7. The reason I am taking the course of adjourning these proceedings into chambers open to the public, giving reasons is this: that there has been some publicity recently about the use of section 51 of the Mental Health Ordinance, and it is a section that does merit some close reading, and what becomes apparent on reading it is that the power to make a remand under that section only arises where it may be or is alleged that the Defendant is a mentally-incapacitated person and the purpose of the remand is for observation, investigation and treatment.
|Chapter:||221||Title:||CRIMINAL PROCEDURE ORDINANCE||Gazette Number:|
|Section:||9J||Heading:||Review of refusal of bail or conditions of bail|
(2) On the hearing of an application under subsection (1), a judge may by order confirm, revoke or vary the decision of the District Judge or magistrate, and may make such other order in the matter including an order as to costs as he thinks just.
4. I granted bail yesterday, and what I did was replace the order the magistrate had made with a new order pursuant to my powers under section 9J of the Criminal Procedure Ordinance, Cap. 221. I made it a three-week remand and not a two-week remand, and I said the remand would be on unconditional bail, and the reports I requested were a psychologist’s report, which is going to be organised by the Social Welfare Department, who would also be responsible for the community service report and the background report.
5. I thought carefully about what my powers were in regard to dealing with the reports. Section 9J of the Criminal Procedure Ordinance allows me to confirm, revoke or vary the decision of the District judge or magistrate, and it says I may make such other order in the matter, including orders as to costs, as I think to be just, and it is that wide power that I have used here, because I think the order I have made now is the just one.
我完全不同意他闡釋9J的看法，9J賦予高院法官干預被告的擔保及擔保條件的權力，及衍生出來的堂費問題，而並不包括其他權責。9J的標題也說明是Review of refusal of bail or conditions of bail，再者索取精神報告，本身也不是一種擔保條件，高院法官應該無權干預。不能罔顧法律原文的大前題，而把such other order的意思無限放大。我覺得賴盤德法官為了干預原審裁判官的命令，而曲解了法律釋義，如果such other order蘊含無限權力，為何不乾脆直接判罰被告。上級法院肆意批評下級法官的判決，造成了很多裁判官，尤其是暫委裁判官，索性用不同理由判被告無罪，好過上訴時受到批評。