2014年6月9日星期一

押後入獄

在上一篇W君留下以下問題

標少:
想請教一下,梁國雄今日上訴失敗,獲減刑但即時入獄1個月,佢庭上要求將「押後」入獄,待立法會下月休會後才入冊,但個官話無權咁做。想請教下標少,「押後入獄」呢種要求有無可能做到?

http://cablenews.i-cable.com/webapps/news_video/index.php?news_id=434439
「梁國雄向法官提出,希望在立法會七月中休會後才服刑,又說自己有信用,不會逃走。法官彭偉昌表示不擔心梁國雄離開,但他法庭無權押後執行有關的監禁刑罰。」

W

其實彭官已講了他無權押後梁國雄的入獄時間,單以押後入獄為理由,我未聽過可以在上訴失敗後的押後。要繞過這障礙,辦法當然有,就是上訴到終審法院,期間申請保釋(bail pending appeal)。法例第221章《刑事程序訴訟條例》第83Z 

221Title:CRIMINAL PROCEDURE ORDINANCEGazette Number:
Section:83ZHeading:Power to bail convicted personVersion Date:30/06/1997

A person need not be admitted to bail in connection with an offence if he has been convicted of that offence, but where any court has jurisdiction to remand that person in custody or to admit him to bail pending sentence or appeal, the court may make such orders as appear to it to be necessary for the detention or the admission to bail of that person and, in making any such order, shall have regard to-
    (a) pending sentence, the likelihood of a custodial sentence;
    (b) pending appeal against conviction or sentence, the likelihood of the sentence being completed before the disposal of the appeal or of the appeal being allowed; and
    (c) any other matter that appears to the court to be relevant.
(Added 56 of 1994 s. 8)

及484章《終審法院條例》第34條

484Title:HONG KONG COURT OF FINAL APPEAL ORDINANCEGazette Number:79 of 1995; 120 of 1997
Section:34Heading:BailVersion Date:01/07/1997

(1) The Court, the Court of Appeal or the Court of First Instance, as the case may be, may on the application of a person appealing or applying for leave to appeal or on the application of a person in custody pending the determination of the appeal, grant the person in custody bail pending the determination of the appeal.
(2) A grant of bail under subsection (1) may be made subject to such conditions as the Court, the Court of Appeal or the Court of First Instance, as the case may be, considers necessary.
(3) If a person is refused bail on an application made under subsection (1), he shall not thereafter be entitled to make a fresh application for bail-
      (a) before the commencement of the hearing of the appeal, except to the Court, the Court of Appeal or the Court of First Instance and only if he satisfies the Court, the Court of Appeal or the Court of First Instance that since the refusal, there has been a material change in relevant circumstances; or 
      (b) during the hearing of the appeal, except to the Court.
(Amended 120 of 1997 s. 14

都賦予上訴人申請保釋的權力。當然上終審法院未必有快期,在彭官處申請上訴到終院的許可,幾乎可以講一定駁回,所以彭官不予保釋。一切就看終院了,向終院申請保釋,終院會考慮應否發出上訴許可,應該的話就予保釋,相反而言,這四星期就坐硬了。

9 則留言:

  1. 非常感謝標少詳盡的回答!!!
    W

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  2. I tend to think that D Pang J would refuse certificate application but allow bail with a view to preserving the status quo pending application to the Appeal Committee (applying Chan Nai-ming FAMC 61/2006, Lo Wai-yan FAMC 101/2010). After all, the sentence is only 4 weeks.

    Let's wait and see the result.

    I

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    1. Does Leung meet the first pre-condition set out by Bokhary PJ(as he then was) in Lo Wai-yan? I don't think Leung can successfully pursue his application for leave in CFA since he cannot satisfy either limb of the pre-requisite requirements. His bail application should be denied.

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    2. The test for a single judge (and I would think for that matter a judge of the CFI) is whether the two pre-conditions 'may' (not 'will') be met (para 4 of Lo Wai-yan). Just as Ribeiro PJ refrained from expressing any view (not even a preliminary) on the prospect of the applicant getting leave from the Appeal Committee in para 5 of Chan Nai-ming FAMC 61/2006, the single judge should not pre-judge the matter at all. This is especially so where the CFI Judge is only there to deal with the certificate application. He is not empowered to grant leave to appeal. Only the Appeal Committee can grant leave and it is usually for it to consider the merits.

      Without knowing the proposed grounds of appeal or question(s) of law to be certified, it's really difficult to see whether Leung 'may' meet the two pre-conditions. Perhaps we may know more when Leung finally comes before the single Permanent Judge for bail.

      Interesting issue~

      I

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    3. Thanks profusely. You always show your generosity when you have spent your precious time to open my horizons.

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  3. http://legalref.judiciary.gov.hk/lrs/common/ju/ju_frame.jsp?DIS=93430&currpage=T
    The judgment has been uploaded.

    Do you think that leave is likely to be granted by the Appeal Committee?

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  4. Court of Final Appeal (Appeal Committee) sometimes grants custody bail when leave for appeal is not yet granted. But one concern is timing. Would the Court of Final Appeal make such grant after 20 days of imprisonment?

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  5. https://www.youtube.com/watch?v=egjhng5Sm0k

    pls leave your comment

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    1. What do you want me to say? If it is not a hoax, then a charge of criminal intimdation and claiming MOTS.

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