立場新聞 Stand News

【法律年度致辭】最後一次主持開啟禮 馬道立演辭全文

2020/1/13 — 18:00

【文:終審法院首席法官馬道立】

律政司司長、大律師公會主席、律師會會長、各位法官、各位尊貴的嘉賓、女士們、先生們:

我謹代表香港特別行政區司法機構熱烈歡迎各位出席法律年度開啟典禮。我感謝有機會在此向各位致辭,特別有見於過去七個月社會上一些關係到每個人的事情。社會就着司法機構提出了不少問題,對法庭的工作作出了不少評論,亦就我們的法官表達了不少意見。這當中很多都是中肯的,但遺憾的是,有部分是建基於錯誤的觀念和出於誤解,並對法律和法制應有的客觀和恰當概念有所曲解。有些甚至近乎不能接受。鑑於法治對社會的重要,我想在此闡述一下公義這個概念,香港法律制度的運作,以及法庭和法官肩負的職責。許多錯誤觀念和誤解源於部分司法裁決不合一些人的心意。我曾多次指出,人人均有權就法庭的工作表達意見,而我們亦不應期望每宗案件的裁決都備受贊同。然而,當有人純粹因為不滿案件的裁決結果而作出各種抨擊,指法庭並非公正無偏,法律制度並非完善健全,又或針對法官作出極為冒犯的人身攻擊,便有需要向社會大眾闡明法律如何運作,以正視聽。法治經常被認為是香港的核心價值,是香港賴以成功的基石。全然接受這個概念,就必須明白法律如何運作,以及它應當如何運作。

廣告

我先從公義這個概念說起。公義經常被視為難以捉摸的理想,但我想討論的是公義的實際意義。

《基本法》為我們提供了明確的指引,說明法律對每一個人的意義所在;它藉當中訂明的各項權利,提供保障。憑藉這些權利,社會得以繁榮發展,市民得以和諧共處、有尊嚴地生活,社會大眾亦得以為個人及親人的生活作安排。

廣告

《基本法》及得到《基本法》給予憲制確認的《人權法案》列明的權利包括:言論自由,結社、集會、遊行和示威的自由。過去七個月,我們看到許多行使這些自由的情況。然而,為使社會上其他人的權利和自由不會受到不可接受的影響,行使這些權利需要有限制。明白這一點是重要的;我過往稱這為對他人權利的尊重。

因此,法律對權利的行使有明確限制。享用或堅持個人權利,舉例說,不能成為損害他人人身安全或財產,或使用暴力的藉口。有關的限制從我們的刑事法可見一斑。法院在案件的情況有需要時,會全面及合適地執行此等刑事法。

言論自由(《人權法案》稱為意見和發表的自由)的條文清楚說明相關的權利附有特別的責任及義務。因此,有必要時可對此等權利的行使予以規限,例如為了尊重他人的權利和名譽的緣故。和平集會的權利在得到確認的同時,也與言論自由一樣受到限制。結社自由亦然。

由此可見,享用權利及自由亦同時附有責任,而認為他人的權利—  甚或整體社會的權利 — 總不及個人權利重要這個想法並不正確。認同上述權利及責任是我稱為公義的概念的重點所在。

履行公義—  或說是法院日常處理司法工作的方式 — 有一個關鍵的要素,就是審判必須公平公正,因為審判可帶來嚴重後果。民事訴訟方面,法院的判決或會對個人產生重大影響或帶來重大經濟後果。刑事案方面,被告在定罪後如被判處監禁,後果可能極為嚴重。因此,公正審判至關重要。這是履行公義的基本要求,亦載於《基本法》。《基本法》第八十七條訂明,任何人在被合法拘捕後,享有接受公正審判的權利。《人權法案》第十條也反映了這項基本要求;該條訂明:「任何人受刑事控告或因其權利義務涉訟須予判定時,應有權受法庭公正公開審問」。

公正審判具有多個層面。在此,我想集中討論與刑事法律程序尤其相關的其中四項:

第一,無罪假定。這項權利受到前述《基本法》第八十七條的保障。該條文不但訂明任何人都享有接受公正審判的權利,而且規定未經判罪之前均假定無罪。《人權法案》在第十一條第(一)項亦申明這項權利。這是我們刑事法的重要基礎。

第二,《人權法案》第十一條第(二)項(乙)款訂明,任何受刑事控告之人,有權獲給予充分之時間及便利準備答辯。

第三,任何受刑事控告之人,亦有權盡早接受審判。這是《基本法》第八十七條的規定,而《人權法案》第十一條第(二)項(丙)款亦有申明。這表示刑事審訊應在切實可行的範圍內盡早進行。

第四,凡被定罪者,有權就定罪及刑罰提出上訴。控方亦可提出上訴。

當我們因應近期社會事件審視法院的工作時,應牢記剛才談到的公正審判的核心要求及其體現。有意見,甚或批評指法院處理案件出現延誤。正如我之前多次重申,任何人都有權批評或評論法院的工作,而有助完善司法工作的批評和評論更是值得歡迎;不過,批評和評論必須有理可據。就與近期社會事件有關的案件而言,我們必須緊記公正審判的憲制要求,以及我較早前講述關於公正審判的各個層面。

就刑事案件而言,公正審判是指對訴訟各方,無論是控方還是辯方,皆公平公正。絕大多數--我必須強調是「絕大多數」--與近期社會事件有關的案件,在拘捕及落案起訴被告人後的首次法庭聆訊,控方都會請求法庭給予時間(通常長達數周,甚至需要更長時間)以便搜集證據,向律政司就控罪是否合適索取法律意見,然後決定裁判法院、區域法院還是原訟法庭才是適當的法院級別就控罪進行審訊。在這個階段,法庭不會聽取被告人的答辯;而為對控方公平起見,法庭會給控方時間為案件做準備。控方一旦準備妥當,便會提供所有相關的檢控資料給被告人;而被告人亦必須獲給予充足的時間考慮及準備其辯護。當控辯雙方均大致做好準備,案件便會進行答辯;如果被告人不認罪,案件就會在選定的法院級別編定審訊日期。法庭會在實際可行的情況下安排最早的日期進行審訊。

我剛才述及公正審判的各項要點,對於處理近期案件是相關的,與法院處理每一宗刑事案件的情況無異。法庭不論何時都會確保審判公平公正。而如果被告人需等候聆訊,便會出現是否准予保釋的問題。這方面的法例十分明確:除非案件涉及某些特殊情況,例如存在棄保潛逃或干擾證人的風險,否則法庭一般會准予保釋。這做法與無罪推定的原則完全一致。法庭處理案件時並不會假定被告人有罪;恰恰相反,法庭會假定被告人無罪,這是憲制上所規定的原則。

如果被告人被定罪,接下來便是量刑的問題。量刑同樣是基於個別案件的情況而應用相關的法律原則的工作,絕不得任意判決。這方面的法律原則包括參照法庭 — 尤其是上訴法庭—  訂立的量刑指引,以及適當地顧及懲罰、阻嚇、預防和更生這些考慮因素。與法院處理的其他工作一樣,量刑需要小心應用相關的法例及法律原則。

刑事審判得出結果後,控辯任何一方若不滿意結果,均可依法上訴。

我剛才闡述的,為審視法庭工作時,特別是審視法庭處理與近期社會事件有關的案件時,提供了相關的考慮背景。雖則迅速處理案件是可取,但在妥善執行司法工作的過程中亦必須顧及其他因素。公正審判的意思並不是指法庭必須因應被告人的個人或政治觀點作出有罪或無罪的判決:刑事案件的審訊結果取決於審訊時提出的證據,它們是否充分有力,以及控方是否已履行其舉證責任,證明案情達至毫無合理疑點的舉證標準。

我當然知悉法院現時需要處理大量與過去七個月的事情有關的案件。我剛才已提到,在絕大多數的案件,控方會請求法庭給予時間搜集證據,以及就採用甚麼控罪,及該在甚麼級別的法院提控,徵詢意見。絕大多數案件在這個階段根本尚未完成審訊的準備工作。雖則如此,為了應付預期龐大的案件量,司法機構已制定計劃,使這些案件可以在各級別的法院得到迅速處理。司法機構較早前已成立專責工作小組研究我們的法院如何以最佳的方式迅速處理這些案件,當中包括延長開庭時間。我們將會就建議的措施諮詢相關持份者。但是,我必須強調:迅速處理案件雖然有其好處,我們也會致力於此,但亦必須謹記,公平的審訊是至為重要的。

司法工作得以妥善執行實有賴法官履行其肩負的職責。這點常被誤解;法官的責任不在跟隨民眾的意願 — 不論是大眾還是小眾的意願— 作出判決。事實上,法官必須確保審判公平公正,並且嚴格依循法律的要求。緊記這要點至為重要。法官履行職責時,只會以法律條文和法律精神為依歸,別無其他。相對於法律考量,政治、經濟和社會因素完全不在考慮之列。如果法庭在應用法律上出錯,則正如我剛才所述,可按上訴機制一直上訴至終審法院。

以上概述的法官職責重任,是憲制所規定的職責。《基本法》述明法院行使審判權。行使審判權意指所有司法裁決均以法律為依據,別無其他考慮。《基本法》第九十二條訂明法官只根據其本人的司法和專業才能選用。根據《基本法》第一百零四條,所有法官就職時均須宣誓;司法誓言要求法官擁護《基本法》,盡忠職守,奉公守法,公正廉潔,以無懼、無偏、無私、無欺之精神,維護法制,主持正義。這些基本原則必須堅守,不容妥協。

司法誓言包含司法獨立這個要旨。《基本法》第八十五條訂明香港特別行政區法院獨立進行審判,不受任何干涉,其含意正如其字面所言。這個概念雖然簡單,但它對於法官該如何處理司法工作及履行憲制規定的職責,卻是至為重要,其重要性不容貶削。法院的工作是依法解決法律爭議。所有人都必須服從法律,無人可凌駕於法律之上。關於人人平等的保證和規定,在《基本法》和《人權法案》中亦已清楚說明;此等保證和規定確保每一個人,不論其身分地位高低,不管是公共機構抑或一般市民,均受法律約束,並須承擔法律責任,絕無例外。法院執行法律的責任是《基本法》所訂明的憲制規定。我可以充滿信心地說,我和我的法官同僚會堅定不移,無懼無畏地履行我們的職責。

司法獨立並不表示法院不需對社會負責。司法機構及其法官當然要向社會負責,但至為重要的是,社會大眾必須明白法官的職責所在。

正確認識公義的概念、香港的司法工作及法官的職責,方能明白和理解法治的價值所在。法治的各項要素,尤其是司法獨立,《基本法》已有說明及予以明確保證。它們也是關於法律運作的不變要素;不管時世好壞,不管何時總不會改變。

今天是我最後一次在法律年度開啟典禮上向大家致辭。明年一月,我將年屆退休之齡,亦是我退休之時。雖然我尚有不少工作正待完成,但我想在此向大家說,出任香港第二任終審法院首席法官是我專業生涯中最大的榮譽。在我最後一次離開這個講台之前,容讓我再提兩點。第一,我謹此衷心感謝司法機構全體司法同僚多年來給予我堅定不移的支持。更重要的是,他們一直竭盡所能維護香港的法治並履行司法誓言,而我本人亦悉心致力,以此為己任。毫無疑問,他們在下一任終審法院首席法官的領導下仍會繼續如此。即使時世帶來種種挑戰,即使遭受種種批評,他們依然果敢堅毅,克盡厥職。在此,我亦深深感謝司法機構全體員工。多年來他們同樣一直全心全意支持我。他們面對前所未見的挑戰,依然盡忠職守。我向每一位法官和員工衷心致謝;我會惦念你們。

第二點,是一個顯淺易明的訊息。社會應當珍惜法治,法治是凝聚社會的基石,我們必須盡最大的努力加以維護和珍視,因為一旦法治受到破壞,我們的社會要復元將殊不容易。我將時刻以維護法治為己任。同時,我深深相信社會大眾會繼續致力維護香港法治。

最後,我謹祝願在座各位和你們的家人於二○二○年及鼠年喜樂滿懷、平安順遂。

Secretary for Justice, Chairman of the Bar, President of the Law Society, fellow Judges, distinguished guests, ladies and gentlemen,

On behalf of the Judiciary of the Hong Kong Special Administrative Region, I extend a warm welcome to everyone to this year's Opening of the Legal Year. I am grateful for the opportunity to address you on this occasion, particularly given recent events over the last seven months that have concerned every person in our community. Many questions have been raised regarding the Judiciary, many commentaries have been given as to the work of the courts and many views have been expressed regarding our judges. A lot of these have been fair, but unfortunately, some have proceeded on misconceptions and misunderstandings, and distort an objective and proper picture of the law and the legal system. Some have even bordered on the unacceptable. Given the importance of the rule of law in the community, I would like to say something this evening about the concept of justice, the operation of Hong Kong's legal system, and the duties and responsibilities placed on the courts and judges. Many of the misconceptions and misunderstandings arise following judicial decisions not to the liking of some people. I have said on a number of occasions that everyone is entitled to express their views regarding the work of the courts and one cannot of course expect approval of the result in every case. However, when attacks are made against the integrity and impartiality of the courts, or against the soundness of the legal system, or personal and highly offensive attacks are made against judges based solely on the outcome of cases, something needs to be said to inform the community about the operation of the law. The rule of law is often said to be a core value in Hong Kong and a cornerstone of its success. In order to embrace this concept, it is important to understand how the law operates and is expected to operate.

I start with the concept of justice. This is often discussed as an intangible ideal but I wish to discuss the practical meaning of this.

The Basic Law provides us with clear guidance as to what the law means to every person. It provides protection by setting out rights that enable a community to thrive, to allow members of society to live with one another, to live with dignity and to enable members of the community to provide for themselves and their loved ones.

The rights set out in the Basic Law and in our Bill of Rights (which is given constitutional backing by the Basic Law) include the freedom of speech, the freedom of association, of assembly, of procession and of demonstration. We have seen these freedoms much exercised in the past seven months. But it is important to understand that the enjoyment of these rights has limits so as not to affect adversely to an unacceptable level the enjoyment by other members of their community of their rights and liberties. I have previously referred to this as a respect for other people's rights.

Accordingly, we see clear limits in the law to the exercise of rights. The enjoyment or insistence on one's rights does not, for example, provide any excuse to harm other people or their property, or to display acts of violence. Our criminal laws provide a ready example of just where these limits lie and when called upon, these criminal laws are enforced to their full and proper extent by the courts.

The freedom of speech (called the freedom of opinion and expression in the Bill of Rights) states that the rights associated with this freedom carry with them special duties and responsibilities. Their exercise can therefore be restricted, for example, where necessary to respect the rights and reputations of others. The right of peaceful assembly is recognised but are limited in the same way as the freedom of speech. So too the freedom of association.

Therefore, the enjoyment of rights and freedoms also carries with it responsibilities and it is simply not right to think that other people's rights - or even the rights of the community as a whole - should somehow be regarded as less important than one's own. This acceptance is a large part of what I call the concept of justice.

The administration of justice - or the practical way in which justice is dispensed in the day-to-day work of the courts - has as its central characteristic the requirement of a fair trial. Trials involve serious consequences. In the civil sphere, there may be significant personal or financial consequences arising from judgments of the court. In the criminal context, there are potentially extremely serious consequences if terms of imprisonment are imposed after conviction. A fair trial accordingly becomes essential. This is the fundamental requirement of the administration of justice and is reflected in the Basic Law. Article 87 of the Basic Law states that any person who is lawfully arrested shall have the right to a fair trial. Article 10 of the Bill of Rights reflects this by stating in terms that in "the determination of any criminal charge ... or of ... rights and obligations in a suit of law, everyone shall be entitled to a fair and public hearing".

There are many facets of a fair trial. I would like to draw attention to four such facets which have particular relevance in criminal proceedings:

(1) First, the presumption of innocence. This is protected by Article 87 of the Basic Law which I have already referred to. This states not only that everyone is entitled to a fair trial but that there is a presumption of innocence until conviction. This is repeated in Article 11(1) of the Bill of Rights. It is one of the fundamentals of our criminal law.

(2) Secondly, Article 11(2)(b) of the Bill of Rights states that anyone charged with a criminal offence will be entitled to have adequate time and facilities for the preparation of his or her defence.

(3) Thirdly, every person charged with a criminal offence is also entitled to be tried without delay. This is required by Article 87 of the Basic Law and repeated in Article 11(2)(c) of the Bill of Rights.  This means that criminal trials ought to take place as quickly as practicable.

(4) Fourthly, every person convicted of a crime shall have the right to appeal both conviction and sentence. The prosecution may also appeal.

The central requirement of a fair trial and its manifestations which I have just set out should firmly be borne in mind when viewing the activities of the courts in the light of recent events. Views have been expressed, sometimes even criticisms, along the lines that there appear to be delays in the handling by the courts of cases that come before them. As I have said many times, anyone is entitled to make criticisms and comments about the work of the courts and such are to be welcomed if improvements in the administration of justice can be made, but they must be on an informed basis. So far as the cases related to recent events are concerned, one must bear in mind the constitutional requirement of a fair trial and the facets I have earlier identified.

In a criminal case setting, the fairness of a trial means fairness to all sides, both to the prosecution and to the defence. In the vast majority - and I stress the words "vast majority" - of cases related to recent events when they first go before the courts after arrests have been made and charges have been laid, the prosecution will request for time (often amounting to several weeks if not more) in order to gather evidence, obtain legal advice from the Department of Justice as to the appropriateness of the charge laid and then to decide the appropriate level of court to try the charge, whether the Magistrates' Courts, the District Court or the Court of First Instance. At this stage, no pleas are taken and out of fairness to the prosecution, it will be allowed time to prepare its case. Once it has done so, all relevant prosecution materials will then be provided to the accused person who must also be afforded adequate time to consider and prepare his or her defence. When both the prosecution and the defence are more or less prepared, pleas are then taken and, if charges are contested, a trial date is fixed in the chosen level of court. As early a date for trial as is practicable is then given.

All the aspects of a fair trial that I have referred to earlier are relevant when dealing with recent cases, as they are in every criminal case dealt with in our courts. The court will at all times ensure that a fair trial takes place. And when accused persons have to wait for trial, the question of bail arises and in this context, the law is clear. Bail is normally to be granted unless some exceptions apply such as the risk of flight or the risk of witness tampering. This is entirely consistent with the presumption of innocence. The approach of the courts is not to presume an accused guilty; constitutional principles mandate the opposite.

Where persons are convicted of crimes, the question of sentencing then arises. This is also an exercise based on the application of legal principle applied to the circumstances of the individual case. It is not an arbitrary exercise. Legal principle in this context includes looking to the sentencing guidelines set by the courts, in particular the Court of Appeal and due recognition given to the factors of retribution, deterrence, prevention and rehabilitation. As with all other work undertaken by the courts, sentencing involves the careful application of the law and legal principle.

And after the outcome of a criminal trial, if either the defence or prosecution is dissatisfied with the result, there is the availability of an appeal in accordance with the law.

What I have just said provides the relevant context when evaluating the work of the courts, particularly in relation to those cases which relate to recent events. While expedition is desirable, there are other factors that must be taken into account in the proper administration of justice. A fair trial does not mean that there must be a conviction or an acquittal depending on one's personal or political viewpoint: the outcome of a criminal trial depends on the evidence that is presented to the court, whether it is sufficiently cogent and whether the burden of proof (proof beyond a reasonable doubt) has been discharged by the prosecution.

I am of course aware of the volume of cases that are before the courts relating to the events of the past seven months. I have already mentioned that in the vast majority of cases, the prosecution will request for time to gather evidence and to obtain advice on the appropriate charges to lay in the desired level of court. The vast majority of cases are at this moment simply not ready for trial. That said, in order to cope with the expected high volume of cases, the Judiciary has made plans to deal with such cases (at whatever level of court) expeditiously. A task group has been set up for some time now to look into how best and how expeditiously our courts can cope with these cases. Relevant stakeholders will be consulted on suggested measures. These include proposals to sit extended hours. I must, however, emphasise that while expedition is desirable and we will do our best to achieve this, it is important to bear in mind the overall importance of a fair trial.

The proper administration of justice depends on judges discharging the duties and responsibilities incumbent on them. This is often misunderstood. Judges do not have the duty to achieve a certain result in accordance with popular wishes, whether they be majority or minority wishes. However, they have to ensure that a fair trial takes place and to adhere strictly to the requirements of the law. This is critical to bear in mind. In the discharge of their responsibilities, judges look only to the letter of the law and to the spirit of the law, and nothing else. Political, economic or social considerations, as opposed to legal considerations, simply do not enter into the equation. If the courts have erred in their application of the law, then, as I have just mentioned, there is a system of appeals all the way up to the Court of Final Appeal.

The duties and responsibilities on judges as I have just outlined, are constitutional duties and responsibilities. The Basic Law states that the courts exercise judicial power. The exercise of judicial power means that all judicial decisions are based on the law and nothing else. Article 92 of the Basic Law states that judges are only chosen on the basis of their judicial and professional qualities. The judicial oath, which Article 104 of the Basic Law states must be taken, requires all judges to uphold the Basic Law and conscientiously, dutifully, in full accordance with the law, honestly and with integrity, safeguard the law and administer justice without fear or favour, self‑interest or deceit. There can be no compromising of these fundamentals.

Included in the judicial oath is the theme of the independence of the judiciary. Article 85 of the Basic Law states that the courts of the Hong Kong Special Administrative Region shall exercise judicial power independently, free from any interference. This means exactly what it says. The simplicity of the concept must not detract from its paramount importance in the way judges are required to operate and fulfil their constitutional duties and responsibilities. The task of the courts is to resolve legal disputes in accordance with the law. Everyone is subject to the law, no one is above it. The guarantee and requirement of equality, which is also clearly spelt out in the Basic Law and the Bill of Rights, ensures that everyone, high or low, public body or citizen, are subject to the law and answerable to it. There are no exceptions. The duty on the courts to enforce the law is a constitutional requirement of the Basic Law. I can say with confidence that my fellow judges and I will discharge our duties without compromise and without fear.

An independent judiciary does not mean it is not accountable to the community. Of course the Judiciary and its judges are accountable, but it is of critical importance to understand the duties and responsibilities of our judges.

A proper understanding of the concept of justice, the administration of justice in Hong Kong and the duties and responsibilities of judges will enable anyone to comprehend and appreciate the value of the rule of law. These components of the rule of law, in particular the independence of the judiciary, are all referred to and clearly guaranteed under the Basic Law. They are also constants in the way the law operates; in good times, in not so good times, at all times.

Today marks the final occasion I will be addressing you at the Opening of the Legal Year as I will be retiring when I reach retirement age in January next year. There is still much work for me to complete but I wish to say this. It has been the greatest privilege of my professional life to be Hong Kong's second Chief Justice. I hope you will allow me to make two more points before I leave this stage for the last time. First, I want to thank sincerely and from the bottom of my heart my judicial colleagues in the Judiciary. They have over the years given me unwavering support. More important, they have done their utmost to maintain the rule of law in Hong Kong and to honour their oath, as I myself have tried to. And there is no doubt they will continue to do so under the leadership of my successor. They discharge their duties and responsibilities with dedication and courage, and they do so notwithstanding that times may be challenging and notwithstanding criticisms that may be made against them. I also want to express my deep gratitude to all staff within the Judiciary. They have likewise given me wholehearted support over the years. They have shown dedication in the face of unprecedented challenges. I thank you all, judges and staff alike; I will miss you.

The second point is a simple message. The rule of law is rightly cherished by the community and is the foundation of a cohesive society. We must do all our best to preserve it and to treasure it because once damaged, this is not something from which our community can easily recover. I will always be committed to this. I am also fully confident that the community remains committed to the rule of law in Hong Kong.

Lastly, I wish all of you and your families a fulfilling 2020, and a happy and peaceful Year of the Rat.
 

發表意見