公眾利益

在上一篇討論到應否檢控梁國雄普通襲擊因為他掟午餐肉擊中馬逢國, 產生了「公眾利益」(public interest)這概念的分歧, 1哥(以1仔署名)認為公眾利益屬尚方寶劍, 不應輕易出鞘, 言下之意, 這普通襲擊案只需考慮案情本身是否屬於嚴重的, 而無需講公眾利益。1哥的留言我一向尊重, 他這次的看法使我有點茫茫然, 因為我一向對公眾利益的概念是看得很平凡簡單的, 不會視之為尚方寶劍級別的東西, 是平凡得經常會考慮的因素, 尤其是遇上plea bargaining的時候。律政司的《檢控守則》(以前叫檢控政策)一直都有公眾利益這用詞, 刑事檢控在考慮有足夠證據之後, 繼而會考慮是否合符公眾利益而提出檢控。對於何謂公眾利益, 《檢控守則》的第5.9點列出a至n項考慮理據:

1. the nature and circumstances of the offence, including any aggravating or extenuating circumstances;
2. the seriousness of the offence: more serious offences, including those where a victim has suffered significant harm or loss, or where there have been multiple victims, are more likely to be prosecuted in the public interest;
3. the effect of a prosecution on Hong Kong law enforcement priorities;
4. any delay in proceeding with a prosecution and its causes;
5. whether or not the offence is trivial, technical in nature, obsolete or obscure;
6. the level of the suspect’s culpability;
7. the involvement of other suspects in the commission of the offence;
8. any cooperation from the suspect with law enforcement or demonstrated remorse: the public interest may be served by not prosecuting a suspect who has made admissions, demonstrated remorse, compensated a victim and/or cooperated with authorities in the prosecution of others;
9. any criminal history of the suspect;
10. the attitude, age, nature or physical or psychological condition of the suspect, a witness and/or a victim;
11. the likely final disposition of the case;
12. the prevalence of the offence and any deterrent effect of a prosecution;
13. special circumstances that would affect the fairness of any proceedings;
14. the availability and efficacy of alternatives to prosecution, such as a caution, warning or other acceptable form of diversion.

單是e)項, 已是基於公眾利益而不檢控長毛的理據, 所以公眾利益並不一定是重大、厲害、霸道的東西, 可以是因為涉嫌犯事者的年齡及心理狀態的考慮, 單一理據也足以作出不提出檢控的決定。英國的Code for Crown Prosecutors也同樣會在刑事案考慮證據充足之後繼而考慮提控是否合乎公眾利益, 而英國的守則就包括以下的考慮:

The Public Interest Stage

......

4.12 Prosecutors should consider each of the following questions:

1. How serious is the offence committed?

   The more serious the offence, the more likely it is that a prosecution is required.
   When deciding the level of seriousness of the offence committed, prosecutors should include amongst the factors for consideration the suspect's culpability and the harm to the victim by asking themselves the questions at b) and c).

2. What is the level of culpability of the suspect?

   Culpability is likely to be determined by the suspect's level of involvement; the extent to which the offending was premeditated and/or planned; whether they have previous criminal convictions and/or out-of-court disposals and any offending whilst on bail; or whilst subject to a court order; whether the offending was or is likely to be continued, repeated or escalated; and the suspect's age or maturity (see paragraph d) below for suspects under 18).
   Prosecutors should also have regard when considering culpability as to whether the suspect is, or was at the time of the offence, suffering from any significant mental or physical ill health as in some circumstances this may mean that it is less likely that a prosecution is required. However, prosecutors will also need to consider how serious the offence was, whether it is likely to be repeated and the need to safeguard the public or those providing care to such persons.

3. What are the circumstances of and the harm caused to the victim?

   The circumstances of the victim are highly relevant. The greater the vulnerability of the victim, the more likely it is that a prosecution is required. This includes where a position of trust or authority exists between the suspect and victim.
   A prosecution is also more likely if the offence has been committed against a victim who was at the time a person serving the public.
   Prosecutors must also have regard to whether the offence was motivated by any form of discrimination against the victim's ethnic or national origin, gender, disability, age, religion or belief, sexual orientation or gender identity; or the suspect demonstrated hostility towards the victim based on any of those characteristics. The presence of any such motivation or hostility will mean that it is more likely that prosecution is required.
   In deciding whether a prosecution is required in the public interest, prosecutors should take into account the views expressed by the victim about the impact that the offence has had. In appropriate cases, this may also include the views of the victim's family.
   Prosecutors also need to consider if a prosecution is likely to have an adverse effect on the victim's physical or mental health, always bearing in mind the seriousness of the offence. If there is evidence that prosecution is likely to have an adverse impact on the victim’s health it may make a prosecution less likely, taking into account the victim's views.
   However, the CPS does not act for victims or their families in the same way as solicitors act for their clients, and prosecutors must form an overall view of the public interest.

4. Was the suspect under the age of 18 at the time of the offence?

   The criminal justice system treats children and young people differently from adults and significant weight must be attached to the age of the suspect if they are a child or young person under 18. The best interests and welfare of the child or young person must be considered including whether a prosecution is likely to have an adverse impact on his or her future prospects that is disproportionate to the seriousness of the offending. Prosecutors must have regard to the principal aim of the youth justice system which is to prevent offending by children and young people. Prosecutors must also have regard to the obligations arising under the United Nations 1989 Convention on the Rights of the Child.
   As a starting point, the younger the suspect, the less likely it is that a prosecution is required.
   However, there may be circumstances which mean that notwithstanding the fact that the suspect is under 18, a prosecution is in the public interest. These include where the offence committed is serious, where the suspect's past record suggests that there are no suitable alternatives to prosecution, or where the absence of an admission means that out-of-court disposals which might have addressed the offending behaviour are not available.

5. What is the impact on the community?

   The greater the impact of the offending on the community, the more likely it is that a prosecution is required. In considering this question, prosecutors should have regard to how community is an inclusive term and is not restricted to communities defined by location.

6. Is prosecution a proportionate response?

   Prosecutors should also consider whether prosecution is proportionate to the likely outcome, and in so doing the following may be relevant to the case under consideration:
   • The cost to the CPS prosecution service and the wider criminal justice system, especially where it could be regarded as excessive when weighed against any likely penalty (Prosecutors should not decide the public interest on the basis of this factor alone. It is essential that regard is also given to the public interest factors identified when considering the other questions in paragraphs 4.12 a) to g), but cost is a relevant factor when making an overall assessment of the public interest).
   • Cases should be capable of being prosecuted in a way that is consistent with principles of effective case management. For example, in a case involving multiple suspects offenders, prosecution might be reserved for the key main participants in order to avoid excessively long and complex proceedings.

7. Do sources of information require protecting?

   In cases where public interest immunity does not apply, special care should be taken when proceeding with a prosecution where details may need to be made public that could harm sources of information, international relations or national security. It is essential that such cases are kept under continuing review.

毫無疑問, 公眾利益一詞會給人一個涉及重要決策及涉及廣泛重要性的印象, 我想指出一切視乎怎樣去介定這概念。昨晚有人遊行到旺角警署, 要求拘控朱經緯。這件案拖延得極不合理, 一早就應有定奪。我一貫主張是, 不檢控朱經緯, 可以從《檢控守則》找合理理由, 以前為朱經緯案寫過六篇, 不再重覆了。正是逃得了和尚逃不了廟, 真的要拖延到特首換屆乎?