休班海關職員攔截電單車引致電單車失控撼樹司機死亡一事, 新聞報導指警方以「干預汽車罪」拘捕了攔車人, 這控罪並不恰當, 也錯得離譜, 應直接了當告誤殺, 誤殺罪元素齊全, 根本不是tampering with a vehicle。我都有看過youtube上的影片, 休班海關職員當時「干預」的對象是司機而不是電單車, 根本是收買人命。「干預汽車罪」的釋義, 終審法院已有案例, 就是這一宗:
HKSAR and LAW YAT TING (羅逸庭), 本博在9年前評論過, 在該案終審對「干預」(tamper)一詞釋義, 以下這一段算是核心所在:
11. Section 49 is in Part V of the Ordinance, which is headed “Traffic Offences” and includes a number of separate offences. Section 49 is a discrete offence committed by the act of: (a) getting on to a vehicle (i.e. including entering into or climbing onto a vehicle), or (b) tampering with any part of it, otherwise than with (c) lawful authority (i.e. permission of the vehicle’s owner), or (d) reasonable excuse (e.g. some emergency or other necessity justifying the particular act). The purpose of the section is self-evidently to deter persons from doing certain acts in relation to vehicles unless those acts are done with lawful authority or reasonable excuse. The nature of the acts prohibited, namely getting on to a vehicle or tampering “with any part of the vehicle”, indicate that the statutory purpose is designed to afford broad protection to owners and users of vehicles or those who might be affected by their use (such as other road users or passengers).
判詞另具中文的「新聞摘要」, 以下兩段撮寫了重點:
3. 該條例第49條沒有對「干預」一詞下定義,該詞亦並非技術性用語。第49條的目的,是阻嚇沒有合法權限或合理辯解的任何人,作出登上某部車輛或干預有關車輛的任何部分的作爲。受禁作爲的性質,顯示第49條旨在給予車輛擁有人及使用人,或可能受到其使用影響的人(比如其他道路使用者或乘客),範圍廣泛的保護。
4. 依循詞典對「干預」一詞所下的定義,第49條所指的干預,指某項作爲構成干擾或亂動某部車輛的某部分,以致對該車輛造成改動或損害,或對該車輛作出未經授權的改變。就本宗上訴而言,更特定的定義並不必要,因爲「干預」一詞可包括範圍廣闊的不同作爲。
至於市民使用公民拘捕權協助警察在法律上怎樣行使, 我12年前另一篇文也討論過:
101拘捕令在法律上的意思。這休班海關職員的行為, 完全缺乏合法基礎, 罔顧電單車司機的安危, 後果明顯也是可預見的, 犯罪意念(mens rea)也具備了, 落案應告誤殺。就算案情也符合「干預汽車罪」, 也沒有理由檢控嚴重性與後果不相稱、微不足道的控罪。如果DoJ最終不提控誤殺, 苦主家人應以私人傳票提控。
有holding charge勝過淡化此事,網上群情洶湧, 只希望警察徹查此事,還死者一個公道。
回覆刪除陸建廷律師有戀童癖點解可以做事務律師? Solicitor Kelvin Luk Charged With Sex Crime - WKCC2052/2024 - 2025年1月9日再提堂 https://hkcourtnews.com/律師陸建廷涉與12歲女童非法性交-製逾200張色情/
回覆刪除同唔同意李柱銘資深大律師係罪犯唔應該執業? Martin Lee SC is a Convicted Criminal who should be Struck Off the Roll of Barristers? https://www.wenweipo.com/a/202104/19/AP607cd075e4b0476859b7276e.html
回覆刪除Barrister James McGowan Misconduct Admission - HKSAR v Apelete [2019] HKCA 1189 https://jamesmcgowan2023.blogspot.com/2023/03/barrister-james-mcgowan-admiralty-chambers-hong-kong-admitted-misconduct.html?m=1 36. Before us, Mr McGowan candidly admitted that his actions (or lack thereof) were such as to bring him within the meaning of s.18 of the CCCO. In particular, he accepted that on his part there had been undue delay as well as a repeated failure to comply with the Court's directions, which amounted to serious professional misconduct.
回覆刪除鹹濕攝影師梁鎮宗非禮罪成囚八周 Disgusting Photographer Gary Leung Convicted of Indecent Assault https://www.hk01.com/社會新聞/1083914/攝影師梁鎮宗非禮女模-官稱未碰敏感部位不代表不嚴重-判囚8周
回覆刪除Solicitor Gina Chong Unlawfully Took Photos in Court! 張昭婷律師知法犯法法庭內拍照網上共賞涉藐視法庭!
回覆刪除https://www.hk01.com/article/102931
根據香港律師會法律界名錄,確有一名同名事務律師張昭婷。資料顯示,張昭婷於1993年4月在香港獲得認可資格,目前是張昭婷嚴興鳳律師事務所的合夥人。
《香港01》就有關相片,向張昭婷嚴興鳳律師事務所查詢,至截稿前未獲回覆,惟作出查詢後不久,涉事社交網站上的部分相關相片已被刪走。
根據《簡易程序治罪條例》,在法庭內拍攝或企圖拍攝任何照片可被判罰款2000元。執業大律師陸偉雄看過有關照片後表示,涉事人擺好姿勢拍照,明顯屬於有意圖的行為,而部分相片拍下到庭人士,包括疑似主控官的樣貌,絕不恰當而且情況嚴重。他續指,如調查屬實,該些相片的拍攝者和發布者均需負上刑事責任,如事主是具有一定資歷的法律界人士,相信難以不小心等原因求情,香港律師會亦將視乎情況,作出調查或處分。
律政司發言人則指會就事件作出嚴肅跟進,但為免影響相關跟進工作,不適宜於現階段透露具體詳情。 司法機構發言人表示,會先了解事件,再作適當跟進,包括有需要時轉交警方處理。
李柱銘資深大律師係罪犯唔應該執業 Martin Lee SC is a Convicted Criminal who should be Struck Off the Roll of Barristers https://www.wenweipo.com/a/202104/19/AP607cd075e4b0476859b7276e.html
回覆刪除Gilt Chambers Barrister Phillip Ross Unworthy - Said Court in HKSAR v Apelete (No 2) [2019] HKCA 1320
回覆刪除https://legalref.judiciary.hk/lrs/common/ju/ju_frame.jsp?DIS=125647&currpage=T
Barrister Vivien Chan Misconduct Inquiry 陳文慧大律師專業失當調查 https://www.scmp.com/news/hong-kong/politics/article/3079048/hong-kong-bar-association-looking-whether-former-government Barrister Vivien Chan had allegedly used her Facebook account to attack local judges and opposition lawmakers. The association has launched an inquiry after a politician filed complaints about her. Hong Kong’s professional body for barristers will investigate if a former government prosecutor has breached its code of conduct, after she allegedly attacked local judges for siding with anti-government protesters on her personal Facebook account. Legal sources said the Bar Association had launched an inquiry against barrister Vivien Chan Man-wai after an opposition politician filed complaints about her. An investigator from the association’s standing committee on discipline will be appointed whenever a complaint is received, a source said.
回覆刪除“Rioters! Bar Association and judges who supported them are all scumbags!” she wrote in an October 16 post.
She had also expressed support for police and called protesters “cockroaches”.
District councillor Ramon Yuen Hoi-man from the Democratic Party said Chan’s strong political stance made her unfit to be a prosecuting counsel.
“Based on previous reports, the perception seems that Chan just wanted to prosecute Au at all costs.”
He also alleged that Chan had violated the Bar’s Code of Conduct with her online remarks against judges.
According to the code, every barrister has a duty not to engage in acts which are “likely to bring the profession of barrister into disrepute or otherwise diminish public confidence in the profession of barrister”.
Barrister Alan Hoo SC Berated By His Own Mother 胡漢清資深大律師俾自己阿媽鬧佢不孝 http://www.scmp.com/news/hong-kong/article/1196611/top-barrister-accused-his-mum
回覆刪除胡詠斯律師係罪犯 Solicitor Phyllis Woo Convicted Criminal - WKCC4600/2023 - https://hkcourtnews.com/鄒家成及女律師擅把申訴專員投訴表格攜離監獄罪/
回覆刪除鄧明輝事務律師遲找大律師費用被吊銷執業資格十二個月! 點解會有事務律師遲找大律師嘅費用咁低能?釘牌嗰喎!Solicitor Joseph Tang Convicted of Misconduct for Delay in Paying Counsel! http://www.hk-lawyer.org/content/tang-ming-fai-joseph-respondent
回覆刪除Bowers Solicitors Negligent! Pleading Drafted By Bowers (Hong Kong Law Firm) Defective - Poon Wong Yee See (黃綺施) v Lo Sau Woon Diana (盧秀媛) [2023] HKCFI 2188 (Judge MK Liu - 21 August 2023) - 狀紙都唔識寫點解可以開律師樓 - https://legalref.judiciary.hk/lrs/common/ju/ju_frame.jsp?DIS=154538&currpage=T
回覆刪除梁家傑資深大律師鼓吹暴力違反香港法律大律師公會守則?https://hk.on.cc/hk/bkn/cnt/news/20190723/mobile/bkn-20190723163912339-0723_00822_001.html
回覆刪除香港律師丘律邦知法犯法判監七日 Hong Kong Solicitor Leo Yau Sentenced to 7 Days’ Imprisonment.
回覆刪除https://m.mingpao.com/ins/港聞/article/20220302/s00001/1646209427189
假若 DOJ 最終以干預汽車罪檢控上庭,苦主家人以私人傳票提控誤殺,法庭會不會以禁止一罪兩審為由拒絕受理?
回覆刪除JR the Tampering of Vehicle charge.
刪除謝謝標少解答,不過 JR 和私人傳票一旦失敗財務風險驚人,我相信苦主家人不會走這條路
刪除私人傳票要花很多錢的, 檢控的責任應該由政府承擔。如果這鹵莽行為也造成交通警的傷亡, 恐怕一開始就以嚴重的罪行來拘捕了。我們要看行為本身, 而不是當時關員目的是協助警員, 協助警員極其量只是求情因素。
刪除標少,我同意你的看法。我也希望 DOJ 能擔起責任,恰當地處理是次案件。
刪除先前回覆,我只是感嘆走 JR 和私人傳票這條路太難。除了有權勢者,平民行此著非有破釜沈舟的勇氣不可。
Hi, Bill Siu, glad to read your comment on the case and I have some questions:-
回覆刪除1) Is an attempt to stop a moving vehicle equivalent to an arrest?
2) Is refusing to pull over at the request of a police officer an offence of dangerous driving, an arrestable offence?
3) If the CE's act amounted to an arrest, could this be justified by the alleged dangerous driving on the part of the biker?
4) When the biker saw the CE officer at a distance, shouldn't he slow down or stop his bike because the road condition was not safe enough for him to continue riding? If so, is that another count of dangerous driving?
5) If you agree that the biker rode his bike in a dangerous and irresponsible manner constituting dangerous driving, then, wasn't the risk of losing control or even sustaining serious injury foreseeable by the biker which he nonetheless went on to take? I argue that he brought his fate upon himself when he rode his bike dangerously.
6) I argue that the gist of the case is whether CE's act amounted to a novus actus interveniens? Do you think the footage also supports the assertion that the contact between the CE officer and the biker (if any) was an accident resulting from the CE officer's dodging of the bike charging at him at high speed (considering that the bike was broken in half, I argue that the speed was high)? If so, any break of the chain of causation?
7) Let's say the CE officer did hit the biker, how about a defense of using reasonable force against an aggressor? Please allow me to put it this way: A biker riding his bike at you at high speed, you punch him in the face with your bare hand to protect yourself.
Finally, I think that the CE officer's decision to stop the bike by standing on the road was unwise, but... blaming him for stopping a biker riding a bike dangerously which could endanger and potentially kill others?
V
My bad, "CE's act" should read as "CE officer's act"... sorry for the typo...
刪除V
in question 3... sorry...
刪除V
and question 6... sorry again...
刪除V
This case is fact sensitive. What I know is from what I watched on YouTube and it may not represent the entirety of the facts. It will be a jury's question when all the evidence is adduced in court in the eventual trial. My comments and replies are based on the limited facts I have learned.
刪除1. An arrest is not limited to putting your hands on someone to subdue him. An arrest consists of a series of actions. Trying to stop someone from fleeing the scene is part of an arrest.
2. Refusing to pull over is, on the face of it, disobeying the direction of the policeman to stop. Only the driving manner can constitute Dangerous Driving. Obeying the policeman's direction can also be dangerous driving if driving in a dangerous manner.
3. There is no prima facie evidence of dangerous driving here. At best, there is evidence of speeding but speeding does not equivalent to dangerous driving. It all depends on the driving manner.
4. You have mixed up cause and effect. In the first place, what prompted the C&E officer to attempt to stop the bike? The initial intent goes to the legitimacy of the off-duty C&E officer's action. It is apparent from what I saw, the biker swerved a little bit to dodge the C&E officer.
5. No, I don't. I could see the C&E officer flick the biker's helmet off. I do not want to speculate on the cause of death at the moment. I take a common sense approach here. Whether it is a motorbike or cycling bike, keeping balance is very important. Any act interfering with the balance would cause the rider to fall. Your argument is not substantiated by any facts. You develop your argument based on assumptions. It is pure speculation.
6. I see the causation differently from you.
7. The biker did not ride on the pavement. It was the deliberately reckless behaviour of the C&E officer who stepped onto the road to try to stop the biker. His act also endangered the safety of the traffic policeman as well as other road users in the vicinity. How about the lost-control bike also hit other pedestrians?
Hi, Bill Siu, again, can't express how pleased I am to have the privilege to read your reply and if I may, I wish to say the following:-
刪除1) Regarding the issue of arrest, I agree that it is more useful to proceed with the discussions on the basis that the CE officer did attempt to arrest the biker.
2) With respect, I see the act of refusing to stop at the request of a police officer already an act of dangerous driving and my rationale is as follows:-
a. By refusing to pull over, the biker inevitably invited the police officer to commence a pursuit. This effectively forced the police officer to join an illegal car race started by the biker and turned the roads in a crowed city into de facto racetrack that endangered all users and could have led to fatal accident.
b. When being pursued by the police, I argue that the biker would inevitably disregard and break all traffic rules applicable. Please let me come back to this point later.
c. I note that the Transport Department lists "ignoring police roadblocks or clear police direction" as an example of dangerous driving (source: https://www.td.gov.hk/en/road_safety/safe_motoring_guides/dangerous_driving/index.html). While this does not have the force of law, it seems to me that it is the stance taken by, at least, the executive.
Remark: Sorry that I don't have access to Archhold anymore and perhaps some readers here may chip in.
In light of the above and in the absence of authority saying that there will be no dangerous driving by merely refusing to pull over at the request of the police, I am afraid that I am unable to agree to the point that only driving manner can constitute dangerous driving.
3) Despite my view on 2), let's say that refusing to pull over does not amount to dangerous driving and let's proceed with the discussion on this basis. When the biker saw the CE officer, it appears that there was sufficient time and space for the biker to slow down or even to stop riding (indeed, the pursuing police officer managed to slow down his bike). Yet, the biker refused to stop. When a prudent and reasonable driver sees an obstacle on the road (in this case, the CE officer) and regardless of why there is an obstacle, I argue that he should slow down or stop driving, for the reason that he is no longer sure whether it is safe for him to continuing driving. When the biker put the CE officer's life in real danger by continuing to ride at high speed, this, to me, was a dangerous driving manner, and the offence of dangerous driving should be made out.
My view is that the biker refused to slow down (and continued speeding (sorry, I don't have concrete evidence on this but judging from the fact that the bike was broken into 2 pieces, I believe that he was riding at a speed well over the speed limit)) just because he was trying to escape and this supports my argument on 2), namely, refusing to pull over at the request of the police ought to result in controlling a vehicle in a dangerous manner, disregarding and breaking all traffic rules... and thus, should amount to dangerous driving.
V
p.s. Sorry that the whole post is too long and I should continue by a separate post
4) Yes, I recognize that this is the main reason why the case is analyzed differently. However, please indulge me once and let's say the biker was riding his biker dangerously, would that completely change the whole thinking process?
刪除5 - 7) Alright, let's also say that the CE officer did hit the biker and please also allow me to illustrate my point by a not very good example. Let's say a person holding a knife (when a motor vehicle is driven / ridden in a dangerous manner, I will see it as a lethal weapon, just like a knife) running towards you, you dodge and punch him in the face, that aggressor loses balance and the blade for reason not known ends up in the aggressor's heart. In this example, who should be blamed for the death of the aggressor. I agree that people can interpret what they see differently, and just wanna share the way I see it: A reckless and irresponsible rider rode this bike towards the CE officer at high speed and the CE officer punched the biker so as to protect himself as well as other road users. It is unfortunate that the biker died and I am sure that no body (including the CE officer) wants such result. But, by riding his bike in a dangerous manner (sorry, I remain unpersuaded that there was no dangerous driving), his fate was sealed. And thus, my question is whether what the CE did amounted to a novus actus interveniens and whether there is any room for arguing that the CE officer just applied reasonable force to stop the biker (the CE officer was required to act in a split of a second facing real and immediate danger and I think this ought to be taken into account in the consideration). For this, let's wait for the investigation results and see how the CE officer's legal team presents the case.
Finally, just to express my personal gratitude... Thanks for replying my post and discussing the case and the legal points. This reminds me of my first discussion with you on the subject of common assault (I guess you may not remember but, to a law student, it was something hard to forget) and I learned so much from you... It was sad to see you stop updating the blog and commenting on criminal cases (perhaps some are too sensitive?!?) Anyway, it's really a pleasure discussing the case and the law with you and I hope that I will be able to read your next post soon.
V
my bad... found that I left out the following:-
刪除s37(1) of Cap. 374: A person who drives a motor vehicle on a road dangerously commits an offence...
s37(4) of Cap. 374: A person is to be regarded as driving dangerously within the meaning of subsection (1) if (a) the way he drives falls far below what would be expected of a competent and careful driver; and (b) it would be obvious to a competent and careful driver that driving in that way would be dangerous.
Ignoring the police's request to stop and kept riding, effectively starting an illegal car race etc... I argue that this act alone was an act of driving falling far below what would be expected of a competent and careful driver and it was obviously dangerous.
By continuing riding despite an obstacle on the road, I argue that this act also satisfies the elements of dangerous driving...
V
Ma'am, I am sorry to say you started your argument on the wrong footing. When I first saw the case's footage on YouTube, the first question that popped into my mind was "Why could you step onto the road to intercept the bike?" I could only think of citizen arrest, if any. Seeing a traffic cop with beacon lights on following/chasing after a motorist, why would a bystander believe he should exercise citizen arrest? Were there facts to suggest a serious crime was committed? The answer is NO. The legality question starts from there. Don't speculate and don't try to imagine different scenarios. The second question is "If citizen arrest was triggered, was the force reasonable in the circumstances?" I am afraid both questions are answered negatively. This is the basis of my Manslaughter suggestion.
刪除With due respect, you have advanced too many hypothetical arguments unsupported/unsubstantiated by facts. It only fits the Criminal Law 101 classroom discussion/exercise.
For a case like this, even an off-duty policeman would not try to jump out to intercept the bike. It is quite apparent that it was just a traffic matter. It is also apparent that this C&E officer has no legal concept or is simply ignorant of what constitutes a citizen arrest. His unlawful start begets the unlawful killing. It is not wrong to help the police but don't play James Bond or Jason Bourne. The circumstances did not call for his stuntman action.
Hi, Bill Siu, sorry for making the discussion too academic and advancing hypothetical arguments...
刪除It appears that one fundamental difference in the analyses of yours and mine comes from how we see the act of the biker, especially when he rode his bike in an attempt to escape.
It seems undisputed that the CE officer was aware that the biker was being chased by the police officer. It seems also undisputed that when he stepped on the road, he was trying to exercise his citizen arrest right. Whether he could rely on ss101 and 101A CPO to effect an arrest and use reasonable force would really depend on whether the CE officer reasonably suspected that the biker was guilty of an arrestable offence.
You replied that there were no facts to suggest that a serious crime was committed and the legality question starts from there. However, an arrestable offence need not be a serious crime and all we need is merely a crime attracting a prison term of exceeding 12 months. Thus, my train of thought is, if the CE officer suspected that the biker committed an arrestable offence, then, he should be entitled to exercise his right of citizen arrest.
Whether ignoring the police officer's request to pull over, maneuvering his bike so as to escape and forcing the police officer to participate in a car chase, when combined, constitute an act of dangerous driving and, thus an arrestable offence seems like a key question here and it seems that we are unable to convince each other on this. That's surely fine, we are just having a discussion here and please forgive me, I just like thinking questions like these.
As to the issue of using reasonable force, it appears that when apprehending a suspect riding a bike, there is always a risk that the biker might lose his balance and sustain serious injury. To me, a punch in the face without using any weapon appears to be the minimal force I can think of. I am sorry that I could not think of any better way to apprehend the biker in such situation, other than just simply following him and hoping that the gas runs out soon and hoping that the "chase" is uneventful. >.<
If we are unable apprehend a fugitive simply because he rides a bike as a means of escape, this just seems absurd to me.
Thanks for reading my nonsense and hope that you won't find me annoying ;-).
V
What is a serious offence? From the court judgments' perspective, even a shop theft case is seen as a serious offence. I do not mean it must be indictable. Thank you for your contribution. Our stance clearly differs. I have nothing to add.
刪除Sorry that it's me again...
刪除By the way, how about policy reason? If the message that a bike is untouchable is sent, would that encourage people to ride their bikes to commit crime?
The above reply is from me :-p
刪除V
I am afraid you have expanded too far. There are bikes or vehicles obeying police orders to stop and there are ones refusing. The law is sufficient to deal with the situation. No one is untouchable. At least the instant case does not send such a message. The instant tells us it is dangerous to flee and it is accident prone. The instant case also sends a strong message to the society. Don't do stupid and reckless things. It unnecessarily costs lives. In many different jurisdictions, there are guidelines for police when to stop the pursuit.
刪除You should google "guidelines on police pursuit" to see when the police should abandon the pursuit.
刪除I thoroughly enjoyed the discussion in this thread — thank you both for your insights. While I am no expert in criminal law, I’d like to share my two cents, which are not based on Hong Kong law:
刪除1) I also question whether aiding a police officer in effecting an arrest necessarily constitutes an act of arrest in itself.
For example, Black's Law Dictionary defines an arrest as "A seizure or forcible restraint, esp. by legal authority. 2. The taking or keeping of a person in custody by legal authority, esp. in response to a criminal charge; specif., the apprehension of someone for the purpose of securing the administration of the law, esp. of bringing that person before a court."
By this definition, an arrest must involve some form of "seizure" or "forcible restraint."
In this case, it is reasonable to argue that the pedestrian stepped onto the road to urge the motorcyclist to brake, and not necessarily trying to effect a arrest himself.
Notably, the pedestrian did not suddenly dart in front of the motorcycle; rather, the pedestrian was clearly visible from afar.
2) I think many of us, myself included, are evaluating this situation with the 20/20 vision of hindsight. However, the reasonableness or lawfulness of the pedestrian’s actions should be assessed from the perspective of a reasonable person at the scene. Insofar as it is lawful to aid an officer by stepping onto the road to urge the motorcyclist to brake, the issue of fact, in my view, is whether the pedestrian made any effort to avoid the bike when it became reasonably apparent that the motorcyclist would not slow down — i.e., whether the pedestrian intended to make contact with the bike.
My viewing of the video in slow motion shows that the pedestrian was about to dart to the left to avoid the bike. However, the motorcyclist swerved to the right, causing contact with the pedestrian before he lost control.
Just wanted to share an excerpt from a SCOTUS decision (albeit not criminal - it's a civil rights case so the reasoning may not be apposite, but I think it's sound):
刪除//This is not to say that the precise character of the roadblock is irrelevant to further issues in this case. "Seizure" alone is not enough for § 1983 liability; the seizure must be "unreasonable." Petitioners can claim the right to recover for Brower's death only because the unreasonableness they allege consists precisely of setting up the roadblock in such manner as to be likely to kill him. This should be contrasted with the situation that would obtain if the sole claim of unreasonableness were that there was no probable cause for the stop. In that case, if Brower had had the opportunity to stop voluntarily at the roadblock, but had negligently or intentionally driven into it, then, because of lack of proximate causality, respondents, though responsible for depriving him of his freedom of movement, would not be liable for his death. See Martinez v. California, 444 U.S. 277, 285 (1980); Cameron v. Pontiac, 813 F. 2d 782, 786 (CA6 1987).Thus, the circumstances of this roadblock, including the allegation that headlights were used to blind the oncoming driver, may yet determine the outcome of this case.//
(Brower v. County of Inyo, 489 U.S. 593, 599 [1989])
Thomas, what you wrote teaches me a lot. Much obliged.
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根本就係草菅人命。標少言簡意賅,直說到我心坎處。不告誤殺,天理不容。
回覆刪除大家有冇諗過點解電單車司機唔係急停而係照向前衝?Why did the motorbike driver keep going instead of just stop?
回覆刪除Yes, this is the basis why I am unable to agree with Bill Siu that there was no dangerous driving.
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7:30's question is irrelevant as far as the subject of discussion I raised in my blog. I pointed out 2 things. First, tampering is a wrong charge. Second, the interception of the bike by the C&E officer has no lawful basis therefore the correct charge should be manslaughter. Even if the manslaughter charge is wrong, the tampering charge still cannot stand. If I am asked to speculate why the bike disobeyed the traffic cop's indication to stop (in traffic language, the blinking of the beacon light), the direct answer is the biker wanted to flee (if successful) so that even the policeman saw his number plate, the police could only send a form to the registered owner to provide the particulars of the driver at the material time. In that case, the biker (assuming he was the owner of the bike) simply declined to provide the particulars and would only result in getting a summons for Failing to Provide the Particulars of the Driver. I can imagine a lot of other reasons why he failed to stop. But what's the point? Don't put the cart before the horse.
刪除A person can only be charged for manslaughter if his act or omission caused death. Causation is an essential element of the crime. If the real cause of death is the driver’s own refusal to just stop the bike, then causation is missing. If causation is missing any charge of manslaughter would be fundamentally misconceived.
回覆刪除I will find time to write another piece to build my case and thoroughly demonstrate why I propose a charge of manslaughter. Thank you for the enlightenment and contributions. I also express my gratitude to all contributors who zealously posted their comments.
刪除詹培忠父子串謀欺詐罪成還押2月判刑 DCCC439/2022
回覆刪除Barrister C Y Li SC Absurd 李秋源資深大律師陳詞荒謬 - CWG v MH [2014] 1 HKLRD 838 (§16)
回覆刪除周啟邦律師事務所俾法庭鬧 K B Chau & Co Solicitors Criticized by Court in [2018] HKCA 210 - http://legalref.judiciary.hk/lrs/common/ju/ju_frame.jsp?DIS=114747&currpage=T
回覆刪除Barrister James McGowan Admitted Misconduct - HKSAR v Apelete [2019] 5 HKLRD 574 [2019] HKCA 1189 - Discipline Him! - 36. Before us, Mr McGowan candidly admitted that his actions (or lack thereof) were such as to bring him within the meaning of s.18 of the CCCO. In particular, he accepted that on his part there had been undue delay as well as a repeated failure to comply with the Court's directions, which amounted to serious professional misconduct.
回覆刪除https://legalref.judiciary.hk/lrs/common/ju/ju_frame.jsp?DIS=125051&currpage=T
Barrister Candy Fong Misconduct Convicted 方也方被吊銷大律師執業資格
回覆刪除https://www.gld.gov.hk/egazette/pdf/20081222/egn200812223579.pdf