近日好似充斥著離婚消息，先有活士老虎乸發現隻公不忠，嘈住要分佢一半身家，後有過氣三色公仔箱二線花旦被豪門老公拋棄，仲要話攞返哂層樓同鑽戒。我從來不認為離婚係一種罪，從法律觀點上，婚姻係合約的一種，其中一方犯錯如包二奶就等於毀約，另一方自然有權終止合約(即呈請 / 申請離婚，兼且攞贍養費(賠償)。最白痴，莫過於恪守埋D不合時宜既宗教守則，話乜教徒唔可以離婚。有次同一位教友討論呢個敏感嘅題目，我問佢 : 「咁如果你老公公然帶個女人返屋企做愛，甚至係你面前被條女口交，又或者被個老公虐打，發現你老公非禮自己個女，你都唔離婚 ? 我唔相信呢個會係一個慈愛既神想見到 ! 」
講到贍養費，好多人都有個錯覺以為只有女人先可以攞贍養費，但其實Matrimonial Proceeding and Property Ordinance入面話婚姻嘅一方party to marriage就有權攞贍養費，即係癩蛤蟆真係可以食到天鵝肉，只要隻蛤蟆肯放低自尊同埋夠衰格夠cheap。查實贍養費呢個概念，應該因為十八十九世紀時候女人冇乜經濟能力，如非迫不得已，都唔會同老公離婚，離咗婚又要食飯，咁就唯有問個死佬攞錢，但家吓女人隨時搵錢多過男人，除咗果批十指不沾楊春水嘅闊太外，個個都有獨立財政能力，駛鬼靠男人。至於男人老狗諗住食女人就仆街到唔駛恨，男人衰爛滾唔緊要，最無耻就莫過於食軟飯問老婆攞贍養費，真係影衰晒班男人。
另外，好多人以為離婚就老馮攞一半身家，咸豐年前英國有位法官叫Lord Denning發明咗隻叫one third rule，即係將兩公婆嘅身家加埋再除三，後來分到幾多就要視乎婚姻嘅長短，對家庭嘅貢獻，申請人的合理需要，因為離婚而遭受可預見的損失等一堆因素(Duxbury approach)，即係話你離婚前餐餐食開官燕，離婚後衰極都有血燕食。唔怪得已故新馬仔有句名言話女人唔到六十歲都咪比飽飯佢食。但到咗最近上訴庭班大帝唔知係唔係癡咗總掣，居然跟英國上議院(House of Lords) White v White [2001] 1 AC 596嘅判例，偏離咗Matrimonial Proceeding and Property Ordinance第6條嘅大原則，話既然兩夫妻一齊時候係預左D身家係共分，睇唔到乜理由離婚果陣唔係一人一半。大家happy時，攬住一齊瞓，俾哂你就梗係無問題，但响我最討厭你嘅時候，仲要俾錢你就勢係假。(有關判詞可見DD v LKW [2008] 2 HKLRD 523)
當然，有人會問可唔可以簽婚前協議(pre-nuptial agreement)，簽就梗係簽得，不過呢種協議唔能夠阻止任何一方响離婚時尋求法庭裁決，按合約法大原則，任何合約如果禁絕法庭同司法機關仲裁，就會因不合法而變成無效，即係簽咗等如無簽。另外，如果任何一方嘅身家响婚後有重大轉變，好似你婚前得100萬，婚後有100億，咁唔好意思，法庭有權當之前份協議冇簽過，另作安排。
講到尾，結婚係樣好搵笨嘅嘢，同玩碟仙差唔多，未玩過又好想玩，但玩咗之後又好後悔，驚比隻鬼纏住。在此以有限知識奉勸一句，要結就搵個同自己差唔多身家嘅，免得俾人搵著數。不過，要驚都唔驚得咁多，鬼叫你去做老襯咩 !
婚身家
暴力刑警
之前新疆武警毆打記者一事，越演越烈，成為大笑話，所以，講物「舉辦奧運」、「中國已經抬頭」芸芸都係得個講字，單單係官員可以隨意向市民施武力，又睜大眼睛說瞎話，就知中國依然係無法治無人權人命，賤過泥嘅落後地方。不過睇番我哋香港，又何嘗唔係「五十步笑百步」，前排咪話有隊警察响無搜查令(search wanant)嘅情況下，衝入新界一間村屋，話入邊有白粉喎，對入邊兩兄弟拳打腳踢，好似仲話打到耳膜都穿埋。
差人一般只有兩個情況下可以唔駛warrant入人間屋﹕(1) 差人响疑犯屋企附近截停佢搜身，有理由懷疑佢屋企藏有白粉，攻擊性武器等，就可以上佢度搜；(2) 又或者响非常緊急情況，如正進行犯罪活動或有人身安全要脅，否則嘅話一個人嘅屋企响法律上等如佢嘅“堡壘”，任何人包括皇帝都唔可以進入，呢個英國响光明革命(Glorious Revolution)之後頒布的Magna Carta中規定嘅國民權益，當中亦包括No custody without trial(未經審訊不可拘禁)，呢D都成為普通法內的部份，所以幾時都話鬼佬响法治上比我哋進步，幾千年，中國人今時今日仲稱呼自己為「老百姓」，而唔係市民或者公民國民，對領導對高官仲有個種逆來順受的奴性。
其實差人嘅古惑招又何止咁呀? 差人帶個犯返差館「調查」，最興帶個犯遊花園，隨便將個犯帶去另外嘅差館，實行玩捉迷藏。响尖沙咀海防道拉咗你，唔一定帶你去老尖差館，帶你去油麻地差館，等你屋企人唔知你去咗邊，揾唔到律師去保釋你，就算揾到律師都無用，因為個律師到咗差館一定要經門口個位Duty Officer(值日官)去聯絡個單案嘅主管，多數係幫辦或者督察，當個OC(Officer in charge)知道有律師嚟咗，就會扮唔係度，叫個Duty Officer用「拖」字訣，唔俾個犯見律師，因為個律師响度，就實聽物都問唔出，因為差館有明文規定，無許可不能隨處亂闖，就算係御用大狀亦無例外，咁就實行律師响下邊呆等，差人係上邊軟硬兼施套料，到個犯物都招哂，先至俾個律師見個客。
又有情況係入屋搜查(對付犯毒或嚴重罪行)一拉就全屋人拉哂，等親友無辦法揾人去營救個疑犯，更加唔好話揾律師。位位扣留48小時，疲勞轟炸一番，得番半條命，博你認番一句半句。
仲有最興半夜三更叫你去做ID parade(認人)，因為半夜三更好難揾夠演員，本來明文話班演員嘅身型一定唔能夠同疑犯有太大差異，但响咁嘅時間，揾夠演員至奇。又或者叫你摸黑去做案件重組，博你瞓唔醒講錯嘢。總之就係層出不窮。唔怪得話生不入官門，死不入地獄。
政治兩頭蛇－－評副局長、政治助理國籍事件
(憲法唔係我嘅專長，有乜錯漏多多包涵)
兩日前閒來無事做，開部電腦瀏覽一下圖書館網頁，赫然發現區區一個圖書館主任仔都要中英國語流利，要修讀過相關證書課程，又要有六、七年圖書館理經驗，嘩! 但係人工少得可憐，得萬三蚊，响咁嘅通漲年代，真係唔知夠買油定夠買醋。呢種正式係嗟來之食!
相反近日搞到滿城風雨嘅副局長政治助理，就動不動都十幾廿皮一個月，但係有咩學歷工作經驗就鬼知，除咗有一個係律師行合顆人同一個係大狀之外，其他係乜水，搞笑到連响老鼠園做管理都可以一人得道，雞犬升天，呢班福祿壽仲PK到玩雙重國籍，拿住本鬼佬護照响外國鹹豆都無粒食就學人耍回馬槍食回頭草都算，仲衰到想做官嚟管治我哋，仆街啦!
講到尾，有外國國籍嘅中國人可唔可以做高官? 根據基本法第44，55，67條行政長官，行政會議同立法會議員都唔可以係foreign passport holder，而第61條更講明特區“主要官員”都唔可以有外國護照，第101條更列明某些官員一定唔可以係假洋鬼子，道理一字咁淺，第一按照基本法的立法原意/序言(premable)，是意味着中華人民共和國响香港行使主權，實施港人自治(佢係咁寫啦)，如果揸本外國護照，唱咗鬼佬國歌，宣埋誓嘅都可以管治香港，咁不如揾番肥彭做特首，起碼我相信英國佬嘅政治智慧會高過你班壽頭多多聲；第二，上邊提及嘅職位會經常接觸，管有，閱讀同埋知道大量涉及香港政府嘅高度機密，包括防護保安，金融財經嘅資料，呢D係一級機密，好似長實嘅highly confidential 文件，會唔會比新地嘅人睇？唔好講埋哂d邏輯哲學呢d唔等駛嘅野，現實社會就係咁，同行如敵國，你又幾時見過美國國防部，中情局或者聯儲局嘅副首或者佢哋班助理會有外國護照? 第三，所有首長甚至同級公務員就職個陣都會宣誓效忠中華人民共和國香港特別行政區同基本法，咁如果有條友坐完移民監，唱完國歌宣誓效忠美利堅合眾國，依家又走嚟話效忠香港同基本法，咁即係朝秦暮楚，同五代十國時候果條死老嘢馮道又有物七分別呢? 呢種人有奶便是娘，換轉係1942年嘅香港，見到皇軍肯定鞠恭兼“打巴高多坐多坐”咁salute。咁佢究竟係效忠美國定香港? 有起事嚟佢會照顧邊一方嘅利益?
上邊提到嘅基本法第44,55,61同67條講明只有“無外國國籍嘅中國公民”嘅先有資格做高官，而何謂中國公民? 首先基本法附件三入邊列明中華人民共和國國籍法响香港係法律一部份，按照國籍法第三條表叔係唔承認雙重國籍，第九條更有意無意針對班鍾意認鬼佬做君主嘅中國人，講明定居外國而入咗籍嘅，就自動喪失中國國籍。咁呢班壽頭即係唔再係中國公民，如果咁都仲可以做副局長，即係違憲(unconstitutional)，任何睇唔過眼嘅滋事份子都可以illegality為理由申請司法覆核。咁你又會問嗰批騎呢畸胎政治助理又受唔受限制? 你要知呢隻怪胎都係最近先有，咁1990年己經頒布嘅基本法又點會foresee得到？所以第101條列出個list，一定唔會係exhaustive，基本法係全國性憲制文件，唔係憲法－－constitutional document唔等於constitution－－去解釋佢就唔可以淨係睇條文，按照statutory interpretation(法定釋義)中ejusdem generis(同類)解釋，只要係屬於“高官”個類，都會受此約制，政府成日鍾意無啦啦生達罅，話唔定遲D安個性愛局，去監管港人嘅做愛次數同花式，咁性愛局局長或司長一職雖然不在第101條之列，但出任此職之人都唔可以係兩頭蛇。“高官”同一般嘅公務員甚至AO、EO最大分別之外，在於後者只係技術性官僚，只負責執行政策，而前者就係決策或者參予制訂政策發號司令，政治助理雖然唔係司長局長級，但首先佢哋嘅人工絕對有首長第四五級嘅level，再者佢班懵丙日常嘅工作就係幫班局長scan過叠機密文件然後出謀獻策，咁一定會睇埋唔少關乎香港政府嘅機密文件－－其中有件仲係有新加坡護照。係人都知，坡佬一直當香港係假想敵，呢條撚樣會唔會走去通敵向自己「祖國」放料都唔使多講－－佢哋睇嘅資料同行政會議、立法會議員睇嘅一定無物差別，分分鐘仲堅過佢哋，咁既然班議員唔可以有外國居留權，點解呢班阿福就可以有?
至於另外有居英權個件蛋散，據朋友說，陶傑條盲毛曾經話居英權唔等同外國國籍，因為佢未行使，聽到D咁嘅謬論真係笑爆咀。根據British Nationality (Hong Kong) (Selection Scheme) Order 1990 SI 1990/14，呢班有居英權嘅人同英國人係法理上完全無分別，响British Nationality (Hong Kong)Act 1997話明："the Secretary of State shall on application register as a British citizen any person who was ordinarily resident in Hong Kong and satisfied certain conditions immediately before 4 February 1997"。而British Nationality (Hong Kong)Act 1990 己經清楚寫明the Home Secretary could confer citizenship on up to 50000 Hong Kong residents...to enable them to live in the United Kingdom。請問如果有條友被英國內政大臣confer咗citizenship，仲register埋，咁唔係擁有外國國籍係咩? Citizenship同nationality被人話前者係屬地區性(municipal)，後者屬國際性，但根據英國University of Dundee Robin M White响"Permanent Resident of the HKSAR as quasi-nationality"講their distinction is unnecessary。再者，英國係無nationals 同 citizens 的稱謂，一律叫 British subjects。所以呢條有居英權嘅忍樣同奧雲仔响法律上係無唔同，都係British subjects。真係唔該阿陶傑唔好亂尻咁講嘢，咪真係以為自己物都識，真係才子至得架。係香港除咗己經退咗休嘅Professor Yash Ghai同陳弘毅教授有資格係傳媒評論國籍法之外，其他人都行埋一邊，唔好舢板充炮艇。
有做就等於有罪？
[本文已寫好一星期，可惜因為某些技術問題而延誤至今，希望不會太過時吧。]
屈指一算，唔經唔覺响度寫咗兩年嘢，聽講有唔少朋友喜歡睇細佬寫嘅嘢，不過亦有少許污蠅曱甴响度出埋D無建設嘅廢話，不過有人鍾意用個「肺」講嘢係人哋嘅自由，我無意過問，自問唔係太識同D廢物溝通。上次同各位分享個小故事，竟然有個好發人深省嘅回應，話「咁係衝紅燈過馬路，你個客唔啱喎」、「明明係做錯嘢，注定要罰」云云，睇完呢幾句留言，我覺得同政府教育署話「求學唔係求分數」一樣咁傻、咁天真。係法律面前有無做，同有無罪係兩回事，我以下舉十種情況明明條友有做過，但一樣無事，理由係用嚟審佢嘅程序有問題﹕
(一) 阿A殺咗人，但係揾唔到條屍/無嘢證明有人死咗，咁即係without corpus delicti，連謀殺最基本嘅元素都欠奉，仲告乜呀？除非阿A自己認咗佢啦，不過有無人咁戇居呀?
(二) 阿B响超市明明撻咗本雜誌，但有醫生證明案發時佢嘅肌肉不受大腦控制，即係如Lord Denning响Bratty v Attorney General for Northern Ireland [1963] AC 386話：an act which is done by muscles without any control by the mind, such as a spasm, a reflex action or a convulsion; or an act done by a person who is not conscious of what he is doing"，呢種叫automatism，因為偷嘢(theft)係需要證明被告有specific intent，而一個人無論係劈咗酒或high咗藥都唔會有specific intent，要告佢打人，刑事毀壞都仲得，偷嘢就no way。
(三) 阿C打到人入廠，成單案有個目擊證人，點知响認人嗰陣差佬向個證人提水，話比佢知阿C企咗係3號牌度，咁樣成份證供就會被裁定無效，立即放人(Queen v Yip Keung District Court Criminal Case 808 96)，又或者同樣情況，差佬响安排認人果陣，揾埋班同阿C無論年紀、外貌、身高都好唔一樣嘅「梅」被人認，咁嘅ID parade evidence同樣係唔合格，放人。
(四) 又或者單案係非常倚重個ID parade證供，但個主審法官唔記得响summing up果陣俾Turnbull warning(即係陳述認人證供嘅利弊，有可能涉及證人視力同當時環境嘅情況，光線充足 與否，距離，時差等)，個犯同樣會獲釋。
(五) 阿D明明有同人劈友，但如果差佬响盤問過程中唔遵守Rules and Directions for Questioning Suspect，或者阿D嘅口供/招供係响非自願嘅情況下套取，咁根據R v Ibrahim [1914] AC 599同往後各級法院的判例，呢種involuntarily made嘅statement法官都要全部唔俾入，即使阿D係自願去講嘢，但原來係班差佬扮成街外人去套料(例如响羈留所度)用主導性問題去問阿D，响無警誡(caution)嘅情形下，根據Secretary for Justice v Lam Tat Ming [2000] 2 HKLRD 431，法官就要用residual discretion去刪除呢種證供，阿D會無事。
(六) 阿E明明有傷人，但如果控方根本上砌唔出傷人嘅元素，例如證明唔到阿E案發時係現場，或者有人(包括受害人)清楚見到阿E係現場，又或者證明唔到受害人致傷嘅原因同阿E有關咁即係無prima facie case against阿E，按照R v Galbraith [1981] 2 All ER 1060中嘅原則，阿E就no case to answer，走得。
(七) 阿F俾人告非禮，按照普通法假設無罪論(presumption of innocence)同保持緘默權(right to silence)嘅原則，阿F可能毋須去證人台俾口供，亦唔需要去證明自己無罪，法庭亦唔可以因為佢唔俾口供去認定/猜度佢身有屎，如果個官用佢嘅沉默去入罪，咁個conviction一定被上訴法院 quash。响R v Martinez-Tobon [1994] 1 WLR 388，個官就因為衰多口响引導陪審團時講咗句"although the defendant had every right not to go into the witness box, in the circumstances, one might have thought that he would be very anxious to do so."令個被告上訴成功返屋企。
(八) 响審訊過程當中，由於普通法司法區用嘅係adversial system，而唔係歐洲大陸法嘅inquisitional system，法官係唔可以充當檢控嘅職份去狂盤問被告/證人，如果有關嘅盤問或干涉會令審訊對被告構成不公，咁個conviction 就變咗unsafe，被告包保無事(R v Or Chung Yan [1975] HKLR 24)幾年前區域法院有個女官叫蔡蕙蘭就係因為衰多口，問咗幾條問題，俾上訴庭班老爺炳過一鑊。
(九) 阿G衰糾黨行劫，但如果佢嘅同黨改做金手指出嚟指證佢，而法官响引導jury果陣有俾care warning，即係按照R v Makanjuola [1995] 3 All ER 730嘅指引，如果個證人/共犯(co-accused)出庭俾口供係有目的(ulterior motive)，好似博減刑或者同被告有積怨等，咁個官就一定要講明响接納呢種口供嘅時候一定要小心，分分鐘要打個折扣，否則個conviction就變咗unsafe，要放人。
(十) 阿H有賣粉，係拆家，通行都知，有人打去佢屋企想買粉，點知H唔响屋企，條line又俾差佬鈎咗，用嚟告佢，但係上到法庭，個官最後裁定佢無罪，理由係唔可以用個買家嘅request to order去infer被告犯案嘅意圖。( R v Kearley [1992] 2 All ER 345)
其實如果要寫，寫到三十四十都仲有得寫，例如咩時候控方去改控罪、捜查令點樣授權差佬去攞D差佬無權要嘅嘢，點樣d證據因為Legal Practitioner Privilege即使係有力證據都唔入得云云，講咁多，只係要證明法律係要以客觀嘅標準去審判人，你今日或者會認為法律好似偏幫疑犯，但你難保他朝有日你會做被告，到時你就會覺得呢套制度嘅可愛之處。
當然我唔冀望每一個人都會appreciate法律嘅精粹，但係唔識就唔好亂講嘢，好似去到佛羅倫斯大大聲指著個大衛像話"嘩，個公仔無衫著咁肉酸嘅"，咁就羞家死啦。
市儈父大戰忤逆仔
作者：左冷禪
所謂一樣米養百樣人，上星期初法庭上映了兩齣內容截然不同的好戲，這邊廂有孝子陳奕迅傾家蕩產請御用大狀幫貪污瀆職0既父親上訴減刑，雖然無功而還，但陳奕迅前後為佢老豆單案聘用咗兩名silks(郭棟明同Andrew Macrae)，果兩筆數絕對唔係小嘢，其孝心幾乎令我感動得流下兩行男兒淚；那邊廂就上映另一部不孝子被老豆老母追數既黑色喜劇：
博士子減家用 父母索回留英學費
2008年3月4日
【明報專訊】年輕時由衣車學徒出身的老翁，與妻子含辛茹苦為4名子女供書教學，其中本來學業成績不佳的次子，在父母的經濟支持下往英國攻讀學士及博士課程，獲得佳績。惟當眾子女事業有成之際，次子與父母關係轉壞，雙方只靠社工或律師溝通，及後甚至為錢債對簿公堂，父母向次子討回88萬元供書教學費用。
原訴人夫婦為陳炳昆及郭少清（均為譯音），被告是37歲的次子陳文煒。案件經審訊後，區院昨頒下判辭裁定原訴夫婦勝訴，次子須向他們清還88萬元欠款。
判辭指出，次子於中五會考時成績欠佳，1993年父母應其要求，出資支持他往英國攻讀機電工程學士；兩年後，他在父母的經濟支持下再攻讀博士課程。至1998年，次子學有所成回港工作，並與父母及胞弟同住，每月給8000元予父母作為家用。
父母買樓 子每月交租償還
2000年底他打算買樓結婚，與父母商量後，決定與母親聯名買入青衣翠怡花園單位作為新婚居所，百多萬元的樓款及其他雜費由父母支付，次子每月則向他們支付7500元租金。
2003年，次子誕下女兒，女兒與印傭在父母家中居住，而次子及妻子亦會在父母家中吃飯，當時次子每月共向父母支付1.4萬元。
子減家用關係即轉差
但至2005年6月，次子希望女兒及印傭返回青衣居住，他與妻子亦不會再在父母家中吃晚飯，次子便將「家用」減少一半，每月只給父母7000元，自此親子關係轉差。
父母：其他子女有還錢
父母一方指出，當年只承諾借錢予次子出國讀書，2005年10月與次子關係惡劣，次子曾承諾還錢。另外，曾向原訴人借錢讀書及考車牌的被告胞妹及胞弟，事後亦有向父母還錢。
不過，次子否認借貸，亦否認曾承諾還錢，更指父母道德上有責任為他供書教學。
法官認為原訴夫婦對4名子同樣愛錫，被告本身有穩定工作及收入；而被告在2005年10月將青衣單位業權轉予父親，當時雙方關係已轉壞，但次子每月仍向原訴夫婦付款，故法官認為該些款項其實是被告的還款。
睇新聞大大標題話老豆成功向個不孝仔追回留學學費，真係差D以為個Deputy Judge係忽上腦，因為法庭淨係講法律，縱使百行係孝為先，但呢D人倫家事又關法庭屁事咩。單單不孝絕對唔係cause of action，報道又無話父子雙方有任何協議果筆留學費係當作借貸，咁即係又無contract又無meeting of minds/consensus ad idem，咁個忤逆仔又點會輸呀？殊不知睇番個判詞，方知咸豐年前個衰仔同老豆已經有共識筆錢係借既，要還，而更令人詫異既係佢哋冚家都有個怪習，興D仔女讀書留學用既錢係好似滙豐恒生咁當借番嚟，連個細仔學車D學費都係要還番比父母，我不期然心諗，咁佢哋老豆同老婆行完房之後，又會唔會比番一千幾百個老婆呢?
其實呢單案個爭議性都幾大。首先，父母給予仔女既嘢或者長輩俾後輩既野，法律都會以presumption of advancement/gift原則當作禮物處理，當然呢個假定係可以被推翻(rebuttable)，响Lily Cheung v Commissioner of Inland Revenue[1987]3 HK(30)中，法庭話基於女性社會地位同賺錢能力既提升，令原本丈夫俾老婆當係禮物的假設推翻，但個衰仔當年無錢，個老豆支助佢留學係天經地義，老實講生得佢出就預咗要養，吓吓諗住要個仔女大左之後點樣回報就聽打靶啦，做人咁計咁就不如一個都唔好生，因為子女多數都係liabilities多過係assets，不如慳番D錢去賭狗賭馬或者賭吓金絲貓仲實際。
不過就算當年個死仔有應承還，但從合約法既角度，呢個口頭承諾未必enforceable。因為合約要有效，一定要有四大元素﹕offer + acceptance + consideration + intention to make legal relation。讀過法律都知domestic arrangement係被法庭定性為無法律關係意圖。Balfour v Balfour [1919] 2 KB 571話老公老婆既協議係無法律效力﹕
Nobody would suggest in ordinary circumstances that those agreements result in what we know as a contract and one of the most usual forms of agreement which does not constitute a contract appears to me to be the arrangements which are made between husband and wife......to my mind those agreements, or many of them, do not result in contracts even though there may be what as between other parties would constitute consideration for the agreement.
另外有單叫Jones v Padavatton[1969]WLR 328，個老母大隻講叫個女炒美國老板魷魚返英國讀法律，話事後每個月俾二百磅佢，點知賣魚佬洗身無哂聲氣，法庭都話呢樣係無得告。不過凡事梗有例外，如果响大家關係唔係咁妥既時候立既約法庭就會當堅嗱(Merritt v Merritt [1970] 1WCR 1211)。但係香港果個衰仔同老豆借錢果陣關係明顯和睦，否則個老子都唔會騷佢，所以我個人認為兩人之間借錢還錢約定根本就唔係合約，但奇怪既係個狀又無拗呢點，個官响判詞第33段提過"As a matter of law, the alleged loan agreement would be void for uncertainty or there was no intention to create any legal relationship"後，呢個 point就潛咗水，不過如果個狀無plead呢樣嘢，法官係唔討論既。
個衰仔請個位狀叫Tony Li，好junior，06年call bar。但佢都識個「合約」既無提還款限期，又無話點樣還，咁環境就由個度縮老豆最後磅水果日起計，六年內就要追，否則就過期。換句話個老豆响1998年3月31日最後過水俾個死仔，咁個老子入稟追討既限期就响2004年4月1日完咗。本來就已經係風吹雞蛋殼，財散人安樂，殊不知個衰仔响2005年12月30日同老豆老母協議還番D學費，咁就仆街啦，因為咁樣就令原本既追討時限復活，個官响判詞73段都話﹕
I think the more probable inference is that those sums from 30 December 2005 onwards were nothing but repayments of the loans. In the premises, the Plaintiff's cause of action was reactivated from 30 December 2005.
再者你走去還錢，即係用行動推翻左之前講果D咩presumption of advancement/gift。反之如果個仔一毫子都唔還，咁個老豆老母就輸Q硬，所以個仔唔係衰忤逆，而係一衰心胸唔夠狠，俾人哦多兩哦就還水，二衰還錢前唔揾個律師問問，好多香港人就係咁抵死，諗住慳果一個幾毫，點知往往就因為咁捉哂蟲，死咗都唔知咩事。小弟意見永遠係事前既準備部署永遠比事後補救來得實際，不過問嘢請唔該俾錢，無錢鬼得閒啋你。
不過我相信點樣既父母就有點樣既仔女，為人父母物都要做仔女既回報還錢，你咁市儈現實，不如索性做愛次次帶套兼體外射精，一個都唔好生，生得佢出，除非佢讀唔成書，否則供書教學筆錢就唔慳得，攬住咁撚多錢托咩，死咗咪又係要今夕吾軀歸故土，所以阿陳炳昆同阿郭少清，你哋咁告個仔，其他果幾件依家仲可能對你無乜嘢，不過遲吓肯定係久病床頭無孝子，死後靈堂冷清清，你兩支老柴到時就唔好長嗟短嘆，怨天尤人。
王子復仇記
香港的傳媒當真厚顏無耻得叫人咋舌! 看見陳冠希表情落寞，獨自在台上向台下虎視眈眈的記者肯出那段長達六分多鐘的講稿(說實在，他的英語比本地的大專生甚至律師高官還要流利)，我真有點摸不着頭腦，不禁納罕地問句﹕「他犯了什麼錯要向傳媒甚至六百萬市民作連番道歉?」
也許他非常濫交荒淫縱慾，但這是罪嗎? 倘若是，那些跟他做愛及口交的女星又要不要開記招向大眾道歉? 香港什麼時候變成一個跟女性在私人地方做愛甚至拍下過程也須受大眾審視批判的社會？倘若是這樣，那你昨夜在房間自慰或與女友做愛又要不要向鄰家的張三李四道歉? 香港人什麼時候偽道學得連人家濫交淫亂也要干涉? 那香港跟伊朗等極端原教主義國家又有什麼兩樣？
也許從宗教與道德角度，他的行為該受責謾，但既然陳冠希不是修道之人，又從沒有標榜自己有「純潔」形象，他的所為又有何需要向廣大市民道歉? 我個人就認為他比那些非禮孌童的神職人員和整日愛以「玉女」自居的女藝人強得多，因為他不掛着假面孔，他第一天當明星起，他就擺出一副花花公子的格調，我一點也不喜歡他，但卻不能罵他虛偽。
今次這宗「淫照事件」令傳統在農曆新年間銷量呆滯的報刊雜誌業興旺不少，連續成了三個星期的港聞頭條，除了零三年的沙士外，從沒有一宗港聞那麼被受注意，甚至連被非法扣留了很久的程翔返港也當不起半天的頭條，各份報刊(甚至連那份愛充知識份子報的明報都爭相把那些被它們標籤為「淫照」的照片放大幾倍放在頭版，我想除了失明人士外沒有人走過報攤會看不到那些照片。陳冠希間接助什麼報社什麼週刊賺過盆滿砵滿，惜這群他媽的傳媒竟轉個頭做完淫婦現在又要建貞節牌坊，走來帶領全港市民來公審他，這群賊烏子真沒良心到極點。
一個不慎被人家盜取了私人性生活照的人竟然要受千夫所指並要跑出來向三個多星期不斷連載他那些照片從而獲取利潤的媒體和三個多星期自發性去以各種途徑觀看淫照看得津津有味不亦樂乎的大眾道歉? 天下為什麼會有這般混帳的事? 倘若陳冠希真的要道歉，那你們這班喪心病狂的傳媒及曾經望着那些「淫照」竊竊私語(甚至自慰)每天早上起來就要看看有沒有新一輪淫照被發放的大中小淫蟲就更應該走出來道歉! 這幫短命種打靶友委實每一個都已從這宗新聞得到官能上的慰藉，那又如何受得起陳冠希的道歉? 可耻的不是拍或看這輯照片的人，而是那批看得磨拳擦掌的市民竟荒謬到充起批判者來。
其實陳冠希體無完膚的被這群瘋狗痛罵指責甚至好像個甲級戰犯般受審判(比什麼東篠英機盧美爾還厲害)，原因只不過是大多數人(男性尤甚)對他有一股不自覺的嫉妒，妒忌他樣子長得比眾人俊俏，妒忌他比眾人泡妞子泡得有手段，妒忌他能哄不少大眾夢寐以求望而不得的女星跟他性交，大家內心都妒火中燒咒怨上天為何這般厚待這哥兒，伺機發洩這團積壓已久的怨氣，乘這次風波群起而攻之，實行殺之而後快。陳冠希被人盜取了千多張做愛照，傳媒與大眾就聲嘶力竭要他道歉交代，卻不曾見他們這般積極的要求日皇為二次大戰道歉及中共平反六四呢?
不知大家有否留意他那篇道歉詞是經精心編寫，一看便知是律師背後替他草擬。據知他已分別委託了胡關李羅律師行及御用大律師胡漢清，目的呼之欲出，就是要向香港那班無耻的傳媒展開一場反擊戰。他直認照片是他拍的，並以版權人(copyright owner)的身份[註1]向那些雜誌報刊假道學宣戰。傳媒如未經陳冠希准許而刊登那些「淫照」，就算「打了格仔」，即屬間接侵犯版權(secondary infringement)，按照版權條例第31(1) (c)條--exhibits in public or distributes for the purpose of or in the course of any trade or business就已經屬於間接侵權。
一般而言，被控間接侵權可以fair dealing作為答辯理由，即指那些相片是用來作報導新聞用途。但被告人除了要證明在文章或報刊上已充份確認聲明有關相片的來源/版權持有人外，(被告人不用證明使用那些照片去報導是必需或沒有別的途徑)，還要證明(1)刊登照片的程度與報道有關，及(2)刊登照片的數量或方法沒有超出合理的需要。報道新聞屬公眾利益(public interest)是一有力答辯理由，但若在無需要的情況下大量刊登放大有關照片，那就很難證明the dealing is fair。有趣的是計算賠償金額的方法是以每件侵權物品為計算單位。此舉分明就是套在傳媒頭上的金剛箝，只要你敢登，胡漢清等狀門高手便唸起緊匝咒來，實行把那群涼薄的傳媒煎皮拆骨。胡御用是高手中的高手，所向披靡，能敵者寥寥。(我怕最後班報紙佬賺埋都唔夠賠)。
陳冠希的律師團高手雲集，想得出用侵權這置諸死地而後生的方法(因為首先必須要認自家是持有人)，絕非庸者，因為被告人多數無還手的能力。再者，以此為訴訟因由(cause of action)，還可輕易在開審前向法院取得臨時禁制令(interlocutory injunction)及以Anton Pillar order去沒收報館的罪證，一舉多得。值得一提的是，要控告間接侵權需證明被告人知道或有理由知道那些照片是侵權物品(mens rea)，但報館又豈能推說那些不是侵權品呢?
註[1]﹕相片的版權屬於底片的持有人，而非拍攝者。
相關文章：
法律能制裁疑似陳冠希嗎？
An Hypothetical Submission made on behalf of Mr Chung Yik-tin(鍾亦天)
淫照不能存，威武實能屈
法律能制裁疑似陳冠希嗎？
首先响呢度恭賀鍾亦天獲釋，唔係細佬認叻，我之前估控方遲遲唔向法庭申請審單案係想揼波鐘探多D料，原來差佬都未送D相去審檢，本來咁做係無唔妥，D道友白粉佬俾人控，都係先告人再送D粉去化驗，但係唔俾人保釋搞到人哋係荔角度新歲，就明係玩尻人，枉佢班冚家剷仲向個電視死唔認錯。
講番希少，佢就真係巴X閉，佢單靚相風波係繼03年沙士之後做咗最多日報紙雜誌頭條既港聞，叻仔，Two thumbs up!!班網民成日話要懲罰佢，查實計就唔係無，不過就要各路人馬集思廣益吓。
1. 先講刑事criminal sanction，真係講到口都臭哂，影鹹相(自影)絕對無罪，不過如果相中主角唔夠秤，咁就另作別論；
2. 另外，如果「白痴」等人係被迫，咁就係非禮，案例我都有，叫Mok Pak-wo v The Queen [1980] HKCA 75。至於非禮，元素包括indecent(是否連right-minded/thinking person都覺得係indecent)+ assault (apprehension of imminent physical contact/indecency)，班女如果啪咗藥，又點會有apprehension? 不過呢單野係以用相機影裸照為基礎，响人哋瞓着覺摷人陰就變咗indecent battery，一樣告得入。但刑事法只會處理危害公眾嘢，响屋企吹簫撚雀玩自拍關佢X事咩？
3. 又如果班女係食咗嘢之後先同希少扑嘢，咁就有可能係強姦，因為佢哋嘅 consent唔係响清醒時候俾，就算希少都High咗嘢神智不清都係強姦。當然係呢度就有技術上既問題，雖然刑事同民事最大既分別係無時限，但隔咗咁撚耐先告人，就真係好難係毫無合理疑點咁舉證成功(prove beyond reasonable doubts)。
依家講吓民事，過年前响明報一篇專欄見個筆者教白痴佢哋申請禁制令對付放相者，挑條盲毛都忽嘅，第一唔理你告人索償又好，申請禁制令又好，你都要寫入稟狀(statement of claims/ex-parte application for injunction)，呢D都係pleadings，根據Order 18 Rules of the High Court/ Rules of the District Court (RHC/RDC)，狀紙入邊一定要標明原告被告係乜水，依家個個都有相，行去中環旺角起碼有一半人有forward個D相，分分鐘連阿一哥做幫辦個仔都有份，但係你又唔知人姓什名誰，唔通你去禁九哂全香港七百萬人唔俾上網咩？明報仲扮乜鬼知識份子報？起初人哋份份報紙都登靚相，佢就扮哂嘢物都唔登，咁撚悶鬼睇你咩，到後來發覺D銷量唔好，就姣婆守唔到寡咁，走去登楊超成個女張出浴相，正式又要起貞節牌坊又要做淫婦，不知所謂。
有人話叫班女告希少疏忽處理輯相。老實講我唔知佢係唔係講緊民事侵權法(Tort Law)入邊既疏忽(negligence)，如果係就听收檔都得，呢瓣嘢係非常複雜，如果看官有興趣，遲些我可以寫吓同大家研究吓，不過就一定要用雞腸，因為呢D係鬼佬嘢，用中文解釋就比較困難，同著住條牛仔褲打飛機差唔多，但簡單D就係要證明被告對原告有Duty of Care(Proximity+reasonable foreseeability+fair, just and reasonable to impose duty)，然後要證明被告有breach of duty，最後又要證明被告的疏忽directly, consequentially令原告有損失(causation)，兼且原告可能要證明埋自己無唔小心(contributory negligence)，真係煩撚到仆街，不過值得一提就係：
1. 希少輯相唔係佢自己發出去，而可能係班友無佢同意從部電腦個Hard Disk度提取，咁呢個盜竊行為就係獨立行為中斷咗條chain of causation(novus actus interveniens)；
2. 班女無腦到任希少影，自己係唔係多少都要負小小責任呢? 但係我講明，上邊講既疏忽處理相片既「疏忽」未必係希少果種，如果俾我撞中就實行早抖啦。
又有人提議告違反保密(Breach of Confidence)，識得咁諗既就有腦啦，證明有讀書。要告呢樣就要證明：1)有關資料是值得保密(唔係果D三姑六婆街市賣魚勝都知既嘢)；2)收料者有義務去守秘密；3)D嘢見光會令發料人(confider)受損失。首先一般來講，呢D confidence係指商業秘密，公司機密或政府機密，收料人同發料人有一定合約或信託責任(fiduciary duty)，好似律師同客人，公司董事同公司，醫生同病人等，仲有法律係唔會視果D gross indecent既嘢值得保密，不過法庭話做愛既內容並非gross indecent (Stephens v Avery [1988] Ch 449 the court rejected the defendant’s argument that any sexual conduct lacked the quality of confidentiality)。不過，希少同班女並無任何合約或信託關係，其次係D相唔係班女confide俾佢既資料，輯相係希少自己影，唔少仲自己條賓周都做埋主角添，咁技術上就唔算係information communicated to the recipient by confider。
Be so as it may，過去亦有案例指二人的性生活都係保密資料，爆咗都係Breach of Confidence。但以小弟的陋見，要告人就要過一個叫做springboard test，根據Seager v Copydex Ltd [1967] / WLR 929 Lord Denning既解釋﹕
As I understand it, the essence of this breach of law, whatever the origin it may be, is that a person who has obtained information in confidence is not allowed to use it as a springboard for activities detrimental to the person who made the confidential communication...
個故事講到呢度，你地不妨諗吓希少有無用輯相作為跳板做出傷害班女既事，輯相如果真係如班差佬咁講係班淫蟲响佢部腦處偷番嚟，然後發放俾我哋班契弟，咁又關希少撚事咩，有撚用過D相做跳板咩?
計我話講物尻嘢法治，每人夾一千蚊，集腋成裘，揾人炳佢一獲算吧啦，我講明先我唔係教唆你班粉樣傷人呀，你班豬腦唔好去買凶，如果希少返番香港之後俾人打殘咗隻手、隻腳，又或者踢爆咗粒testicle，唔好入我數，我唔係「奇拿」，我頂多係「騎拿」咋。
An Hypothetical Submission made on behalf of Mr Chung Yik-tin(鍾亦天)
The following is a hypothetical submission made on behalf of Mr Chung Yik-tin whose application for bail before Magistrate Kwok was refused and who has been remanded in custody since then. To deal with a situation as such, Chung may either make an application for the hearing magistrate to review his decision within 14 days from the date of the said decision under s.104 of the Magistrates Ordinance Cap.227 or appeal against the magistrate’s decision before a High Court judge under s.113 of the same ordinance. Usually the magistrate himself would not review his decision unless there is any change of circumstance in favour of defendant. But mere increase of bail money is hardly viewed as a change of circumstance for justifying a review by the court.
My Lord, this is an appeal against the Learned Magistrate Kwok’s decision to refuse bail dated 1st February 2008. My humble submission is based on the following grounds.
First of all, it is our submission that the Learned Magistrate’s reliance on s.9G(1)(b) of the Criminal Procedure Ordinance, i.e. the possibility of Mr Chung to commit an offence while on bail, as his main ground to refuse bail is unfounded. It has surely come to your Lordship’s knowledge that during the Appellant’s custody in the Lai Chi Kok Reception Centre, there are still release after release of those obscene pictures on the internet almost everyday. As a matter of fact, the prosecution failed to adduce any evidence suggesting the Appellant may commit crime during bail in the previous hearing for bail. When there is no evidence from the prosecution suggesting that the Appellant had any accomplice in the alleged offence nor is it the prosecution case to be so, the Learned Magistrate’s remand order aiming to prevent further releases of obscene pictures by the Appellant during bail, which is with respect too draconian and oppressive in the modern perspective, proves to be of no avail. I therefore humbly invite your Lordship to consider whether such draconian yet ineffective measure be still allowed to remain in force and tolerated by our judiciary system in the 21st century.
Besides, it is also submitted, with respect, the learned magistrate had allowed his judgment to be overrun by the prosecution’s suggestion of the Appellant being involved in blackmailing by the use of some obscene pictures. By drawing the court’s attention to the Appellant’s recent settlement of a debt of HK$500,000, the prosecution had attempted to entice the learned magistrate to think this has something to do with the present s.21 charge. However, in the absence of any evidence to support this i.e. any report of blackmail and witnesses, I submit such inference drawn by my learned friend of the prosecution is very misleading and unsafe. In fact it should not be mentioned at all in an open court as it would inevitably affect the soundness of the learned magistrate’s decision. I emphasize in no way should the Appellant’s right to bail be inhibited by some mere speculation of the prosecution.
My Lord, I am not going to trouble you with the extent of statutory and common law protection for one’s liberty because your Lordship surely knows a lot more on this subject than myself. But I just wish to draw your Lordship’s attention to Part II art.5(3) of our Bill of Rights Ordinance which says “it shall not be the general rule that persons awaiting trial shall be detained in custody” and the Magna Carta that provides one’s liberty shall not be deprived of unless and until he is convicted. To practice otherwise, is obviously a departure from our well-established legal principles, as well as a stigma to our judiciary system.
Of course I do not dispute the judicial discretion of a magistrate to refuse bail but it is our submission, that the gravity of the alleged offence against the Appellant does not justify a pre-trial custody as such. We are not here dealing with a charge of murder, armed robbery, drugs trafficking, triad-related offence which endangers the innocent lives. Neither are we dealing with offences like treason or riot that would upset social stability. We are only dealing with a charge of s.21 of the Control of Obscene and Indecent Articles Ordinance which is used very often against public release of indecent articles by media corporations. My Lord, I am not suggesting nature of the alleged offence here is as petty as stealing a bar of chocolate in the supermarket, but neither is it so serious an offence that warrants immediate custody of the Appellant without a fair trial and a right to defend. Should the alleged offence be that serious, it would have been reflected in the suggested sentence, a longer term of imprisonment for instance. Please note it is particularly the case, when there is nothing to indicate the Appellant is making any monetary gain through the alleged offence.
Thirdly, it is further submitted that the learned magistrate was erred to remand the Appellant in custody for a lengthy period without taking any plea or setting down a return date. If there is now a prima facie case of s.21 offence, the Appellant should be allowed to enter his plea and a return date be appointed. And the prosecution should have elected forum of hearing as well. I cannot see any reason why a formal trial on the present alleged charge not be disposed, except of course when the prosecution is not ready. But if the prosecution case is not ready, charge should not have been brought at the first place. I would not rule out the possibility that the police / prosecution is delaying, attempting to do some fishing exercise. Is it not our prosecution policy that charge could only be brought when the admissible and available evidence of the prosecution could establish prima facie case against a suspect? Is it not the prosecution’s obligation to ensure a trial is conducted fairly and the accused is not prejudiced? As a matter of fact, it is the incumbent duty of this court of justice to ensure the principles and values of justice not be traded for administrative convenience.
My Lord, the Appellant’s parents and other family members are living in Hong Kong and with such a close family tie, it is quite unlikely that he would abscond during bail. It is my instruction to inform the court that the Appellant is willing to surrender his passport and other traveling documents and would report to the Wanchai police station everyday at 6 pm. With the assistance of some friends of his, he is able to raise a sum of HK$10,000 (20,000) as surety money. And he further undertakes to surrender himself to court upon summon. In view of the above grounds and undertakings, the Appellant should be granted bail. Unless I could assist this court any further, this is the end of my submission.
淫照不能存，威武實能屈
近排最多人談論既，梗係希少單靚相事件。個個見面開口就係句﹕「有無相? 可唔可以send俾我?」你問我點睇，老實講句如果係平民百姓中招，我會寄予同情，但係呢班娛樂圈既狗男女，平日生活荒淫縱慾，扑嘢扑到自拍，問心個句，你拍得出嚟就要預咗會俾D陌生人睇到，等於你學人做黑社會，就預咗一係被人劈死，一係被皇氣鎖。食得鹹魚就要抵得渴。
啲相出咗街，有人就話係合成照，但係你睇見白痴相中個銷魂樣，打大對腿，你話會唔會有人平時影相擺個咁蝕骨發姣look? 唔信你又可以睇吓寶寶扮韓湘子同希少魔笛追魂個幾幅，連條舌頭都用埋添，見住佢揸住支嘢(人哋話橫笛直簫，雖然希少支嘢無簫咁長，普通料，不過都當佢係)個冧樣，諗都諗到唔會係平時同三姑六婆影相個樣，再者寶寶全程望實個鏡頭，好專業，打死都唔信係合成! 唯一值得同情吓係阿嬌，佢俾希少摷陰個幾張訓覺相，明係唔知俾人影咗，被希少過咗一楝。講到尾，始作俑者都係希少條仆街，佢條粉樣除咗靚仔家底好之外，根本就係一無是處，a sickening scum boy，而個D女十居其九被希少昆上床都貪佢靚仔同出手闊綽，動不動都送名錶、名鞋限量版精品，咁貪慕虛榮既女人，有咩好同情，要同情反而我會同情吓"白痴"老公同寶寶個未來夫婿，頂綠帽由頭戴到落腳趾，真係點除都除唔到呀陰公。
呢單嘢同當年成蟲滾大伊犂個肚伸大言不慚話呢嘢係男人都會犯既錯事差唔多，平時生活荒滛，斷正個陣就想臭屎密擒，世事邊有咁便宜，不過希少好過成蟲好多，因為擺明自己係滾友一名，當正D女好似公廁咁，今晚响呢度放底D，明晚又响第度放D，佢從來無話自己唔係邪派，反之成蟲條撚樣就成日扮大佬扮正義，仲走出嚟代表香港宣傳旅遊業，等於叫希特拉宣傳博愛差無幾，真係連隔夜飯都想嘔埋出嚟。叫隻死人戲子佬走出嚟大罵道德淪亡，但又請問希少咁濫交咁sick玩自拍又賤格到玩偷拍阿嬌等，班女咁輕易就被人扑，唔知佢哋D道德又淪唔淪亡。平時班女就扮哂玉女，點知個個骨子裏都係淫娃，反正映個班成日話自己係artist既戲子，個個同所多瑪班居民差唔多，聲色犬馬，做父母既就要諗吓自己的子女，視呢班粉樣做偶像，等同視屎坑篤屎做偶像無分別。以前舊社會啲人話「戲子同老舉差唔多，又話台上戲子，台下乞丐」。真係有智慧。
不過成件事最令我震怒唔係有人發放D相，而係班差佬劍拔弩張，仲時刻凶市民話連收藏D相都有問題，挑，咁你班嘢米仲惡過秦始皇，我部電腦都有相呀，鎖我呀。條Control of Indecent and Obscene Article Ordinance Cap 390針對既只係發放，仲係向公眾發放個隻，我叫三五知己嚟我屋止，揸住杯紅酒，一邊睇一邊飲，你又吹得脹咩，如果連收藏都有罪，咁希少就係第一個藏家，你又鎖唔鎖佢呀? 不如遲D連睇過都要死，咁同黃藥師叫梅超風殺哂所有睇過「九陰真經」既人有咩分別？D靚相被人睇吓就咁撚緊張，班流浪貓狗被條變態撚樣虐待至死，班死差佬就多多藉口，話難調查，有人去報警又愛理不理，希少隻狗公輯扑嘢相就咁緊張，呢頭話調查有一定困難，果頭又拉咗幾條友，快過打針，證明差佬做事係睇吓保唔保度班有錢佬利益。人哋班愛護動物既熱心市民去報警就懶理，霍汶希條八婆去報警就咁肉緊。老實講句，我就唔覺得條狗公同班狗乸輯相發放咗會影响公眾利益，你見班市民睇得咁開心，D雜誌賣得咁行，就知公眾好鍾意，我認為獲益良多就真啦。
差佬今趟選擇性檢控，如果鎖過班全部衰勒索咁都可以理解，因為案情較嚴重；但如果只係發放，咁就令人有點唔順。因為好多人都有send俾人(發放)，但响法理上，選擇性檢控係無問題，亦唔係辯護理由(ground of defence)，但係就可以成為求情減刑理由。好似咖啡仔捉行人衝紅燈咁，通街盲毛都衝紅燈，淨係鐘意拉你，吹咩! 仲有今次呢單嘢好似話找Interpol介入，皆因互聯網系統主機响外國，但你又唔好諗住坐Turbo Cat去澳門或者豪D坐飛機去布拉格發放輯靚相就無事(我本來都以為係)，等香港法院無jurisdiction去審你，因為睇番Criminal Procedure Ordinance Cap 210第19條話 “In any indictment for an offence committed on the high seas or in any place outside Hong Kong, an allegation that the person injured was, at the time of the offence charged, within the jurisdiction of the Hong Kong courts shall be a sufficient allegation of the jurisdiction of the court to hear and determine the case.” 所以去直布羅陀或南極發送但只要希少同班女响香港都係吟詩吟唔甩。
听人講好似話差佬拉咗人唔俾保釋，據我所知個story好似唔係咁，不過差佬鎖咗人48小時(頂多72小時)就要落charge兼送去magistrate過堂。見完官，一般都會俾保釋(court bail)，通常都係交出旅遊證件，每日去差館報到，再唔係就加埋surety，好少話唔俾放人。除非係Criminal Procedure Ordinance s.9G入邊話疑犯可能騷擾證人/受害人或者係保釋期間犯案，當然仲要睇吓案情有幾嚴重。但係如果差佬己經檢獲哂而又己經用咗所有行動去剷哂網上d相，咁又點可能再去發放靚相呢。第二，依家唔係告殺人強姦，如果個疑犯唔係影個位，根本就無可能再犯案，因為條罪的元素係鹹相加公眾發放，鹹相都俾人充公哂，又無得再影過(斷估佢都唔會揾 “白痴”佢哋再影過)，咁又點會再犯案? 第三，我唔知差佬的料有幾堅，不過發放鹹嘢唔算嚴重罪行諸如持械行劫、謀殺、販毒、三合會罪行，除非有料話條友係用批相勒索希少(咁就唔只係用s.21)，否則單係發放鹹相唔算係嚴重罪行(偷嘢最高刑罰係10年，s.21只係3年，但偷嘢多數俾保釋)，無理由remand in jail custody for eight weeks咁撚耐。理由一字咁淺，如果話要用八星期去check吓D相既真偽係多尻餘，因為無論輯相真又好假又好，發放(公眾)就有罪，所以真假係irrelevant。如果差佬諗住攞呢八星期去蒐集多D罪證就重大問題，因為佢哋suppose過堂己有prima facie case去告人，如果料唔足，根本就唔應該落charge。大原則係justice delayed is justice denied。所以我只有嘆一句: With due respect, His Worship’s refusal to grant bail is wrong in law.
Copyright ? Yours or mine ?
For those who employ their time in writing, for a living and leisure alike, some understanding about the extent of protection our legal system can offer is hardly negligible. While the subject of Intellectual Property Law is quite a complicated area of law, I being a learner of this subject, feel obliged to clarify some of my fellow bloggers’ misconception of the copyright law. In fact I have been encouraged by Magliabecchi to write something on this area ever since an article titled 超凡抄襲 was posted on our blog.
Unique Nature of Copyright
Intellectual Property Law is the study of copyright, design, patent, trademark and passing-off . And anything written or published surely does not fall within the governance of the law of design and patent. Nor does it have anything to do with the law of trademark since only distinguishable mark of product or service presented in graphical form is registrable under the Trademark Ordinance (Cap.559). Even though the title of a book belongs to neither of the above two categories, it does not follow that this title can find shelter in the copyright law.
First of all, unlike design, patent and trademark, a work does not need to be registered before the copyright owner could enjoy the protection of the Copyright Ordinance (Cap.528). Secondly, even a foreigner’s copyright is protected so long as his work satisfies the criteria of being an original work in tangible form. It should be noted that the copyright law protects a recorded expression but not a mere idea to express.
In order to bring an action in copyright infringement, the copyright owner / plaintiff must prove on the balance of probabilities that his work is original and is the result of his skill, judgment and effort and there has been substantial copying or taking by the defendant, resulting in more than coincidental similarities or sometimes even being identical. Original or originality was defined in Sawkins v Hyperion Records Ltd [2005] 1 WLR 3281 as ‘the author originated his work by his efforts rather than slavishly copying it from the work produced by the efforts of another person.’ He also has to prove the infringing work is substantially similar and that the original work is the source from which the infringing copy is derived. Interesting to note that the mens rea or intention of the defendant in primary infringement is immaterial, in other words, plaintiff does not have to prove any knowledge on defendant’s part.
In order to judge or prove substantiality, the defence counsel in Ravenscroft v Herbert [1980] RPC 193 suggested the followings should be taken into account: 1. the volume of the material taken; 2. how much of such material is the subject-matter of copyright; 3. whether there has been any animus furandi(the intention to steal) on the part of the defendant as equivalent to an intention of the defendant to take for the purpose of saving himself his labour and 4. the extent to which the plaintiff’s and the defendant’s books are competing works. (With respect, I do not agree with the third item because unlike secondary infringement like selling infringing copies, the defendant does not need to have any malicious intent. So far as he tries to avail himself of others’ effort by copying the work of another in a substantial degree without acknowledging the source, that already amounts to infringement.) I personally think the test as illustrated in Francis Day & Hunter v Bron [1963] Ch 587 is more comprehensive. The first limb is there must be sufficient objective similarity between the infringing work and the copying work, or a substantial part thereof. This could be determined by the judge’s perception of fact and expert evidence tendered to him. The second limb is the copyright work must be the source from which the infringing work is derived. This limb is a subjective one. The alleged infringing work may be an identical reproduction of the original work with all its idiosyncracies and all the mistakes. It may be argued as complete coincidence but if the method of development of the infringing work is very distinctive and idiosyncratic, then it may preclude the argument of coincidence.
It is necessary to emphasize that copyright can be used to prevent copying of a substantial part of the relevant form of expression (the work), but it does not prevent use of the information, thoughts or emotion expressed in the copyright work. Per Sawkins
Subject-matter of Copyright
According to section.4 to 9 of CO, literary work, musical product, film, dramatic work, sound recordings, artistic works, graphical works / plans (cf the product of a design) are all under the protection of copyright law so long as they are the original works. And the copyright law protects only work which is the result of the compilation of skill, judgment and effort. However not everything in writing is copyrightable, or worth protecting. The law is not interested in something common which requires no exercise of skill, judgment but merely effort.
The English Court in Baily v Taylor (1829) 1 Russ & M 73 held copyright did not subsist in a table, where the information therein is entirely factual, there is no design freedom and no room for taste and judgment. And this principle was further consolidated in Feist Publication v Rural telephone Service (1991) 111 SCt 1282 where it was held that the White Page telephone directory was not protected by copyright because that section was the effort only but required no application of skill and judgment. It was basically a question arranging names in alphabetical order and including address and telephone number and hardly copyright material. More importantly, the Court in Kenrick v Lawrence (1890) 25 QBD 99 said there is no copyright in subject that could not be represented in any other way but the one in question. The law simply would not allow monopoly of an ordinary way of expression. Anyone would agree that you have no better way of arranging names in an orderly way other than by their alphabetical order. But situation would be otherwise if a phone directory is arranged in the form as the Yellow Page where there is a classification system and advertisement in it. A good illustration to this principle, is a standard employment contract or a legal document that you have to sign when you are going to buy a flat. You could not argue there subsist any copyright, since there is no alternative way to present the content or message thereof.
Another finding of this case was that only something special in the way of artistic treatment, would be worthwhile to be protected. In case of a sculpture of craftsmanship, it is copyright protected as opposed to a piece of furniture which is the product of mass production and is subject only to the protection of the law governing design, another regime of Intellectual Property Law.
The law disallows the monopoly of a method or mean of communication. It is not the compilation of a table that attracts copyright, but the compilation of information requiring a certain degree of skill and judgment that attracts copyright. But mind you the subjective quality of the work, would not affect its entitlement to the protection of copyright law. As expressed in University of London Press v University of Tuition Press [1916] 2 Ch 601, the word ‘literary work’ covers work that is expressed in print or writing, irrespective of the quality or style. Copyright, as mentioned above, is not concerned with originality of ideas but with the expression of thought. Fair enough since substantial value of a piece of writing is very subjective, that depends on personal taste and varies from person to person. While a boring cheap paperback may have no literary value at all, it would not be denied of copyright, so long as it is an original work and is written by the writer’s employment of his skill, judgment and effort.
Word or style of writing not a subject of copyright
If we apply the above legal principles, I should say, with greatest respect, that the argument of a particular word or phrase in the title of a book or a particular style of writing being copyrightable, is totally without any merit. By looking back to the history of English literature, you would have no difficulty to observe there have been numerous literary works bearing similar names. Like L. M. Alcott’s The Little Woman, Wilkie Collins’s Woman in White and D. H. Lawrence’s Woman in Love, all bear the most common English word ‘woman’, but I am sure nobody would suggest either of them could claim copyright for this single word and forbid other people using the same word in their book title. Because there is no other alternative to describe a grown-up female, except the use of the word ‘woman’. Besides, you would not be able to argue the use of this single word requires any skill, judgment and effort on the writer’s part. Above all, the title of a book or one single word or phrase, could hardly be called as literary in light of the definition provided in section.4 of the CO where it is stated that literary works mean “a compilation of data or other material, in any form, which by reason of the selection or arrangement of its contents constitutes an intellectual creation”. It was further elaborated in Exxon Corporation v Exxon Insurance Consultants International Ltd [1981] 3 All ER 241 that the term original literary works was “a composite expression denoting a literary work intending to offer information, instruction or pleasure in the form of literary enjoyment.” As the title of a book, a song or a movie is something of triviality that hardly qualifies as an intellectual creation or intends to offer information in a significant form, it certainly is not a subject of copyright and is by no means actionable.
However, please note that unlike arithmetic, the study of law is an art and nothing of an artistic nature is absolute. A name or title being expressed in a particular way may be an arguable case of copyright infringement but that is a rare exception.
In relation to the style or format of writing, the best illustrative example is Sir Arthur Canon Doyle being an eminent writer in the genre of crime fiction, did not prevent Agatha Chrisite, G. K. Chesterton, or Dick Francis to write detective novels. Or the publication of J. R. R. Tolkien’s Lord of the Ring and C. S. Lewis’s Chronicle of Narnia, would not result in J. K. Rowling and her publisher for being charged with copyright infringement, in spite of the fact that all these three novels are centered on fairies and monsters in an imaginary world. Actually I wish to point out that in Agatha Christie’s novels, the Belgian detective Hercule Poirot and his stupid side-kick Captain Hastings are no more than equivalents to Doyle’s Sherlock Holmes and his roommate Dr Watson, yet there had never been any challenges of copyright infringement. By material alteration to the plot, characters, storyline etc, allegation of infringement is thus avoided even though a similar story is written. It was held in Interlego v Tyco Industries [1989] AC 217 that even relatively small alteration may, if material, suffice to convert that which is substantially copied from an earlier work into an original work. Even without resorting to our law for an answer, any right-minded person would disagree that anyone in a world allowing freedom of creation and expression, could monopolise a particular genre or form of writing by claiming copyright infringement.
When competing works share the same source of information or reference
Question may arise in a situation where two different authors obtain their source or inspiration or information from the same source or public domain. This is very common in cases where two or more copyright works share similar or identical theme or source of information. In Harmon Pictures NV v Osborne [1967] 1 WLR 723 the plaintiffs were the copyright owner to a reproduction in cinemagraphic form of a book while the defendants produced a film based on a historical event depicted in the plaintiffs’ screenplay. In giving judgment Goff J dealt with the situation where ideas or schemes or systems or methods are sought to be protected:- he ruled:
“ another person may originate another work in the same general form, provided he does so from his own resources and makes the work he so originates a work of his own by his own labour and industry bestowed upon it.”
And over 10 years later, Buckley LJ in Elanco Products Ltd v Mandops Ltd [1979] FSR 46 affirmed Goff J’s finding in Harmon Pictures saying:
“the plaintiffs cannot claim a monopoly in historical facts. The law of copyright does not preclude another author from writing upon the same theme … otherwise one would be driven to the conclusion that the plaintiff has monopoly of the facts … [only] if the plaintiff had research and selected which facts to use, and had expended substantial labour in making that selection, and a substantial amount of his labour had been taken by the defendant, then there might be infringement … I am inclined to accept that a historical work is not to be judged by precisely the same standards as the work of fiction. The purpose of a novel is usually to interest the reader and to contribute to his enjoyment of his leisure. A historical work may well have that purpose but the author of a serious and original historical work may properly be assumed by his readers to have another purpose as well, namely to add to the knowledge possessed by the reader and perhaps in the process to increase the sum total of human experience and understanding. The author of a historical work must, I think, have attributed to him an intention that the information thereby imparted may be used by the reader, because knowledge would have been sterile if it could not be applied.”The ratio decidenti of these two cases were cited with approval by the Chancery Division in the latest sensational litigation on copyright infringement allegedly committed by the author of Di Vinci Code, Dan Brown in Michael Baigent, Richard Leigh v The Random House Group Limited [2006] EWHC 719. In summary, it was held there was no copyright infringement by Dan Brown on the grounds that (1) the book of Holy Blood and Holy Grail has no central theme, (2) there has been acknowledgement by Dan Brown to the claimants’ work, (3) there has been no substantial similarity of these two works or any substantial taking by Dan Brown, and (4) relying on the above reasoning, that information available from the public domain is open to everyone and having a similar theme would not render the claimant’s claim successful disregarding other factors.
By applying the principles of these two judgments, it is observed that the issue of copyright infringement would not arise merely because the two books sharing the same theme, say, a satire to the education system or school administration or learning as a whole. Nor would the action of infringement sustain, when the alleged copying work originates its source of information from the public domain which is available to everyone. Be it a historical fact or just sensational news widely reported by the press, nobody could disallow others originating their works from it. For example, anyone could write a novel on the First World War by researching on this subject. Writers of those reference books could not claim copyright infringement against those who writes a story of romance or suspense with the use of Sarajevo Incident as a background.
Life of Copyright
Having been asked this quite often, I think the length of copyright is a concern to those who write. The duration of a copyright work lasts for 50 years counting from the end of calendar year of the copyright’s owner’s death or 50 years from the time when the work is published or released. For example, if Ni Kuang dies on 15th May 2009, then the copyright of his works expires by 31st December, 2059. But one should note that even when the copyright has been licensed or assigned, authors still enjoy the moral right till the end of the world which means you cannot falsely attribute his works to another person, but the author himself alone.
The above is only my limited observations on the subject and no more than a way to kill my leisure time after work, so please don’t take it for more than its worth.
奇法異律
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)。
八卦新聞裏嘅法律知識
噚日打開份娛樂版乍見半紅不黑的Solar兄弟被索償二千幾萬毁約賠償，今趟，佢兩兄弟真係賣身都唔掂，不過唔知有邊方高人教路，佢哋識反駁受外界不當影響(undue influence)而簽咗份約。結果係點無人知，不過差不多一年前三色台有位樣子俊朗的小生，鹹魚翻生後被佢過氣兼外號「樂壇吸血鬼」的師父索償，搞到有一排成個靚樣down哂，見到都心痛。
事緣咸豐年前靚仔小生被吸血鬼昆咗簽份賣身契，話以後都要將佢每年一半收入去孝敬吸血鬼。後來靚仔小生人氣下滑，唯利是圖嘅吸血鬼就將佢賣斷去寶島，過住有家歸不得的放逐生活。前兩年靚仔獲三色台女高層垂青，人氣即時V型反彈，吸血鬼就飛撲出嚟揸住張賣身契叫靚仔鎊水，諗住撈點油水。
呢單嘢有幾個頂癮合約法的觀點：(一)普通法話要構成有效合約要有4個元素，即offer, acceptance,consideration(代價)及 intention to make legal relation。吸血鬼叫靚仔簽賣身契要將未來每年一半的收入俾佢，吸血鬼自己攞盡着數，但靚仔就無條件咁送錢俾佢，講衰D就係蝕哂大底，但consideration據我理解係互惠互利，各取所需，而在缺乏consideration的情況下，呢份賣身契就無效(void)兼無約束力(not binding)；(二)呢份完全益哂吸血鬼嘅合約，佢作為靚仔小生的師父，應該俾靚仔响畫隻龜之前諮詢獨立意見。法律上有兩種undue influence，一叫actual undue influence，即係你揾張刀「行」住人條頸，咁就算叫對方俾晒副身家你，人哋梗係要揸頸就命；另一隻叫presumed undue influence，即係就算你無「凶」人，但由於你兩條友關係親密，法律上已假定你有向對方使用不當影响，呢種假設關係包括夫婦，醫生與病人，律師與客戶等，總之係一方會信賴另一方的情形。
所以係响樓宇按揭的情況下，如果夫婦要抵押共同擁有物業作配偶周轉之用時，銀行必會要求另一方揾獨立法律意見，以免最後因為發現有不當影響後，void咗份借貸合約，好似次按咁血本無歸。另外要打undue influence，仲要證明份合約會導致一方遭受巨大不利(manifest disadvantage)，有單鬼佬案叫Goldworthy v Brickell [1987] Ch.378條番鬼官Nourse L.J.話﹕
…the presumption is not perfected and remains inoperative until the party who has ceded the trust and confidence makes a gift so large, or enters a transaction so improvident, as not to be reasonably accounted for on the ground of friendship, relationship, charity or other ordinary motives on which men act.
講真D，就係稍為有腦嘅正常人都唔會做D咁白痴兼戇居嘅承諾或交易。聽講簽份賣身契時，靚仔信哂吸血鬼，對佢當成恩師咁，聽哂佢話，咁嘅勢吸血鬼就深受靚仔信賴，點會估到佢咁仆街俾塊西瓜皮佢踩。再加上直到死為止都要攞一半收入去養呢條貪得無厭爛賭到唔恨的吸血鬼，真係同俾咁半條命佢無分別，如果咁都唔叫manifest disadvantage，咁就真係殺咗人都唔使填命囉；(三)最後一點就係打民事索償要講時限，一般毀約索償期限為六年，淨係靚仔响寶島過非人生活就已差唔多有六年。咁多年都唔去追人，過咁耐先掘番份陳年老約出嚟，吸血鬼你收擋啦，你嘅追索權同你個人一樣，過晒氣。
吸血鬼查實運氣衰到貼地，幾個月前我有個同事响澳門永利撞見佢賭錢，個衰樣就霉過梅菜，買邊瓣就輸邊瓣，咁無運行，如果真係癲到去告有三色公仔箱撐腰嘅靚仔就聽輸堂費破產，瓜咗都無錢俾殮葬費。
邀劍客促膝詳談
首先多謝各位劍客的抬舉，小弟資歷淺，學識有限，實稱不上什麼「高手」，充其量只是名好事之徒，我跟艾勤賢相比，相去甚遠，對各位連番褒揚我委實汗顏之極。鑑於你們的問題複雜，當中不少事情還有待考究，故很難在這裏三言兩語講清楚，若諸君有興趣的詁，咱們大可相約倉海君等人一起把酒詳談。
不過我亦想在此回覆你們的疑問。倘若覆核成功法院會頒下以下幾種判令﹕(1)Certiorari(移審令)﹕取消或廢除原先決策當局的決令，勅令它重新處理；(2)Mandamus(履行責任令)﹕強迫有關單位做某些事或決定；(3)Declaration：宣佈先前的決定無效；(4)Injunction(禁制令)﹕可分暫時性及永久性兩種；(5)Damages(賠償)：一般情況下，法院是不會判申請人獲得賠償。而由於(1)及(2)是所謂prerogative order(特權)，只適用於公共機構行使法定權力(statutory power)的情況，即該機構是按照法例(如九廣鐵路條例、平等機會條例等)賦予的權力行事。若體育總會是不受任何條例約束或其權力不源自某條法例(如地鐵從地下鐵路條例獲得權力一樣)，那法院只能以Declaration宣佈有關禁止參賽決定無效。
由於司法覆核這話題沉悶非常，故我只能盡量簡短說明，敬請見諒，其他細節還待大家圍爐煮酒時再論。
江湖遊俠聯袂申請司法覆核
想不到我那些沉悶的法律文章也有人欣賞。承蒙K兄這類劍客看得起，浪跡天涯的劍客的確是頗浪漫，小時候我便非常仰慕古龍筆下那部《陸小鳯》中的天下第一劍，萬梅山莊的西門吹雪，一襲白衣，襯上那高傲中略帶孤獨的神色，劍人合一，猶如神話人物般。
說回正題，我不太明白你「外人」的定義，我猜是有運動專門資格的普羅大眾。在這裏我要提醒各位劍客們，在申請司法覆核前，你們必需要是錯誤決策的受害人，簡單點就是你們或覆核的申請人早已向體總提出參賽申請而遭拒絕(跟不符合資格不一樣)。另外，倘若體總內有上訴機制的話，你們必需先循有關機制上訴後不果，方能向法院提出覆核申請。
按高院條例(High Court Ordinance)及民事程序(Rule of the High Court)，只有高等法院原訟庭(Court of First Instance)才可審理司法覆核申請，而只有訟務律師(即大狀)才可代客人出庭申請。整個申請覆核程序是依照Rule of the High Court Order 53/RHCO.53來進行，大可分為兩個主要步驟﹕(一)是先向法院申請覆核許可(application for leave to review)，法院於這階段只會看看申請人是否有足夠理據(ground to review)，而不會審閱申請人及答辯人的證據，而是次申請一般只需申請人出席(ex-parte application)；(二)獲法院許可後法庭才另擇日子審理覆核。換句話就是，獲覆核許可不代表最終會獲判勝訴，等於去飲茶要攞籌一樣，有籌唔代表即刻有位，不過若連籌都無，就肯定無位。另外，所有覆核申請必須要在有關決定(體總否決參賽權)作出後的三個月內提出(Practice Direction 26/8/98)，否則法庭大多會以逾期申請為由判申請人敗訴。粗略估計，你們申請覆核的理據是「不合理」(irrationality)，即指體總的決定/裁決不合理──Wednesbury unreasonableness。
不過依我而言，什麼法律程序都是虛的，「磅水」才是實的，因為沒有錢，律師如投幣機動遊戲般，是不會郁的，好像去戲院看電影要先購票一樣，律師跟神仙不同，要食飯，要供樓。很難確實所需費用，不過走不出六至七萬，若五行欠水的話，可去申請法律援助。順帶一提，司法覆核是門高深學問，有別於買樓或立遺囑，不是一般律師都懂，「唔懂」不等於無料，只是平素不涉及此等工作而已。
至於勝算有多高，則無從稽考，正如兩夫妻房事完畢，亦不代表妻子一定有喜。
覆Katana兄問題一則及澄清通櫃指控
多謝Katana兄讀我那篇講及長毛的劣文，留言中K兄問及體育總會內有小撮人在股東大會呼風喚雨(玩嘢)一事。小弟拙見是體總有可能屬於具公共效能的私人機構(a private body serving public functions/statutory functions)(1)，當然接受政府資助金是公共機構的特點之一，在Hong Kong Polytechnic University v Next Magazine(理工大學訴壹週刊)[1997]7 HKPLR 286中，上訴庭指出除政府資助外，公共機構的行事還需要以公眾利益(public benefit)作依歸及某程度上受政府監管。若體總還符合以上兩個條件，它就真正是公共機構。不過並非所有公共機構的決定均可被法庭覆核。法院還需看看有關決定是否涉及公眾利益(public interest)，一般人事升降絕對只屬體總內部事務，與公眾利益無關，法院不會接受有關的覆核申請。
再者，體總的小撮股東如不滿股東大會的決定，那只涉及公司法的層面，若股東大會的決定與體總的memorandum及articles有抵觸，則小股東大可以用公司條例(Companies Ordinance)第168A條向法院申請宣佈無效或禁制令。但一般股東與體總間的糾紛按Ng Kin, Kenneth v Hong Kong Football Association Ltd[1998]1 HKLRD 866的判決，只屬兩者的合約問題，因為在股東入股體總時己表明接受以合約形式受體總的公司章程(Articles of Association)約束，故一切糾紛需循章程內的途徑解決。另外如股東大會的決定對小股東構成不公及有壞(unfair and prejudicial)影响，那他們亦可要求法院勒令體總向他們購回股份。簡單點，個Party被人搞寸咗，咪去第個囉。(2)
在此亦多謝道士的意見，的確「通櫃」已漸漸成為了我文章中的常用詞語，不過強調與fixation無關，只是寫慣了一時三刻改不掉，好像地盤工人跟友人說話亦常把「x你老母」掛在口邊，並非真的想幹對方的母親。
注：
(1) 以公司形式成立的，不一定是私人機構。
(2) 但是一般市民因沒有股份或投票權，除了申請司法覆核外，就沒有申訴資格(standing/locus standi)去用公司法的彌補方法(remedies)。倘若K君所言屬實，體總在甄選或考核申請者的參賽資格時，把一些不應被考慮的因素如私人恩怨也併入考慮之列時，則有違自然公義(natural justice)，法律上稱為有違Wednesbury reasonableness:
The court is entitled to investigate the action of the local authority with a view to seeing whether they have taken into account matters which they ought not to take into account, or conversely have refused to take into account and once that question is answered in favour of the local authority, it may still be possible to say, although the local authority have kept within the four corners of the matters which they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it.(Associated Provincial Pictures House v Wednesbury Corporation [1948] 1 KB 223)
在英國有一類似案例，案情是英國政府因不滿南菲的種族隔離政策，「要求」一足球會擱置到南菲參與比賽，在遭拒絕後，竟禁止該足球會使用政府的足球場練習及比賽，最後有關行政決定被法院覆核，且該決定被裁定為濫用權力。(Wheeter v Leicester County Council [1985] AC 1054)
Who will pay ? Bernard Luk(陸鴻基) or Arthur Li(李國章) ?
I have never paid much attention to this soap opera as it just reveals another clumsy and stupid attempt of our government officials at holding reins over their subordinates at the tertiary institutions who are becoming more rebellious in response to their oppressive control. Even after the sensational Robert Chung (鍾庭耀) Pollster Incident in 2000, our government officials are still too stubborn to grasp the art of officialdom and learn when to keep their mouths shut and put their hands off from some “delicate” issues. What has aroused my interest, is the letter sent by Arthur Kwok Cheung Li(李國章)’s legal representative Simmons & Simmons(西盟斯律師行)dated 16th February 2007 to Bernard Hung Kay Luk (陸鴻基) accusing him of defamation. Strangely enough, the said letter is not followed by any writ of summons from High Court (only High Court has jurisdiction to try defamation case). I believe his lawyers are anxiously looking forward to the outcome and ruling of the Inquiry chaired by Mr Justice Woo, which would by all means affect any future litigation of their client on this matter.
In the said letter, there cited a commentary or article written by Bernard Luk saying “例如幾年來每每有教院同仁在報章發表批評『教改』或教育政策和施政的文章，隨後即有高官打電話來要求莫禮時『炒』這位那位同事” (For example, throughout all these years, no sooner were some articles published by our colleagues at the Institute of Education criticizing the educational reform or educational policies and its execution, than certain high-ranking government officials would call up Morris requesting him to ‘fire’ this or that colleague). This statement is challenged as being defamatory in context though it does not mention any names.
Under the law on defamation, in order to bring action on defamation, the Plaintiff must prove (1) a defamatory statement, (2) made by the defendant or his agent directed to the Plaintiff, and (3) is published. And while there are two forms of defamation namely libel (defamation in permanent i.e. in writing) and slander (defamation in transcient form i.e. by speech), any verbal statement made through the mass media i.e. radio broadcast will become libel despite its impermanent form. And according to my limited knowledge, the main difference between libel and slander is that the former is actionable per se, which means the Plaintiff does not have to prove any damage before awarding damages whereas the latter requires the Plaintiff to show certain degree of loss and damage suffered. By looking at the aforesaid statement alone, although it did not indicate Arthur Li being that high-ranking official who made that outrageous request, yet if any reasonable reader of that statement could infer from its content that Arthur Li is that particular official by virtue of his or her knowledge and understanding in connection to the whole matter, then this statement becomes an imputation known as Innuendo per Tolley v J S Fry & Son Ltd [1931] AC 333 and is actionable. Moreover according to Clerk & Lindsell on Tort (17th ed) [21-32], a person who pursues any office, profession, calling, trade or business may have an action if he be slandered in respect of it. So any defamatory statement in connection with Arthur Li’s office as the Secretary for Education even though his name is never mentioned at all, it is actionable per se without the request to prove loss and damage.
But when Bernard Luk pointed out in the said letter that “遲至拙文發表之後三天才向記者澄清這位「高官」不是李局長，此舉不足以清除因為傳媒先前誤會而對李局長清譽造成的損害” (it was not until 3 days after the publication of Bernard Luk's article that he came to clarify with the reporters that Director Li was not that ‘high-ranking’ official, this move is not sufficient to vindicate the damage caused as a result of the press’ misunderstanding on Director Li),I was quite puzzled because even after flipping through the content in Clerk & Lindsell on Tort on defamation, I found not a single paragraph or sentence saying inaction alone i.e. a failure to make timely clarification, is an aggravating factor to defamation. I really wish those learned lawyers at Simmons & Simmons can point out to me from which case authority or text they found support to their allegation. From the literal meaning of this statement, Bernard Luk’s liability, if any, is mitigated to a large extent since he bothered to clarify the truth with the press, who had misinterpreted the true meaning of his statement. He did not turn a blind eye to the stigma that had tainted Arthur Li’s reputation. Though motive or intention is immaterial in an action of defamation, such attempt of clarification would and should definitely be taken in account by the future trial judge in his ruling and the assessment of damages. With greatest respect, I do not quite agree with the lawyers of Simmons & Simmons.
When confronted with a cause of action on defamation. The simplest and most straightforward defence available is that of Justification. Any such ridiculous requests made by officials in response to critics attacking them, would never take me by surprise and if what Bernard Luk mentioned in his article is true or if a finding to the same effect is later ruled by the Inquiry, the action on defamation could hardly be sustained.
Another defence open to Bernard Luk if an action is really brought, is Fair Comment. Certain criteria are set out by the law in raising the defence of fair comment, (1) it must be a statement of comment not a statement of fact, (2) concerns public interest, (3) the motive of making such statement must be made without malice, and (4) the comment made must reasonably be derived from the surrounding fact or text. (Note: the fact from which the comment is based on must be true) Requirement (2) could easily be satisfied since everyone would agree education reform or academic independence, concerns public interest. Requirement (3) has now become a very low threshold ever since the Hong Kong Court of Final Appeal deviated from the common law principle and ruled in Paul Tse W. C v Albert Cheung [2000] HKC that so long as one of the many motives is honest and without malice, the comment is still a fair one despite the other motives of the statement-maker are malicious. Requirements (1) and (4) are closely connected since if the alleged statement is one of fact, we do not have to consider (4).
On the face of the statement quoted in paragraph 2, it appears to be a statement of fact to me since it is more than just an inference or remark. In Telnikoff v Mateusevitch [1992] 2 A.C.343, the English House of Lords ruled the court should consider the statement itself without the help of the subject matter to which is alludes. So in deciding whether Bernard Luk’s statement is a comment, we do not have to examine other parts of his article. If we divide his statement into two parts, the first half is harmless since it does not relate to Arthur Li or any officials, but the second half “隨後即有高官打電話來要求莫禮時『炒』這位那位同事”( certain high-ranking government official(s) would call up Morris afterwards requesting him to ‘fire’ this or that colleague) impliedly refers to a particular group of people or person. Owing to the ambiguity of Chinese language, 有高官(certain high-ranking government official{s}) could either mean a group of high-ranking officials or just one single official holding a high post. Normally if the defamatory statement is directed to a class of persons, then no individual of this group could bring action. However there will be an exception if that particular class is a limited one, for example owners of a building or owners of a partnership company. However literally speaking, 有高官 does not confine just to officials from the Bureau of Education, it could be officials from other departments as well. Moreover, the adjective 高 is so vague that it does not lead us to only a dozen of officials, it could be 3 dozens or over a hundred.
At the closing of the said letter, it says “It is, of course, a matter for you whether you choose to repeat such allegations in the lead up to the Inquiry, although you should note that all of our client's rights are reserved should you choose to do so.」（「在調查委員會聆訊之前，你當然可以選擇是否再重覆這些指控，但請你注意，如果你這樣做，我們的委託人會保留一切追究的權利。」）” Here the lawyers of Simmons & Simmons seem to be manipulating a threat on Bernard Luk not to say something before the Inquiry. While repetition of a defamatory statement is an aggravating factor to liability, some curious readers may ask whether repeating the allegations in the Inquiry is also an aggravating factor. The answer is no. For the defence of Qualified Privilege is open to Bernard Luk if it is repeated in an Inquiry called by the Chief Executive and chaired by a Court of Appeal judge. According to Stuart v Bell [1891] 2 QB 341, qualified privilege could be defined as a disclosure “fairly made by a person in the discharge of some public or private duty whether legal or moral.” If Bernard Luk is called as witness in the said Inquiry, he is duty-bound to tell the truth though his evidence is not sworn as that in an open court. He is therefore obliged to repeat that alleged defamatory statement if he is asked by Mr Justice Woo for instance. So long as he repeats the said statement with a right and honest motives, its repetition during the Inquiry would never be actionable.
Silence Is Always Golden
丁蟹:「法官大人，我唔認罪。」I believe none of you, who have watched innumerable TV programmes since childhood, are unfamiliar with the two golden threads of the English Common Law, namely the right of silence and presumption of innocence. But very few of you, I suppose, have come to know that citizens in fact have NO obligation to assist the police in their investigation, failing of which will NOT lead to the charge of obstruction to police execution of duty (as one might erroneously think). It is the trite law that nobody is obliged to answer the questions raised by the police. Put it in a nutshell, the charge of obstructing police in execution of their duty could not be laid against a citizen only because he refuses to cooperate by answering a question or following the command. When working as a part-time transcriber at the Eastern Magistracy, I once listened to an audio recording concerning a criminal charge of obstructing the police in execution of their duty being laid against a man when he refused to present his identity card to the police for examination. At the end of the trial, the court ruled the accused, who was subsequently acquitted, could not have obstructed the police in the execution of their duty by mere inaction. Of course the case would be contrary if he escaped or actively deferred or interfered with the police investigation.
Moreover, the law does not impose any obligation on us to let the police into our flat even for the purpose of crime investigation, unless the police is equipped with a search warrant issued by a magistrate. The rationale behind is that our home is our castle and shall be defended against any invaders. Upon the same principle, a suspect does not have the duty to answer questions put by the police. In fact, any prudent criminal should never say a word to the police, because his fate will be doomed by just a slip of his tongue. So even if the assailants involved were caught, the police could do nothing when they refused to “talk”. They could not be compelled to talk by violence or threat of force because any oral/written statement obtained from the suspects involuntarily, either because of their fear of prejudice or hope of advantages as represented by a man of authority i.e. police in our case, will render the evidence inadmissible. And unless the police had already collected sufficient evidence to bring charges against them, they had to be released. Furthermore there are the Rules and Directions on the Questioning of Suspect, previously known as the Judges’ Rules, that regulates the mode and manner in which the suspect is interrogated. With reference to Bruce & McCoy on Criminal Evidence (2nd ed), any breach of the said rule may not necessarily result in the evidence becoming inadmissible, so much so it only affects the weight attached to the evidence at the judge’s discretion. But I believe that situation would be otherwise if the breach is so serious that it amounts to sapping the mind of the suspect during the questioning process and accordingly leads to the rise of suspicion on whether the evidence or confession is given by the suspect involuntarily, the evidence concerned should then be ruled as inadmissible by the judge in a voir dire (voir dire is a mini trial on the admissibility of any evidence that are challenged by the defence and should be held before the prosecution case is opened, or the jury empanelled). This nice piece of common law maxim even endows an accused with the right to remain silent in court, as he may choose not to give evidence in the witness-box. And the judge could not draw negative inference from his silence in court according to the judgment of R v Gilbert (1978) 66 Cr App R 237.
Even if the accused goes into the box, he is not obliged and will surely be warned by the judge not to answer questions put forward by the prosecution that would incriminate himself as he is under the protection shield of the privilege against self-incrimination. It is my surmise that any admission of self-incriminatory evidence resulting from the judge’s failure to warn the accused, may become a good ground for appeal or re-trial be ordered.
The presumption of innocence is, in my view, the origin of the right of silence since everyone is presumed to be innocent until proven, an accused does not need to say anything to defend himself. The legal and evidential burden throughout the trial rests on the prosecution and it is their duty to prove the defendant’s guilt beyond reasonable doubt which is the standard of proof for criminal trial as per Woolmington v DPP [1935] AC. This common law principle is further entrenched by article 11(1) of the Bill of Rights Ordinance that says “everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law”.
However, there are some exceptions in which once the prosecution has discharged their burden of proof by establishing a prima facie case against the accused, the legal burden would shift to the accused in adducing evidence to disapprove the prosecution’s case against him. He no longer enjoys the right of silence unless he wants to have a taste of prison life. This situation occurs when the accused is charged of an offence of strict liability, i.e. possession of offensive weapons or dangerous drugs, corruption, secondary copyright infringement, where the accused may plead the statutory defence (usually provided in the ordinance) of his having a honest and reasonable belief that he is not committing the offence at the material times. In Attorney General of Hong Kong v Li Kwong-kut (1993) 3 HKPLR, the Court of Appeal, while affirmed the presumption of innocence, reasoned (1) when on face of the proved facts, it is safe to draw a presumption that it is more likely than not the accused has committed the offence charged [a presumption], (2) the offence in question is of great social evil that the degree of the reversion of the burden of proof is proportionate to the public interest, and (3) it is too difficult for the police or prosecution to collect evidence and be borne with the usual criminal burden of proof [in proving the accused’s state of mind or mens rea], it is thus justifiable to revert the burden of proof to the accused in some exceptional cases. Another kind of criminal offence which requires no mens rea of the accused at all and probably offers no defence to the accused, is that of absolute liability, i.e. not wearing seat belts, spitting.
Surely some of you may think many criminals are able to evade liability by the reliance of the above rules, but is it not in the same way that many innocent parties are immune from being incriminated by the use of unjust and illegal means? While it is important that justice has to be done, it is never negligible for justice to be ensured by procedures and principles, however rigid they are.
An Ancient Practice in the Modern World
Earlier there has been a question posted in this blog (in fact it was a response to my Chinese essay), querying how on earth the practice of male succession right in the New Territories still exists and is so inconsistent with our 21st century modern Hong Kong . Although I am not an expert in this area of law, nor was I given any opportunity to explore it during my study of law degree, I am more than happy to share my limited knowledge to this branch of law with you all blog viewers.
Before discussing land succession in New Territories, perhaps we should first examine the land ownership system in Hong Kong. Theoretically in Hong Kong, there is no private land ownership, or alternatively known as fee simple land in legal context. All land before the handover belonged to the British Crown, and now after 1997, being the property of the PRC government. Thus land in Hong Kong, except the St John Cathedral, is leased out by the government under a lease term or condition of grant, and the said lease nowadays usually lasts until 2047. And under this system, government rent (previously known as crown rent) is payable by all landowners / lessees in Hong Kong. But as the land in the New Territories was not ceded to the British in 1898 as Hong Kong Island in 1842 and Kowloon Peninsula in 1860, and in order to pacify the natives who were once very against the British exercise of sovereignty on their soil, the Colonial government allowed the natives, otherwise known as indigenous inhabitants (原居村民), to retain their land ownership. In fact, in the early 20th century (1908 I guess), the Colonial government hired a group of Indians to conduct a large-scale investigation on New Territories land and eventually they drew up an official land ownership record called the Block Crown Lease, which recorded all the land partitions and owners’ details. The Block Crown Lease as a title document in proving land ownership in New Territories does not pale into insignificance after the handover.
The Small House Policy (丁屋政策), or the exclusive right of indigenous male inhabitant to build a 3-storeyed house on a designated piece of land, has its legal basis under section.7 of the New Territories Ordinance (新界條例)Cap.97 and section.5 of the New Territories Land (Exemption) Ordinance (新界土地(豁免)條例)Cap.452. Under the present system, any male of 18 with paternal ancestry in an established village in the New Territories since 1898, is regarded as indigenous inhabitant. Once coming to full age, they could then bring their applications for the erection of small houses to the District Lands Office (it is a very complicated matter with which I am still struggling). The building of the said small house must be confined to the four corners of the District Lands Office’s prescription and they are not allowed to sell the said small houses within 5 years from their completion. However, many of these people are unable to afford the construction of the houses at their own expenses and therefore they choose to ‘sell’ their exclusive right to some land developers under a ‘secret’ agreement long before their applications. So in name the titles of ownership to the small houses are still retained by the indigenous inhabitants, but in fact they all belong to the land developers.
It is noteworthy that the right of indigenous inhabitants in relation to succession and land ownership also has its constitutional status by virtue of article.40 of the Basic Law, according to which the interest of the indigenous inhabitants is protected by the Hong Kong Special Administrative Region. Inevitably any attempt or legislation with the intent to abolish such system of inheritance would be ruled as being contrary to the Basic Law and unconstitutional by the court.
This unique system gives rise to another interesting exception to the English common law. According to the English Trust Law, capital of a private trust must be disposed of after 80 years since its creation and no trust ownership in relation to land could last more than 80 years as provided in section.6(1) of the Perpetuities and Accumulations Ordinance (財產恆繼及收益累積條例) Cap.257. Yet land ownership by clans, namely the Tsos (祖) and Tongs (堂), would fall outside the ambit of this rule. Tsos and tongs are respectively Chinese family trust funds that are administrated by a manager, usually a respectable family member, and hold lands for the benefit of the family descendants and for the purpose of the ancestral halls and tombs maintenance.
I remember long before the handover, the ex-Legislative Council Member Ms Christina Loh’s(陸恭蕙) proposal to abolish the indigenous inhabitants’ succession right was met with vehement protest and uproar from the villagers outside the Legislative Council and Mr Kan Ping Chee(簡炳墀), one of the most outspoken ‘elites’ in the New Territories, even openly incited the villagers to rape her. Strangely enough Kan was never prosecuted or threatened to be prosecuted or reproached by the public/media for his vulgar outspokenness while last Summer a disc-jockey of Commercial Radio Sammy Leung Chi Kin(森美)was nearly prosecuted for a harmless ‘practical joke’ he made in his programme. This further attests there is no equality before law.
Prostitution and Undercover Investigation
An anonymous reader asked:
Recently I came across a piece of news that relates to an old lady ( over 70) who was prosecuted for soliciting for an immoral purpose. The old lady was arrested in a guesthouse in Shamshuipo and inside her purse the police found a bottle of lubricant. Police suspected that she was a prostitute and she was arrested and charged with the crime of soliciting for an immoral purpose.(forget about exact details)Grateful if you can explain:1. Prostitution is not illegal in Hong Kong, but why did police arrest her?2. How can police prove that she is soliciting for an immoral purpose without the man giving evidence against this poor old lady?2. Police uses undercover police woman to dress as prostitute and loiter in the streets and then arrest any man that come forward and ask the undercover police woman "what is the price"or " do you go" etc. Is this kind of "trap " a propoer legal procedure for the police?Does simply asking the price constitutes soliciting for an immoral purpose?
(From: http://daimones.blogspot.com/2006/08/blog-post.html)
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In reply to this question, I’d tell you that the present Law of Hong Kong does not prohibit prostitution, but it prohibits soliciting “in public”. The English case Smith v Hugh illustrated this point very well. In the case, the accused prostitute stood on her balcony overlooking the main street and solicited customers on street. The issue of the case is whether “balcony” amounts to public place. The court answer was yes, it ruled that so long as you are staying in a place where public can see you, it will be public place. In Hong Kong the following acts will be subject to prosecution ( that’s all I could remember ):
1. Controlling a brothel’
2. Letting out a place to be run as brothel;
3. Controlling or managing prostitution activities;
4. Relying on prostitute for income ( ma-fu ).
And concerning the above offence, the burden to discharge liability is on the accused once the prosecution could establish prima-facie case against the accused. The accused could not rely on the right of silence throughout the whole trial. In another word, he has to speak and defend himself.
In relation to the matter of investigation, according to s.50 and s.55 of the Police Force Ordinance, police could stop any person on street if he has reasonable suspicion on the person, believing he has committed, or is going to commit an arrestable offence. But so long as a person behaves strangely or weirdly, a police could stop this person and require him to produce his ID card. S.50 of the same ordinance governs the power of arrest. In fact, when it comes to the power of arrest, only the subjective view of the policeman is relevant. It does not require any objective standard, unlike that of the “reasonable suspicion” in the situation of stop and search. So police had little difficulty in searching or even arresting the old prostitute.
Lastly, it is the cardinal principle of Criminal Law that “entrapment” is NOT a defense and does not affect guilt. However, “entrapment” is a ground for mitigation, and the court is erred if the fact of entrapment is not taken into account by the sentencing judge. Of course, the discount depends on fact. ( Sentencing in Hong Kong Cross & Cheung 3rd ed )And the court opines the undercover police or agent is necessary in crime investigation. There has been a case where police detective posed himself as prisoner in Lai Chee Kok Remand Centre and overheard conversation between two real prisoners. Court ruled those overheard statement were admissible. Another authority on undercover agent is Secretary for Justice v Lam Tat Ming [2000] HKLRD where the Court of Final Appeal ruled that the court has discretionary power to allow what evidence is admissible and the paramount rule is whether the evidence / confession of guilt was made voluntarily by the defendant and if it is given voluntarily, court then has to consider the role of the undercover again in obtaining the evidence, whether it is active or passive. On top of that, I may add that according to English Common Law, even if the evidence is obtained by illegal way, it is still admissible so long as it is relevant. There is no “fruit of poisonous tree”.
Supplementary note to the Easy Finder Incident
When there could hardly be any criminal sanction available to Gillian at this stage, she may have to rely on civil action. As discussed earlier if she could rely on the Personal Data (Privacy) Ordinance Cap 486, the crucial matter is whether her photo is a personal data according to the law. According to Eastweek Publisher Ltd v Privacy Commissioner for Personal Data CACV331/1999, Ribeiro JA disagreed with Mr John Griffiths QC SC submission that a photograph could not be personal data. In fact, whether it could be personal data depends on circumstances. The court was of the view that “if someone’s photograph is taken with a view to its inclusion as part of a dossier being compiled about him as an identified subject, the act of photography would clearly be an act of personal data collection”, and then the second hurdle that Gillian would have to come through is to prove the collection of personal data is done by unfair means in the circumstances of the case. It is never the case that taking pictures of actors or film stars is against the ordinance so long as they are taken openly instead of an illegal mean as in the present case. Another essential element for proving personal data is whether the identity of the subject in the picture could be identified or sought to be known by the press or magazine, Easy Finder in the present. In the “Eastweek” case, the victim was phothgraphed with the intention to criticize her hairstyle and fashion taste, her identity was of no interest to the reporter. The court further ruled that “her identity would remain as secret had she not been lodging an action with the Commissioner for Personal Data. But in the present case, Gillian’s identity was of interest to both the magazine and the data user, so legally speaking, the picture of Gillian is personal data.
However, the court in this case stressed that the legislative intent of the Personal Data (Privacy) Ordinance is to protect “privacy of individuals in relation to personal data, and to provide for matters incidental thereto or connected therewith”. It does not intend to establish general privacy rights against all possible forms of intrusion into an individual’s private sphere. In fact when the HK Law Reform Commission drafted this piece of legislation, they did not intend to extend the scope of the law to things like “interest in freedom from interference with one’s person or personal privacy”, “interest in freedom from surveillance and from interception of one’s communication” etc. Therefore when other actors like Nicholas Tse, Jacky Chan etc, bullshitting their loss of personal privacy owing to the press surveillance or disturbance of the paparazzi, this law is of no assistance to them. The present law is is not suggesting the press or other media organizations fall outside the scope of the Ordinance but it would strike a balance between freedom of press, journalistic value and offensive way of reporting.
