反對轉院

上一篇Jack留言, 敘述今天這案:

法庭文字直播台tg
#西九龍裁判法院第三庭
#羅德泉主任裁判官

民陣副召集人陳皓桓
社民連梁國雄及吳文遠
工黨李卓人及何秀蘭
民主黨楊森

被控去年10月20日在港島組織未經
批准的集結及明知而參與未經批准的集結

D7將申請司法覆核挑戰檢控轉交區域法
院的決定，挑戰的基礎為控罪的性質與審
訊法庭不成正比，因而申請押後4星期

控方引用Archbold指檢控決定，律政司選
擇由哪一級法庭審訊為行使憲法權力，不
受干預，不用就決定解釋，故反對押後。
本案牽涉的被告數目、證人人數、複雜程度，
有需要移交區域法院

辯方回應指檢控決定並非不可挑戰，審
訊法庭應與控罪嚴重性成正比，為
unprecedented decision

以前也有被告被轉介區院審訊案件要求控方交付高院審, 控方拒絕下而申請司法覆核, 司法覆核失敗, 繼而上訴至上訴庭也失敗, 再向終院申請上訴許可但終院不批准。我講的是蔣麗莉案。我引用上訴庭的幾段判決:

22.  The effect of section 88, which was at the centre of the Applicant's submissions, is this: where the Secretary for Justice applies to a magistrate for the transfer of a charge or complaint made against an accused person to be dealt with in the District Court, the magistrate must make an order to this effect; in other words, there is no discretion to refuse an order for transfer.

23.  The decision of the Court of Appeal in David Lam Shu-Tsang v Attorney General, unreported, CACV 42 and 43 of 1977, 7 November 1977 confirms that the machinery under section 88 is a mandatory one. As Pickering JA said at page 6 (when addressing the background and effect of that provision) : ‑

“  When a community, through its Legislature, radically alters the structure of its Courts and, as a corollary to so doing, provides by a new section of an established enactment, the exclusive machinery whereby criminal cases shall reach a newly constituted Court itself obviously the subject of a wholly new contemporaneous enactment, it is idle to attempt to construe that transferal section of the existing enactment without reference to the all-pervading shift in juridical competence enshrined in the new legislation.  The scheme of the legislation was clear and fragmentation of interpretation has no part in that scheme.  That, I believe, must be the principle and applying it to the facts of the present case, whereas in 1953 the former Magistrate's Courts, the Supreme Court and the Full Court remained in existence there came into being, at a level between the Magistrate's Courts and the Supreme Court, a completely new jurisdictional tier in the form of the District Court in which, by the very constitution of the Court, there was no room for a jury.  It was to this Court that transfer of cases from the Magistrate's Courts was contemplated and the section providing for mandatory transfer of indictable offences upon the application of the Attorney General contained no saving clause, nothing to the effect that the Attorney General must consult the wishes of the accused and nothing giving the accused any right of objection to the transfer.  The discretion as to whether to apply for transfer was invested solely in the Attorney General and, upon his exercising that discretion by electing for transfer, the obligation to transfer lying upon the Magistrate was absolute.  The scheme of the legislation was clear beyond a peradventure and it entailed, with equal clarity, the deprivation of the former common law right to trial by jury.”

24.  The final part of the quoted passage makes a reference to the right to trial by jury. There is no such right in Hong Kong and it was not contended on behalf of the Applicant that there was any right to a trial by jury that belonged to an accused.

(CHIANG LILY and SECRETARY FOR JUSTICE)

我不敢說這次辯方申請司法覆核一定失敗, 不能抹殺可能有可爭辯的空間, 譬如可能提出憲法的爭拗, 但我不懂拗。有的裁判官實在太容易揸doubt, 審不來就benefit of doubt, 而且本案複雜, 由能力較高經驗較豐富的區院法官審也很公道。4星期後控方準備好轉介區院文件, 就可轉介了。辯方反對, 最大原因是區院釘官多, 這件案上區院, 就算定罪也只會判一年半載, 陳淑莊掮住個啷啷就麻煩啲。