官收被告駕照區院質疑
【明報專訊】準新郎車房太子爺「索K」後駕車驚險「漫遊」撞向石壆，他昨承認在藥物影響下駕車及吸服危險藥物兩罪候判。惟區院質疑，被告自今年3月起在裁判官要求下須交出駕駛執照，質疑裁判官是否有此權限，表明會將事件報告上級。
26歲被告葉耀洪報稱汽車銷售員，辯方指他在父親的車房工作，平日需試車及修理車輛。他原被控3罪，昨承認其中兩罪後，管有危險藥物一罪撤控。
區院法官葉佐文指出，案件今年3月於東區裁判法院提堂時，被告獲保釋，但被裁判官下令交出駕照，至今5個月。葉官指此舉是「未受審已失駕駛資格」，質疑裁判官是否有權，表示有需要報告上級。
車房太子爺索K駕車撞壆
大律師陸偉雄解釋，裁判官在訂下保釋條件時，會考慮案件性質，若理據充分，則有權附加特別保釋條件，「唔可以話無權，因為法律無話唔得。」針對此案而言，被告犯下藥駕罪，在車房工作又不時有機會駕車，容易再犯，故要求被告交出駕照亦非不合情理。他又曾聽聞法官在處理港鐵非禮案時，不准被告乘搭港鐵等。司法機構則指出，由於案件仍未正式完結，故未能評論個別案件。
控方案情指出，葉於今年3月2日凌晨近2時，駕私家車經香港海底隧道收費廣場時一度未有停下，其後又顯得反應遲緩，未能與交通督導員對答，終在被指示駛往避車處時撞向石壆。警員其後發現其左邊鼻孔沾有白色粉末，被告直認粉末是氯胺酮（K仔），指氯胺酮由友人提供，但記不起自己曾駕車。
由澳洲回港助父親打理車房的被告，過往有數次交通定額罰款的紀錄。辯方指被告正準備與女友「拉埋天窗」，望能輕判。案件將押後至8月10日判刑，其間被告還押。
【案件編號：DCCC436/12】(2/8/2012)
This is a rather interesting case. Whether the Principal Magistrate in Eastern Magistracy has the power to ask the deft to surrender his driving licence as a bail condition is really arguable. I was amazed to read the news about Eddie Yip, the District Judge, questioning the jurisdiction of his colleague and said he would report the matter to his superior. He probably meant reporting to CJ. Despite his position as a District Judge, he is not superior to the magistrate as far as stare decisis is concerned. The District Judge has no overriding power over the magistrate. I don't think his comment is appropriate. If he has concern that the magistrate has done something outside his/her jurisdiction, he can take it into account when he considers the sentence of the deft who has been prejudiced. Even if he has concern that the magistrate has done something ultra vires and he wants to raise the issue with Judiciary, he should do it discreetly by telling the Chief Magistrate or Chief Justice instead of making an opening court comment.
Let's look at the law to see if surrendering the driving licence as a bail condition is lawful .
| Chapter: | 221  |
Title: | CRIMINAL PROCEDURE ORDINANCE | Gazette Number: | |
| Section: | 9D | Heading: | Right of accused person to be admitted to bail | Version Date: | 30/06/1997 |
-
(a) he appears or is brought before a court in
the course of or in connection with proceedings for the offence of which he is
accused; or
(b) he applies to the court before which he is accused to be admitted to bail; or
(c) he applies to a judge under section 9J to be admitted to bail.
-
(a) fail to surrender to custody as the court
may appoint; or
(b) commit an offence while on bail; or
(c) interfere with a witness or pervert or obstruct the course of justice.
-
(a) may not make it a condition of admission to
bail that a recognizance of bail be taken from the person so admitted but may
make it a condition, for the purpose only of securing the surrender of that
person to custody as the court may appoint, that a recognizance of bail be taken
from a surety;
(b) may make it a condition of admission to bail that the person so admitted-
- (i) shall surrender to the court any passport
or travel document;
(ii) shall not leave Hong Kong;
(iii) shall report to a police station or the offices of the Independent Commission Against Corruption as the court may specify;
(iv) shall reside at a specified address and be present therein between such times as the court may specify;
(v) shall not enter any place or premises as the court may specify;
(vi) shall not go within such distance of any place or premises as the court may specify;
(vii) shall not contact directly or indirectly such person as the court may specify;
(viii) or any person on his behalf or he and any such person shall, for the purpose only of securing the surrender to custody of the person admitted to bail as the court may appoint, deposit with the court such reasonable sum of money as the court may require.
-
(a) the surety's financial
resources;
(b) any other matter that appears to the court to be relevant,
The relevant part of the law is stipulated in subsections (2) and (3) above. The Principal Magistrate probably applies (2)(b) to ensure that the deft will not commit an offence, namely, driving under the influence of drug, by asking him to surrender his driving licence. Is it the intention of this piece of legislation? Subsection (3) sheds some lights. It lists out a number of conditions the court may impose. Surrendering the driving licence is not mentioned there. Even though the list is not exhaustive, can we just apply the ejusdem generis rule as a yardstick? If we do, you can see the list in subsection(3) targets at preventing the deft from absconding and interfering with witnesses. There is practically nothing you can do to secure the deft not to commit offence while on bail. Normally what happens is if he commits an offence during the bail period, his bail will be revoked. To see this matter from another perspective, if the deft is only asked to hand in his driving licence, he can still drive. What will happen is if he drives, he just commits an offence of failing to have with him his licence while driving (S.42(2) Cap 374). He is not driving without a valid licence (S.42(1) Cap 374) or driving while disqualified(S.44(1) Cap 374) . The magistrate has no power to order him not to drive because it amounts to disqualifying him from driving. If the magistrate makes such an order, it will be ultra vires. Therefore, surrendering the driving licence itself does not prevent the deft from driving. Supposing the deft after surrendering the driving licence per court order drives a vehicle and stopped by the police, the police summons him for failing to carry with him the driving licence, he still has a defence. S.42(5) Cap 374 is worded like this:
Any person who without lawful authority or reasonable excuse contravenes...
The deft can say his driving licence is kept by court. It is a reasonable excuse. So what is the point of keeping his licence? It serves no purpose one way or another.
沒有留言:
發佈留言