不批上訴許可的吳文遠案

不談香港政情只埋頭看書, 我於心有愧, 讓留言者自己經營我有失職之嫌, 不知不覺間上一篇已累積了400多條留言。香港政府已積極考慮訂立《緊急情況規例》來解決近期的動亂了。訂立規例不難, 因為廢除了的規例改頭換面可以復活, 最難的是要找大量收押囚犯的場所, 規例一出, 就會有大量拘捕行動, 就要找地方安置被捕人士了。遲遲不出手, 就是因為《緊急情況規例》出台, 氣勢萬鈞, 摧毀性大。說了不談政情, 講到這裏就收筆了。

今天上載了終審法院拒絕批出控方就吳文遠向梁振英擲三文字案申請上訴許可的判詞。3人組成的上訴委員會(Appeal Committee)較罕有地包括一名非常設法官, 而且由他寫判詞。雖然不批出上訴許可, 實際上是肯定了原審裁判官把吳文遠定罪的決定正確, 即是推翻了高院法官邱智立判吳文遠上訴得直的看法。有判詞為證:

4. The Magistrate received all the evidence at first-hand. There was evidence on which he was entitled to find, as he did, those facts proved beyond reasonable doubt. It was open to him to feel sure, as he did, that the exculpatory parts of Mr Ng’s evidence were properly to be rejected. On his view of the facts, the Magistrate was entitled to convict Mr Ng of a common assault upon Chief Inspector Lau. As a thrown object speeds in a person’s direction, there is a range of courses which it would be natural for him to take. One such course is to use his hand to ward off the thrown object. The physical consequences of contact between the thrown object and that person’s hand may be far less serious than the physical consequences of contact between the thrown object and, for example, that person’s eye. But in law contact between the thrown object and that person’s hand would suffice for the purposes of a common assault charge just as would contact between the thrown object and that person’s eye. While contact with Chief Inspector Lau’s hand would so suffice, it is to be noted that some parts of the sandwich which broke into pieces upon contact with Chief Inspector Lau’s hand ended up landing on his torso.

5. In the circumstances of this case, the far more obvious course would seem to have been to bring a charge of common assault by Mr Ng upon Mr Leung. Be that as it may, it was open to the prosecution to bring a charge of common assault by Mr Ng upon Chief Inspector Lau.

(HKSAR and NG MAN YUEN AVERY (吳文遠) FAMC No. 15 of 2019)

當然事實上吳文遠的定罪始終是撤銷了, 因為終院不肯批出上訴許可, 整件案完結了。至於終院為何不批上訴許可, among other things, 官大口大, 愛批就批, 不批就不批, 都有一番道理。

早抖喇, 別多想。