一案兩官連環錯 涉非禮技工脫罪
【明報專訊】伊利沙伯醫院一名X光黑房技工涉胸襲女病人，被定罪後上訴得直，案件發還重審再被定罪，技工再次上訴，又因裁判官犯錯而第二度上訴得直，成功脫罪，更毋須再面對重審。上訴判辭指出，原審裁判官審訊時提出逾900條問題，取代主控官的職能，失去中立。(明報2011/10/21)
這件案的判辭今天也在司法機構的網頁上載了，有興趣可以找來看，十分簡單的一件案(香港特別行政區 訴 潘世倫 HCMA109/2011)，由高等法院暫委法官杜麗冰聽審。判上訴人得直的主要原因是，原審裁判官對控辯雙方證人發問太多，定罪不公平及不穩妥。指責法官過度干預審訊，慣常用語是指法官進入競技場。用甚麼標準來量度呢？一般都引用The Queen v Yeung Mau-lam CCAC550/1989，案中定出幾項指引
(1) 法官發問問題的數目本身並非決定性之因素；
(2) 必須考慮的是問題性質及數量與兩者互動下所引起的效果；
(3) 關鍵不是法官事實上有否出現偏見，而是法官的行為是否令一名知情的旁觀者認為法官已取代了主控官之職能便已足夠；
(4) 在單一法官審理案件的情況下，法官的問題是否顯示他已介入了 “格鬥場” 而失去了保持客觀的態度；及
(5) 原審法官的行為會否令一名知情的旁觀者認定被告沒有獲得一個公平之審訊。
杜麗冰認同辯方對原審裁判官的批評，其中一段這樣講
13. 從謄本可見，本席得到的概念是，正如謝大律師陳詞指，裁判官用引導方式去
“剪裁” 或嘗試剪裁控方第一證人的證供，例子如下：
原審裁判官黃國輝是主控官出身，比較容易忍不住口向證人提問，不知不覺之間過份索求自己要知道的案發經過，而被指犯錯。另一致命傷是，上訴時代表控方的檢控官也指黃國輝問得「好過火」，這concession等同投降，上訴結果自然一面倒。
(1) 在主問時，當控方第一證人講及侵犯人望她的胸部時，控方第一證人說大概是4至5秒，裁判官就說：“四、五秒唔係短嘅時間，你睇下枝秒針，如果行四、五秒，定咗個囉喎，差唔多已經係，還是會短啲，還是點樣？”。證人跟著答：“短啲”(見上訴宗卷第118頁C至H 行)。而從謄本看到，當謝大律師嘗試盤問控方第一證人關於這望胸時間時，裁判官亦作出過度干擾而提醒證人這動作是很快的。標少當然沒有機會看到原審紀錄的謄本(transcript)，單憑這例子，我覺得是廢話。證人估計時間，毫不客觀。裁判官只不過叫她看秒針來作估計，以澄清證人的答案，怎可稱之為引導式的剪裁？其他的例子我看不到，單以這項來推論，杜麗冰的能力確實有問題。杜麗冰在判辭中引用另外兩宗高院的上訴判辭，來支持她的看法。我覺得沒有說服力，因為引用一些道理，而不能套用及闡述原審裁判官怎樣犯錯，只是空泛的批評。杜麗水其實應該參考HKSAR and Sin Wing Yi, Winnie (冼穎儀)CACC471/2004一案對原審法官介入盤問是否造成不公正的分析，作出正確的裁決，而不應一看到裁判官大程度的介入，便視之為洪水猛獸。
原審裁判官黃國輝是主控官出身，比較容易忍不住口向證人提問，不知不覺之間過份索求自己要知道的案發經過，而被指犯錯。另一致命傷是，上訴時代表控方的檢控官也指黃國輝問得「好過火」，這concession等同投降，上訴結果自然一面倒。
Bill,
回覆刪除I'm afraid I have to strongly disagree this time. Whenever counsel raises a ground of appeal on the magistrate entering into the arena, the usual response from the Respondent would be that the magistrate was only trying to clarify the answer. If the witness stated clearly that it was 4-5 seconds, what was the need for the court to challenge that answer rather than writing it down and staying silent? Other than seeking to shorten the answer from 4-5 seconds to a shorter time, I failed to see any other purpose of the leading question by the bench.
of course i do not know the practice in the past, but there are many cases out there where the transcript showed that the magistrate actively participated in the examination of witness(es) to the extent that the prosecutor was rendered a spectator. If the magistrate is allowed to "clarify" everything, the prosecutor might as well be asked to sit down. With the greatest respect, it is difficult to imagine a fair indecent assault trial when the court asked 490 questions and the prosecutor 192. Surely the Yeung Mau Lam observer would expect the prosecutor to ask 70% of the questions rather than the bench! One must not also forget paragraph 15: 在盤問時，主控官只問了約55條問題，而裁判官則問了約127條問題。
In light of the above, counsel for the respondent was fair enough to concede that the questioning was excessive. The benefit of the doubt must go to the Defendant, one cannot give the bench all the benefit of the doubt that all questions were clarifications rather than otherwise. I believe this judgment , together with the concession, was very fair.
Hope you would not mind my views.
L
Bill,
回覆刪除This is not the first time for this Magistrate to commit the same mistake. There are two cases being quoted in HCMA 109/2011 : HCMA 58/2011 and HCMA 668/2010. Both cases relate to him.
He is the most "problematic" Magistrate which I come across.
VL
Dear Ladies,
回覆刪除My instuition tells me both L and VL are ladies. Forgive me if I am wrong. Putting aside the image of the trial magistrate, though I know there are not positive comments about him. I must have attributed to him being a special in the first place when I sat in the interview board long time ago. I will deal with your comments later because I have busy day today. I just take this opportunity to say never mind agreeing or disagreeing with me partially or entirely, I learn a lot from comments. I am not that narrow minded though pig headed about my views all the time. Please feel free to voice out. I will not take offence.
L and VL,
回覆刪除I meant to say intuition instead of instuition. Thank you for your continuous reading of my blog. Though I am a sort of truculent person and always criticise people, I really don't mind any demur view.
Most people cannot tell distance and time with precision because they are not trained to do so. In daily life, the imprecise conception of distance and time does no harm since there is no need to be so accurate. In a court scenario, it is different. Sometimes imprecise estimate of distance and time can be detrimental to the case. This can be seen in a lot of traffic cases. For instance when there is a collision, the speed and relative distance between vehicles shed light on the veracity of a witness. I tend to do the mathematic calculation to decide if a vehicle follows too closely behind another vehicle. If the speed limit is 60kph, a driver says he is doing that speed and is 3 to 4 vehicles behind another vehicle. When the preceding vehicle stops abruptly and the following vehicle rams into its back, do you think the driver is guilty of careless driving for failing to maintain a safe distance? This involves calculation. The length of a car is about 4 to 4.5 m long. 3 to 4 vehicles’ length means 12m to 18m apart. At a speed of 60kph, each second the car proceeds 16.6m. I can safely conclude the following vehicle only maintains about 1 second’s braking time from the preceding vehicle. Taking into account the road condition and the breaching of the Road User’s Code, I can convict the driver with ample reasons.
Esther Toh accepted the defence submission that Raymond Wong was leading the victim and tailor making the evidence, I fail to see the wisdom here. Raymond is entitled, as the magistrate hearing the case, to clarify the exact length of time of the staring at the victim’s breast. I cannot guess the ultimate purpose out of context. If this is a salient example to show the degree of intervention by the magistrate, then this is certainly a bad example. By this clarification itself, I do not see the partiality there. Putting a time span in perspective is perfectly proper. If this example is used to demonstrate that the magistrate has entered the arena, then there is a lack of analysis. The number of questions asked by Raymond Wong is of course alarming. Don’t forget, Yeung Mau-lam’s first ratio is “interruptions by their number alone are not decisive”. Esther Toh’s decision may be well justified but her judgment is unconvincing.
I can understand most prosecutors bear grudges with Raymond Wong for his discourteous attitude towards them. Be that as it may, I read the appeal decision objectively. I am not sided with Raymond. I do not really know him. A friend asked me why I was so harsh to Esther Toh. Frankly, she does not impress me as a competent deputy. I would be surprised if she is elevated. That said, I do not give a damn.
Arena is translated as 競技場replacing the previous translation of 格鬥場which carries a derogatory connotation.
Bill,
回覆刪除I left a message earlier which disappeared. Let me know if you want me to post again.
Regards,
L
L,
回覆刪除I saw your new comment earlier on and in fact it was sent to my gmail too. I am writing a response. It is a problem with bogger. Please re-post it. This happened before.
L,
回覆刪除(I copied and pasted your further comment from the gmail I received automatically when a comment is made. I really don't why blogger swallowed your further comment)
It is a good discussion. We all need to think about the issue in depth instead of accepting what people have said. I entirely respect your point of view though, as I said, I am pig-headed and difficult to persuade.
I said Esther Toh's judgment is not good because there is a lack of analysis. I don't know why Raymond Wong needed to be precise on the time of the stare. Without the benefit of seeing the transcript, guesswork is a waste of time. I still fail to see the harm or unfairness in this particular question. Our points made, no need to embroil in the argument because there is no answer anyway. I can reassure you that you are welcome to disagree with my view.
The attitude of the bench can twist the case easily. Don't just accept as a matter of truth when prosecuting or defending counsel concedes on a certain point. It won't be difficult for the bench to use strong language and retort categorically the points raised in the appeal. Some counsel will follow the wind and bend. Seeing the impending loss of the case, the prosecuting counsel can just unfairly concede, throwing the towel in a gentleman's manner. I won't do this kind of thing. I would unflinchingly say no further than what I have said.
It is not impossible for this conviction to be upheld in the hands of another High Court Judge. If the judge in the appellate court wishes to uphold the conviction, he can come up with a lot of cogent reasons. If the judge wants to allow the appeal, he can give any reason from lurking doubt, inherent improbability to unsafe to convict. Justice is in fact a game. Some justice is fake. You just play according to the rules of the game and try hard to get the desired results.
The other day a lady posted a comment in my February blog concerning her younger brother allegedly committed indecent assault. She made enquiries rather than really commented. I could not give her any conclusive answers. There are always too many human factors manipulating the so called justice. Different judges may conclude a case with entirely different views. Sometimes the difference is not on any point of law or point of law interwined with facts. Factual findings applying different logical thinking leads to different conclusion. Then, you have to pause to think "Is it a value judgment rather than true justice?" At times we see aberrant results when queer way of thinking by the people up above.
If you reach my age, I don't know if you would see things differently. I always see myself in a distance and judge myself from a bystander's point of view. I can tell you. I never conceded a case. If I saw a case not worth pursuing, I would just drop it at the outset.
Bill
回覆刪除It is easier to say than to do.
I did prosecute many cases which I did not agree with the advice and did not know why we needed to pursue the case, except under instruction.
If you knew that you would lose the case, why not to make it short. You had a lot of paper work in your office.
VL
VL,
回覆刪除What more can I say.
L,
I cannot re-post your comment by copy and paste. Blogger has gone banana.
Bill,
回覆刪除It's alright, my post made mainly two points: firstly, there was no reason for the magistrate to clarify the witness's answer unless he wanted to hear another answer, and why was there a need for the magistrate to clarify rather than letting the prosecutor do it? Secondly, the case of Winnie Sin was very different, in that in Winnie Shin, the bench was advising the prosecution how to call witnesses etc in essentially a PTR, whereas here the bench was doing the prosecution.There is also no issue of the trial going off in the wrong direction as with winnie sin.
As to your reply that you never conceded a case, whilst I admire your attitude, I am sure you would agree that the prosecution is not there to get the conviction or to get all appeals dismissed. What should one do when the lower court clearly erred and you are the respondent in the appeal? There was one instance when I was prosecuting when the witnesses said totally opposite things in terms of what happened in the material point of the case, would it be fair for me to ignore those? Anyway, it appears that there are not many concessions made nowadays in the appeals, and fighting the appeal to the very end all the time instead of fairly conceding is perhaps detrimental to the interests of justice, but those are just my views.
I do however fully agree with your other point about the indecent assault matter. Nowadays, who you get as your judge/magistrate does make a difference.
Regards,
L
L,
回覆刪除Thank you for the good discussion. I quoted Winnie Sin only to show the bench can use the kind of language to support what the trial judge has done to the extent that usurping the function of the prosecutor may not necessary become bias. A different combination of appellate justices can result in an opposite finding. This kind of discussion is never ending. It would be good to sit down, while sipping a cup of cappucino, and engage in this kind of intellectual and empirical exchange of the mind between friends and colleagues. I will write another blog on the subject.
Mr. Bill:你好，在下早前被票控一件違例事項，被裁判官裁定罪成後再在高院被 陳仲衡駁回，但在下仍然不服，在下認為在是次審訊中在下毫無疑問是一個刁民，但即使如此我仍想在今日收到 陳仲衡的判詞中找到一個能說服自己的理據，令自己口服心服。在下先整理好文件，再請教一些問題。
回覆刪除其實在下家人早己懷疑在下是否精神失常，如果標少亦有此感覺不妨直接指出，畢竟自己很難去發現的。