答讀者問

Andy Tay2013年5月16日 下午4:30

標少你好，請教一下在這案件，警方可以申請傳票以傳召陳玉峰上庭，而不用拘捕、擔保然後釋放她？

Andy,

Sorry I have to reply in English for convenience sake and because of the length, I am unable to post it as a reply so I post it as a blog.

The simple answer to your question is NO.

Here comes the reasons. In the criminal procedure, there are 2 ways a case can be brought to court, summons or charge. The main difference between the 2 is the former is non criminal or of less criminality in nature and the latter is criminal in nature. In both cases, the criminal procedure applies in the court proceeding. That is to say the onus of proof in on the prosecution to prove the case beyond reasonable doubt in order to convict.

Summons and charge involve different court procedures. A summons normally involves less serious offences and can be applied for by various government departments. It will take longer time for the case to reach court because different time slot is allocated to different government departments. We are talking about at least a few months.

The deft (defendant) in the summons case will not be fingerprinted by the police but the charged deft will be. The police have their internal list of offences as to which offence needs fingerprinting. The police will rely on the fingerprint of the deft to keep and retrieve the criminal record in the Criminal Record Bureau. Almost all charged cases are fingerprinted. In a way it reflects the gravity of the offences.

If you are caught by the police for jay walking, the policeman will ask for your ID and address. After noting down your particulars, you will be let go. The policeman will go back to the police station to fill out the application for summons and then send the application to court. It will then start the court procedure. The court will print out the summons with date and time of appearance and will send out the summons by post. If the deft receives the summons and turns up in court, the matter will be dealt with. If there is no show, a re-service of the summons will be effected. If the deft again does not appears in court, the summons will be delivered to the address by hand, either by court bailiff or policeman. If no one answers the door, a repeated action will continue. If someone answers the door but say no such person, then other way to ascertain the whereabouts of the deft will be attempted, normally a memo will be sent to the Registration of Persons to obtain the address. If all the avenues are exhausted and the summons still cannot reach the deft,  then the case may be dropped. If a personal service of the summons is done and someone receives it, either the deft or his family, then it is treated as summons served. In that case, if the deft does not show up, the summons server will go to court to give evidence that the summons is served on a certain date. If the magistrate is satisfied that the summons is served, a warrant of arrest will be issued, normally back with bail.

In the instant case, if Ms Chan is summonsed instead of being charged and she keeps evading the summons and it cannot be successfully served on her, the case will eventually hang in the air and has to be dropped. A criminal charge cannot be handled like that. In her case, it is only a political activist's unlawful assembly. What if it is a triad settlement talk? The charge is the same, so the procedure should also be the same. There is no need to give her a different treatment.

If Ms Chan is charged to appear in court, failing to do so will result in the arrest warrant issued. It takes very short time for a person charged to appear in court.

As I mentioned before in my blog, since the frequency of demonstration and the number of people involved are increasing tremendously. The police cannot charge everyone in every arrest. They need time to seek legal advice to decide who to charge. In the past, they gave bail to the arrested persons and asked them to report back some time later. The whole bail procedure is tedious if there are a lot of people arrested and reporting back. It then develops into arrested persons being released after personal particulars are taken. They will be contacted again when legal advice has been obtained and decision is made as to who is to be charged. They are contacted by phone and the cooperative ones are dealt with quickly. If you evade the police, you are bringing trouble to yourself. It will just prolong the matter.

If the deft deliberately evades the police, serving a summons will not help speed up the case. For example, if the bailiff serves me a summons, he knocks on my door and I answer it. I can deny I am Bill Siu and deny Bill Siu lives there. It does not help to summons instead of charging. The most important reason is of course it is an indictable offence and has to be dealt with by charging.

I hope I have answered your query.