【明報專訊】已婚並育有兩子的牧師吳漢超被指在晨早人多擁擠的港鐵車廂，緊貼妙齡女子以陽具摩擦女方大腿，今年3月牧師被裁定非禮罪成，判囚21天，當時他獲准保釋等候上訴，昨獲高院判處上訴得直；律政司發言人表示不會申請重審。
案發時47歲的吳漢超，為柴灣平安福音堂牧師，原被裁定去年9月13日早上在北角開往炮台山的港鐵列車內，非禮20多歲女事主。高院在判辭指出，原審裁判官錯誤理解吳的口供，吳在警誡供辭中否認用下體觸碰女事主，但裁判官在裁決時則指吳承認有觸碰女事主，犯下事實上錯誤；另外，事主的證供與警方在庭上口供有矛盾，但裁判官並無解釋為何會接納有關矛盾。(2011/11/23明報)
標少在今年2月26日寫了在地鐵及巴士上發生的非禮案 ，在3月18日寫了牧師地鐵非禮 ，兩個blogs都提及吳漢超。今早看明報知道上訴得直，第一感覺就猜測是杜麗冰聽審。看到判辭知道真的是她，我再猜上訴人一定出大砲(御用大律師或者資深大律師)，又不出所料是Ching Y Wong, SC王正宇。可能我對杜麗冰存有偏見，這件上訴，原審法官明顯犯錯的地方主要是把吳漢超向警方錄取的口供內容理解錯了：
23. 就第一項上訴理由，雙方大律師都同意上訴人在警誡口供P3裏沒有承認他是用下體觸碰到控方第一證人。上訴人在P3裏的第一條問答記載如下：
“問(1)：係我頭先所講嘅案件中，你經警誡後向警察講：「我入車廂時，有啲擠逼，有碰撞過，但我無非禮佢。」你所指嘅佢係邊個？
答(1)：就係話我喺港鐵車廂入面用我下體觸碰到佢嗰個女人。但我無非禮佢。”
24. 因此，裁判法官在裁斷陳述書第23段是錯誤地指上訴人在P3內“是承認下體有觸碰到控方第一證人，這點亦支持了控方第一證人的說法”。這是裁判法官在事實上作出嚴重錯誤。
(香港特別行政區 訴 吳漢超 HCMA272/2011第23及24段)
除此之外，杜麗冰也批評，原審裁判官沒有適當及合理分析證人證供之間的分歧：
28. 當控方第四及第五證人作供時，她們兩人否認曾對控方第一證人講出這番說話。而兩位證人亦確認她們錄畢口供後，她們是讓控方第一證人閱讀及簽名確認，當然控方第一證人和控方第四及五證人有不一致之處，裁判法官分析後可認為他可繼續接納控方第一證人為可信及可靠證人，而以適當及合理的分析理由解釋為何控方第一證人是誤會了第四及第五證人的意思，但裁判法官沒有這樣做到，他只認為控方第一證人是“原於她不理解法庭程序或誤解了警員的意思”（見裁判陳述書第21段）。
(香港特別行政區 訴 吳漢超 HCMA272/2011第28段)
聽審這件案的上訴，要維持原判或上訴得直，都是輕而易舉的事，正反的大道理都可以寫一大篇，完全操控在高院法官手裏。如果由我聽審，大條道理駁回上訴。由受害人在候車人數不多的月台受到牧師有心的挨碰，及至上車之後的步步進逼，最後下體磨擦的非禮，證據充足。原審裁判官所犯的錯誤，並不致命。一個年輕女子遇上這種事情，心有餘悸，而致描述有點出入，絕對可以理解。牧師非禮的意圖，昭然若揭。加上他連內衭也不穿，何只行為可疑。這個牧師以後還可以傳道的話，可能有不少教友會研究他會否在講道時穿上內衭。有杜麗冰這種質素的法官，怎會不使人慨歎司法水準低落。另一方面，我也看不到代表控方的高級助理刑事檢控專員不尋求重審的原因。公義彰顯個屁！
"牧師有心的挨碰，及至上車之後的步步進逼，最後下體磨擦的非禮，證據充足。"
回覆刪除你說啲證據/昭然若揭是甚麼？
Anonymous,
回覆刪除Without the benefit of seeing the statement of findings of the trial magistrate, just from the reading of the appeal judgment, I can see the appellant's deliberate touching of the victim from the platform to inside the train. Then his lustful desire did not stop but elevated to further advancement. The victim repeatedly retreated to the extent that she sought assistance from other passengers and accusing the appellant of indecent assault. The appellant's initial response was keeping his mouth shut instead of denial. The platform was not crowded nor was the train. The likelihood of accidental touching can be ruled out. There is mens rea and actus reus. There is ulterior motive and interior lust. The evidence is overwhelming. What else do you need beside a conviction?
This is a technical knockout.
回覆刪除Bill, you are really admirable and adorable, what more I can say?
Anonymous,
回覆刪除I take it as a compliment instead of a sarcastic and dismissive innuendo.
no no no I am your admirer indeed, sorry for my foolish expression.
回覆刪除I am a part time student who studying LLB now
please not to unduly humble yourself, you are really appealing
Support !
「維持原判或上訴得直都是輕而易舉••」願聞其詳，尤其如何上訴得直，觀點與杜官有何不同？
回覆刪除Anonymous,
回覆刪除The easiest way to acquit or overturn a conviction is “There is a lurking doubt”. There is no need to specify what a lurking doubt is. I am not saying I am better than Esther Toh. I am saying one has a higher expectation of the ability of a high court judge. One should not have any expectation of what Bill Siu writes because Bill Siu is an underdog.
The two mistakes pinpointed in the judgments are not detrimental to the case. For the first point about the mis-reading the statement (P3) made by the appellant to the police, there is no doubt about that. However, it is not an exculpatory statement. It is a mixed statement rather. It cannot be used to corroborate what PW1 said about the private part touch, but it can be used to corroborate the fact that there was physical contact. The high court judge magnifies the mistakes in order to justify her stance. If she minimizes the effect, there is ample evidence to uphold the conviction. There were other corroborations the judge failed to elaborate on. The second mistake about the failure of the magistrate to deal with the inconsistence between PW1, PW4 and PW5 is arguable. I would say it was not sufficiently dealt with instead of a total neglect. No policemen ever admit they are wrong for failing to accurately record with PW says. It is not difficult to reconcile the difference.
I can only say I will continue to watch these incompetent judges, to examine their written judgments and to lash out my sword if it is not too blunt.
Bill,
回覆刪除It is true that no policemen would ever admit they failed to accurately record what the PW said to them in the witness statement, and it probably happens every day in real life. So there is an inconsistency that PW1 said he said XYZ to the police PW2. XYZ does not directly go to the material point of the case but clearly affects credibility of the rest of PW1's evidence. Then PW2 gave evidence to say that PW1 never told him about XYZ. Based on this sole ground, would you acquit as PW1's evidence contradicts those of PW2? How can you reconcile the difference?
The second point is also related. Say there was an inconsistency which a magistrate failed to deal with at all in the judgment, D argues that the inconsistency goes to credibility and reliability of the PW, P argues it is immaterial/does not go to the material point. What would you do?
My answer would be simple: it depends on which judge. If a judge gives the benefit of the doubt to the appellant/defence, it's not fair to say he is incompetent, but rather, he did his job of acqutting/allowing the appeal because he has a doubt in his mind. If a judge doesn't do that, and ignore these inconsistencies, that will actually be the problem.
There are several reasons why PW1 could have given inconsistent evidence. Firstly, as you said, she was 心有餘悸 and therefore had minor errors. Secondly, she wasn't sure at all. Thirdly, she wasn't telling the truth. How could the appeal judge pick amongst those three? All she has is the fact that PW1 gave inconsistent evidence. When there are several inferences, it's clear D gets the benefit of the one most in favour of him. The fact that D wasn't wearing underpants is suspicious, but a suspicion is only a suspicion, it should not affect the conviction, but only trial costs.
I think you are being harsh on a certain judge but I do know that we disagree on that point a while back already. Let's keep this going.
Regards,
L
另一個lurking doubt應為PW1的口供前後「不一致」，就報紙資料，PW1庭上指出遭非禮位置為「大腿」，如果冇理解錯是大腿前方(因事主說低頭見到)，但差館口供則為「腰臀之間」即後方，連最重要的非禮位置都有咁大差異，難以令人信服PW1為可信證人
回覆刪除不過話是話Bill少真係好有見地，法律界需要有這樣的監察者﹗
L and Anonymous,
回覆刪除I am glad I can still reply to you. This time I write a new blog as a reply. I am glad because I suffered a life threatening severe allergy attack while driving to play badminton yesterdat morning. It was my unflinching character saving myself and I am now recovering well and continue to fight.
杜麗冰可以生安白造，無寫到有。六十幾歲單親，重大讚靚仔本地裁判/審裁官有經驗。Junior 都有經驗lol
回覆刪除內褲不穿算個人喜好 唔可當可疑行為
回覆刪除