亂過馬路案91天審訊的後續之後續

網友紐約律師Thomas問"再請問標少. 辯方律師在那幾個月有曾要叫裁判官recuse herself嗎?"

Recuse是指法官退審/避審, 原因可以是利益衝突或不公正或偏頗等。在91天的審訊中, 辯方大律師梁耀祥及律師侯振輝, 分別要求何麗明退審, 答案在上訴庭的判詞可找到。上訴庭怎會牽涉入這裁判法院的小案呢? 行人非法過馬路案最終被告脫罪, 但何麗明判罰兩位辯方律師「虛耗訟費」(wasted cost), 上訴原本由班太(Judiana Barnes)聽審, 班太引用裁判官條例第118(1)條交上訴庭處理, 所以本案的檔案編號仍然是HCMA (High Court Magistracy Appeal), 而非CACC (Court of Appeal Criminal Case)。

從上訴庭的判詞: HCMA 309/2020 and HCMA 366/2020 可見, 梁大律師及侯律師分別向何麗明申請過退審, 均被何麗明駁回。先看判詞第29段

29. On Day 4, the defendant applied for the recusal of the Deputy Magistrate on the ground of apparent bias as shown by (1) the imposition of the bail; (2) her disrespect and hostility towards Mr Leung who was humiliated, threatened and unduly pressured; and (3) her excessive and inappropriate interruptions during PW2’s cross-examination and entering into the arena by asking PW2 questions which should not have been asked and answering questions for him (“the 1st Recusal Application”). The prosecution saw no reasons for recusal although it is not entirely clear from the materials including the transcripts if Mr Haddon-Cave actually opposed it. Submissions took 4 days to finish and on Day 8, in the morning, the Deputy Magistrate refused the Application.

在這裡要加個註腳, Haddon-Cave是外聘主控(counsel on fiat), 審訊1至16天的主控是他, 但他做到退休, 所以從第17天起由另一外聘主控關文渭頂上。

第二次申請recusal由侯振輝提出, 見判詞61及62段。

61. In the meantime, the Deputy Magistrate’s decision to impose bail on the defendant was quashed on 4 April 2019. The defendant commenced DCCJ 1719/2019 in the District Court against the Deputy Magistrate for damages under sections 125 and 126 of the Magistrates Ordinance (“DC Action”). On Day 63, the defendant mounted a second recusal application based heavily on the DC Action (“the 2nd Recusal Application”). Mr Kwan’s position was ambiguous. Submissions lasted until Day 68 and on Day 69, the Deputy Magistrate refused the Application as well as the application under the Evidence Ordinance.

62. The 2nd Recusal Application caused further disruption. The time taken was unduly long partly because in his submissions, Mr How insisted on playing the DARTS recording in full for the Deputy Magistrate’s explanation to the defendant on her options regarding legal representation, which was wholly unnecessary.

DARTS是Digital Audio Recording and Transcription Services, 是司法機構審訊數碼化的錄音系統, 現已不記得引進的年份, 好像是1992年。

這裡再打個岔, 先看判段詞第21段的描述:

21. The Deputy Magistrate and Mr Leung engaged in bickering from the very early stage of the trial which continued until Day 40 when he last appeared before her. Below are some ready examples:

(1) On Day 2, in the morning, the Deputy Magistrate said she had observed that Mr Leung had thrown things on the table and at Mr Haddon-Cave and gave him warnings. At one point, the Deputy Magistrate commented it was the fourth time Mr Leung had thrown things and said it was the last warning. In the ensuing arguments, Mr Leung denied and said that the court’s CCTV could be checked. He requested to proceed with the trial but the Deputy Magistrate pressed him on whether he wanted to check the court’s CCTV. She allowed him to continue with PW2’s cross-examination only after he said no. In the rest of the proceedings, the Deputy Magistrate kept referring back to those “throwing things” incidents.

何麗明和梁耀祥都無知, 看甚麼CCTV? 在法庭內安裝的鏡頭是沒有錄影的, 只是方便負責數碼錄音的外判人員看到法庭審訊的進程作些註腳, 方便日後找尋, 譬如甚麼時候第一證人開始作供, 甚麼時候律師開始陳詞。真的去看梁耀祥有沒有扔東西, 根本就沒有錄影, 枉未登神檯之前已在司法機構工作的何麗明連這也不知道。

兩位律師索償2140萬, 我今早重溫3年前上訴庭這88段的判詞, 當年兩位已被臭罵了, 今次可謂要再自取其辱。今早起床時氣溫只有12度, 全身短打的標少興緻勃勃地寫這一篇, 向神交已久卻無緣識荊的Thomas交差, 花了兩小時的光景。Thomas兄欠我一杯咖啡。