David原本問陳玉峰面對的控罪會否受到時限( time barred)而不能提出檢控，SL的留言已答了這條問題。檢控時限這問題真的不好答，首先要釐清法律概念，又要翻閱有關條例有沒有訂下檢控時限的條文。陳玉峰面對的控罪屬《公安條例》(Cap 245)第17A(3)(a)未經批准非法集結及第18條的非法集結罪，兩罪均屬公訴控罪，但經循簡易程序定罪，可處第2級罰款及監禁3年。因為這些控罪並非純簡易程序的罪行(pure summary offences)，所以不受《裁判官條例》(Cap 227)第26條所涉事項發生後起計的6個月內作出檢控的限制。
純簡易程序的罪行其實也未必一定受《裁判官條例》第26條限制，只要該罪行所屬的法例另外訂明便可。在此舉兩個例子。
《入境條例》(Cap 115)第38(1)(b)條的非法入境後留在香港罪(Unlawful Remaining)，可處第4級罰款及監禁3年。此罪並非屬公訴控罪，也沒有可循簡易程序審訊(triable summarily)或經循簡易程序定罪(on summary conviction)等字眼，故此屬於純簡易程序的罪行，但《入境條例》第46(2)條講，38(1)(b)條只可在該申訴或告發所指事情發生後3年內作出，那就遠超《裁判官條例》第26條6個月內作出檢控的限制。
另一例是《防止賄賂條例》(Cap 201)第3條的索取或接受利益罪，此罪的刑罰在第12(2)條，可處罰款$100000及監禁1年，檢控時限在第31A(1)條訂明，可事發後2年內提出。
我則認為此乃政治檢控:
回覆刪除若一早想檢控,當由檢控同案其他人的警官一起做,一早做,駕輕就熟。至於「低調」正是心虛,因為年多前,「佔中」並未出現,陳小姐未廣為人知,何需分高低調,正是因陳小姐是「佔中」成員,始要有「高低調論」。我認為高層要對「佔中」示警,這高層可能高過處長,查看資料,發現陳小姐,要求檢控,警方相信明白Bill 所言的玩忽職守及山中所說的「蠢」而不願做,到最後因各種壓力而要檢控,所以要由處長親自解話。
hi fiving
Frankly, I don't share your view but I respect how you feel about the politically motivated prosecution. I understand the police mentality more than the general public. I had a lot of dealings with them back then when I prosecuted their cases. Many policemen were willing to tell me what was in their mind.
刪除I do not want to engage in any political argument. That is why I move the subject to pure legal discussion. Just feel free to express your view. Thank your for the comment.
Hi,匿名, 山中 here,
刪除Actually, political motivation and "high/low profile" are contradictory. If the arrested was politically motivated, then the arrest itself would automatically be high profile. I that case, if they really wanted to do it as a form of political oppression, a high profile arrest would suit the purpose much much more. I would arrest her when she walked into an Occupy Central meeting and make a big show of it.
It really doesn't matter at this point, since they've made it politically with their stupidity, but I don't think there was a clear political intent.
"I understand the police mentality more than the general public. I had a lot of dealings with them back then when I prosecuted their cases." The key phrase is back then. Also this 1-7-2011 case with social focus involving militancy(by HK standard) could not possibly be treated by the 環頭 as just another run of the mill case nor would DOJ. What do you think?
回覆刪除Sterling,
回覆刪除Did you keep track of the newest development? She is prepared to bargain for ONE/BO. It means something more than our guesswork. You will see in the end when the case is brought up in court again in July, the accusation of political prosecution/persecution is a farce. I all along think it is a dereliction of duty on the part of the OC Case.
Maybe be so. But my point was this case should not be analyzed by comparing it with the everyday case "back then".
回覆刪除The end result in the comparing process may shed light on whether the analysis is valid and to the point and fair. You may say my comment is based on outdated experience and criteria.
回覆刪除I fail to see how if the case ends in a ONE/Bind over can shed light on the process of this case unless one applies a round-trip fallacy. The crux of the argument that it was politically motivated is that the authorities are using so-called 白色恐怖 and that does not mean Chan must be sentenced to life imprisonment.You are certainly right and they are certainly wrong about the stop list issue. However this is a different kettle of fish from those you were basing your reasoning on. Wouldn't the oc case at least before the trial of the others consolidate to the extent of looking up Cnan at her place of work? Tang said no and that was because not going to look for her at place of work was part and parcel of his "low profile" wanted! BUT in the end she was arrested downstairs or in the vicinity of her place of work. What's your take on these matters that you did not take into account, at least not in the body of your articles,in the whole chronology of events?
回覆刪除Sterling,
刪除I predict, as part of the deal, the prosecution will ask Chan to take back the politically motivated prosecution accusation if the deal of ONE/BO is struck. Let's shelf this argument for the time being. White terror or bad timing is not easy to say unless we can see the minutes in the file to scrutinize the chronology of the event, otherwise it is all guesswork. I am not a police spokesman. I did not mean to defend their misdeed. I wrote in response to such an allegation. I just wanted to point out there could be some other explanations. Chan may be too outspoken and attracts the police attention to round up the matter. If the OC case bears a sluggish attitude, he/she may well think "you evade us and delay the matter, I am keeping this matter haunting over you" the kind of attitude. Can we wait until the matter is finally dealt with and discuss again?
As you have seen in my other responses, it`s not my style to engage in last-word-ism.
回覆刪除But guesswork is infinitely more fun than post hoc rationalization.
And frankly you are such an optimist sometime. you think the case will become closer to 水落石出 when it is finally dealt with?? Even if we can see the minutes in the file or Chan agrees to "take back the politically motivated prosecution accusation", it can prove non-political motivation? No, not unless we make them eat 誠實豆沙包 made by a bakery accepted by everyone.
That's why credibility/integrity is a priceless quality.
My dear friend, when the society is overwhelmed with a certain view of the matter, do we need someone to sit back and think impartially to see if the blind is leading the blind. It is what I am trying to do. I do not have the aspiration to correct the wrongs of the majority, but I have a good intent to see things objectively. There is no 誠實豆沙包. There is only 豆沙包 we can eat. Integrity is something I try to uphold. It is what I have been selling so far. I am not trying to say when everyone is drunk, I am the only sober soul. I am trying to say don't jump to conclusion so easily. There are many factors we may have omitted. You cannot be a pessimist all the time either. I am not trying to say the last word. I have to reply to you or other readers out of courtesy. You can see I do not hold a particular political stance or side with the administration. I criticise everyone if I see, from my perspective, righteousness is not seen to be done.
回覆刪除That's wonderful because 實在太多人同我講,"阿朱,我冇你咁好氣"
回覆刪除I'd hold you to it.
I have to give you a special treat. I can be equally long winded and persistent. I do not have the slightest derogatory connotation here. We knew each other well back then.
回覆刪除