上一篇要讀者猜的是難題，一般人猜不到十分正常。答案是甚麽呢？
被告以前干犯「在公眾地方的猥褻行為罪」(非禮罪)，被判緩刑兩個月，在緩刑期間干犯了盜竊罪而被定罪，原審裁判官執行了這兩個月監。高院法官覺得執行緩刑做法正確，上訴有可能提出的理由當然像山中講兩案不同性質，要求不執行或執行部份，或增長緩刑期，這都有法律依據的做法（《刑事訴訟程序條例》第109C條）。不過，這也不是答案，因為原本判緩刑的裁判官一開始就犯錯，定被告盜竊罪而執行緩刑的裁判官也錯，駁回上訴當然也不對，所以3個法官都犯錯。
「在公眾地方的猥褻行為罪」違反《刑事罪行條例》第122條，如果我們看《刑事訴訟程序條例》附表3例外罪行(excepted offences)第6條，就知道「在公眾地方的猥褻行為罪」屬例外罪行。例外罪行即不能判處緩刑。例外罪行這名字聽起來很奇怪，應作何解？《刑事訴訟程序條例》第109B條賦予法庭判處緩刑的權力，附表3所列的控罪例外，所以就有例外罪行這詞。
一開始判被告緩刑的裁判官忽略了上述的限制，錯誤判了緩刑，所以判刑無效（void），根本不能執行，這兩個月判錯了。若果提出這論據，上訴是否會應該獲批准呢！
作為題外話，今年6月香港法律改革委員會發表諮詢文件，名為關於《刑事訴訟程序條例》（第221章）附表3所列的例外罪行的諮詢文件（2013年6月），尋求廢除例外罪行，另附上香港大學比較法及公法研究中心的報告以資參考，就算成事也會是幾年後的事。
至於這件案的錯判應該怎樣糾正，那我可管不著了。
Section 122 is "Indecent assault" which is an excepted offence. However, "Indency in public" is under section 148 of the Crimes Ordinance which is not excepted offence.
回覆刪除VL
Sorry, it should be "Indecency in public".
回覆刪除VL
在公眾地方的猥褻行為罪應該是用來處理類似 http://billsiu.blogspot.hk/2013/09/dock-identification.html 那種在公眾場所手淫但沒有露械（所以不能告indecent exposure）的案件？
回覆刪除On second thought, I think the charge of Indecency in Public is wrong in that case. The defendant was seen playing with his penis inside his trousers. He did not indecently expose his body. It should be a charge of Outraging Public Decency instead.
刪除The Indecent Exposure you referred to is Indecency in Public.
Conduct Outraging Public Decency is a common law offence?
回覆刪除V
My bad, it's not the offence charged.... I agree with VL's analysis.
刪除INDECENCY IN PUBLIC : A person who, without lawful authority or excuse, in any public place or in view of the public indecently exposes any part of his body shall be guilty of an offence and shall be liable on conviction to a fine of $1000 and to imprisonment for 6 months.
回覆刪除Regarding INDECENT ASSAULT, it is immaterial whether it happens in public or private place.
Yes, Outraging public decency is a common law offence. It is not an excepted offence.
VL
I agree. Not quite sure why Bill equated「在公眾地方的猥褻行為罪」with 「非禮罪」in the first place. To my understanding, 'public place' is never an element of offence for indecent assault. There is no need and indeed no point in pleading that the location of offence was a public place in the Statement of Offence. At most, a confusion can be made in respect of s.146 Crimes Ordinance, which speaks of indecent conduct.
回覆刪除I
Folks,
刪除It is truly my mistake to associate Indecency in Public to Indecent Assault. I should have checked out the English version of the offence first. It shows how stupid I am. The preceding blog and this one have become meaningless. An exercise wasting your mind. What is interesting is, through this mistake, you ladies just swarm in again. It has been a long time you have not been commenting.
Perhaps it is worth pointing out the maximum fine for the Indecency in Public is $2000, a level 1 fine.
My profuse apology for the inadvertent mistake which unveils how fragile my legal knowledge is.
標少果然有錯必認？又或者咁既環境想唔認都唔得？
回覆刪除有得撐，你估我撐唔撐？人要面，也要面對現實，而且我成日講錯嘢，慣於認錯，無所謂。還有，那班律政美女立即現身，如果我無講錯，她們就癮身。分分鐘是她們經手的案，所以特別眼利，也用番她們自己知道身份的字母代號，互相呼應。我提供一個給她們傾計的平台。我講這番話，就好像我講盤問技巧一樣，她們答嘴即我猜中身份，她們不再答嘴，就變成默認。另一方法就用匿名，她們以前間中都是這様。還有，這證明標少不算討厭，否則她們就不會繼續睇。我寫這些東西，正好展示我盤問的思考。
刪除Mistake always happens. It doesn't matter. Everyday I make all kinds of mistake which make me frustrate. But our training is to learn from experience and go ahead.
回覆刪除I make the prompt reply only because of your comment - "如果主控官猜不到就要打屁股" and
I had read the judgment for many times and could find the answer.
I am not the "律政美女", as you mentioned and don't know the other writers with "字母代號".
Anyway it is an excellent blog to share experience and opinion.
VL
Sorry, mistake again - Paragraph (2) - "and could not find the answer".
回覆刪除VL
You ladies are always generous to me, never a harsh word of criticism. I am grateful for this magnanimous generosity. It is something I still need to learn. It is true everyone makes mistake. It will be a cliche if I venture to explain this fact in life. Yours is only typo in nature. The meaning is clear enough reading in context. I make typographical errors every now and then when I write my blogs or replies to comments. Your re-reading of what you have commented shows that you care about what you write though anonymity does not tell who you are (But I can guess without asking people in DoJ. It is never my style to prod at who the anonymous fellows are.) It is true we should learn from mistake and do not look back in anger. That said, I do have one or two cases haunting over my head from past mistakes. It is one of the reasons why I comment cum remind people not to repeat the same error. You may say it is sharing, however shallow a view it may be.
刪除In the past, at one stage, when I was doing admin work in the magistracy, at around 4 pm when everyone was free of court duty, I would gather them and throw to them some legal or procedural errors I could see from the cases they handled. Sometimes I would ask them to think over night and we met again to discuss later. I know they were very afraid and yet they learned by heart because of these discussions. The subconscious prosecution mind in me prompted me to say "如果主控官猜不到就要打屁股". I did not mean to tease or bear any ill intent. This kind of discussion is always healthy and helpful, at least to me.
It does not really matter whether you are or other ladies are "律政美女". Beauty, though, scientifically there is yardstick about certain ratio of the face and body, I at least refer to your gracious heart. Fugacious look is short lived. When the day comes, the withering skin contracts into winkles only the grace of mind eternal.
Thank you once again and please continue to point out my mistakes. To me, they are lessons free of charge. I have no displeasure at all.
對, 失誤無損貴 Blog 的高可讀性 , 貴 Blog 令我等學生獲益良多 , 支持 .
回覆刪除多謝鼓勵。留言指出我錯的地方，對我也是鼓勵。近來有點事，所以見到猥褻兩個字，個腦立即聯想是非禮，浪費了大家的時間，十分抱歉。其實最近是不宜寫文。
回覆刪除請勿誇奬，宜小心思考及求証。VL小姐的態度值得學習，不要輕易照單全收。
Now I can understand your "如果主控官猜不到就要打屁股" comment and I like it actually! I would love to have your kind of 4 pm sessions as well. Definitely good learning experience.
回覆刪除I
I am flattered. Yet, my nostalgic feelings keep coming back after I started this blog, very pleasant memory of the bygone days. Whenever there was a 4 pm session, someone must have made a mistake. It seems I was the only one who held this kind of discussion back then. Sorry, m'm, we belong to a different era. I bet there is no such thing now. Just treat it as I am bragging.
刪除