新界東北衝立法會衝了入獄之二

安得老在上一篇這留言, 我當初掉以輕心,

安得老臨兮拍四仔2017年8月16日 上午12:36
小弟即刻睇 Seabrook 想挑標兄錯處，結果鎩羽而歸。

對留言仔細考慮過才恍然大悟, 原來他所指的Seabrook是終院另外一宗上訴案MARK ANTHONY SEABROOK AND HKSAR FACC 6/1998,  該案以下這兩段判辭是新界東北衝立法會案13名被告唯一可以琢磨上訴至終審法院的相關理據:

40. It is to be borne in mind that the process of sentencing the appellant was still extant when he was before the Court of Appeal. This is because - as the Court of Appeal laid down in R. v. Sze Tak Hung [1991] 1 HKLR 109 at p.113 and repeated in Re C.W. Reid [1994] 2 HKLR 14 at p.24 - the sentencing process does not end upon the passing of sentence at first instance but continues until the question of sentence has been dealt with by an intermediate appellate court (the Court of Appeal in appeals from the Court of First Instance of the High Court or the District Court, and the Court of First Instance of the High Court in appeals from the Magistrate's Court). The intermediate appellate courts routinely deal with sentence. And in practice such a court is almost always the final court dealing with sentence. So it is only right that the sentencing process be viewed as one which continues until an intermediate appellate court has dealt with the question of sentence.
...
46. It is neither necessary nor desirable to attempt to lay down what ought to be done in those cases where the sentencing process is no longer extant because the intermediate appellate court had already dealt with sentence. I do no more than note the following possibilities. One possibility, which may be appropriate where there is a very great difference between the sentence passed and the one called for by the guidelines in question, is to invite the Chief Executive to exercise his power under Article 48(12) of the Basic Law to commute a part of the sentence. Nor would I rule out, in such a case, the alternative possibility of an appeal to this Court on the basis of an extreme case requiring a final appeal as to sentence in order to undo a substantial and grave injustice.

不過, 我傾向否定可引用Seabrook案來上訴至終審法院, 因為上訴庭處理了律政司的上訴, 就是Seabrook案所指的 in practice such a court is almost always the final court dealing with sentence, 除非終審法院要 undo a substantial and grave injustice。新界東北衝立法會案的改判, 並不構成substantial and grave injustice。我個人看, 覆核加了刑除了重手外, 完全沒有實質及嚴重不公的情況, 所以我維持上一篇的結論: 再無上訴空間。