有法律系學生問我特委裁判官(special magistrate)和常任裁判官(permanent magistrate)在權力上的分別。這條問題表面看起來似乎很容易答，從香港法例第227章《裁判官條例》裏不就找到答案嗎？當然不是。
首先當然要看《裁判官條例》裏對特委裁判官權力的描述，分別是第91及97條：
| 章： | 227  | 標題： | 《裁判官條例》 | 憲報編號： | |
| 條： | 91 | 條文標題： | 可由特委裁判官循簡易程序處理的可公訴罪行 | 版本日期： | 30/06/1997 |
如任何人在特委裁判官席前被控以任何可公訴罪行(附表2指明的罪行除外)，則特委裁判官可循簡易程序處理該案及將被控人定罪，以代替將他交付法院審訊，而一經定罪，可處被控人監禁6個月及罰款$50000︰ (見表格93) (由1981年第51號第6條修訂)
但本條並不影響第94條的條文或任何其他條例中明確訂定的較輕懲罰。(由1949年第24號第29條代替。由1958年第30號第7條修訂；由1995年第13號第59條修訂)
| 章： | 227 | 標題： | 《裁判官條例》 | 憲報編號： | |
| 條： | 97 | 條文標題： | 判處罰款的一般權力 | 版本日期： | 30/06/1997 |
(1) 任何人被裁定犯並非可公訴罪行的罪行時，如裁判官並無因為要行使其他權力(例如根據《罪犯感化條例》(第298章)第3條發出感化令的權力)而不能判處該人，則除任何成文法則規定該人須受某一特定方式處置外，該裁判官可判處罰款以代替任何他有權力處置該人的其他方式，亦可在以該等其他方式處置該人外，再判處罰款。
(2) 在根據第(1)款行使權力時，裁判官就罪犯不繳付罰款而判處該罪犯的監禁期，不得較該罪犯應可被法庭根據授權判處監禁的成文法則所判處的監禁期為長。
(3) 在根據第(1)款行使權力時所判處的罰款(a) 如屬特委裁判官，不得超過$50000；
(b) 如屬常任裁判官，不得超過$100000，
但如在任何其他條例中明確訂定一個較高的金額則除外。
這兩條的着眼點都強調特委裁判官判罰款不得超過$50,000，如果這樣來解釋，你就錯誤釋法。$50,000的罰款上限以第91條而言，即循簡易程序處理可公訴罪行(indictable offence triable summarily)，確實是特委裁判官判罰款的上限。可是第97條卻並非如此，第97條用以處理普通法罪行或傳票等。普通法罪行並無罰則，所以要依賴這一條。傳票形式的檢控，涉及多個政府部門，勞工處、稅務局及屋宇署等傳票，涉及的條例可處罰款動輒就數十萬元，特委裁判官判罰款權力，在處理這種傳票時，就超過$50,000，關鍵字眼在第97條最後的一句：但如在任何其他條例中明確訂定一個較高的金額則除外。就憑這一句，就說明特委裁判官判罰款可以超過$50,000，而常任裁判官判罰款可以超過$100,000。
當然，特委裁判官的權力還要結合第5條第3款來看，第5(3)所講的委任狀(warrant of appointment)進一步限制了特委裁判官的權力。行政長官任命特委裁判官時，加入3項限制條款：
a. 無權判處監禁；
b. 任何一項罪名，均不能判處超過《刑事訴訟程序條例》(第221章)附表8第6級所定的罰款
額；
c. 不能行使《精神健康條例》(第136章)項下的任何權力。
當然，特委裁判官的權力還要結合第5條第3款來看，第5(3)所講的委任狀(warrant of appointment)進一步限制了特委裁判官的權力。行政長官任命特委裁判官時，加入3項限制條款：
a. 無權判處監禁；
b. 任何一項罪名，均不能判處超過《刑事訴訟程序條例》(第221章)附表8第6級所定的罰款
額；
c. 不能行使《精神健康條例》(第136章)項下的任何權力。
Bill San, first time checking in this blog, as recommended by a Canadian Hkongese from CUHK before. I have been looking for a convenor of CUHK alumni here in Sydney...if you like please kindly respond to bobfung@tpg.com.au for further discussion, thanks.
回覆刪除Bob,
回覆刪除I have responded.
Thanks a lot, Bill. Are you still working here in SYD or retiring and enjoying life already?
刪除Haha,
刪除I never work here since migrated here 10 years ago. Unemployed/retiring/enjoying life are synonyms, aren't they.
So humble you are, Bill. You must have earned enough, though we often ask how much is enough, so you should be enjoying retirement life comfortably in North Shore SYD,e.g., unlike us working class in Western SYD, who will have to work until 65 in this once a worker's paradise downunder, man!
刪除Enough or otherwise is difficult to measure. There may be criteria to measure wealth but never yardstick to measure "enough". I can only say I am contented with leading a humble and non materialistic life in Western Sydney. The writing of blog and answering some legal questions raised by law students or people transgressing the law have become my daily routine. I do enjoy immensely. I do not envy people driving expensive cars and eating expensive food. My satisfaction comes from intellectual exchange of independent thinking. It also comes from unrewarded assistance rendered to people who have trouble with the law in HK and I hope I can throw a lifeline to them at the time they feel so helpless. For instance, today I received some statements from the family of the defendant charged with Indecent Assault. From that perspective, I am also working with no pay.
刪除Remarkable and respectable choice of life, man! If you still have any licence for legal practitioner here, you must have been doing more jobs on pro bono basis. I used to study Law as my second degree, having dropped out from 3 Aust Law Schools 3 times without finishing it...When my connections and I do have legal issues arisen later on, certainly will write you on this blog or asking others to post it here for you, legal guru.
刪除Bob,
回覆刪除Don't overstate the modest ability of a humble man. If there are matters I know, I will certainly share without hesitation.
Bill
回覆刪除I suspect the conditions in the warrant of appointment are for "case management" purpose, i.e. Special Magistrate can only deal with non-custodial sentence case. This is from my observation that Special Magistrates only sit in a court that deal with departmental summons and traffic cases involving non-custodial sentence.
By the way, do you aware any offence that attaches max or customary sentence of not over 6 months?
David,
刪除There are so many offences liable to imprisonment of 6 months or less. Look at Summary Offences Ordinance Cap 228 etc. S.99 Magistrates Ordinance for contempt of court or insulting magistrate also carries a max of 6 months.
Many thanks, Bill. Every day I learn from you.
回覆刪除Without any disrespect to you and your colleagues, I opine that Judiciary should abolish the post of Special Magistrate. If my recall is correct, when the post was created in Jan 1990, it did not require the candidate to be legally qualified. However, I believe this has been changed since the handover.
If all Magistrates are legally qualified, why creates two classes of magistrate with two different pay grades and different sentencing powers, with a minor difference in qualifications required that the working experiences as a judicial clerk, court interpreter or court prosecutor does count towards the 5 years “qualification period” for a Special Magistrate (if I read the MO correctly)?
In fact, I always wonder whether the power of a Special Magistrate was meant to be exercised by the Justices of Peace before 1997 (hence the difference in sentencing powers). Again if my recall is correct, when two or more JPs sit together, they can exercise the power of a Special Magistrate (though I do not know whether such power was in fact frequently exercised by the then JPs). However, Justice of Peace no longer has any judicial power since the handover.
At the minimum, even if the grade of Special Magistrate is being maintained, the warrant of appointment should not place limitation on the sentencing power of a Special Magistrate. The sentencing power of a Special Magistrate should be per the MO.
Last, pls allow me to ask you one more question. Given the warrant of appointment limits the sentencing power of a Special Magistrate, if there is any contempt case before a Special Magistrate, does a Special Magistrate needs to transfer the case to a Permanent Magistrate for the contempt proceeding/ sentencing?
David,
回覆刪除We all learn something every day. Never mind respect or disrepect, the history of special magistrate is a bit blurred now. The creation of such a post should be earlier than 1980 and went through several phases of developments. The watershed was in 2002 when the new qualification came to force. The creation of a 2-tier system may still be necessary . The main purpose now seems to be cheaper labour doing the odd job. I think JP did not have judicial function for many decades already. I have never seen any JP sitting in court, at least not in my time.
For the last question you asked here, if there is a need to exercise S.99 Cap 227, transferring the case to permanent magistrate or not is a pragmatic matter. If the SM is to fine the deft for contempt or insult, he/she has jurisdiction to do so. It is within the power. If in mind of imprisonment, then the only course to take is to transfer to the permanent or principal magistrate to handle.