看到坊間有律師討論長毛案的脫罪, 鼓吹律政司應該對長毛沒有申報收受了黎智英250,000元而被控公職人員行為不當罪後脫罪一事上訴, 嚇我一跳, 以為自己弄錯了, 於是今天把該案的判詞速讀一次。我相信這律師是不懂刑事案的, 也許只懂做申請佔領清場宣讀法庭文件, 然後繞場拍照。否則, 連控方不能對法官的事實裁斷作出上訴也不知, 就有點無知了。
原審區域法院法官李運騰這判辭, 寫得洋洋灑灑, 交足功課, 判辭中對各項法律觀點都作出充足分析, 儼然是一篇高院的判辭。以我猜測, 他應該很快可以上高院暫委, 這篇判辭, 是考核功夫的功課。控方對法官在案情事實上的判斷, 把合理疑點的利益歸於被告, 根本就不能以上訴來扭轉結果, 因為大原則是寧縱無枉。相反而言, 定了罪的被告反而可以由上訴庭重新審視案情事實而上訴得直。
當然, 如果李官要把長毛定罪, 我相信他同樣可以洋洋灑灑寫一篇。問題是法官不是要千方百計找理由把他定罪, 只要他覺得條友雖然古惑可疑, 佢代個黨收錢的講法並非絕無可能, 咁就唔應該釘。相反, 如果李官聽完吳文遠含糊不清的證供, 覺得是鬼話連篇, 既不可信也不可依賴, 那就另計。這就很多時要看法官對事實的推論。控方可對法官事實裁斷的案件上訴可謂絕無僅有, 譬如法官明顯搞錯了案情事實而採用錯誤的法律觀點。
在判辭的第105段, 李官分析了構成合理疑點的理據, 而並非法官只憑自己的喜好和印象(impression)來判斷。該段這樣寫:105. As regard the nature of the 1st Payment, with respect there is force in the closing submission of Mr Pun, SC (who argued this part of the defence for the defendant) that there were similarities between that payment and the other payments from Mr Lai in that none of them had stayed in the defendant’s bank account. To the contrary, all of them had been withdrawn in their entirety almost immediately upon receipt. The proceeds of the 1st Payment were withdrawn by instalments within a few days upon receipt and transferred to Ms Tong who, according to Mr Ng, was helping the defendant in matters relating to the NTE Branch of LSD. The proceeds of the 2nd Payment were paid into the bank account of LSD four days after it was received by the defendant. There is evidence before this court, not contradicted by the prosecution, that the proceeds of the 3rd Payment were used for the legal costs of LSD members. As regards the 4thPayment, the cashier order in the defendant’s favour was subsequently replaced by a cashier order in favour of LSD. Before that, there was evidence that the defendant had tried to pay his cashier order into the bank account of LSD. Therefore, there is a discernible pattern which provides some circumstantial support to Mr Ng’s assertion that the 1st Payment, even though having been paid into the defendant’s account, was in fact intended for LSD and used for its purposes. On the other hand, there is no evidence to contradict Mr Ng’s evidence that the 1st Payment had been used for the purpose of LSD.
那些要求律政司上訴的人, 可惜得把口講(甚麼破壞香港廉潔形象、黑金政治等), 不如實際寫個上訴理由出來, 讓大家觀摩一下。