.......
本案的被名被改判監禁, 並不涉及「具有重大而廣泛的重要性的法律論點」, 那麼可以用「顯示曾有實質及嚴重的不公平情況」(substantial and grave injustice) 作為上訴理由嗎? 我恐怕不能。終審法院在蘇耀峰(音譯)一案, 解釋了何謂substantial and grave injustice,
THE "SUBSTANTIAL AND GRAVE INJUSTICE" TEST
6. Access to this Court in criminal cases is governed by s.32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, which provides that:
"Leave to appeal shall not be granted unless it is certified by the Court of Appeal or the High Court, as the case may be, that a point of law of great and general importance is involved in the decision or it is shown that substantial and grave injustice has been done."
7. This Court's primary role in the administration of criminal justice is to resolve real controversy on points of law of great and general importance. For this Court does not function as a court of criminal appeal in the ordinary way. However the "substantial and grave injustice" limb of s.32(2) exists as a residual safeguard to cater for those rare and exceptional cases in which there is a real danger of something so seriously wrong that justice demands an enquiry by way of a final criminal appeal despite the absence of any real controversy on any point of law of great and general importance. To obtain leave to appeal under this limb, an appellant has to show - as this appellant had shown - that it is reasonably arguable that substantial and grave injustice has been done.(So Yiu Fung and HKSAR FACC 5/1999)
終審法院並非一般的上訴庭, 審理的案件基本上是涉及重大法律議題, 其次才是實質和嚴重不公, 考慮的焦點是定罪是否穩妥, 而不是審理刑期或申請保釋那類上訴。故此, 這件案的被告根本再沒有途徑就判刑上訴。
除此之外, 終審法院今天頒布了另一篇判辭, 涉及新界東北衝立會案第一及第二被告(梁曉暘及黃浩銘)的上訴, 已講明不批出他們非法集結罪的上訴許可,
1. At the hearing, we dismissed the applications of both applicants for leave to appeal against their conviction for unlawful assembly, but granted the first applicant’s leave application in respect of his conviction under section 19(b) referred to below. These are our reasons for so doing.......
4. In the course of a demonstration held on 13 June 2014, protesters rushed at the entrances to the Legislative Council (“Legco”) complex and, using implements like bamboo poles and metal Mills barriers which had been placed to bar entry, attempted to force their way inside by prising open or battering in the glass doors. Considerable violence was used and a Legco security officer was injured, sustaining fractured toes caused by a falling Mills barrier. Damage costing $200,000 was occasioned to property at the entrances attacked.
5. The unlawful assembly convictions were based on both applicants’ participation in this violent behaviour. Their conduct plainly gave rise to a reasonable apprehension by the persons inside the complex of a breach of the peace and undoubtedly constituted an unlawful assembly under POO section 18.[4](FAMC No. 18 of 2017)
再從這觀點看, 終審法院都覺得非法集結無釘錯, 好明顯就毫無上訴空間了。這13個被告的監坐硬了。