合謀犯罪

英改「合謀犯罪」原則 終院首審上訴或訂指引

【明報專訊】英國最高法院今年2月在「R. v. Jogee案」中裁定，法院30多年來錯誤詮釋刑事法中對「合謀犯罪（joint enterprise）」的法律原則，並釐清正確詮釋方法，以取代30多年前由香港法院上訴至英國樞密院的「陳榮兆案」中所訂下的法律原則。本港終審法院昨審理首宗企圖以上述案例推翻謀殺定罪的上訴，終院聽罷陳辭後押後裁決，或會就上述英國案例是否適用於本港沿用的「合謀犯罪」法律原則訂下指引。

別號「郭靖」（圖）的18歲黑幫青年，2011年遭同門斬殺兼用車輾過，傷重死亡，涉案其中一名青年陳錦成事後被裁定謀殺罪成，判囚終身。陳錦成的大律師援引英國最高法院今年初的新案例，提出上訴至終審法院。

英新案例考慮共犯意圖

根據「陳榮兆案」，如果兩人合謀犯罪，若其中一人A犯罪期間干犯另一罪，例如殺人，另一人B不論是否有意圖，在法律上已被視為同樣干犯該殺人罪，惟「R. v. Jogee 案」則指須考慮B的意圖，以考慮向B控以謀殺罪、或罪名相對較輕的誤殺罪。

控方原審時的證供顯示，上訴人協議與幫會的其他成員一同尋找和斬敵對幫會的成員。上訴人其後與一眾幫會成員，分乘兩輛車（X車和Y車）到不同地方尋找目標。當時上訴人身處X車，後來Y車的成員找到死者，並斬死了他，X車其後到現場，並協助Y車上的人逃離。控辯雙方均同意，死者被殺時陳錦成並不在場，陳亦沒有參與斬殺死者的過程。

斬死人不在場 上訴人助同門逃走

陳錦成的御用大律師Felicity Gerry指出，法院應考慮上訴人案發時是否知悉「關鍵資訊」，否則便會令案中的「邊緣人物」承受同等罪責。Gerry又表示，法院不應單憑上訴人「預視（foresight）」有嚴重暴力發生，便要他對一些沒參與及沒意圖的事負責，而英國的新案例便是要給予彈性，以應付不同的情况。

律政司指預視主犯犯罪仍參與屬「合謀」

代表律政司一方的資深大律師麥高義反駁，陪審團將難以理解英國案例中就「B的意圖」的詮釋，認為合理的詮釋是即使B沒親身參與犯案，但若B預視（foresight）A會犯下嚴重罪行、而B仍願意繼續參與行動，便構成「合謀犯案」。 麥高義又表示，若要修改法例，應以立法方式進行。

【案件編號：FACV5/16】

(29/11/2016 明報)

英國最高法院今年初攺寫了「合謀犯罪」的法律概念, 我已預期會影響香港法院在這方面的看法。首先, 這「合謀犯罪」的新思維, 不限於謀殺案的合謀, 也適用於其他合謀案。如果終審法院跟從英國最高法院的判決, 當然要發出新指引, 用Jogee案的新判決來作為上訴理據, 以推翻合謀案過往的定罪會成為一種上訴潮嗎?

我覺得可能性不大, 理由有兩個。

第一, 在Jogee案判辭第100段, 訂出了對未在新判決之前過往定罪的處理原則:

100.          The effect of putting the law right is not to render invalid all convictions which were arrived at over many years by faithfully applying the law as laid down in Chan Wing-Siu and in Powell and English. The error identified, of equating foresight with intent to assist rather than treating the first as evidence of the second, is important as a matter of legal principle, but it does not follow that it will have been important on the facts to the outcome of the trial or to the safety of the conviction. Moreover, where a conviction has been arrived at by faithfully applying the law as it stood at the time, it can be set aside only by seeking exceptional leave to appeal to the Court of Appeal out of time. That court has power to grant such leave, and may do so if substantial injustice be demonstrated, but it will not do so simply because the law applied has now been declared to have been mistaken. This principle has been consistently applied for many years. Nor is refusal of leave limited to cases where the defendant could, if the true position in law had been appreciated, have been charged with a different offence. An example is Ramsden [1972] Crim LR 547, where a defendant who had been convicted of dangerous driving, before Gosney (1971) 55 Cr App R 502 had held that fault was a necessary ingredient of the offence, was refused leave to appeal out of time after that latter decision had been published. The court observed that alarming consequences would flow from permitting the general re-opening of old cases on the ground that a decision of a court of authority had removed a widely held misconception as to the prior state of the law on which the conviction which it was sought to appeal had been based. No doubt otherwise everyone convicted of dangerous driving over a period of several years could have advanced the same application. Likewise in Mitchell (1977) 65 Cr App R 185, 189, Geoffrey Lane LJ re-stated the principle thus:

“It should be clearly understood, and this court wants to make it even more abundantly clear, that the fact that there has been an apparent change in the law or, to put it more precisely, that previous misconceptions about the meaning of a statute have been put right, does not afford a proper ground for allowing an extension of time in which to appeal against conviction.”

For more recent statements of the same rule see Hawkins [1997] 1 Cr App R 234 (Lord Bingham CJ) and Cottrell and Fletcher [2007] EWCA Crim 2016; [2007] 1 WLR 3262 (Sir Igor Judge P) together with the cases reviewed in R v R [2006] EWCA Crim 1974; [2007] 1 Cr App R 150. As Cottrell and Fletcher decides, the same principles must govern the decision of the Criminal Cases Review Commission if it is asked to consider referring a conviction to the Court of Appeal: see in particular para 58.

糾正過往法律的錯誤不一定使往日的定罪無效, 除非能夠展示具嚴重不公的情況, 否則逾時上訴許可不應獲批。

第二, 在Jogee案裁決之後, 英國上訴庭在10月31日駁回13宗依賴Jogee案例的逾時上訴許可申請,  因為逾時上訴門檻比在時限之內上訴為高。見R v Johnson and others [2016] EWCA Crim 1613 第20及21段:

1. Thus, it will be for the applicant for exceptional leave to appeal out of time to demonstrate that a substantial injustice would be done. That is a high threshold. For example in R v Mitchell the court said at page 357:




"If we were to refuse him the extension of time in which to appeal against conviction, we should be keeping him in prison, so to speak, when we as a court were convinced that he had not committed an offence. That again is not an attractive proposition, and it is one from which this court resiles. This seems to us therefore to be the very rare case where the court should exercise its undoubted discretion to allow the extension of time and grant leave to appeal against conviction. We wish to make it clear however that this is not to be taken as an invitation to all and sundry who have been convicted of this type of offence to present applications to this court for leave to appeal out of time, because they will not be greeted with very much enthusiasm."



2. In determining whether that high threshold has been met, the court will primarily and ordinarily have regard to the strength of the case advanced that the change in the law would, in fact, have made a difference. If crime A is a crime of violence which the jury concluded must have involved the use of a weapon so that the inference of participation with an intention to cause really serious harm is strong, that is likely to be very difficult. At the other end of the spectrum, if crime A is a different crime, not involving intended violence or use of force, it may well be easier to demonstrate substantial injustice. The court will also have regard to other matters including whether the applicant was guilty of other, though less serious, criminal conduct. It is not, however, in our view, material to consider the length of time that has elapsed. If there was a substantial injustice, it is irrelevant whether that injustice occurred a short time or a long time ago. It is and remains an injustice.

同理, 可以推論在香港這種上訴潮不會出現。

至於本案的上訴人陳錦成的命運又如何呢? 他向上訴庭申請上訴至終審法院的證明, 指本案涉及具有重大而廣泛的重要性的法律論點, 上訴庭在2015年11月6日批出證明, 是在Jogee案判決之前。終院在昨日批出上訴許可。以案情而言, 陳錦成上訴得直的機會頗大, 他並非逾時上訴, 無需面對逾時上訴較高的門檻。