【明報專訊】上訴庭昨在處理鳥克蘭船與內地貨船相撞刑事上訴時，狂轟原審時控辯雙方共3名資深大律師及兩名大律師，審訊期間不理庭上禮儀，不單經常無謂「插嘴」打斷審訊，大律師之間更經常在法官李素蘭面前互相討論，更甚的是沒有站回應法官提問，實行「當法官無到」，上訴庭明言此風不可長。 (15/12/2011明報節錄)
明報這則新聞報導並不全面，上訴庭副庭長司徒敬(Frank Stock)在倫明高法官(Michael Lunn)頒布主判辭之後，特別用了20段來批評控辯雙方律師對法官無禮的情況，同時批評原審法官李素蘭(Suzie Remedios)多次沒有阻止不必的提問，審訊節拍控制得不好。舉例如下：
502. This type of conduct is unseemly and
whilst I have some sympathy for this experienced judge faced with a difficult
case, it is conduct which, at an early stage, ought to have been stopped.
509. The question pressed by Mr Westbrook
was not a question; it was a comment. But more significantly, the remark to the
witness¾to a defendant mind you¾“I’m not interested in your explanation” was
rudeness itself delivered by counsel clothed with the authority of his
professional robes to a person in a wholly unequal position. The judge should
not have permitted it.
510. Cross-examination of the type
displayed in the passages I have reproduced, apart from
constituting poor
advocacy, is never permissible.
不要以為上訴庭在替主審法官撐腰，在我看是因為要看8600頁審訊謄本看到光火，才作出批評。
from my limited experiences in attending magistrate and high court, i have seen barristers paying due respects to judges but it'll be funny to see when the judges 對班大律師無符
回覆刪除by the way, last times you asked me how i bumped into your website. it is quite random because i come to here through the 'next blog' on top of the website.
also, i have written a new article, have a look of it when you are free!
http://tsokoba.blogspot.com/2011/12/life-will-go-on-as-it-has-always-gone.html
How long would it take to go through the 8600 pages transcript ?
回覆刪除Anonymous,
回覆刪除I really don't know. It is faster than reading a judgment because most of the transcripts are in dialogue form. I cannot do any guesswork.
Bill
William,
回覆刪除Most of the lawyers are courteous to the bench. At times, you will see discourteous behaviour when the very experienced counsel just feel that their seniority and experience outshines the magistrates and judges. They will take a dismissive attitude and show no respect. In this case, Simon Westbrook, SC, prosecuting on fiat and on appeal. Clive Grossman, SC and Daniel Marash, SC, bore a snobbish attitude and looked down upon the judge. I cite one interesting paragraph here as an example,
500. Particularly unattractive is the spectacle which emerges of the use by certain counsel of over-casual terminology, sometimes addressing each other rather than the court, often several counsel talking all at once, sometimes all on their feet at once; and, on one occasion at least, leading counsel for the prosecution addressing the court when seated, and when asked to stand answering, with no apology to the court: “Well, I’ll get on my feet. That’s a leading question, and perhaps you could ask it more neutrally,” a remark addressed to another counsel as if the judge was not there.
The trial judges do not dare to offend the big guns for fear of retribution. The latter can bad mouth you and back stab you very easily. Remedios is not tough, which in a way attribute to the criticism by Stock. That is why I like Maggie Poon who is full of guts. These kinds of things will never happen in her court.
Bill
Bill
回覆刪除1. The silks are "supposed" to be the leaders of the Bar. If I was the judge, I would definitely log a complaint against these "big guns" under the Bar Code para 6 & para 134. I understand the Remedios family also has their own standing in the legal profession in Hong Kong.
2. I recall when the late Godfrey JA, prior to his retirement from the bench, was interviewed by the Hong Kong Lawyer. He expressed the view that he saw both the very good and very bad from both the junior end and senior end of the Bar at the bench. Very truth for this case, right?
3. The trial judge may get some relief from the judgment of Court of Final Appeal handled down yesterday. Lord Clarke of Stone-cum-Ebony observed:
238. By way of postscript I would like to associate myself with Mr Justice Ribeiro PJ’s comments on the judgment of the Judge. Although we have not agreed with all her conclusions and I say nothing one way or the other about the parts of the case upon which I have expressed no view, I agree with him that her judgment is highly impressive for its comprehensive analysis of the evidence and the meticulous and detailed findings made. I can also see that it must have been quite an ordeal to try the case.
4. If you have chances to meet Madam Justice Poon in private occasion, you may find her she is indeed a real fun and talkative person.
DAVID
David,
回覆刪除When big guns see a small judge, they look down upon her. If the judge was not stern, the big guns tested the boundary by crossing the limit and they started to bear a dismissive attitude. Remedios was bullied in this case. She should be responsible in some way. She was too soft.
I like Maggie. She is righteous.
I agree with you. This is a hard reality. On the other hand, I did see a silk appeared before a special magistrate and he did pay all the due respect to the court.
回覆刪除One more observation. For Clive Grossman SC, if I do not mistaken, at the time of trial, he stepped down as the Vice Chairman of the Bar not so long ago. In fact, he had served as the Chairman of the Bar Disciplinary Committee before. This goes back to the issue I raised in my earlier post.
True. I have seen very courtesy SC appearing before special magistrate.
刪除The Bar Disciplinary Committee initiate action against these big guns. They are bringing the bar's reputation into disrepute. Non action means double standard.
1. To my surprise, Simon Westbrook SC did sit as a Deputy High Court Judge in 2012.
回覆刪除2. On the same issue faced by a Special Magistrate, I think HKSAR v Tong Tai Wing [2007] 4 HKC 386 is worth of reading. Para 12 of the judgment read:
The test is, what would an objective bystander think of what went on at this trial and I regret to say - and I say it with dismay - that I think an objective bystander at the back of the court would have seen a senior barrister throwing his weight about in front of someone who was the more junior in the profession; who was aggressively provocative; rude on occasion; and did not concentrate on the issues.
David,
刪除Good to read the case you referred me to. The defence counsel in that case was not even a SC but the attitude was truculent. Peter Line had done the right thing. I liked him when I prosecuted before him. He gave me a very good compliment too.
It was this case (http://www.hklii.hk/eng/hk/cases/hkca/2011/466.html) wasn't it?
回覆刪除509. The question pressed by Mr Westbrook was not a question; it was a comment. But more significantly, the remark “I’m not interested in your explanation” was rudeness itself delivered by counsel clothed with the authority of his professional robes to a person in a wholly unequal position. The judge should not have permitted it. The witness should have been allowed to explain himself then and there; and the objection that prosecuting counsel was hectoring and simply upsetting the witness was an objection well-founded.
510. Cross-examination of the type displayed in the passages I have reproduced, apart from constituting poor advocacy, is never permissible. It is not permissible in respect of any witness, let alone of a defendant facing a charge which, if proved, might deprive him of his liberty and ruin his career; let alone of a 62-year-old man of previous good character providing evidence in difficult circumstances and doing so in a perfectly courteous manner; a man who simply had to take the rudeness dished out to him. This should never happen. It is distasteful.
Do you agree with the Court of Appeal's observations that Mr Simon Westbrook SC (韋仕博資深大律師) was "rude", displaying "poor advocacy", and that the whole thing was "distatestful"?