終院五官老貓燒鬚受騙
尼日利亞男毒販於服刑期間，三度向懲教署職員施襲而被裁定罪成，他不服上訴至終審法院，更提交原審時控方未有呈堂的懲教人員另一口供版本，終院五官未料新證據疑是「假文書」，「老貓燒鬚」一致推翻定罪，不料經調查後始知受騙；毒販被控妨礙司法公正及使用假文書副本罪，但他否認控罪，案件於區院審理。
被告Brian Alfred Hall，正就九八年承認的販毒罪服刑十八年，現在赤柱監獄，他否認三項妨礙司法公正及一項使用假文書副本罪，控罪指他於○八年十月至○九年六月，先後向法庭呈交偽造的懲教職員口供、醫生報告、懲教署重要通告等，企圖妨礙司法公正，另又向原訟庭法官任懿君提交假文件。
控方案情指，被告於○四、○七年二月及九月襲擊懲教職員而三度就普通襲擊及刑毀被定罪，他於○六年就○四年襲擊兩懲教人員一案上訴，但被駁回，他不服而從新提交兩份涉案證人口供紙副本，但內容與庭上口供不同，被告指原審主控無向法庭呈交全面證供對他不公，故憑此做誓章及上訴至終院。
三名終審委員接納其上訴申請，並於去年六月卅日交由當時五名終審法官李國能、包致金、陳兆愷、李義及梅師賢審理，五法官相信被告提交的文件屬實，包括被告提交聲稱於○八年向福利官取得的「新證供」、即兩名懲教人員「另一份」口供紙副本，認為控方未向原審提供全面證供，令定罪不穩，故推翻被告的定罪。
FACC No. 12 of 2008
IN THE COURT OF FINAL APPEAL OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
FINAL APPEAL NO. 12 OF 2008 (CRIMINAL)
(ON APPEAL FROM HCMA NO. 621 OF 2005)
_____________________
Between:
BRIAN ALFRED HALL Appellant
- and -
HONG
KONG SPECIAL ADMINISTRATIVE REGION Respondent
_____________________
Court : Chief
Justice Li, Mr Justice Bokhary PJ, Mr Justice Chan PJ, Mr Justice Ribeiro PJ
and Sir Anthony Mason NPJ
Hearing and Decision: 30 June 2009
Handing Down of Reasons: 8 July 2009
_____________________
J U D G M E N T
_____________________
Chief Justice Li :
1.
At the conclusion of the hearing, we allowed the appeal to quash the
appellant’s conviction for common assault.
We indicated that our reasons would be given later. They are now given by Mr Justice Bokhary PJ
for the Court.
Mr Justice Bokhary PJ :
Prosecution’s duty of disclosure
2.
For the rationale, status, nature and scope of the prosecution’s duty of
disclosure in Hong Kong, one needs only to consult the judgment which Sir
Anthony Mason NPJ gave, and with which the other members of the Court agreed,
in HKSAR v. Lee Ming Tee (No.2) (2003) 6 HKCFAR 336. Particular attention should be drawn to the
following propositions contained in that judgment.
3.
Even if not attributable to any breach by the prosecutor of his duty of
disclosure, the non-disclosure to the defence of relevant material can result
in material irregularity and an unsafe conviction : pp 382J-383A. The prosecution’s duty of disclosure is
“based on the defendant’s common law right to a fair trial and on the principle
of openness” : p.386 I. This common law
right of defendants is provided with constitutional underpinning by arts 39 and
87 of the Basic Law and art.11(2) of the Bill of Rights : p.387B-G. The prosecution’s duty to disclose relevant
material is preceded by a duty to “ascertain” what relevant material exists :
p.390I. And that is not limited to
relevant material in the possession or control of the investigating agency
concerned. It extends to such material
“in the possession or control of any other government department or agency if
there are particular circumstances suggesting that it may have such material” :
p.391B-C. As to the scope of the duty,
it is explained (at p.391D-E) that :
“The prosecution’s duty is to disclose to the defence relevant material
(including information) which may undermine its case or advance the defence
case. The duty is not limited to the
disclosure of admissible evidence.
Information not itself admissible may lead by a train of inquiry to
evidence which is admissible : R v. Preston [1994] 2 AC 130 at pp 163-164, per
Lord Mustill. And material which is not
admissible may be relevant and useful for cross-examination of a prosecution
witness on credit.”
4.
All of the foregoing propositions operate in unison to constitute the
accepted norm in regard to the prosecution’s duty of disclosure. And as was laid down in So Yiu Fung v. HKSAR
(1999) 2 HKCFAR 539 at p.543F-G, a sufficiently serious departure from an
accepted norm provides a basis for quashing a conviction on the “substantial and
grave injustice” ground provided by the second limb of s.32(2) of this Court’s
statute. This appeal, which is against a
conviction for common assault, is bought on that ground.
Circumstances
5.
Shortly stated, the circumstances are as follows. The charge of common assault (to which the
appellant pleaded not guilty) arose out of an incident which took place on 2
June 2004 in a cell at the Stanley Correctional Institution where the appellant
was serving a sentence of 18 years’ imprisonment passed on him in the High
Court on 23 June 1998 for drug trafficking (to which he had pleaded guilty).
6.
At the appellant’s common assault trial before T H Casewell Esq in the
Magistrate’s Court, it was the prosecution’s case that the incident consisted
of an assault by the appellant on a member of the Correctional Services
Department, namely Principal Officer Ho Kwok-keung, whom the appellant was
alleged to have punched on the chest three times. The defence case was that it was the other
way round. According to the appellant’s
testimony, the incident consisted of an assault on him by officers of the
Correctional Services Department. He
suggested that it was in retaliation for complaints made by him against them.
7.
On 3 June 2005 the magistrate convicted the appellant of common assault
as charged, and sentenced him to six months’ imprisonment consecutive to the
sentence of 18 years’ imprisonment which he was serving for drug
trafficking. The appellant appealed to
the High Court against his common assault conviction and sentence. On 7 February 2006 the High Court (Deputy
Judge Leong) affirmed his common assault conviction and sentence. With leave granted by the Appeal Committee,
the appellant now appeals to this Court against his common assault conviction.
Officers’ account in the witness-box
8.
In convicting the appellant, the magistrate rejected his testimony. The magistrate accepted instead the testimony
given for the prosecution by the named victim Principal Officer Ho and his
subordinate Assistant Officer Tung Hung-tak.
Shortly stated, the account given by these two officers in the
witness-box was to the following effect.
A newspaper had been provided by the prison authorities to the appellant
for him to read and then give back after a certain time. After that time had passed and despite being
asked to give back the newspaper, the appellant refused to give it back. They therefore entered his cell to retrieve
the newspaper. Whereupon the appellant,
apparently resenting such action on their part, threw the newspaper at
Principal Officer Ho and punched him on the chest three times.
Consistent with the disclosed statements
9.
That account given by these officers in the witness-box was also the
account given by them in those of their statements which were disclosed by the
prosecution to the defence prior to trial.
Some of these disclosed statements were statements made to Correctional
Services Department, and some of them were statements made to the police.
But inconsistent with the undisclosed
statements
10.
What were not disclosed were statements by each of these two witnesses
to the Correctional Services Department giving a different account. Shortly stated, this undisclosed account was
to the following effect. When asked to
return an overdue newspaper, the appellant not only refused but also splashed
some liquid at Principal Officer Ho.
Then the appellant tried to harm himself by repeatedly hitting his own
head against the cell wall. Principal Officer
Ho entered the cell in order to prevent the appellant from continuing to harm
himself in that way. Whereupon the
appellant threw a stool at Principal Officer Ho. Other officers then came to Principal Officer
Ho’s assistance. And the appellant was
subdued.
11.
Like their disclosed statements to the Correctional Services Department,
Principal Officer Ho and Assistant Officer Tung’s undisclosed statements to
that department were made on the day of the incident 2 June 2004. Those undisclosed statements never came into
the hands of the Police or the Department of Justice. They only came to light long after the
appellant’s conviction in the Magistrate’s Court was affirmed by the High
Court. They were therefore unknown to
the courts below. The appellant first
saw them, by chance, in late September or early October 2007 during an
interview at the prison hospital in relation to another matter. He eventually obtained copies of them on 17
May 2008. It was with those copies that
he obtained the Appeal Committee’s leave to bring this appeal.
Substantial and grave injustice
12.
Where there has been non-disclosure to the defence of relevant material,
the focus in an appeal against conviction is not on whether the prosecutor is
to be criticised. The focus is on the
effect of non-disclosure on the safety of the conviction.
13.
In Baksh v. R [1958] AC 167 and again in Berry v. R [1992] 2 AC 364 the
Privy Council stressed the importance of disclosure to the defence of
prosecution witnesses’ statements inconsistent with their testimony. As has been pointed out, the undisclosed
statements in the present case were made by the witnesses concerned to the same
government department as the one to which they had made some of the disclosed
statements. And the account contained in
the undisclosed statements is different from the one given in all the disclosed
statements. On the Lee Ming Tee (No. 2)
principles of prosecutorial disclosure, the non-disclosure of the undisclosed statements
amounted to a departure from the accepted norm constituted by those
principles.
14.
Quite plainly, the departure was sufficiently serious to call for the
quashing of the appellant’s conviction on the substantial and grave injustice
ground. That is so for these
reasons. As the magistrate recognised,
what he accurately described as the “prime issue” which he had to determine was
one of credibility. In determining that
issue in favour of the officers, he said that he found them consistent and
reliable. If the undisclosed statements
had been available to the defence at the trial, the officers could have been –
and almost certainly would have been – cross-examined to considerable effect on
the difference between the account which they gave in the witness-box and the
account contained in those statements.
15.
To put it at its lowest, one cannot safely say that the magistrate would
nevertheless have found the officers to be reliable. Nor, still putting it at its lowest, can one
safely say that his decision would have been affirmed by the High Court if he
had nevertheless so found. It is not a
case of discrepancies of the type that might not be all that significant or
difficult to explain. The two accounts
were wholly different. First, they were
different as to the reason why the prisoner’s cell was entered (retrieving an
overdue newspaper in the disclosed account as opposed to preventing a prisoner
from harming himself in the undisclosed account). And secondly, they were different as to what
the prisoner did upon his cell being entered (punching an officer on the chest
three times in the disclosed account as opposed to throwing a stool at the
officer in the undisclosed account).
Conclusion
16.
The foregoing are the reasons why the appeal was allowed at the
conclusion of the hearing to quash the appellant’s conviction for common
assault. It should be mentioned that
counsel for the respondent very properly declined to support this conviction
and, indeed, offered helpful arguments for quashing it. The lesson taught by this disturbing case is
that the arrangements made by prosecutors to ensure compliance with their
obligations of disclosure must be kept under regular review and operated with
constant vigilance.
(Andrew Li)
Chief Justice
(Kemal Bokhary)
Permanent Judge
(Patrick Chan)
Permanent Judge
(RAV Ribeiro)
Permanent Judge
(Anthony Mason)
Non-Permanent Judge
Mr Paul Loughran (instructed by Messrs
Tang, Tso & Lau and assigned by the Legal Aid Department) for the appellant
Mr Cheung Wai-sun and Ms Winnie Lam (of the
Department of Justice) for the respondent
被告又於○九年四月向原訟庭法官任懿君表示，要就監獄過往的紀律聆訊決定提出司法覆核，並提交懲教署的「重要文件」、即由助理懲教署長陳港生○三年簽發要求下屬造假「釘死」被告的通告，以及五張證明被告有反社會人格的醫生報告副本等，被告圖藉此向任官索取「法律意見」，任官閱後將文件交予警方及懲教署調查。
豈料經查證後，證實懲教署根本無上述文件的正本，職員亦不曾向被告提交任何口供副本，在被告囚室更搜出無署名的醫生報告，警方調查後，發現被告向任官交出的醫生報告由「剪貼」組成，更揭被告於○七年兩宗襲擊案審訊時，曾提交該「重要文件」及涉案證人的「另一份」口供。惟被告警誡下指遭職員「插贓嫁禍」。
案件編號：DCCC 1431/2009
7 January 2012.
Lawsuit king convicted over forged
documents
In perhaps a first in Hong Kong legal
history, a drug smuggler who had an assault conviction overturned by the Court
of Final Appeal using forged documents was convicted yesterday of perverting
the course of public justice.
Brian Alfred Hall, who is believed to be
Nigerian, was convicted by Judge Eddie Yip Chor-man in the District Court of
three charges of perverting the course of public justice and one charge of
using false instruments, to which he had pleaded not guilty.
Hall was labelled a “vexatious litigant” in
2008 due to his penchant for taking legal action from behind bars, where he is
serving time for trafficking cocaine. Other than the Court of Final Appeal
case, he attempted to use fake documents in two magistracy cases.
Hall will be sentenced to a maximum of
seven years next Thursday.
The case stemmed from allegations that Hall
punched a prison officer, Ho Kwok-keung, three times in the chest when he tried
to take away his newspaper. Two alleged witness statements by prison officers
presented later in the Court of Final Appeal claimed Hall had splashed water
and thrown a chair at Ho instead. The difference between the two accounts
undermined Ho’s credibility and the conviction was quashed. A legal scholar questioned
why no red flags were raised by the Department of Justice when he introduced
fresh evidence into his 2008 Court of Final Appeal hearing. The case could
become an embarrassment for both the justice department and Hong Kong’s highest
court.
“The Department of Justice will have to
carry the bulk of the responsibility,” said University of Hong Kong legal
scholar Simon Young. The Department of Justice was sure to face questions as to
why it did not carefully inspect the evidence, he said.
Correctional Services Department officials
had raised the alarm over the documents and the police were investigating the
claims months before the Court of Final Appeal hearing.
The Department of Justice had also been
informed about the documents before the case concluded.
There were 15 fake documents in total,
including medical reports and witness statements, among them a document
allegedly signed by a former assistant commissioner of the Correctional
Services Department, Chan Kong-sang.
Director of Public Prosecutions Kevin
Zervos said: “Once the appeal process is complete, we’ll be making an
application to go back to the Court of Final Appeal in light of the
conviction.”
Not surprisingly, Hall vowed to appeal
against the decision.
上訴襲擊罪 呈自製文件推翻
7-1-2012
【明報專訊】尼日利亞裔男子因販毒判囚18年，他在赤柱監獄服刑時又3度涉嫌襲擊懲教員被加刑，未料他為此製作一場「大龍鳳」，剪裁假口供等文件，並呈上終院指稱控方未有將之披露，而5名終院法官同時「老貓燒鬚」，竟以假文件為基礎而推翻定罪，其後始發現受騙。
律政司：將採補救措施
本案或會成為首宗使用假文書上訴終院成功、再被推翻定罪案件。律政司發言人稱，將於上訴程序完結後採取適當補救行動，發言人強調當時已詳細審視並於其後採取糾正措施。
被告Brian Alfred Hall（35歲）早前在區院經審訊後，被控3項妨礙司法公正及1項使用假文書副本罪成，法官葉佐文將案押後至下周四（12日）求情。
另外，被告因數年內於小額錢債審裁處及高院提出105項瑣碎及濫用法庭程序的訴訟，2008年被原訟庭法官任懿君宣判為無理纏擾的訴訟人。
販毒判囚18年 兩被加刑
案情透露，海關於1997年以販毒罪將被告拘捕，翌年他被判囚18年，在赤柱監獄服刑。他於2005年起，3度被控普通襲擊懲教署職員，首次遭加刑6個月，其後上訴至高院，但被駁回。被告於2008年5月，要求取得他另被控普通襲擊及刑毁的案件中，所有涉案的懲教員口供副本，以及影印自己持有的文件，但其後又稱毋須取回相關文件。
被告於2008年10月就襲擊懲教人員罪名向終院上訴，呈交誓章聲稱於07年9至10月間被送往監獄醫院，發現案中兩名懲教員有另一版本的「口供」，但他從不知情，同年12月被告向律師提出，7個月前向懲教署申請並取得上述「口供」，終院於09年6月30日判處被告上訴得直。
另外，被告另涉普通襲擊和刑事毁壞罪兩宗案件，分別由兩位裁判官審理，而被告在兩案審訊時，以同樣方法，在接受盤問時呈交聲稱是懲教人員另一版本、但未被披露的「口供」，以及聲稱由當時助理懲教署長陳港生撰寫的「重要告示」，他指稱控方未有披露上述文件，法庭終接納為呈堂證物，但時任裁判官林鉅溥及陳錦昌均裁定被告罪成，分別罰款1500元及加刑2個月。
囚室檢大量假口供報告
被告另於09年4月寄信予高院法官任懿君，就涉及他的60多次紀律聆訊而提出司法覆核，向任官索取法律意見。信中附有10份文件，包括指稱被告有反社會人格的「醫學報告」副本，但警方其後證實，所有文件副本均為偽造。
警方於09年7月30日搜查被告囚室，檢獲大量文件，包括涉案假的口供及醫學報告， 當中醫學報告沒有寫明日期及作者，僅得被告名字及囚犯號碼。政府化驗師指出，報告副本或由剪貼其他影印本製成。警方於同年10月26日拘捕被告，警誡下指呈交予任官文件均由署方提供，又指警方或懲教署「生安白造」。
【案件編號：DCCC1431/09】
赤柱惡犯一揪四懲教員2012年3月5日
【記者鄺淑儀報道】涉嫌以假文件瞞騙到五名終院法官、有多次施襲前科的尼日利亞籍犯人Brian
Alfred Hall，最近又在五日內兩度涉嫌向懲教署職員施襲，其中一次更「以一敵四」致四名職員受傷，最後要用胡椒噴霧將他制服，案件交由西區警區重案組調查，懲教署將他轉往小欖精神病治療中心接受評估。此外，就涉嫌呃法官一案，Brian早前被判罪成及加監四年，但控辯雙方均已提出上訴五日內兩施襲吐口水
據悉，兩案於上月十八日及廿二日發生，正在赤柱監獄服刑、獨立囚禁的Brian
Alfred Hall，兩次涉嫌向職員吐口水及講粗口挑釁，並向入倉搜查的職員施襲，兩次均有職員受傷，首案有四名職員在制服期間受傷，包括擦傷手腳等。警方發言人表示，上月十八日及二十二日在赤柱監獄發生的案件，已合併交由西區警區重案組跟進調查，案件仍在調查中。
另外，Brian Alfred Hall早年因涉嫌襲擊職員被判加監，但其後他不服上訴至終審法院，並向法庭呈交新的證供，包括懲教人員口供文件，獲終院五名法官包括當時的首席終院法官李國能推翻其定罪，豈料事件始揭發有關文件為假文件。
呃法官案加監提上訴
Brian早前在區院被裁定三項妨礙司法公正及一項使用假文書副本罪成，被判加監四年。律政司回應本報查詢表示，Brian已就其定罪及判刑向上訴法庭申請上訴許可，而律政司亦已提出覆核刑罰的申請，有關聆訊日期待定。
至於他獲終院推翻的襲擊職員案如何處理？律政司表示，如上訴法庭維持假文件案定罪的判決，律政司會就該案向終審法院呈報，並尋求法院認為適當的指令或行動。
【on.cc東網專訊】2014 1月28日(二) 非洲尼日利亞籍販毒案男囚犯Brian Alfred Hall於09年用偽造的懲教署人員口供，欺騙終審法院法官，成功推翻在獄中襲擊懲教署職員的定罪，以及6個月監禁刑期。律政司早前以他藉欺詐行為取得終院判決為由，要求終院重開該上訴案件但被拒絕，終院今日以書面交代理由。
法官表示，該名男囚犯欺騙終院後，已被裁定妨礙司法公正罪及判監，認為他已受到充分懲罰；重開上訴只具象徵性意義，無實際後果及浪費資源，故駁回律政司的申請。
香港特別行政區訴Brian Alfred Hall
終院雜項程序2013年第3號：有關就重開終審法院2008年第12號刑事上訴案及質疑該案判決而作出的申請
上訴人（答辯人）: Brian Alfred Hall
答辯人（申請人）:香港特別行政區
主審法官:終審法院首席法官馬道立、終審法院常任法官李義、終審法院常任法官鄧國楨、終審法院非常任法官陳兆愷及終審法院非常任法官簡嘉麒勳爵
判決:本院一致裁定駁回申請
判案書:由終審法院常任法官李義頒發判詞
聆訊日期: 2014年1月17日
判案書日期: 2014年1月28日
法律代表:
資深大律師黃惠沖先生及李希哲先生（隸屬律政司）代表答辯人（申請人）
資深大律師麥高義先生及大律師白天賜先生（由曹歐嚴楊律師行延聘及由法律援助署委派）代表上訴人（答辯人）
大律師周卓輝先生（法庭之友）
摘要:
1. 2004年6月2日，上訴人襲擊一名懲教署職員。當時上訴人正因販毒而被判處監禁18年服刑。裁判官裁定上訴人普通襲擊罪名成立，判處監禁6個月，分期執行。原訟法庭駁回上訴人的上訴。就上訴至終審法院的申請，上訴人依靠兩份據稱為審訊期間曾出庭作證的兩名懲教署職員的口供。該兩份口供與該兩名懲教署職員出庭作證時的口供不符，事前亦並沒有披露予被告人。答辯人接受上訴人的上訴。終審法院撤銷定罪。
2. 該兩份口供其後被發現為偽造。有關上訴人上訴至終審法院的行為，他於區域法院經96天審訊後被裁定妨礙司法公正罪名成立，判處監禁4年。上訴法庭駁回上訴人的上訴，並把刑期由4年增至6年。基於上訴人的欺詐，答辯人尋求終審法院重開並推翻其判決。
3. 本院裁定，本院有酌情權，在有合理的依據指稱上訴人是藉欺詐行爲而取得本院的判決的情況下重開該上訴案。本院有隱含的權力，可在特殊情況下為維護司法公正而頒令重開上訴案。
4. 本院認為恢復原本就普通襲擊罪而判處的6個月刑期並不適當。就妨礙司法公正罪把刑期由4年增至6年，上訴法庭已就上訴人欺詐本院的行爲予以充分懲罰。六年刑期反映了上訴人的整體罪行。
5. 若然本院重開其有關判決，繼而審議上訴人事實上有否藉欺詐行爲而取得該判決，當中須花費的司法資源和公共資源，就刑期而言卻無實際後果，這與欲達到的目的並不相稱。因此，本院拒絕行使酌情權重開該上訴案，並駁回答辯人的申請。
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