2013年9月26日星期四

法官判案的常識

警員涉偷同袍iPhone脫罪

【明報專訊】軍裝警被指在尖沙嘴警署內偷去同袍的iPhone 4,被同袍以電話應用程式「Find My iPhone」追尋,發現手機被放在軍裝警的儲物櫃內。原被控偷竊罪的軍裝警經審訊後昨獲洗脫罪名,他聞判後喜極而泣。裁判官認為雖無法證明警員有偷竊意圖,但質疑其行為令人懷疑。

官質疑被告目的

被告盧卓浩(25歲,圖右)原被控於今年3月10日,在尖沙嘴警署1樓的訓示室內偷取事主馮榮廣的iPhone 4連充電裝置。辯方指被告於案發當日見有人遺下手機,怕交予值日官後令對方麻煩,才代為保管並等候事主聯絡他,後來他因上廁,才把事主的手機放進儲物櫃內。

裁判官馬保華質疑,被告把手機交給警署值日官後,對方只需透過警方電台聯絡事主,此舉絕不複雜;被告亦可嘗試翻閱手機通訊錄聯絡事主的朋友。裁判官又指出,被告見訓示室放有正充電的手機,應能推斷事主會折返取回,質疑被告將取走手機之目的。

辯稱沒取出電池SIM卡

但裁判官指出,被告任職警察且沒有案底,裁決時應謹慎考慮他是否有犯案意圖;普通人偷去手機後,通常會把電池及SIM卡拿掉,但被告沒有這樣做,加上在警署偷竊同袍手機很容易被揭發,被告未必會如此愚蠢。對於事主發現遺失手機後曾多次致電手機,被告沒有接聽,裁判官認為手機可能被調校至「震機」模式。

【案件編號:KCCC2729/13】
(26/9/2013 明報)

我無意挑剔,據明報的報導來看,Wahab(馬保華)本案的判決理由有點問題,要拆iphone的電池?How? Wahab一定是沒有iphone,才會這様講。這就是蘋果產品的特色,不讓你自己拆電池,要拆就要拿去先達廣場之類的電話修理店才行。拆sim card 也不是一般電話的拆法,iphone 要有它的針才能拆sim card,或者用類似尖度的針才行,否則也是無從入手。法官當然不是甚麼都懂,但如果是判案依賴的理由,就應搞清楚事實才好講。我根本不會相信被告所講,盜竊意圖,明顯不過。這警員就算脫罪,我也會進行紀律聆訊,把他革職,他的解釋都是廢話。




22 則留言:

  1. 其實類似情況經常發生,尤其是交通案件。我並非針對裁判官,大家在平常生活中也會有意或無意地扮專家,但法官理應恆常警惕,小心分別常理和專業知識。

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    1. There is no rules of evidence in"大家在平常生活中也會有意或無意地扮專家", but inside the court there is. It is not a game or at least it's not supposed to be. That why even jurors has to take an oath to return a verdict according to the evidence. But some single judges think they are above it all.

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    2. There is still something called judicial notice or factual matters commonly known and understood.

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    3. Judicial Notice is one of the rules of evidence. There is a body of case law on the subject, it is not a magic wand or a judge's absolute perogative. I don't think even Wahab was rash enough here to have invoked it. And even if he was, it does not make this ruling( as reported ) less perverse, just stupid as well as perverse.

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    4. I agree he could not invoke Judicial Notice to explain how to remove the battery and sim card for the iphone. In reality, he has just made a big mistake to the contrary. There should be evidence from the prosecution or evidence in rebuttal if such was raised by the defence.

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    5. 咁你之前 bring up Judicial Notice,莫非模仿梁表妹和譚表姐想混淆視聽.

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  2. If a 鬼佬釘官 bends over backward to acquit a fellow Mason, what do you call that? If a 共産黨官 never convicts a fellow 共産黨, what do do call that? If a 釘官 always acquits 某社團 members, what do you call that? I'd call it corruption, body and soul. There are two types of 釘官: a) the 罪恶克星 and b) the 弄權畏權 invertebrate. Guess which one I think he is? This 官's history 太長太臭.
    And that's why A. Ching's last famous judgement was so uplifting.
    You had been too kind to put it only on the level of 常識. If this point was made either during Defendant's testimony or in defence speech, prosection must have picked it up. If not, Wahab was making findings without evidence to acquit a police officer.
    Anyway it is even more difficult to reconcile this verdict if one'd read the report in Apple Daily two days ago, before the reporter knew what Wahab was going to do.:

    年近五旬的輔警馮榮廣昨日在九龍城裁判法院供稱,今年3月10日下午2時在尖沙嘴警署一樓訓示室接受訓示,並將一部黑色iPhone4連接至神枱旁的電源。但他離開警署時忘記取回手機,當他發現後已立即向同袍借電話打給自己的手機,證實手機沒有關掉。
    馮同日下午5時返回警署,他不斷撥打自己的手機號碼,雖然手機仍接通,但他遍尋不獲,不排除手機調校至震機狀態。姓蕭同袍見狀,遂教他開啟手機「Find My iPhone」的應用程式,蕭指馮的手機仍在尖沙嘴警署內,即使手機已調校至靜音或震機狀態,手機在開啟該應用程式後會發出特別鈴聲。





    官裁表證成立

    馮、蕭連同另一名姓李輔警一起憑「聲」找尋失物,終於在四樓男更衣室一個儲物櫃內聽到特別鈴聲,儲物櫃屬於25歲被告盧卓浩,櫃門貼上被告的警員編號。其中李認識被告,最後在警署三樓一間休息室發現被告。
    被告當時正打電話,李詢問他:「唔好意思,師兄,我同事唔見咗部iPhone4,你有冇喺訓示室執到?」被告表現不耐煩,並說:「冇!冇!冇入過訓示室,冇執過電話。」李離開,並立即將事件向上級報告。
    油尖區重案組接手調查,探員同晚帶同被告到儲物櫃,被告按密碼打開儲物櫃,內有一個迷彩袋,被告向探員表示:「我頭先執到嘅手機放喺袋度。」探員從袋中搜出iPhone及充電器。被告否認盜竊罪,被裁定表證成立,聆訊今續。
    案件編號:KCCC2729/13

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    1. From what was reported, the evidence is so overwhelming that no reasonable person will not convict. Yet, I just picked up the factual aspect about how an iphone functions.

      You are just like ST. I wonder if you actually are and use another name.

      I don't know if it is fair to use the history of a person (This 官's history 太長太臭) to draw the conclusion. I would rather comment case by case.

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    2. hahaha. I wish I had ST's humour, pricison,intelligence, good looks and good friends. How many times have you made cumulative comments on Esther Toh? And as a proponent of promotion within judiciary on merits, if track record is not relevant, then what is? How many times have you asked your readers to read ALL of your blog before they make critical comments about you? Reputation is priceless.
      Case by case? My foot.

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    3. Interesting enough. Even the use of a pseudo name there is a shadow of the language of ST and ALMOST ends with ST. Why create a new identity then.

      I agree that more than once I have told my readers to read all my blogs when, don't forget, because there was criticism and misunderstanding of my political stance. Unlike in the case of Esther Toh, when I criticised Her Lady, I pointed out in each case where I disagreed with her judgement. There is of course a cumulative effect. For Wahab, it is perhaps the second or third times I have talked about the cases he handled. From this perspective, there is no cumulative effect. You perhaps begrudgingly bad mouth him for personal reasons. I am afraid I am unable to share the same feeling because it is empirical. I don't know what track record you have kept about him. To me, my reading of his cases is scanty. Wahab is a nice bloke. But nice bloke makes mistakes. Who does not? Nice bloke may not be liked by all. I comment the facts he took into consideration were ill conceived despite feeling that he was a nice bloke. ( I have to say "was" because I have not seen him for umpteen years.) I know we will embroil in another long winded argument because you emphasize "This 官's history 太長太臭" where as I only took a narrow issue----the reasons for the acquittal.

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    4. You said "十幾年前我認識的Don So不是這樣的"in 信耶穌偷肥牛. So you can invoke your impression but others can't.What Almost 匿名 was saying is that 十幾年前他認識的Wahab己是這樣的" In fact, ST told me he had a whacking good time before Wahah when he was on fiat, woderfully nutritious for his ego. Except for the time Wahab was totally brow-beaten by the very "able" Mitcheell-Heggs. That was ugly. ST only defended one case before him in his 23+ years. Another way to resolve the issue in non-personal manner is too save up enough money to engage 鍾庭耀.
      ST also said he is still using his old email if you have private things to say to him.

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    5. I am sorry I lost ST old email address. He can send one to me so that things in private can be communicated that way.

      We of course are affected by our impression formed through very limited facets of encounters with the person. That is why I severely criticise in writing when there is something concrete I can rely on, in all fairness. I hope I can consistently demonstrate this attitude in my blog. Why should I bother to give an overall evaluation of the person? I am only commenting case by case. You can invoke whatever impression you have on any person, by all means.

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    6. Bill said,"From what was reported, the evidence is so overwhelming that no reasonable person will not convict." But in Bill's honest opinion Wahab simply made a mistake with his 常識. And incidentally and by the way, in Bill's opinion he is a nice bloke. This is totally rational.

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  3. 請問標少, 律政司會否上訴?

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  4. Rarely do we see DoJ would appeal on facts. The most recent one we have seen was the Apple Daily photographer's case at the Government Headquarters (律政司司長 訴 成啟聰 HCMA266/2013). In short, the likelihood of appeal ( to state the case) is slim.

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  5. Can the Secretary for Justice state the case on the ground that the Magistrate has wrongfully taken judicial notice of facts as to the practice of removing battery and SIM card after stealing a phone and that iPhone's battery can be easily removed?

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    1. First of all, I have to say without the transcripts of the trial or being present at the trial, all I say is just guesswork. Supposing the defendant testified to the effect that the thief would have removed the battery and sim card to avoid detection, the prosecutor should have cross-examined him to the contrary because of its infeasibility. The prosecutor could, theoretically, apply to call evidence in rebuttal, to get a technician from Apple to rebut what the defendant said. If the defendant made submission about this fact instead of giving evidence, then I would object to this submission. It amounts to giving evidence at the bar table. If what the defendant said was unchallenged or the magistrate only thought iphone is just like other phone in its design, then too bad, there is no basis to state the case.

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  6. 「普通人偷去手機後,通常會把電池及SIM卡拿掉,但被告沒有這樣做,加上在警署偷竊同袍手機很容易被揭發,被告未必會如此愚蠢…」「想象不到這麽愚蠢」可以成爲抗辯理由?

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    1. At times, there are cases with aberrant results. I don't even know if this was a defence put forward or Wahab concluded it from his own knowledge.

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    2. 「普通人偷去手機後,通常會把電池及SIM卡拿掉,但被告沒有這樣做,加上在警署偷竊同袍手機很容易被揭發,被告未必會如此愚蠢…」 [法官未必會如此愚蠢」不知iphone 不能把電池及SIM卡拿掉

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    3. 我沒有iphone,但iphone不能關機嗎?關了機還能找出所在嗎?電話也不能打通呀??

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  7. 可以關機,不知賊仔懂不懂和有沒有時間。關機應該追蹤不到。

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