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港大法律系講師被撤爭議 強姦言論只屬冰山一角

2017/10/6 — 14:21





我們是一群香港大學法律博士 (Juris Doctor) 學生,曾被港大法律系前講師陶榮博士(Dr. Christopher To)在離職前教過兩節證據法課堂。對於陶博士有關強姦案的言論,我們並無補充。但有見陶博士被校方撤換一事引起公眾討論,我們希望詳述在堂上的第一身觀察,為校方撤換講師的決定提供更多背景。我們亦希望回應近日網上對事件的不少批評,如早前一篇文章《港大法律系講師被撤換爭議 一名港大法律系舊生的回應》。在短短兩節課堂中,我們發現陶博士似乎不但對他所教授的科目欠缺充分認識,更屢有違反教學操守之嫌,早前其有關強姦案的言論或只屬冰山一角。



在他的證據法課堂上,陶博士似乎連一般基本香港法律知識也欠奉。當討論誤殺罪名時,陶博士竟誤以為若被告因精神錯亂殺害他人,法庭會由謀殺罪改判為誤殺罪。然而,根據《刑事訴訟程序條例》第74條,若被告因精神錯亂殺害他人,被告會被判「因精神錯亂而無罪」(not guilty by reason of insanity) 的特別裁決,並多被送往精神病院治療(註一)。當有同學質疑其立場之準確性時,陶博士表示普通法一直在演變,未來或能變成與其主張一致。然而,有同學再指出精神錯亂的免責辯護以《刑事訴訟條例》為基礎,並不完全隸屬普通法,難以動輒如陶博士所說的「演變」。陶博士則回應說,他的主張在其他國家如俄羅斯及日本等或會成立,並批評學生思想狹隘,只在乎香港法律上的正確立場。更令人訝異的是,陶博士亦誤把行政法中用以衡量行政機關政策合理性的Wednesbury原則,當作是憲法中合理關聯性測試 (Rational Connection) 的其中一部分,實在讓人啼笑皆非。


在陶博士堂上使用的PowerPoint中(附於文末),我們發現大量內容來自可靠性成疑的網頁,包括維基百科、「PCLL Conversion notes」、「Law Teacher」及「Swarb」,並由網頁一字不漏地原文複製在其課堂講義上,文中亦未有註明來源及原作者。此等行為若發生在學生身上,定已明確構成剽竊行為,會被大學按規定嚴厲處分。更重要的是,陶博士似乎未曾細閱這些由可疑網頁複製下來的資料,以致PowerPoint幾處自相矛盾,讓學生混淆不清。例如,陶博士的課堂講義其中一個段落指某刑事案中的被告成功上訴,並獲法庭頒令重審,但同一段落尾端又聲稱案件並無重審。


在兩節課堂中,陶博士均對班上同學發表不少冒犯性言論。如當陶博士討論證據的分量 (weight of evidence) 時,曾問及一位女同學是否認為自己有「體重問題」(weight problem)。另外,他又指著點名冊上一位韓籍女同學的照片,聲稱她容貌看起來跟照片「不一樣」。對於早前在LLB課堂上有關強姦案的言論,陶博士尚可能辯解為與案例相關。然而,上述這些針對個別同學的冒犯性言論,明顯與教學內容無關,讓人難以想像有任何合理解釋。

「You scratch my back I scratch yours」

在學期首周,校方接獲大量有關陶博士的投訴。陶博士及後把課堂參與 (Class Participation)  加入評分標準中,並在堂上暗示同學如再向大學投訴將會有後果,又多次強調「如你幫我,我也會幫你 (you scratch my back, I scratch yours) 」。然而,事實上我們僅僅要求一位稱職的老師,能夠公正地評核我們的表現,可惜陶博士似乎並未能做到以上兩點。



English version:

We are students of the Juris Doctor programme at HKU, one of two programmes to have been taught by Dr. Christopher To during his brief period of employment here and whose firing by the University appears to have been the subject of some public controversy. We have nothing to add as far as the rape comments allegedly made in the LLB classes are concerned, but we would like to detail some instances of inappropriate behavior by Dr. To that we personally observed in our Evidence Law lectures in order to place the Faculty’s decision to replace him in its full context. Within just two lectures, it quickly became apparent that not only was Dr. To unfamiliar with the subject he was ostensibly teaching, but he also failed to meet the standards of academic integrity that one would expect of a university lecturer.

Lack of familiarity with basic points of law

Dr. To appears to have struggled with many basic points of Hong Kong law in the course of his Evidence lectures. When challenged, he would rather make up nonsense than admit he was wrong. For example, Dr. To taught us that a successful plea of insanity in a murder case might reduce the sentence to manslaughter (it does not). When the accuracy of this proposition was questioned, Dr. To suggested that the common law could evolve in such a way as to make his proposition correct; and when it was pointed out that the insanity defense had a statutory basis that could not spontaneously “evolve”, Dr. To defended his statement by suggesting that it might hold true in Russia or Japan, while accusing students of being “narrow-minded” for being obsessed with the correct position under Hong Kong law. Another example of how Dr. To confused students with wrong law is that he mixed up the “irrationality” and “proportionality” grounds of judicial review with the “rational connection” and “proportionality” limbs of the proportionality test in constitutional law (in any case both are irrelevant to Evidence Law).

Plagiarism from unreliable sources

The contents of a large number of slides in Dr. To’s lecture PowerPoints were lifted verbatim from questionable sources on the Internet including Wikipedia, ‘PCLL Conversion notes’, ‘Law Teacher’ and ‘Swarb’. The original authors were not acknowledged in the citations. This, we suggest, is not only unprofessional and irresponsible, but would also constitute a clear case of plagiarism if attempted by a student. In some instances, self-contradictory material was pasted into the outline with no apparent consideration of their accuracy. One slide for example claimed that no new trial was ordered in the case Woolmington v DPP [1935], only to contradict itself eleven lines later saying that a new trial was ordered.

Inappropriate comments

Over the course of two lectures, Dr. To made a number of offensive comments towards the class. In one instance, he asked a student whether she thought she had a “weight problem” while ostensibly discussing the weight of evidence; in another instance he pointed to the picture of a Korean student on the roster, remarking that she looked “different” in real life. These are but two examples from a series of offensive remarks made by Dr. To that place his controversial rape comments in the LLB class in their full context.

“You scratch my back I scratch yours”

After the Faculty received a large number of complaints about Dr. To’s behaviour during the first week of teaching, he changed the grading criteria to include a class participation mark, while intimating that further complaints would meet with retaliation: in his words, “you scratch my back, I scratch yours”. Similar comments were reported by the LLB class. With respect, HKU students do not need their backs scratched; we only ask that the instructor be competent and our work be fairly graded. Sadly, such appears to have been too much to ask of Dr. To.