新鮮出爐的黎智英案, 對控方上訴的兩點議題, 終院認為國安法的釋義涉及重大及廣泛的法律考慮, 此議題可合理爭辯, 故批出上訴許可, 但第一議題不批出許可。判詞第2段:
...We consider it reasonably arguable in the present case that the learned Judge may have erred in his construction or application of NSL Article 42(2) in adopting his approach to the grant of bail in the light of the requirements of that Article and accordingly certify and grant leave to appeal in relation to Question 2.
但議題狹窄:
23. We ought to emphasise the limited nature of the question which will be before the Court on the hearing of the appeal. The Court will determine the meaning of NSL Article 42(2) and, having done so, will decide whether the Judge fell into error in his approach to the grant of bail. If he made no error, the appeal will be dismissed and the Judge’s order granting bail pending trial will be held to have been valid. If, on the other hand, the Judge is held to have fallen into error, the appeal will be allowed and his order set aside. In either case, the appeal will have been disposed of and it will fall outside the Court’s jurisdiction to deal with any outstanding or subsequent bail application, in particular any application regarding bail pending the respondent’s trial. Any such application would be a matter to be dealt with by a magistrate, a District Judge or a Judge of the CFI as appropriate.
即是說就算最終認為李運騰對國安法第42(2)的理解錯誤而判上訴得直, 終院也不會決定黎智英能否保釋, 此事應由下級法院決定。其中一個可能是發還李運騰重新考慮, 李官重新考慮後會有兩個結果, 維持保釋或取消保釋。
現階段收押黎智英直至上訴正審, 是為免予人錯覺, 以為已確認李官沒有犯錯, 所以把案件還原至總裁判官收押黎智英的階段:
31. In our view, it would on balance not be right in principle for us to continue the respondent’s bail pending the appeal since that would assume the validity of the Judge’s order admitting the respondent to bail which is the issue at the very heart of the pending appeal. The status quo ante involved the respondent being remanded in custody pursuant to the order of the Chief Magistrate. Taking into account the concerns expressed by the prosecution, that position ought, in our view, to be maintained pending determination of the appeal, subject to us giving directions for the appeal be heard and determined with exceptional expedition.
終院有點滑頭, 可能希望在門外抗議的人可早點回家休息, 避免聚集染疫, 所以用巧妙的理由, 收押了肥佬黎。其實, 終院也可以讓他繼續保釋, 但申明並非暗示會判他勝訴。保釋與否, 本身就沒有一定指標的, 以洗黑錢案的楊家誠案為例, 終院批出他對定罪及判刑上訴許可時, 同時批准他以7百萬元保釋, 到正審時駁回上訴, 即時入獄。當然, 楊家誠案是已有原審裁決的上訴, 黎智英的刑事控罪是未曾開審沒有裁決的狀況, 這一點是兩案的主要分別。
...We consider it reasonably arguable in the present case that the learned Judge may have erred in his construction or application of NSL Article 42(2) in adopting his approach to the grant of bail in the light of the requirements of that Article and accordingly certify and grant leave to appeal in relation to Question 2.
但議題狹窄:
23. We ought to emphasise the limited nature of the question which will be before the Court on the hearing of the appeal. The Court will determine the meaning of NSL Article 42(2) and, having done so, will decide whether the Judge fell into error in his approach to the grant of bail. If he made no error, the appeal will be dismissed and the Judge’s order granting bail pending trial will be held to have been valid. If, on the other hand, the Judge is held to have fallen into error, the appeal will be allowed and his order set aside. In either case, the appeal will have been disposed of and it will fall outside the Court’s jurisdiction to deal with any outstanding or subsequent bail application, in particular any application regarding bail pending the respondent’s trial. Any such application would be a matter to be dealt with by a magistrate, a District Judge or a Judge of the CFI as appropriate.
即是說就算最終認為李運騰對國安法第42(2)的理解錯誤而判上訴得直, 終院也不會決定黎智英能否保釋, 此事應由下級法院決定。其中一個可能是發還李運騰重新考慮, 李官重新考慮後會有兩個結果, 維持保釋或取消保釋。
現階段收押黎智英直至上訴正審, 是為免予人錯覺, 以為已確認李官沒有犯錯, 所以把案件還原至總裁判官收押黎智英的階段:
31. In our view, it would on balance not be right in principle for us to continue the respondent’s bail pending the appeal since that would assume the validity of the Judge’s order admitting the respondent to bail which is the issue at the very heart of the pending appeal. The status quo ante involved the respondent being remanded in custody pursuant to the order of the Chief Magistrate. Taking into account the concerns expressed by the prosecution, that position ought, in our view, to be maintained pending determination of the appeal, subject to us giving directions for the appeal be heard and determined with exceptional expedition.
終院有點滑頭, 可能希望在門外抗議的人可早點回家休息, 避免聚集染疫, 所以用巧妙的理由, 收押了肥佬黎。其實, 終院也可以讓他繼續保釋, 但申明並非暗示會判他勝訴。保釋與否, 本身就沒有一定指標的, 以洗黑錢案的楊家誠案為例, 終院批出他對定罪及判刑上訴許可時, 同時批准他以7百萬元保釋, 到正審時駁回上訴, 即時入獄。當然, 楊家誠案是已有原審裁決的上訴, 黎智英的刑事控罪是未曾開審沒有裁決的狀況, 這一點是兩案的主要分別。
故此, 若為迎新歲開香檳, 飲杯! 若慶祝肥佬黎收押以為控方上訴得直, 咪住, 起碼要等多一個月才知結果, 保釋的決定外, 往後還要看正式審刑事案的結果, 那欺詐罪, 看來脫罪的機會很大, 國安法是新事物, 我不懂評論。
