七警案落幕

今天情人節, 不去打波, 偕老伴郊遊, 由山頂遊到海灘邊, 開車200公里, 愜意享受了大半天。也是今天, 有人心情沉重的過。曾蔭權案今天由陳官引導陪審團, 曾生心情忐忑, 生死未卜, 有待陪審團的裁決。這件案沒有直接證據, 全靠推論, 陪審團退庭商議時, 我相信一兩天內就有結果, 不會懸峙。

七警今天也面對結果, 新年在家過了, 元宵也過了, 最終也難逃在裏面過一段日子。我對這七人有點同情, 以前罵過他們, 現在不想再罵了。畢竟打人一鑊, 自己也落鑊, 付出沉重代價, 我還可以講甚麼。Dufton這判辭200幾頁, 共817段, 我沒有耐性細讀, 只是粗略地速讀了一次。

如果問我釘得合唔合理, 我覺得以證據而論(包括受爭議的電視及傳媒影片及圖片、ID及曾健超的可信性), 釘得合理。如果甩晒又合唔合理, 那就需要個放官, 加埋啲歪理, 加埋驚恐被上訴, 就可以全部脫罪。咁講仲有乜好評論。無就唔寫喇。

曾健超在自己身為襲警案的被告時, 抗辯的方向是爭辯自己是潑液者, 定罪之後打算上訴。他在七警案作供, 被盤問到他是不是潑液者時, 他突然承認了, 判案書第322段這樣描述;

322.  In cross-examination Mr Lok SC played to Tsang the police video shown to Sgt 47574 and asked Tsang whether he was the one who was pouring the liquid.  After the court gave a warning against self-incrimination[234] Tsang answered that he was the one pouring liquid.  Tsang agreed that he was charged in relation to his conduct that evening[235].

我以前曾經評論過, 曾健超這承認就等如放棄了他自己襲警罪的定罪上訴, 他還要上訴就只可就着判刑上訴了。他承認是在他受審的案中影片顯示的潑液者。他這做法叫兩害取其輕, 如果在盤問下他否認是潑液者, 他的可信性更加會被猛烈攻擊, 到時七警脫罪機會就更大。在這情況下, 他用了割喉式攬住一齊死的方式, 反而使法官可信納他的證供。當然, 七警律師一樣不會放過攻擊他的誠信, 尤其是他在襲警案否認控罪, 指證七警時就承認是潑液者。無論如何, 七警以後上訴時, 也會集中火力以曾健超的誠信來着墨。我覺得曾健超被拘捕後以至向警察投訴課投訴時, 都採納了律師的bad advice, 擴大了在盤問時受到的攻擊。這一點我以前寫過罵過, 我罵那些不熟悉刑事法的人, 胡亂教曾健超, 去警察投訴課投訴竟然這樣不答那樣不答, 係咁做乜去投訴啫? 我罵時還有人留言罵我。好喇, 判案書都間接批評這legal adviser, 睇你點撐。判案書有好幾處提到, 曾健超在大律師陪同下錄取口供, 有的出錯令法官對曾的可靠性置疑, 下面一個場景是一例:

352.  When describing the assault on the voir dire, Tsang was not asked how many people assaulted him.  What Tsang did say was that from the time he was picked up and carried by his arms and legs face down nobody left the group but having seen the video footage someone else joined the group.  The first reference by Tsang to seven people was when he gave evidence that after being assaulted he was taken to a car.  When asked how many males left the substation to go to the car Tsang replied seven.  

353.  In cross-examination[260]Tsang agreed that when the First Information of Complaints Against Police Report was completed, he was accompanied by Ms Tanya Chan, a barrister and member of the Civic Party; in a formal complaint to CAPO (exhibit P38), made later the same day, he said he was assaulted by several persons; in his first witness statement made four days later he said he was assaulted by a group of males and did not know how many kicked and punched him[261]; and later when applying for a Judicial Review he said he was attacked by a group of six. 

354.  Tsang explained that he told DSPC 50117 that he was assaulted by six or seven persons but DSPC 50117 only wrote six persons in the First Information of Complaint Against Police Report and drew six things below a figure in a diagram.  Tsang was not sure whether he corrected this but explained that when he pointed anything out, for example his injuries, the officer would not amend the complaint.  When put by Mr Cheng SC that he never told anyone he was assaulted by seven persons until the day before he gave evidence, Tsang disagreed and said that he mentioned this before going to the hospital. 

355.  Considering Tsang was accompanied by Ms Tanya Chan, a barrister and member of the Civic Party, I have my reservations DSPC 50117 did not write down what Tsang said, in particular if Tsang pointed out the error.  Notwithstanding these reservations, the fact that the initial complaint records Tsang was assaulted by six persons and not six or seven as he says and later he said he was assaulted by a group of persons does not cause me to doubt his evidence he was assaulted, which assault was captured on the video footage.  For the reasons already given I am satisfied that the video footage shows Tsang being assaulted.  Considering Tsang was carried face down and the manner in which he was assaulted, it is not at all surprising he was unable to say exactly how many people assaulted him. (Mr Cheng SC就是清洪)

再看這兩段:

382.     After Mr Cheng SC referred Tsang to his affirmation[285], and paragraphs 26 & 27 of the affirmation of Ms Tanya Chan[286], filed in the judicial review proceedings, Tsang agreed that during the giving of his first witness statement[287] he refused on three occasions to answer questions as to whether his recollection was based on his own memory or based on the video footage. 

383.  Tsang explained in refusing to answer the questions he was acting on legal advice and not because he did not want to bind himself to evidence he might not be able to change.  Tsang agreed the reason given by his legal advisers for refusing to answer the question was as stated in his affirmation, namely that they considered the question inappropriate and calculated to prejudice a possible prosecution. 

還有其他例子, 譬如407段提及在投訴課錄有關傷勢的口供與事實的分歧, 這些都因為索取了大律師的意見下出現的問題, 如果遇到個用放大鏡審視案情的法官, 分分鐘大條道理送幾個兜(doubt)畀你, 咁咪放晒囉。

上一篇有留言問, 如果行政長官特赦七警及曾健超, 是否可以大和解? 我覺得休想, 首先行政長官只可以就着判刑特赦, 而不是定罪特赦(《基本法》第48(12)條), 以前的港督, 現在的行政長官, 都只有赦免、減輕刑罰的權力, 而沒有撤銷定罪的權力。真的赦免刑罰, 就更加分裂, 到其時就拿算盤出來計, 我坐3個月, 佢坐15個月, 赦免咪好唔公平。

香港還未到置之死地而後生的地步, 梁振英下場後, 就輪到批鬥下一個, 抗爭批鬥慣了, 怎會讓心靈空虛寂寞。