標少札記《許智峯的控罪》

警控許智峯刑毁「點名紙」,另涉襲擊、不誠實用電腦、妨礙公職人員三罪,這是《明報》的頭條,都頗誇張,尤其是刑事毀壞「點名紙」這一項。我對許智峯的行為反感,對這刑事毀壞罪更加反感,同樣,妨礙公職人員執行職務罪,若依賴的案情是奪去手機、妨礙女 EO 記錄議員行蹤的話,這控罪也毫無必要,因為控以普通襲擊罪已涵蓋了妨礙執行職務的行為,屬 part and parcel。從此事發生後的報導來看,普通襲擊罪的證據充足;有犯罪或不誠實意圖而取用電腦罪,因資料不足,我不能確定是否有足夠證據,如果許智峯奪去手機後只查看手機裏記錄了哪種資料,有沒有侵犯議員的私隱,除此之外並沒有做其他事情,我就覺得連這一項控罪也不值得檢控。

過份檢控,屬於檢控上的欺凌。這不是刑事法的入門課,不是在課堂裏理論性把一切行為作干犯刑事罪行的分析。檢控有一定的大原則,這些大原則在律政司的《檢控守則》裏可以找到。《檢控守則》第五章就列出一連串的考慮,包括公眾利益的考慮。

我依賴的是終審法院李聞偉案(LI MAN WAI AND SECRETARY FOR JUSTICE FACC6/2003)的其中兩段:

  • 25. Considering the evidence as a whole, I would accept that a reasonable tribunal of fact, bearing in mind the proper considerations and the proper directions, could have concluded that the prosecution have proved that the appellant was dishonest. On the other hand, such a tribunal could easily have come to the opposite conclusion as the magistrate did in this case. Where it is sought to draw a conclusion or make a finding which is different from that of the tribunal of fact, particularly a conclusion of guilt, the appellate court would have to be satisfied that the conclusion which the court is invited to draw is the only reasonable conclusion in the circumstances. In the present case, it cannot, in my view, be said that the only reasonable conclusion which could have been open to a tribunal of fact was that the appellant was dishonest. It cannot be said that the magistrate's verdict is perverse.
  • 26. The type of offence punishable under s.161 of the Crimes Ordinance is no doubt very serious - it could be viewed as a kind of theft, very often with serious consequences but without the victim ever knowing what has happened and why. With the widespread use of computers and the advancement of technology, this valuable equipment has become part of our daily life. It is therefore all the more important to protect the integrity of computers, particularly the integrity of the IRD computer system. But the law as it now stands does not punish all kinds of unauthorized access to computers, it only prohibits the unauthorized and dishonest extraction and use of information. And it is essentially a question of fact for the jury to decide whether there is dishonesty in each case.

李聞偉是稅務局的助理評稅主任,他擅自從稅局的電腦系統獲取女同事的個人資料,替她申請世界自然基金會會籍,但以自己的信用卡付款,結果被控不誠實取用電腦罪。原審裁判官以他沒有不誠實為理由,判他無罪,律政司以裁判官法律上犯錯,上訴至高院,上訴得直把他定罪,繼而上訴至終審法院,推翻了定罪。

許智峯一案,控方能否接納「撤銷控罪簽保守行為」?若果最終的證據是搶奪手機查看資料,許智峯提出 ONE / BO,why not?不用理他是甚麼派別,他只是做了愚蠢行為,是否接納「撤銷控罪簽保守行為」,就應從《檢控守則》所列的考慮因素作考慮,這才能夠展示刑事檢控不受政治影響的風範。愚蠢行為的政治後果,應該由選民的投票來反映。