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大狀執業被拒的判辭

4天前我寫了大狀執業被拒一文, 司法機構今天上載了有關判辭: RE “A”。在《大狀執業被拒》一文的留言, 除了對A君不能執業的正反意見外, 也涉及對一些有刑事案底仍然能夠執業的大律師的評論。我剛看完判辭, 我同意陳官(Anthony KK Chan Esq)的判決, 除非A君可以上訴推翻陳官的判決, 否則他入行無望。我相信寫這篇也會引起議論, 其實這是好事, 看法無絕對的對與錯, 最緊要是有客觀抒發意見的平台。

不少人舉了資深大狀Coleman及在南丫島偷胸圍內褲的馬大狀曾被定罪, 之後還可以執業(馬大狀停牌30個月後復牌), 而A君卻連申請執業也被拒, 視之為不公平對待的例子(所謂大細超)。如果以此指責大律師公會大細超, 我覺得不公平, 因為大律師公會連A君申請執業也不反對。如果說大細超, 大概矛頭直指反對A君執業的律政司。如果原本已是大律師, 被紀律處分停牌, 停牌多久律政司沒有發言權, 停完就復牌, 恐怕律政司也插不到手, 以此推斷就不能指責律政司大細超了。極其量只能說A君不能執業, 是一件不公平的事。

從判辭看, 判決本身講不上不公平。法官先以「公眾利益」(public interest)着眼, 這一點判辭第33是概覽:
Public interest
38. First and foremost, the admission of a member to the Bar involves a matter of public interest. Public interest is generally accepted as paramount, and there can be no exception in this case. I believe that there are 2 aspects under this head: (a) public confidence in the Bar; and (b) the trust and confidence which a member of the Bar commands from the court and fellow members of the legal professions (both the HKBA and the Law Society).
繼而要看的是「改過自新」
Reformation
64. The second concern of the SJ is the total lack of remorse by the Applicant over the crime he committed.

65. Whilst it may be said that the Applicant’s appeal to the High Court and the CFA were matters of exercising his constitutional right, the evidence before the court does not show that he has in any way accepted his responsibility. This is highly material on the question whether the Applicant has reformed from his past.

先前有報章報導講A君對非禮罪一事已有悔意, 那其實只是A君3位師傅其中一位在推薦信所講, A君自己就自始至終都否認有犯罪, 這又引伸到陳官質疑他的悔意及誠信(因為他原先有些資料沒有披露)。陳官對大律師公會處理這件事的手法頗有微言, 對A君另一位批評非禮罪誤判的師傅就不止微言, 而是大不以為然, 判辭為證:

68. However, looking at the material emanated from the pupil masters, one of them had provided a standardised letter of certification and a very short email confirming his view after the disclosure of additional material by the Applicant. One of them provided 2 letters in addition to the certification and confirmation. In those letters, the pupil master expressed the view that the Applicant has managed to rehabilitate himself. The third pupil master had provided 2 letters of “feedback” as well as the certification.

69. I am much troubled by one of the feedback letters. In that letter, the writer stated that during the pupillage of the Applicant he had asked for and read the full transcript of the trial of his pupil. He had “always been persuaded that [the Applicant was] wrongly convicted”, and he formed the view (after reading the skeleton arguments for the appeals) that “the appeal courts failed to grasp the appeal points”. Further, the writer felt very sorry that the Applicant “had fallen victim to our imperfect criminal justice system”.

70. The court would not attribute to the Applicant the view expressed by another person. On the other hand, it is highly unlikely for the Applicant not to have discussed his conviction with the writer, and it is inconceivable for him to have shown any acceptance of his conviction in the course of such discussion. Mr Grossman did not endeavour to suggest otherwise.

71. The writer was free to express his view and to criticise the court. What is disturbing is that he might well have encouraged the Applicant to believe that he was wrongly convicted and not to accept the criminal justice system. That does not square with the rehabilitation of the Applicant.

批評法庭錯誤定罪, 後果全部落在A君身上。從現實角度看, 被告不服定罪向高院上訴, 上訴被駁回, 繼而向終院上訴, 終院上訴委員會駁回上訴, 理由是it disclosed no reasonable ground of appeal, 去到那地步, 師傅還要白紙黑字講A君是不完善刑事司法制度的受害者(“had fallen victim to our imperfect criminal justice system” ), 豈不是由裁判官批評到終院法官, 大不敬的死罪啊, 你估寫blog, 你以為茶餘飯後吹水, 咁講咪即係對司法制度不滿 (馬鹿一定答嘴)。這一刀斬落嚟, 一撥就擘咗落A君度。我自己閱讀A君非禮案的上訴判辭, 我都覺得無釘錯。當然, 換了是個放官, 原審都可以acquit on benefit of doubt, factual finding, 點講都得, 有證據也可以無視證據存在。我能力有限, 我就看不到釘錯的地方。

如果A君在上訴至終院失敗之後曾經表示及表現悔意, 這次申請執業的結果可能會改寫。又如果他真是寃枉的, 所以他堅持自己無做過, 這刑事司法制度真的不完善……我不懂再講下去了。衡量一個人的誠信, 靠日常觀察, 鑑貌辨色, 其實都不足夠。有些極度狡猾的人, 會把自己包裝得誠懇和善, 笑容可掬, 沒有特別事發生就完全露不出狐狸尾巴來, 看人是高深學問。我最後講這些並不是講A君, 我根本無興趣知他是怎樣的人, 我只在講人生閱歷。我寧可對着個為正義而面黑的人, 好個笑裏藏刀, 道貌岸然, 滿口天主上帝的人。面黑的未害你你都預先知道, 笑面的害了上帝上帝也懵然不知。
大狀 執業 被拒 拒的 的判 判辭
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7警案保釋等候上訴的判辭

忙了一整天, 吃完晚飯才有閒暇讀判辭, 楊副庭長批准7警案其中3人保釋等候上訴的判辭上載了。看了判辭, 我有點意見。這件案的上訴還有兩關要過, 第一關是上訴許可, 第二關是上訴正審。在楊大人席前的課題是保釋申請, 保釋申請會考慮定罪被推翻的機會, 也會考慮判刑是否恰當。在考慮的過程中, 以免給上訴人錯誤的印象, 或者對處理正審的法官在看法上的壓力, 考慮保釋時一般都不會講得太多。楊大人對判刑方面似乎講得太明確, 他這樣講:

45. Without in any way underestimating the seriousness of what the applicants and his colleagues did, it is, in my view, highly arguable that the 2 ½ year starting point, 6 months off the maximum sentence, adopted by the judge is manifestly excessive and that a significantly lower starting point should be adopted.

講判刑‘highly arguable’無問題, 表達可爭議量刑起點‘a significantly lower starting point should be adopted’, 是否講過了界線呢?  以Dufton原本的兩年半量刑起點作比對, 怎樣才算是‘significantly lower’? 兩年抑或兩年3個月, 都不夠significant, 分分鐘以1年半為起點才算了。若以18個月為判刑起點, 又有甚麼求情因素呢? 楊官列了一籮, 集中批評曾健超的行為, 不是嗎:

41. As pointed out to the judge, police officers, in carrying out their duties, had to work very long hours without proper rest and they were also subject to unwarranted and serious insulting remarks as well as violent behavior from some of the protestors of whom Tsang was perhaps an infamous example.

42. The applicants and their colleagues were acting under immense stress in the face of the violent and provocative behavior of the protestors, many of whom were oblivious to the fact that police officers were there to maintain law and order, and to safeguard the well-being of the society as a whole.

43. When police officers were trying to clear the protestors, having removed the barricades set up by them, Tsang splashed liquid of an unknown nature onto them. Tsang’s arrogance and stupidity, as demonstrated by his unsavoury, highly offensive and provocative behaviour, unfortunately led to an equally senseless response from the applicants, who together with the other defendants had decided to teach Tsang a lesson by taking him to the substation to assault him. It is in such circumstances that the court has to assess a suitable sentence.

警察長時間超時工作, 面對不必要辱罵, 還要應付曾健超這刁民的表表者, 這些刁民行為粗暴, 言辭使人惱怒(所以抵打一鑊, 口脗好似白宮發言人為小學雞總統辯護, 話佢喺twitter鬧記者因為被provoked)。楊大人以5個形容詞來描繪曾健超有幾抵打:

Tsang’s arrogance and stupidity, as demonstrated by his unsavoury, highly offensive and provocative behaviour...

7警只是equally senseless。楊官又幾貼地喎。

Dufton判7警入獄時, 在警察面對佔中長期超時工作壓力及定罪後會被撤職的後果的描述, 只有這一段, 一句批評曾健超的說話也沒有:

18. Taking into account the circumstances prevailing at the time and the great stress the police were under in handling the Occupy Central movement; that the defendants, all of clear record, have served the community as police officers; that the conviction will result in all the defendants being dismissed from the police force and the likely loss of any pensions; and the stress caused while waiting for trial, I reduce the sentence by 6 months to 2 years imprisonment.
(Reasons For Sentence DCCC 980/2015)

Dufton的判刑理由, 重點集中於7警行為使警隊蒙羞及打擊香港聲譽:

13. The defendants have not only brought dishonour to the Hong Kong Police Force they have also damaged Hong Kong’s reputation in the international community, the assault having been widely viewed around the world and reported as front-page news in a number of countries[5].

14. Although Tsang had broken the law for which he was subsequently sentenced to imprisonment[6] and the defendants were at the time acting under immense stress, there was no justification for taking Tsang to the substation and assaulting him.

15. The defendants, serving police officers who in the execution of their duty took Tsang to the substation to assault him; the multiplicity of the injuries sustained by Tsang as a result of the assault; and the damage to Hong Kong’s reputation make this, in my view, a very serious case.

16. I am satisfied a term of imprisonment is appropriate. Tsang was defenceless, his hands handcuffed behind his back with plastic ties. The assault was a vicious assault, in particular the first thirty seconds when Tsang was dumped on the ground, stabbed, stamped on and repeatedly kicked. Most fortunately Tsang did not suffer more serious injuries.

當然, 這課題有得寫續集, 到正審時看下是否楊官主理, 最終的判刑會不會appeal against sentence allowed to the effect of an immediate release。

法官的對錯, 只能用官階來衡量, 只有坐上面的可以話下面錯, 除此之外, 只有草民可以指指點點了。
警案 保釋 等候 上訴 的判 判辭
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