2013年6月2日星期日

律政風暴之五

首先多謝閱讀,本blog5月份有超過23,000點擊,平均每天近800,有5天過千,最高紀錄是1241次。我自己卻是山中的擁躉,他的文章寫得蠻有意思,我怎樣努力也學不到,所以請移玉步,多看他的文章。

我一開始寫這題材的時候,selina就講明想看有關艾勤賢(Kevin Barry Egan)在Reid 這件案所扮演的角色。我現在就寫。我相信對他引起興趣的原因是,因為他和律師林炳昌(Andrew Lam),同被譽為廉署剋星有關。剋星這兩個字對我來講並無魅力。林炳昌是廉署高級調查員出身,了解亷署查案程序和手法,所以接了不少亷署的案來辦,嬴了一些,就成為剋星,那麼大部分主控官就是罪犯剋星,一街都是剋星。你google一下,徐家傑及清洪都是廉署剋星,這都是傳媒的噱頭。

Egan 跟廉署結怨,是因Reid 案而起。在Reid 這件案,究竟Egan 是策劃他逃亡的人,抑或是受 Reid 誣捏呢?如果你讀那篇125頁的碩士論文 The Kevin Egan's case,作者的結論是誣捏。無謂問我的看法,因為我pro-prosecution,立場一向鮮明,不過你也見過我時常為被告抱不平,以事論事,我相信自己十分公正。我最近幫助的其中一件案,跟事主通電郵差不多80篇,她上一封其中幾句這樣寫 " I totally understood the motive of why you helped and i got the positive message you are trying to send. I have learnt things from it and that would made me remembering for the rest of my life." (原文照錄,文法錯誤也不改)。看到同一件事,控辯雙方看法迥異,十分平常,誰是誰非,是天長地久,爭論不休的事。只要不把幸運的結果視為公義彰顯,不幸的結果視為法治已死就好了。我寫過先科案裁決的啟示 一文,在該案中,兩位廉署剋星都被定罪,若果是現在終審法院的班子聽審上訴,這兩位廉署剋星,會在香港消失了。此一時彼一時,命懸一線。他們得以脫罪,一言以蔽之:好命。

言歸正傳。

控方指證Egan,依靠Reid 一個人,成敗繫於一人。Reid 1990年3月,跟律政署協商,承認受賄12,500,000元,換取不檢控其他控罪,他會成為特赦證人,指證同案其他人,包括Egan,但Egan 自始至終都不涉及貪污。Reid 1990年7月6日在高院認罪,判監8年。由首席按察司楊鐵樑親自處理,楊官的判刑備受批評,那是後話。

Reid 指證 Egan 的證供,簡潔地描述是這樣:Reid 告訴 Egan,面對貪污控罪,他必死無疑,他想逃回新西蘭,Egan 叫他留下來抗辯到底,但最後卻把自己的護照及一枝筆型手槍(pen-gun) 及子彈給他旁身,叫他逃亡。Reid 在逃離香港之前,把這些東西扔掉。Reid 從菲律賓遞解出境返回香港之後,帶亷署人員到聶高信山(Mount Nicholson) 起回筆型手槍及子彈。

Egan 在1990年1月2日走入跑馬地警署報失護照,翌日前往澳洲領事館申請新護照。Egan 當然全盤否認指控,指控的詳情,請參閱The Kevin Egan's case 這碩士論文。但我要指出,我並不同意作者的分析,我只參閱文中提供的資料,因為我沒有該案的資料,上訴判辭都只是有關ancillary applications的,觸及Egan部份的案情過於簡單。具豐富處理刑事案經驗的人看這論文的立論,實在有很多不值一哂之處。我依賴論文的資料,因為缺乏選擇。Egan 最終面對4項控罪,包括協助Reid 潛逃、向他提供軍火、護照及無牌藏械等。4項控罪全部都無需答辯,有3項是一邊審控方一邊撤罪,最後一項有關藏有筆型手槍,在控方結案之後,是法官引導陪審團作無罪判決。故此所有控罪都no case to answer。

Egan 案1993年1月13日開審,一開審控方就撤銷了協助潛逃罪。在審訊期間一路撤罪,原因當然是Reid 的證供。在辯方律師 John McNamara (之前也是律政署中人) 盤問下,Reid 表示很多對話都是醉酒之後講的,這種供辭,Reid已近乎成為敵對證人(hostile witness),控方撤不撤銷控罪,結果都會是no case。其實在開審之前,McNamara去律政署要求見律政司馬富善 (Jeremy Matthews) ,但只獲刑事檢控專員John Wood 及副手Duckett 接見,McNamara 要求撤銷所有控罪,因為辯方得悉 Reid 在1992年12月31日錄取了一份新供辭,指出不再肯定指控屬實(saying he could no longer be certain of his allegations)。請示律政司後,控方決定繼續去馬。

唉!讓我打個岔。我相信繼續檢控的決定來自Duckett。馬富善根本不懂得刑事法,他是solicitor出身,他出任律政司已充滿争議。The AG, by tradition, is the titular head of the bar. 香港開埠以來,馬富善第一個由solicitor 做律政司,第二個是梁愛詩。叫他做決定,別開玩笑。John Wood 也不是那料子,只有Duckett一個是真正搞刑事的。當時的檢控科青黃不接,因為Reid這件案,攆走了Marash, Chandler, Cagney, Cahill 及Whitehouse。如果Reid的證人態度軟化,這件案控方必輸無疑,夠膽的決策者,無論要面對多大壓力,都只好撤銷檢控。今時今日無論你問律政司裏面,抑或私人執業的律師,我相信聽到Reid 有份新口供話 "he could no longer be certain of his allegations",還有甚麼選擇,只有drop charges。認為無需撤銷檢控的讀者,請勿吝嗇,留言教下我。

11 則留言:

  1. Bill, do tell us more about 因為Reid這件案,攆走了Marash, Chandler, Cagney, Cahill 及Whitehouse.

    回覆刪除
  2. I cannot because there is not enough information. It was the era of localization. These people left as a result of a combination of factors. Only Chandler was clearly sacked for failing to report his meeting with Reid in Manila. Though Reid alleged that Marash accepted bribe from the Overseas Trust Bank, there was no case built against Marash who also strenuously denied. Other people indirectly involved in Reid's case the nature of which did not warrant dismissal. It is really difficult to tell the reason why they left one by one.

    Perhaps I can give you a consolation about how I manipulated a case. One day, Marash walked into my office in Eastern asking for O.N.E./ bindover. I declined. He very politely asked me to phone my boss. Because of his attitude, I did so. Since he originally was a Deputy DPP, I did not want to phone anyone of the same rank or below. So I phoned John Wood, the then DPP. I had lunch with the DPP before when he came for his round of visit. He came to visit me again for some other matter too. So he knew who I was. I said, "John, Marash came for a bargain and asked me to seek instruction. If you ask me, I would say we should proceed with the case." The result was obvious. The case was proceeded with. If I told Wood that we should accede to Marash request, then it would be an O.N.E./bindover.

    The system could be very vulnerable then. Supposing a good friend came to me to ask for a favour, I could manipulate very easily. But, no one could approach me for favour. I gave no face to anyone. My good friends would only phone at 8 am or 6 pm to ask about their case because I was probably the only person there at that time in the outpost office.

    回覆刪除
  3. Offer No Evidence 不提證供起訴

    回覆刪除
    回覆
    1. Thanks. I believe we exchanged views when you used a letter as a name. You should ask Fanny Wong about the Reid case. She gave a statement to ICAC too about the house key of Whitehouse. Of course, I assume you are from DoJ and the sensitive past history can turn a friendly person into unfriendly.

      If my guesswork is far fetched, then accept my apology in advance. It is only a hunch, from the language though only a few lines in the recent exchanges.

      刪除
    2. Bill,

      I assume you're talking to me. Yes, I was the one who left the initial question but not this comment.

      I have read and heard about this story from many different sources but never cease to be amazed by the details. I have read the Chandler judgment with great interest, thanks for that.

      I

      刪除
    3. I

      Sorry about the mix up. I am loss with anonymity.

      刪除
  4. Dear Bill,

    I am not flattering you and frankly think you are a competent person of integrity. Quite interested to know why you left the field so soon. It was a real loss for Hong Kong.

    Please ignore this message if I have encroached on your privacy. Thanks for sharing the very interesting Reid story.

    回覆刪除
  5. No worries. I can divulge the reason for leaving but not in open comment. It is a combination of factors unrelated to the handover. I left Hong Kong in Sep 2002. I was not sacked. You can take my words. I love to work in court. I love to fight big guns. I was extremely cheeky and yet extremely friendly. I did not suffer from bipolar disorder but I was sort of eye for an eye type of character.

    Frankly, everyone is dispensable. There is no gain no loss. There are just people you remember and feel missing if the person disappears in that circle. My motto and work attitude can be reflected in this very minor incident. One day, I received a letter from a person who I later heard was an interesting person.He was a doctorate degree holder of buddhism. He wrote to commend me for some minor matter I dealt with which was widely reported in the newspaper. He sent a copy of the letter to the Chief Executive Tung. There were a stack of books accompanying the letter. I was not flattered by the content of the letter and just dropped it in the basket. No one knew about it. To me, doing a good job is what one is required to to fulfil the duty. There is nothing commendable or rejoiceful. I felt happy only when I did not fail my duty.

    I have found my connection back to the circle after creating this blog in 2011. It was not my original perception that this blog can flourish like it is now. Through this forum, I learn a lot from people who care to leave a comment. Sometime comments open my horizon. From the truculent language, you can imagine how cheeky I was back in the old days. This blog gives me a nostalgic feeling of what I once lost when I left the arena. Thank you for your contribution. Never mind what position or power we have, integrity is greater than money and fame. Let toast for the fragrance of justice.

    回覆刪除
  6. Did Warwick Reid manage to get anyone (other than himself) convicted by his allegations?

    回覆刪除
  7. Of course, the other 3 lawyers, Alick Au, Eddie Soh and Oscar Lai.

    回覆刪除