上一篇留言討論究竟在庭外辱罵法官是否構成藐視罪，因為這種庭外藐視行為，開埠以來只檢控過一單，所以大家生疏。一般辱罵法官的藐視行為，都發生在庭內，裁判法院較多，多數都以粗口問候或者擲鞋。先講個笑話。咸豐年代，銅鑼灣裁判署主任裁判官是Eddie Yan，因為他時常判老同入戒毒所，所以老同都憎他。有人傳他是甄沾記的族人。有一次，他判老同入戒毒所，老同發難，破口大罵：死人甄沾記，食晒你啲耶子糖。當然也夾雜粗口。老同沒有加刑，只判了入戒毒所。老同寧願坐監，乾淨利落，坐完無手尾跟。入戒毒所，幾個月後放出來，一段時間內驗到再吸毒，會recall番入去，所以，他們都寧願坐監。
言歸正傳。1996年蘋果侵權用了東方獲得的王菲照片，引起訴訟。東方不滿法庭裁決，引致對原審法官辱罵批評整整一個月，還用狗仔隊跟蹤法官，引發這一宗藐視法庭案，也因此訂下幾項法律原則，附上判辭法律觀點如下：
[(1) A person, firm or company cannot be convicted of the criminal offences of scandalising the court or interfering with the administration of justice unless the facts establish beyond a reasonable doubt that there was a real risk, as opposed to a remote possibility, that the acts complained of would undermine public confidence in the due administration of justice in the minds of at least some of the persons who were likely to become aware of the acts complained of.
(2) The offences of scandalising the court and interfering with the administration of justice do not require proof that the alleged contemnor intended to undermine public confidence in the due administration of justice. It is sufficient if he intended to do the acts which are said to constitute the contempt.
(3) Upon the assumption that making the scandalising of the court a criminal offence amounts to a restriction on the right of freedom of expression, that restriction was
(a) for the protection of "public order (ordre public)" within the meaning of Art. 16(3)(b) of the Bill of Rights because it was for the protection of the rule of law to the extent that the rule of law is eroded if public confidence in the due administration of justice is undermined, and
(b) necessary for the achievement of that objective.
Accordingly, the criminal offence of scandalising the court has not been abolished or modified by the Bill of Rights.]
(The Secretary for Justice and The Oriental Press Group Limited and Others HCMP000407/1998)
當時代表律政司的是外判了給湯家驊資深大律師及陳文敏，陳文敏在港大任教兼私人執業。案件性質嚴重，看下判辭開場白怎樣講：
1. The Oriental Daily News is the most popular newspaper in Hong Kong. Towards the end of last year, it embarked on a campaign against the Judiciary. The campaign has resulted in these proceedings for contempt of court. So far as we know, this is the first prosecution in Hong Kong's legal history of a contempt of court consisting of "scandalising the court" and "interfering with the administration of justice as a continuing process".
2. The gravity of the alleged contempts is reflected in the language which leading counsel for the Secretary for Justice chose to use in the course of his submissions:
"This is the most serious and flagrant contempt that Hong Kong has known. The attack on the judiciary was as unprecedented as it was persistent. For over a month, the people of Hong Kong were spoon fed with daily repetitive dosages of scurrilous abuse of not just one or two judges but the entire judiciary. The ultimate unparalleled challenge to the rule of law [took] the form of an 'educational' paparazzi trail which followed one of our appeal judges for 3 days around the clock."
近年對法庭惡意中傷的事不少，律政司反應緩慢可以理解，畢竟香港罵人文化續漸積累，蔚然成風，變本加厲。可是像前一篇那幀照片，已使人忍無可忍。律政司還有理由不動他嗎？
言歸正傳。1996年蘋果侵權用了東方獲得的王菲照片，引起訴訟。東方不滿法庭裁決，引致對原審法官辱罵批評整整一個月，還用狗仔隊跟蹤法官，引發這一宗藐視法庭案，也因此訂下幾項法律原則，附上判辭法律觀點如下：
Headnote
[(1) A person, firm or company cannot be convicted of the criminal offences of scandalising the court or interfering with the administration of justice unless the facts establish beyond a reasonable doubt that there was a real risk, as opposed to a remote possibility, that the acts complained of would undermine public confidence in the due administration of justice in the minds of at least some of the persons who were likely to become aware of the acts complained of.
(2) The offences of scandalising the court and interfering with the administration of justice do not require proof that the alleged contemnor intended to undermine public confidence in the due administration of justice. It is sufficient if he intended to do the acts which are said to constitute the contempt.
(3) Upon the assumption that making the scandalising of the court a criminal offence amounts to a restriction on the right of freedom of expression, that restriction was
(a) for the protection of "public order (ordre public)" within the meaning of Art. 16(3)(b) of the Bill of Rights because it was for the protection of the rule of law to the extent that the rule of law is eroded if public confidence in the due administration of justice is undermined, and
(b) necessary for the achievement of that objective.
Accordingly, the criminal offence of scandalising the court has not been abolished or modified by the Bill of Rights.]
(The Secretary for Justice and The Oriental Press Group Limited and Others HCMP000407/1998)
當時代表律政司的是外判了給湯家驊資深大律師及陳文敏，陳文敏在港大任教兼私人執業。案件性質嚴重，看下判辭開場白怎樣講：
1. The Oriental Daily News is the most popular newspaper in Hong Kong. Towards the end of last year, it embarked on a campaign against the Judiciary. The campaign has resulted in these proceedings for contempt of court. So far as we know, this is the first prosecution in Hong Kong's legal history of a contempt of court consisting of "scandalising the court" and "interfering with the administration of justice as a continuing process".
2. The gravity of the alleged contempts is reflected in the language which leading counsel for the Secretary for Justice chose to use in the course of his submissions:
"This is the most serious and flagrant contempt that Hong Kong has known. The attack on the judiciary was as unprecedented as it was persistent. For over a month, the people of Hong Kong were spoon fed with daily repetitive dosages of scurrilous abuse of not just one or two judges but the entire judiciary. The ultimate unparalleled challenge to the rule of law [took] the form of an 'educational' paparazzi trail which followed one of our appeal judges for 3 days around the clock."
近年對法庭惡意中傷的事不少，律政司反應緩慢可以理解，畢竟香港罵人文化續漸積累，蔚然成風，變本加厲。可是像前一篇那幀照片，已使人忍無可忍。律政司還有理由不動他嗎？
A very senior member of the Bar told me a no. of years ago "even you may dislike a particular judge as a person, you must still respect his/ her office." When a judge steps into the courtroom, lawyers and parties do not bow their heads because of the judge, but rather to show their respect to the system. The same applies to the judge. DF
回覆刪除In this era, respect has a different meaning or has to be removed from the dictionary.
刪除原來湯家驊係主控，唔怪得今日見佢接受訪問提及東方報業一案時講得咁熟，又唔似以前咁講親criminal野都錯漏百出。
回覆刪除It must be very difficult for an ordinary member of the general public to differentiate between healthy and lawful discussion of court cases (or judicial officers who decided them), and contempt. If I were the Secretary for Justice (I am not), I would be slow to prosecute anyone for contempt, or scandalizing the court. Freedom of speech is worth protecting. This is Hong Kong, not Singapore.
回覆刪除SJ has been slow in this regard. Yet, there is a limit to this.
刪除There are seriously defamatory posters and banners insulting, in very strong, derogatory and disgusting terms, a certain current Court of Appeal judge, hanging just outside of the High Court Building in Admiralty and they had been there for many years - no one cared in the past and no one cares at the moment. Why is it that the SJ got so agitated about this particular episode?
刪除群情洶湧有原因，唔只係因為判咗自己友有罪，而係「乳房襲警」就咁聽落實在太荒謬，一般人自然會覺得憤怒。我都唔識嘢，只係睇咗標少講「事實裁斷」，明D唔明D咁諗到「如果真係咁荒謬，辯護律師無理由咁低能打佢唔散」，打得散都監粗判，判咗都俾人上訴啦。我想講，唔知點解，社會上都係好少人解釋俾大眾聽，愈唔明，愈躁動。
回覆刪除Bill, 近日讀到秦嘉儀懷疑被殺案的審訊報道時有很多疑問。請問普通法世界有沒有在找不到遺體、沒有直接目擊證人、沒有影像直接紀錄殺人過程的情況下以環境證據謀殺罪成的例子？從已公開的資料顯示：
回覆刪除1. 死者最後一次進入大廈後未曾外出
2. 擁有死者單位匙卡被告之後數日多次進出大廈
3. 被告曾攜帶大型膠袋進入
4. 被告曾以手推車把載著重物的膠袋推出大廈
5. 被告之後棄置單位內所有傢俬，再找師傅重新裝修單位，曾問師傅是否有興趣租用。
這些證據足以令人覺得被告十分可疑，有可能是棄屍者，但如何令陪審團信服被告殺人是個irresistible inference呢？就算被告真的有殺人，又為何一定是謀殺而非誤殺呢？
(如標少覺得現時不適合討論，可否在審結後再回應，或者只討論一般法律原則？)
美國有 "Woodchipper Murder"，新加坡有 "Sunny Ang" 謀殺案
刪除或者有cautioned statement搭夠，還不太清楚整件案的證據。
刪除