再談具結擔保

要再談這課題，即簽保守行為的法律，因為兩位不同讀者在具結擔保 及 14巴掌的簽保守行為 兩篇文引用了終審法院的LAU WAI WO v. HKSAR FACC 5/2003 , 香港特別行政區 訴 滕維德 HCMA 660/2011 及 HKSAR vs CHAN YUK YING  HCMA 881/2009 給我參考。這些案例，在講被告非自願下，法官有沒有權判令被告簽保守行為，跟匿名君在14巴掌的簽保守行為提出的質疑，被告在守行為期間，違反守行為命令，法庭是否有權判監這課題，可謂各不相干。

終審法院的Lau Wai Wo案判辭由非常設法官 Lord Scott of Foscote頒布，我引用以下的三段：

19. Section 109I of the Criminal Procedure Ordinance, Cap. 221, says that -

"A judge, a District Judge or a magistrate shall have, as ancillary to his jurisdiction, the power to bind over to keep the peace, and power to bind over to be of good behaviour, a person who or whose case is before the court, by requiring him to enter into his own recognizances or to find sureties or both, and committing him to prison if he does not comply."

It is common ground before us, and we agree, that the magistrate's bind-over order against the appellant must be regarded as an exercise, or a purported exercise, of the power conferred by this section. The language of the section is similar to that of s.1(7) of the Justices of the Peace Act 1968 under which the bind-over order in Ex parte Jude was made. There are, however, other statutory provisions relating to bind-over orders in Hong Kong which need to be noticed.

20. Section 61 of the Magistrates Ordinance, Cap. 227, provides that:

"(1) The power of a magistrate, on complaint of any person, to adjudge a person to enter into a recognizance and find sureties to keep the peace or to be of good behaviour towards such first-mentioned person shall be exercised by an order upon complaint, and the provisions of this Ordinance shall apply accordingly, and the complainant and defendant and witnesses may be called and examined and cross-examined, and the complainant and defendant shall be subject to costs, as in the case of any other complaint.

(2) The magistrate may order the defendant, in default of compliance with such last-mentioned order, to be imprisoned for 6 months."

21. Section 61 is not a power conferring provision. It regulates the exercise by magistrates of a power they already have. The power conferring provision is s.109I of the Criminal Procedure Ordinance. Section 61 is expressed to be applicable to the magistrate's power "on complaint of any person" to make a bind-over order. But what about cases where the magistrate proposes of his own motion to make a bind-over order? It seems to us that the provisions of s.61, in so far as they are relevant to a case where the magistrate is acting on his own motion, should be regarded as constituting statutory guidance to the magistrate as to the manner in which he should exercise his power.

終審法院認為是《刑事訴訟程序條例》第109I賦予（conferred）裁判官自發的判令被告簽保守行為的權力，其實這權力與我們討論這女子掌摑男友，面對警方向法庭申請要她簽保守行為所引用的《裁判官條例》第61條有所不同。但無論如何，不管是109I條抑或61條，都沒有清楚講出金额上限及守行為的期限及違反了的後果，這才是我跟匿名君的討論。我們無需再考究具結擔保這一詞彙，因為它是錯用之詞。

我覺得裁判官作出第61條的命令時，一貫做法是參考同條例的第36條的權限而作出，Archbold HongKong 也這樣講，我斗膽講，這看法不妥當。裁判官一切權力源自法例條文，該條文沒有清楚寫明，就不能套用其他條文。這問題如果不修例列明，便會是上終審法院的好題目。對裁判官而言，《刑事訴訟程序條例》第109I條，也產生相同的疑問。

Archbold 5-252段講：“Secondly, section 36 of the Magistrates Odinance (Cap 227) and section 107 of the Criminal Procedure Ordinance (Cap 221), which apply where a defendant has been convicted, should  be regarded as providing analogous statutory guidance as to the exercise of the bind over power in cases where there has not been a conviction of the person bound over. The $2,000 limit in section 36(1)(b) of the Magistrates Ordinance (Cap 227) should be regarded as applicable, and the three-year bind-over period in section 107(1) of the Criminal Procedure Ordinance (Cap 221) should not be exceeded.” 這權威典籍的權威講法，有何依據？還有，第107(1)條講的是公訴程序的罪行，而該條所講的「法庭」是指高等法院原訟庭，不包括裁判法院。講了一大堆問題，都沒有答案。