have been hearsay evidence which could not be admissible to prove the subsistence of the investment programme.  Ms. Fanny Wong, Senior Assistant Director of Public Prosecutions, for the Respondent, submitted that: Tony Yue himself had never dealt with this type of investment before; according to what he said, he only introduced investors to (a) programme manager and would earn 1% commission if subsequently the investment was successful; as regards the nature and method of the investment, he had no way to find out; none of the investors introduced by him had ever succeeded; therefore the information he could provide would only be hearsay evidence.
原審法官拒絕擱置刑事程序的申請，其中一項主要的原因是，即使Tony Yue可以作供，他的證供是屬於傳聞證供，不可以用以證實投資項目的存在。代表答辯人的高級助理刑事檢控專員黃錦卿陳述，Tony Yue本人從沒有做過此類投資，據他所說，他是把投資者介紹給programme manager，事後投資成功他會賺取1%的佣金，至於投資的性質和方法，他無從知曉，他所介紹的投資者，還沒有一個成功例子。故此他可以提供的資料，只屬傳聞證供。

Ms. Wong also pointed out that there were discrepancies between Tony Yue’s investment scheme and the investment scheme recommended by the defendants to PW1.  According to Tony Yue’s investment scheme, a credit line would be secured with the investor’s verified bank guarantee for the purpose of bills trading.  The investment scheme recommended by the defendants, on the other hand, was that the capital would be invested in some backward countries for development.  Tony Yue also did not mention that there would be a return 30 to 40 times the investment sum, or that a fixed sum equivalent to that level of profit would be distributed to the investor per month.  The two types of investment could not be lumped together.  Further, Tony Yue had no way to find out the nature and method of the investment scheme, it was unlikely that he could exert any influence to the belief of D2 as to the investment scheme, not to mention that the two schemes were different.
黃大律師亦指出，Tony Yue 的投資計劃，與被告人向PW1推介的投資計劃，有不同之處。Tony Yue 的投資計劃，是以投資者經查證的銀行保證書做一條credit line，去做票據買賣，而被告人推介的投資計劃，資金將會投放於開發一些落後國家。Tony Yue也沒有提及，有30至40倍的回報，或以該等利潤每月固定金額分發給投資者。兩種投資，不可混為一談。再者，Tony Yue對他的投資計劃的性質和方法無從知曉，不見得他可以影響到D2對投資計劃的信念，更何況是兩個不同的計劃。

Decision of this Court
本庭的裁決

It was held by the trial judge that the evidence of Tony Yue would be hearsay evidence.  With this we do not agree.  Of course, if this evidence was only to be used to prove whether the investment programme existed or not, it would indeed be hearsay evidence.  Nonetheless, the trial judge had overlooked that such evidence could also be used to prove the mentality and thinking of Tony Yue with regard to the investment scheme.  If this was the purpose of the evidence, then it should not be regarded as hearsay evidence.  In this regard, the trial judge was wrong.
原審法官認定Tony Yue的證供屬傳聞證供，本庭認為有商榷之處。當然，如果這證供只是用來證實投資項目存在與否，的確算是傳聞證供。但原審法官忽略了這證供也可以用來證明，Tony Yue對投資計劃的心態及思維，若然這是證供的作用，便不算是傳聞證供。原審法官在這方面犯了錯誤。

Although Tony Yue’s investment scheme was not entirely identical with the one recommended by the defendants to PW1, it cannot be denied that the two schemes are related.  This can be clearly seen from the joint venture contracts signed on the two occasions respectively in April and November 1999.  They are Prosecution Exhibits P-5, P-20 and P-21.
Tony Yue 的投資計劃，與被告人向PW1推介的投資計劃，雖然不盡相同，但不容否定兩者是有關連的。這從1999年4月和11月，兩次簽署的合作協議書，可見一斑，這是控方證物P-5、P-20和P-21。

If the trial judge had not ruled that the evidence that Tony Yue could give was hearsay evidence, she would not have made the mistake of holding that his evidence did not have any value.  Tony Yue had his own personal knowledge about the investment scheme, although he was not responsible for making arrangement for the investment and he just looked for a programme manager through his broker friend.  It was through Tony Yue’s facilitation that D2 and other defendants came to know Tang Chun Lam, before they came to have contact with this investment scheme.  The defendants claimed that the representations made by Tony Yue to D2, including those in relation to Tang Chun Lam’s bank guarantee in the sum of US$30,000,000., had exerted influence on D2’s and other defendants’ belief as to the investment scheme (and) on whether they believed or might have believed in the three representations as specified in the offence.  In the opinion of this Court, this is an important consideration.
倘若原審法官不是斷定Tony Yue可作的證供，屬傳聞證供，她便不會錯誤的認定，他的證供沒有任何價值。Tony Yue對該投資計劃，有他個人的認知，雖然他不是負責安排投資，而是透過他的經紀朋友去找programme manager。D2和其他的被告人，是透過他的撮合才認識鄧春霖，然後才接觸到這投資計劃。被告人聲稱，Tony Yue對D2的陳述，包括是鄧春霖US$30,000,000的銀行保證書，影響了D2和其他被告人對這投資計劃的信念，他們是否相信或可能相信控罪所指的三項陳述。本庭認為這是重要的考慮。

We take the view that Tony Yue is a crucial witness in the present case.  If he had given evidence in court, the trial judge could have had more direct evidence to make a finding on the mentality and acts of each defendant, and it would not have been necessary for the trial judge to draw inferences based on the facts and circumstantial evidence of the case.  The failure of the Defendants to call him to give evidence has unfairly prejudiced them, thereby making it impossible for them to have a fair trial.
本庭認為Tony Yue是本案關鍵的證人，倘若他出庭作供，原審法官便會有更直接的證據，就各被告人的心態和行為裁決，毋需只是從案情和環境證供作推論。被告人不能傳召他作證，是對他們不公平的損害，令他們不可能得到公平的審訊。

Another error of the trial judge was that she did not consider or fully consider what possible remedial measures could have been taken to avoid or minimize the risk of unfairness.  Mr. Chan pointed out that when the application was being heard by the trial judge, there was the mention about issuing a subpoena to Tony Yue and putting his name into the Stop List of the Immigration Department, but the feasibility of these approaches was not further explored.  The judge also did not consider other measures which could assist the defendants to locate Tony Yue, such as by adjourning the trial, by issuing a letter of request, or by suggesting to the police to give an undertaking not to arrest Tony Yue in connection with this case in order to increase the chance of locating him and the chance that he would be willing to give evidence in court.
原審法官另一犯錯，是沒有考慮或沒有充份考慮，有甚麼可能的補救方法，去避免或減少不公平的風險。陳大律師指出，法官在聆聽申請時，曾經提出過發傳票予Tony Yue，和把他的名字放在入境處的Stop List，但之後就沒有探討這些方法的可能性。法官也沒有考慮其他可以協助被告人尋找Tony Yue的方法，例如押後審訊、發出請求書 (letter of request) ，和提議警方承諾不就本案控罪拘捕Tony Yue，以增加他被找到和願意出庭作證的機會。

In giving verdict of the case, the trial judge also failed to remind herself of certain directions such as those relating to the extent to which the defence of each defendant might have been handicapped and how the issues she had to decide had been affected due to the failure to locate and call Tony Yue to give evidence in court, in order to counteract any prejudice which the defendants might otherwise suffer.  On the contrary, it was emphasized by the trial judge from time to time that it was impossible for the investment scheme to actually exist, by saying, for example: “reasonable people would certainly be doubtful of the legality of such operation”; “this type of investment is indeed against common sense with regard to ordinary investment”; “it is contrary to common sense with regard to investment known to ordinary and reasonable people”; “as regards the allegation that it was completely risk-free, it is not a normal business operation that any reasonable person would find acceptable”; “the allegation that the investment would bring a return of profit 30 to 40 times without any investment risk is against the general concept on investment”.  All these remarks demonstrate that the trial judge had in effect refused the evidence that Tony Yue could give in relation to the investment scheme, and that she did not think the representations made by Tony Yue to D2 would exert any influence on D2’s and other defendants’ belief with regard to this investment scheme.  Therefore, the conviction against each defendant was unsafe and unsatisfactory.  See R v. Holgate (No. 1) [1996] 3 HKC 315, line E to line G in page 321 and line C to line E in page 323.
原審法官在判案時，也沒有作出一些提醒自己的指示，包括無法尋獲Tony Yue出庭作證，對各被告人抗辯的影響，和對需要裁決的爭論點的影響，以抵消可能對被告人造成的不公。相反地，原審法官不時強調該投資計劃不可能真實存在，例如「常人對此運作的合法性定有質疑」，「此類投資確實有違一般投資的常理」，「有反一般常人認知的投資常理」，「全無投資風險的指稱非常人能接受的正常商業運作」，「對於30至40倍的利益回報又無投資風險的投資指稱確是有違一般的投資概念」，這都顯示法官實際上否定了Tony Yue對投資計劃可作的證供，不認為Tony Yue對D2的陳述，會影響了D2和其他被告人對這投資計劃的信念。因此，各被告人的定罪，是不安全和不穩妥的。參看R v. Holgate (No. 1) [1996] 3 HKC 315第321頁E行至G行、第323頁C至E行。

It is noted by this Court that in the reasons for verdict, when the trial judge mentioned about Tony Yue, she addressed him as the “person who participated in the case” (paragraphs 62, 71 and 75).  Although the trial judge did not use the word “co-conspirator” which appeared in paragraph 95 to describe him, it can be seen from the matters described in paragraphs 71, 75 and 77 that she was treating Tony Yue and Tang Chun Lam, who was specified as a co-conspirator in the particulars of offence, as members of the same group.   In the opinion of this Court, it was seriously wrong for the trial judge to treat Tony Yue as a co-conspirator, which was not the case relied upon by the prosecution, without informing the prosecution and the defence of such view beforehand.
本庭留意到在裁決理由書，原審法官提及Tony Yue之時，稱他為「與案者」(第62、71、75段) 。法官雖然沒有用上第95段「串謀者」的字眼去形容他，但從第71、75及77段所描述的事可見，她是把Tony Yue和鄧春霖列為一夥，而鄧春霖正是控罪詳情指明的串謀者。法官把Tony Yue 視為串謀者，這不是控方依賴的案情，她事前沒有把這意念告訴控辯雙方，本庭認為是嚴重的錯誤。

By reason of the above errors, the trial judge did not fully consider the importance of the evidence which Tony Yue could give as far as the defendants were concerned, and erroneously exercised her discretion to refuse the application for a stay of the criminal proceedings.  This fundamental error cannot be rectified by this Court substituting its discretion for hers.  The only appropriate approach is to set aside the convictions, with the issue of a re-trial being reserved for consideration (see R v. Takeshi Machiya [1990] 1 HKC 73, line I in page 82 to line B in page 83).
由於上述種種錯誤，原審法官未有充份考慮Tony Yue可作證供對被告人的重要性，錯誤行使酌情權拒絕擱置刑事程序的申請。這個根本的錯誤，不能夠以本庭代為行使酌情權補救，恰當的做法唯有是撤銷定罪，容後考慮應否下令重審（參看R v. Takeshi Machiya [1990] 1 HKC 73第82頁I行至83頁B行）。

We have heard submissions on the other grounds of appeal advanced by the three defendants.  But in view of the above conclusion, it is not necessary to deal with those grounds, nor is it necessary to deal with the application by the Department of Justice to review the sentences.
本庭有聽取三名被告人其他的上訴理由，但由於上述的結論，毋需處理這些上訴理由，也毋需處理律政司要求覆核刑期的申請。

Leave to appeal against convictions is granted to the three defendants.  We treat the hearing of the application for leave as the hearing of the appeal.  The appeal is allowed and convictions against the three defendants are quashed.  At the hearing we have already given directions as to how to deal with the intended applications by both parties.  The defendants intended to ask for costs of the appeal and of the trial at first instance.  The Department of Justice intended to ask for a re-trial.  If there is any application for a re-trial, this Court will decide, after having considered the grounds of application, whether it is necessary to hear the application in open court.  As regards costs, there will be open court hearing if the matter cannot be resolved by way of written submissions.
本庭准許三名被告人就定罪上訴，把許可申請視為上訴，裁定上訴得直，撤銷三人的定罪。本庭在聆訊審結時已作出指示，如何處理雙方打算提出的申請。被告人方面，是要求控方支付上訴和原審的訟費。律政司方面，是要求案件重審。如有重審的申請，本庭會考慮申請理由後，決定是否需要開庭審理。訟費方面，如果未能以書面陳述的形式解決，會在庭審裁決。

Fanny Wong, Senior Assistant Director of Public Prosecutions, and Louisa Lai, Acting Deputy Director of Public Prosecutions, for the Respondent
答辯人：由律政司高級助理刑事檢控專員黃錦卿及署理副刑事檢控專員黎雅雯代表。

Joseph Tse, SC, instructed by Ip, Kwan and Co., for the First and Third Applicants
第一及第三申請人：由葉嘉棟、關朗儀律師事務所轉聘謝華淵資深大律師代表。

Kevin Chan and Fiona Nam, instructed by Tang, Lai and Leung, for the Second Applicant
第二申請人：由梁錫濂、黄國基、吳志彬律師行轉聘陳世傑及藍凱欣大律師代表。