7警案保釋等候上訴的判辭

忙了一整天, 吃完晚飯才有閒暇讀判辭, 楊副庭長批准7警案其中3人保釋等候上訴的判辭上載了。看了判辭, 我有點意見。這件案的上訴還有兩關要過, 第一關是上訴許可, 第二關是上訴正審。在楊大人席前的課題是保釋申請, 保釋申請會考慮定罪被推翻的機會, 也會考慮判刑是否恰當。在考慮的過程中, 以免給上訴人錯誤的印象, 或者對處理正審的法官在看法上的壓力, 考慮保釋時一般都不會講得太多。楊大人對判刑方面似乎講得太明確, 他這樣講:

45. Without in any way underestimating the seriousness of what the applicants and his colleagues did, it is, in my view, highly arguable that the 2 ½ year starting point, 6 months off the maximum sentence, adopted by the judge is manifestly excessive and that a significantly lower starting point should be adopted.

講判刑‘highly arguable’無問題, 表達可爭議量刑起點‘a significantly lower starting point should be adopted’, 是否講過了界線呢?  以Dufton原本的兩年半量刑起點作比對, 怎樣才算是‘significantly lower’? 兩年抑或兩年3個月, 都不夠significant, 分分鐘以1年半為起點才算了。若以18個月為判刑起點, 又有甚麼求情因素呢? 楊官列了一籮, 集中批評曾健超的行為, 不是嗎:

41. As pointed out to the judge, police officers, in carrying out their duties, had to work very long hours without proper rest and they were also subject to unwarranted and serious insulting remarks as well as violent behavior from some of the protestors of whom Tsang was perhaps an infamous example.

42. The applicants and their colleagues were acting under immense stress in the face of the violent and provocative behavior of the protestors, many of whom were oblivious to the fact that police officers were there to maintain law and order, and to safeguard the well-being of the society as a whole.

43. When police officers were trying to clear the protestors, having removed the barricades set up by them, Tsang splashed liquid of an unknown nature onto them. Tsang’s arrogance and stupidity, as demonstrated by his unsavoury, highly offensive and provocative behaviour, unfortunately led to an equally senseless response from the applicants, who together with the other defendants had decided to teach Tsang a lesson by taking him to the substation to assault him. It is in such circumstances that the court has to assess a suitable sentence.

警察長時間超時工作, 面對不必要辱罵, 還要應付曾健超這刁民的表表者, 這些刁民行為粗暴, 言辭使人惱怒(所以抵打一鑊, 口脗好似白宮發言人為小學雞總統辯護, 話佢喺twitter鬧記者因為被provoked)。楊大人以5個形容詞來描繪曾健超有幾抵打:

Tsang’s arrogance and stupidity, as demonstrated by his unsavoury, highly offensive and provocative behaviour...

7警只是equally senseless。楊官又幾貼地喎。

Dufton判7警入獄時, 在警察面對佔中長期超時工作壓力及定罪後會被撤職的後果的描述, 只有這一段, 一句批評曾健超的說話也沒有:

18. Taking into account the circumstances prevailing at the time and the great stress the police were under in handling the Occupy Central movement; that the defendants, all of clear record, have served the community as police officers; that the conviction will result in all the defendants being dismissed from the police force and the likely loss of any pensions; and the stress caused while waiting for trial, I reduce the sentence by 6 months to 2 years imprisonment.

(Reasons For Sentence DCCC 980/2015)

Dufton的判刑理由, 重點集中於7警行為使警隊蒙羞及打擊香港聲譽:

13. The defendants have not only brought dishonour to the Hong Kong Police Force they have also damaged Hong Kong’s reputation in the international community, the assault having been widely viewed around the world and reported as front-page news in a number of countries[5].

14. Although Tsang had broken the law for which he was subsequently sentenced to imprisonment[6] and the defendants were at the time acting under immense stress, there was no justification for taking Tsang to the substation and assaulting him.

15. The defendants, serving police officers who in the execution of their duty took Tsang to the substation to assault him; the multiplicity of the injuries sustained by Tsang as a result of the assault; and the damage to Hong Kong’s reputation make this, in my view, a very serious case.

16. I am satisfied a term of imprisonment is appropriate. Tsang was defenceless, his hands handcuffed behind his back with plastic ties. The assault was a vicious assault, in particular the first thirty seconds when Tsang was dumped on the ground, stabbed, stamped on and repeatedly kicked. Most fortunately Tsang did not suffer more serious injuries.

當然, 這課題有得寫續集, 到正審時看下是否楊官主理, 最終的判刑會不會appeal against sentence allowed to the effect of an immediate release。

法官的對錯, 只能用官階來衡量, 只有坐上面的可以話下面錯, 除此之外, 只有草民可以指指點點了。