標少昨天未看到推翻潘敏琦法官審理的殺鳳者案的書面判辭,先作出評論。今天司法機構上載了判辭(HKSAR and Hong Tsz Yin CACC189/2010),讀畢沒有改變我對潘法官的支持。本來案件發還重審,還未落幕,我不應該再作評論。但是標少人微言輕,發了謬論也泛不起漣漪,再講也不見得對法庭產生絲毫不敬。
推翻判決最主要原因是法官在結案時,對陪審團的引導不夠全面,而且給人褊袒控方的感覺。引導足夠與否,見人見智。以證據而言,控方依賴的是環境證供,犯案手法及兩位受害人的死因來推論謀殺,被告沒有作供,辯方依賴被告被拘捕後與警方四次會面紀錄,一直否認謀殺的意圖,但講法充滿矛盾,難以置信。如果無需陪審團的審訊,我相信任何法官都會把被告定罪。上訴庭以至終審法院,有時給我一種脫離現實,走火入魔的感覺。這件案判辭第63段這樣講
63. It is fundamental that in a criminal trial before a jury, every defendant is entitled to have his defence – however implausible, even if it appears to be an affront to common sense – fairly and accurately put to the jury for its consideration.
我覺得被告在會面時的講法,完全侮辱常人智慧,不能怪潘法官在引導陪審團時,言語之間帶有眨斥性。Fairly and accurately put to the jury for its consideration,潘法官就是講給陪審團知,被告的講法侮辱智慧。重審的時候,只要法官稍加留意,講上訴法院建議的那一套說話,被告必定再被定罪,重審只是academic exercise。上訴庭就算覺得潘法官的引導不夠完美,一樣可以運用proviso,維持原判。法律的看法沒有絕對性,對與錯都可以自圓其說,講一番完全相反的大道理。
大家應該留意,被告是否有罪首要考慮的元素是證據,而並非個別法官的修辭,不應本末倒置。放錯了重心很容易產生不公正的結果。重溫一下借奶昔謀殺的Nancy Kissel案,一審定罪,上訴庭認為證據確鑿,駁回上訴,到了終審法院,又推翻上訴庭的看法,發還重審。重審結果再把她定罪,轉了幾個圈,結果如何?有時不可只顧玩遊戲規則,而忘了玩遊戲。
上訴法院的法官,有時聽審上訴,使我感覺到他們在對下級法院法官講:看我找出你多少錯處,因為我比你聰明,高你一等。
我十分懊悔,應該在吃屎娃娃的年華,潛心法律,致使早登極位,耀武揚威。真理出自我口,被告生殺之權,操於我手,對與錯,隨我感覺走。
Bill,
回覆刪除I'm afraid I cannot agree. It is true that evidence is the most important aspect in a case, but when you have lay people deciding the fate of the Deft, you cannot have justice being done without a fair impartial direction from the bench.
It is fair enough to say that it is difficult for a juror to believe the explanation given by the Deft here, but how can Deft get his day in court if the judge had dissected the defence case bit by bit in the summing up? The important thing is: this is a jury trial. The judge can do so in a DC/Mag Court case as s/he is the fact finder, but in a jury trial, the judge should leave the decision to the jury and give a balanced summing up.
L
L,
回覆刪除Thank you for responding to the lone blogger. I am not surprised to see demurred views. Frankly, this blog bears a bias stance. I wrote to give Maggie some encouragement. I like her style and boldness as a judge. We do not really know each other as friends. We are birds of a feather. The last time I saw her was some 10 odd years ago when we were both in the same court for a brief moment. There are now fewer and fewer such respectable judicial officers.
Maybe I am still pro-prosecution and very often disappointed by the "liberal" minded big guns from high above. I am always sceptical about the decisions of the wise men. What is impartiality and justice? I am afraid I will not just accept without some quarrels in my mind. People sitting in the appellate court have their own value judgment and political inclination. There is no absolute justice. Does the embellished rhetorical language in the statement of findings or judgments make our society fairer?
I do not like the jury system. Trial by peers has a lot of shortcomings. Jury trial can produce very aberrant results. Jurors do not need to divulge their reasons and their path of thoughts. You just do not understand their decision making process.
While giving support to her Ladyship for the repeated defeats of her directions, I simultanously pointed out that we should not accept the appellate court's decision as precepts without faults. At times, seeing the same facts from another point of view produces a completely contrary result. I understand why proviso to uphold the conviction is not adopted because the criteria were set down by CFA. Some people have presided the CFA for too long. Their stance rules us all.
I enjoy the unfettered freedom of writing comments from a distance. What is fairness? Share Shakespeare with you.
"Fair is foul and foul is fair hover through the fog and filthy air." (Macbeth)
Bill
The case has been retried before Deputy Judge Stuart-Moore in Nov 2012. On the first charge, he was convicted of manslaughter and on the second charge, he was convicted of murder. Deputy Judge Stuart-Moore sentenced him for 15 years on first charge and life imprisonment on the second charge on 9 Nov 2012.
回覆刪除On hearing the verdict of the jury and the sentence passed by the Deputy Judge, I note the defendant had no reaction whatsoever.
David,
刪除Thank you for the information. I read about the retrial. I do not normally write follow up. You were actually in court?
The case no is HCCC 348/2011. Also, in view of the Court of Appeal judgment, Deputy Judge Stuart-Moore was carefully in giving the Nendrick direction during the jury sum-up.
刪除Thanks. I can understand caution is called for for a re-trial and you always have the benefit to avoid repeating the mistakes. After all Stuart-Moore is such an experienced judge.
刪除David,
刪除I don't think I can see HCCC 348/2011 from the Judiciary website. It is not there.
Bill
刪除Yes, I was in court for the whole trial.
It is strange the judiciary does not upload the sentencing reason for this case. However, there were newspaper report on the next day, see. e.g. http://orientaldaily.on.cc/cnt/news/20121110/00176_092.html
The Defendant had in fact pleaded guilty to manslaughter for both counts of murder but was not accepted by the Prosecution. After the 1/3 discount, Stuart-Moore still passed a sentence of 14 years for the 1st count of manslaughter (sorry for the error in my previous post) does reflect the gravity of the offence in the mind of the judge.
In my personal view, the verdict of the jury is "very sensible".
David,
刪除Thank you for the first hand information.