去勢謀殺案落幕

Woman jailed for killing ex, mutilating his penis

Date:August 29, 2012 - 2:47PM


A mother of two who cut off part of her former lover's penis and flushed it down the toilet has been sentenced to a minimum of three years and nine months in jail.

Jian Chen pleaded guilty to the manslaughter of Jin Xiang Peng, 48, after she drugged his soup with sleeping pills, bound his wrists and feet and stabbed him at her North Ryde home on February 9 last year. He died from multiple stab wounds.

The NSW Supreme Court accepted Chen's criminal responsibility for Mr Peng's death was reduced from murder to manslaughter because she was suffering from a "substantial impairment" of the mind at the time of the killing.

The court heard Chen thought Mr Peng, the father of her youngest son, was a "serial predator" and conman who got wealthy women such as herself pregnant in order to extort money.
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Chen, who did not give evidence in court but gave an account of her relationship with Mr Peng to several forensic psychiatrists, said her former de facto partner emotionally manipulated her for many years.

In previous years, Mr Peng had taken hundreds of thousands of dollars from her. He had an affair with another woman in China.

"He uses his penis to harm woman [sic] and children. Something inside me said, destroy his weapon, don't let him harm anymore women and children," a psychiatrist's report, tendered to court, quoted her as saying.

On the day before she killed him, Mr Peng had turned up at her house and made threats. She felt she had no legal options to stop him.

As she prepared dinner, the idea of spiking his soup came to her and, soon after he ate, he was unconscious.

When he awoke several hours later Chen bound his hands and feet and stabbed him a number of times in the neck and groin before attempting to cut off his penis and to castrate him.

He had lacerations to the left side of his groin and his penis had been scalped, Justice Monika Schmidt said.

The judge said the act was not premeditated but neither was it impulsive, as Chen thought for hours about what she would do.

Mr Peng was conscious when his genitals were mutilated and she flushed part of his penis down the toilet so "it could not be undone" before she called an ambulance.

Justice Schmidt found Chen's fear and anxiety was exaggerated by a long-time underlying depressive illness such that her "capacity to understand events, or to judge whether her actions were right or wrong, or to control herself, were substantially impaired".

However, Justice Schmidt said "her illness does not excuse what she has done" and she needed to be punished with jail time.

Chen was given a maximum sentence of six years and nine months. With time served, she will be eligible for parole on November 8, 2014.

(29/8/2012 Sydney Morning Herald)

這件案我以前寫過两三次，對上一篇是6月2日寫的The development of the castration murder 。今天宣判，刑期6年9個月，不准假釋刑期為3年9個月，扣除被捕後一直扣押的時間，如果被告服刑期間行為良好，精神狀況穩定，便可在2014年假釋出獄。

誤殺在新南威爾斯州最高刑期為判監25年(Crimes Act 1900-Section 24)，誤殺在香港可判處終生監禁(《侵害人身罪條例》第7條)。6年9個月的刑期是否恰當？以案情而言，並不算重。說被告沒有預謀，當然講不通。怎會在煑飯時才想到要落藥迷暈死者，而且犯案手法也相當兇殘，最低刑期3年9個月，屬極度寬大的判刑。

醉駕上訴

8月23日星期四司法機構上載了香港特別行政區 訴 陳子陽 HCMA129/2012的判辭，標少看了之後不以為然，今天花點時間翻閱案例，寫出自己的看法。下面是摘自判辭的案情(整份判辭張貼在文章末端)。

控方案情

2. 案情並不複雜,簡略地說，上訴人在道路上駕駛一輛汽車,他被控方第一證人截停後,表示自己飲了4 枝啤酒及1 枝芝華仕。在這情況下,控方第一證人要求做呼氣測試,因他懷疑上訴人酒後駕駛。PW 1指上訴人沒有拒絕呼氣測試,所以他沒有向上訴人發出警告,但如果上訴人拒絕,他會警告及拘捕上訴人,亦會告知上訴人他的權利，及會告知上訴人如果他拒絕做呼氣測試，他會干犯拒絕呼氣測試之罪名。PW 1說他測試時候拘捕及警誡上訴人,罪名為酒後駕駛,稍後PW 1安排陪同上訴人返回警署。在警署內，PW 2再作酒精測試。當時PW 2有向上訴人解釋程序、警誡，及向上訴人說明一定要提供呼氣樣本,否則會有其他檢控,當時上訴人是同意及明白。

3. 控方證人作供完畢後,上訴人選擇不作證，亦沒有傳召證人。

這是簡單不過的一件案，控方對推翻定罪毫無爭議，認同警員沒有跟從法例要求，警告上訴人若拒絕提供呼氣樣本，可遭檢控。判辭這樣講：

上訴

7. 在上訴時,雙方大律師同意，根據《道路交通條例》第 39B(1) 條，當PW 1要求上訴人提供呼氣樣本，以作檢查呼氣測試，他須遵守第 39B(5) 條之規定，在向任何人要求提供樣本以作檢查呼氣測試時,須警告該人沒有提供該樣本可遭檢控。本席同意這條例屬強制性條文(mandatory provision),PW 1需嚴格遵行其規定，而其必要性亦不取決於駕駛者是否在自願的情況下提供呼氣樣本作檢查呼氣測試。

8. 值得一提的是雷大律師所提供的英國案例R （on the application of Cox） v Director of Public Prosecutions [2010] R.T.R. 18, 英國高等法院后座法庭所屬分庭(Queen’s Bench Division)裁定,相關警告條文屬強制性,故相關檢驗結果不能呈堂,定罪須予以撤銷。因此,雖然上訴人自願提供呼氣樣本,執法者仍必需嚴格跟從法例規定,必須發出警告，而上訴人的意願並非關鍵考慮。

9. 因以上的理由,本席判上訴得直,上訴人的定罪及刑罰被撤銷。

法律上用上「須」(shall)這字眼，法律系一年級的學生也知屬強制性條文，須嚴格執行。那麼標少還有甚麼可以爭議呢？法例這樣寫

(5) 任何警務人員在根據本條向任何人要求提供樣本以作檢查呼氣測試時，須警告該人沒有提供該樣本可遭檢控。

(5) A police officer shall warn a person at the time of requiring a specimen for a screening breath test under this section that a failure to provide it may render him liable to prosecution.

(《道路交通條例》第39B(5)條)

高級檢控官引用Cox v DPP，而Cox跟隨Murray v Director of Public Prosecutions [1993] RTR 209的判決，肯定警員須作出警告，否則呼氣測驗或其他方法收集的樣本也無效，不能呈堂。我的看法是法例中使用的警告，是針對司機拒絕提供樣本時而作出，所謂可遭檢控是指39B(6) 拒絕提供樣本的控罪。39B(5)的警告就是為39B(6)而設。舉39B(1)為例

(1) 穿着制服的警務人員可要求以下任何人提供呼氣樣本，以作檢查呼氣測試— 

如果警察一開始要求司機提供呼氣樣本就必須先行警告的話，法例就應該這樣寫

(1) 穿着制服的警務人員須在預先警告下可要求以下任何人提供呼氣樣本，以作檢查呼氣測試— 

況且「須警告該人沒有提供該樣本可遭檢控」，可遭檢控所指為何？沒有提供該樣本的話，又怎能控以醉駕呢？證據何來？可遭檢控的控罪除了是「拒絕提供呼氣樣本」還可以是甚麼？若然我的推論正確，這警告就只會是在司機拒絕提供呼氣樣本時作出，而並非收集樣本的先決條件。Cox的ratio談及mandatory procedure的時候，也沒有講立法原意。House of Lords 在Russell v Divine一案確定了Murray v Director of Public Prosecutions及Howard v Hallett的看法，但我們也要比較一下，英國Road Traffic Act 1988 Section 7跟香港《道路交通條例》第39B條相異之處，來distinguish及反駁上訴。

HCMA 129/2012 香港特別行政區 高等法院原訟法庭 刑事上訴司法管轄權 定罪及刑罰上訴 案件編號：裁判法院上訴案件2012年第129號 (原觀塘裁判法院刑事案件2011年第5222號) _______________ 答辯人 香港特別行政區 訴 上訴人 陳子陽 _______________ 主審法官： 高等法院原訟法庭暫委法官杜麗冰 聆訊日期： 2012年7月19日 裁判日期： 2012年7月19日 判案理由書日期: 2012年8月22日 判案理由書 1. 上訴人被控一項「在呼氣中的酒精濃度超過訂明限度的情況下駕駛汽車」罪,違反香港法例第 374 章《道路交通條例》第 39A(1) 條，經審訊後被裁定罪名成立。上訴人不服定罪及刑罰，提出上訴。 控方案情 2. 案情並不複雜,簡略地說，上訴人在道路上駕駛一輛汽車,他被控方第一證人截停後,表示自己飲了4 枝啤酒及1 枝芝華仕。在這情況下,控方第一證人要求做呼氣測試,因他懷疑上訴人酒後駕駛。PW 1指上訴人沒有拒絕呼氣測試,所以他沒有向上訴人發出警告,但如果上訴人拒絕,他會警告及拘捕上訴人,亦會告知上訴人他的權利，及會告知上訴人如果他拒絕做呼氣測試，他會干犯拒絕呼氣測試之罪名。PW 1說他測試時候拘捕及警誡上訴人,罪名為酒後駕駛,稍後PW 1安排陪同上訴人返回警署。在警署內，PW 2再作酒精測試。當時PW 2有向上訴人解釋程序、警誡，及向上訴人說明一定要提供呼氣樣本,否則會有其他檢控,當時上訴人是同意及明白。 3. 控方證人作供完畢後,上訴人選擇不作證，亦沒有傳召證人。 裁判法官的裁決 4. 辯方在陳詞時，指根據香港法例第 374 章《道路交通條例》第 39B(5) 條：「任何警務人員在根據本條向任何人要求提供樣本以作檢查呼氣測試時，須警告該人沒有提供該樣本可遭檢控。」因此辯方陳詞,由於PW1沒有發出警告，引致測試結果是無效的。 5. 裁判法官考慮了案例及條例後，認為「本案是根據第 39A(1) 條而作檢控,無可否認上訴人在路邊被截停時,控方證人一沒有向上訴人作出警告,但上訴人是願意提供呼氣樣本,上訴人非拒絕提供呼氣樣本,在上訴人自願的情況下提供呼氣樣本,因此本席認為第 39B(5) 條的警告並不需要。」（見裁斷陳述書第 48 段） 6. 在這情況下，裁判法官判上訴人罪名成立。 上訴 7. 在上訴時,雙方大律師同意，根據《道路交通條例》第 39B(1) 條，當PW 1要求上訴人提供呼氣樣本，以作檢查呼氣測試，他須遵守第 39B(5) 條之規定，在向任何人要求提供樣本以作檢查呼氣測試時,須警告該人沒有提供該樣本可遭檢控。本席同意這條例屬強制性條文(mandatory provision),PW 1需嚴格遵行其規定，而其必要性亦不取決於駕駛者是否在自願的情況下提供呼氣樣本作檢查呼氣測試。 8. 值得一提的是雷大律師所提供的英國案例R （on the application of Cox） v Director of Public Prosecutions [2010] R.T.R. 18, 英國高等法院后座法庭所屬分庭(Queen’s Bench Division)裁定,相關警告條文屬強制性,故相關檢驗結果不能呈堂,定罪須予以撤銷。因此,雖然上訴人自願提供呼氣樣本,執法者仍必需嚴格跟從法例規定,必須發出警告，而上訴人的意願並非關鍵考慮。 9. 因以上的理由,本席判上訴得直,上訴人的定罪及刑罰被撤銷。 訟費 10. 郭資深大律師代表上訴人申請在裁判法院審訊時及在上訴聆訊時的訟費，雷大律師不反對給予上訴人在上訴時的訟費，但反對在裁判法院審訊時的訟費。因雷大律師陳詞指上訴得直是因技術上的問題。 11. 正如終審法院在Tsang Wai Ping v HKSAR （2005） 8 HKCFAR 81裁決時指「法庭不應以被告人基於技術原因而獲判無罪為理由,而在抵觸無罪推定的情況下,拒絕判給該人訟費」。不過，在某些情況下，法庭確可基於上述理由而在不抵觸無罪推定的情況下拒絕判訟費給被告人。舉例說,被告人因控方未能取得展開檢控所需的同意,而獲判無罪。 12. 本席認為在這情況下,上訴得直是因警員在收集證據時沒有遵從法例,而令今次定罪無效。因此在公平考慮下,本席認為上訴人應得到在裁判法院審訊時的訟費及上訴聆訊的訟費。如訟費的數目受爭議，則交由聆案官處理。 13. 最後,本席感謝雙方大律師仔細及全面的書面陳詞,及需要讚揚雷大律師對本案的公平處理。 (杜麗冰) 高等法院原訟法庭法官 答辯人：由律政司高級檢控官雷芷茗代表香港特別行政區 上訴人：由翁宗榮律師事務所轉聘郭棟明資深大律師及何慧嫻大律師代表

Epping滅門案能否交付高院審訊？

Loyal wife keeps smiling - and provides alibi for night of murders

Date: August 25, 2012 

Despite the charges and a rigorous prosecutor, Kathy Lin is standing firm.

Taking the stand … Kathy Lin leaves court. Photo: Peter Rae

KATHY LIN'S face lights up as her husband is brought up from the cells at Central Local Court.

Craning her neck to make eye contact, she gives the slim 48-year-old a small, excited wave and a beaming smile.

Robert Xie stands accused of murdering her brother, her sister-in-law, her two nephews and the boy's aunt, in their North Epping home.

The July 2009 deaths are arguably the worst multiple homicide Sydney has seen in the last two decades.

But after the first four days of Robert Xie's committal hearing this week, there can be little doubt that Ms Lin continues to support the man she married 13 years ago and to believe he should be freed.

The 41-year-old was called as a witness for the prosecution. But far from providing evidence of her husband's guilt, Ms Lin seemed convinced of his innocence.

During the second day of her testimony before the magistrate, John Andrews, Ms Lin told the court that on the night of the murders Robert Xie had never left their bed.

''In my knowledge he stayed with me in the bed,'' she said. ''In my knowledge he didn't leave the house.''

Though qualified by the words ''in my knowledge'' these statements go some way to providing Robert Xie with an alibi for the pre-dawn hours in which the murders allegedly took place.

But the prosecution was less than satisfied.

The Crown prosecutor, Mark Tedeschi, QC, produced the transcript of an interview Ms Lin had with police in March 2010 in which she said she did not know whether her husband had got out of bed that night.

''On the 20th of July 2009 you claimed that [Mr Xie] was home all night,'' Mr Tedeschi said. ''In March 2010 you didn't know and on the 6th of May 2010 you didn't know. And now you claim that you know and that he didn't leave the house.

''Is it the case that your memory of what happened on the night of July 17 is better now than it was then?'' he said.

The interactions between Ms Lin and the Crown were adversarial for much of the two days she was in the witness stand.

Mrs Lin's answers were very soft and at times indecipherable, with the magistrate, John Andrews, sitting just metres away, repeatedly asking her to speak up and to repeat what she had said.

The Crown suggested on at least two occasions that Ms Lin was playing up her limited English skills to avoid answering a question.

''[The question] was in much simpler English than that used in the police interview … I'd be surprised if she didn't understand it,'' Mr Tedeschi quipped at one point.

Ms Lin denied the prosecution's claim that, during the frantic triple-0 call she made after discovering the bodies of her relatives, her husband had ignored her pleas to stay and driven away.

''I want to suggest to you that you were begging your husband to stay at your brother's place until the police came,'' Mr Tedeschi said, after playing a recording of the call in which she is heard pleading with someone in the background in Cantonese.

''You said to your husband 'Stay here, stay here, wait, wait a bit until the police come' in a desperate tone,'' Mr Tedeschi said.

Ms Lin replied: ''No, I didn't say that.''

Mr Tedeschi also suggested to Ms Lin that, in the months after the murders, she had tipped her husband off about an important aspect of the police investigation into the murders, namely, their suspicion that the bloodied shoe prints found at the crime scene matched the kind of Asics running trainers favoured by Mr Xie.

The court was played video footage captured by police surveillance cameras on May 6 last year, the same day Ms Lin was asked questions by the NSW Crime Commission about her husband's choice of running shoe.

It allegedly showed Mr Xie cutting up shoe boxes, placing the pieces in a bucket of water, and taking them into the toilet.

Ms Lin said she was ''not sure'' whether she had told her husband about this aspect of the police investigation, and denied outright that he had disposed of shoe boxes the night after her Crime Commission interview.

As her husband was taken back down to the cells at the close of proceedings, Kathy Lin reached through a gap in the glass walls of the dock to squeeze her husband's hand.

上面張貼了今天Sydney Morning Herald對Kathy Lin前幾天作供的寫照，控方證據的強弱露了端倪。在上一個blog，有讀者問我既然committal hearing旨在讓裁判官檢視證供是否足以交付(commit)高院審訊，為何容許傳媒報導。背後的理念，以我這個對法律只懂皮毛的人來說，實在不敢造次，胡亂解釋。香港和新南威爾斯州所訂立的法律也恰巧相反。香港的committal hearing是閉門聆訊，不得報導證據內容(裁判官條例第80及87A條)；新州的committal hearing卻是公開聆訊，故此能夠報導。孰是孰非，我不能妄下定論，總的來說要對open justice及保障公眾利益作出平衡考慮。審訊前及審訊期間的評論也需極度小心，以免影響審訊的公正性(fair trial)，以致構成藐視法庭。故此對滅門案，我不敢過份評論。

報導顯示Kathy Lin錄取的幾份講法不一的口供，我可以肯定說是有「高人」指點過精心炮製出來的。在現階段也不能詳細講我的看法，玄妙之處暫時不能為外人道，尤其是涉及妨礙司法公正的指控。籠統地講，這是一石二鳥之策。

傳媒一直都沒有提及被告曾經錄下自行入罪的警誡口供(inculpatory cautioned statement)，我只好假設這方面的證供欠奉。就報導看，控方依賴Kathy Lin去證明被告在案發時是否在家，清洗車房並不尋常，慣常穿哪種球鞋(推論與兇案現場鞋印的關連)，這些看來都泡了湯。餘下的證供只有被告車房找到吻合其中一個死者的血漬及偷錄的証據。血漬不是獨一無二的，既不能推斷一定來自死者，就算能夠確定從死者而來，兩家人是親戚關係，必定有日常交往串門，在甚麼情況下留下血漬有甚麼出奇。而且科學鑑證人員的搜證過程及方法，證物處理的程序chain of evidence如果有任向環節出錯，可能變成inadmissible。裁判官聽畢證據後，會否判令本案交付高院審訊，採取的標準是

62 Prosecution evidence and initial determination

(1) The Magistrate must take the prosecution evidence in accordance with Division 3 and must determine whether the prosecution evidence is capable of satisfying a jury, properly instructed, beyond reasonable doubt that the accused person has committed an indictable offence.

(2) The Magistrate must discharge the accused person in relation to the offence if, in any committal proceedings, after all the prosecution evidence is taken and after considering all the evidence before the Magistrate, the Magistrate is not of the opinion that, having regard to all the evidence before theMagistrate, the evidence is capable of satisfying a reasonable jury, properly instructed, beyond reasonable doubt that the accused person has committed an indictable offence.

(Criminal Procedure Act 1986-Section 62)

案件發展下去還有另一個可能性，就是控方提出中止檢控(enter a nolle prosequi)。Nolle prosequi並不等同撤銷控罪(offer no evidence)，Enter nolle之後還可重新檢控。以目前看到的證據，控方並無勝算。

Unveiling the Evidence of the Epping Murder

Blood in Xie's garage matches Lin's, court hears

The man accused of the 2009 Lin family killings, Robert Xie, left a single blood spot in his garage that had virtually identical characteristics to blood from one of the five victims, a court has heard.

......

In his opening address to magistrate John Andrews in Central Local Court this morning, Crown prosecutor Mark Tedeschi, QC, outlined key pieces of evidence in the Crown case, including the discovery of the small patch of blood in Mr Xie's garage.

"That blood profile has been compared to Y [chromosome] profiles in databases around the world," Mr Tedeschi said.

"That profile has been found to match only one person in the 40,000 profiles. That person is Min Lin himself."

Mr Tedeschi also said that very similar mixes of the victim's blood were found at the crime scene.

"There is only one way that a mix of blood so similar could have got into his garage. That is because [Mr Xie] is responsible for the murder of the five people in his brother-in-law's house."

He also said that, early on the morning after the killings, Mr Xie had woken early and cleaned his garage, something which he "would never normally have done".(20.8.2012 SMH)

'Somebody's killed my brother's family'

The wife of Robert Xie, the man accused of murdering the Lin family, made a hysterical triple-0 call after finding the bodies of his alleged victims in their North Epping home, telling the operator: "I think someone's killed my brother's family."

Kathy Lin, 41, broke down in Central Local Court today as a recording of the emergency call was played during Mr Xie's committal hearing over the 2009 deaths.

 .......

The next day Ms Lin and her husband went to the house in Boundary Road to check on the family and Ms Lin found her relatives lying dead in their beds.

In a frantic, tearful phone call to triple-0, Ms Lin is heard saying: "I need an ambulance! I need an ambulance!"

The operator responds, "Why do you need an ambulance, what's wrong?"

Ms Lin then says: "I think somebody's killed. I think somebody's killed my brother's family."

The 41-year-old is then heard pleading with someone in Cantonese in the background. The prosecution is expected to allege that that person was Mr Xie, who had allegedly told his wife that he was going to leave.

Mr Xie also sobbed as the recording was played, covering his face with a handkerchief.

When asked by the Crown prosecutor, Mark Tedeschi, QC, with whom she was pleading, Ms Lin said: "I can't remember" and then "I was scared."

When Mr Tedeschi pressed the question, Mr Xie's barrister, Graham Turnbull, SC, objected, accusing the prosecutor of "cross-examining the witness". (21.8.2012 SMH)

Wife of accused Lin family killer denies he left her at scene

THE man accused of the 2009 Lin family murders, Robert Xie, left his wife at the crime scene as she made a frantic triple-0 call seeking help for her dead relatives, ignoring her desperate pleas for him to stay, a court has heard.

But the woman at the centre of the claims - Kathy Lin - denied this yesterday, telling the court that, far from being abandoned, she had asked her husband to leave. 

........

During fraught and at times heated testimony by Ms Lin yesterday, her hysterical triple-0 call following the discovery of her relative's bodies was played to the court.

After a stilted exchange with the operator - in which Ms Lin says frantically: ''I think somebody's killed my brother's family'' - she can be heard shouting at someone in Cantonese.

A car engine is heard and the call ends abruptly.

Reading from a translated transcript of the call, the Crown Prosecutor, Mark Tedeschi, QC, put it to Ms Lin she had begged her husband to stay until the police arrived.

''You said to your husband, 'Stay here, stay here - wait', in a desperate tone,'' Mr Tedeschi said. ''I want to suggest to you that the reason you said that was that you were scared … I suggest that … you had just found some bodies inside the house and you were scared that you might be in danger yourself.

''I suggest that while you were asking your husband to stay with you that he drove away.''

But Ms Lin denied this, claiming under oath that she was scared, not for her own safety, but because she was worried she would be unable to communicate properly with the triple-0 operator and police.

She said that, rather than asking her husband to stay, she had ''asked him to pick up my parents and then come back''.

Mr Tedeschi also put it to Ms Lin that, following a series of interviews with the NSW Crime Commission some months after the murders, she had tipped her husband off about an aspect of the police investigation, namely, whether the bloodied footprints at the crime scene matched his running shoes. Ms Lin said she ''wasn't sure'' whether she had told him about this.

The court was then played video footage from the couple's home taken by hidden police cameras soon after Ms Lin's last Crime Commission interview which allegedly showed Mr Xie cutting up shoe boxes, placing the pieces in a bucket of water, and taking them into the toilet.

Ms Lin initially said she couldn't remember this happening, but when showed the footage said: ''It's not shoe boxes … just something … '' (22.8.2012 SMH)

Lin deaths: husband was in bed with me, wife tells court

The wife of the man accused of killing the Lin family in 2009 has told a Sydney court that, to her knowledge, he was in bed with her on the night the killings took place.

But prosecutors say Kathy Lin, 41, gave different evidence to police two years ago. 

.......

When asked by Crown prosecutor, Mark Tedeschi, QC, today whether her husband had left their bed on the night of the deaths, she said: "To my knowledge he stayed with me in the bed."

But Mr Tedeschi then produced the transcript from an interview Ms Lin have to police in March 2010.

In this interview Ms Lin said she did not know whether her husband had got out of bed that night.

"You said to police, 'I don't know,'" Mr Tedeschi said.

Ms Lin also appeared to change her evidence about what time she and her husband had gone to bed that night.

Today she told the court that the couple had gone to bed "around two o'clock", while in 2010 she told police she did not know.

When questioned why her evidence in 2010 was different to that she was now giving, Ms Lin said she had not wanted to do the police interview that day.

Mr Tedeschi suggested to Ms Lin that she was "embellishing" her evidence, but was forced to withdraw this question following an objection from Mr Xie's barrister. (22.8.2012 SMH)

The committal hearing of the Epping murder was in the limelight in the past few days. The star witness, Kathy Lin, did not come up to proof. But, it did not surprise the prosecution at all. From the media report, we can see that she gave contradicting statements before testifying in court. Under this background, the prosecution cannot turn her hostile. It is not a case that her previous statement is inconsistent with her testimony. She gave inconsistent statements all along. Her veracity was in doubt at the outset. If she does not damage the prosecution case, then she is not helpful to the prosecution at all. The importance of this witness is only a wistful thinking of the prosecution. If she cannot be relied on, then the prosecution cannot establish whether the accused was at the crime scene at the time of the murder or he was in fact cuddling his wife in bed. The prosecution is unable to establish his cleaning of the garage was unusual. What is left in the prosecution case is the blood spot matching one of the victims' blood found in his garage and what was taken by the secret camera as to the cutting up of shoe boxes allegedly the accused tried to soften them to flush  down the toilet. 

The behaviour of the accused was highly suspicious but the ultimate question is whether there is irresistible inference drawn pointing to the guilt of being the atrocious murderer. From time to time a crime is committed but no one is convicted.  We have to live with it. 

尿液掉包

認造假懲教員：釋囚「更生率」篤數

【明報專訊】兩名懲教人員去年以瞞報、或以自己尿液代替釋囚驗尿等，令釋囚逃過被召回戒毒所，其中一名懲教員昨認罪後，在庭上「大爆」署方內部多年來奉行「非官方做法」，例如換掉再吸毒釋囚的尿液樣本、謊稱失業釋囚「有工開」等，以「做靚盤數」，提高更生個案成功率及釋囚就業率。

兩被告認行為失當

兩被告分別為前懲教主任鄧貴文（48歲）及一級懲教助理梁肇榮（53歲），兩人昨承認一項公職人員行為失當罪。同在更生事務組工作的鄧與梁，2009年案發時是隊友，一同負責喜靈洲戒毒所釋囚的一年法定監督工作。鄧同年被捕後被停職，今年7月自行請辭。

控方案情透露，09年4月至11月期間，鄧、梁故意對10名釋囚失職，如沒有到釋囚家中或工作地方探訪、沒有正確填寫監督紀錄。此外，二人在明知有釋囚報告出獄後曾吸毒仍隱瞞署方。其中，梁更將曾再吸毒的釋囚的尿液樣本丟棄，換上自己的尿液送往化驗。

指上司指使 內部奉行多年

代表鄧貴文的資深大律師李定國就控方部分案情有爭議，「大爆」懲教署一直有「不可能的規則」要求懲教員達到，指被告的犯法行為亦受上司指使。自1990年加入懲教署、1995年調任更生事務組的鄧坦言，「實際工作環境，我諗大家都想像唔到」。

鄧透露，釋囚「今日放出來，聽日去探佢哋已經出咗問題」。根據官方做法，懲教員應將釋囚的尿液樣本送往化驗，但實際上，鄧透露「一般就係換咗啲尿液，邊個負責交嘅（樣本），邊個就換咗佢」。假如釋囚再次因吸毒被召回，會被視為「失敗個案」，故懲教員會改以其他原因將釋囚召回。

助隱瞞再吸毒失業

鄧又坦言加入部門首天，已有主任級同事教導「非官方做法」，稱是由於署方關注更生個案成功率方出此下策，「啲前線員工個個都唔想咁做」。此外，為保釋囚就業率高企，鄧指倘有釋囚失業，同事一般只會以其他原因推說，或是向上級稱釋囚有工作。

鄧續說，上級在每月例會中，會暗示他們跟從「指令」。其中2008年一次例會中，時任更生事務組監督袁樹繁更明言「好關心個案成功率」，又謂由於當時的成功率正在下降，故着下屬若要召回釋囚，「就用其他理由，如果要用『吸毒』為理由，必先要問過當時嘅主管」。鄧當時認為袁的說話露骨，「係好明顯咁阻撓我哋做啲嘢」。

控方質疑犯案只為升職

惟控方引述鄧於2007至09年間的工作評估報告，指主管對鄧評價甚高，他亦一直維持高個案成功率，故可以升職，質疑鄧是為升職方犯案。鄧否認，又指一直對升職不感興趣，但報告內未有提及。聆訊今續。

【案件編號：ESCC5021/11】 (21/8/2012)

明報這則新聞報導懲教署職員，為了提升釋囚成功戒毒率而篤數，被告既然認罪，為何還要上證人台作供呢？正如報導所講，控辯雙方對部分案情有爭議，所以採用Newton Hearing/Inquiry方式進行。這Newton並非物理學家牛頓(Isaac Newton)，而是1983 R v Newton一案，對被告認罪但爭議案情的情況下，定出處理程序：聽取雙方有爭議部分的證供，法官作出事實裁斷；或不聽證供，只聽陳辭而作出裁決。

被告作供大爆驚人內幕，如果問我信不信他所講，我一定相信。這件案使我聯想到劉志偉案(Lau Chi Wai and HKSAR FACC4/2004)。警員劉志偉是藝人謝霆鋒2003年3月23日在花園道撞車，到場處理的交通警員，劉志偉在案中被控串謀妨礙司法公正，定罪後一直上訴至終審法院而脫罪。終院批准上訴其中一個原因是指謝霆鋒的頂包司機成國定，在現場對警員要求頂包的講法，屬固有非或然性(inherently improbable)。

Outstanding features of the prosecution case

24. Leaving aside for the moment the defence case, a number of curious points concerning the prosecution case spring immediately to mind :
 ........... 

(2) The notion that Shing went up to the first police officer he met at the scene and asked him whether it was “all right to have someone stand in” was inherently improbable : It was tantamount to saying : “Is it all right for me to commit a crime?” In fact, that officer was, with the aid of a press photo taken that morning, identified at the trial as PC50063. This must have been known to the prosecution at the outset. It is an odd feature of the case that the prosecution did not call him as a witness : It would have been bizarre if that officer had corroborated Shing’s story.

(3) The notion that PC50063 would have deflected Shing’s request to the appellant by saying it was none of his business is equally improbable : It was tantamount to saying : “I can’t tell you if it is all right for you to commit a crime, but that officer might …”(para 24 Lau Chi Wai)

今天這件「尿液掉包」案，如果被告不認罪而死撐到底，上到終審法院好有可能又來一次inherently improbable來開脫。劉志偉有膽量寫回憶錄的話，一定會恥笑這些充滿睿智的大老爺。

為高級檢控官曾藹琪平反

我並不認識曾藹琪，在2002年離開香港前連這名字也沒有聽過，後來是從上訴案例或法庭新聞得悉這名字，正屬久聞其名，卻無緣識荊。最近因評論陳秀紅案而寫了檢控官的錯誤 一文，立即引起I及L君的反響，在兩位的提點下，讓我重新思考該文的評論，是否有欠公允。以我一貫主觀而頑固的性格，很少人能勸說或改變我的看法，就算我繼而寫的為檢控官翻案 及 再為檢控官翻案 兩篇，其實也不算真正為曾藹琪翻案，極其量是自己理據進一步的表述。不管I君是曾藹琪的化身抑或代言人，肯定是DOJ Advocacy Team的人。本來標少輕如微塵的言論，無足輕重，泛不起半點漣漪，不值一哂。惹起兩位神交已久的網友熱烈的討論，我不敢掉以輕心，尤其看到I君在檢控官的錯誤 第11則留言，展示寬宏大量的胸懷，叫標少慚愧。因此，我花了一點時間，翻閱曾藹琪代表控方的150多件上訴案的判辭，希望可以還她一點公道。

要從上訴判辭看法官的能力，一點也不難，要看檢控官的能力，卻一點也不容易。大部份上訴判辭裏，都沒有說明代表控方檢控官的陳辭，更沒機會看得到檢控官的書面陳辭。在150多件案中，紀錄曾藹琪陳辭的不足40件。其中可以看到2003年曾藹琪開始在上訴法院代表控方，2008年她正式晉升為高級檢控官。曾藹琪給我的印象是個既稱職又公平的人。我只看到在2005年的一宗案裏，聽審上訴的高院法官帶點貶斥的批評：

However, in her oral submissions, she had submitted as best I am able to understand the argument, that somehow section 44(2) had the effect of requiring a mandatory consecutive period of disqualification. I hope I do not do her argument any injustice just by saying I simply do not understand that when one reads the words of the subsection. (HKSAR and Chan Wing Kuen  HCMA 1047&1048/2005)

另一方面，該名法官對代表上訴人的律師也不客氣。這是我在150多件案找到唯一對她帶貶斥含意之處。相反而言，上訴法院同意曾藹琪論據的例子卻很多。在不少判辭裏可找到她據理力爭的例子，而在應該持平讓步的時候，她也會恰當而行。

我再看自己所寫檢控官的錯誤 一文，結合留言及判辭，不能不承認冤枉了曾藹琪，謹此致歉，並收回「自打嘴巴」「傻兮兮的作出讓步」及「思路不清，立場飄忽」的評語。我一向不抬花轎，罵人無數，既然罵錯了，自當反躬自省，立blog矯枉，以正視聽。

澳洲警察

Police Tasered mentally ill man, 84

Date :August 16, 2012 - 6:15AM


An 84-year-old man with dementia was Tasered by police. Photo: Suppied

An 84-year-old man with a history of dementia was repeatedly shot with a Taser and pepper sprayed by police in an incident that prompted a review of treatment of "elderly, infirm, immobile persons".

The Bexley man was the oldest person to be hit by a stun gun in NSW since April 2011 and a 16-year-old boy was the youngest person on whom Tasers were used, documents released under freedom of information laws show.

The information release comes months after the government refused to answer questions, put to the police minister in parliament, about Taser use.

In the Bexley case, police made a 3am (AEST) call to the 84-year-old man's home in February after his wife - fearing for her life - barricaded herself in a bedroom.

Officers arrived to find the man with a Stanley knife in hand, and deployed the stun gun for a second time when he failed to follow directions to get on the ground.

They said the man had experienced worsening dementia for 11 years.

"(His wife) locks herself in her bedroom of a night-time for her safety. She feels she can no longer control him," they wrote in their report of the incident.

The wife was taken to hospital immediately after the incident for a suspected heart attack.

The incident was examined by NSW Police Assistant Commissioner Mark Murdoch, who found the officers' response was "reasonable".

The youngest person stunned with a Taser was a 16-year-old who had threatened his father with a wooden plank and attempted to strike police.

NSW Labor MP Walt Secord made the information request after the government refused to answer a question about Taser use in parliament.

He was told the information was not readily available, and providing it would be an "unreasonable diversion of resources from frontline policing".

Mr Secord said more information should be available about Taser use.

"I think there is a responsibility that comes with it, and the community has a right to know where they are being used, why they are being used and whom they are being used on," he said.

AAP  (Sydney Morning Herald 16/8/2012)

澳洲警察給我的印象是拔槍快，開槍快，置之死地成一快。電槍也好，手槍也好，命中率高，命喪率也高。不開則矣，一開必彈盡，中彈的人糧絕，吃了子彈的人，以後甚麼也吃不下，沒有機會再吃。上面這則新聞的事主已屬幸運，警察沒請他吃子彈，他自己的老心臟可以抵受得住電槍的電壓，得以不死，老不死。要尋死而沒有勇氣自行了斷的人，可以來澳洲找警察幫忙，拿把刀在他們面前幌幾下，必死無疑。他們既不會空手入白刃，也沒有盾牌作防衛式的應對，開槍不打要害----以外的他方，而且必定是「彈盡糧絕」，給人必死的保證。這裏警察開槍，上峯力撐，沒有見過被評為unjustified的例子。

管轄區不同 港警可重新起訴？

管轄區不同 港警可重新起訴

【明報專訊】兩名被告在內地服刑完畢後，再遭香港警方就同一事件拘控。大律師陸偉雄指「一案兩審」是指在同一個司法管轄區內，控方不得就同一案件審判兩次，重審除外，而香港與內地屬於兩個司法管轄區，兩地對於同一罪行有不同的法律管制，只要串謀行為在香港展開或完成，案件即與香港有關，警方有權重新起訴。

內地服刑可作求情理由

陸又指即使被告已在內地服刑，但在香港仍算首次受審，不會有不公允之說。不過，辯方可引用被告已在內地服刑作為求情理由，以此案為例，內地的控罪可能只控傷人，但傷人行為或是為了影響香港選舉。

【明報專訊】前米埔村長文貴旗兩年前在深圳遭潑淋鏹水，兩名港人兇徒早前在深圳福田法庭承認，為了6萬元報酬替另一村長參選人傷害文貴旗，二人服畢兩年刑期後至日前回港，即再被香港警方拘控，案件昨日提堂。惟二人不滿控方「一罪兩審」的做法，指對他們不公。

........
(2012年8日15日)

兩名被告是否屬一罪兩審？我不同意大律師陸偉雄所講「香港與內地屬於兩個司法管轄區，兩地對於同一罪行有不同的法律管制」的看法。很明顯控方認為淋鏹水串謀的地方在香港，執行則在深圳，conspiracy and substantial offences並非同屬一罪，不能plead autrefois convict。就算兩個不同司法管轄區，兩名被告在香港也不能再控以淋鏹水，一則發生地點在大陸，香港沒有域外司法管轄權，一則兩名被告已因淋鏹水而遭檢控服刑。有些人可能覺得，大陸審訊結果，香港怎能承認。縱使大家法治制度迥異，大陸的法院也屬a competent court in another jurisdiction，以兩個不同司法管轄區的講法來解釋這件案檢控的法理依據，根本不成立。這次極其量只能控以串謀，證據會從警誡口供(cautioned statement)而來。

唯一有機會以一罪兩審為抗辯理由，是以第二次審訊的案情與第一次的相同或極為相同(a person faces a second trial arising from the same or substantially the same set of facts as gave rise to an earlier trial)(para 21 YEUNG CHUN PONG AND OTHERS v. SECRETARY FOR JUSTICE FACC8/2008)，要求法官終止聆訊。串謀(conspiracy)與實際作出的犯罪行為(substantial offence)，案情很難會是一樣，申請終止聆訊的成功機會很低。

Epping滅門血案的committal揭幕

Mystery source to stay a secret in murder case

Date August 14, 2012

THE identity of a ''secret source'' who allegedly led police investigating the 2009 Lin family murders to make Robert Xie their main suspect is set to remain a mystery, after a judge ruled that the source must remain confidential.

Police allege Mr Xie, 48, strangled and beat to death his brother-in-law Min ''Norman'' Lin and four members of Mr Lin's family in their North Epping home in the early hours of July 18, 2009.

They arrested him in May last year following one of the largest homicide investigations in the state's history.

Last month, during legal argument in Downing Centre Local Court ahead of Mr Xie's committal hearing, his lawyers said there was evidence to suggest he had been the victim of a ''malicious complaint'' that had ''biased'' the police investigation against him.

Mr Xie's lawyer, Lester Fernandez, told the court that four months after the murders, when police were still looking for suspects, a secret source told detectives there was ''conflict'' and ''tension'' between Mr Xie and his father-in-law and mother-in-law.

Mr Fernandez said this had led detectives to ''craft a case'' based on the theory that Mr Xie had murdered his brother-in-law's family because he felt they were being unfairly favoured by his mother-in-law and father-in-law.

Mr Fernandez applied for an order that would force NSW Police to reveal the identity of the source and any information he or she had given them.

But NSW Police opposed the application, arguing it was a ''fishing trip'' that had ''no legitimate forensic purpose''.

They also argued that it was in the public interest for confidential police sources to remain secret so that others felt confident that they would be protected if they came forward.

Yesterday, Magistrate John Andrews found that, while the identity of the informant was potentially important to the defence case, this was outweighed by the public interest in protecting confidential sources.

The hearing will begin on August 24. (Sydney Morning Herald)

8月1日有讀者在徒勞無功：Epping滅門案的檢控 一文留言，問我對辯方申請披露告密者身分的看法，我的答覆是不會批准。除了裁判官昨天所講"while the identity of the informant was potentially important to the defence case, this was outweighed by the public interest in protecting confidential sources."的理由之外，最重要的是不披露告密者身分對被告是否造成不公(prejudice)。把告密者身分保密，對刑事情報搜集十分重要，無論怎樣民主自由的地方，都不會胡亂披露這些資料，除非這些人本身是控方證人，類似所謂「二五仔」(snitch)，否則在法理上看不到披露的需要。在刑事案審訊中，有時警察會講收到情報而採取行動，但不能講收到情報的內容，原因並不單止關乎機密與否，主要是涉及違反法則的傳聞證供及可能對被告構成偏見(hearsay and prejudicial effect)。故此，這次辯方的申請是明知不可為而為故意採用的虛招，營造一種有人誣陷被告，而警方又不肯披露消息，對辯方不公的印象。就算有人出於惡意提供虛假消息給警方，使其調查失誤，講到尾都是有沒有毫無合理疑點的證據足以把被告定罪的問題。告密內容反而屬於：prejudicial effect outweighs probative value的inadmissible evidence。

Fly Virgin Atlantic II

I wrote the blog Fly Virgin Atlantic on July 25 2012. In order to save my daughter's time and she being the passenger,  I wrote the complaint email and she sent it out as the complainant. Here comes the reply from Virgin Atlantic. 

Dear Miss Siu

Thank you so much for your recent email.  I was very disappointed to her that your flight from Sydney to Hong Kong was cancelled.

I have taken the time to fully investigate the cancellation of your flight and would like to explain the reason why your flight was cancelled.

The inbound aircraft due to operate your flight diverted to Brisbane due to extreme fog in Sydney, which prevented us from landing safely.  Delays caused by congestion in Brisbane meant that the crew were unable to operate the flight on to Sydney, because they would have exceeded their legal duty hours. 

We therefore had no option but to cancel your flight, in order to satisfy the legalities of crew working hours and minimum rest periods. 

Our airport staff in Sydney worked proactively to rebook all affected passengers on to other available services departing Sydney, in order to minimise the disruption to your journey, and I can see that our staff booked you to travel with us the following day.  I hope you can accept my sincere apologies for any inconvenience caused.

Although, occasionally, cancellations are unavoidable, we try to be clear with passengers about what is happening.  In hindsight, it is evident that we could have improved on this occasion.   You have made some valid and constructive observations and I will make sure these are passed to the station manager, as they may be helpful for the future.

In closing, I do hope that you will accept my sincere apologies that you felt so let down following your flight.  I am confident that we are capable of delivering the level of service you have every reason to expect, and given the privilege of serving you in the future, we will do our best to ensure that any travel is without incident or disappointment of any kind.

Kind regards

Hayley Leaney (Mrs)
Customer Liaison Manager

Never mind the typo in the first line of the letter. The reply letter may please some easy going complainants but not me. Cancellation blah blah blah. The subject matter of the complaint was why flight information was not updated. I did not complain about the cancellation itself. No one will dispute cancellations are unavoidable. I did not make any constructive suggestion either. I only queried why the very minimum they could have done by updating the flight information was not done to avoid passengers' unnecessary travel to the airport. It is a very basic work attitude not luxuriously demanded from an affected passenger. It is interesting to see the reply  "In hindsight, it is evident that we could have improved on this occasion. " Updating the flight information is a hindsight epiphany, Oh My God. It is not the first day Virgin has been in operation. In blind sight they just turn a blind eye to sluggishly claim they have discharged their duty to the best of their incompetent ability. If the station manager ever gets to the witness stand, I will just crack him/her in a few questions. I would expect to see an unreserved and profuse apology for the mishandling of the cancellation. It is ludicrous to see "airport staff in Sydney worked proactively to rebook all affected passengers on to other available services departing Sydney". What else do you do? Cancel the flight and confiscate the money? The letter is an affront to the intelligence of an ordinary person.

The Judge and the Charismatic Lover: A Charmer Turns Harmer

We never see judicial officers in Hong Kong being as candid as their UK counterparts or are willing to unveil their personal life to the public before retirement. The story below of the UK Judge is rather interesting and revealing. Mind you, bonkers is an adjective not a noun. It means crazy.

'I'm not angry': UK judge tells of partner's 'bonkers' affair

Date: August 13, 2012 - 6:18AM

EDWARD MALNICK and WILLIAM LANGLEY in London

She is the judge whose QC partner left her for a paralegal 50 years his junior. Here Constance Briscoe gives her verdict on a 'bonkers' affair.



Constance Briscoe ... stunned by the affair.

HE WAS brilliant, a charmer, and one of London's more colourful barristers. She was exotic, outspoken and flying high as a pioneering black female judge. Their friends wished Anthony Arlidge and Constance Briscoe well, but in gossipy legal circles the question was asked: how could it not all go wrong?

When the news that it had done broke last week, both sides had their cases prepared. Judge Briscoe claimed that the 75-year-old silvery-haired QC with whom she had lived for 12 years was "bonkers".

Confirming that he had left the judge for a 25-year-old junior barrister called Heather Lockwood, Mr Arlidge said: "We are living together. The relationship is going very well."

Further complicating matters was the disclosure that Mr Arlidge remains married to Enid, the wife he broke up with almost 30 years ago, and there are hints that this lingering attachment may be the key to the whole awkward situation.

Speaking to The Sunday Telegraph, Judge Briscoe, 55, claimed that Mr Arlidge's defection came after she urged him finally to seek a divorce: "I did say to him, 'You've got to sort your affairs out. You've been separated for God knows how long, you need to get divorced."'

Instead of getting divorced, he went off with "this young lady".

Constance Briscoe, the daughter of Jamaican immigrants, is no stranger to heartbreak. Or to controversy.

Six years ago she published a bestselling memoir, Ugly, in which she detailed the abuse she allegedly suffered as a child. The book records how her mother, Carmen, neglected her, beat her for wetting the bed, taunted her about her looks and once refused to buy her school photograph saying: "You is too ugly."

Carmen, supported by some of her other six children, denounced the story as a pack of lies and sued for libel. A High Court jury sided with the author.

Judge Briscoe says she met Mr Arlidge "looking a bit down" in the cafe at the Old Bailey in 2000, where they were appearing in separate trials. She gave him blue "power beads" to improve his mood, and he responded. "He knew I was a very keen gardener so he invited me to his house to look at his herbaceous borders, but I didn't know a great deal about him at that time so I did a bit of research," she said.

"I knew about the intellect, I knew about the cases, I knew about the brain?... but I didn't know a lot about what he was about, so I did some research, rang up some of my friends and they all said the same thing - keep away from him.

"He's really very generous, very clever, wonderfully clever ... He has a phenomenal brain, which is why he is truly bonkers."

Mr Arlidge - the father-in-law of the BBC's economics editor, Stephanie Flanders - had recently broken up with Tracy Ayling, a fellow barrister with whom he had lived for 16 years. One of London's most eminent silks, he is described in Chambers Guide to the UK Legal Profession as "a speaker who instantly commands the attention of judge and jury".

On this occasion, he had no trouble commanding Judge Briscoe's. From her ghastly childhood, she had staged an impressive recovery, taking a law degree at Newcastle University, being called to the Bar in 1983, and becoming a recorder, or part-time judge, in 1986.

Although held up as an example of black advancement, Judge Briscoe says that her boyfriends have all been white, including Adam Wilson, a fellow lawyer with whom she has two children.

At first, it seems, things went swimmingly with Mr Arlidge. Judge Briscoe moved into his south London town house, where they discussed his retirement plans and how they might settle in France.

She says he "got on fantastically well" with her children. As a couple they were successful and popular, until, en route to a birthday party in late 2010, the QC dropped his bombshell.

"He told me that he had fallen in love," Judge Briscoe remembers. "I didn't know her age at the time. When he told me, I said, 'Well if you love her more than me I'll stand to one side.'

"'Oh,' he said, 'that's very decent of you.' Then the next day after this discussion I thought, 'Actually I don't think so.'

"So we had a discussion and I said, 'Hold on a minute. I don't think I am prepared to stand to one side.' He said, 'I think I'm falling in love.' I said, 'OK, you're falling in love. I'll tell you what, go and have your affair and get it out of your system. When you've got it out of your system come back - it's no big deal.'

"'Oh,' he said, 'I don't think Heather would like that.' I said, 'Hold on a minute, just tell me about how did this happen, when?' And he said, 'She got me when I was vulnerable.' I thought, 'What? She got you when you were vulnerable?'

"After that I discovered her age. Tony had said, to be fair to him, 'Constance, she's much younger than you.' I was thinking, 'She can't be that much younger because you're 20 years older than me."'

Judge Briscoe appears, in fact, to be more than fair to Mr Arlidge. "I have to say that people of all sorts of ages would find him attractive. He's witty, he's clever, he's intelligent, he's very generous, he's warm-hearted. Those are good qualities he still has, despite being bonkers.

"He told me her age when I asked. If I hadn't been sitting down I'm sure I would have fallen over. I was more than upset. My relationship with him at that time was a very good relationship. I'd been with him for 12 years, we'd seen each other literally every single day, my children adored him. Good luck to them, if they can make it work they have my blessing.

"Am I angry with him? No, I'm not. If Tony was ill and rang me up and said, 'Constance can you come and help me out, I'm not well,' of course I would. He still is razor sharp, so there are no excuses there. This is about an inability to realise that age catches up with all of us."

Miss Lockwood is attempting to find a pupillage, the step which will put her on the way to a full career as a barrister. The Oxford graduate, who was educated at Newcastle Grammar School, is said to enjoy sports. On a social networking website she describes herself as '5'11' and 'large'. She is currently a paralegal with a London law firm.

Her father, John, was struck off as a solicitor in 2009 after defrauding Zimbabwean farmers, telling them they could win compensation from the British government for having their land seized by Robert Mugabe's regime in return for a pounds 1,000 deposit. Her mother, Jacqueline, lives in Sunderland, and was unavailable for comment. Judge Briscoe is forgiving: "This Heather I have never met, I'm not interested. I had heard enough, 25 ... a student in Middle Temple and at the time they met she was looking for a pupillage, which she still doesn't have, and she was looking for hopefully a tenancy after that - so good luck to her is what I say."

How she dealt with the issue of her partner's new relationship may raise eyebrows. "I didn't want any gossip about what was going on?... So I told my good friends, my head of chambers, my clerks and then I told a number of people who I was absolutely confident would spread it.

"This was at a time when Tony and this young lady were trying to keep it a secret so I suppose to some extent I forced that issue, I wanted it out in the open.

"I don't ever want anyone to feel sorry for me because I don't feel sorry for myself and I don't think I'm the victim. I think the victim here is Tony, he's a victim of himself. I think she is a victim and that collectively they are the ones we should feel sorry for."

Older man runs off with younger woman is hardly new. Yet Judge Briscoe's suspicions about Mr Arlidge's hankering for his long lost wife, the mother of his four children, adds an intriguing twist.

The veteran barrister was, so to speak, keeping his counsel last week, confiding little more than that he and Heather - whom he is believed to have met at a Middle Temple dinner, the central London inn of court where they now share his flat - were happy together.

"I have met her mother, and she says that if Heather is happy, so is she," added Mr Arlidge.

Is everybody happy then? Not judging from an exchange of emails between the abandoned judge and her ex-lover. "I loved you unconditionally for the best part of 11 years," wrote Judge Briscoe. "I wanted nothing from you but your love, affection and company. You took my love, crushed it up and then you threw it in my face."

To which the man with the reputation as a charmer replied: "I am sorry all this has had such a bad effect on you. Though I seem to remember there had been some conditions attached to our relationship continuing."

Conditions?

The Sunday Telegraph

再為檢控官翻案

I am indebted to Miss I for the enlightening remarks she made through her informative comments on my shallow views in 檢控官的錯誤. I have indulged myself in looking up the law about defendant providing assistance to the authorities. Miss I asked me to read Hui Yee Lung and HKSAR v Y which are helpful enough to shed some light on the issue of reduction. I go further to lend the assistance of Z and HKSAR FACC9/2006 and will rely on the general principle canvassed in it to further advance my argument to resist the appellant's application for reduction of sentence in 陳秀紅.

I know it is difficult to argue against the norm of reduction of 1/3 for guilty plea and 50% for giving truthful and material evidence for the prosecution. Be that as it may, one cannot overlook a justifiable sentence  in the interest of the public. I would certainly rely on the general principle in this regard in Z and HKSAR. I will rely on the 2 paragraphs below, especially the sentence "But this is considered justified in the overall public interest" in para 11. I would reiterate the starting point of 4 years is wrong in principle. It should be 5 years in its stead. A 50% discount means 30 months' imprisonment. A further discount of 6 months for restitution is already very generous. So accepted, the sentence comes to 24 months.  It is still 2 months more than the original sentence of 22 months the trial judge passed. An over generous discount will defeat the public interest and is not considered justified. Therefore, the original sentence though inadequate should not be tampered. I would urge the Court of Appeal to take a different path and in the end dismiss the appeal.

10. The policy of the courts to recognise useful assistance to the authorities in mitigation of sentence is based on the public interest. It is in the public interest that appropriate punishment should be imposed on defendants convicted of criminal offences. But at the same time, the prevention, detection and prosecution of crime is also in the public interest. The use of the informer is a powerful weapon in the hands of the law enforcement agencies in society’s fight against crime. Criminals should be encouraged to inform on other criminals. Honour among thieves should be discouraged. Indeed, dishonour and betrayal among thieves should be encouraged.

11. The courts have therefore adopted the policy of accepting useful assistance to the authorities as a mitigating factor. A discount to the sentence which would otherwise have been imposed is usually given for such assistance. This is a common approach in many jurisdictions. Its object is to provide an incentive for offenders to co-operate with the authorities. It encourages them to assist by giving information about the criminal activities of others, by giving evidence in prosecutions brought and the like. It must be recognised that the offender would be receiving a punishment which is less than that which his crime would otherwise have deserved. But this is considered justified in the overall public interest. The courts’ approach in this regard is a pragmatic one. (Z and HKSAR FACC9/2006 )

為檢控官翻案

The comments made by the readers especially "Miss I" in the preceding blog prompted me to write this blog.

In all fairness to the Senior Public Prosecutor (there is no need to associate Miss I with the prosecutrix)who might have very ably presented the prosecution argument in the Court of Appeal, from the additional information provided by Miss I, I have a clearer picture of the case now. I should say don't bother about what I said in the blog. I am only a country pumpkin who has developed a weird hobby of reading HK appeal cases and continued the weirdom by reducing my shallow views in writing. Who am I? Why bother?

My apology to anyone annoyed by my comments, friends or foes alike. People reading this blog should first read the comments made in the preceding blog, especially the meticulous analysis by Miss I and L. I truly think they are enlightening. By saying so, I do not think I can soothe the nerves of Miss I.

First of all, I am unable to spend time to research the law and legal precedents as suggested by Miss I because I do not have the resources and support. I have been reading the appeal cases from the Judiciary website which does not have a user friendly search design. My memory always fails me. The more I read, the more I forget. Only in very rare occasions I could be able to make a mental note of certain cases of interest. On the other hand, I am helping a friend pro bono at the moment for some other non legal matter. I cannot concentrate on doing legal research uninterrupted. I will simply accept what Miss I said about the sentencing authorities without demur. I have no reason to doubt her veracity.

Is my preceding blog a fair comment then? Without the insider information, I can only read the appeal judgement * as it is. The language is plain and straightforward. I have re-read it before I started writing the preceding blog. I also read Chau Wan Fun. 

The judgement gives me the impression that the prosecutrix has in fact conceded the reduction of the sentence to the extent that the Court of Appeal accepted it per her initiation. Without giving regard to the comments made in my preceding blog supplementing the background of the case, was my understanding correct when I read the case? If what was said in paragraph 11 of the judgement below was not what the prosecutrix intended to achieve in opposing the appeal, is there a better way to advance the argument in reflection? Did the prosecution oppose to the reduction in sentence at all? I was asked to make suggestions, which I do now.

There is no absolutely right or wrong in legal arguments. There is no hard and fast rule either. The only difference is the way you approach the issue. It may be rhetorical. It may be personal style. The most important thing is how aggressive you are and what result you want to achieve. Put myself in the shoes of the Senior Public Prosecutor (SPP),  I will respond to the appellant's argument differently. I will attack in all aspects. To begin with, I do not accept the starting point of 4 years. In the appeal judgemnt, it was mentioned that the trial judge, Joseph Yau, relied on張美嬌 when he considered 4 years as the starting point for the amount of 3 million dollars the appellant embezzled. Does 張美嬌 suggest 4 years? Why not apply 陳瓊惠 (CACC289/2009)? My approach is all offensive, unyielding at the outset. The 陳秀紅case is in error when one leniency is added to another leniency creating a cumulatively excessive effect. If we can argue the starting point of 5 years and resist certain discount to reach an eventual reasonable sentence, why not? The sentence of 22 months shows that justice was tampered with too much mercy. The SPP rightly argued that the 1/3 reduction should include previous unblemished character but she should further advance that less credit be given to restitution. Why accept 6 months' reduction for that? In any event, I will not rectify the flawed leniency of Joseph by proposing further cut to the sentence. A plain reading of the case from a bystander will get the impression that the Court of Appeal was hesitant but acceded to the request of the prosecution and finally reduced the sentence. The SPP let the Court of Appeal put words into her mouth if she did not intend to have the sentence of the appellant cut. Isn't it a matter of approach? It is not an application for review of sentence by the prosecution. We do not expect to see an upward adjustment despite it being manifestly inadequate. On the other hand, I would strongly resist in all aspects when asked to respond. My stance will be crystal clear. If the Court finally reduces the sentence, on record, no attribution to the prosecutor. 

My apology to the SPP for using the title I used in the preceding blog. It hurts but it did not mean to be a gimmick. I do not write to earn a living or arouse applause. I write for interest. I comment when I see things I disagree. Don't take offence. I know Joseph since 1988 but this fact does not refrain me from forming a demurred view. I know Anthony Yuen since 1973 but I criticised him for his extreme leniency in the Amina Bokhary case. Andrew Chan certified my migration documents when he was the coroner in Eastern Magistracy but I criticised him for his severity in the chess paper appeal case. I comment objectively and independently without fear or favour, without giving face to friends. It matters not when we have different points of view. I respect people's way of seeing things though I may not agree. If the 陳秀紅 was handled in the way I proposed, would the result be different? Ask a person outside the legal field to read the appeal to see why he thinks the sentence is reduced. If the impression is that of the stance of the prosecutor, then there is certain failure in the way the case was handled. 



*

CACC 252/2010 香港特別行政區 高等法院上訴法庭 刑事司法管轄權 判刑上訴許可申請 案件編號：刑事上訴案件2010年第252號 （原區域法院刑事案件2009年第1362號） ______________________ 答辯人    香港特別行政區 訴 申請人 陳秀紅 ______________________ 主審法官： 高等法院上訴法庭法官關淑馨 高等法院原訟法庭法官張慧玲 聆訊日期： 2012年8月7日 判案日期： 2012年8月7日 判案書 上訴法庭法官關淑馨頒發上訴法庭判案書： 1. 2010年5月5日，申請人陳秀紅女士在區域法官法官邱智立席前，承認一項「公職人員作出不當行為」罪，違反普通法。5月26日，邱法官採納4年做量刑起點，基於她認罪，已償還大部份盜竊的款項，及她過往的良好紀錄，判她入獄22個月。換言之，她得到了26個月即是54.1%的刑期扣減。 2. 申請人沒有在法定期限內，即是判刑的28天內就刑期申請上訴。廉政公署人員在2010年6月接觸她，問她是否願意就一宗相關案件提供資料，及在有需要時做控方證人。她答應廉署的請求，在2010年7月20日提供了一份詳盡的簽署證人口供。2010年7月26日，她申請許可就刑期上訴，她的申請比法定期限逾期約一個月。上訴的唯一理由，是判刑之前廉署未有請求她協助和作證，故此原審法官沒有考慮其後她給予控方的實質協助，沒有就此給她額外的刑期扣減。 3. 本庭接納申請人延誤申請，是出於誠實意圖，延誤的時間只是約一個月，她提出的上訴理由亦是可爭辯的，於是行使酌情權，准許她逾期申請上訴許可。 4. 申請人在相關時間，任職香港大學外科系行政助理，負責處理該學系的醫療技能發展中心的行政工作。發展中心以申請人及執掌該學系黃健靈教授的名義，向銀行申請了兩張公司信用卡，支付中心的費用。2004年1月至2006年12月，申請人在未獲中心授權下，利用她和黃教授名下的公司信用卡，購買物品及服務，又提取現金透支，所涉款項共為HK$3,026,117。當中心的儲蓄帳戶不足以支付信用卡的欠款時，她擅自利用黃教授的印鑑，由中心的往來帳戶或其他有關帳戶，轉帳至中心的儲蓄帳戶付款。2004年1月至2007年3月，共有HK$623,992存入了中心的儲蓄帳戶，作還款之用，其中HK$195,332是申請人直接支付的。 5. 2007年初，申請人向黃教授承認挪用公款。在2007年7月至9月，她償還了HK$1,500,000和HK$600,000。2007年12月，她辭去香港大學的職位。她在2009年2月被廉署拘捕，2010年5月被定罪和判刑。 6. 原審法官考慮了申請人的身世背景，和林希維大律師求情時的陳述，申請人犯案是由於她的婚姻破裂、猝然喪失至親和工作繁重的壓力下，錯誤地以揮霍購物來發洩，來掩飾婚姻的失敗，以致盡毀一生努力的成果。她雖然受過高深教育，卻不懂得如何處理個人的問題，不去尋求專業協助，法官認為實在令人非常欷歔。由於案件涉及僱員嚴重違反對僱主的誠信，盜竊行為持續了數年，法官採用香港特別行政區 訴 張美嬌 [2006] 4 HKLRD 776的判刑指引。基於盜取的款項約 HK$3,000,000，法官以4年做量刑起點，給予1/3即16個月做認罪的扣減，就她償還約 HK$2,700,000，又給予6個月扣減，最後由於她過往良好的紀錄，進一步扣除4個月監禁，總共的扣減是26個月。 7. 2011年2月，應控方和申請人的請求，上訴法庭押後這個逾期申請上訴許可，並且准許申請人在等候處理申請期間保釋。當時，申請人已在監獄服刑9個月有多。 8. 2012年初，申請人在香港特別行政區 訴 黃健靈DCCC 694/2011 為控方作證，該案主審法官接納她的證供為可信，裁定黃教授兩項公職人員行為失當，及兩項偽造帳目罪，罪名成立。 9. 申請人就著對控方的協助，和出庭為控方作證，要求本庭給予更多的刑期扣減，由22個月減為14個月，由於她已服刑9個多月，加上服刑期間表現良好可獲的刑期減免，這樣便可即時獲釋。林大律師陳詞說，根據案例申請人協助控方並出庭作證，可獲50%扣減，即是24個月，加上原來的還款扣減6個月，和良好紀錄扣減4個月，總共的扣減應為34個月，故此恰當的刑期是14個月。 10. 林大律師提出扣除34個月，等於是70%的扣減，本庭不予支持。本庭也不同意他的論點，良好背景與良好紀錄應有分別，申請人的良好背景可構成額外減刑的理由。 11. 原審法官判以22個月的刑期，其實已是寬大的處理。唯一要考慮的，就是應否就申請人其後對控方協助並出庭作證，再就刑期作適度調整。高級檢控官指出，原審法官以申請人的良好紀錄，再扣減4個月刑期，是不恰當的 (Secretary for Justice v Chau Wan Fun [2006] 3 HKLRD 577第15和16段) 。檢控官提出，即使是調整，適當的扣減，應不超過4個月，計算是以48個月做起點，扣除24個月作為協助控方和作證，再就還款減6個月，刑期是為18個月。 12. 本庭接納檢控官持平的論點，准許申請人就刑期上訴，判她上訴得直，把刑期由22個月減為18個月。 （關淑馨） 高等法院上訴法庭法官 （張慧玲） 高等法院原訟法庭法官 申請人：由韓潤燊律師樓轉聘林希維大律師代表 答辯人：由律政司高級檢控官曾藹琪代表

檢控官的錯誤

黃健靈前女下屬減刑

【明報專訊】港大醫學院外科前女行政助理，利用職權虧空逾300萬元公帑，被判入獄1年10個月。女助理淪為階下囚後，獲廉政公署邀請出庭頂證其上司、即外科學系前主任黃健靈，黃終被裁定罪成，女助理昨獲上訴庭減刑4個月。

　被告陳秀紅（43歲）於2010年5月因公職人員行為失當罪被判囚22個月，今年1月轉當控方證人，出庭指證前上司黄健靈。陳於去年2月獲准保釋外出等候上訴，故至今未服完刑期。上訴庭法官認為，被告虧空公款逾300萬，行為嚴重違反誠信，法官判囚22個月是非常寬大，雖然被告協助指證黃，亦不能再大幅扣減刑期，決定減刑4個月，被告須返回監獄繼續服刑。

　案情指出，被告於04至06年擅用醫學院轄下中心的信用卡，購物158萬元及透支144萬元，07年黃健靈得悉事件，但隱瞞事件「私了」，亦被控公職人員行為失當。(8/8/2012明報)

今天上載了香港特別行政區 訴 陳秀紅CACC252/2010 的判辭，被告獲減刑，完全是律政司高級檢控官曾藹琪的「功勞」。原審區域法院法官邱智立，寬大為懷，量刑以4年監禁為起點，最後減至22個月。為何會再減4個月呢？看一下判辭第11段怎樣講：

11. 原審法官判以22個月的刑期，其實已是寬大的處理。唯一要考慮的，就是應否就申請人其後對控方協助並出庭作證，再就刑期作適度調整。高級檢控官指出，原審法官以申請人的良好紀錄，再扣減4個月刑期，是不恰當的 (Secretary for Justice v Chau Wan Fun [2006] 3 HKLRD 577第15和16段) 。檢控官提出，即使是調整，適當的扣減，應不超過4個月，計算是以48個月做起點，扣除24個月作為協助控方和作證，再就還款減6個月，刑期是為18個月。

上訴庭認為原審法官刑期寬大，還考慮被告出庭指證黃健靈，協助控方這因素再酌量減刑，但那不是唯一的考慮。原審法官因被告認罪而扣減3分1刑期，已無需再因她過往紀錄良好而再減刑4個月。檢控官一方面批評原審法官做法不恰當，另一方面卻向上訴庭作減刑建議，自打嘴巴。正確引用周雲歡(Chau Wan Fun)案的原則，卻墮入辯方律師講法的框架，傻兮兮的作出讓步，否則上訴庭未必會減刑。22個月的刑期已十分寬大，不應再減。單看上面引用的這段判辭，已經可以看出檢控官思路不清，立場飄忽，終於做出錯誤建議。被告成功減刑，不應歸功於檢控官嗎？



*請參閱為高級檢控官曾藹琪平反 一文

The Free Association after Reading the Indecent Assault Case

醉大伯摸上牀 弟婦誤當丈夫

【明報專訊】已婚漢疑醉酒後闖入胞弟一家三口房中，趁與丈夫分牀而睡的弟婦熟睡期間，涉嫌「明目張膽」對弟婦摸胸非禮，弟婦朦朧間誤會對方是自己丈夫。事後她告知丈夫但對方懶理，終自行報警。

　已婚被告同住當「廳長」

　41歲的譚姓被告報稱任職經理，已婚的他與妻子並不同住，昨就一項非禮罪受審。他被控於今年6月1日在其藍田德田邨的住所內非禮27歲的汪姓弟婦。持雙程證的汪於2007年下嫁被告的弟弟，誕下一子。案發時，汪及其5歲子、丈夫、被告及家姑同住，除被告要做「廳長」，其餘4人均同睡於一房間。汪與兒子同睡，丈夫則睡另一牀。

　汪昨供稱，今年5月31日晚上約9時半，與兒子已入睡的汪發現有人滿身酒氣坐在其牀邊，其後更躺下。汪以為對方是丈夫，對方當時全身僅穿一條內褲，一手摟着汪的頸部，另一手則捉住汪的手摸其陽具，其後又捏其胸部近1分鐘。

　告知遭非禮 丈夫不理

　為怕吵醒兒子，汪着「丈夫」停手卻不果，她遂推開「丈夫」。對方離開後，汪未幾即聽到客廳有打開梳化的聲音，她好奇步出觀看，仍懵然以為對方是丈夫，問對方「做乜唔上牀瞓？」，對方低頭未有回應。回房後她卻赫然發現其丈夫正在另一牀上睡覺。她向丈夫告知遭大伯非禮，但丈夫未有回應，她遂自行報警。

　惟辯方指出，汪與被告及家姑關係一向不佳，被告為了母親的事，不時與汪爭吵；汪與家姑爭吵時，會以粗言穢語互罵。辯方更指出，汪的家姑曾有首飾不翼而飛，其後汪一度承認偷去物品，故質疑其誠信。汪雖承認與家姑關係不佳，但堅持「從來唔掂奶奶啲嘢」，疑失竊的首飾其後亦被丈夫尋回。案件明續。

【案件編號：KTCC2931/12】(8/8/2012)

This case certainly raises a lot of eyebrows. The vivid factual report by Mingpao creates a certain sense of lewdness in reading. The lustful venture of the brother-in-law enhanced by alcohol without doubt is a classic case of Dutch courage. What added to its absurdity and rarity is the fact that the victim could have mistaken him for her husband. That said, the first thing comes to my mind is R v Collins[1972] 2 All ER 1105. Below are the facts taken from the judgement of All England Law Reports. Law students taking criminal law should have read this case when they study the law on theft.

The appellant was a young man of 19 and the complainant a girl of 18. One evening the appellant had had a good deal to drink and was desirous of having sexual intercourse. Passing the complainant’s house he saw a light on in an upstairs room which he knew was the complainant’s bedroom. He fetched a ladder, put it up against the window and climbed up. He saw the complainant lying on her bed, which was just under the window, naked and asleep. He descended the ladder, stripped off his clothes, climbed back up and pulled himself on to the window sill. As he did so the complainant awoke and saw a naked male form outlined against the window. She jumped to the conclusion that it was her boyfriend, with whom she was on terms of regular and frequent sexual intimacy. Assuming that he had come to pay her an ardent nocturnal visit she beckoned him in. In response the appellant descended from the sill and joined her in bed where they had full sexual intercourse. After the lapse of some time the complainant became aware of features of her companion which roused her suspicions. Switching on the bed-side light she discovered that he was not her boyfriend but the appellant. She thereupon slapped him and went into the bathroom. The appellant promptly vanished. He was subsequently charged with burglary with intent to commit rape contrary to s 9(1)(a) of the Theft Act 1968. The complainant stated that she would not have agreed to intercourse if she had known that the intruder was not her boyfriend. In the course of his testimony the appellant stated that he would not have entered the room if the complainant had not beckoned him in. There was no clear evidence whether, when the complainant beckoned him, he was still outside the window or had entered the room and was kneeling on the inner sill. The judge directed the jury that they had to be satisfied that the appellant had entered the room as a trespasser with intent to commit rape and that the issue of entry as a trespasser depended on the question: was the entry intentional or reckless? The appellant was convicted and appealed.

If the Collins case is not imaginable, what about the Sydney case reported in Sydney Morning Herald last year?

Deliveryman jailed for sex with sleeping woman

Date August 31, 2011

Malcolm Brown

A 22-year-old takeaway delivery driver who had sexual intercourse without consent with a half-asleep women in a house to which he was delivering a takeaway was sentenced to three years' imprisonment this afternoon.

Amit Hamal, 22 was sentenced by District Court Judge Laura Wells from the date of his arrest on July 19 last year and given an 18-month non-parole period to expire on February 18 next year.

Judge Wells said the maximum penalty for the offence was 14 years in jail with a seven-year non-parole period but she took mitigating circumstances into account.

These were Hamal's youth, his interest in training and rehabilitation while on remand, his wife's support of him, his ambition to study accountancy and his good prospect of rehabilitation.

The court heard that Hamal had been delivering Indian food to the woman's house but by the time he had got there the husband, who had left the door ajar, had fallen to sleep in the lounge.

He had walked in past the women's bedroom, noticed she was asleep, and proceeded to remove her pants and have sexual intercourse.

The woman had spoken to her husband about it the next morning. He had denied he had been the one who had done it and said she must have had a "vivid dream".

Hamal had called the house later that day and, during the conversation, had suggested they they become sexual partners. Then she realised that she had been sexually assaulted.

She and her husband reported the offence and a vaginal swab had confirmed the identity of Hamal.

During the trial, Hamal said that the sex was consensual and claimed the woman had initiated the encounter by pulling him towards her.

The jury found Hamal guilty of the offence on June 29 this year.

The men are of course culpable but what about the women involved. Was there an element of erotic fantasy  in itself? It is so inconceivable and certainly I am devoid of wisdom to appreciate.

紅燈超速相機(red-light speed camera)-----為悉尼朋友寫的一個blog

我以前寫過衝燈 一文，這一次講紅燈及超速相機。首先講紅燈相機的操作。衝燈 一文講過，就算過黃燈(amber light)，同樣可以被檢控，結果和衝紅燈一樣。如果是紅燈相機的話，設計上只針對衝紅燈，過黃燈不會被拍攝。在設有紅燈相機的地方，燈位停車白界線以外的地下，藏着電極(electrode)，連結交通燈及數碼相機。電極感應駛過車輛的重量，發揮作用。一輛車在紅燈亮了之後，經過白界線以外連續兩個電極，才會被拍攝到。舉例說當你見到交通燈轉為黃燈，把私家車煞停的時候，已轉為紅燈，而你停定時，半輛車凸出白界線，紅燈機會拍攝到你嗎？答案是不會。原因是你的車輛只觸及第一個電極，如果整輛車都在白界線外，連第二個電極都觸及，才會觸動(trigger)紅燈相機拍攝功能。又舉一例，你駛過交通燈的時候是綠燈，碰上塞車，你整輛車停在白界線外，交通燈轉為紅燈時，會不會把你視作衝燈而拍攝下來？答案是不會，因為當你的車輛觸及第一個電極的時候，交通燈是綠燈，不會觸動拍攝系統。

超速相機不外乎以地面電極感應、雷達及雷射3種方法來偵察車速，操作方式有幾種，包括定點相機(fixed speed camera)、流動車速偵察(mobile speed camera)、人手操作雷射槍(hand held laser gun)及點到點平均車速攝影機(point to point average speed camera)。流動車速偵察使用兩種方法，一種是用裝置了超速相機普通私冢車，停在高速公路旁操作，所謂流動是指沒有固定操作地點；另一種是真正流動的警車，車頂裝了雷達，以車跟車的方法偵察車速。人手操作的雷射槍，有的是警員站在路旁操作，或者坐在警車或警察電單車上操作。點到點平均車速攝影機只是針對重型車輛的超速，從A點影一張相，再從B點影一張，以兩點距離及時間計算平均車速，資料在中央數據庫處理，一旦發現平均速度超速，便提出檢控。

新南威爾斯州政府從今年6月開始至2014年底，會把紅燈超速相機由91部增至200部，流動車速偵察車由6部增至45部。早幾天駕車往Tamworth探望小女兒，在往返的800多公里途中，就經過13部相機，5輛警車。之後赫然發覺，由Carlingford 至Thornleigh之間，4部紅燈機其中兩部增加了超速相機，路面標誌(signage)由red light camera ahead 改為red-light speed camera ahead。稍不留神，損失慘重。

保障兒童免受性侵犯

Conviction not required to ban teacher from work

Date August 6, 2012 - 12:23PM

A former teacher who was accused of sexually abusing boys but not convicted has been refused a working with children permit.

The matter was initially referred to the State Administrative Tribunal after the Education Department's chief executive gave Allan William Hardingham a "negative notice" to prevent him from working with children in 2008.

The Supreme Court then ordered the SAT to review its initial decision to uphold the "negative notice" and the SAT again upheld the decision on July 31.

Child sexual abuse convictions from 1990 were overturned on appeal because, according to judges, the evidence was unreliable.

Following the quashing of Mr Hardingham's convictions in March 1994 and, after investigation by the Department of Education, he was reinstated as a teacher.

He was then accused of further abuse in 2008 but evidence of the offence was found to be too flimsy to support a positive conclusion that an offence was committed.

Justice Stephen Hall found that while charges did not lead to convictions, "there was cogent and clear evidence that the applicant had engaged in conduct with a number of young boys that, if it was to recur, presented an unacceptable risk of sexual harm and physical harm to children in the future."

That conduct included daring boys to remove their clothes, taking photographs or video footage of boys with their shirts off, creating opportunities to touch their bodies, encouraging or allowing them to drink alcohol and allowing boys to stay at his premises and sleep in close proximity to him.

Justice Hall found that some of the conduct engaged in by Mr Hardingham had been described as 'grooming' behaviour which he said was a reliable indicator that sexual harm may occur in the future.

Child Wise chief executive Bernadette McMenamin welcomed the decision.

"If the department, who has all that background information on him refuses a working with children check, clearly, the authorities are saying this person is not suitable to work with children, even if not convicted there's obviously a lot of incriminating evidence," she said.

Ms McMenamin said it was uncommon for someone who had not been convicted of such an offence to be refused a permit.

She said she wanted tougher restrictions on working with children permits.

"If somebody has been charged on numerous occasions and then go for a working with children's check, I think the charge alone should prevent them, it's too big a risk." (Sydney Morning Herald)

我不肯定香港對兒童受性侵犯的防預措施做得多好，或者根本是機制欠奉。在悉尼除了私人補習，教書也好，甚至做義工也好，不是你說要做就做，背景審查過了關，才能夠開始工作。從這則新聞報導，可見這裏對孌童癖(paedophile)或兒童性侵犯潛着危險的人，防患嚴密。Hardingham1983年開始執教鞭，曾經做過兩年校長，3度涉嫌侵犯男童或做出不當行為，但他不是上訴脫罪，就是沒遭檢控，故此一直都沒有定罪紀錄。這次因申請教師證被拒，繼而司法覆核失敗，以後未必再有機會執教。反觀香港在這方面的工作，還有很多改善空間。

非禮的量刑

猥褻侵犯罪即俗稱非禮 ，在量刑方面，除了在1991年AG and Wai Yan Shun CAAR17/1990一案，應律政司申請，對地鐵非禮判刑方面定出指引外，判罰基本上都沒有一致的看法。Wai Yan Shun的判罰指引，至今已超過20年，在港鐵或其他公共交通工具上發生的非禮案，卻有增無已。另一方面，在Wai Yan Shun案判決之後的同年，非禮罪的最高監禁，從5年增加到10年。現在也許是時候，把港鐵及其他公共交通工具上發生的非禮案的刑罰上調。人口大幅增加，港鐵越來越擠逼，可乘之機也越多，應該加重刑罰，以儆後效。

下面張貼了昨日上載的一宗非禮上訴，襲胸的被告被判監6個月。這件案驅使我翻閱多宗非禮罪的判刑上訴，也看不出判刑有甚麼模式。除了不能判處緩刑外(因為屬excepted offence)，非禮可以由罰款至幾年監禁。判得重的一般涉及侵犯兒童(child molesting)，近似企圖強姦或同時具打劫意圖的案件。下面這案的判刑一點也不輕，襲胸案判刑比這件輕得多的例子也不少，一切要看被告的彩數。

HCMA 194/2012

香港特別行政區

高等法院原訟法庭

定罪及刑罰上訴

案件編號：裁判法院上訴案件2012年第194號

(原沙田裁判法院案件2012年第725號)

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答辯人	香港特別行政區
	訴
上訴人	韓勤疇
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主審法官： 高等法院原訟法庭暫委法官陳慶偉

聆訊日期： 2012年6月7日

裁決日期： 2012年6月7日

判案理由書日期： 2012年6月22日

判案理由書

1. 上訴人經審訊後，被裁定兩項「猥褻侵犯罪」罪名成立，兩項控罪各被判處6 個月的即時監禁，刑罰同期執行。他不服有關的裁決，現上訴其定罪及刑罰。

控方案情

2. 控方第一證人原是上訴人的租客，及後她向上訴人購下租用的單位。事發前，控方第一證人因屋頂漏水，聘請了3 名工人進行維修，控方第二證人便是其中一名工人。

3. 事發當天，上訴人氣沖沖地走進控方第一證人的屋內，要求控方第一證人清理門外一些廢棄的木材、垃圾。控方第一證人因當時忙碌，故拒絕其要求。此時，上訴人發怒，以右手侵襲控方第一證人的胸部。這等舉動令控方第一證人驚慌，她立刻走出屋外，高叫非禮及胸襲。

4. 上訴人追出，將控方第一證人截停，他此時再以右手使勁侵襲控方第一證人的右胸，控方第一證人把上訴人推開，同時報警求助。

5. 控方第二證人工作時聽悉有人高叫非禮及胸襲。及後，控方第一證人亦向控方第二證人投訴上訴人向她施襲。

辯方案情

6. 上訴人同意當天曾因控方第一證人拒絕清理垃圾而向後者發脾氣，雙方更互以粗言穢語指罵。控方第一證人亦同時表示，若上訴人繼續以髒話責罵她，她便會致電報警指控上訴人強姦。

7. 上訴人否認曾非禮控方第一證人。

上訴理據

8. 上訴人指裁判官錯誤接納控方第一證人的證供，案件亦缺乏實質的科學證據，例如指模或唾液，將他與指控連繫起來。另外，控方第一證人後被送院驗出的傷勢如何造成他也無從稽考，控方第二證人也從沒有目擊事件發生的經過。

討論

9. 本案的案情非常簡單。裁判官在聽畢雙方的證供後，信納控方第一證人所述，她亦表示控方第一證人當時立即向控方第二證人作投訴，這亦支持控方第一證人證供的可信性。另外，裁判官認為更重要的是控方第一證人在事後被送往醫院檢查，診斷結果是「右邊乳房上半部外側泛紅」，這亦進一步支持控方第一證人被襲的指控。

10. 就證人的可信性及證供的可靠性這方面的爭議，上訴法庭一般不會作出干預，除非裁判官的裁決是不合邏輯及內含不可能性，本案沒有這方面的問題。

11. 至於本案缺乏科學證據，例如指模及DNA等，這確是事實。初審時，裁判官是完全知道控方缺乏這方面的證據的。在考慮控方的證據後，她信納即使在缺乏這等證據的情況下，控方第一證人確有被上訴人侵犯，這是裁判官可作的決定，並無任何不妥之處。

12. 至於刑罰方面，上訴人的理據是他是被冤枉的，現他身處囹圄，感覺難受。

13. 上訴人當天的舉動是完全不可接受的，是對控方第一證人公然侮辱，第二次的侵犯更是在控方第一證人逃往屋外後進行，視法紀如無物。

14. 上訴人過往雖沒有干犯性罪行的前科，但他有兩次普通襲擊的刑事紀錄。裁判官認為上訴人當天的舉動實屬肆無忌憚，完全沒有顧及胸部是女性身體敏感部分之一，故判處上訴人6 個月即時監禁，以儆效尤。

15. 裁判官在量刑時所考慮的原則並沒有犯錯，她考慮了案發的時間及總體量刑原則後，頒令兩項刑罰同期執行，這亦無不妥，本席不會就刑罰作出干預。

16. 上訴理據不足，上訴駁回。