標少包抝頸-------打15元斧頭告上庭有何不妥？

控打斧頭菲傭 官轟「警無事做？」
15元豬肉錢列盜竊

【明報專訊】菲傭疑在買豬肉時「打斧頭」15元，僱主發現後報警將事件鬧上法庭，裁判官昨日「發火」稱事件「荒謬」，更質問警方為何不以較輕的自簽守行為方式處理案件，直斥「難道香港的警察沒有其他事可做（Does the police in Hong Kong have nothing else to do）？」，下令押後案件以待進一步法律意見。

警方發言人昨表示，案件已經進入司法程序，不予評論。涉因「打斧頭」而要上庭的菲籍被告Sudaria Cherry Obienda（41歲），原被控一項以欺騙手段取得財產罪，控方後來改控盜竊罪，指她於今年4月29日在筲箕灣東濤苑一個單位內，偷取周姓僱主15港元，被告昨不認罪。據悉，事情起因是被告向僱主訛稱購買豬肉花了50元，但其實是以35元購買。

官指荒謬 質疑何不守行為

主任裁判官錢禮閱讀控罪詳情時連番搖頭，在被告答辯後即時詢問控方，「她（被告）被控多收取僱主15元，為何不考慮以其他方式處理案件？難道香港的警察沒有其他事可做？」錢禮更直指此事被帶上法庭「有點荒謬」（a bit ridiculous），認為有「常識」的人也會嘗試以其他方式處理案件。控方遂申請將案押後至本月29日再訊，以待尋求法律意見。

警：多交裁判官決定

香港警務督察協會主席曾昭科昨表示，一般情況下，較資深的案件主管會憑經驗，斷定一些案情較輕案件能否以其他方式如簽保守行為等處理，經驗較淺者可能會索取律政司意見；但若遇到一些案件既可以起訴、亦可以自簽守行為處理，「較安全的做法」可能就是交給裁判官決定。曾昭科強調每宗案件有其獨特性，裁判官在今次案的反應有其理由，雖不能肯定是否警方犯錯，但警方將全面考慮裁判官的批評及作出檢討。

【案件編號﹕ESCC1503/13】

(9/5/2013 明報)

看到這則新聞，在我腦海中立即浮現了1987年主任裁判官崔志英所處理的偷西梅案。是否像本案主任裁判官Bina Chainrai所講a bit ridiculous，不如看過我張貼在下面的上訴案才作定奪。我覺得Does the police in Hong Kong have nothing else to do？這批評並不公允。下面張貼的上訴案例涉及幾粒價值1元的西梅。控方可以依賴此案作為繼續檢控的論據。(Beeson J in HKSAR and Kung Lung Sing HCMA 476/2001 also followed TSANG Pui-yee in respect of the doctrine of de minimis non curat lex.)

MCA No. 940 of 1987

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HEADNOTE

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‘De Minimis’ maxim irrelevant to conviction on theft charge

IN THE SUFREEE COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 940 OF 1987

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BETWEEN

	Attorney General	Appellant
	and
	TSANG Pui-yee	Respondent

_______________

Coram: Hon. Bewley, J. in Court

Date of hearing : 1st December 1987

Date of delivery of judgment : 1st December 1987

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JUDGMENT

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1. This is a case stated by Mrs. M. Chui., Principal Magistrate.

2. The respondent worked for HATS, a company which transports goods inside the airport. On 2nd August a consignment of sugar plums arrived from U.S.A. The respondent and others went to collect the goods. The respondent was seen to take two sugar plums from one of the cartons and was reported to the police. He told the latter under caution that he took the plums because he was thirsty and begged for a chance. Before the magistrate he pleaded guilty and admitted the above facts. He was duly convicted and discharged.

3. Later, of her own motion, the magistrate reviewed her decision and set aside the conviction, relying on the principle “de minimis non curat lex”. The question of law for this court is whether she erred in law in applying that principle.

4. The magistrate gave the following reasons for her decision:-

“(4) The Respondent is 39 years old, of previous good character, and gainfully employed. The act was an isolated one, and totally unpremeditated. The two sugar plums were worth no more than a dollar. The owner of the plums had not complained. The plums had been returned to the owner and the latter had suffered no loss. There was no suggestion that such act by the Respondent was prevalent, nor was there public interest involved.

(5) There had been contrasting cases that came before me where violations of the criminal law had been far more serious and where the victims had suffered injuries or losses and had complained to the police, but the Appellant was nevertheless content to simply apply to have the offenders bound over to keep the peace without proceeding to prosecution and conviction.

(6) In my view, the theft of a dollars worth of sugar plums did not in the circumstances of this case and in the circumstances of this Respondent warrant a prosecution and a conviction of a man who for the 39 years of his life had not committed an offence of any kind, bearing in mind that such a conviction might cost the man his job and ruin him and his entire family. In my view, the prosecution fell foul of the rule, which I duly applied on review, of “de minimis non curat lex” - the law does not concern itself with trifles, not to say that the prosecution was a waste of public money.”

5. The extent of the relevance of this maxim in the context of the criminal law was examined by Lord Widgery C. J. in R. v. Morris[1] at page 231 where he said:-

“One ought to add, for completeness sake, that there will of course always be room for a de minimis argument, if the adverse physical effect is so trivial that no ordinary person considering the circumstances would retard the occurrence as an accident at all, but we are quite satisfied that the consequences in this case, whether there was minor damage to the headlamp glass or not, were too severe to justify dismissal on the ground of de minimis in any event.”

6. Professor Glanville Williams deals with the maxim in his Textbook of Criminal Law 2nd edition at page 620 in this way:-

“A few positive examples de minimis may be harvested. Where a driver unintentionally immobilised another car for a very short time, and the car was easily restarted, magistrates were held to be entitled to find that no 'accident' had occurred. And where a moneylender was under an obligation to make a memorandum of a loan, it was held that clerical errors would not necessarily invalidate it. Any obstruction of a highway, even of the smallest degree, is said to be a public nuisance; but at the same time it is allowed that an obstruction may be so trifling (particularly, though not only, when it is temporary) that it does not ‘in law’ amount to an obstruction. In effect, though not avowedly, these cases accept the de minimis principle.

A physical assault is defined as the application of force, however, slight, and this enables the courts to administer due punishment to the rascal who steals a kiss. There are obvious reasons for understanding the word 'force' in this technical sense; normally, a slight touching would be dismissed from consideration as an ordinary social contact.”

7. However, earlier in the same work, the learned author had said at page 177:-

“According to an ancient maxim, the law does not take account of trifles but this is a very misleading generalisation. If the assault is trivial, the court may grant an absolute discharge, but, even so, the fact that an assault has been committed can have importance.”

8. In Seekings v. Clarke[2], a shopkeeper had erected a sunblind in front of his shop, the sides of which projected 2 ft. 6 ins. over the pavement and also placed wooden shelves containing books, 1 ft. 6 ins. wide on the pavcill8nt in front of the shop. Lord Parker C.J. said at p. 269:-

“It is perfectly clear that anything which substantially prevents the public from having free access over the whole of the highway which is not purely temporary in nature is an unlawful obstruction. There are, of course, exceptions to that. One possible exception would be on the principle of de minimis, which would no doubt cover the common case of the newsagent who hangs out a rack of newspapers, which though they project over the highway, project only fractionally. Other cases may be where for some purpose or other a use has to be made of the highway, for instance, for scaffolding, where the question in every case is whether it was or was not a reasonable user ….

In my judgment, however, in this case it is quite impossible to say that the principle of de minimis applies.”

9. In Attorney General v. Chan Wai-lan and Others[3] the Attorney General applied for a review of sentences on five defendants who had failed to produce proof of identity for inspection and who had been discharged absolutely by the magistrate. Roberts C.J. said at p. 74:-

“Many offences contain little or no element of moral blame. They have been created by the legislature because the latter, to which falls the duty of making laws, considers it necessary to impose some restraint or duty upon members of the public for the common good.

The task of a court is to take proper steps to enforce that restraint or duty, due account being taken of the interests of the individual offender and of the circumstances in which the infringement occurred by the imposition of an appropriate penalty in each case. It is not right for a court to adopt a course which is explicable only on the basis that it does not regard the law as worthy of enforcement.”

10. Finally, in R. v. Kwan Chung-yik[4], Kempster J.A. accepted the propriety of convicting youth of unlawfully receiving a duck egg.

11. It was open to the magistrate to express her view of the triviality of the charge by discharging the respondent absolutely, as indeed she did in the first instance. She could have gone further and expressed her disapproval of the prosecution to the Director of Public Prosecutions, though in that case her attention might have been drawn to the notorious extent of pilfering at Kai Tak.

12. On the authorities it was not open to her to take the action on review that she did. Section 19 of the Magistrates Ordinance clearly provides:-

“If the defendant admits the truth of the complaint or information, his admission shall be recorded as nearly as possible in the words used by him and the magistrate shall convict him or make an order against him accordingly.”

13. Before taking such a drastic step as setting aside a conviction of their own motion, on a point of law, magistrates would be well advised to seek the assistance of counsel. At the very least they should make some enquiry into the law on the subject and cite the authorities that seem to support the proposed course of action.

14. Counsel for the Crown does not ask that the case be sent back to the magistrate, or that the conviction be restored by this court, but requests that the case be remitted with the court's opinion that the quest ion should be answered in the affirmative. There will be an order accordingly.

(E. de B. Bewley) Judge of the High Court

Mr. I.G. Cross, Ag. Sr. Asst. Crown Prosecutor and Mr. W.S. Cheung, Crown Counsel, for Appellant.

Respondent absent.

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[1]  [1972] 1 W.L.R. 231

[2]  [1961] Q.B.D. 268

[3]  [1982] H.K.L.R. 68

[4]  MA 617 & 838 of 1985