串謀詐騙罪中不誠實的認定？上訴駁回

### 案件基本資料 - 案件名稱：HKSAR v Lam Tsz Him (林子謙) (D2) and Tsang Tsz Tong (曾梓朗) (D4) - 法院：高等法院上訴法庭 (Court of Appeal, CA) - 法官：Zervos JA - 判決日期：2025年2月24日 ### 案情摘要 本案涉及一宗保險詐騙案，六名被告被控串謀詐騙。被告均為AXA中國區保險有限公司（AXA）的僱員。詐騙手法是透過「轉保單」方式，向朋友或熟人提供免費保險以獲取個人資料，並在申請表上虛報財務顧問資料，誘使AXA批核保單並支付佣金和獎金。保單的每月或每年保費主要由D1支付，或由D4以現金支付一次或數次後便停止。此舉使被告能賺取佣金和額外獎金。在串謀期間，共有10份保單以此方式處理，導致AXA支付了約74萬港元的佣金和獎金。D1、D2和D4被定罪，而D3、D5和D6則獲判無罪。D2和D4就定罪和判刑提出上訴申請。 ### 核心法律爭議 D2就定罪上訴，質疑原審法官在處理證據方面的錯誤，包括其對D1借用銀行卡背後詐騙目的的認知、其在金融保險業的經驗以及其在錄影會面中的陳述。D4就定罪上訴，認為原審法官未給予其與D3相同的合理疑點，並錯誤應用了《Ghosh》測試。兩名申請人均就判刑提出上訴，質疑判刑時未充分考慮他們在串謀中的參與程度、D1的主導角色以及實際損失金額。 ### 判決理由 上訴法庭拒絕D2和D4就定罪的上訴申請。法官認為，原審法官對D2的定罪是基於對證據的分析和取捨，並無錯誤。D2作為金融保險業成員，應理解提供銀行卡的後果。對於D4，法官指出其情況與D3不同，D4作為高級僱員和單位經理，熟悉保險程序，應知悉其參與「轉保單」的行為。原審法官在應用《Ghosh》測試時並無錯誤，並已充分考慮了D4的辯護。法官強調，在大多數情況下，行為明顯不誠實時，被告會知道自己行為不誠實。然而，法庭批准D2和D4就判刑的上訴申請，認為他們就判刑有合理可爭辯的理由，包括他們在串謀中的參與程度、D1的主導角色以及實際損失的計算。 ### 引用案例與條文 本案引用了《Mo Yuk Ping v HKSAR》[2007] 3 HKLRD 750，確認香港法院在串謀詐騙罪中應用《Ghosh》測試。該測試包含兩個要素：被告行為是否根據誠實正直的普通人標準屬不誠實；以及被告本人是否意識到其行為根據該標準屬不誠實。此外，亦引用了《HKSAR v Muhammad Rizwan and Ors》[2019] HKCA 643，關於共同犯罪中參與者通常應承擔同等罪責的原則。本案亦提及英國案例《Ivey v Genting Casinos (UK) Ltd》和《R v Barton》，但指出香港仍沿用《Ghosh》測試。 ### 裁決與命令 上訴法庭拒絕D2和D4就定罪提出的上訴許可申請。然而，法庭批准D2和D4就判刑提出的上訴許可申請。法庭提醒兩名申請人有權向上訴法庭重新申請定罪上訴許可，但需注意可能產生的後果，包括在羈押期間損失的時間。 ### 判決啟示 本案重申了香港法院在處理串謀詐騙罪時，繼續沿用《Ghosh》測試來判斷不誠實元素，而非英國最新的《Ivey》測試。判決也強調了在共同犯罪中，即使參與者的角色不同，通常也應承擔同等罪責，但判刑時仍需考慮個別參與者的具體角色、主導者的影響以及實際損失等因素。對於定罪上訴，法庭會尊重原審法官對證據的分析和事實裁斷，除非有明顯錯誤。 --- ### 免責聲明 本摘要由人工智能自動生成，內容可能存在錯誤或遺漏，僅供參考，不構成法律意見。如需法律建議，請諮詢合資格律師。### Case Details - Case Name: HKSAR v Lam Tsz Him (林子謙) (D2) and Tsang Tsz Tong (曾梓朗) (D4) - Court: Court of Appeal (CA) - Judge: Zervos JA - Date of Judgment: 24 February 2025 ### Factual Background This case involves an insurance fraud where six defendants were charged with conspiracy to defraud. All defendants were employees of AXA China Region Insurance Company Limited (AXA). The fraud scheme, known as "diverting" policies, involved offering free insurance to friends or acquaintances to obtain their personal data, making false representations in application forms regarding financial consultants, and inducing AXA to approve policies and pay commissions and bonuses. Premiums were mainly paid by D1, or by D4 in cash, for one or several occasions before ceasing. This allowed defendants to earn commissions and extra bonuses. Over the conspiracy period, 10 policies were processed, resulting in AXA paying approximately HK$740,000 in commissions and bonuses. D1, D2, and D4 were convicted, while D3, D5, and D6 were acquitted. D2 and D4 applied for leave to appeal against both conviction and sentence. ### Key Legal Issues D2 appealed against conviction, challenging the trial judge's handling of evidential matters, including his appreciation of the fraudulent purpose behind lending his bank card to D1, his experience in the finance and insurance industry, and his statements in video-recorded interviews. D4 appealed against conviction, arguing that the trial judge failed to extend the same reasonable doubt afforded to D3 and incorrectly applied the Ghosh test. Both applicants appealed against sentence, contending that the judge did not adequately consider their level of involvement in the conspiracy, D1's dominant role, and the actual loss incurred. ### Ratio Decidendi The Court of Appeal refused D2 and D4's applications for leave to appeal against conviction. The judge found no error in the trial judge's findings regarding D2's conviction, stating that D2, as a member of the finance and insurance industry, should have understood the consequences of providing his bank card. For D4, the judge noted that his case differed from D3's; D4, as a senior employee and unit manager, was familiar with insurance procedures and should have known he was involved in "diverting" policies. The trial judge correctly applied the Ghosh test and adequately considered D4's defence. The judge emphasized that in most cases where actions are obviously dishonest, the defendant would know they were acting dishonestly. However, the court granted D2 and D4 leave to appeal against sentence, finding that they had reasonably arguable grounds regarding their level of involvement, D1's dominant role, and the calculation of actual loss. ### Key Precedents & Statutes This case cited Mo Yuk Ping v HKSAR [2007] 3 HKLRD 750, affirming that Hong Kong courts apply the Ghosh test for the offence of conspiracy to defraud. The test comprises two limbs: whether the defendant's conduct was dishonest by the ordinary standards of reasonable and honest people; and whether the defendant himself realized that what he was doing was dishonest by those standards. HKSAR v Muhammad Rizwan and Ors [2019] HKCA 643 was also cited, concerning the principle that participants in joint enterprise crimes usually share equal culpability. The judgment also mentioned the UK cases Ivey v Genting Casinos (UK) Ltd and R v Barton but clarified that Hong Kong continues to follow the Ghosh test. ### Decision & Orders The Court of Appeal refused D2 and D4's applications for leave to appeal against conviction. However, the court granted D2 and D4's applications for leave to appeal against sentence. The court reminded both applicants of their right to renew their application for leave to appeal against conviction to the Court of Appeal, but also informed them of potential consequences, including a direction for any loss of time spent in custody pending appeal. ### Key Takeaways This judgment reaffirms that Hong Kong courts continue to apply the Ghosh test for dishonesty in conspiracy to defraud cases, rather than the newer Ivey test from the UK. It also highlights that in joint enterprise crimes, while participants generally share equal culpability, sentencing should consider individual roles, the influence of dominant figures, and the actual loss incurred. For conviction appeals, the court will respect the trial judge's analysis of evidence and factual findings unless there is a clear error. --- ### Disclaimer This summary is AI-generated and may contain errors or omissions. It is for reference only and does not constitute legal advice. Please consult a qualified lawyer for professional legal advice.