檢控官失職

標少一年前寫 終審法院再受騙 及再談終審法院受騙案 兩篇文，強烈批評當時是高級助理刑事檢控專員的張維新失職。寫的時候，只憑看了Brian Alfred Hall and HKSAR FACC12/2008一案的判辭。Brian Alfred Hall以大量偽造文件騙終審法院獲判上訴得直，結果被控妨礙司法公正等4項控罪，在區域法院審理。控方傳召了40名證人，審訊歴時96天，最終全部罪名成立，判監4年。被告不服定罪提出上訴，控方不滿判刑過輕提出覆核，今天頒佈判辭，駁回被告的上訴，批准控方覆核，加刑至6年9個月(Secretary For Justice and Brian Alfred Hall CAAR 1/2012)。有關高級助理刑事檢控專員張維新失職之處，上訴庭這樣講：

56.  We have earlier referred to the concession made by counsel who appeared for the respondent prosecutor before the Court of Final Appeal.  He is not before us on the present applications.  He conceded the appeal.  It was an extraordinary concession which, on the basis of what we have been told by the Director, should never have been made.  We have been told by Mr Zervos that early in 2009, counsel who appeared for the HKSAR in the hearings before that Court was informed that an investigation was under way into Hall’s assertions of inconsistent statements and of the way in which he came by them.  Before the hearing of 30 June 2009 he was, we were told, aware that both CSD officers had said that the statements attributed to them were not theirs.  Obviously, counsel should have told their Lordships of that fact and he should have sought an adjournment pending the outcome of the investigation.  Instead, he conceded the appeal and actively supported it.  This earned for him an accolade in the judgment itself: “It should be mentioned,” said Bokhary PJ “that counsel for the respondent very properly declined to support this conviction and, indeed, offered helpful arguments for quashing it.”  It is right to say that counsel concerned has not had the advantage of explaining to this Court or to the Court of Final Appeal how he came to make the concession, but Mr Zervos tells us that it was the result of counsel’s perception of how, on the basis of what he had before him, his duty of prosecutorial fairness should play out, a perception which – so Mr Zervos asserts and we wholly agree – was on the facts of this case, misplaced.

看我在終審法院再受騙 一文怎樣批評他：

講甚麼大道理也枉然，被告把5位大法官弄諸掌上。問題出在那裏呢？責任最大的是當時代表控方的張維新(現已私人執業)，他明顯在上訴時答辯的準備不足，沒有察覺被告所提出的是剪裁過的虛假文件，更甚者是他枉作公道，提出使被告上訴得直的論據。我這講法從判辭而來。判辭最後一段這樣講：

Conclusion

The foregoing are the reasons why the appeal was allowed at the conclusion of the hearing to quash the appellant’s conviction for common assault. It should be mentioned that counsel for the respondent very properly declined to support this conviction and, indeed, offered helpful arguments for quashing it. The lesson taught by this disturbing case is that the arrangements made by prosecutors to ensure compliance with their obligations of disclosure must be kept under regular review and operated with constant vigilance.


主控官立場公正，獲法官讚許是一樁美事。但自己準備不足，又乘機取媚，令人鄙夷，可惜這種情況，我也不是第一次見到。被告提出一份剪裁過的偽冒文件，來指責控方沒有向他披露，主控官在檔案中找不到該文件，為何不會對文件的真實性置疑。況且被告獲得文件的講法簡直是天方夜談( The appellant first saw them, by chance, in late September or early October 2007 during an interview at the prison hospital in relation to another matter)，只有愚昧的人才會相信。終院當然也不能卸責。當陳振聰以同樣觀點指責華懋沒有披露證人口供，終院卻自圓其說駁回上訴，豈非給人一種主觀而欠公正的印象。如果說這件案可能是首宗以虛假文件成功上訴的案，那麼四張草紙奪取遺產的那一件，不是早它幾年嗎？

我當時寫的時候，提防被人控以誹謗，小心翼翼。看到今天的判辭，上訴庭雖然不敢批評終審法院，但對張維新的批評卻印證我的看法，張維新該罵。這件案發人深省，一向對終審法院判決膜拜的人，是當頭棒喝。對動輒就concede的檢控官，是寶貴的一課。