【法律年度致辭】戴啟思演辭中英全文

2020-01-13|来源: 立場新聞

編按:香港大律師公會主席戴啟思於法律年度開啟典禮發表演講,他提到社會事件令人痛心,嚴重暴力事件無疑與行使和平示威的權利背道而馳。在警方拘捕的數千市民中,好一部份人將面臨漫長刑期的嚴重控罪,然而,「大致上,他們都有著良好品格,代表著香港社會一大部分人」。他提到,基於公眾利益考慮才是至為重要,即使警方有足夠證據令被告入罪,個別人士或者某類案件不一定需要交由法庭定奪。他又說,面對數以千百計的案件,大律師必須盡其專業責任,不可以因為個人觀念而阻礙他們為市民提供法律服務。

香港大律師公會主席於2020年1月13日法律年度開啟典禮的演講辭全文

終審法院首席法官、各位法官及裁判官、律政司司長、律師會會長、尊貴的嘉賓、海外及本地的法律界同業、女士們及先生們:

在座各位應該無需我告訴你們剛剛結束的一年實在非比尋常。

在座各位部份可能曾經參與過向政府表達不滿的集會遊行,而更多的會從電視或者社交媒體上目睹過這些示威。

當目睹嚴重暴力發生,並看見人們攻擊及傷害他人,同時亦有人作出刑事毀壞的行為時,我想大家應該都會感到痛心。這些行為無疑與行使和平示威的權利背道而馳。

對一些人來說,今年稍後將會要為自己的行為負責。警方拘捕了來自各行各業的數千市民。他們大多數都是年輕人,有些只是學童,而更多的是大學生。然而,當中亦包括很多普通上班族或者離開職場良久的退休人士。

雖然很多人被指控干犯的公眾秩序罪行往往並不牽涉暴力或嚴重破壞,他們當中好一部份人正面對著會招致漫長刑期的嚴重控罪。大致上,他們都有著良好品格(goodcharacter),代表著香港社會一大部分人。

就律政司司長應該就甚麼控罪而檢控誰人的決定,我無權置喙。正如《基本法》第63條所說,律政司在刑事檢控方面「不受任何干涉」。

然而,律政司的《檢控守則》提醒我們,作出檢控的決定並不單單取決於警方是否有足夠的證據交給法庭及令被告入罪。在作出決定時,由於公眾利益至為重要,即使證據充分,個別人士或者某些種類的案件亦不一定需要交由法庭定奪。

若證據足以令人入罪,但律政司最後決定不作出檢控的話,這對某些人來說看上來或許有點古怪,甚至不符合他們心中對法治的定義—即所有看來有犯法者必須被檢控。恕我直言,這個理解並不正確。

檢控人員不拘泥於控罪書而同時考慮其他因素(包括被告的個人情況及其他事情)正正是法治的一部份。在2006年,上訴法庭曾經將此形容為檢控自主(prosecutorial independence),而在做出檢控決定前對案件作通盤的考慮是「法治的關鍵」(a linchpin of the rule of law)。

我相信經過篩選的案件將會進入檢控階段,而數量將會以千百計。那些案件將會在法庭由法官及裁判官審理,而作為檢控或者是辯護方代表的律政司、大律師公會及律師會的成員,都會擔當重要的角色。

這將會是一個沉重的責任。我希望新一屆的大律師公會執委會將會尋找方法鼓勵其會員就即將來臨的審訊提供其服務。這很可能代表好些沒有從事刑事法多年的大律師需要重拾故技,為在法庭保障公平審訊權不受損害做好準備。無庸置疑的是這適用於檢控及辯護雙方。

在此階段,就曾經在警署以及裁判法院為因公眾秩序或其他罪行被捕的人士提供法律協助的大律師以及律師,我向他們致以敬意。

現時,我們不時都可以見到無數市民被捕及被警方拘留,很多時候警署無法容納被羈留的人士,導致被捕人士需被分流至其他警署或羈留中心。這情況令到大律師在追查其當事人下落面對艱鉅的挑戰,更遑論能與當事人見面。稍後這些大律師與被捕人士到法庭應訊,亦往往需要輪候至晚上八、九點鐘之久,才能處理他們當事人的案件。

為了確保被捕人士與律師見面及獲法律代表的憲法權利得到保障,超卓的組織能力、熱誠和努力缺一不可。

當這些案件到達審訊階段時,法庭某些判決必然會令法庭程序的參與者以及關心這些案件的人雀躍或失望,甚至牽動強烈的情緒。

近來,由於裁決或者是判刑決定不符合一些不牽涉在法律程序內的人士對「正確」判決的期望,我們見到法官被騷擾及中傷。

我認為終審法院首席法官早前講過的一番說話值得我在此一再重覆:法官不會因為被告的政治或者其他理念對他們有著不同的處理。如果他們這樣做,這將會是不忠於要求他們無懼、無偏、無私及無欺的司法誓言。

我希望美國最高法院法官Samuel Alto的這句話能廣傳而被認受:「一位法官不可以有自己偏愛的結果。法官唯一而莊嚴的責任是對法治負責。」

同樣地,大律師也不可以因為自己的個人觀念阻礙他們為市民提供法律服務。在我們的專業守則裡有一原則叫作「不可拒聘原則」(“Cab Rank Rule”)。該原則訂明,無論大律師如何看待客人的品格或信念,只要客人願意付他一般的費用,而案件是他的執業範圍,他都不能拒接案件。

正如大部份規例,「不可拒聘原則」甚為枯燥。然而,一位十八世紀的英國大律師Thomas Erskine在1792年為Thomas Paine的辯護將此原則表現得淋漓盡致。

Thomas Paine是一名激進份子。他寫了一本書提倡如果政府無法保障人民的天賦人權(natural legal rights),例如思想、集會及言論自由,將該政府推翻將是合法的。當時的檢察總長(Attorney General)指控他煽動叛亂(sedition),即引起對在任政府的離叛及敵意。

由於Paine是政府的眼中釘,很多大律師試圖勸說Erskine不要接手該案件,因為這將令Erskine永遠與Paine及他的政治理念掛鉤,而為他辯護將會破壞他作為大律師代表政府的機會。

Erskine在他向陪審團陳詞時提及了他的同儕給他的壓力:

「從容許一位大律師可以說他會或者不會代表受刑事檢控的人在法庭向英王座下政府(the Crown)抗辯的一刻開始,英格蘭的自由已經土崩瓦解。」

雖然Erskine輸了官司,但是他為Paine頑強而堅持原則的辯護,令他作為堅持自主獨立的大律師聲名鵲起。十四年後,他成為了英格蘭的司法大臣(Lord Chancellor)。

Erskine演辭中帶出的原則於此時此地同樣適用。大律師將繼續為不受歡迎的客人或事由辯護—這不一定是因為他們想這樣做,而是因為這是他們的專業責任。

我不希望大律師公會需要就類似上年九月發生的事件再作評論—一位檢控官在高等法院因為反對一名年輕示威者的保釋申請而被市民包圍。

在1990年,聯合國第八屆預防犯罪和罪犯待遇大會通過了一份名為《關於律師角色的基本原則》的文件。該文件的第18段提出了一個大家須要理解和接受的原則:「不得由於律師履行其職責而將其等同於其委託人或委託人的訴訟事由(Lawyers shall not be identified with their clients or their clients" causes as a result of discharging their functions)」。

以上種種都是我對來年的一些顧慮,而我希望它們不會發生。當然,如果它們真的發生的話,我可以向終審法院首席法官保證,一如既往,大律師公會會協助司法機構根據基本法履行其莊嚴的職責。

我祝大家鼠年一切順利。

戴啟思資深大律師

Speech Given at the Opening of the Legal Year, 13 January 2020 by the Chairman of the Hong Kong Bar Association

Philip J. Dykes SC

[Chief Justice, Judges and Magistrates, Secretary for Justice, President of the Law Society, Distinguished Guests from Overseas Law Societies and Bar Associations, Ladies and Gentlemen.]

You do not need me to tell you what an extraordinary year has just ended.

A fair number of you will have participated in one or more of the mass demonstrations to show discontent with the Hong Kong Government. Even more of you will have seen these protests on television screens or social media.



All of you will, I hope, have despaired when you saw serious violence breaking out, which saw some people attacking and injuring others whilst others committed acts of criminal damage. Such activities cannot come within the exercise of the right of peaceful protest.

There will be a reckoning later this year for some people. The police have arrested several thousand people coming from all walks of life. The arrested persons are predominantly young. Some are just school children. Many more are university students. However, many were ordinary workers and others had stopped work long ago and entered retirement.

Some of these people now face serious charges which carry substantial terms of imprisonment. Many though have been charged with lesser public order offences, not involving violence or extreme vandalism. They are all of them, in the main, of good character. They are representative of a large section of Hong Kong society.

It is not for me to advise the Secretary for Justice about who she should prosecute and for what offences. Article 63 of the Basic Law says that the Department of Justice controls criminal prosecutions "free from any interference".

However, the Prosecution Code published by the Department of Justice reminds us that a decision to prosecute is not made just because the police have enough evidence to go to court and secure a conviction. Public interest plays a part in the decision-making process too so that individuals or some classes of cases will not end up in court, even though there is a strong case against them.

To some people a decision not to prosecute when there is evidence that would secure a conviction may appear odd and at variance with the rule of law which some think calls for a prosecution whenever the law appears to have been breached. That is an incorrect understanding.

The prosecutor"s looking beyond the four corners of a charge sheet to other matters, both personal to the person charged and to other matters, is a part of the rule of law. In 2006 the Court of Appeal described this prosecutorial independence and the ability to look at the overall merits of a case before deciding as constituting "a linchpin of the rule of law" (In Re C (A Bankrupt) [2006] 4 HKC 582.)

I believe that there will surely be a winnowing of cases going forward to prosecution. There will still be many hundreds of cases, if not thousands. They will have processed through the courts by judges and magistrates with lawyers from the Department of Justice, the Bar and the Law Society playing a necessary part as either prosecutors or defence representatives.

It will be a formidable task, I would hope that the new Bar Council will look to ways in which it can help in encouraging members to provide their services in future trials. That may mean reminding some members who have not practised criminal law in a long time that they should brush up their skills and be prepared to help out in court so that fair trial rights which apply to both the prosecution and defence may not be jeopardised.

At this stage, I should pay tribute to the barristers who, working together with members of the Law Society, have provided legal assistance at police stations and magistrates" courts to persons arrested for public order and other offences.

One day would see scores of arrests and people taken into police custody and the next day would be the same. Police stations often could not accommodate the detainees, and their subsequent dispersal to other police stations and detention facilities presented members with significant challenges to track down their clients and see them. Later on, these barristers would be in court with the arrested persons, in some cases waiting until eight or nine o"clock at night before their clients" cases came on.

Only by the brilliant organisation of some, and the enthusiasm and hard work of all concerned, could the arrested persons" constitutional right to see a lawyer and be represented be made safe.

When, later on, these cases arrive in court for trial, there will be decisions that are bound to please or disappoint the participants, as well as persons following the cases. Sometimes stronger emotions are aroused.

We have seen judges abused and vilified only recently. This reaction has been because a verdict or sentencing decision had not met the expectations of people outside the judicial process who have a view on what should be the "correct" disposal of a case.

The Chief Justice has said it before now, but it needs repeating: Judges do not try people differently because of the defendant"s political or other beliefs. If they did that, they would not be true to their oaths of office which bind them to do justic favour, self-interest or deceit.

I wish that the words of US Supreme Court Justice Samuel Alito were more widely known and, more importantly, accepted which are: "A judge can"t have any preferred outcome in any particular case. The judge"s only obligation - and it"s a solemn obligation - is to the rule of law."

Similarly, barristers are not allowed to let personal prejudices get in the way of providing representation to persons seeking to use their services. We have a rule in our Code of Conduct that we call the Cab Rank Rule". It requires barristers to act in any case in the area of law in which they practice in return for the usual fee. They must act irrespective of what they make of the client"s character or their beliefs.

The Cab Rank Rule is, regrettably a rule that, like most regulations, dull to read but an English barrister from the Eighteenth Century, Thomas Erskine, stated the essence of the rule in a scintillating speech when he defended Thomas Paine in 1792.

Thomas Paine was a radical. He wrote a book which suggested that it was lawful for a people to overthrow a government which failed to protect their natural legal rights, such as freedom of thought, assembly and speech. The Attomey-General charged him with sedition. That is to say with exciting disaffection and hostility against the Government of the day.

Other barristers attempted to persuade Erskine not to take up the case because Paine was poison to the Government. Defending him would blight his chances to do Government work because he would be forever associated with Paine and his politics.

Erskine later told the jury about the pressure he came under from his fellow lawyers not to defend Paine.

"From the moment that any advocate can be permitted to say that he will or will not stand between the Crown and the subject arraigned in the court where he daily sits to practise, from that moment the liberties of England are at an end."

Erskine lost the case, but his stubborn and principled defence of Paine so enhanced his reputation as a barrister who championed independence that 14 years later, he became the Lord Chancellor.

The principle encapsulated in that part of Erskine"s speech holds good today here and now. Barristers will continue to defend unpopular clients and causes not because they necessarily want to but because it is their professional duty to do so.

I should not like the Bar have to comment again on any other incidents like the one which occurred last September when a crowd hounded a prosecutor in the High Court building for doing his job in opposing a bail application made by a young person arrested during the protests.

In 1990 the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders adopted a document called "Basic Principles on the Role of Lawyers". Paragraph 18 states that ""Lawyers shall not be identified with their clients or their clients" causes as a result of discharging their functions." That principle needs to be understood and accepted too.

These are some of my misgivings for the year to come. I hope that they do not come to pass. If they do, I believe I can assure the Chief Justice that the Bar will, as always, assist in helping the Judiciary discharge its solemn responsibilities under the Basic Law.

I wish you all better fortune in the Year of the Rat.

Philip J. Dykes, S.C. Chairman Hong Kong Bar Association

January 2020

圖源: 立場新聞

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