Penrith 市長Kevin Crameri去年11月外訪東南亞3週,在中國期間鬧出性醜聞,現在停職候查。據悉尼晨報今天的報導,這老兄違反了市議會22項行為守則,下場堪虞。報導說

Mayor's China boob: fancy a threesome?

Kevin Crameri, awarded an OAM in 1999 for services to local government and the community, has stood down as mayor of Penrith - and faces possible suspension - following an investigation into allegations he behaved inappropriately on an overseas business trip.
Mr Crameri was on a three-week trip to East Asia last November, when he allegedly propositioned an interpreter for a threesome and commented on the chest sizes of Asian women.

An independent report, which will be considered at the Penrith Council meeting tomorrow, found he breached the council's code of conduct
22 times, including holding an interpreter's hand when he climbed the Great Wall of China and "cuddling" women who wanted photos taken with him. (Sydney Morning Herald 27/2/2011)

看看這老哥的尊容,晒乾了的新會柑皮,憑甚麼叫人玩3P?大概是鄉巴佬(country pumpkin)世面見得太少,一心以為參加了東南亞色慾團,失禮死人,有辱國體。欲睹皺皮柑真面目,自己去google search吧。





以上的新聞是東方日報2月25日的報導。讓我也凑熱鬧,談論公共交通工具上發生的非禮案。這類非禮案最常見的是在地鐵及巴士上發生。怎樣才算是非禮呢?不如引用香港上訴法院時常引用的英國上議院合議庭(House of Lord) 的R v Court〔1989〕案例中,Lord Ackner的介定,

For the defendant to be liable to be convicted of the offence of indecent assault, where the circumstances of the alleged offence can be given an innocent as well as an indecent interpretation, without the prosecution being obliged to establish that the defendant intended to commit both an assault and an indecent one, seems to me quite unacceptable and not what Parliament intended.

I, therefore, conclude that on a charge of indecent assault the prosecution must not only prove that the accused intentionally assaulted the victim, but that in so doing he intended to commit an indecent assault i.e. an assault which right-minded persons would think was indecent. Accordingly, any evidence which tends to explain the reason for the defendant's conduct, be it his own admission or otherwise, would be relevant to establish whether or not he intended to commit, not only an assault, but an indecent one.

杜溎峰暫委法官在香港特別行政區訴楊立志,HCMA497/2005一案中,就猥褻侵犯(俗稱非禮)罪的元素,概括了Lord Ackner的講法:

「5. 要證明被告人犯上猥褻性侵犯,控方須證明(一)被告人做了罪行作為,即侵犯受害人,(二)有意圖侵犯受害人及(三)當他侵犯受害人時存有猥褻意圖。這意圖為一名正常思想的人會視該侵犯與其總體的情况為猥褻,及該侵犯者存有這知悉或罔顧一位正常思想的人會否視該侵犯為猥褻,仍進行侵犯受害人。」




不要誤以為地鐵及公共交通工具上發生的非禮案是近年才發生的事,早在1991年上訴庭已經應律政司判刑覆核申請對地鐵非禮定下量刑指引。在AG and Wai Yan Shun CAAR17/1990,上訴庭對日益猖獗的地鐵非禮,定下初犯者判監14至28日的阻嚇指引,第二次犯案則判監2至6個月。

In our view, given the prevalence, for a first offence the "clang of the prison gates" should now be the normal sentencing option. A period of imprisonment between 14 and 28 days, depending on the place in the scale warranted by the facts would not be interfered with. For a second offence, sentence could well be between 2 to 6 months' imprisonment. (paragraph 28)

有關判刑指引一直沿用至今。非禮屬例外罪行excepted offence,不能判處緩刑。上訴庭也不排除在罕有的情況下,可判罰款。

假若是男性面對在公共交通工具上非禮的指控,又應該怎樣反應呢?沒有做過當然要否認。在人多擠逼的車廂,盡可能不要靠近女性,尤其避免下身的接觸。若果是由於行車顛簸引致,第一時間應該挪移避開。高等法院賴盤德法官(Peter Line) 在HKSAR v Chu Wai Ching (朱偉清) HCMA163/2008的非禮上訴案中講了這一段精警又幽默的話,

The final matter I deal with is this. It seems to me that most, if not all men in circumstances where you are pushed up against people in MTR trains are very conscious about touching. There is a reluctance for the sort of touching that took place here between lower limbs especially so if you happen to be standing right by and close to a young lady. Everyone knows that men do take advantage of such situations. If there is an accidental touching, most men who do not want to exploit it withdraw immediately and brace themselves and hold themselves in a way that would avoid any misunderstanding. I would suggest that is a common enough experience that most men have had on the MTR. (paragraph 13)












Before: Deputy High Court Judge Line in Court

Date of Hearing: 27 March 2008

Date of Judgment: 27 March 2008




1. This is an appeal against a conviction for indecent assault. The offence was alleged to have been committed on an MTR train between Admiralty and Tsim Sha Tsui, in the evening rush hour when the train was crowded.

2. The first prosecution witness who was called at the trial was a 27-year old female beauty consultant. The Appellant had stood behind her on the platform, waiting for the train. They both got on and it is common ground that they were very close to each other. They were in the view of the second prosecution witness who was called, who was a policeman on plainclothes duty. The policeman told the trial court that he observed the actions of this Appellant whereby he pressed the lower part of his body, his legs, against the young lady beauty consultant and that he did so in a way that prompted the policeman to arrest him when the train got to Tsim Sha Tsui.

3. The first prosecution witness described how she had felt the Appellant pressing against her. She described the contact as being between his lower body and hers; in particular, his legs sandwiching hers for a part of the time on the journey. She thought to herself, “How could it be that I am being indecently assaulted?” but she did not make any complaint out loud when it occurred. When the policeman asked her what had happened after the arrest of the Appellant at Tsim Sha Tsui, she said that she had felt uncomfortable. It was suggested to her that she had not felt herself to have been indecently assaulted, but she rejected that.

4. The trial magistrate believed the evidence of PW1 and PW2 and he rejected the evidence given by the Appellant along the lines that it was a crowded train and any physical contact between the two of them was merely accidental and not intentional.

5. The Appellant is unrepresented before me today, but has suffered nothing to his detriment thereby because he made some very clear and well argued submissions. He raised four points. The first point concerned discrepancies that existed between the evidence of the two prosecution witnesses. The magistrate was aware of them because he has set them out in his statement of findings, and he judged that they were not such discrepancies as would indicate that the witnesses were either untruthful or unreliable.

6. I agree with that assessment. Whether or not, for instance, the victim put her hand on a handrail was a matter of insignificant detail, which one would not necessarily commit to memory. Describing the actions of people in circumstances such as this is a process that is bound to lead to different descriptions of the same act by two honest and reliable witnesses, and discrepancies about whether there was one or two movements at a particular stage are only to be expected.

7. The second point the Appellant made was that the victim did not actually see her leg being sandwiched by the Appellant. It was only something she felt. The fact is that the contact down there was observed by the policeman. If there is such physical contact, a witness does not have to see it to be able to say ,reliably, that she felt it. The fact that she did not see it does not raise any doubt in my mind.

8. The third point was made concerning the significance of the clothing that was worn. In particular, the Appellant points to the fact that the young lady wore a jacket that covered her buttocks and that he had on a 1½-inch thick waist-bag around his waist. Whilst those are matters to be borne in mind, they obviously could not of themselves prevent what those prosecution witnesses described.

9. The fourth point concerned the crowding of the compartment and was really a point designed to say that any touching could have been accidental. The magistrate was alive to that and I like to think I am, too. There is a world of difference between accidental contact and something that is deliberate in these circumstances and it is easy to observe it, though it is quite difficult to describe in words. An important matter in this regard was that the policeman described there being space behind the Appellant; in other words, there was no need for the physical contact, certainly of the duration that was described by the witnesses.

10. The prosecution’s evidence below was strong and it was strong because the young lady was able to confirm what it was that the policeman had observed. Both of them insisted that this was an indecent assault. It is the force of that point which drove the Appellant before me today to argue that it was because the policeman drew her attention to his allegation of indecent assault that she came to think that what had occurred had been indecent, and that she had not thought it at the time.

11. The magistrate had the advantage over me of having actually seen the young lady in question. It would be a wicked thing to do to invent a false allegation deliberately against a man in these circumstances, and she was adamant that, at the time, she thought about what was happening in terms of it being an indecent assault.

12. The point that she therefore was somehow influenced by later events to take a different view of what had occurred at the time is one I therefore reject.

13. The final matter I deal with is this. It seems to me that most, if not all men in circumstances where you are pushed up against people in MTR trains are very conscious about touching. There is a reluctance for the sort of touching that took place here between lower limbs especially so if you happen to be standing right by and close to a young lady. Everyone knows that men do take advantage of such situations. If there is an accidental touching, most men who do not want to exploit it withdraw immediately and brace themselves and hold themselves in a way that would avoid any misunderstanding. I would suggest that is a common enough experience that most men have had on the MTR.

14. That was not the case here and a very experienced magistrate saw and heard the parties. He had no doubt on the evidence and gives good and unassailable reasons why in his statement of findings. I re-hear the matter on the material the Ordinance directs that I should have regard to. Despite the clear and helpful submissions of the Appellant in person, I share the view of the magistrate. The appeal is dismissed.

(P Line)
Deputy High Court Judge


Mr Frederick Chung, Senior Government Counsel of the Department of Justice, for the Respondent

Appellant CHU Wai- Ching (朱偉淸), in present



保安局贊同修例 10歲男童可控強姦


以上一則新聞是明報今天的報導。法律改革委員會在2010年12日13日發表了名為The Common Law Presumption that a Boy under 14 is Incapable of Sexual Intercourse的報告,有關議題不具争議性,故此在發表報告之前並無諮詢公眾。

相關的普通法來自R v Phillips (1839)。在R v Waite(1892)Lord Coleridge CJ 重申"a boy under fourteen is under a physical incapacity to commit the offence [of rape]"。現在的兒童身體及思想都比以前早熟,所以男童14歲以下無性交能力的推定,絕對不合時宜。現行的法律並不容許控方提出推翻這推定的證據,所以20109月在東區醫院一名13歲男童強姦5歲女童一案,就算在醫學上能夠證明他的性能力,也只能控以非禮罪。倘若廢除了這推定,還有另一門檻。10歲以下的孩童,法律上受到不可能被定罪的保護,不會被檢控。In Hong Kong, section 3 of the Juvenile Offenders Ordinance (Cap 226) fixes the minimum age of criminal responsibility as 10 by providing that "it shall be conclusively presumed that no child under the age of 10 years can be guilty of an offence."

1014歲的孩童,則受到無犯罪能力推定(doli incapax)的限制。無犯罪能力推定意思是涉案兒童先被推定沒有犯罪能 但如果控方能夠在無合疑點下證明, 該兒童在犯罪時清楚知悉自己的為是嚴重錯誤的, 而非純屬頑皮或是作劇, 則作別。假如這項推定被推翻, 涉案兒童要完全承擔刑事責任,也可因此而被案檢控及定罪。In respect of a child aged between 10 and 14 years a rebuttable presumption of doli incapax applies. That means that the child will be presumed to be incapable of committing a crime unless the prosecution can prove beyond reasonable doubt that, at the time of the offence, the child was well aware that his or her act was seriously wrong, and not merely naughty or mischievous. If the presumption is rebutted, full criminal responsibility will be imposed on the child, who may then be charged, prosecuted and convicted.













The judge considered the evidence and the arguments in the case in meticulous detail. It has to be observed that on a number of occasions in the judgment the judge repeated that he was forced to the conclusion that the first defendant was untrustworthy and a liar, tailoring his evidence to suit his case as he went along. One aspect that also clearly impinged on the judge’s mind in that regard, as he mentioned it more than once, was a Georgetown University document which referred to the first defendant as having received a university education in Canada in biological engineering. That was false and the judge held that the first defendant had connived in the false pretence. (para 8)


The first defendant has persisted in pursuing a thoroughly dishonest case. In doing so, he has abused the process of the court.

所以判以懲罰性堂費costs on an indemnity basis.



保釋等候上訴Bail Pending Appeal

46歲被告曾永祥,去年7月1日,駕車載一名失戀的15歲女生,到西灣河鯉景灣海旁,藉詞開解女生,擁抱及強吻對方,女生後來通知校方報警。早前被裁定非禮中四女生罪名成立,今早被判入獄6個月,被告的律師隨即提出上訴,並要求以20萬元保釋,等候上訴,被裁判官拒絕。這非禮案並非我在《男教師非禮之一及之二》所講的那一宗,那一件案還沒有審結。違反教師對學生應有的誠信(breach of trust),判監半年,絕不過重(not manifestly excessive)。

現在要講的是保釋等候上訴(bail pending appeal)的法律原則。法律原則很簡單,基本上依據英國上訴庭在R v Watton(1979)68 Cr App R 293裏所講

"... bail is granted only where it appears prima facie that the appeal is likely to be successful or where there is a risk that the sentence will have been served by the time the appeal is heard."

即是上訴成功的可能性及聽審上訴時會否服刑完畢,另外也會考慮被告一旦獲得保釋,會否棄保潛逃(likelihood of absconding)。






我不知有沒有獨立證人持不同的講法,事發經過若果真的像女導遊所講,她沒有理由接納簽保守行為。她應該否認控罪,以自衛self defence作抗辯理由。當初看到一名大律師同時代表雙方,已感到奇怪。案件本身兩方面有不同講法,同一個律師沒可能兼顧雙方利益,存在利益衝突難以避免,謝偉俊說是他安排的,我還以為雙方在錄口供時均承認打架,所以要求控方撤銷控罪,自願簽保。要知道謝偉俊以前是大律師,debar 轉做solicitor不足20年,他以前跑慣刑事案,沒道理不知有conflict of interest。不禁使我質疑林如蓉一方的講法。若果事實真的像報章報導,那麼律師的處理手法頗有商榷之處。「閹」客當然可惡,打人卻是違法的。法治可貴的地方是,可惡的人也受保障。


Edward Christopher Harris

The writing of the blog about Sally Bercow yesterday brought back some memories of the Christopher Harris case 20 odd years back.

In 1988, Christopher Harris (Harris) was a Senior Crown Counsel with the Attorney General's Chambers (AGC). He was the second in command of the Vice Team mainly responsible for advising the police and Customs and Excise on vice, drugs and gambling related contraventions. He was obviously a psychopath and indulged himself in a lot of sexual fantasy. His job related contact with the vice materials might attibute to his devious behaviour. It is not a matter I am in the position to comment. I do not know him personally.

In November 1988, while his wife was away from Hong Kong, Harris patronized the escort agency and asked for a western girl about 16 years of age to be sent to his flat. He also requested the girl to wear a white underwear. The girl who went to his flat was Nicole Marie Louise McKenzie (McKenzie). Matters of a sexual nature took place at that meeting, short of intercourse. There was a good deal of sexual talk. McKenzie was paid for her services and those of the escort agency by credit card. (Oh my god! How stupid it was to use credit card.)  There were difficulties in obtaining payment and McKenzie telephoned Harris for further information about his credit card. Harris had a discussion with McKenzie in the course of that conversation in respect of something he wanted and which she had and requested her to go to his flat again. This McKenzie was unable to do. There was explicit talk of a sexual nature relating to young girls. Harris spoke of the rape of abducted young school girls. McKenzie was shocked. She told a friend about it and it was decided to tape any further telephone conversations with Harris. When McKenzie telephoned him again in connection with the credit card, she herself taped that conversation on a micro-cassette recorder.

McKenzie left Hong Kong on holiday on 30th November and while she was away there was a police raid, in connection with other matters, upon her flat. Among the items seized was the micro-cassette tape and also McKenzie's answering machine which had recorded on it a message left by Harris.

Some time later, as the items seized did not involve the actual investigation then in progress, the tape was played and the Police Special Investigation Unit (SIU) became involved. (SIU was a special unit most people had not heard of. It was responsible for collecting information about homosexual and devious sexual behaviour of people, espcially Government officials). Proper tape recording was then arranged for any conversation which Harris might have with McKenzie or of messages left by him. McKensie had obviously succumbed to pressure to co-operate. There were several recorded conversations and also recordings of messages left by Harris.

On 21st April a meeting took place in Central at which McKenzie introduced to Harris an undercover police officer To Wing Lam (To)(Subject of the first charge). That meeting was tape recorded. In the course of it Harris asked To to procure Caucasian girls under 16 years of age for the purpose of sexual intercourse. The girls could be willing or unwilling and a payment of two to three thousand dollars which was proposed by To was agreed to by Harris. There was explicit sexual talk.

On 24th April 1989 McKenzie telephoned Harris. She told him that the necessary arrangements were being made by To and that a meeting was to take place between them on 27th April after which Harris would be taken to a hotel room where a girl aged 13 to 14 years would be provided for the purpose of sexual intercourse. In the course of that conversation Harris made particular reference to a girl aged 12 whom he would later identify and he desired her procuration for the same purpose. Hence, the second and third charges.

On 26th April McKenzie postponed the meeting informing Harris by telephone. On 1st May Harris left a message on McKenzie's answering machine enquiring if the arrangements were any further forward.

Meanwhile, on 26th April 1989 the police handed their investigation file to the then Acting Director of Public Prosecutions. The AG (Jeremy Matthews) was informed and discussions took place as to whether criminality was involved. Since Harris was a member of AGC, outside counsel advice was necessary to show impartiality. The AG decided to seek the advice of leading and experienced counsel at the private Bar  The questions to which he required an answer were first: did the facts amount to a crime; and second: if so was there sufficient evidence to mount a prosecution.

The police file was delivered to counsel on 27th April with instructions requiring his opinion on those two issues.

On 1st May counsel gave his opinion that no criminal charges could properly be laid on the basis of the material submitted to him. The AG considered that advice, as he considered the advice of members of his own Chambers, including that of the substantive Director of Public Prosecutions. On the same day he decided that there should be no prosecution.

On 3rd May there was a meeting between Harris, the AG and the DPP. Harris was told that there would be no criminal prosecution and he was further told that if his conduct had been found to amount to being criminal then a prosecution would have been brought. He was told that his position in Chambers was untenable. Harris' services were later terminated by mutual resolution of contract. I heard at that time the AG promised to give him prosecution work after he had gone into private practice.

On 4th September 1989 a form of trial by newspaper began. There would appear to have been deliberate leaks of matters contained in the police investigation file. The case hit the front page of SCMP for a week. I believe it was someone in SIU feeling aggrieved for the non prosecution of Harris deliberately leaked the evidence. Before it came out on SCMP, I was told by one of the reporters something exploding was to erupt and I was told to remember to buy SCMP. The AG took further advice on the issue of criminality and a second opinion was sought from the same leading counsel. On 14th September counsel received a new set of instructions which asked him to consider specifically the inchoate offence of incitement - an unusual charge. On 18th September counsel's second opinion was delivered. That contained the advice that there was a prima facie case of inciting to procure underage girls for the purpose of unlawful sexual intercourse.

On 28th September the Acting DPP gave his advice to the AG. On 2nd October 1989 the AG had a further meeting with members of his Chambers, considered all the opinions and advice which had been placed before him and made the decision to prosecute. That decision was made public in the Legislative Council by the AG on 18th October 1989.

Harris was subsequently charged and convicted of one offence, i.e. Inciting to Procure Woman Under the Age of 21 for the Purpose of Unlawful Sexual Intercourse. He was sentenced to 18 months imprisonment. He appealed the conviction mainly on the ground that the AG promised not to prosecute and later changed his mind. Harris argued that it was abuse of process. The appeal was dismissed. The Bar Association applied to have his name struck off from the bar list. After serving his sentence, he went back to UK. I did not keep track of him.

Unwittingly, the Acting DPP who gave advice to prosecute Harris was Warwick Reid who was subsequently arrested by the ICAC for unrelated corruption offences. He fled to the Phillipines. I wrote about him in another Chinese article called 從殺貪官說起. Shortly afterwards, the AG was also in the limelight for his extra-marital affairs with his Chief Information Officer Ms Gueterres. The AG later divorced his wife and married Gueterres. Most of the people at that time were grieving for the Tiananmen Massacre or busy filling forms for migration. The storm in the legal circle might have slipped from their eyes. Without the leak to the newspaper, Harris could have been practising in HK until he had run out of fantasy. The fourth estate can be powerful and lethal.

(The facts of the Harris case are mainly extracted from the appeal case R v Edward Christopher Harris CACC72/1990, otherwise from the remnants of my fragmentised memories. Reminiscence of the good old days can be very deceptive. Subjective and selective memory of facts interwined with reality can tint what acutally happened into fiction.)


Storm in a Bedsheet 床單裏的風波

英國下議院議長(Speaker of House of Commons) John Bercow的老婆Sally Bercow為Evening Standard拍了只用床單包裹着身體,以西敏寺為背景的香豔照片,已經震撼英國政壇,她對倫敦Evening Standard講以下這番說話,丈夫議長這職位恐怕做不下去了。

"The view from Speaker's House is incredibly sexy, particularly at night with the moon and the glow from the old gas lamps," she gasped.
"When John and I were first courting we used to walk along the South Bank and look at the Houses of Parliament. I never realised how sexy I would find living under Big Ben with the bells chiming."
But it's not just the three-bedroom apartment with its private terrace overlooking the Thames which "inspires" the couple. Her husband's role as Speaker means that some people see him – and consequently her – as more sexually attractive.
"Since John became Speaker, the number of women who hit on him has gone up dramatically," she said. "I don't get jealous because more men have hit on me, too."

豔照本身只不過是狄娜出浴照那種級數的暴露,如果不是議長老婆,那是平凡不過的玉照,三點不露,露出右邊的大腿而已。最致命的是受訪問時爆出夫妻各自偷歡,和諧共處。(Hit on is a slang which means to make persistent sexual advances to).這是繼意大利總理Berlusconi一連串性醜聞之後的另一宗香豔新聞。


Joseph Paul Fok

司法機構宣布晉升高等法院法官霍兆剛(Joseph Paul Fok)為上訴庭法官,他是2010年2月1日才被委任高等法院法官,剛好一年便再升一級,現年才49歲的霍官,前途無可限量。小弟胡亂猜測,高等法院首席法官一位似乎非他莫屬。他被委任為高等法院法官之前,曾經是特委法官(Recorder),那是私人執業律師晉身高院法官必經之路。由區域法院升上高院,屬內部晉升,要先做暫委高院法官(Deputy High Court Judge),做得好就可以正式委任,做得不太理想便會間歇性的一時暫委高院法官,一時回復區域法院法官之職,浮浮沉沉。這樣升不到職的表表者是杜麗冰(Esther Toh),論資歷,她綽綽有餘;論能力,她乏善可陳。連小弟對法律一知半解的人,看她一些上訴判辭,都會搖頭慨歎。她做暫委法官前後十年,依然原地踏步,行人止步。

霍兆剛的仕途,給我的感覺是,他步終審法院首席法官馬道立(Geoffrey Ma)後塵。馬官2000年做Recorder,2001年被委任為高院法官,2002年升遷上訴庭,2003年升為高等法院首席法官(Chief Judge of High Court),2010年9月1日接任終審法院首席法官,現在才剛過了55歲生日不足一個月,可以再做十年。現時63歲的署任高等法院首席法官鄧國禎(Robert Tang),原本是上訴庭其中一個副庭長,他並沒有隨着馬道立升遷而繼任高等法院首席法官,其中一個原因是年歲,否則,職位懸空他便可立即補上,不用署任。