法庭泥漿摔角

本週三上訴庭頒佈了跨世紀行人罔顧安全過馬路案的後續裁決, 這後續是兩辯方律師對原審法官判處他們支付虛耗訟費(wasted costs)的上訴, 上訴得直, 虛耗訟費的判決撤銷了。可是, 本案還有後續, 上訴庭轉介兩位律師給大律師公會及律師會處理, 很明顯這兩人都會面對專業失德的紀律聆訊, 結果應該是吊銷牌照一段日子了。過去三年我已評論了這跨世紀的案件多次, 從上訴判詞, 可以更清晰看到審訊過程更多不當的地方, 不單止是暫委特委裁判官何麗明和兩位辯方律師, 連外判主控也牽涉在內, 一言以蔽之, 這審訊是一場在法庭內舉行的泥漿摔角, 又像一班沒有工開的律師, 以拖延手法來揾食 。但最使人費解的是, 一個經濟能力有限的女保安員, 面對最高罰款只是2000元的控罪, 何以有能力請律師出庭抗辯,  就算為了被的士撞倒受傷的索償, 表面看也看不到是嚴重傷殘, 成功索償金額也不會很多, 何況她過馬路自身過失也要負上contributory neglience的責任。所以這是一宗意氣用事,   玩弄法律程序至無所不用其極的官司。  

這審訊是何麗明被炒魷魚後要完成的手尾,  殊不知這婆娘竟然越玩越大, 前途都豁出去了。她在司法機構當然不能再立足, 因為不給她續約已等同解僱, 她2003年開始私人執業, 現在大律師名冊也見不到她的名字, 即是在本案之後, 她已與法無緣了。任何機構都會請錯人, 請錯可以即炒, 司法機構請錯人也可以即炒或調職, 正如那位明顯針對警察的何裁判官調了去死因庭做審死官, 但即炒也要完成未審完的案件, 除非法官審到中途患重病或暴斃, 才會trial de novo。像何麗明這種情況, 不續約後續審未審結的案件屬正常安排,  她要刻意弄權是極無奈的事, 也不能中途扯她下來。我在兩年半前說(Hello不等於Kitty一文), 本案最佳處理辦法, 把傷害減到最少, 就是以enter nolle prosequi來終止聆訊。上訴庭的判詞第73段敘述了助理刑事檢控專員Ira Lui的陳詞:   

73. Mr Lui fairly accepts that, with the benefit of hindsight, the public interest might have been better served by the discontinuation of the prosecution. He however emphasizes that the conduct of the defence remained wholly unacceptable and unconducive to the administration of justice. We agree.

(HCMA 309/2020 and HCMA 366/2020)

In hindsight, 說甚麼都容易, 有先見之明也不是容易的決定, 此事不能怪律政司, 畢竟審訊的拖延主因是法官及辯方律師太黐線引起, 這種以公眾利益為理由來終止聆訊也是史無前例的。一向講公眾利益作檢控或不檢控, 都不曾考慮法官及律師的能力的。   

我也曾經批評何麗明對本案辯方大律師梁耀祥發出的拘捕令不合法(法官不合法的拘捕令), 也批評梁耀祥因此接受東方日報的訪問的狡辯, 否認對何麗明講過"Are you insane?" (大狀回應的廢話)。上訴判詞以下的段落已說得一清二楚。

51. Another matter that we find disturbing is the Deputy Magistrate’s decision to issue a warrant of arrest against Mr Leung purportedly under section 99. Granted that as a matter of good practice and courtesy, Mr Leung ought to have appeared on Day 41 to inform the Deputy Magistrate that he had been discharged and sought her indulgence. But his absence does not fall within section 99, which deals with contempt in the face of the court. The Deputy Magistrate simply had no basis to issue the warrant of arrest.

有關有沒有說過"Are you insane?"

22. The bickering, sometimes childish, sometimes bitter, had hugely disrupted the proceedings and prevented the Deputy Magistrate and Mr Leung from using the time meaningfully. With tension and mutual animosity mounting, it eventually escalated into a most personal insult levelled by Mr Leung against the Deputy Magistrate on Day 40. They were then embroiled in another exchange arising from an objection by Mr Kwan in DW1’s evidence-in-chief. In response to her comment that the defence had not challenged PW2’s expertise, Mr Leung said: “I am afraid I have to use this words: Are your insane? Sorry.” After the Deputy Magistrate said that she would note it down, Mr Leung withdrew the remark. The Deputy Magistrate then said she would consider invoking section 99 of the Magistrates Ordinance.[10]

23. Mr Leung’s crude remark, although withdrawn almost immediately but without any apology, is most unbecoming. Viewed against the continuous bickering preceding it and the context in which it was made, it was more than a personal insult. It amounted to a frontal attack against a presiding judicial officer in ongoing proceedings in open court, thereby undermining the public confidence in the judicial authority that the Deputy Magistrate represented. As such, we consider it a very serious disciplinary matter that the Bar Association should look into. Mr Leung said that the Deputy Magistrate was very difficult to deal with. With respect, when what transpired between bench and bar is viewed objectively, the same can be said about Mr Leung. In any event, it does not detract a bit from the impropriety of his conduct.

我對上訴庭最後的判決也有意見:

81. In our view, having regard to what transpired in the entire proceedings, how the Deputy Magistrate conducted the trial, including the continuous bickering with Mr Leung and Mr How, the arguably wrongful decision to impose bail on the defendant, her baseless order to issue a warrant of arrest against Mr Leung, the fact that the defendant had in the course of the trial commenced the DC Action against her, the circumstances are obviously that a fair-minded and well-informed observer would conclude that there was a real possibility that the Deputy Magistrate would be biased. Tainted by apparent bias, the Deputy Magistrate’s costs orders cannot stand.

上訴庭從審訊紀錄的謄本分析此案,  毫無疑問對一眾人等不當拖延已有判斷, 何麗明雖然偏頗, 律師嚴重虛耗法庭時間, 玩弄手段, 上訴庭不能獨立斷定罰取虛耗訟費嗎?