收拾肥佬黎

明報今晚即時新聞:

壹傳媒創辦人黎智英3年前出席六四集會時，涉恐嚇《東方日報》記者，今年被控一項刑事恐嚇罪，案件早前在西九龍裁判法院被裁定罪名不成立。今日（17日）為案件上訴期屆滿，律政司發言人表示，今日根據《裁判官條例》第105條以案件呈述的方式提出上訴。由於案件司法程序仍在進行，律政司不適宜就案件作進一步評論。

咁有趣。甚麼叫呈述方式提出上訴(appeal by way of case stated)? 就是根據法律觀點以呈述方式把在法官席前審訊的案情寫出來, 然後原審裁判官提出法律觀點的問題, 問上級法院究竟某法律問題的看法是否正確。 

既然是問題, 就會以問題的方式提出來, 就會有這種問法:

Did I err in law...

Was I correct...

.....是否正確?

譬如在律政司司長 訴 鄭曉彤一案, 律政司草擬了法律問題, 由原審裁判法官簽署, 尋求高院法官指示, 下面就是問題的例子:

5. 控方作為上訴人現在以第105條案件呈述方式，要求原訟法庭就下列2條問題作出指引：

(1) 裁判官把16歲的答辯人移交少年法庭是否正確？
(2) 在少年法庭上，裁判官聽取答辯人的答辯及根據第226章《少年犯條例》第15(1)(a)條運用酌情權，撤消答辯人的定罪是否正確？

終審法院在LI MAN WAI and Secretary For Justice一案, 澄清了呈述方式提出上訴的範疇, 包括以下兩種情況:

1. An appeal by way of case stated under s.105 of the Magistrates Ordinance is not an appeal by way of rehearing. It is a review by the appellate court on the limited ground that there is an error of law or an excess of jurisdiction.
2. Where a magistrate has come to a conclusion or finding of fact which no reasonable magistrate, applying his mind to the proper considerations and giving himself the proper directions, could have come to, this would be regarded as an error of law. Such a conclusion or finding is often described as "perverse"    

在黎智英一案, 原審裁判官以證人不誠實為理由而拒絕接納他受驚的證據, 這事實的裁斷是否悖於常理(perverse), 真的要拭目以待。當然這呈述只是個人猜測, 律政司究竟草擬一個甚麼法律問題給裁判官簽署, 只能等待看到上訴判詞才會知道。從傳媒看到脫罪的理由, 上訴理應駁回。

在上述Li Man Wai案, 終院最後這樣講:

25. Considering the evidence as a whole, I would accept that a reasonable tribunal of fact, bearing in mind the proper considerations and the proper directions, could have concluded that the prosecution have proved that the appellant was dishonest. On the other hand, such a tribunal could easily have come to the opposite conclusion as the magistrate did in this case. Where it is sought to draw a conclusion or make a finding which is different from that of the tribunal of fact, particularly a conclusion of guilt, the appellate court would have to be satisfied that the conclusion which the court is invited to draw is the only reasonable conclusion in the circumstances. In the present case, it cannot, in my view, be said that the only reasonable conclusion which could have been open to a tribunal of fact was that the appellant was dishonest. It cannot be said that the magistrate's verdict is perverse.

在肥佬黎這案, 原審裁判官不信控方證人, 上訴法院真的可以干預這耳聞目睹的裁決嗎?