法官進入競技場之五

標少以前寫了幾篇法官進入競技場的文章(法官進入競技場Trial Judge Entered The Arena ， 再談法官進入競技場 ，三談法官進入競技場 ， 法官進入競技場之四)，怎樣構成法官進入競技場，見仁見智。今天上載上訴庭的HKSAR and Wu Yui Yuen and others CACC 151/2011，辯方多處批評原審法官干預審訊，窒礙辯方盤問，並列出一連串例子，但上訴庭這次組合的法官，覺得沒有問題，引用了前終審法院首席法官李國能，在Chan Kam Keung v HKSAR (2008) 11 HKCFAR 664 一案所講

Assessments of judicial interventions must be made recognizing the court’s duty to exercise proper management over the proceedings in what often are difficult conditions.

上訴庭支持原審區域法院法官Kevin Browne的判決，駁回辯方每一項指責法官干預的指控，說出下面一段話。支持就是這道理，不支持就另一番道理。另一番道理是甚麼？找楊振權及杜麗冰兩位法官的判辭來看就可以見到。

32. We would like to add that in considering the issue of bias by reason of judicial intervention, the emphasis must be on whether the intervention is necessary and fair. The context in which the intervention was made is important (The Queen v. Lam Wai Hang [1997] HKLRD 562 at 570). Judges are not expected to sit passively during the proceedings but rather are entitled to and are expected to exercise proper control over the proceedings so that ambiguities can be clarified and issues can be properly identified. This applies both to intervention during the giving of evidence and oral submissions. It is important to bear in mind that the common use of written submissions enables judges to know in advance the ambit of the oral submissions and the issues that call for determination. Invariably during submissions, there will be exchanges between the judge and counsel. Views proffered by the judge during the exchange may not necessarily be the basis of the final decision. Very often one can readily form an impression whether the interventions are unnecessary and biased (aggressiveness and hostility of the intervention may be relevant considerations but they are not the sole consideration) or whether they are necessary and fair.