下面張貼了Stuart-Moore嚴斥Symon Wong的判辭，理由清晰，(除了一個typo, 第11段的owned字應該是owed)，Symon無得撐。這類藏有少量毒品及吸食工具案，每日都不知發生多少宗，除非被告在保釋期間再犯，或者有棄保潛逃紀錄，否則沒有理由不予保釋，連旅遊證件也不會扣起。警察一早就讓他擔保，他又上庭應訊，第一庭又讓他繼續擔保，到了審訊日又有到庭，Symon真的沒有取消他擔保的理由，我怎樣想也拆解不到。真的要對付找藉口押後的被告，一個做法就是不准他押後，這樣做定了罪的話，上訴也好有可能得直，但不准押後要解釋就比revoke bail容易得多。另一方法就是立即把他這件案轉給Court Liaison Office, 看下當值律師能否接手代表被告。Symon用了最不利自己的做法，可能他沒想過會被嚴詞譴責。Symon得了個安慰奬，因為被告押後之後沒有到庭，覃有方發出拘捕令不予保釋，拉到之後這老同認罪居多。他獲得liberty, 獲得公義，到尾就會獲得應得的懲罰。
(判辭上載之後，立即有兩位匿名律師留言相告，看來我懶不得。)
HCMP 1731/2014
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
MISCELLANEOUS PROCEEDINGS NO 1731 OF 2014
______________________
BETWEEN HKSAR and LEUNG KA KIT ____________________ Before: Deputy High Court Judge Stuart‑Moore in Chambers (Open to Public) Date of Hearing: 18 July 2014 Date of Judgment: 18 July 2014 |
________________________
J U D G M E N T
________________________
1. This is an application for bail which has been fast‑tracked by the Department of Justice to this court because of the scandalous circumstances in which Permanent Magistrate, Mr Symon Wong, withdrew the defendant’s bail at Eastern Magistrates’ Court on 14 July this year.
2. In short, the defendant was arrested on 30 April 2014 and he was charged on 10 June 2014 with two offences. The first was possessing apparatus fit and intended for inhalation of a dangerous drug contrary to section 36(1) and (2) of the Dangerous Drugs Ordinance, Cap 134. The second charge was the possession of a crystalline solid containing 0.55 of a gramme of methamphetamine hydrochloride, contrary to section 8(1)(a) and (2) of the same ordinance.
3. The defendant was given bail by the police on 13 April 2014 until 19 June 2014. On that day he appeared before Ms Bina Chainrai, Principal Magistrate, sitting in Court 1 at Eastern Magistrates’ Court. The defendant pleaded not guilty. The prosecution had no objection to bail being extended until the defendant’s trial date. Accordingly, he was given bail on condition that he deposited $500 with the court.
4. On 14 July 2014, the defendant again duly attended Eastern Magistrates’ Court. This time he came before Mr Symon Wong in Court 6. However, the defendant then applied to have an adjournment to secure legal representation. That application was granted but the defendant’s bail was immediately revoked. The defendant then asked the magistrate for bail, offering $1,000 cash bail and the surrender of his travel documents.
5. The prosecution, quite rightly in the circumstances, stated that they had no objection to bail. The magistrate still refused to give bail. The record of bail proceedings signed by the magistrate, a copy of which I have been provided, gives no reason at all as to why bail was refused. It merely states, “Remanded in gaol custody.” All 15 boxes on the Extract of Record of Bail Proceedings form, which provide a variety of reasons as to why bail may be withdrawn are conspicuously left blank. These are followed by the magistrate’s signature.
6. The withdrawal of bail, in the circumstances I have described, is utterly shocking. There was not one single valid reason, either provided by the magistrate or on the facts for withdrawing bail. This was a blatant abuse of power to lock up an unrepresented defendant who was himself powerless to do anything about it.
7. If the magistrate was irritated by the defendant wanting a contested trial or by his request for legal representation, as it seems he must have been, this was no reason for the quite outrageous and disproportionate action he took. As a matter of fundamental law, there is a presumption in favour of bail.
8. The liberty of the subject is not some theoretical catchphrase. To lock someone up without sound reasons is entirely contrary to our system of law. Fortunately for the defendant, we have a Department of Justice which is there, amongst other reasons, to protect the rights of those who have been unfairly treated.
9. The magistrate’s refusal to grant bail has been brought to this court’s attention as quickly as possible by the Department of Justice and Ms Annie Li, on the Department’s behalf, has outlined to me the deplorable circumstances in which the defendant was remanded in custody pending his trial. Such conduct on the part of a magistrate must never happen again. It brings disgrace on the judiciary whose reputation has been built on the fairness and equal treatment it gives to all parties who come before the courts.
10. Now, as to this bail application, as I indicated to the defendant before these proceedings began, bail will be granted. Cash bail in the sum of $500 is already lodged with the court and there will be no other conditions.
11. Mr Leung is owned an apology on behalf of the judiciary for the way he has been treated in this case which I am glad to be able to extend to him now. This should never have occurred and it is to be hoped that there will be no further example of this kind of behaviour from the Bench.
12. I would also like to compliment the Department of Justice for immediately recognising the injustice which was done to Mr Leung and, as soon as this was recognised, for bringing it to the attention of the court. I should just add, though, that this court is fully geared to hear same‑day bail applications before a High Court judge in cases which reveal such a clear cut denial of justice as this, where the wholly inappropriate use of judicial power has been wielded to incarcerate someone who was plainly entitled to his liberty. It is to be hoped in future that, in a case such as this, the application can be heard even sooner than it has.
13. The reality is this, that the defendant only applied for bail on 16 July 2104, two days after he had been put into custody. This was faxed through to this court at 11.36 am on Wednesday, 16 July 2014, and a copy was also sent to the Department of Justice. The court administration, when it received the form applying for bail, allowed, as is usual for routine applications, two clear working days before the hearing and so they originally listed the case for Monday, 21 July 2014.
14. However, the Department of Justice, realising that this was not a routine application and that they had at no stage opposed bail, informed the court this morning. As a result, the case was listed for this afternoon. Obviously, this could have been picked up more quickly as the Department of Justice could have noted the urgency of the application on the copy of the bail form faxed directly to them on 16 July 2014. For one reason or another, this was overlooked.
15. If the defendant had had the advantage of legal representation, the whole apparatus for arranging an urgent application for bail could have been put into place on 14 July 2014, immediately after bail had been refused. As a matter of procedure, aside from ordinary common sense, such applications should be clearly marked ‘urgent’ and a short reason should be provided to indicate to the court why the application needs to be put on as quickly as possible.
16. In this case, all that needed to be said was that the magistrate had refused bail on his own initiative, without giving any reason and the prosecution had at no stage objected to bail.
| (M Stuart‑Moore) | |
| Deputy High Court Judge |
Miss Li Nga Yee Annie, PP of Department of Justice, for the respondent
Applicant in person, present
The magistrate might be wrong to have not ticked on the standard form any reason for not granting bail.
回覆刪除But I wonder if the PP realised that the defendant had a "jump police bail record". And I wonder if such record, if revealed in the High Court Bail application hearing, would have any bearing in Stuart-Moore's decision and choice of words. If the PP had not done so, should she had done so?
Whatever insider story you have, it does not save Symon from criticism. Let us look at the case pragmatically. Stuart-Moore slashed at Symon for giving no reason when revoking bail despite non objection from the prosecution. It may well be that the deft does not have a good record and he absconded before, these kind of background matters could not be divulged to the trial magistrate before conviction. It could not be a factor for Symon to consider when he revoked deft's bail. It has no bearing at all at the bail hearing. The fact that the eventual failure to turn up before David Chum cannot abate the mistake made by Symon. The PP did no wrong for not mentioning it and even if she did mention, she would also be criticised. Don't forget, the deft was all along admitted to bail. I tried to find a way to alleviate the guilt of Symon after reading the judgement, but regrettably unable to do so.
刪除//「真的要對付找藉口押後的被告，一個做法就是不准他押後，這樣做定了罪的話，上訴也好有可能得直，但不准押後要解釋就比revoke bail容易得多。另一方法就是立即把他這件案轉給Court Liaison Office, 看下當值律師能否接手代表被告。」//
回覆刪除我記得第一庭會提醒被告可以自行請律師，「否則法庭未必會押後案件」。我有無記錯?
不押後下的定罪會被推翻，這豈非用石頭扔自己隻腳?
Duty Lawyer 以外仲有有無better/best practice?
無理由任得個Deft玩架...最尾個懲罰係應得，唔算真正方法bor
PH
我強調不准押後比revoke bail 易解釋，只作純比較，兩者皆不應做。就算第一庭提醒被告有關可自行請律師的話，到了被告第一次申請押後，也難以必然拒絕。就算上訴案，有些都譲被告押後幾次，何況審訊的。這是culture, 不是justice. 叫佢去見duty lawyer可以講是為將來不再准許押後的步部署，你建議更好辦法給我？
刪除想深一層，都是司法開明引起的問題。開明也引起很多不必要的司法覆核案，很多濫用程序，玩嘢得逞，使人討厭，不過看一個bigger picture, 這就是民主制度可貴的地方，買魚尾搭魚頭呀！不是這樣，香港老早就給極權吞噬了。拿揑平衡點殊不容易啊！有機會要跳出這框框，從一個距離去看香港，才不會給淹沒了。
標少，起剛剛頒發的判詞HCMA217/2014 ，法庭容納愈時上訴11年的申請並撤消被告的罪，以我的認知，法庭容許超過3個月的上訴時限案件微乎幾微，由於該案並沒有引述任何案例，我想知有何種質，有何案例可參考，法庭會容納這些上訴的申請？謝謝
回覆刪除經常匿名的學生
判辭沒有講批准逾時上訴的理由，荒謬。你應該問教授喎，做乜要難委我？
刪除would you like to do some reading for the homework...?
刪除1. section 114A MO Cap 227
2. Lo Hing Wai HCMP 3101/1993
3. Hung Chan Wa FACC 1/2006
4. Ko Chun Pong CACC 213/1982
PH
今日至upload嘅判辭，唔係功課掛？
刪除這不是功課，與其他人無關，純為興趣，身邊沒有archbold，教授好忙要佔中，他們比不上標少資深專業可靠。我的知識有限，排除Criminal Cases Review Commission及有新證據的案件，英國除了這單案外Hamilton v Queen, The Lewis v Queen, The[2012] UKPC 31，越時上訴成功的案件，都是失敗的或我找不到，雖然匿名君提及上述案件，但都係不成功的越時上訴案。HCMA217/2014這單案有機會成為香港第一單非新證據越時上訴成功的案件。我是懶，起發問這個問題及現在，都沒有做深入的research，但標少經驗豐富，學者無提的他都知道，textbook所講的最強越時上訴理由就是新證據，至於FACC 1/2006的種質，好多書都沒提。
刪除非常懶惰和經常匿名的學生上
嗱，開玩笑就得，咪讚我喎，面皮厚嘅人都會面紅。寫這些東西旨在提出討論，學習別人的看法，開闊自己眼界。我得一本2007年舊Archbold, 一本textbook 都無，就係靠綱上揾咋。所以有PH及其他人留言，我都學到好多嘢。
刪除正所謂一人計短，二人計長，三人勝過豬腳亮。集思廣益，絕對有益。
回覆刪除另外, 逾時上訴成功的案件不止這一單，上訴庭有 (不過我唔知有無睇錯...幫我睇下):-
1. Liang Bingzhao CACC 122/1996 - no compelling reasons for indulgence but in the interests of justice to hear the application.
2. Au Yeung Pui Wah CACC 149/2002 - appeal against sentence 25 months out of time was successful in the interests of justice.
3. Shum Chiu CACC 424/2008 (28 Feb 2011) applying Wu Chun Piu [1996] 1 WLR 1114 at 1118:- "However before turning to the substantive issues which arose on the appeal in the Hong Kong Court of Appeal, their Lordships refer first to the extension of time sought in any event by the defendant. Their Lordships were referred to Rex v. Marsh (1935) 25 Cr.App.R. 49, 52, where the Court of Criminal Appeal in England stated that the rule and practice of the court was not to grant any considerable extension of time unless the court was satisfied that there were such merits that the appeal would probably succeed. This is also the rule in Hong Kong.
Nevertheless and despite the delay of some 16 months in this case, it does not seem to have been relied on substantially by the Crown in the Court of Appeal. Neither does the delay appear to have been considered as fatal by the court itself: there was no specific reference to it in the judgment of that court. Further, their Lordships note that in that judgment, when referring to the merits of the appeal, the Court of Appeal expressed the view that the point raised in the latter might have been decided in the defendant's favour.
In these circumstances their Lordships do not think that at this stage the delay that there undoubtedly was in the start and prosecution of the appeal in Hong Kong should of itself be fatal to the defendant's present appeal."
by the way, i'm NOT saying the judge must have been good enough (or have been referred to the right/relevant cases) in the law in this matter, but he might have been persuaded, especially by the merits of the case. (Yet the delay of over 10 years is really startling.)
PH
兩個字，厲害。四個字，非常厲害。PH好野。
回覆刪除懶惰的藉口，我只有hklii 同司法機構網站可以用。HKLII 起揾條例的案例非常有用，用noteup揾，否則的話，我好少用它。司法機構網站好懶地揾個下。我見PH提的案件之間沒有太大關連。沒有互相cite。keywords都唔同。靠的應是PH多年累積的經驗
修改： HCMA217/2014這單案有機會成為香港第一單超過五年而非靠新證據越時上訴成功的案件
極之懶惰和經常匿名的學生上
actually symon wong is the worst offender for this kind of "summary" justice. it seems to be the quality of judicial officers have been deteriorating since 1997. sometimes a judicial temperament is more important than legal knowledge.
回覆刪除I heard that there is development in this matter. Perhaps we should not pre-judge before all the acts are out.
刪除