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 applicant was charged with 8 counts of Procuring the Making Of an Entry in a Record of a Bank by Deception, contrary to section 18D of the Theft Ordinance, Cap. 210, Laws of Hong Kong.  He pleaded not guilty.  The case was tried by Deputy District Judge Johnny Chan, who convicted the applicant and sentenced him to 44 months’ imprisonment.  The applicant applied for leave to appeal against conviction and sentence.  After hearing, we dismissed his application.  Our reasons are set out below.
申請人被控8項「以欺騙手段促致在銀行的記錄內記入記項」罪，違反《盜竊罪條例》（香港法例第210章）第18D條。申請人否認控罪。案件經區域法院暫委法官陳仲衡審理後，申請人被裁定罪名成立及被判處44個月監禁。申請人就定罪及刑期提出上訴許可申請。本庭在聆訊後駁回申請。以下是本庭的判案理由。

8 counts of the offence
8項控罪

Except the times, the amounts of money and the quantities of the goods, the particulars of offence of the 8 counts are identical in other aspects. The particulars of offence of the 1st count are as follows:
8項控罪的控罪詳情除了時間、銀碼及貨物數目不同外，其他內容一致，以下是第一項控罪的詳情：

“LEUNG Wan-keung, on or about the 4th day of November 2005, in Hong Kong, dishonestly with a view to gain for himself or another or with intent to cause loss to another, procured the making of an entry in a record of a bank, namely a credit entry in the sum of $800,714.60 Hong Kong currency to a bank account numbered 094-842309-838 in the name of Mailland Limited held with the Hongkong and Shanghai Banking Corporation Limited, by deception, namely, by falsely representing to the DBS Bank (Hong Kong) Limited that 102,392 yards of cotton grey twill and 11,920 yards of cotton grey poplin had been sold and delivered in Hong Kong by Mailland Limited to Greenford Industries Limited.”
「梁雲強於或約於2005年11月4日在香港，為使自己或另一人獲益，或意圖使另一人遭受損失，而不誠實地以欺騙手段，即向星展銀行（香港）有限公司虛假地表示美盈豐有限公司已在香港售賣和交付102,392碼灰色棉製斜紋布及11,920碼棉質灰色府綢給添港實業有限公司，從而促致在銀行的紀錄內記入記項，即在以美盈豐有限公司名義持有的香港上海滙豐銀行有限公司帳戶（號碼094-842309-838）貸方，記入款項為港幣800,714.60元的記項。」

The total amount of money involved in the 8 letters of credit was HK$5,684,457.  This offence refers to a person who dishonestly, with a view to gain or with intent to cause loss, by any deception procures the making of an entry in a record of a bank.  The focus is whether the applicant intended to cause, by deception, the DBS Bank to agree to pay out the money stated in the letters of credit, see HKSAR v. Cheung Kwun Yin (2009) 12 HKCFAR 568, paragraph 23.
該8項信用狀的總數為HK$5,684,457。該控罪是指一個人不誠實地，使人獲益或意圖使人遭受損失，以欺騙手段促致記項在銀行的紀錄內記入，其重點是申請人是否有意圖以欺騙手段促使星展銀行同意支付信用狀的款項，見HKSAR v. Cheung Kwun Yin (2009) 12 HKCFAR 568，第23段。

Prosecution case
控方案情

The prosecution case was quite straightforward.  The applicant and his wife were the directors and shareholders of a company called Greenford Industries Limited (Greenford).  Greenford opened on account with the DBS Bank (Hong Kong).  Between 4 November 2005 and 15 June 2006, Greenford applied to the DBS Bank for issuing 8 letters of credit to a company called Mailland Limited (Mailland) for Greenford to make payments to Mailland for purchasing goods.
控方案情非常簡單。申請人與其妻子是一家名為「添港實業有限公司」（「添港」）的董事及股東。「添港」在香港星展銀行開設了一個戶口。2005年11月4日至2006年6月15日期間，「添港」向星展銀行申請發出八張信用狀給一間名為「美盈豐有限公司」（「美盈豐」）的公司作為「添港」向「美盈豐」繳付貨款之用。

The information on the application forms for the letters of credit was filled in according to the instructions given by the applicant.  In the ‘Price Basis’ columns on the application forms, he put down ‘Local Delivery’ as the applicable method, while other methods available for an applicant for documentary credit to choose included ‘FOB’, ‘CFR’, ‘CIF’, and ‘Others’.  In the columns ‘Loading in charge / shipment from’ and ‘For transport to / shipment to’, he put down ‘Hong Kong’.
有關的信用狀申請書上的資料是根據申請人的指示而填報，他在信用狀申請書上的‘Price Basis’一欄填報適用的方式是‘Local Delivery’，其他可供信用狀申請者選擇的方式包括‘FOB’、‘CFR’、‘CIF’ 及 ‘Others’。他在‘Loading in charge/shipment from’ 及 ‘For transport to/shipment to’一欄填報‘Hong Kong’。

On the basis of these application forms, the DBS Bank opened the letters of credit in question.  Mailland furnished the stipulated documents and obtained from the bank the amounts of money stated in the letters of credit.  The money was deposited in Mailland’s account with the Hongkong and Shanghai Banking Corporation.  Subsequently, the money was transferred to the applicant’s bank account with the Bank of China (Hong Kong) and his wife’s accounts with the Hongkong and Shanghai Banking Corporation and the Citic Ka Wah Bank.  Finally, the money was transferred to Greenford’s bank account.
星展銀行根據信用狀申請書批出信用狀。「美盈豐」提供信用狀所要求的文件從銀行獲得信用狀的款項。該筆款項存入「美盈豐」於香港上海滙豐銀行所開設的戶口。之後有關款項被轉帳至申請人在香港中國銀行及其妻子在香港上海滙豐銀行及中信嘉華銀行所開設的戶口，後該筆款項又被轉帳至「添港」的銀行戶口。

The company registration documents of Mailland showed that Wei Guo Min [transliteration of 魏國民] was its sole shareholder and director.  Mailland had [an] account with the Hongkong and Shanghai Banking Corporation.  Only the applicant and his wife were the authorized signatories of this account.  Wei Guo Min was not an authorized signatory of this account.
「美盈豐」的公司登記記錄顯示魏國民是它唯一的股東及董事。「美盈豐」在香港上海滙豐銀行開設戶口，而該戶口的授權簽名人就只有申請人及其妻子，魏國民並不是該戶口的授權簽名人。

The prosecution’s allegation against the applicant was that according to the information supplied by the applicant and contained in the letter of credit application forms, the goods should be delivered in Hong Kong, but the applicant, knowing that no delivery had ever taken place in Hong Kong, still allowed Mailland to ask the bank on the strength of the letters of credit to pay out the money, resulting in Mailland obtaining the money.
控方針對申請人的指控是根據申請人提供的信用狀申請書內容，有關的貨物應該在香港交收，但申請人在明知有關貨物從沒有在香港交收的情況下仍然讓「美盈豐」根據信用狀向銀行申請支付及獲得有關的款項。

Applicant’s defence
申請人的答辯理由

The applicant admitted that Mailland had never delivered the goods to Greenford in Hong Kong.  His explanation was that Greenford purchased grey cloths from Mailland and then sold the grey cloths to [a] bleaching and dying factory in the Mainland.  Mailland was not a manufacturer of the grey cloths.  After Greenford contracted to buy the goods from Mailland, Mailland would place orders with [a] weaving factory in the Mainland for the goods.  After the weaving factory manufactured the cloths, it would send the cloths to [a] bleaching and dyeing factory in the Mainland according to instructions.  After that, the bleaching and dyeing factory would follow the applicant’s instructions to pay Mailland the monies for the goods.  After Mailland received the payments, the applicant and Mr. Wei would then check their accounts to work out the balances between them.  The applicant said he did not know that it was improper to have the delivery done in the Mainland without transporting the goods to Hong Kong.  He thought that it was a waste of time and money to transport the goods to Hong Kong and then back to the Mainland.  He stated that he put down ‘Shipment to Hong Kong’（貨物運往香港）and ‘Shipment from Hong Kong’（貨物由香港運到）in the letter of credit application forms because both Greenford and Mailland were Hong Kong companies.  As to why he chose to use the term ‘Local Delivery’ (本地支付) in the ‘Price Basis’（價錢方式）columns, his reason was that he had no other choice; he thought that ‘Local Delivery’ meant land transport.  The staff members of Greenford were responsible for preparing supporting documents, including invoices, receipts for the goods and ‘Collection Order’, so that Mailland could collect the payments stated in the letters of credit from the bank.  The applicant said that he did not know who signed in the column of seal [and/or] signatory of Mailland in the ‘Collection Order’, but he confirmed that there were only two authorized signatories of Mailland, and they were he and his wife.
申請人承認「美盈豐」從沒有在香港將有關貨物送交「添港」。申請人說「添港」向「美盈豐」購買坯布，然後將這些坯布賣給內地的漂染廠。「美盈豐」不是坯布的生產商，當「添港」向「美盈豐」購買貨物後，「美盈豐」就會向內地織布廠訂貨，織布廠生產布匹後便會按照指示把坯布送到內地的漂染廠，之後漂染廠便會按申請人的指示向「美盈豐」繳付貨款。在「美盈豐」收取貨款後申請人便會與魏先生對數。申請人說他不知道貨物沒有運到香港而在內地交收的做法有不妥之處，他認為將貨物運到香港再運返內地是浪費時間及金錢。申請人指他在信用狀申請書上填報 ‘Shipment to Hong Kong’ (貨物運往香港)及‘Shipment from Hong Kong’ (貨物由香港運到)是因為「添港」及「美盈豐」均是香港的公司。而就‘Price Basis’(價錢方式)一項，他選用‘Local Delivery’(本地交付)是因為他別無選擇，他認為‘Local Delivery’ 是指陸運。「添港」的職員負責為「美盈豐」向銀行收取信用狀的款項而準備有關的支持文件，包括發票、貨物收據及‘Collection Order’。申請人說他不知道是誰在‘Collection Order’的「美盈豐」印鑑簽署人一欄上簽名，但他確認「美盈豐」的認可簽署人只有他和他的妻子兩人。

Deputy Judge Chan’s findings
陳法官的裁決

Deputy Judge Chan did not accept the story that genuine transactions were carried out between Greenford and Mailland.  He found that the transactions were fictitious and that the applicant applied to the DBS Bank for letter of credit facilities by inventing such fictitious transactions.  The applicant knowingly represented to the DBS Bank that an arrangement, as stated in the information put down in the application forms, was in existence by which Mailland sold some cloths to Greenford and the goods were bought, sold and delivered in Hong Kong.  Deputy Judge Chan found that what the applicant did was to obtain credit facilities from the bank by deception, and that the applicant was dishonest because he knew very well that the transactions did not exist at all and that the goods in question were never delivered in Hong Kong.
陳法官不接納申請人提出「添港」與「美盈豐」有實際買賣交易的說法。陳法官指有關的交易是虛假的，申請人是以虛假交易向星展銀行申請信用狀貸款。申請人是在知情下作出「添港」向星展銀行表示「美盈豐」有如申請書上所填報的資料將布匹賣給「添港」及有關貨物是在香港售賣及交付的安排。陳法官認為申請人的行為是以欺騙手段取得銀行的貸款及申請人是個不誠實的人，因為他是明知交易根本不存在及有關貨物從未在香港交收。

Deputy Judge Chan pointed out that even the applicant’s own version of the facts, i.e. he put down ‘Shipment from Hong Kong’ and ‘Shipment to Hong Kong’ in the letter of credit application forms, and put down ‘Local Delivery’ in the ‘Price Basis’ columns showed that he was aware of the falsity of the contents of the documents and knew that if the bank learnt of the fact that the goods were delivered in the Mainland and had never been transported to Hong Kong, it would make enquiries and the result of the enquiries would affect its decision as to whether it would grant the letter of credit facilities.
陳法官指就算單單根據申請人的說法，他在信用狀申請書上填報‘Shipment from Hong Kong’, ‘Shipment to Hong Kong’ 及在‘Price Basis’ 一欄上填報‘Local Delivery’已證明他是知道有關文件之內容實屬虛假及他是明知若銀行得悉有關貨物是在內地交收及從沒有運到香港，它是會作出查詢，而查詢結果亦會影響銀行是否會批出信用狀的貸款。

Deputy Judge Chan found that the criterion laid down in Ghosh was met, namely an honest and decent person and even the applicant himself would be aware that the way in which he handle these matters was dishonest.
陳法官裁定根據Ghosh一案的測試，一名誠實正直的人，甚至是申請人本人都應該知道他這個處事方式是不誠實的手法。

Prosecution’s position at trial
控方審訊時的立場

Mr. Tony Ko, counsel for the applicant, pressed the point that at the trial the prosecution repeatedly made it clear to the court that the prosecution’s allegation against the applicant was not that no genuine transaction was carried out in accordance with the contracts of sale and purchase of goods referred to in the letters of credit; the allegation was that the goods were never shipped to or from Hong Kong, nor were they delivered in Hong Kong and that was contrary to the information put down in the letters of credit application forms.  The reason for the applicant’s doing so was that he wanted the bank to issue the letters of credit.  Mr. Ko argued that Deputy Judge Chan should not act counter to the prosecution’s position, and should not make the finding that in this case no genuine transaction was carried out without giving the applicant an opportunity to offer an explanation on this issue.
代表申請人的高東利大律師指審訊時控方多次向陳法官清楚表明控方針對申請人的指控不是指涉及信用狀的貨物買賣合約沒有進行過任何實質交易，而是貨物根本沒有在香港付運交收。這與信用狀申請書上所填報的資料不同，申請人這樣做是希望銀行批出有關的信用狀。高大律師指陳法官不應該與控方的立場背道而馳，在未給與申請人機會就該議題作出辯解便裁定案件沒有進行過實質的貨物交易。

Our views
本庭意見

We agree that at the trial the position adopted by the prosecution was not that “no such transactions had taken place”.  If Deputy Judge Chan used “no such transactions had taken place” as the basis of the conviction, he should have first allowed the applicant to given further explanation in relation to this basis, but he did not do that.  We therefore find that the finding made by Deputy Judge Chan that “no such transactions had taken place” was wrong.  However, we do not think that such finding will render the conviction of the applicant unsafe or unsatisfactory. Our view is that even if Deputy Judge Chan had not made such finding, there was still an abundance of evidence in this case to support his finding that the applicant by deception dishonestly caused the DBS Bank to pay the monies to Mailland.  The reasons are as follows:
本庭同意控方在審訊時所持的立場並不是「交易不存在」。若陳法官以「交易不存在」為定罪基礎的話，他應該先讓申請人就該基礎提出進一步的辯解，但他並沒有這樣做，故此本庭裁定陳法官有關「交易不存在」的裁決是錯誤的，但本庭不認為這個裁決會令申請人的定罪裁決變得不安全及不穩妥。本庭認為就算陳法官沒有作出上述的裁決，案件仍有充分的證據來支持他裁定申請人以不誠實及以欺騙手段促使星展銀行支付款項給「美盈豐」。理由如下：

(1)The applicant had been running the cloth business for 20 years and had experience in using letters of credit to buy and sell goods.  He ought to know that when the bank was considering whether it should approve an application for document credit, it would make its decision on the basis of the information supplied by him.  If the bank had learned that what really was going on was different from the information contained in the application forms, it would surely have approached with great caution the question of whether the applications should be approved.  It was clearly stated in the application forms that the goods were to be shipped from and to Hong Kong.  This obviously meant that the goods were to be delivered here, and did not mean that both the buying party and the selling party were Hong Kong companies.  Furthermore, “Local Delivery” could not possibly be interpreted as land transport.  The term “Local Delivery” (本地交付) was consistent with the information provided in the previous column, i.e. the place of delivery and receipt of the goods was Hong Kong.  If the actual place of delivery was the Mainland, this could result in the bank suffering loss.  In this case, when Greenford applied for the letters of credit, it at the same time submitted a trust receipt to offer the goods involved in this case to the DBS Bank as security.  If the bank finds it necessary to exercise its right as a creditor to dispose of the security, but then finds that the goods are not in Hong Kong at all, that situation will be highly detrimental to its interests.  This shows that the contents of the application forms contained misrepresentation and could directly infringe upon the interests of the bank, see HKSAR v. Chan Kar Leung & Others (CACC 287/2004), paragraphs 35 and 36; HKSAR v. Lee Wing Kan [2007] 3 HKC 368, paragraph 60 and HKSAR v. Chan Wai San [2008] 4 HKLRD 18, paragraph 153.  It is out of the question that the applicant, being a person well experienced in doing business, could regard that this way of doing things was not improper.
(1)申請人從事布匹生意二十年，亦有使用信用狀買賣貨物的經驗，他理應知道銀行在考慮批出信用狀申請時是會根據他提供的資料作出決定。若果銀行知道真實的情況與信用狀申請書上的資料不同，銀行一定會審慎考慮應否批准該申請。信用狀申請書清楚說明有關貨物是從香港運往香港，這明顯是指貨物是在本地交收，而不是指買賣雙方都是香港公司，而‘Local Delivery’一詞更不可能被解釋為陸運，‘Local Delivery’「本地交付」這一詞與上項所填報的香港是交貨及收貨地點一脈相承。若果貨物實際上是在內地交收，這是有可能令銀行蒙受損失。在本案「添港」申請信用狀時同時提交一份「信託收據」(trust receipt)將涉案的貨物抵押給星展銀行，若星展銀行需要行使債權人權利處理抵押品時，但鑑於抵押品根本不在香港，這會直接損害它的利益。這亦表示信用狀申請書的內容涉及虛假陳述及會直接令銀行的利益受損，見HKSAR v. Chan Kar Leung & Others (CACC 287/2004)，第35—36段，HKSAR v. Lee Wing Kan (李榮根) [2007] 3 HKC 368，第60段及 HKSAR v. Chu Wai San [2008] 4 HKLRD 18，第153段。申請人作為一名有豐富經商經驗的人士絕不可能認為他的做法沒有不妥之處。

(2)The applicant admitted that he was responsible for looking for a place in Hong Kong to be the registered address of Mailland, but he did not use the registered address of Greenford as the registered address of Mailland. The reason for his not doing so was that he did not find it necessary to do so.  However, he said he would send his staff members to the registered address of Mailland to collect letters posted to Mailland.  We consider it to be unnecessary and superfluous conduct.  The applicant admitted that his concern was that if the DBS Bank noticed that the applicant and the beneficiary of the letters of credit used the same address, they would make enquiries.
(2)申請人承認他負責為「美盈豐」尋覓香港的註冊地址，但他沒有將「添港」的地址作為「美盈豐」的註冊地址的理由是他沒有必要這樣做，但他卻說他會指派職員到「美盈豐」的註冊地址收取寄給「美盈豐」的信件。本庭認為這是多此一舉的做法。申請人承認他恐怕星展銀行在得悉信用狀的申請人與受益人是使用同一的地址後會作出調查。

(3)Mr. Wei Guo Min was the sole director and shareholder of Mailland, but strangely, he could not operate Mailland’s bank account because he was not an authorized signatory of that account.  On the contrary, the applicant and his wife, even though they were neither the directors nor the shareholders of Mailland, were the authorized signatories of the account.  Such arrangement was illogical.  The applicant on the one hand tried hard to distance himself from Mailland, but on the other hand the financial transactions of Mailland were actually under his control.  This leads to the question: why was the applicant doing this?  These arrangements could properly be the basis on which the court made the finding that the applicant had the dishonest intention to gain benefits from the DBS Bank.
(3)雖然魏國民先生是「美盈豐」的唯一董事及股東，但奇怪的是他不可以使用「美盈豐」的銀行戶口，因為他不是該戶口的認可簽署人。相反地，申請人和他的妻子雖然不是「美盈豐」的董事或股東但卻是該戶口的認可簽署人，這是有異於常理的安排。申請人一方面刻意與「美盈豐」保持距離，但另一方面他又實際地操控着「美盈豐」的財政運作。問題是申請人為何這樣做呢？法庭是可以這些安排來裁定申請人以不誠實的意圖從星展銀行獲得利益。

(4)The monies which Mailland obtained from the letters of credit, after passing through the accounts of the applicant and his wife in a roundabout way, ended up in the account of Greenford.  As far as the appearances go, Greenford did not pay Mailland any money for buying the goods, because eventually Greenford obtained from Mailland’s bank account the payments relating to the sale of the goods from Mailland to Greenford.  Deputy Judge Chan rejected the evidence that the applicant and Mr. Wei had checked their accounts to work out the balances between them after transactions were done between Mailland and Greenford.
(4)「美盈豐」從信用狀所獲得的款項輾轉經申請人及其太太的戶口最終存入「添港」的戶口。從表面看來「添港」根本沒有向「美盈豐」支付過購買貨物的貨款，因為「添港」最終從「美盈豐」的銀行戶口獲得「美盈豐」出售貨物給「添港」的貨款。陳法官亦不接納申請人與魏先生有就「美盈豐」與「添港」交易對數之說法。

Although Deputy Judge Chan erroneously found that there were no underlying transactions, the evidence set out above could support his finding that the applicant acted dishonestly and as a result the bank was deceived.  Accordingly, we dismiss the application for leave to appeal against conviction.
雖然陳法官錯誤裁定案件沒有實質交易的基礎，但上述的的證據是可以用於支持陳法官作出申請人處事不誠實致令銀行受騙的裁決。本庭因此駁回針對定罪的申請。

Sentence
判刑

For charges 1, 3, 4, 5, 6, 7 and 8, Deputy Judge Chan used two years as the starting point.  Two months were deducted on account of the applicant’s clear record, so the sentence for each count was 22 months.  As for charge 2, Deputy Judge Chan used 18 months as the starting point.  Likewise, two months were discounted for the applicant’s clear record, and the sentence was 16 months.  The sentences for charges 1 to 4 were ordered to run concurrently (i.e. 22 months), and so were the sentences for charges 5 to 8 (i.e. 22 months); but the sentences for charges 5 to 8 were to run consecutively to those for charges 1 to 4, thus making a total of 44 months (i.e. 3 years and 8 months) imprisonment.
就第1、3、4、5、6、7、8項控罪，陳法官以兩年作為量刑基準，因申請人沒有前科而扣減兩個月，每項控罪的刑期為22個月。另外，陳法官以18個月作為第2項控罪的量刑基準，同樣地因申請人沒有前科而扣減兩個月，刑期為16個月。陳法官命令控罪1至4的刑期同期執行（即22個月），而控罪5至8的刑期（即22個月）亦是同期執行，但控罪5至8的刑期就須與控罪1至4分期執行，總刑期為44個月（即3年8個月）監禁。

It was not proven that genuine transactions did not exist in this case and the evidence showed that ultimately the bank did not suffer any loss, but we do not think that these facts can affect Deputy Judge Chan’s sentencing in any way.  It is clear that the applicant obtained from the bank funds of the amount of HK$5,684,457 by deception and the period over which he committed these crimes was as long as 6 months.  What he did would adversely affect Hong Kong’s reputation as a financial and banking centre and the bank’s interests.  In our judgment, the sentence of 3 years and 8 months’ imprisonment is appropriate; we therefore dismiss the application for leave to appeal against sentence.
雖然控方未能證明本案沒有實質的買賣交易而證據顯示銀行最終沒有蒙受損失，但本庭不認為這會影響陳法官的量刑。明顯地，申請人是以欺詐的手法來獲得銀行HK$5,684,457元的貸款而犯案期長達6個月。申請人的手法是會令香港作為財經及銀行金融中心的信譽及銀行的利益受損，本庭認為3年8個月監禁的刑期是適當的，故此本庭駁回申請人針對刑期的上訴許可申請。

Mr. Robert Lee, SC, Deputy Director of Public Prosecutions and Miss Eva Chan, Public Prosecutor of the Department of Justice, for the Respondent.
答辯人：由律政司副刑事檢控專員李紹強資深大律師及檢控官陳冰華代表。

Mr. Tony Ko, instructed by S.K. Wong & Co., for the Applicant.
申請人：由黃萃群律師行轉聘高東利大律師代表。