Chinese press on cop slapping case.

明報社評 2010.08.04
From MingPao
http://english.mingpao.com/cfm/database3.cfm?File=20100805/critic/ema1.txt
Justice Must Be Seen To Be Done
三度襲警均免囚 司法公義蒙陰影 Publishing Date: 2010/8/5

【明報專訊】OVER the past nine years, Amina Mariam Bokhary, whose uncle is Kemal Bokhary, a Permanent Judge of the Court of Final Appeal, has thrice been charged with assaulting a police officer. In all the three cases she pleaded guilty or was convicted, but she was invariably given light sentences. She has thrice avoided being jailed. Such cases are very rare indeed.

終審法院常任法官包致金的侄女Amina Mariam Bokhary （以下稱Amina），9年來3次被控襲警罪，分別都罪名成立或認罪，但是她都先後獲得法官輕判，毋須坐牢，情極其罕有。

Celebrities and their relatives who fall foul of the law have inherent advantages. They have the money to retain barristers or senior counsel, who would rack their brains to defend them. They can have their health reports prepared by medical authorities, and they may ask other celebrities to give character evidence or provide affidavits for use in mitigation.

一般名人或名人親屬涉及刑事案件，由於他們有財有勢，本來已經有先天優勢，包括有財力聘請大律師甚至資深大律師，為他們挖空心思打官司，也可以請權威醫生寫健康報告。另外，也可以動員社會名流為品格證人，作為向法官求情之用。

Amina has such advantages. Her uncle Kemal Bokhary is a Permanent Judge of the CFA, and her aunt Verina Saeeda Bokhary, a High Court judge. Is their illustrious status in the judiciary her another advantage? Has that had anything to do with her trial? It is on this point that the controversy her sentence has aroused centres. That is what many people want to find out.

就Amina而言，除了上述優勢，她的叔父包致金身為終審法院常任法官、她的嬸嬸包鍾倩薇是高院原訟庭法官，他們兩人在司法界的顯赫地位，會否成為被告另一層優勢，在侄女的案件中起過作用，正是此案宣判後，引發輿論熱烈討論的原因，也是許多人心中疑問的關鍵所在。

The magistrate attached great importance to Amina's "good background, well-off family and outstanding academic achievement". Saying she was a sick person who needed help rather than a bad one, he put her on probation for one year for assaulting a police officer, fined her $8,000 for refusing to provide a breath sample and suspended her licence for one year for careless driving. According to lawyers, a first offender of the crime of assaulting a police officer should be jailed, though a magistrate may be justified in taking certain factors into account and showing leniency. However, it is unacceptable not to jail a person who has again committed the offence. It is totally unacceptable not to have jailed the defendant (guilty for the third time of the offence).

至於判決，裁判官重視Amina的良好背景、美滿家庭及教育，更認為她並非壞人，是需要接受幫助的病人，就襲警罪只判她接受1年感化；其餘拒絕提供呼氣樣本及不小心駕駛，則分別判她罰款8000元及停牌1年。不過，法律界人士認為，初犯襲警罪，已經可以判處入獄，基於一些考慮寬大處理，還可以接受，但是再犯仍然不判囚，則不能接受，被告第三次襲警，竟然獲得輕判，毋須入獄，更是無法接受。

Furthermore, according to lawyers, the court does not normally admit intoxication or bipolar disorder as a defence or ground for mitigation. In 2008, Amina pleaded bipolar disorder in defence and mitigation when she was tried for the second time for assaulting a police officer. She resorted to the same trick. The court did not declare whether she received treatment for the disorder during the two intervening years. However, the court ought not to allow any person suffering from a disorder to keep relying on it to bully others.

另外，法律界人士又認為酗酒和躁狂抑鬱症，作為抗辯和求情理由，一般情下，不會得到法庭接受，且在Amina的案件中，她2008年第二次襲警時，已經用躁鬱症來抗辯和求情，這次她故技重施，但是兩年來是否就此接受過治療，法庭並沒有交代。法庭總不能容許恃病凌人的情，繼續存在。

The police are disgruntled at Amina's light sentence. A netizen has set up a Facebook group to demand strongly that the Secretary for Justice to intervene and secure Kemal Bokhary's niece's severe punishment. The call has drawn splendid response. At of yesterday, over 10,000 people had joined the group. It is just one of the things the Secretary for Justice must do to allay public resentment. The affair concerns the rule of law. The Secretary for Justice has a duty to ascertain whether the magistrate's decision is appropriate. Magistrates often hear cases of drink driving or assaulting a police officer and, in such trials, the Amina case may be cited as a precedent. If other magistrates ruled as Anthony Yuen did, would offenders not have to be put behind bars?

Amina獲得輕判，警隊反彈甚大，有網民在facebook設立一個「強烈要求律政司介入，重判包致金侄女」的群組，可謂一呼百應，到昨日已有逾萬人加入。律政司要撫平民情，只是事態的其中一面，就算在法治層面，律政司也有責任釐清判決是否恰當。因為裁判法院審理很多這類酒後駕駛和襲警案，而 Amina的案例，有可能會被援引。其他法官若都像阮偉明般判決，這樣就突出了同類案件的被告，是否都不用坐牢的問題。

Society does not want the court to be harsh towards celebrities or their relatives. It only expects it to deal with them as it does others - to take facts as the basis and the law as the criterion.

對於名人或名人親屬，社會人士並非認為要嚴苛對待他們，只是期望法庭實事求是，正常的「以事實為基礎，以法律為準繩」，與其他各色人等一視同仁而已。

"Not only must justice be done; it must also be seen to be done." It is quite clear that the Amina case fails this test. The Secretary for Justice ought to seek a remedy. Under the existing procedures, he may require a retrial by the same magistrate (Anthony Yuen). If he finds the retrial unsatisfactory, he may refer the case to the Court of First Instance. It is incumbent upon the Secretary for Justice to safeguard the rule of law. We hope he will take action to put the Amina case right so that the public will see justice is upheld.

司法公義不但要做得到，在實踐過程中也要使公泷看得到。Amina的案件，顯然未能滿足這個準則的檢驗要求。律政司必須尋求補救，按現有程序，律政司可提出覆核，由原審裁判官阮偉明處理，律政司若仍然不滿覆核結果，則可交由高院原訟庭覆核。捍衛法治是律政司的責任，期望律政司採取行動，就Amina 的案件，還香港和市民一個公道。