奇法異律

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某日在互聯網上看到一篇涉及台灣(好像是宜蘭縣)法院就一宗非禮案作出裁決的報導,不但令我笑得人仰馬翻,更叫我對台灣法官判案的邏輯感到匪夷所思。案情指一名女士到百貨公司搶購減價品時,遭被告人施以祿山之爪,但法官最後的裁決是基於被告人雙手接觸受害人雙乳的時間太短,所以不構成非禮。嘩,我真想問問這位青天大老爺,是否要被告手舌並用含吹舔啜受害人那對圓渾的雙乳一番,方算非禮。在香港,只要被告人在未經受害人同意下以自家身體或任何媒介--如強迫受害人脫光衣服並以相機拍下照片亦算非禮--接觸受害人,已足以構成非禮,時間長短根本不會是法官考慮的因素,只要有關行為在正常人的角度有非禮成份,則已足夠裁定非禮。在R v George[1956]Crim LR 52,被告人被指藉替女顧客穿鞋而獲性滿足,但Streatfeild J.卻在判詞中指出﹕

an assault became indecent only if it was accompanied by circumstances of indecency towards the person alledged to have been assaulted, and none of the assaults (the removal or attempted removal of the shoes) could possibly amount to an indecent assault.

而在R v Court [1988]2 All ER 221,被告人強行脫去事主的衣服,並用手打她的屁股,上議院則指:
Those very facts, devoid of any explanation, would give rise to the irresistible inference that the defendant intended to assault his victim in a manner which right-minded persons would clearly think was indecent. Whether he did so for his own personal sexual gratification or because being a misogynist or for some other reason, he wished to embarrass or humiliate his victim seems to me to be irrelevant...To decide whether or not right-minded persons might think that the assault was indecent, the following factors were clearly relevant: the relationship of the defendant to this victim, how had the defendant come to embark on this conduct and why was he behaving in this way...

最後這名對打屁股有特殊癖好的兄台當然要鎯鐺入獄,既然他從打屁股獲得性滿足,那有關行為自然構成非禮罪。打人屁股者,自然應該被人通櫃,真是天理循環報應不爽。

有點值得注意的是,"consent"(即受害人的自願性同意)是任何性罪行的重要元素,只要能證明受害人沒有予以同意,則罪名(不管是強姦或非禮)一定成立。儘管事主的同意是被騙取的,亦不會削弱同意的自願性,即是“叫雞唔俾錢”絕不構成強姦,因為由始到終事主都同意跟被告發生性行為。(R v Linekar [1995]3 All ER 69)

台灣論法治,實在跟偉大祖國沒有兩樣,縱使有部看來法規完備的六法全書做綱領,但有這樣的盲官黑帝顛倒邏輯,哪有人對他們有信心呢?(以下煩請高人指點)但對法律有點認識的我,亦時常慨嘆普通法跟大陸法(Continental system)(1)相比,有時也屬五十步笑百步。就拿贍養費為例,我至今認為在男女雙方已經濟獨立的廿一世紀,離婚為什麼還要好像被分身家般向另一方支付贍養費呢?而且即使對方跟別人通姦,亦不會影响其申索/苛索贍養費的資格,說得難聽些,就是要“貼錢俾人養契家婆或契家佬”。相比之下,偉大祖國的婚姻法就比我們的進步得多。首先按照他們的法規,夫妻可在婚前訂下協議,把雙方的財產分配好,則可免除離婚時被分身家的隱憂。另外他們的婚姻法第四十六條指出,因重婚、有配偶者與他人同居、實施家庭暴力或遺棄家庭成員等而引致離婚,無過錯的一方可請求賠償,反過來即是說,有過錯的一方便喪失向另外一方索償的權利,這我覺合理之極。難道頭頂戴上綠帽後,還要花錢養老襟?

講完兩岸三地,不妨講講la belle France法國。今年是已故威爾斯皇妃逝世十週年,原來當年間接導致這美人意外身亡的一群法國記者,曾遭巴黎檢察廳以目睹意外發生卻坐視不理(好像叫「見義勇為條例」)的罪名控告。法國人生性是不愛好管閒事或任俠好義,我不得而知,但這條法例好像有點不近人情。在普通法的原則下,根本沒有良善撒瑪利亞人的概念(Good Samaritan Rule),即你沒有路見不平拔刀相助的責任。但若一旦你自告奮勇救人於危難,則表示你已承擔了某部份的法律責任,假若傷者因你的疏忽而身故或傷勢惡化,則苦主便有權向你進行民事侵權申索(tortious claim)。一般來說,只有公職人員如消防員、救護才有責任去救急扶危,但即使他們在遇到意外時袖手旁觀,導致傷者因失救而死亡,他們亦只會被控告刑事失誤(criminal misconduct),而不是誤殺。


註:
1. 據我所知,現時世上的法制可分為四大類﹕普通法(Common Law)、大陸法(Continental Legal System)、共產大陸法(Communist-Continental System)及伊斯蘭回教法(Islamic Legal System)。而不少普通法及大陸法的概念皆源於羅馬法(Roman Law)。

16 留言:

道士 說...

socialist law = 共產大陸法?
hindu law 呢?

"打人屁股者,自然應該被人通櫃" 你D 羅輯都真係好強橫。清官難審家庭事﹐把感情扯入法律﹐絕對沒有什麼可說合理﹐兩人要在一起開始就已經不是怎麼理智的決擇。看看美國把divorce court搬上電視作鬧劇﹐還真誨辱了人性和婚姻。

美加都有good samaritan rule, 我亦曾經刻意唔考救生牌﹐因為我不想有種生命的責任在手上(我因此對某些好醫生還真佩服的)。譬說隔籬檯哽親﹐我可毫不考慮幫佢做體外壓和扣喉﹐但係如情況惡化﹐要決定插唔插穿咽喉呢? 嘩﹐真係點搞? 可能﹐如果識的人﹐膽粗粗我都會做﹐但係就唔想因有法律責任而去做﹐救不到來個誤會動作導致死亡就大劑。嘻﹐法律真的很破壞人身自由呢。

哈哈﹐還有次在酒店大堂見兩人狼狽得很﹐個女人猛指著喉嚨﹐做了兩下體外壓就通了。嘻﹐事後才覺好笑﹐看當時情況﹐以我估計她卡在喉中的是個避孕套。

十一郎 說...

The "Good Samaritan" Law which protects first responders from getting sued for helping, would not apply in this situation, because performing a procedure such as this without proper credentials would be considered gross negligence.

Y.T. 說...

(1)
左冷禪"時常慨嘆普通法跟大陸法[...]相比,有時也屬五十步笑百步。" Which I think can scarcely be surprising, if we take such labels as "common law" and "civil law" to be general descriptions only of the way, articulate or inarticulate, conscious or unconsicous, of generating, organizing, prioritizing, harmonizing, and applying legal rules and principles (including historical experience found in precedents or "jurisprudences") in certain space and time: a "common law" mode of creating law and deciding cases may create bad law and render unjust decisions, no less and no more, without further specification, than a "civil law" mode may. The funny notion of consideration in "common law" contract doctrine, often amazed at by "civil lawyers" trained in the more natural notion of causa, indicates that there is no reason why "common law" should a priori be superior.

It is often suggested that a "common law" system distinguishes itself by its noble submission to the tyranny of precedents and to the tyranny of the common man (the juror). The first sort of submission is, for many observers, more a traditional adjudicational practice than an articulated statutory injunction. Legal scholars (at least in the US, with which jurisdiction I am a little more familiar than with the English) having long searched the legal basis for "stare decisis" have found little to recommend. In fact, a court is theoretically not bound by its own past decisions--and the US Supreme Court has obviously over-ruled itself many a time.

On the European Continent, we have legal studies of, say, the Cours de cassation in France, showing that those high justices, kept as they on the bench, and the lawyers on the floor are from discussing jurisprudences openly, do, for practical need, take them into consideration when they deliberate in their chambers. So, even though on the face of it the French proclaim daily the evil of the tyranny of precedents, in practice they really cannot live outside the shadow of the past. But this is all too natural: How can a legal system maintain stability and service predictability if it having rejected all relevance of the past, must rely only on the feeble props of deductive reasoning, whose "gaps, conflicts, and ambiguities," long highlighted by the French (!) legal theorist Francois Geny, may well turn adjudication into little less than a big guess-work?

(2)
If the labels "common law" and "civil law" should be taken with a grain of salt in any attempt to evaluate the content and performance of any given legal system, I should like to add that the grand division of various modes of generating etc. legal rules and principles in the world into two or three or four broad categories must call for yet more prudence. How "common law" for instance is the US federal and state jurisdictions? Setting aside Louisiana, we still find a great many volumes of statutes deciding the fate of citizens; hence the sometime need to say, this is a "common law" action, and that a "statutory" one. The codification of "common law" principles, sometimes authoritative and sometimes only recommendatory, has led not a few observers to worry that the displacement of common law by statutes would eventually lead to its extinction. Well, even if not, to what degree may one continue to describe the various jurisdictions in the US as "common law" rather than, say, "mixed"?

The notion of the "common law" in the West has evolved over the centuries. Before the English saw themselves as possessing a distinctive body of law called "the common law" in opposition to the law traceable to thoughts and categories in the ius civile romanum, there throughout Europe we found: Roman law as learned law (though rarely applied in practice in the Catholic West), feudal law (pertaining especially to seignorial rights and duties, etc.), ecclesiastical law (i.e. canon law, pertaining to marriage, inheritance, various moral crimes, church property, beneficies, etc.), royal law (proclaimed and enforced by the king as highest feudal lord in the realm), customary law, the law merchant, other usages and corporate rules, law of nations (ius gentium), and various notions of "natural law." It was, to say the least, a mess. What system of law would one call it? I for one can hardly think of a label that is at once comprehensive and informative.

Moving away from the West (or West of the West, because in thinking of the West we often ignore the "Orthodox West" where knowledge of ius civile romanum had a living presence, though not, I suspect, uncontaminated by Germanic, Slavic, and Islamic influences), we must graciously overlook Africa, but remain content to single out such legal traditions as tribal Arabic (which is not the same thing as Islamic jurisprudence, which in turn is different from the Shariah), Islamic jurisprudence, Shariah, tribal law of various Hordes in Central Asia, and then, gradually eastwards, legal traditions in China. No doubt this is all before the age of transplantation, when French and German legal thought and civil codes were enthusiastically embraced and adopted by many less powerful countries since the mid-19th century. And yet, if we mean to distinguish systems of law chiefly on an instrumental basis, then we come back to the difficulties outlined in Part 1. Indeed, how informative would it be to be told that China is now a "civil law" country rather than a "common law" one? But if instead of an instrumental basis, we look to legal TRADITIONS, we must engage in a very involved investigation indeed. On an instrumental basis, it would make little sense to distinguish "civl law" from "Islamic law"; in terms of legal traditions, on the other hand, it would be too rough to lump everything together into "civil law" which does not sound "common law" or exotic.

(3)
Beyond the confines of national law, we have today bodies of international legal rules and principles regulating not a small part of social life in many places. In a way one might be tempted to suggest that those bodies of law seem to fall rather naturally into the "civil law" tradition: is codification not the key thing here? Well, if we look a little more closely at, say, the decisions of WTO advisory penals, there we find tons of references to, not only WTO rules, but also past decisions, i.e. WTO case law. Same thing for the International Court of Justice at the Hague. In fact, international law recognizes at least these four sources of law: 1. international conventions (treaties and agreements); 2. customary international law; 3. pre-emptory norms (jus cogens, so-called "general principles of law recognized by civilized nations"); 4. opinions of publicists (opinio juris, so-called "teachings of the most highly qualified publicists of the various nations"). Again, there is an (albeit prioritized) mixture.

(4)
There is no denying that description requires categorization. We cannot, as a matter of need, dispense with the general labels "common law" and "civil law," however much complicating and blurring of the categories we might be able of effect. Yet as such the labels are but labels; in various circles and in various talking parties (called discourses) they denote and connote somewhat differently. My ignorance of Islamic legal traditions (though whose once tremendous influence, e.g. on Maimonides, and through him later legal thinkers on the Continent, I would be the last to deny) keeps me very aware of the fact that in categorizing the legal world, past and present, I must work under very partial information. Even within the West, moreover, I cannot answer the challenge: Is there a Russian legal tradition distinct from the French legal tradition, such that the label "civil law" ought to indicate no more than family resemblance? One might counter that "common law" and "civil law" are just pure types, which we will certainly never find in the real world. But the question is not: How pure is the world? but: What signification a pure type has, and to what use ought we to put it? Viewed this way, we may yet again conclude that in certain areas of social life this "common law" rule or principle works better than that "civil law" rule or principle does. In picking and choosing, however, we may run the risk of destroying the coherence of a legal system--can we dispense with the doctrine of consideration completely in "common law" contract theory? Suppose we could; and one day we replaced that doctrine with the doctrine of causa extracted from "civil law" contract theories. Would the legal system in question become then a little less "common law" because of this doctrinal reform? Or should we say that so long as the two tyrannies reign (see supra), the system remains not an inch less "common law"?

The easy way out is to call every legal system "mixed": just as one would politically correctly call every society "mixed" (neither capitalist nor socialist, but both). I do not mean to recommend this easy way; for the label "mixed" would certainly be even less informative than "common law" and "civil law." Again, labels we must use--only that they are often more tricky than we normally believe.

倉海君 說...

道士,

左兄唔識打中文,佢次次d文都係我幫佢貼嘅。當然,世界無咁便宜嘅事:我既然幫佢打得(其實中文多數係可稱為good Samaritan嘅家母打,因為佢比較快),自然有權加幾句落去玩下--呢D邏輯仲強橫。我見你一向咁欣賞左兄嘅"通櫃情意結",咪好慷慨咁加多句囉。我只係加左呢句,估唔到你就提及(證明你真係好欣賞)。最邪係,最後幾行我趕住瞓費事加英文名稱,以為中文都夠清楚啦,點知你又問。

你好似有天眼通咁樣千里監督,睇嚟我以後真係要一字不改/漏咁打。

狂人 - Paul Sin 說...

哈哈哈……笑到眼淚都流埋……雖然:
"Qui facit per alium, facit per se"

但,倉海君,左兄還是可以跟你索償架噃
:D

BilDub 說...

左兄, 想請你指教另一件案件:

"青年與15歲同志肛交 同居不堪分手 小男友自殺揭發" (http://hk.news.yahoo.com/070913/12/2flvc.html)

1. 文中"法官彭偉昌說,本案案情突兀", 而蘋果日報(http://appledaily.atnext.com/template/apple/art_main.cfm?iss_id=20070914&sec_id=4104&subsec_id=12740&art_id=10152339) 則寫"法官彭偉昌對本案表示驚訝,直言:案情相當核突"。我想求證當時法官究竟是用 "突兀" 還是 "核突" , 請問應在何處求證?

2. 讀邁克專欄 "肛交有罪" (http://appledaily.atnext.com/template/apple_sub/art_main.cfm?iss_id=20070917&sec_id=38167&subsec_id=38173&art_id=10161850&cat_id=4924614&coln_id=4924617), 他問了一個我也想問的問題: "法庭不但公開被告姓名,也不阻撓傳媒在版面刊登照片,這豈是愛護未來主人翁的方式?" 印象中, 普通法有保護未成年人士的條例, 即如涉案人士未達某一歲數, 則報導不能透露姓名, 之類。請問這條例以哪個歲數為限?

3. 這條例是以涉案人士被控時的年歲計是嗎? 即如被告犯案時 "未夠秤" (在條例保護範圍內), 幾年後(不在條例保護的範圍內)被控, 則報導就可透露他/她的名字, 是嗎?

另就上文, 如 "叫雞唔俾錢" 不構成強姦, 那在普通法下, 應從甚麼角度控告那個人渣? 用 "毀約" 行嗎?

及, ""consent"(即受害人的自願性同意)是任何性罪行的重要元素...儘管事主的同意是被騙取的,亦不會削弱同意的自願性"。是否不論以任何方式的騙取, 只要事主曾有任何形式的同意, 則 "自願性同意" 便成立? 需要證明此 "同意" 是在清醒的情況下確立嗎? 舉例, 若事主遭灌醉, 在神志不清的情況下曾同意性行為, 這樣可以強姦罪控告被告嗎?

又, "同意" 在法律上等同 "沒有不同意" 否? 舉前例, 事主遭灌醉, 在神志不清的情況下沒有不同意/沒法不同意性行為, 這樣可以強姦罪控告被告嗎?

十分謝謝你的回答。若以中文回應, 則一併謝謝倉海君/倉老夫人代鍵。

道士 說...

Thank you YT for the extended comment on law systems.

And, I should apologize to 左兄(although subjectiveness accent one's character.)

嘻﹐倉兄﹐估唔到有"通櫃情意結"個原來係你。

bildub, 令人心傷的新聞。你上面問題我就留俾專業人仕啦﹐但係講到"叫雞唔比錢"﹐賣淫就本身犯法﹐點告? 咪揾D 睇場打佢穫咯。唔﹐其實﹐單案真係唔知點講﹐我不如講講某些人的同性經歷﹐不過當我說夢話就算數﹐以免又牽上什麼刑責。

話說某人當年十九歲時都係識了個十四歲的少年﹐當時十四歲的少年為了支煙卻說謊話自己十七歲﹐少年的公公婆婆就住在隔鄰(過兩間屋)﹐結果兩人不到兩星期就打得火熱﹐也開始拍了年幾兩年斷斷續續的長跑。後來當然知道了年紀﹐但是時間是不可倒轉的﹐都開始了﹐難道要禁慾到十六歲? 廿一歲? 就算成人世界的愛情也是如此盲目﹐何況兩個熱血的青少年呢? 當中的關係如兄長﹐也有點如老師﹐情侶的關係也自然少不了。我不相信有任何一方﹐是為了性或利益才在一起(可能構成一小部份吧?)。男孩的父母真的全不知情嗎? 也不是的﹐試過一起整家人邀了某人一起去旅行。兒子乖了﹐成熟了﹐功課有人指導﹐又常常要求每星期五﹑六就到某人家中過夜﹐見到孤獨的兒子開朗起來﹐不會猜踱背後的行為吧? 雖然最終的收場也很惡劣﹐曾經也想過要把對方挽留﹐不過當時未足夠成熟的心智只把情況越搞越糟。成年人往往以為自己在保護孩童﹐但有時所謂保護比外面經歷成長的挫折傷害更深千萬倍。其實﹐某人對這件事反思過百次﹐兩人中間要多少年才應是罪? 如果一開始知道了年紀會否作不同的決擇?

又再說另外一段更長的同性長跑﹐兩人由小三﹑四就是好友﹐到中二﹑三發展成情侶。中間離離合合﹐在外面新的感情失意﹐可能又回都對方身邊休養﹐以我所知都十八年關係。難道有要在意什麼"肛交法"? 太多人﹐思想只放在條屎度﹐有時看了也不知該覺好笑﹐還是可怒。但當無知的是大多數﹐又可如何?

像美國的Mary Kay Letourneau案﹐女方坐了七年幾監﹐但是兩人卻生了兩個女﹐並決心結了婚﹐是像世界一樣大叫侵犯兒童﹐還是世界不斷侵犯兩人的世界? 以前有錢人家就為個未夠三歲的找個大好幾年的童養媳﹐是剝奪人權還是養活多一命? 太多沒有問題的答案﹐太多紛亂的情感。咦﹐其實我也說得太簡短了﹐很多細節也沒及說﹐另外這刻又還想到另外三人的故事﹐但全部也太長﹐日後有機會才寫吧。

BilDub 說...

道士兄:

"賣淫就本身犯法﹐點告?" - 法律上點告, 我不知道, 只知道 "阿兒是一樓一性工作者... 性交期間,那人突然一手按她雙手,一手按她的口,強行肛交,還咬她的腰、肩膊、手等,她邊流淚,邊竭力掙扎,約10分鐘後才能推開他... 阿兒至今仍忘不了警署內一名警員一臉輕佻的說話﹕「唉!做得呢行,搞咁多做咩?」後來不少行家亦認為她不應報警,「她們說為何要把事情弄大為?只會令自己無生意」。" (明報08月26日:http://hk.news.yahoo.com/070825/12/2ed85.html) 我當日睇完呢段報導真係想哭, 淨係copy呢段出來已經想嘔。令人心傷? 我認我唔化, 我真係好心傷同憤怒。

On 經歷一:
1. 家長們輸打贏要。
2. 在中國人社會, 十分八九的同性關係若去到"家長"層面都是惡劣收場。
3. "有時所謂保護比外面經歷成長的挫折傷害更深千萬倍" -- 十分認同。
4. 某人不用反思, 只需問自己有否真愛過便行。真愛, 沒有罪。任何人, 不論性別, 都愛過, 分過, 痛過。煩請你轉告某人不要把"愛"與"法律"混為一談, 因為這完全是兩碼子事。若他們真心相愛(過), 他們不會因為可悲的法律而變成是錯的。

真愛是純潔的。真愛跨越性別, 年齡, 國籍, 家世, 宗教。

法律保護未成年兒童免受性侵犯, 出發點我是認同的。但我不認同條例內文, 男男未足21歲不准肛交絕對是歧視。

On 經歷二:
1. 有這樣的soulmate, 他們真令人羨慕。
2. "但當無知的是大多數﹐又可如何?" -- 和無知的人爭辯, 是自貶身價的行為。他們這樣幸福, 不用理會外人。

On Mary Kay Letourneau案:
1. 天! 現在犯了法, 會這樣被人查家宅, 登埋相, 被post上網通傳後世的麼? 如果將所有強姦犯這樣處置, 等他們呢世都搵唔到嘢做, 去到邊都人人喊打, 又唔錯。
2. 若孩子成年後與Letourneau結婚, 而人們還要說三道四不斷炒作, 那就是世界不斷侵犯兩人的世界。
3. 印象中, 香港的法律, 強姦並不適用於女人作主動身上。若同一案件發生在香港, 不知應控告甚麼? 希望左兄若回應我之前的提問能一併回應這個, 謝謝。

另, 道士兄你不是遠行麼? 其實我有些事想請教你但不能留公開message, 又怕你沒空... 若你這星期有空請電郵我: bildub@gmail.com. Thanks a lot.

舒爾賽 說...

好多一樓一其實無keeper睇,我都聽聞有唔少友仔叫雞唔畀錢,不過通常一般有keeper的妓女唔怕被人走數,因為好易被人打柒。所以另一樣高危行業係援交妹,同樣地有好多係晌網上搵客,如果遇著變態佬又或者叫雞唔畀錢的友仔,好危險。

第二個係,我覺得同性又好,異性又好,點解d法例咁歧視?中國尤其是清朝,男狀元同相公結婚更成為美談,點解香港d人有所謂的世界觀,只係錢?反而呢d思想咁落後?我覺得香港d法律應該改改佢啦。兼且都好希望香港唔好成為一個無文化又集體被人洗腦的原教旨主義國家

舒爾賽 說...

O, SHIT, 講左香港做國家,遲早實被人叉多條分裂國家罪。

左冷禪 說...

I am quite taken aback by the comments posted in response to my latest article. Perhaps I shall just causally say a few words:-

道士, thanks for reminding me of the Hindu legal system. Of course it does exist but it is hardly the recognized legal system in India. Owing to the British rule since the 18th Century, India is and was an English Common Law jurisdiction and believe it or not, according to our Basic Law, the judgments of the Indian High court is one of the persuasive precedents to our judges, though to the best of my recollection, I have never come across anyone relying or citing an Indian Case as authority.

Bidub, thanks for your posting but I am not an expert in anal sex law, so I can’t comment more than I know. But let me explain that according to the law on sexual discrimination, if a girl is allowed by the law to have anal sex with a man at the age of 18, then disallowing a man to have anal sex with a man is already a discrimination. Usually judgments handed down by court are written in English. In a case as such, there must be a written judgment after the judge has given his verbal ruling. In some cases, the original version of the judgment would be reported in our legal journals namely, Hong Kong Law Report & Digest (HKLRD), Hong Kong Cases (HKC), Hong Kong Criminal Law Report (HKCLR), Hong Kong Court of Final Appeal Report (HKCFAR) etc, so long as the judgment itself has legal significance and impact to the legal system. Sometimes they will just become unreported cases where they are stored in the form of loose-leaf in the law library at High Court and law school libraries. Nowadays you may also find some of the cases posted on the website of the judiciary. Normally I don’t trust those Chinese translation of the local press in relation to legal judgment. In relation to the confidentiality to the offenders’ identities, as far as I know only in the case of Juvenile crime would be tried ‘in chambers’, instead of an open court. After all justice has to be done and seen to be done, especially in a case where concerns public interest. In some occasion where may involve an underage giving evidence, the court may order the examination to be done through the CCTV. Or it may be requested by the lawyers. A criminal case is seldom tried in chambers. Sometimes the court may exercise discretion to dismiss the prosecution in special circumstances. I remember many years ago, Mr Justice Woo at the Court of First Instance, as he then was, ordered the dismiss of a prosecution on rape owing to the inability of the mentally-handicapped victim to give evidence and his endeavour to avoid further embarrassment on the victim during cross-examination. While his motive behind was of good faith, it attracted severe attacks from the press in particular. If the age of the offender is too young, he may not be prosecuted in the first place by virtue of the principle of Doli Incapax.

I have never seen anyone bringing a civil action on contract claiming money earned by prostitution. Although prostitution is not illegal according to HK law (while it is illegal to solicit in public)(contract could be void on the ground of illegality), it would be quite daring for the court I think to uphold an immoral agreement. If you doze a female with drug and rape her, that would be of course a case for rape since there is no consent given. It is interesting to note that if the offender himself is not conscious, he will not be found guilty of rape because the mens rea for rape like that of murder, robbery etc is a specific intent (DPP v Majusovski).

YT, you are really a scholar on jurisprudence, a subject that I know least among all. I remember Jurisprudence is the only subject I found boring and never bothered to study hard when I read law. I can’t agree with you more that common law sometimes is just a label, and it gives no higher status to other legal system. But ever since the Norman Conquest in 1059 (I guess), the common law system has evolved to be a comparatively reliable system to uphold law and order in both the public and private sectors. And with the intervention of the law of equity from time to time, the rigidity of the common law is lessened to some extent. You may disagree but I think the Stare Decisis has its rationale behind. Besides, this principle ensures a certain degree of stability in our legal system, especially in the case of sentencing where the higher court would hand down a tariff for sentencing a particular crime like robbery for instance. It is impossible for any law-maker to anticipate what would happen after ten years time, not to mention 100 years. Yet you may find our society evolves often much ahead of our law. For example transaction on internet emerged much earlier that our Electronic Transaction Ordinance. And sometimes we need the case law to supplement the ambiguity of our legislation where it gives no mention to. For example, it was once an English law that a husband could not have raped his wife, as provided in Sir Matthew Hale’s Pleas of the Crown and sadly this had been the English law until 1992 when the English House of Lords and the later European Court of Human Rights ruled unanimously in the case of R v R that husband needs his wife’s consent if he wants to have sex. Although the civil law training requires their students to study philosophy in order to have a better mind to draft legislation, yet how could a mind of 19th century anticipate what the society would be in the 20th century. Another typical example would be the law on Intellectual property. Back to the age when legislations on trademarks and copyright were unknown, the common law principle of passing off did resolve some problem of representation of falsehood made by a person in the course of his trade to his customers, inducing them to believe he is not what he actually is to the detriment of somebody’s reputation.

In relation to Public International Law, I think it is less authorative than it sounds. The UN Charter is nothing more than just a piece of document and could hardly restrain big nations like the US. For example in the case of Iraq, Bush simply violated all the principles governing the use of force, as there was hardly any threat posed by Iraq to her. Her use of force was not justified by any provision in the UN Charter, but nobody holds her punishable. With respect, I think Public International Law has no practical value, other than being a scholastic study in the ivory tower and provides an opportunity for holding the Jessup Competition.

haryewkun 說...

很难说法官这样判决有没有理由根据……因为必须要把“故意非礼”和“无意碰触”这两者分开来。

如果说只要“男性的手碰触到女性的乳房”就形成非礼罪,那么地铁人挤人的时候怎么办?

Y.T. 說...

(1) First, something particular. In your - 左冷禪's - original post, you remarked that: "有點值得注意的是,"consent"(即受害人的自願性同意)是任何性罪行的重要元素,只要能證明受害人沒有予以同意,則罪名(不管是強姦或非禮)一定成立。儘管事主的同意是被騙取的,亦不會削弱同意的自願性,即是“叫雞唔俾錢”絕不構成強姦,因為由始到終事主都同意跟被告發生性行為。(R v Linekar [1995]3 All ER 69)" Which led Bildub to raise a crucial question: "又, "同意" 在法律上等同 "沒有不同意" 否? 舉前例, 事主遭灌醉, 在神志不清的情況下沒有不同意/沒法不同意性行為, 這樣可以強姦罪控告被告嗎?" (See supra)

"神志不清" nullifies the precondition of consent, namely, the capacity of effecting a free act of the will. A drunken woman is, in the eye of the law, no more capable of this than a sleeping beauty is--unless she having foreseen the possibility of getting drunk, willingly let herself be, or even be made, so.

More interesting, however, is, if I remember correctly, the question, whether consent need be express. The old law in many states in the US allowed that the crime of rape consisted in two key elements: 1. "by force" and 2. "contrary to will." The latter meant that a defendant could not be convicted of rape unless the alleged victim could prove that she (usually a she) had expressly objected to his sexual advances; absent such an objection, then the defendant must be acquitted, even if the alleged victim could show that she had never expressly consented to having sex.

The old law has gradually (first, I think, in Virginia) been replaced by a new one, allowing no presumption of consent, but rather an affirmative defense (to be raised and proved by the defendant) that the alleged victim had expressly consented to having sex with him. This of course puts the male sex in a very disadvantageous position: so now Adam must, as a foreplay to the foreplay, ask Eve, each and every time, for a yes or no to his corporeal longings, lest Eve, feeling guilty after the act, declare that she had actually consented to nothing? The thought might be a little unrealistic, given the prevailing sexual culture in HK; but I cannot be sure that no woman would not sometimes exploit this legal provision to her advantage, pre-sex as well as post-sex.

(2) Now, something more general. I certainly never hold that stare decisis is necessarily a bad doctrine. As I remarked previously, even a "civil law" system, like the French, will, in practice, seek to achieve stability and predictability by harmonizing, albeit not openly, judicial decisions past and present. I only meant to suggest, in my discussion of the doctrine in the US context, that stare decisis has in fact no legal basis other than a time-honored habit, much like many parliamentary practices in Westminster whcih are never written down, let alone proclaimed. If the "common lawyers" operate according to stare decisis without ever proclaiming it a rule of law, the "civil lawyers" -- or "civilians" -- operate under its surreptitious pale, despite official proclamation to the contrary (the French Code civil provides that ONLY the code is authoritative). This irony I meant to use to show that the labels "common law" and "civil law" are, even on this key issue, not as informative as they might appear prima facie.

The evolution of the English common law is too big a subject for me to say anything confidently. But my impression is that the English (by which I mean simply the dwellers on England, who might historically be Anglo-Saxons, Romans, Danes, French, etc. etc.) did not come to see their legal system as distinct from those found on the Continent until a good few centuries after the 1066 Conquest. Roman Law was studied and taught in Oxford at a time when the subject was much in vogue on the Continent. Taught, not necessarily applied -- again, same as on the Continent. There is always the impression that the revival of Roman Law in Bologna around the millennium had an immediatel impact on legal practice; which is not true. Roman Law became a learned subject for scholarly debate, but legal practice remained very much as it was. There was once an opportunity for receiving Roman Law in England; but eventually it suffered a different fate from that it had on the Continent.

The emergence of Equity was largely a result of jurisdictional conflict. It was not, I hold, a contemplated attempt to "improve the law" or "soften the harshness of the common law" which had become increasingly rigid and formulaic.

Equity is not, as some might suggest, a more humane law, a more fluid law, something vague, amorphous, better-suited to the times, etc. Equity is first and foremost a matter of jurisdiction and procedure. Over the centuries, the Chancellor, in whose office was Equity born and given a bright future, has tried, no less arduously and skillfully than his counterparts (and often rivals) at the King's Bench or the Court of Common Pleas, to circumscribe various actions allowable in equity. So increasingly, an action in equity is just another cause of action, like an action at law: the plaintiff has to prove various elements, and the court to rule in their light. In the 20th century, when in many common law jurisdictions Equity no longer enjoys a separate court, the law-equity distinction becomes daily more a matter of historical interest. Well, we still speak of expected damages as an action at law, and reliance an action in equity; but it would not matter if we simply regard them both as legal actions allowed by the current legal system.

This understanding of Equity (primarily a matter of jurisdictional conflict and procedural difference in the old days) sits uncomfortably with the (more philosophical, though perhaps rather ahistorical) understanding of Equity as "softener of the harshness of the common law." In English jurisprudence, there is always the tendency to read into the rise and persistence of Equity some sort of Aristotelian wisdom, that the law being general, cannot deal with the particular in full justice without some adjustment at the rendering of each judgment. The wisdom is of course true: even the "civilians" would not deny it. But the question is, to what degree was that wisdom the true cause of the rise and persistence of Equity in England? Why can't well-established actions in equity be simply absorbed by the common law, if "improving the law" be the ultimate object? To what degree ought we to say, that the law is not equitable, and equity not legal? What sense can we make of statements of this sort, except that the two compartments are really separated, historically, by competing centers of power?

Again, I raise no objection to the need of adjusting the law whenever blatant injustice would result from its rigid application. This need of equity, however, is, I maintain, not what gave rise to the two contending labels Law and Equity in English legal consciousness. And the civilians would be quick to argue, that they too know of equity, albeit not in a capitalized form. The civilians have of course their own penchant for interesting categories--their law books are filled with notions of "subjective X" and "objective Y"; their obsession with analyzing everything through the category of the "legal act" compares not particularly favorably with the common lawyer's urge to find in every contract a "bargained-for exchange," or in every criminal act something that can be taken as the "mens rea."

American jurists had, in the first half of the 20th century, gone from the extreme of trying to deduce everything from legal concepts (think of Langdell's conceptualism) to the other exreme of seeing all legal concepts as epiphenomenal, superfluous and therefore dispensable (for a beautiful example of this line of thinking, see Alf Ross, "Tu-Tu,"
70 Harvard Law Review 812 (1957)). The half-century long debate was concered about legal thought; but the same arguments, pro and con, can be applied to social linguistic practice in general, which strikingly will bring us back to the question of the use (and abuse) of general terms we discussed on another occasion (see my responses to 倉海君's recent posts). It is precisely this connection that enables Ross to start his article as an anthropologist but end as a legal philosopher.

Ross's article has, admittedly, little to do with Equity. But from a broader perspective, the modern understanding of Equity, shaped as it is by English legal history, may be seen as one (perhaps quite effective) way of classifying social dealings and managing legal obligations. What if one day we completely abolish Equity? We can certainly abolish Equity as a mode of classification, without abolishing the legitimate need to "soften the harshness of the law" as occasion dictates.

Savigny, the German jurist from whom Austin the English learnt, declared that what ultimately guarantees the integrity of law is not law, but man: without good men to fill the benches, no good law could ever work its magic. A society enjoying the rule of law enjoys in fact the good fortune of having trustworthy men to fill the benches, and the good habit of trusting that they would over the long run decide cases justly. I am not advocating the rule of man; but in some deep sense the rule of law does depend on the rule of man--a delicate social equilibrium which is not easy to achieve (witness Italy!)

The recognition that law requires equity--not Equity--mirrors this Savignyan wisdom that the rule of law requires the rule of man. To the degree that no general law can stipulate precisely how the judge should decide each and every case, he must be allowed to exercise discretion; to the degree that a just legal order must accommodate this sort of discretion, it must look for judges capable of exercising it wisely (sometimes even politically wisely, I would add).

This thought leads me to conclude thus: A judge is to be praised not only for applying the law corretly, but also for applying it judiciously, even though praising this latter achievement may come dangerously close to praising the rule of man. But why not? The judge who has decided wisely deserves, to my way of thinking, to be praised; unless we be so cautious as to seek very much uncautiously only mechanistic judges, to the detriment of the delicate equilibrium we might have otherwise achieved, or be on the road to.

Much about Equity and equity; let me turn lastly, and briefly, to:

(3) Public International Law
I concede that PIL has little bite whenever the Great Powers are involved. This is political reality, unless one day the UN be turned into a World Government with its own forces. And yet, PIL is sometimes quite useful for mobilization purposes. It is hard to gauge the concrete effect of this sort, but unless it be at least of some use, we would be hard put to explain why political actors around the globe - from state politicians to NGO activists - all try to buttress their case in legal terms (betimes by ingenuously re-interpreting old rules and principles).

One school of PIL sees it chiefly as part of a legitimation enterprise: international lawyers, judges, and tribunals, national governments, private organizations all try to shape various discourses, to affect people's perception of certain things. In the 20th, and now the 21st, century, international political conversations, no less than their national and sub-national counterparts, have increasginly adopted the legal language (think of the language of "rights" rather than of "the common good"). Even the Dalai Lama, just to instance this, must have his legal team to inform him of the consequences of various legal instruments consummated in the past, or to be consummated in the future. On the international scene, the Diplomat has gradually ceded pride of place to the Lawyer.

The judicialization of political conversations is perhaps not entirely modern. The Pope's envoys, in the Age of the Inquisition, knew his master's rights well to the last item. But in a way political discourse in the post-war period has evolved indeed quite differently from it had in the Age, say, of the English utilitarian reformers. This change gives PIL a happy come-back: today every one interested in talking on the political stage had better learn the legal language. It is amazing to read, in David Kennedy's recent book "Of War and Law," of how thoroughly "legal-bureaucratized" the US Army has become--even when operating in the Gulf! The massacres may have given a different impression; but to take it as the whole picture is as if to take a handful of cases of official corruption in the HK Government as proof that that Government is not a legal-bureaucratic entity.

So the effect of PIL is subtle. It does not bite like a lion, but does sing like the sirens; and singing, they force you too to sing their tunes. The strategist might take this all to be a sham; or, better, a sham to be exploited; the masses are often swayed by the impressions these tunes create.

Law is Propaganda; and in this PIL excels. The Jessup Competition might be yet another happy occasion for international jurists to convince themselves that their discipline is not entirely irrelevant; at the same time it might also reflect a civic urge to train publicly-minded citizens in PIL speak (why not have a Cicero Competition for, not "public speaking," but public rhetoric?) Anyways, one competition does not prove or disprove any observation I want to make; to that extent let me refrain from piling arguments on this one single thing, as if I had seen the crux of the matter if yet another obsession of this already very competitive society. Good night.

倉海君 說...

--without good men to fill the benches, no good law could ever work its magic.

Savigny令我想起孟子所謂"徒法不能以自行"。

凡鳥雛 說...

好像有香港網民說賣淫不是犯法,經營及管有賣淫事業才犯法。

倉海君 說...

對,樓上左兄也約略提及此點:"Although prostitution is not illegal according to HK law (while it is illegal to solicit in public)"