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尖沙咀總行 : 2569 2192

太古城華山分行 : 2569 1339

沙田第一城專責組 : 2647 1838

沙田銀禧分行 : 2636 1380

太古城明宮分行 : 2560 3738

杏花邨專責組 : 2898 0007

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法律隨筆

警總非禮案的上訴

標少

2016年9月8日

鹹濕的代價有幾大? 我不講立法會換屆選舉, 那個題目太多人講。轉換話題講鹹濕。

警察總部非禮案上訴判辭今天上載了(HKSAR and KONG HO WAN), 定罪及刑期上訴都被駁回。清洪繼續代表被告上訴, 高院暫委法官郭啓安聽審, 不單只駁回, 對資深大律師有點不客氣。上訴的理據, 老老實實, 十分空洞, 郭大人不太客氣也很合理。我對上一次對本案的評論, 寫了這一篇: 警察總部的非禮案之二, 是10個月前寫的, 這被告也快要出獄了。在警察總部非禮干犯盜竊罪的女事主, 判監16個月, 這份工砸了自不待言, 審訊時清洪代表上庭11天, 上訴在今年4月26日聽, 9月2日頒布判辭, 今天才上載。清洪應該共上庭12天, 這條數都幾和味, 七位數無走鷄, 鹹濕得好貴啫! 案情相當簡單, 受害人是大陸醫生, 當時在香港實習半年, 因在崇光盜竊被拘捕, 辦好手續保釋上庭, 離開警署時在路上給被告叫停, 佯稱未對她搜身而帶了她去警察總部的女廁非禮(摸胸及叫受害人脫褲觀看私處)。證據而言可謂鐵證如山, 男警搜女犯的身違反警察通例, 閉路電視也影到進出警察總部的過程。這件案主要靠女事主的誠信來定罪, 被告沒有作供, 但呈上被告被拘捕後的錄影會面紀錄, 當中推諉受到事主色誘。這些廢話怎會有人信? 辯方在審訊時集中火力盤問事主, 希望製造疑點。事主的盜竊案因發生了非禮案而以撤銷控罪簽保守行為方式處理, 於是辯方就以此作重點盤問, 指事主為了爭取撤銷盜竊罪而誣陷被告。事主作供時表示在大陸並無撤銷控罪簽保守行為的做法, 她自己也曾在網上搜尋有關資料, 對於會不會留下案底也搞得很混亂。這也成為辯方攻擊她的誠信的課題, 原審裁判官接納事主的解釋, 覺得事主是大陸人不清楚這些法律解釋也屬合理。唉! 我收過很多這類求助, 很多人對此也分不清。

事主證供前後分歧也是上訴的其中一項理由, 郭官引用(不是第一次)了上訴庭的講法:

13. Stock J, observed in R v KWONG Wing On and Another HCMA 574/1996 at page 4:-

“12. Pausing at this juncture, I would say this: that microscopic dissection of a transcript will always uncover a discrepancy, a failure to answer a question, some inherent improbability or other, a piece of evidence not included in statements to the police, and a myriad of bits and pieces upon which to build pages of grounds of appeal. In the real world, and even with truthful witnesses, these discrepancies, improbabilities, and omissions will occur. Indeed if they do not, then the evidence is attacked as being artificial or collusive. The magistrate is not expected to deal expressly with every comforting crumb to which the defence may be able to point. A realistic attitude must be encouraged, and the approach to such attacks is to ask whether there have been material and significant discrepancies, improbabilities or omissions, such as would lead or should lead a tribunal to doubt credibility on central facts.

13. In this case, there is a great danger of losing sight of the wood for the trees. ..." (emphasis added)

(嘩! 好使好用。)

不如看下郭官處理上訴其中一項理據的口吻:

35. In this ground, Mr Cheng sought to argue that the Magistrate failed to analyse how (a) the binding offer, (b) the special treatment by the police and (c) the partiality/impartiality of the investigation could have operated on PW2’s mind and affect her credibility and/or reliability.

36. The arguments advanced on this ground lack substance and based only on unfavourable presumptions which were already flatly denied by PW2 under cross-examination. The Magistrate had already properly analyzed that there was no linkage between BO/NCR and her complaint against the appellant as stated in Ground (1) and it is just a last ditched attempt to re-argue the point by the appellant. As for special treatment arranged by the police to PW2, the Magistrate had already given sufficient and proper reasons in paras. 52 to 55 of the Statement of Findings why he considered that the special treatment, such as police transport, offered by the police to PW2 was warranted as this was a highly sensitive case and was extensively reported by the media at that time. Finally what CIP Lam had said in the 13 January meeting PW2 to the effect that “getting rid of bad element of the force to protect the image of the force” was, in my judgment, only proper to reassure a hesitant witness such as PW2 to have the courage to come forward to testify against a serving police officer and not to worry about her personal safety and that the police is handling the complaint very seriously. I failed to see there is any partial investigation as submitted.

37. The evidence against the appellant was overwhelming and Mr Cheng could only resort to the incidental offer of BO/NCR in her theft case by the Department of Justice as an incentive for her to falsely accuse the appellant in this case. The appellant’s explanation to the police that he was approached and seduced by her in the manner as he described was frankly ridiculous and devoid of logic and reality. It is inherently improbable for PW2 to just randomly spot the appellant on the street after her release and purposely seduced him to have some bodily contact with her so that she could make use of it and file a complaint against a serving police officer with a view to secure a BO for her in the theft case. The risks involved just far exceeded the benefit of NCR. The explanations proffered by the appellant are just so far-fetched and cannot be true.
(BO, 即bind over簽保守行為。NCR, no conviction recorded不留案底)

現役警員濫用職權非禮女被告, 是極其嚴重的罪行, 也是加重刑罰的因素。香港有些人以為律師是魔術師, 像這件案的被告, 便要付出比認罪沉重很多的代價。