寫在鏢場非禮案覆核上訴之前

鏢場非禮判社服 事主：是二次傷害 律政司：決定覆核刑期

【明報專訊】兩年半前一名女子在飛鏢場與東主飲酒後不省人事，其後法醫發現其體內及場內酒杯殘留鎮靜劑，而事主內褲及陰道外亦有東主的精液，被告承認非禮，周二（18日）於高等法院獲輕判240小時社會服務令，判刑引來社會廣泛爭議。案中受害人昨接受訪問，指判決是對她的「二次傷害」，當刻想自殺了斷﹕「我已不知這世界還有沒有公平、有沒有真理？」

與被告飲酒後昏睡內褲陰道外留精液

律政司昨表示，原則上已決定就被告刑期向上訴法庭申請覆核 ，周二已去信法庭索取聆訊的紀錄謄本供考慮。

受害人X昨與男友周先生一同接受訪問，約兩小時內她多次情緒失控﹑痛哭落淚。X表示，判決令她重回案發初期的崩潰及無助，「香港如此不安全，我是否要帶很多武器在身才外出？是否應不吃不喝？」她認為被告毫無悔意，質疑其案發後做義工所作的求情。Ｘ不滿法官在女性面對恐怖經歷下，仍稱讚被告，「我只可用『可恥』形容」。

案情指出，22歲的X前年3月到飛鏢場消遣，34歲被告李潤堅着X飲酒放鬆「可玩得更好」，X酒後感暈眩，在沙發昏睡，其間感有人從後抱她，雙手放其腰間及胸部，更低聲說「醒喇喂，唔係我忍唔住喇」。X掙扎並以粗口斥責對方別碰她，其後不省人事。男友多次致電不果後上門，發現X的短褲褲鏈已爛掉，遂報警。原被控強姦的被告最終改控非禮，控方未能證明被告酒內落藥。

官讚被告品格 「不欲毁其前途」

暫委法官馬永新判刑時形容被告品格良好，稱讚他有企業家頭腦，積極參與保護動物和關注長者工作，更在飛鏢運動上有成就，法官不欲摧毁其事業。

X表示，當時為興趣玩飛鏢，與男友同到案發鏢場玩耍約1個月，與被告雖有WhatsApp來往，但只限請教，「只是老闆與顧客關係」。周先生補充，被告曾多番藉詞要其女友「輸咗要飲酒」，遭X拒絕。

需穿3打底褲出街 聞判欲尋死

周先生指出，當日曾成功聯絡女友一次，當時X語無倫次、咬字極不清晰，入院後陷入「半昏迷」達16小時才蘇醒，幾近虛脫的身體要兩日多才復元，「好像發了一場很長、很恐怖的噩夢」。

事發後心理評估顯示Ｘ有抑鬱及創傷後遺症，事件令她對藥物存陰影，現不時情緒失控，發噩夢，要穿兩三條打底褲才敢外出，不敢信人，「沒有任何言詞足以形容走過的歷程」。Ｘ表示，幸得男友支持才打消尋死念頭：「做錯事的不是我，要力爭到底。」周先生亦曾因調查的警員延誤兩日才蒐證，向投訴警察課投訴後獲回覆指相關警員「疏忽職守」成立。

警遲蒐證 投訴課認疏忽職守

立法會議員鄺俊宇昨表示，收到受害人Ｘ的求助，Ｘ「不想其他女孩再遇上我的遭遇」，鄺表示會協助Ｘ提供可行援助，「如此證據下的判決，難令受害人感到舒一口氣」。

(21/10/2016 明報)

這篇暫時不談新貴議員宣誓風波了, 反正餘波未了, 後續有期, 上一兩篇的留言各自表述, 可開豬場千萬間, 頂死五豐行, 使豬價大跌, 食豬者喜。

我在與智障人士非法性交案一文的後半部談到飛鏢非禮案, 批評法官判刑失職, 律政司理應跟進。律政司決定申請覆核刑罰了。那麼, 應該怎判? 非禮罪最高可判監禁10年, 是在1991年修訂把舊的最高監禁刑期調高一倍。上訴庭只就在港鐵發生的非禮案作出指引, 因其猖獗, 應判被告即時啷噹入獄(clang of the prison gates), 初犯者判監14至28天, 第二次犯應判監2至6個月(Attorney General and Wai Yan Shun CAAR 17/1990)。除此之外, 非禮案的判刑就只有刑期覆核的案例, 而沒有另一宗為非禮判刑定下指引的案例, 畢竟非禮的方式很多, 一般常見是摸胸、屁股及下體, 但犯案的嚴重程度不一, 舐腳也可以構成非禮(香港特別行政區 訴 尹浩洋 HCMA673/2014), 要訂定有意義的指引(tariff)殊不容易。

歸根究底, 本案應該怎樣判才能還受害人一個公道呢? 上訴庭未有裁決之前, 我先動腦筋。找相同案情來比較殊不容易, 這件案屬迷姦性質, 但以非禮定罪, 雖然沒有直接證據顯示被告在酒中落藥, 但化驗顯示酒杯中及受害人體內殘存精神科藥物, 除非是受害人自己服用的, 否則唯一的推論便是被告落藥, 這案情應該在呈堂的案情裏反映出來, 也應該是判刑必然的考慮因素。另外, 受害人因這件案所受創傷的程度的評估(impact assessment), 也是量刑時的考慮。要列出加重刑罰的因素(aggravating factors), 這件案多的是。我寫這一篇之前所參考的案例只集中上訴庭的判刑覆核案, 全部都以CAAR(Criminal Appeal Application for Review)作編號的案件, 下列幾件案, 案情都比本案輕得多, 大部份是裁判法院的判刑覆核。以本案而言, 就算不以強姦罪作為主要控罪, 單獨是非禮罪一項, 都應該轉介到區域法院審理, 律政司對判刑的預期應該是超過裁判法院兩年監禁的上限。


ATTORNEY GENERAL AND NG SAI MAN CAAR 11/1993

這是Wai Yan Shun案同類性質的覆核。被告Ng Sai Man在擠逼的九廣鐵路車廂內, 用手指戳受害人的下體幾次, 被控非禮, 他否認控罪, 審訊後被定罪。裁判官先索取感化報告, 最後判罰款$3000。本案在上訴庭的討論相當簡單, Wai Yan Shun案裁決後, 非禮罪的最高刑罰由5年監禁增至10年, 這刑罰並不影響Ng Sai Man案的判刑, 畢竟要判處10年的非禮, 要是近乎強姦的案情, 最後上訴獲批:

17. We allow this application for review. In allowing it, we set aside the fine - a mere fine being wrong in principle and manifestly inadequate in the circumstances - and impose instead a sentence of imprisonment for 28 days.


THE ATTORNEY GENERAL AND PETER MACLENNAN CAAR 8/1996

這件案可謂轟動一時。被告Maclennan是新界北總區刑事情報科(CIU)警司, 被控在警官餐廳(officer's mess)裏, 拉清潔女工入女廁非禮, 上下其手, 他想脫去受害人的褲但不成功, 他自己脫褲, 用下體摩擦受害人。被告否認控罪, 最後定罪但只判罰款$5000及同額堂費。上訴庭批准律政司申請, 改判即時監禁6個月:

15. The appellant does not have the advantage of a plea of guilty which would have saved the time, effort and expenditure of two trials and Madam Tam having to undergo the ordeal of giving her evidence twice. Nor for the more than two years since the offence, has he exhibited any remorse. It is said on his behalf that he may lose his employment and his pension. He may well do so. He has been interdicted with partial or full loss of pay since 27th October, 1994, and he has run up legal costs in the order of $700,000. He brought these matters upon himself.

16. We take into account his good character, his long service in the police force which appears to have been ably carried out and the further personal consequences which may still follow. We bear in mind also that he has been at liberty since the offence and that this is an application for a review of sentence. We are therefore prepared to take as our starting point a sentence of imprisonment of nine months as being the least that should have been imposed upon him after trial but in the circumstances we reduce the term to one of six months. The application for review therefore succeeds to the extent that the sentence imposed upon the appellant will be six months' imprisonment instead of the fine of $5,000. The order that he should pay costs in the sum of $5,000 is to remain.


THE ATTORNEY GENERAL AND LEE KUI-MAN CAAR3/1997

這被告在旺角港鐵站近出口樓梯處伸手入兩名女學生裙底摸屁股, 其中一名女學生追上前對質, 竟然被他打到血流披面, 還被摸胸扯內褲, 最後被告被途人制服。傷者留院一週, 可見傷勢不輕。這種很離譜的非禮屬少見, 更離譜的是區域法院法官竟然只判監3個月, 我都覺得無天理。上訴庭在覆核刑期時提到判刑案例的原則, 引用了赫健士以前的講法:

......As Huggins J. said in R. v. Lui Wai Chun and Others [1946-1972] HKC 111 at 113:

"Courts must bear in mind that society has, in taken from the victims of crime and their relatives the satisfaction of personal vengeance transferred to the courts the duty of ensuring that punishments are not so lenient, that the victims or relatives will be tempted to take the law into their own hands. ................ The sentence must fit not only the offender but also the offence.

最後當然加刑:

9. The sentences imposed were wholly inadequate. We turn to assess the sentences which, in the view of this court, should have been imposed. When assessing sentence for the wounding offence, we must give, as did the trial judge, credit for a preparedness to plead guilty from the outset. The trial judge gave no starting point but it would appear that he must have started at about 4 1/2 months. We are satisfied that the proper starting point would have been 18 months and that this can properly, because of preparedness to plead, be reduced to 12 months. As regards the indecent assaults, we are satisfied that three months would have been an appropriate sentence on each of those and that all of the sentences should have been made consecutive. This would make an overall period of imprisonment of 18 months.

引用這例子並非顯示非禮的量刑, 而是指出法官可以判刑判得很荒謬。

SECRETARY FOR JUSTICE and KONG TUNG SHEUNG (江東常) CAAR 6/2004

受害人是14歲9個月大的女學生, 晚上從上水火車站乘的士回天坪邨的家, 途中被告叫女童坐上前座位, 多次摸胸吻臉非禮。被告被控3項非禮罪, 他承認控罪, 被判監兩個月同期執行。上訴庭批准律政司的覆核申請, 

25. Cases of this kind are never easy to decide. It is apparent to us that the magistrate had given close consideration to all the facts which were important to the issues involved, both for and against the respondent. Having said this, it is our view that the true seriousness of this case was, with respect, overlooked by the magistrate. Women, travelling at night by taxi, and young girls in particular, are entitled to expect that they can do so in complete safety without the unwanted attentions of the taxi driver being foisted upon them. Of course it is true that this was not the worst kind of indecent assault. Had it been more serious, no doubt the prosecution would have selected a different venue for trial where a higher sentence could be imposed.

26. As it is, however, we are satisfied that the sentences, individually and collectively, were manifestly inadequate and that these offences called for a total sentence in the region of 18 months after trial. Having regard to the respondent's timely pleas, this would be reduced to 12 months. Although there is strictly no longer a requirement to make a further reduction on a review of sentence, the fact is that the overall sentence was originally only 2 months and the respondent has long since been released. In such circumstances, we consider that 6 months' imprisonment should be imposed on each charge to be served concurrently.

坐完監之後的覆核加刑, 又是有利於被告的因素, 使他獲更多寬免。

SECRETARY FOR JUSTICE and LEUNG YUET HUNG CAAR 1/2014

這是一宗發生在20多年前的意圖強姦案, 當時受害人只有12歲, 被告扮煤氣抄錶員賺門入屋, 案情借上訴判辭來講:

9. He went into the kitchen on the pretext of going to read the meter. He came out and asked for the gas bills. He then told her to go into the kitchen herself to look at the meter. As she entered the kitchen, he grabbed her neck and pointed something sharp against her waist from behind. He pushed her to the floor, told her to keep quiet and said that he only wanted money. Then he pulled her T-shirt over her head. She did not see what was happening. He removed her brassiere, shorts and underpants. He fondled her breasts. He removed his trousers. He stroked her breasts and kissed them and then told her to spread her legs wider. He asked her for her name and where she went to school. He then asked whether she wanted to be taken away by him and she said “No”.

10. His penis was erect and he moved his penis around and about her private parts. He asked whether she had done this before, by which she understood him to allude to sexual intercourse. She said that she had not. She shouted in protest several times but he hit her head with his hand in order to keep her quiet. This caused her pain. She tried to resist him by pushing him away but in vain.

11. Her home telephone rang and she told him that her father would be coming home at noon, upon hearing which, he became nervous. Yet he still lay on top of her and continued to move his erect penis around her vagina for several minutes before getting up and leaving the flat.

12. Penetration had not taken place but he had ejaculated in the region of her vagina.

2013年審訊後被告被判監4年。這件案沒有插入(penetration)的元素, 判辭第12段可見做法跟飛鏢案相似, 但aggravating因素不同。但上訴庭列出幾點, 其中有3點適用於本案:

.....
(2) he failed to take into account a number of serious aggravating features;
......
(4) he paid too little regard to the effect of the offence on the victim;

(5) he paid too little regard to the need to deter others from such offences and therefore to the public interest;
.....

最終刑期改判成7年半。我不能把這件案硬套入飛鏢案, 因為加重刑罰的因素很不一樣。飛鏢案始終定了非禮罪而不是意圖強姦, 但案情相類的地方也不少。以上所講的除了最後這宗覆核, 其他都是裁判法院的判刑覆核, 全部都收監, 全部的案情都比飛鏢案輕, 尚且如此判罰, 飛鏢案這240小時的社會服務令確實犯了判刑原則上的錯誤。除了上訴覆核的案例, 很值得參考的是以下這上訴庭頒佈的案例, 我相信律政司在飛鏢案上訴陳辭一定會引用。

HKSAR and Wu Chi Keung 胡志強 CACC 76/2004

這是一宗在karaoke用迷姦水於一個14歲女孩的案件, 用迷姦水的證據確鑿, 比飛鏢案的證據強而有力。被告被控以「施用藥物以獲得或便利作非法的性行為」罪, 我在與智障人士非法性交案一文討論飛鏢案時講錯了, 這是「非法性行為」(unlawful sexual act)而並非「非法性交」(unlawful sexual intercourse)」, 所以無需插入的元素。迷姦水案的性質跟飛鏢案頗有共通之處, 所以在非鏢案上訴正審時, 我相信律政司會採用這件案的原則來游說法庭加刑, 迷姦水案被告被判監4年, 上訴庭認為不足以反映嚴重性, 應判處6年監禁。迷姦水案的判辭最後兩段的論述:

33. In our judgment, the sentence imposed by the judge was manifestly inadequate. The maximum term permitted by statute for the offence under section 121 of the Crimes Ordinance is one of 14 years’ imprisonment; more than the maximum offence of 10 years for indecent assault. That that is so should come as no surprise, the legislature obviously and understandably taking a particularly serious view of the premeditated and surreptitious act of undermining the will of an intended victim. The act thus proscribed has to it added pernicious elements, namely, the supply of a drug to someone who does not wish to receive it, let alone ingest it; the possibility of danger to the health or even life of the victim; and the additional possibility of triggering a taste for the drug. Each of those considerations apply in this case but this case bears the further particular aggravating features, first, that the person to whom the drug was administered was very young, administered by a mature adult; secondly, that the dose administered was great, thereby putting the girl at serious risk in the immediate term, and at long-term risk of psychological damage; and thirdly that the nature of the indecent act was particularly vile, going, as it did, significantly further than touching of her private parts. This offence was a bad one of its kind, and in our judgment warranted a term of at least six years’ imprisonment.

34. We wish, for future reference, to make a further point. It is a particularly unattractive feature of the trial and of this appeal that the applicant has sought to use the debilitating effect caused by his own administration of a large quantity of the drug to the girl to undermine the reliability of her account of the sexual act performed upon her. Where a court is satisfied beyond reasonable doubt that a defendant is guilty of the section 121 offence, but the prosecution fails to prove that a sexual act in fact took place and that failure is attributable to the state of mind induced by the drug administration, the sentence ought not to be less than if an unlawful sexual act were proved. Were it otherwise, a person guilty of the section 121 offence would benefit from his own crime.

故此, 這飛鏢案的非禮, 是相當嚴重的, 被告以前有不同類案底, 不論這社會服務令報告對他的評價如何有利, 這種性質的非禮應以3年監禁為起點, 加上使用藥物的因素, 再上調1年, 給予認罪的折扣及最初的判刑不用坐監的考慮, 覆核刑期應為即時入獄兩年半。

上一兩篇馬鹿大罵「港豬」, as he puts it with self conceited arrogance, 我沒有積極干預, 近期路過的讀者有所不知, 我以前跟馬老大多次交鋒, 甚至有兩篇專為他寫的, 以前罵過了就不再長氣重覆, 用「支那」、「舐共」、「港豬」、「奴隸」之類的詞語來攻撃人, 我對這種帽子已失了反駁的興趣, 我不是隔岸觀火, 而是省氣暖胃。我真的要罵人, 也可以很貧嘴惡舌的, 非不能也, 不為也。不信的話, 隨連結登入下面這三篇去看。罵人也要像訟辯中的盤問一樣, 挖個陷阱讓對手跌入去, 豬來豬往不是我的風格。

給Maro寫一篇

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