2012年6月18日星期一
律師嚴重失職
我在大律師被指非禮一案的判辭 一文，批評高院暫委法官彭寶琴在香港特別行政區 訴 李淑妍 HCMA451/2011一案的判決理據，未能使人信服。今天司法機構上載的HKSAR and Chiu Chi Tak, John (趙志德) CACC2412011案，同樣以律師嚴重失職作為上訴的依據，但理由不被接納，上訴駁回。這是一件鄰居因狗吠引起爭執，導致上訴人用腐蝕性液體淋向受害人的案件，上訴人指責原審辯方律師沒有依據上訴人的抗辯指示進行抗辯，以致輸了官司，上訴庭駁回上訴，引用了新南威爾斯州上訴庭的R v Birks的一段判辭及終審法院Chong Ching Yuen v HKSAR案的一段判辭，恰巧是我在大律師非禮之二 中引用完全一樣的兩段。不要誤會我在抬舉自己，我只是個畧懂皮毛的人。彭寶琴在 李淑妍 案也引用Chong Ching Yuen案，但她只引用了別的段落而已。由此可見，法律的詮釋，往往並無絕對的對與錯，聽審上訴的法官，先不要仗着自己在架構上 的權位，肆意批評原審法官犯錯，而應該本着客觀的審判態度，而並非凌駕性的權力，才能服人。所以，我一向都會用批判的態度來閱讀判辭，而不會對高高在上的人奉若神明。
訂閱：
發佈留言 (Atom)
From the paragraph below, it seems as long as counsel puts his client's case to court, he can sit back and do nothing and he won't be considered incompetent. Is my understanding correct or not Bill?
回覆刪除21. The prosecution having chosen to advance in its case evidence of an oral statement of Chow Kam Man inconsistent with his testimony, the question arises of whether or not counsel for the applicant had a duty to draw those inconsistencies to the attention of Chow Kam Man and invite him to deal with them. The question has only to be posed for the answer to be obvious. Counsel for the applicant’s duty is to put his lay client’s case. No more, no less. Obviously, this issue did not fall within that requirement.
Anonymous,
刪除You have posed an interesting question for me. It is always difficult to generalize what the counsel should do in order to discharge his duty. The very basic duty I would have thought is to put the lay client's case to the prosecution witnesses. To just sit back and do nothing more than that can probably save himself from allegation of incompetence (it should rather be fragrantly incompetent in order to succeed the appeal), but, I am afraid, the counsel will end up sitting in BED with no work to do. The counsel will be broke if he just does the very minimal on cross-examination. He will be out of business very quickly. The court only examines if the counsel has been incompetent. Not falling within the ambit of incompetence does not mean the counsel has performed well enough in the interest of his client.
In the instant appeal, you can see in para 27, I quote
"...However, as was observed earlier, the weight to be attached to the evidence of the discrepancies between his testimony and the first account given by Chow Kam Man was much reduced by the undisputed fact that counsel chose deliberately not to give Chow Kam Man an opportunity to deal with the discrepancies. Accordingly, it was not known what he had to say on the issue. Similarly, no evidence was led from PC 3655 of the circumstances in which he had received Chow Kam Man’s oral complaints, whether or not he had made a contemporaneous record and, if so, its accuracy. ...."
The Court of Appeal seems to shift the burden to the defence when unsure whether there was reasonable explanation for the discrepancies. It is rather strange to say since PW2 was not cross examined on his discrepancies, then the court did not know if he could offer explanation, and the fact that whether the PC recorded what PW2 said contemporaneously. Isn't it the onus of the prosecution to prove its case and satisfy the court to accept its evidence? It was not the duty of the defence counsel to cross examine the witness affording an opportunity for him to explain the discrepancies. I have to boldly say even the Court of Appeal was in error.
This is really an interesting matter. As a 'reasonable person', I think any competent counsel should cross examine on the discrepancies. The reason is not law, but common sense. If you do not ask about such discrepancies (which is fact), what else is better to ask? I do not believe what the trial counsel said about 'afraid witness making up explanation'. If he really thinks so, then I guess he must have asked no question in the trial. (if witness can make up explanation on such discrepancies, she can make up answers to any questions asked)
刪除But I understand law is not always about common sense. =(
I feel sorry for the defendant of this case.
Sorry, I meant to say "flagrantly incompetent"
刪除Bill
Anonymous,
刪除I tend to disagree with what you said. The non cross examination of the discrepancies in itself is a defence tactics. The defence counsel chose to make submission on the discrepancies instead of cross examining the witness. No cross examination means the witness was not given an opportunity to explain. It worked in the favour of the defence. The defence attacked the reliability of the witness. It is a common and reasonable approach. This case itself was a dead duck case for the defence. Finding that the trial judge was in error, the Court of Appeal applied proviso to uphold the conviction instead of ordering a retrial. The evidence was overwhelming.
Bill
Thanks for the info Bill. I now understand the tactics. I was wrong in making such comments.
刪除Hey, there is no absolute right or wrong. Some people choose to cross examine on the discrepancies if the oral evidence differs from the written statement. Some people choose not to cross examine the witness and leave it until the final submission. There is no hard and fast rule as to which approach is better. Either way, there is certain risk to take. There is nothing wrong for you to make comments. I may be wrong. Who knows.
刪除