讀重奪公民廣場案終審判詞

二月 7th, 2018 by 思考/HK-X-Force Leave a reply »

判詞原文:http://legalref.judiciary.hk/lrs/common/search/search_result_detail_frame.jsp?DIS=113534&QS=%2B

或許由於上訴庭的判詞引起了社會廣泛迴響及討論,這次首席法官馬道立(下文簡稱為法官)在終審判詞中對很多問題都有詳情解釋,對於原訟庭、上訴庭及終審法院的職能及分工有詳細解釋。判詞明確指出將來的同類案件會以上訴庭列舉的新準則處理,當中的八項判刑考慮因素及六項量刑準則,對於將來組織及參與社會運動者而言更要留意。如果希望了解是次案件中的法律問題,建議仔細讀一讀。

覆核刑期及上訴庭的定位問題

法官於第45-51段解釋律政司在那些情況下可以申請覆核刑期,以及上訴庭的職責包括透過覆核審訊結果向下級法院提供指引。律政司在以下四種情況可以申請覆核刑期,而其結果有可能收緊或放鬆,並不保證對律政司一定有利。

As the wording of section 81A shows, the grounds on which the Court of Appeal may interfere with a sentence passed by a lower court are restricted to the four grounds specified, namely that it is (i) not authorised by law, (ii) wrong in principle, (iii) manifestly excessive, or (iv) manifestly inadequate. If any of these grounds exists, the original sentence may be set aside, increased or reduced. Plainly, therefore, a review of sentence may be either advantageous or disadvantageous to the respondent to the application.

對於上訴庭處理案件的手法,法官於接着的第52-63段指出兩個重點:第一,律政司不可以在上訴庭提出過去在下級法院未獲接納或未有提出的証據;第二,上訴庭不可修改下級法院判決時考慮各種因素的比重。關於這點,法官引用英國1990年一宗案件的判詞以説明:

“A sentence is unduly lenient, we would hold, where it falls outside the range of sentences which the judge, applying his mind to all the relevant factors, could reasonably consider appropriate. In that connection regard must of course be had to reported cases, and in particular to the guidance given by this court from time to time in the so-called guideline cases. However it must always be remembered that sentencing is an art rather than a science; that the trial judge is particularly well placed to assess the weight to be given to various competing considerations; and that leniency is not in itself a vice. That mercy should season justice is a proposition as soundly based in law as it is in literature.”

第77-83段進一步說明,律政司申請覆核刑期時,請求上訴庭為日後同類案件定下量刑準則。上訴庭判詞重申在有任何暴力元素的情況下都必須以嚴厲處理,這亦是上訴庭允許行使的職責。

公民抗命的法律問題

法官於第64-83段解釋集會及言論自由的界線,以及公民抗命於法庭上如何理解。他重申上訴庭的觀點,當行使集會自由越過了暴力(violent)的界線,就不再被允許,因為暴力並非一項被保障的權利。至於公民抗命,他認為就如同集會自由一樣,亦不應越過暴力的界線。他引用了以下的公民抗命定義:

In A Theory of Justice (revised Edition, 1999) at p.320, John Rawls[72] defined civil disobedience “as a public, nonviolent, conscientious yet political act contrary to law usually done with the aim of bringing about a change in the law or policies of the government”.[73] To conform to civil disobedience as generally understood, therefore, the action carried out must be peaceful and non-violent.[74] An expectation of punishment is also inherent in the act of civil disobedience since it is by accepting the punishment that the protester seeks to draw attention to the alleged injustice against which he is demonstrating. As Lord Hoffmann observed, in R v Jones (Margaret) (supra) at [89]:

“But there are conventions which are generally accepted by the law-breakers on one side and the law-enforcers on the other. The protesters behave with a sense of proportion and do not cause excessive damage or inconvenience. And they vouch the sincerity of their beliefs by accepting the penalties imposed by the law.”

至於判決是否應該考慮公民抗命,法官認為不論當時人的行徑是否符合上述公民抗命的定義,都不應作為影響判決的因素。他引用終審法院非常任法官Lord Hoffmann於其他案件的判詞,清楚解釋自己的觀點——不論法官是否同意當時人的主張,或是否同情當時人的處境,法官更重要的職責是一視同仁地執行法律。

“… As judges we would respect their views but might feel it necessary to punish them all the same. Whether we did so or not would be largely a pragmatic question. We would take into account their moral views but would not accept an unqualified moral duty to give way to them. On the contrary we might feel that although we sympathised and even shared the same opinions, we had to give greater weight to the need to enforce the law. In deciding whether or not to impose punishment, the most important consideration would be whether it would do more harm than good. This means that the objector has no right not to be punished. It is a matter for the state (including the judges) to decide on utilitarian grounds whether to do so or not. As Ronald Dworkin said in A Matter of Principle (1985), at p 114: ‘Utilitarianism may be a poor general theory of justice, but it states an excellent necessary condition for a just punishment’.”

年齡是否一個重要考慮因素

於第84-90段,法官引用法律條文109A及相關案例,重申法庭只有在沒有其他合適處理方法時,才可以判16-21歲青年入獄

關於下級法院的判決

此案原訟庭的判決及上訴庭認為判決錯誤,去年成為社會非常關注的話題。到終審法院,法官持以下觀點:

  1. 對於非法集會的量刑,過去香港的案例之判刑程度頗闊,但主要以社會服務令為主,視乎案件實際內容而定。而上訴庭判詞所引用的數宗英國案件,則宜小心閲讀及應用,因為那些案件涉及非常嚴重的暴重,程度與今次的案件有很大差異(第93-96段)。
  2. 上訴庭指出原訟庭的五點判決錯誤,法官認為前四點不成立,兩者之差異主要是上訴庭認為原訟庭考慮之因素不全面,但終審法官認為原訟庭已充分考慮所有因素,並於判詞清楚展述其判斷(第98-102段)。而第五點涉及量刑比重,法官如上文所述認為上訴庭無權質疑原訟庭的量刑比重(第103段)。過去同類案件之中,程度相近的均判社會服務令。再加上上文提及只有在別無他法的情況下才可以判16至21歲青年監禁,因此法官認為覆核刑期應該被拒絕(第104-106段)。
  3. 對於上訴庭是否有錯誤地使用原訟庭未有採納的證據,法官認為上訴庭所考慮的條件及所作之判斷均源自原訟庭,故沒有此問題。唯一問題是上訴庭指當時人沒有悔意,這點與原訟庭判詞相反。法官認為原訟庭判詞有清楚解釋何以認為當時人有悔意,而上訴庭的職責亦不應提出與原訟庭相反的論點(第107-114段)。
  4. 基於上訴庭有權給予下級法院判決指引,終審法院認同上訴庭判詞所列出的詳細量刑準則及起點(第115-124段)。但是,這新準則不應套用於已經判決的案件,包括此案(第125-126段)。
  5. 法官特別指出,上訴庭副庭長認為當時人的行動會鼓勵其他人跟從,因此應該加重刑罰。終審法官表示不同意,認為此觀點會將一個人責任加諸其他人身上,並不應作為量刑準則。
  6. 對於上訴庭有沒有正確考慮當時人的年齡因素,法官指出上訴庭錯誤理解黃之鋒代表律師的文件,並重申只有在沒有其他合適處理方法的情況下才可以判16-21歲青年入獄(第128-133)。

而上訴庭列出、終審法院認同的八項「帶暴力成份的非法集會(unlawful assembly involving violence)」判刑考慮因素為(第121段):

“(1) Whether the violent acts were spontaneous or premeditated; if it was the latter, how detailed and precise the plan was;

(2) The number of people involved in the violent acts;

(3) The degree of violence, including whether weapons were used and, if so, what kind and quantity of weapons;

(4) The scale of violence, including the location, the number of places and the area in which violence took place;

(5) The duration of violence, including whether the violent act was a prolonged one, and whether it still went on despite repeated warning by police or public officers;

(6) The consequences of the violent act: for example, whether there was any loss or damage to properties and, if so, to what extent; whether anyone was injured and, if so, the number of injured persons and the degree of injury;

(7) Even if there was no loss or damage to properties, nor any injury, what imminence and gravity of threat was caused by the violent acts;

(8) The offender’s role and degree of participation; for instance, apart from taking part in the unlawful assembly, or using violence, whether he had arranged, led, summoned, incited or advocated others to take part in the unlawful assembly or use violence.”

六項量刑準則(第123段):

“(1) In accordance with general sentencing principles, the court will have regard to all the actual circumstances of the case and the seriousness of the facts pertaining to the commission of the offence. Appropriate weight will then be accorded to each applicable sentencing factor, and a sentence that is commensurate with the offence will then be imposed. The same principles apply to cases of unlawful assembly involving violence.

(2) Although the definition of unlawful assembly in section 18 of the Public Order Ordinance is relatively simple, the range of factual situations covered is wide. The seriousness of the facts involved varies from case to case and may, depending on the actual circumstances, run from the extremely trivial to the extremely serious. Incidents involving violence are certainly much closer to the serious end of cases, but the facts of different cases still vary. So even for the more serious cases there will still be a spectrum of seriousness. Within the spectrum, the court will accord appropriate weight to the applicable sentencing factors based on the actual circumstances of the case and the seriousness of the facts pertaining to the commission of the offence.

(3) On the basic premise that the public order must be maintained, and taking into account the gravamen of the offence of unlawful assembly, the court has to consider the factor of deterrence in sentencing. As to how much weight it should accord to this factor, the court has to have regard of the actual circumstances of the case.

(4) If the case is of a relatively minor nature, such as when the unlawful assembly was unpremeditated, small in scale, involving very little violence, and not causing any bodily harm or damage to property, the court may give proportionally more weight[101]to such factors as the personal circumstances of the offender, his motives or reasons for committing the offence and the sentencing factor of rehabilitation while proportionally less weight to the sentencing factor of deterrence.

(5) If the case is a serious one, such as when the unlawful assembly involving violence is large-scale or it involves serious violence, the court would give the two sentencing factors, namely punishment and deterrence, great weight and give very little weight or, in an extreme case, no weight to factors such as the personal circumstances of the offender, his motives or reasons of committing the offence and the sentencing factor of rehabilitation.

(6) After the appropriate weight has been accorded to all the applicable sentencing factors, the court would then impose a sentence on the offender that is commensurate with the case.”

同類文章:
讀重奪公民廣場案判詞有感
讀梁游議席案判詞,反思香港法制

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