不少人想我講對秦嘉儀案的看法，我都不敢胡謅，因為真的不懂。前幾篇有留言提出來討論，今早也收到一位澳門律師的電郵，也想探討定罪是否穩妥，電郵當中有幾句這樣講：
晚輩是一名實習律師，長期以來都是 前輩博客的鐵粉，字裏行間，獲益良多！感謝萬分！
十分期待前輩能寫一下有關近期城中熱騰騰的 "無屍兇案" (案件編號：HCCC 428/14)的看法，案中環境證供很強，但是，在沒有屍體以及被告零合作的情況下，實在存在太多合理疑點。儘管不能完全推翻"謀殺"的"可能性"，然而仍然有太多其他可能性，例如：誤殺、自衛殺人、死者病發身亡，等等。
雖然我不看蘋果，上一篇有朋友把蘋果對此案的報導連結留下，我也懶得去找別的報導，就把蘋果的報導貼出來：
無屍體無法證無招認
董事謀殺情婦囚終身
【本報訊】已婚證券公司前董事殺情婦兼毀屍滅迹案，經大半個月審訊，陪審團昨退庭商議僅兩小時後極速裁決，一致裁定他謀殺罪成，依例判終身監禁，成為開埠以來首宗「無屍體、無法證、無招認」入罪的謀殺案。法官指若非得淘大花園完善閉路電視系統及警方調查，被告或逍遙法外。據悉被告將提出上訴。
記者：蔡少玲 梁偉強
現年41歲被告陳文深曾任職國泰君安董事，昨聽到罪成時木無表情。主審暫委法官司徒冕稱，根據閉路電視片段，33歲死者秦嘉儀2011年10月5日返回大廈單位後，就沒再外出，陳在10月6日到訪秦家，並於翌日利用巨型尼龍袋將屍體搬走。法官指，陳雖沒透露為何和如何殺害秦，及怎樣處理屍首，但在強而有力的環境證供下，他最終被陪審團裁定謀殺罪成。
閉路電視成關鍵
法官稱，案中曾有傳聞證供關於死者想向陳報復，要大爆他涉及內幕交易，但因屬傳聞證供，故庭上不作披露。法官讚揚調查本案的警務人員，指本案是一宗無屍首、無武器、無明顯殺人動機和無招認的案件，調查起來尤為困難，若沒有他們的參與及淘大花園完善的閉路電視保安系統，陳今日或會逍遙法外。
由於死者的友人曾因死者失蹤而報案，但警方因她不是親屬而不受理，法官要求警方提供報告，解釋處理失蹤人口個案的程序，明言或有需要改善制度。
死者秦嘉儀是四川人，2001年下嫁港人，2006年獲單程證來港，同年底於夜總會做小姐，翌年離婚並搭上已婚的陳文深。陳在2009年購入牛頭角淘大花園E座一單位讓秦居住。但二人不時吵架甚至動粗。2011年陳遭妻子揭發婚外情，二人關係更差。
據閉路電視及陳的八達通卡紀錄，陳2011年10月6日傍晚到秦家，個半小時後出街買巨型真空袋、手套、除臭劑、螺絲批和保鮮紙後折返，再逗留個多小時後離開。翌日早上，陳攜同膠袋和尼龍袋再到上址，30分鐘後用手推車推着一個尼龍袋離開。之後數天他指示裝修工清空單位，又在公司致電秦手機，用秦手機發短訊予她的友人說已返內地，製造她在生的假象。
陳在庭上自辯稱，被妻子揭發婚外情後已向秦提出分手，但秦不肯，患上嚴重抑鬱，要服食精神科藥物。10月5日妻表示嘗試原諒他，他遂承諾不再見秦，翌日上門找秦講清楚，秦答應搬走。他見秦已離開，遂買真空袋等物品執拾單位。
被告將提出上訴
三個月後，秦兄因一直找不到秦而來港報警，警方曾找陳協助調查但無頭緒，直至兩個月後翻看閉路電視片段，才拘捕陳，後來將他釋放。至去年3月再次拘捕陳，陳一直還押至今。據了解，被告將提出上訴。
秦嘉儀密友唐文蓮早前作供後對記者說，秦為人樂觀不可能自殺，肯定是遭陳殺害，死得冤枉，說時哽咽。她指秦在四川的家人很窮，為了接濟他們才在夜店工作，秦為人「簡單冇文化」，很崇拜陳，也因陳而轉工。秦因婚外情被揭發，遇害前半年情緒大受困擾，她向心理專家講述痛苦經歷，也在QQ網上以「情人的眼泪（淚）」留下不少傷感自白，如「人生要經歷多少坎坷才到老的呢」、「說不出的心情，矛盾，複雜」。她遇害後，親友因找不着她，也飽受折磨，兄長曾在QQ留言感嘆「小時候沒照顧好你」。即使陳去年遭起訴，仍留言說「三年了，一家人經常想起你」。
案件編號：HCCC428/15
沒有屍體可定謀殺罪已是大半世紀的法律了，但以前是靠被告承認、別人指證、科學鑑證如毛髮、血跡、牙齒、小量骸骨等。這件案甚麽法證都沒有，被告甚麽也不承認，單靠環境證據作推論，這種環境證據，一定要合理、強而有力、並且是唯一不可抗拒的推論才可以把被告定罪。
晚輩是一名實習律師，長期以來都是 前輩博客的鐵粉，字裏行間，獲益良多！感謝萬分！
十分期待前輩能寫一下有關近期城中熱騰騰的 "無屍兇案" (案件編號：HCCC 428/14)的看法，案中環境證供很強，但是，在沒有屍體以及被告零合作的情況下，實在存在太多合理疑點。儘管不能完全推翻"謀殺"的"可能性"，然而仍然有太多其他可能性，例如：誤殺、自衛殺人、死者病發身亡，等等。
董事謀殺情婦囚終身
【本報訊】已婚證券公司前董事殺情婦兼毀屍滅迹案，經大半個月審訊，陪審團昨退庭商議僅兩小時後極速裁決，一致裁定他謀殺罪成，依例判終身監禁，成為開埠以來首宗「無屍體、無法證、無招認」入罪的謀殺案。法官指若非得淘大花園完善閉路電視系統及警方調查，被告或逍遙法外。據悉被告將提出上訴。
記者：蔡少玲 梁偉強
現年41歲被告陳文深曾任職國泰君安董事，昨聽到罪成時木無表情。主審暫委法官司徒冕稱，根據閉路電視片段，33歲死者秦嘉儀2011年10月5日返回大廈單位後，就沒再外出，陳在10月6日到訪秦家，並於翌日利用巨型尼龍袋將屍體搬走。法官指，陳雖沒透露為何和如何殺害秦，及怎樣處理屍首，但在強而有力的環境證供下，他最終被陪審團裁定謀殺罪成。
閉路電視成關鍵
法官稱，案中曾有傳聞證供關於死者想向陳報復，要大爆他涉及內幕交易，但因屬傳聞證供，故庭上不作披露。法官讚揚調查本案的警務人員，指本案是一宗無屍首、無武器、無明顯殺人動機和無招認的案件，調查起來尤為困難，若沒有他們的參與及淘大花園完善的閉路電視保安系統，陳今日或會逍遙法外。
由於死者的友人曾因死者失蹤而報案，但警方因她不是親屬而不受理，法官要求警方提供報告，解釋處理失蹤人口個案的程序，明言或有需要改善制度。
死者秦嘉儀是四川人，2001年下嫁港人，2006年獲單程證來港，同年底於夜總會做小姐，翌年離婚並搭上已婚的陳文深。陳在2009年購入牛頭角淘大花園E座一單位讓秦居住。但二人不時吵架甚至動粗。2011年陳遭妻子揭發婚外情，二人關係更差。
據閉路電視及陳的八達通卡紀錄，陳2011年10月6日傍晚到秦家，個半小時後出街買巨型真空袋、手套、除臭劑、螺絲批和保鮮紙後折返，再逗留個多小時後離開。翌日早上，陳攜同膠袋和尼龍袋再到上址，30分鐘後用手推車推着一個尼龍袋離開。之後數天他指示裝修工清空單位，又在公司致電秦手機，用秦手機發短訊予她的友人說已返內地，製造她在生的假象。
陳在庭上自辯稱，被妻子揭發婚外情後已向秦提出分手，但秦不肯，患上嚴重抑鬱，要服食精神科藥物。10月5日妻表示嘗試原諒他，他遂承諾不再見秦，翌日上門找秦講清楚，秦答應搬走。他見秦已離開，遂買真空袋等物品執拾單位。
被告將提出上訴
三個月後，秦兄因一直找不到秦而來港報警，警方曾找陳協助調查但無頭緒，直至兩個月後翻看閉路電視片段，才拘捕陳，後來將他釋放。至去年3月再次拘捕陳，陳一直還押至今。據了解，被告將提出上訴。
秦嘉儀密友唐文蓮早前作供後對記者說，秦為人樂觀不可能自殺，肯定是遭陳殺害，死得冤枉，說時哽咽。她指秦在四川的家人很窮，為了接濟他們才在夜店工作，秦為人「簡單冇文化」，很崇拜陳，也因陳而轉工。秦因婚外情被揭發，遇害前半年情緒大受困擾，她向心理專家講述痛苦經歷，也在QQ網上以「情人的眼泪（淚）」留下不少傷感自白，如「人生要經歷多少坎坷才到老的呢」、「說不出的心情，矛盾，複雜」。她遇害後，親友因找不着她，也飽受折磨，兄長曾在QQ留言感嘆「小時候沒照顧好你」。即使陳去年遭起訴，仍留言說「三年了，一家人經常想起你」。
案件編號：HCCC428/15
以本案的案情而言，謀殺是唯一的推論嗎？我一直都不敢評論此案，因為不掌握案情每一細節，從報導看，可見控方依頼肇事大廈的閉路電視，從死者最後返回單位，之後就不再出現，鎖定她沒有離開。之後被告購買的各項物品帶回單位，都符合處理屍體的推論，再之後棄置所有傢俬並重新裝修，連貫來看就不單止是疑點重重了，可謂把一切可以鑑證的綫索毁滅。現代社會不會重現 'Campden Wonder' 那類案情。
Campden Wonder是1660年發生在英國的一宗謀殺案。70歲的「死者」Harrison離開在Campden的住所打算步行去兩里外的村莊，他沒有在預定時間回家，女主人派遣男僕Perry去找他，之後輾轉發展成找到Harrison染血的恤衫領，Perry向警察招認，指證是他母親及兄弟謀財害命，最後3人都被定罪，判環首死刑。判了死刑的被告死而後已，1662年Harrison卻重現人間，他對失蹤的解釋是給海盜虜走，給賣了去土耳其做奴隷。這戲劇一樣的事的真確性難以考證，但以現代的科技來看，秦嘉儀會重現的機會等如零。現代人的一舉一動都會留下數碼足印，如果她在單位內自殺，被告無需毁屍滅迹。如果她神奇地離開了單位，也沒有可能返回大陸而無出境紀錄。故此她在單位內消失是唯一的推論。
Campden Wonder是1660年發生在英國的一宗謀殺案。70歲的「死者」Harrison離開在Campden的住所打算步行去兩里外的村莊，他沒有在預定時間回家，女主人派遣男僕Perry去找他，之後輾轉發展成找到Harrison染血的恤衫領，Perry向警察招認，指證是他母親及兄弟謀財害命，最後3人都被定罪，判環首死刑。判了死刑的被告死而後已，1662年Harrison卻重現人間，他對失蹤的解釋是給海盜虜走，給賣了去土耳其做奴隷。這戲劇一樣的事的真確性難以考證，但以現代的科技來看，秦嘉儀會重現的機會等如零。現代人的一舉一動都會留下數碼足印，如果她在單位內自殺，被告無需毁屍滅迹。如果她神奇地離開了單位，也沒有可能返回大陸而無出境紀錄。故此她在單位內消失是唯一的推論。
那麽，她不可以是與被告爭執被誤殺或者因其他原因譬如服過量藥物(她患嚴重憂鬱要服藥)致死嗎？本案不能跟Hello Kitty藏屍案(CACC 522/2000)(報導及上訴判辭的連結)作類比，因為該案不能斷定死因是虐打抑或毒品過量所致，故此判被告誤殺罪。秦嘉儀案的被告完全否認謀殺或者秦在任何情況下死去，陪審團沒有其他選擇，只有判他謀殺或者無罪，完全沒有基礎去推論其他死因。其他的猜測性推論就沒有説服力及天馬行空了，斷不能幻想她是否給外星人帶走。最後的問題是究竟從控辯雙方提出的證據，被告的謀殺罪是否唯一合理的推論，那要留待上訴庭去詳細再審視了。
謹此呼籲諸君，不論留言抑或發電郵給我，不要以前輩相稱，相信我除了年紀比一般讀者大之外，只是個甚麽都不懂的人，澳門那位見習律師把我叫得汗顏。我只希冀藉此平台作討論橋樑，增長見識。
謹此呼籲諸君，不論留言抑或發電郵給我，不要以前輩相稱，相信我除了年紀比一般讀者大之外，只是個甚麽都不懂的人，澳門那位見習律師把我叫得汗顏。我只希冀藉此平台作討論橋樑，增長見識。
由於篇幅太長，我分了幾段
回覆刪除前幾篇我提出了matter of fact ,今次我想講points of law, no confession, no forensic evidence ,起archbold 都有提的案件R. v Horry[1952] N.Z.L.R. 111
Abstract: The appellant was accused of the murder of his wife; no trace of her body had been found and there was no direct evidence
of her death or that the appellant had killed her, nor had he made
any confession. The Court of Appeal of New Zealand held that the
fact of death was provable by circumstantial evidence, so long as it
was so compelling and cogent as to convince the jury that the facts
could not be accounted for by any rational hypothesis other than
murder.
so long as it was so compelling and cogent as to convince the jury that the facts
could not be accounted for by any rational hypothesis other than
murder.
所以我認為法官應提出被告有誤殺或自殺的假設，兇宅樓價底
另一單案R v Onufrejczyk
由於這類案件歷史由久，bailii都沒，我將整篇判詞上載[1955] 1 All ER 247
Criminal Law - Murder - Corpus delicti - Body of murdered man not found - Proof by circumstantial evidence.
On a charge of murder the corpus delicti may be proved by such circumstantial evidence as leaves open no
other rational hypothesis than murder.
The appellant, a Pole, and one S owned a farm in partnership. Their farming venture was a failure. The
appellant was in need of money and S wanted to break off his relationship with the appellant. The last
occasion when S was seen alive by anyone other than the appellant was on 14 December 1953, when S
took a horse to the local blacksmith to be shod. Thereafter S disappeared completely and his body was
never found. When the appellant was called to give an account of the disappearance he told a story of the
departure of S which was improbable and was inconsistent with a prior account given by the appellant to a
sheriff's officer who had gone to the farm on 18 December 1953. The appellant wrote contemporary letters
explicable only on the footing that he never expected S to return and put forward a proposition to one P
which, if carried out, would have involved S being impersonated. Further the appellant endeavoured to
persuade the blacksmith to say that S had taken the horse to be shod on 17 December. Minute amounts of
the blood of S were found on the walls and ceiling of the kitchen in the house occupied by the appellant and
S. The appellant was charged with the murder of S, the case for the prosecution being that he was murdered
before 17 December 1953.
Held - (i) On a criminal charge the fact that the murdered man was killed, like any other fact, can be proved
by circumstantial evidence, being evidence which leads only to that one conclusion of fact, although no body
is found.
[1955] 1 All ER 247 at 248
(ii) in the present case there was evidence from which the jury could infer that S was dead, and, if he was
dead, the circumstances of the case pointed to the fact that his death was not a natural death, and
accordingly, the jury having been warned that the circumstantial evidence must be so cogent as to convince
them that the facts could not be accounted for on any other rational hypothesis than murder, a corpus delicti
had been established and the jury were entitled to find that the appellant murdered S.
R v Horry ([1952] NZLR 111) applied.
Appeal dismissed.
As to Proof of the Corpus Delicti, see 9 Halsbury's Laws (2nd Edn) 183, para 268; and for cases on the
回覆刪除subject, see 14 Digest 432-435, 4562-4586.
Cases referred to in judgment
Evans v Evans (1790), 1 Hag Con 35, 161 ER 466, 14 Digest 432, 4562.
R v Horry [1952] NZLR 111, 3rd Digest Supp.
Appeal against conviction
The appellant, Michael Onufrejczyk, was convicted on 1 December 1954, before Oliver J sitting
with a jury at Swansea Assizes, of the murder of Stanislaw Sykut and was sentenced to death.
Elwyn Jones QC and T J Jones for the appellant.
H Edmund Davies QC W L Mars-Jones and Esyr Lewis for the Crown.
11 January 1955. The following judgment was delivered.
我揾過所有代表的御用大律師及律師都死哂。有啲臨死前仲做過法官
LORD GODDARD CJ
delivered the judgment of the court: The appellant, who is a Pole and who has been in this country since
1947, was convicted before Oliver J at the last assizes for Swansea of the murder of another Pole, Sykut, his
partner.
The principal question that has been argued, the trial having lasted for some twelve days and having been
summed up with meticulous care by the learned judge who analysed the evidence in what I may describe as
a masterly fashion, is whether there was proof of what the law calls a corpus delicti. In this case the
remarkable fact, which has remained remarkable and unexplained, is that the body of this man, who was last
seen so far as anybody knows on 14 December 1953, has completely disappeared and there is no trace
whatever either of him, or of his clothes, or of his ashes. It has been submitted to us that the law is that,
unless the body can be found or an account can be given of the death, there is no proof of a corpus delicti.
Corpus delicti means, first, that a crime has been committed, that is to say that the man is dead, and that is
death has been caused by a crime. As Sir William Scott (later Lord Stowell) pointed out a great many years
ago in a matrimonial case (Evans v Evans, 1 Hag Con at p 105), one does not begin to inquire whether the
prisoner is guilty of the crime until one has established that a crime has been committed.
There is, apparently, no reported case in English law where a man has been convicted of murder and there
has been no trace of the body at all. But it is, we think, clear that the fact of death can be proved, like any
other fact can be proved, by circumstantial evidence, that is to say, by evidence of facts which lead to one
conclusion, provided that the jury are satisfied and are warned that the evidence must lead to one conclusion
only.
Oliver J began and ended his summing-up to the jury with a direction, which he said was as clear a direction
回覆刪除as he could give, and which he took from R v Horry, which was before the New Zealand Court of Appeal in
1951. The headnote of that case which Oliver J took as stating the law is this:
"At the trial of a person charged with murder, the fact of death is provable by circumstantial evidence, notwithstanding
that neither the body nor any trace of the body has been found and that the accused has made no confession of any
participation in the crime. Before he can be
[1955] 1 All ER 247 at 249
convicted, the fact of death should be proved by such circumstances as render the commission of the crime morally
certain and leave no ground for reasonable doubt: the circumstantial evidence should be so cogent and compelling as
to convince a jury that upon no rational hypothesis other than murder can the facts be accounted for."
Speaking for myself, I entirely agree with that as a statement of law except that I would not use the words
"morally certain"; I would say "such circumstances as render the commission of the crime certain". I myself
think that it is always a pity in dealing with matters of evidence to use epithets either for the purpose of
increasing its value or decreasing its value; and when one talks about cases in the books and somebody
using the expression "a high degree of certainty" or "strong evidence" and words of that sort, they really add
nothing to what the law requires. The law requires a case to be proved, and the jury are warned and told that
they have to be satisfied on the evidence that the crime is proved and that the prisoner is guilty of the crime;
and they should be told that if, when they have heard the evidence, they are not satisfied, if they do not feel
sure that the crime has been committed or that the prisoner has committed the crime, then their verdict
should be not guilty. One should leave out of account, if one can, any expression such as "giving the prisoner
the benefit of the doubt". It is not a question of giving the benefit of the doubt; if the jury are left with any
degree of doubt that the prisoner is guilty, then the case has not been proved.
Oliver J having read that statement of the law to the jury, said:
"It is indeed a grave step to find a murder proved when there is no body, but it is not the law, and I do not believe it has
ever been the law; it is certainly not the law today that if a body can be got rid of so that no trace of it can be found, a
murderer who has done so is not to be convicted. That is not the law. But, of course, the burden of proving everything
against the man is upon the Crown. There is no burden on him to disprove anything. I think the most helpful way I can
bring this to your minds is to say this. If Onufrejczyk had not given evidence at all in this case, and all you had was the
case for the Crown, would you be satisfied with that case unanswered, the case for the Crown? If you would, then you
will proceed. But if you were, for instance, to come to the conclusion that the case for the Crown standing
uncontradicted was not good enough--suppose you took that view--then you need not go on to consider Onufrejczyk's
explanation; there is no burden upon him."
A little later on, before he turned to the details of this remarkable case, he said this:
回覆刪除"If [Sykut] did not die by natural causes, he was killed. Members of the jury, if he was killed his body was concealed or
destroyed and has not been found. If he is dead and was killed and the body was destroyed or concealed he was
murdered, was he not? That is the point. I want you to apply your minds to that set of circumstances and decide for
yourselves whether in the light of these facts, and many more to which I shall have to draw your attention, you can say
you are satisfied that no rational hypothesis except that he is dead, dead by violence, is open. If you are driven to that
conclusion that would be a verdict of murder; but if you think that would be going too far and that you could not safely
say that no rational explanation of his death except murder could be conceived, why then it will mean you have a doubt
about it and you will acquit him."
I do not think that counsel for the appellant, for whose assistance in this case and for whose forceful and
temporate argument the court is much indebted, would quarrel with that direction of the learned judge which
seems to me as ample and as fair to the appellant as it is possible to conceive.
[1955] 1 All ER 247 at 250
Sir Matthew Hale, who was writing at the end of the seventeenth century, says in his Pleas Of The Crown,
vol. 2, at p 290:
"I would never convict any person of murder or manslaughter, unless the fact were proved to be done, or at least the
body found dead ... "
He says that you must prove the fact of the murder, or at least that the body has been found. He does not
say, and it is very often quoted as though he had said, that you cannot convict a man of murder unless you
can produce the body. One has to remember, I think, especially as there have been dicta of other judges in
the earlier part of the last century going down to the middle of the century which give some colour to the idea
that the court will always require in the case of murder or manslaughter the production of the body, that the
circumstances of these days are different from what they were when Sir Matthew Hale wrote. When Sir
Matthew Hale wrote, there was no police force; there was nothing except a watchman in a town and a parish
constable, who might have been an old infirm man of seventy or eighty years, in the country. There was no
telegraph. There were no motor cars. There was no aliens' legislation such as we now know. There was no
means of seeing that aliens were registered and did not get out of the country without permission once they
were here, and matters of that sort. It would be, therefore, a strong thing indeed were any court to lay down
that, without production of the body, or accounting for it by somebody who had seen it or seen the murder
committed or something of that sort, a murderer could not be convicted.
The case against the appellant was that he and Sykut had a farm. The farm was a failure, and the appellant
回覆刪除had come to the end of his resources. He was in dire need of money; of that there cannot be any doubt, and
his own letters show it. He was trying to borrow money from this person and that person, that relation and
that near friend, and failed every time. He had actually got to the point when he was obviously considering
fraud, because he was hoping to get a valuer who would over-value the farm so that he might be able to
raise more money on mortgage from his bank. Meanwhile, Sykut wanted to break off his association with the
appellant. There was a suggestion that Sykut should be paid out. Sykut had invested his money in the farm
and was willing to sell his share in the farm for £700 if he could get it from the appellant, and, if not, Sykut
said that the farm had to be put up for sale. They had been to Mr Roberts, a solicitor of Llandilo, and their
difficulties had been discussed before him. There was evidence, which I do not think, speaking for myself,
was anything like so strong or convincing in pointing towards murder as a great deal of the other evidence,
that these men had quarrelled; but we come to 14 December 1953, by which date no conclusion had been
reached between these two men about the sale of the farm. The appellant at this time may or may not have
had any money beyond perhaps a few shillings or a few pounds, but it seems clear that he had nothing at all
to enable him to pay out his partner. The appellant was very anxious to avoid the sale by auction and wanted
to get the whole farm because, I suppose, he thought if he had the whole of it he could make a satisfactory
business out of it.
On 14 December Sykut disappeared, so far as is known, not only from Carmarthenshire, not only from
England but, so far as is known, from the face of the earth. Letters came from Poland from his wife after his
complete disappearance when there would have been ample time for him to have got back to Poland and got
in touch with his friends, which would seem to show that he had not got back to Poland, and the last person
who is known to have seen him is the appellant.
The appellant's activities after 14 December were certainly very remarkable. There was evidence, and very
strong evidence, that on 18 December he must have posted a letter to a Polish woman living not very far
away not later than a quarter to five or, it may have been, five o'clock. He said in that letter:
[1955] 1 All ER 247 at 251
"My case is already completed, but I must if only for a few hours pop in to London to take from my acquaintances
回覆刪除money. I gave my partner the gross [i.e., the larger part] of the money because I borrowed for a few weeks, only I must
sell what is possible. So beg you very much to help me in this matter and I will be very grateful, at the moment this is all
for now, the rest we talk over when Mrs. comes over. Beg you to inquire whether it is possible to sell the poultry alive
before the holidays, as I must have at least part of the money to begin something and may be some of the cattle. Hand
kisses, expecting as soon as possible to see you because my partner is leaving for fourteen days and might change his
mind. Please don't wait a moment because it might be too late."
There he is saying that he has fixed up matters with his partner, that he has paid him most of the money and
is expecting him to go away for a few days. What we know is that the appellant went up to London and was
trying by every means in his power to borrow money from relatives there to enable him to pay off his partner.
He was getting a woman, who came and gave evidence and evidently impressed the learned judge, to forge
(there is no other word for it, though she may not have known she was forging) documents purporting to be
agreements, and so forth, and then adding a signature to them purporting to be Sykut's, and giving all sorts
of contradictory accounts. When he had to give an account of how his partner disappeared, he told the sort
of story you may see in a magazine, or a detective story, or a story by the late Phillips Oppenheim, of how a
large, dark car, sometimes described as black and sometimes as green, had arrived at this lonely farm at
7.30 at night, finding its way up a dreadful rocky path; there were three men, one of whom had a revolver,
and the unfortunate Sykut was put into that car at the point of the revolver and driven away. A story like that
was told and yet, remarkably enough, on 18 December a sheriff's officer had gone to the farm before seven
o'clock at night to levy an execution. The execution was against the appellant alone, and when the officer
came to the place where the business was carried on he naturally asked, as he had to see that he was not
levying on partnership property: "Where is Mr Sykut?" He was told: "Oh, Sykut has gone to a doctor at
Llandilo". He never went to a doctor at Llandilo according to the evidence that was given, but at 7.30 that
night he was supposed to be kidnapped and taken to London. Then the appellant said in his evidence to the
court that he was expecting his partner back at the farm, and yet all the letters which he is writing then seem
to say that his partner had gone to Poland and that he was not going to see him back.
He was writing letters
回覆刪除that can only be explained on the footing that he knew perfectly well that his partner could never turn up
again. One of the matters of the greatest possible importance is that, when the appellant was in London and
telling all sorts of contradictory stories to the people from whom he was trying to borrow money, he made two
remarkable proposals. First, he asked Mrs Pokora, with whom he was evidently on terms of close friendship,
to send him sham registered letters, that is to say, to get registered envelopes, to put sheets of paper in them
and to send them to him, purporting to send him two hundred pounds. Another more remarkable thing was
that he actually asked that the husband of this lady should come down and should go with him to see a
solicitor at Llandilo and should impersonate his partner. Could he have done that, would he have dared to do
that, if he had thought there was the smallest chance of his partner appearing again, although the appellant
said in his evidence in court that he did expect his partner to come back again, his partner who had new
clothes and other property and left everything behind, if the appellant's story is true? His partner went off with
these people, whether he was going to Poland or somewhere else, leaving his clothes, and never came back
or made any attempt to get back. Indeed, the appellant said that he knew one of the men, Jablonski, which I
daresay is as good as any other name if you are using
[1955] 1 All ER 247 at 252
a Polish name, arranged to meet his partner at Paddington station at three o'clock, on which day does not
matter, and that Jablonski's account was that he went there and waited until three o'clock and nobody came.
Later, so it was said, be met them at a Polish club and there this document was signed, and the signature
said by the prosecution to be a forgery was affixed in the presence of Mr Jablonski and another gentleman.
There was nobody called from the Polish club to say that these people ever existed at all.
I do not propose to go all through the evidence that was called, but there was a very remarkable piece of
evidence which cannot possibly be accounted for in any other way than that the appellant was deliberately
trying to manufacture evidence with regard to the life of Sykut, and that was the local blacksmith's evidence.
On 14 December the last day on which anyone saw Sykut alive, a horse from the farm had been taken by
the appellant to the blacksmith for shoeing, and had been fetched by Sykut on the same day. The blacksmith
had charged 17s. 6d. for shoeing the horse. The blacksmith's evidence was perfectly clear about that. He
said there was no doubt in his mind at all about it; whether he referred to his book, I do not know, but I think
he did.
At the end of December, when the police were beginning to make inquiries, the appellant visited the
回覆刪除blacksmith and paid him the money, and then he tried to persuade the blacksmith to say that it was on 17
December that Sykut went there to take the horse away. The case for the prosecution was that Sykut was
dead by the 17th, that he was killed either on or immediately after the 14th. That was the last day anybody
had seen that unhappy man alive, and here is the appellant, at the end of December, when the police had
begun to make inquiries, trying to get a man whose evidence on one point was vital, to give untrue evidence
as to the date on which Sykut fetched the horse. If the blacksmith's evidence was true, the appellant was
trying to get him to say something untrue.
Those are all matters which were from time to time pointed out to the jury by the learned judge and on which
they had the advantage of hearing counsel on both sides. It is perfectly true that the learned judge did not
point out to the jury all the matters. Moreover a judge does very often say to a jury--"It is very remarkable that
such a point has not been proved, and if it could be, it ought to have been proved." The case for the
prosecution was:--This man has disappeared. He has completely gone from the ken of mankind. It is
impossible to believe that he is alive now. I suppose it would have been possible for him to have got out of
the country and become immured behind what is sometimes called the Iron Curtain; but here you have facts
which point irresistibly towards the appellant being the person who knows and who disposed of that man in
one form or another. It may be that it would be desirable to emphasise to the jury that the first thing to which
they must apply their minds is: Was a murder committed? Speaking for myself, I think that the way the
learned judge put it in the two passages which I have read did sufficiently direct the attention of the jury to
the fact that they had to be satisfied of that, and, if they were satisfied of the death, and the violent death, of
this man, they need not go any further. It is, no doubt, true that the prosecution relied considerably on certain
minute spots of blood which were found in the kitchen when it was scientifically examined, spots so small
that they might easily have escaped the attention of somebody who was trying to wash or wipe up blood. The
appellant did not deny that the blood which was found, although it was a minute quantity, on the wall of the
kitchen and, I think, on the ceiling of the kitchen, was the blood of his partner. He said that its presence there
was due to the fact that his partner had cut his hand in the field with, I think, one of the tractors, and on
coming in must have shaken his hand and shaken off some blood. That, of course, was a possibility and it
was put to the jury. It was also a possibility that Sykut was disposed of in the kitchen, but there is no
evidence that he was and, a matter which has been very properly stressed by counsel for the appellant,
there is no evidence
[1955] 1 All ER 247 at 253
here how Sykut met his death. This court is of opinion, however, that there was evidence on which the jury
could infer that he met his death, that he was dead; and, if he was dead, the circumstances of the case point
to the fact that his death was not a natural death. Then, if that establishes, as it would, a corpus delicti, the
evidence was such that the jury were entitled to find that the appellant murdered his partner.
For these reasons, we have been unable to find any misdirection by the learned judge or anything in the
回覆刪除summing-up which would justify us in saying that the case was not properly presented to the jury. We have
come to the conclusion that there was evidence on which the jury were entitled to find that the appellant's
partner was murdered and that the appellant was the murderer. Accordingly, this appeal is dismissed.
Appeal dismissed.
Solicitors: Porter & Glasbrook, Llandilo, Carmarthenshire (for the appellant);Director of Public Prosecutions
(for the Crown).
G A Kidner Esq Barrister.
這幾句可能是法官引導陪審團的
It may be that it would be desirable to emphasise to the jury that the first thing to which
they must apply their minds is: Was a murder committed? Speaking for myself, I think that the way the
learned judge put it in the two passages which I have read did sufficiently direct the attention of the jury to
the fact that they had to be satisfied of that, and, if they were satisfied of the death, and the violent death, of
this man, they need not go any further
但我覺得有問題，沒有virtually certain的mens rea
這是文滙報的報道
法官引導陪審團時指出，控方有時未必能展示兇手的殺人動機，意圖及動機兩者存有分別，殺人意圖可於殺人前一刻才出現，控方沒有必要證明陳懷有殺人動機，但亦提醒陪審團在裁定謀殺這類極端的罪名時，應考慮陳過往良好品格及按照常理作出判斷
明顯同
so long as it was so compelling and cogent as to convince the jury that the facts
could not be accounted for by any rational hypothesis other than
murder.不同
從傳媒所報道的推斷
我認為陸貽信太早close file ,應提交更多的證據及證人給陪審團
案件應該retrial 及上訴庭法官要再考慮R v Onufrejczyk案件
請指教，我淨係揾到兩單咁的案，其他的判詞如R. v. AMANI ZEPHANIA KIMWERI (1968) HCD 50
揾唔到
謝謝你花了很多時間來討論，本案的案情事實比閣下引用的上訴案例的案情明顯不同，論facts, 我覺得證據compelling and cogent. 被告一連串的舉措起碼足以使我推斷他犯了謀殺，究竟有沒有misdirection, 恐怕要上訴時才看到。這次閉路電視的證據居功至偉，錄下被告一舉一動，就是cogency的依據。如果沒有錄影到被告事後到上址及所帶物品，就算找到屍體，也不能證實是謀殺。你可記得陳方安生的哥哥John Fang(solicitor)那件案，屍體在樓宇內，死了幾年，已變骸骨，可疑之處極多，最後都不能作刑事檢控。秦嘉儀案的重點不在乎有沒有屍體，而是謀殺是否唯一推論，我就真的不會猜測其他死因，除非那是從控方的證據顯示出來，或者被告作供提出需要由陪審團去考慮。其實這件案相信會最終在終審法院作結，到時過去的上訴案例定必重溫一次。另外，我看不到你對Arthur Luk過早結案及應傳召更多證據講法的依據，Stuart-Moore也有提及有些是hearsay evidence不能提出來給陪審團考慮。此時唯有耐心期待上訴聆訊。
刪除標標, 有具娛樂性的文章跟你分享一下:
回覆刪除https://chinesehumanist.wordpress.com/2015/08/23/%e9%a6%99%e6%b8%af%e8%b5%b0%e9%9b%99%e9%a6%96%e9%95%b7%e5%88%b6/
劍文弟
劍文: 那篇文作者的"法律博士"應該只是Juris Doctor (JD)，並非真正的博士學位，在中大行畢業禮時也是參加頒授碩士學位的典禮的 (雖然有關學位的官方中文譯名的確叫"法律博士")。
刪除走後門修改基本法？現在的政務司長已分擔了特首的權力，在實權上，行政長官是政府首長，改變就違反基本法第60條。
回覆刪除你好，我對於牽涉陪審團的案件有一些疑問。
回覆刪除例如這件案件，暫委法官是按陪審團的裁決作出判決；有報導指暫委法官在判刑時指「若不是案發的淘大花園裝有完善保安系統，提供強烈的環境證供，被告很可能逍遙法外，令事主沉冤難雪。他指，雖然被告從來沒有披露殺人動機、殺人方法及如何處理屍體，但唯一可能是秦已被殺害，而受害人死前唯一見過的人就是兇手，那人就是被告。」看似法官也同意有關推論。
然而假設陪審團裁定被告無罪，那法官作出判決時便可能會說「因為XXX，故裁定被告無罪。」
我是指法官是會按陪審團的裁決而在判決時作出相關解釋，即使法官本身不同意有關觀點與裁決?
謝謝。
在陪審團的審訊案，法官對陪審團的判決毫無凌駕性。陪審團定被告罪與否都無需提供理據，法官的評論沒有法律作用，法官同不同意都要按陪審團的決定去判，法官的解釋只是個人看法。假設陪審團判被告無罪，法官也不會講你好彩，是我就釘你那類話。
刪除有些書講過, 陪審團的制度, 是想案件著重於陪審員(普通市民)的人性角度, 而非專業人士(法官)按法律來裁定.
刪除title: No body, no motive but life sentence for murder
回覆刪除// South China Morning Post
// August 20, 2015
// Julie Chu
// A1, A3
A securities company director was given a life sentence yesterday for killing his nightclub hostess mistress, whose body was never found.
A seven-man High Court jury took less than three hours to convict Ivan Chan Man-sum, 42, on one count of murder over the death of Chun Ka-yee, 33, at her flat in Amoy Gardens, Kowloon Bay, on October 6, 2011.
Chan was calm as he heard the jury's verdict.
Deputy Judge Mr Justice Michael Stuart-Moore said: "If it were not for the excellent system of security of Amoy Gardens, the defendant would probably and quite literally have got away with murder."
He continued: "This is a particularly difficult case - no body, no weapon, no obvious motive and no admission made by the defendant.
"How you disposed of the body, and indeed how you killed her, were never divlged. But that you were the killer was clearly revealed as the jury has found."
Police officers involved in the investigation were commended for their efforts.
"Had it not been [for] the work of these people, the defendant would be walking a free man today," the judge said.
Outside court, Chief Inspector Chung Chi-ming, the officer in charge of the case, said it was the first murder trial in the city that had relied heavily on circumstantial evidence.
Investigators had interviewed almost everyone who had ever come across the victim, Chung said, expressing relief that justice had finally been upheld.
Over the course of three weeks the court heard how an extramarital affair developed between the wealthy Chan and Sichuan migrant Chun in 2008 after an initial encounter at a nightclub in 2006.
Chan bought Chun the Amoy Gardens flat in 2009, but his wife found out about their relationship in May 2011, prompting him to end the affair.
He admitted, however, that they continued to see each other. Chun last entered the Amoy Gardens block on October 5, 2011, but she was never seen leaving it alive again.
When Chun's friends failed to contact her, they called Chan that November. Chan claimed they were no longer an item and that he had last seen Chun on October 2. But police officers scouring CCTV footage spotted that Chan had entered the block twice on the evening of October 6.
He returned the next morning and left with a bulky nylon bag. Parking records showed he then drove to Tseung Kwan O and, two days later, visited a car cleaning service. Between October 10 and 11, Chan instructed a decoration worker to dump everything in the flat, which was left empty until police investigators arrived in March 2012.
Officers retrieved a telephone conversation, made on the afternoon of October 6, from Chan's securities firm. The recording indicated Chan and his mistress were on good terms and agreed to meet at her flat that night.
In defence, Chan said he paid the visit to ask her to move out and that Chun agreed to leave in two days. He testified that he used the nylon bag to remove his clothes, bottles of red wine and documents. He said he took the bag home and asked his domestic helper - who no longer worked for him - to sort out the contents.
His swift efforts to empty the flat were meant to prove to his wife the affair was over, he said - but the CCTV footage did not show her entering the building to verify his claim.