2015年9月16日星期三

抗辯到底

初犯店鋪盜竊怎麽辦一文的留言,驅使我寫這一篇。本篇旨在討論,絲毫没有批評别人之意,真的要批評,我會率直地講。

有人覺得如果律政司不肯對初犯被告撤銷控罪,讓其簽保守行為,便應積極抗辯,反正没有損失。另外,有人(律師)認為收了客錢,怎能叫他認罪。不能叫他自己考慮認罪嗎?總有些被告會對大狀承認干犯了罪行,真的無論如何都為他死撐?香港大律師的行為指引這樣寫喎:

149. A barrister to whom a confession of guilt has been made by his client must observe the following rules:

(a) If the confession is made before the proceedings have started he may continue to act only if the plea is to be one of guilty, or if the plea is to be one of not guilty he acts in accordance with the rules set out in Annex 13 which impose very strict limitations on the conduct of the defence. In the latter case he must explain his position to the client and his instructing solicitor.

If the barrister is instructed to act otherwise than in conformity with this rule he should return his brief.

(b) If the confession is made during the proceedings or in such circumstances that he cannot withdraw without compromising the position of his client, he should continue to act and to do all he honourably can for him; but this situation similarly imposes very strict limitations on the conduct of the defence; and the barrister may not set up an affirmative case inconsistent with the confession by, for example, asserting or suggesting that some other person committed the offence charged or calling evidence in support of an alibi.

150. (a) It is the duty of defending Counsel to advise his client generally about his plea to the charge. It should be made clear that whether he pleads "not guilty" or "guilty", the client has the responsibility for and complete freedom of choice in his plea. For the purposes of giving proper advice, Counsel is entitled to refer to all aspects of the case and where appropriate he may advise his client in strong terms that he is unlikely to escape conviction and that a plea of guilty is generally regarded by the Court as a mitigating factor.

(b) Where a defendant tells his Counsel that he did not commit the offence with which he is charged but nonetheless insists on pleading guilty to it for reasons of his own, Counsel must continue to represent him, but only after he has advised what the consequences will be and that what can be submitted by Counsel in mitigation will have to be on the basis that the client is guilty.


認罪可能是對客仔最有利的做法。

香港有一股風氣,以為犯了事請律師的目的是「打甩」罪名,否則干嗎要請?毫無疑問,被告認罪會留下案底,抗辯有可能成功,成功脫罪便不留下污點。不論視作承擔,抑或罪有應得,犯法會有可能帶來定罪,是顯而易見的後果。偷了些價值不高的東西而留下終身烙印,的確不值得。在港鐵摸人一下屁股而坐監14日,更加不值得。到了被拘捕檢控時才覺得不值得,豈非咎由自取,可以埋怨誰?

13 則留言:

  1. BLOG主真夠搞笑的,當我是這行的初哥

    刑事案客戶, 我會天真嬌到問她有無做過此等白癡死蠢問題乎?

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    1. I infer then you turn every case from a PG into a PNG and an eventual acquittal. A confession will become a denial after your skillful and professional tampering. Good on you.

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    2. Such question may sound naive in the business sense. But if the prosecution evidence is strong and one fails to explore this question with client, the legal representative risks himself of committing professional negligence if the client is later convicted and sentenced.

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    3. 服務行業就該如此, 提供最高質最符合客戶利益的意見與客戶。為他們的要求全力以赴去打拼。 客戶欲脫罪沒案底來找我, 要認罪要聽耶穌道德撚說教捐錢找博主。

      非從事法律行業的就更不必出來就本議題發言了, 控方案情強勁又如何, 那我就該製造及保住一切可上訴的理據,控方證人盤問得更細緻,不可放過每個細節, 責疑證據的可靠性。

      要是客戶定要認罪, 那我就轉介案件與下屬處理。 對客戶要誠實, 要為他們的利益着想,求情的工作不必我來做, 這樣收費也能便宜點。

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    4. 失覺,原來是位資深兼收費昂貴的律師,多謝教誨。也許我要提醒閣下,留言不要語言失禁,粗口我以前講得多也聽得多,品味隨年紀增長,語言也帶點修養了,粗口可否在留言之前淨化,謝謝。

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    5. Oh i only switched to criminal defense in recent years. In fact had to take a pay cut but the sheer exhilaration of rimming an new arsehole on my learned friend's hind does more to compensate the financial deficiency. Did I just say rimming? oops I am sorry I meant to say winning. My apology to this honourable Court. I am so sorry your Worship.

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    6. 原來是一個求情吾識做,審訊大狀做,坐着收錢,但又收得好貴的律師。

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    7. 錯了,我連高院裁判法院上訴都做的 但看你倒是對我對刑事案件的處理手法很不順眼,想必我定是作對了。

      收得貴怕什麽的, 堂費贏了有政府墊底啊。

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    8. 收得貴怕什麽的, 當然不怕, 堂費輸了還有客戶墊底。

      Good on ya, you unethical fatcat lawyer.

      Lawyers have to make a living, and can only do so by inducing people to believe that a straight line is crooked. - Alfred Nobel

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    9. wouldnt you want my service when the Shxt hits the fan? wouldnt anyone?

      me fatcat? oh no. as long as you can prove to me you took part in the UR not only you get my service pro bono I even buy you meal everytime we conference.

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    10. Marco, I don't think you are half as good as you claimed yourself to be.

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  2. bill siu, may I ask you a question about criminal procedure?
    What if the prosecution witness fails to appear in court or is nowhere to be found at the last minute?
    What if a witness is unwilling to testify in court, how would you persuade him to do otherwise?
    a million thx.

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    1. I would apply for adjournment if summons was sent and received by the witness and there was no show.

      I would ask the court to remind the witness refusing to testify may end up in jail.

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