曾蔭權在滴汗, 梁振英開始手震了

許仕仁案終審判決今天頒佈了, 除了控辯雙方、法律界人士、傳媒等會關注結果, 細心閱讀判辭外, 有兩個人會份外關心。我在上一篇留言的回應: 「曾蔭權在滴汗, 梁振英開始手震了」。不是嗎, 公職人員行為失當涵蓋性廣, 有些行事隱晦的行為, 枱底交易, 利益輸送, 都難以證實收了「利」怎樣作出輸送去「益」對方, 尤其是延後利益, 控方無可能呈遞明確證據來證明用了那筆錢來換取那種利益, 或者某些不作為而作出有利對方的決策。許仕仁案就像派了卧底進入政府決策層, 通風報訊, 或運用決策影響力而作偏倚的決定, 使對方得益(判辭引用了控方在原訟庭結案陳辭的一句話: those who were paying Rafael Hui that sum were not “running a charity”)。這一次的裁決, 進一步解釋了在「冼錦華」案對公職人員行為失當罪訂出的5大元素, 也擴闊了控罪的涵蓋面。判辭這樣講:

46.  In R v Boulanger[33] the Supreme Court of Canada, having pointed out[34] that the Canadian statutory offence of breach of trust by a public officer can be traced to the common law offence of misconduct in public office, said[35] that the actus reus of the offence “defies precise definition because of the range of conduct that it is designed to cover”.  That it may include solicitation or acceptance of a bribe is clear.  Professor Finn, in his article on “Official Misconduct”[36] gives “entering into secret commission agreements while acting in an official agency capacity” as an example of the “fraud in office” type of misconduct, and notes that it may also constitute an offence under secret commissions legislation.  It can be said that the receipt of bribes is a quintessential example of misconduct in public office.

47.  For behaviour to qualify as relevant misconduct it may, but need not, involve a contravention of a statute.  It must, however, have the necessary link to official powers, duties or responsibilities.  Yet, not every breach of the law by a person when he or she is a public official is in the course of or in relation to the office held.  In Sin Kam Wah and Anor v HKSAR[37] the relevant conduct was not in the performance of the police officer’s duties, but was found to have such a relation with his public office as to bring that office into disrepute.  In R v Quach[38] Redlich JA, with whom the other members of the Victorian Court of Appeal concurred, approved[39] Professor Finn’s statement that “the kernel of the offence is that an officer, having been entrusted with powers and duties for the public benefit, has in some way abused them, or has abused his official position”, and said:[40]

“In my opinion the relevant misconduct need not occur while the officer is in the course of performing a duty or function of the office. Certain responsibilities of the office will attach to the officer whether or not the officer is acting in the course of that office. Where the misconduct does not occur during the performance of a function or duty of the office, the offence may be made out where the misconduct is inconsistent with those responsibilities. It may be connected to a duty already performed or to one yet to be performed or it may relate to the responsibilities of the office in some other way. The misconduct must be incompatible with the proper discharge of the responsibilities of the office so as to amount to a breach of the confidence which the public has placed in the office, thus giving it its public and criminal character.”

48.  The characterisation of the misconduct alleged may involve both a descriptive element (of the facts of the transaction) and a value judgment (of its effect).  For example, the Australian case of R v Boston[41] concerned a conspiracy to make a corrupt payment to a member of the New South Wales Parliament to induce him to use his official power in an improper way.  The criminality of the alleged agreement lay in its tendency to produce a public mischief.[42]  Members of the High Court characterised the public mischief.  Knox CJ said:[43]

“Payment of money to a member of Parliament to induce him to persuade or influence or put pressure on a Minister to carry out a particular transaction tends to the public mischief in many ways, irrespective of whether the pressure is to be exercised by conduct inside or outside Parliament. It operates as an incentive to the recipient to serve the interest of his paymaster regardless of the public interest, and to use his right to sit and vote in Parliament as a means to bring about the result which he is paid to achieve. It impairs his capacity to exercise a disinterested judgment on the merits of the transaction from the point of view of the public interest, and makes him a servant of the person who pays him, instead of a representative of the people.”

This, of course, is a reference to a specific transaction. But Isaacs and Rich JJ put the public mischief in wider terms in the following passage:[44]

“[The member] has … placed himself in a situation embarrassing and inconsistent with that independence to criticize or censure which he is bound to preserve; he has fastened upon himself golden fetters which preclude his freedom of action. The natural fear of exposure or reproach, or the sense of personal obligation, must inevitably operate to dissuade him from fearlessly pursuing the path of true service …”.

49.  The public mischief that was the object of the conspiracy in Boston did not lie either in the bare financial transaction involved in the payment or in the making by a parliamentarian of representations about government action.  It lay in the connection between the two: the representations were to be made in return for the payment.  The payment took its character from the purpose for which it was made, and by accepting it the recipient placed himself in a situation incompatible with the responsibilities of his office.

在第46段所講 "...Professor Finn, in his article on “Official Misconduct”[36] gives “entering into secret commission agreements while acting in an official agency capacity” as an example of the “fraud in office” type of misconduct,..." 若果套用入UGL事件, 梁振英不會開始手震嗎? 梁振英曾經反駁梁繼昌, 說後者的指控在誹謗UGL, 梁振英可能不知道, 澳洲是一個出名政商勾結, 利益互送的地方。上星期, 前新南威爾斯州礦產資源部長Ian MacDonald, 正正因公職人員行為失當罪而判監10年。所以, 好心咪用這些毫無說服力的論據, 騙到不知底細的香港人也騙不到在這裏住了十多年的標少。你話梁生兩公婆係咪開始有啲驚, 係咪要搵法律顧問睇吓呢篇判辭先。

上一篇有人問: 「梁振英會坐牢嗎?」這問題問得太早, 到了現在, 還未有足夠證據指控梁振英, 若指控他, 也要看陪審團是否信納他的收款解釋。如果法律顧問把判辭第63段解釋給他聽, 他可能會減少手震。(...Furthermore, the trial was conducted on the basis that if the defence explanation of the reason for the payment of HK$8.5m were accepted (at least to the level of raising a reasonable doubt), then the prosecution must fail;..)

郭炳江在上訴期間獲終院批准保釋, 我記不起在之前那一篇有人留言問, 批出保釋是否意味會上訴得直, 我當時說先別高興得太早, 上訴結果跟保釋獲批是兩碼子事, 我舉了楊家誠案為例, 批了保釋終歸也要入去受靶6年。曾蔭權也獲保釋等候上訴, 獲得保釋本身並非一定是上訴成功與否的指標, 加上今天這判辭把公職人員行為不當罪的範疇擴闊了, 曾生怎不滴汗。

也許第三個要驚的是長毛, 因為公職人員行為不當是一條漁翁撒網式的大包圍控罪。判辭講到, 究竟許仕仁在那階段才和其他被告串謀作出不當行為, 控方不能明顯指出。(However, the timing in this case was such that this could not be alleged.)(para 94). 不過長毛不至於會手震滴汗, 他見慣這些場面也坐過牢嘛。