大狀執業被拒的判辭

4天前我寫了大狀執業被拒一文, 司法機構今天上載了有關判辭: RE “A”。在《大狀執業被拒》一文的留言, 除了對A君不能執業的正反意見外, 也涉及對一些有刑事案底仍然能夠執業的大律師的評論。我剛看完判辭, 我同意陳官(Anthony KK Chan Esq)的判決, 除非A君可以上訴推翻陳官的判決, 否則他入行無望。我相信寫這篇也會引起議論, 其實這是好事, 看法無絕對的對與錯, 最緊要是有客觀抒發意見的平台。

不少人舉了資深大狀Coleman及在平洲偷胸圍內褲的馬大狀曾被定罪, 之後還可以執業(馬大狀停牌30個月後復牌), 而A君卻連申請執業也被拒, 視之為不公平對待的例子(所謂大細超)。如果以此指責大律師公會大細超, 我覺得不公平, 因為大律師公會連A君申請執業也不反對。如果說大細超, 大概矛頭直指反對A君執業的律政司。如果原本已是大律師, 被紀律處分停牌, 停牌多久律政司沒有發言權, 停完就復牌, 恐怕律政司也插不到手, 以此推斷就不能指責律政司大細超了。極其量只能說A君不能執業, 是一件不公平的事。

從判辭看, 判決本身講不上不公平。法官先以「公眾利益」(public interest)着眼, 這一點判辭第33是概覽:

Public interest

38. First and foremost, the admission of a member to the Bar involves a matter of public interest. Public interest is generally accepted as paramount, and there can be no exception in this case. I believe that there are 2 aspects under this head: (a) public confidence in the Bar; and (b) the trust and confidence which a member of the Bar commands from the court and fellow members of the legal professions (both the HKBA and the Law Society).

繼而要看的是「改過自新」

Reformation

64. The second concern of the SJ is the total lack of remorse by the Applicant over the crime he committed.

65. Whilst it may be said that the Applicant’s appeal to the High Court and the CFA were matters of exercising his constitutional right, the evidence before the court does not show that he has in any way accepted his responsibility. This is highly material on the question whether the Applicant has reformed from his past.

先前有報章報導講A君對非禮罪一事已有悔意, 那其實只是A君3位師傅其中一位在推薦信所講, A君自己就自始至終都否認有犯罪, 這又引伸到陳官質疑他的悔意及誠信(因為他原先有些資料沒有披露)。陳官對大律師公會處理這件事的手法頗有微言, 對A君另一位批評非禮罪誤判的師傅就不止微言, 而是大不以為然, 判辭為證:

68. However, looking at the material emanated from the pupil masters, one of them had provided a standardised letter of certification and a very short email confirming his view after the disclosure of additional material by the Applicant. One of them provided 2 letters in addition to the certification and confirmation. In those letters, the pupil master expressed the view that the Applicant has managed to rehabilitate himself. The third pupil master had provided 2 letters of “feedback” as well as the certification.

69. I am much troubled by one of the feedback letters. In that letter, the writer stated that during the pupillage of the Applicant he had asked for and read the full transcript of the trial of his pupil. He had “always been persuaded that [the Applicant was] wrongly convicted”, and he formed the view (after reading the skeleton arguments for the appeals) that “the appeal courts failed to grasp the appeal points”. Further, the writer felt very sorry that the Applicant “had fallen victim to our imperfect criminal justice system”.

70. The court would not attribute to the Applicant the view expressed by another person. On the other hand, it is highly unlikely for the Applicant not to have discussed his conviction with the writer, and it is inconceivable for him to have shown any acceptance of his conviction in the course of such discussion. Mr Grossman did not endeavour to suggest otherwise.

71. The writer was free to express his view and to criticise the court. What is disturbing is that he might well have encouraged the Applicant to believe that he was wrongly convicted and not to accept the criminal justice system. That does not square with the rehabilitation of the Applicant.

批評法庭錯誤定罪, 後果全部落在A君身上。從現實角度看, 被告不服定罪向高院上訴, 上訴被駁回, 繼而向終院上訴, 終院上訴委員會駁回上訴, 理由是it disclosed no reasonable ground of appeal, 去到那地步, 師傅還要白紙黑字講A君是不完善刑事司法制度的受害者(“had fallen victim to our imperfect criminal justice system” ), 豈不是由裁判官批評到終院法官, 大不敬的死罪啊, 你估寫blog, 你以為茶餘飯後吹水, 咁講咪即係對司法制度不滿 (馬鹿一定答嘴)。這一刀斬落嚟, 一撥就擘咗落A君度。我自己閱讀A君非禮案的上訴判辭, 我都覺得無釘錯。當然, 換了是個放官, 原審都可以acquit on benefit of doubt, factual finding, 點講都得, 有證據也可以無視證據存在。我能力有限, 我就看不到釘錯的地方。

如果A君在上訴至終院失敗之後曾經表示及表現悔意, 這次申請執業的結果可能會改寫。又如果他真是寃枉的, 所以他堅持自己無做過, 這刑事司法制度真的不完善……我不懂再講下去了。衡量一個人的誠信, 靠日常觀察, 鑑貌辨色, 其實都不足夠。有些極度狡猾的人, 會把自己包裝得誠懇和善, 笑容可掬, 沒有特別事發生就完全露不出狐狸尾巴來, 看人是高深學問。我最後講這些並不是講A君, 我根本無興趣知他是怎樣的人, 我只在講人生閱歷。我寧可對着個為正義而面黑的人, 好個笑裏藏刀, 道貌岸然, 滿口天主上帝的人。面黑的未害你你都預先知道, 笑面的害了上帝上帝也懵然不知。