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終院首席法官馬道立 法律年度開啟禮演辭全文

2017/1/9 — 19:13

編按:2017年法律年度開啟典禮今日於香港大會堂舉行,以下是終審法院首席法官馬道立在典禮上發表的演辭全文(中譯版本與英文原文)。

律政司司長、大律師公會主席、律師會會長、各位尊貴的嘉賓:

我謹代表司法機構全體仝人歡迎各位蒞臨本年度的法律年度開啟典禮。藉此一年一度的典禮,律政司司長、律師會會長、大律師公會主席和我得以聚首一堂,發表我們對香港的法律事宜的看法。這也是一個重要及合適的場合,讓我對香港社會具重大意義的法律事宜發表意見。身為政府首要法律顧問的律政司司長,以及作為法律守護者的香港大律師公會及律師會,在此場合就此等事宜發言亦十分重要。

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箇中的意義在於能有助加深社會大眾對法律概念的理解。誠然,在香港的法治及法治的實際彰顯方面,亦即是實際執行司法工作時,司法機構擔當重要的角色。然而,儘管司法機構擔當關鍵的角色,但司法機構並非唯一與推動法治息息相關的機構。政府以及香港大律師公會及律師會,在維護法治方面亦同樣舉足輕重。事實上,社會上的每一個人和所有機構都應該理解及奉行法治。  

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法律的目的在於便利社會的運作,若社會複雜如香港者,則更需要法律使其運作健全暢順。此外,法律亦旨在促進人與人之間的互相尊重與和睦共處。此乃社會上對法律的概念的固有看法,亦隱含於《基本法》之中。任何關乎香港法律的討論,皆以《基本法》為起點。  

多年來,很多人(包括我本人)一直提倡一個簡單的概念,即法律的真諦在於不單要尊重個人的權利和利益,也要尊重其他人的權利和利益。這點或許有助理解「社會」的含意。法庭審理案件時,尤其是關於公法的案件時,亦是以這個概念為處事的基礎,因為這類案件經常出現各種不同利益互相角力的情況。

這個從社會整體的角度考慮的處事手法(即不單尊重個人權利和利益,也尊重每個人的權利和利益)亦蘊藏於《基本法》裏: 

1. 第四條(《基本法》第一章總則的其中一條條文)提及香港特別行政區整體肩負的責任乃保障所有香港居民及其他人的權利和自由。此處所指的香港特別行政區涵蓋本港每個人和每個機構。

2. 第三章的標題為「居民的基本權利和義務」。此處所指的居民是香港居民。本章共有十九條條文,除却一條條文,其他所有條文皆列述各種權利。不過,有一條條文說明居民應負的義務。第四十二條訂明香港居民和在香港的其他人有遵守香港法律的義務。此等法律當然包括賦予他人經確立的權利和自由的法律。

3. 此等權利包括《基本法》第二十五條所述的一項重要的權利,即平等權利:香港居民在法律面前一律平等。換言之,在香港施行法律時,法律必須平等地施行;例如,每個人的權利和利益均須予以尊重。《香港人權法案》在開首第一條即再次確認此項平等權利,並在第二十二條再予以重申。《香港人權法案》乃將《公民權利和政治權利國際公約》所載的權利以立法形式在香港實施,而該國際公約則是憑藉《基本法》第三十九條適用於香港。《香港人權法案》是載於香港法例第383章《香港人權法案條例》。

大家在討論我們法庭各方面的工作時,務須牢記我剛才提及須從社會整體的角度考慮權利和利益的處事手法,以此作為相關背景。近來廣受公眾關注的公法案件,並非本港法庭工作的全部。事實上,法庭處理的眾多案件當中,受公眾關注的案件僅佔極少部分。我們法官審理的案件,絕大部分是有關刑事法、家事法、商業法、物業法、人身傷害法及其他範疇,這是我們法庭日常工作的實況。  

然而,較受公眾關注的公法案件是說明從社會整體角度考慮的處事手法是如何運作的最佳例子。此類案件通常是以申請司法覆核的形式進行,往往牽涉不同類型的公眾利益,而且此等利益不時互有衝突。涉案的個人或群體通常希望自身的權利或利益得以伸張。多年以來,法庭處理這類案件的例子不勝枚舉,涉及多個範疇,例如:言論自由、示威自由、婚姻自由、社會福利或選舉等。重要的公法案件每年皆有,它們或是引起公眾注目,或是引發爭議;但更重要的是這些案件有助社會大眾體會法治的實際運作,同時亦考驗公眾對法治的信心。以下兩個關於司法機構的問題是社會大眾一再提出的:

1. 我們的法庭和法官如何履行其職責;及

2. 司法機構有否克盡其作為法治主要守護者的首要責任,捍衛法治?

一如以往,香港法庭在過去一年處理不少重要的公法案件,當中許多備受關注。這些案件的結果引來紛紛熱論,有時更引發激烈的討論。時而有一些來自不同界別的人士及團體出言批評法庭,只因案件結果不合其心意。誠然,法庭及法官不會、亦不應免除於受批評。我完全認同市民有權評論法庭的工作,但我當然希望這些評論,不論褒貶,均是有理可據和慎重的。  

了解法庭的處事方式對這方面的討論至為重要;而討論的起點正是我先前已經強調的法律面前人人平等的概念。終審法院大樓正面外牆頂端聳立着一座代表公義的宏偉雕像,許多人對此習以為常而視為理所當然。該雕像是古希臘的泰美斯女神(即羅馬神話中的正義女神)。泰美斯女神蒙上雙眼,一手持代表司法量刑尺度的天平,另一手持長劍。這些司法工作的象徵,人們往往不以為意。環顧世界各地,多不勝數的法律機構均以泰美斯女神作為公義的象徵。然而,鑑於其意義重大,我們不妨反覆思考其中含義,以免在討論法律之時有所忽略。  

蒙上雙眼是代表法庭處理案件時不會理會出席的訴訟各方的身分。在法庭裏,無論任何人、任何機構,都不會因為他們/它們是甚麼人或甚麼機構,也不會因為他們/它們代表甚麼利益或團體,而享有優勢或遭受不利的對待。這也就是我剛才強調的平等概念的體現。法庭內,沒有人會單純因為其地位而處於優勢,這點不難領會。然而,在法律面前,沒有人應因為他本身是甚麼人或他所代表的利益或團體而遭受不利的對待,這一點卻往往未如上述那一點般為人所理解。  

過去一年多,我偶爾收到公眾人士的投訴,批評法庭處理某些案件的方式。他們有些是不滿法庭沒有將被告人定罪,或者即使被告人被定罪,他們仍認為法庭判處的刑罰太輕或不足。另一方面,也有些人不滿法庭定罪的判決或認為判刑過重。不論此等批評或評論的動機為何,我們必須緊記法庭的處事方式。即使是備受社會各界關注及討論的案件,法庭對待訴訟各方的方式與對待任何其他種類的案件的訴訟各方的方式完全一樣。法庭不會認為此等案件比其他案件有較高的價值,或者有任何分別,所以對此等案件也是以同樣的方式應用法律原則和運用法律程序。

因此,在刑事案件中,只有在控方基於呈堂證據將其案情證明至毫無合理疑點的情況下,被告人方會被定罪。定罪後,被告人被判處的刑罰是法庭根據已經確立的量刑標準和眾所周知的量刑原則作出的,不會因為被告人的身分而有所扣減或增加。假若定罪或無罪的判決有不當之處,或判處的刑罰不妥或不足,香港的法律制度設有上訴機制,可以就判決上訴至終審法院。  

泰美斯女神右手所持的天平代表公平。我之前提及從社會整體的角度考慮的處事手法,若從此角度詮釋公平這個概念,即代表法庭面對不同觀點時,有時必須權衡輕重。在天平上衡量各種不同的因素,以達致平衡的觀點,這是法庭處理日常工作時採用的方法,並不限於我提及備受關注的案件。以法庭量刑為例,它會在天平上衡量各種不同的因素,包括罪行本身、被告人的犯罪紀錄、被告人的年齡、為公眾利益而施以阻嚇的需要,以及其他因素。在公法案件中,法庭考慮個人權利的價值和重要性時,有時亦要考慮廣泛的社會利益,即其他人的權利與利益。為了使天平平衡,有時會給予某些因素多些比重,有時則少些。在此權衡過程裏,法官的技巧和專業水平至關重要。  

法官在執行司法工作中擔當關鍵的角色。法官的角色具關鍵性,原因在於他們肩負行使司法權的憲制責任。《基本法》有三條條文提及「獨立的司法權」。

行使司法權的意思是法庭處理法律糾紛時,有權作出具約束力及可強制執行的判決,例子包括在刑事案件中有權施加刑罰(包括監禁),而在民事案件中,則可作出有經濟後果的命令。在公法的領域中,如法例或行政行為被證實有違憲法原則,法庭甚至有權將其作廢。泰美斯女神左手所持之長劍,正代表法庭擁有的這些重大權力。  

由全體法官肩負的憲法責任和職務有時是頗為沉重的。我們的法官需面對壓力,但壓力並非來自外界或他人。香港的司法獨立,法庭嚴格及只是依照法律及法律精神處理案件。法官的壓力當然是來自每日面對的繁重工作;但除此之外,法官真正的壓力源於法官須作出正確判決的責任。對被告人作出有罪或無罪的判斷、對複雜的商業糾紛作出裁決,以及在公法案件中在各種合法利益之間達致公正妥善的平衡,這些工作皆為壓力的來源。再者,當法官的判決會有重大深遠的影響,法官思量如何判決方為正確時,亦會感受到壓力。許多人(包括終審法院前任首席法官及本人)經常強調法庭只會裁決案件涉及的法律問題,亦只會考慮案件在法律上是否有充足理據。此說法固然真確,但我們必須承認法庭的判決有時會在政治、經濟或社會層面帶來重大影響。  

對社會大眾和法庭而言,我們須盡力使司法人員的質素能維持於最高水平,這點極為重要。這是我出任終審法院首席法官以來一直致力達成的主要目標之一。過去數年,我們在招聘法官方面遇到困難,在高等法院原訟法庭這個級別尤為嚴重。無論如何,我們仍須維持司法人員的質素於高水平,絕不可妥協。身為司法機構之首,我一直認為寧可法官數目不足,也不能對法官質素的要求作出妥協。  

《基本法》訂明法官應根據其本人的司法和專業才能選用。這並非單指法律才能和經驗(雖然兩者顯然包括在内);它同時强調法官在履行其憲法責任時,必須心存對社會的使命感。這正是法律執業者在其事業昌盛有成之際仍願意加入司法機構的重要原因。最近一份本地報章的報道指出,私人執業律師的收入與法官的收入(即使包括福利在内)差距甚大。由此可見,成功的法律執業者選擇出任法官的主要原因之一,是為了服務市民和回饋社會;我認為就某些執業者而言,這可能是其加入司法機構的唯一真正原因。他們在事業已達或即將達到事業頂峰之時,甘願接受大幅減少的收入,這正是他們的志願的明證。

至於出任與區域法院同級及以上級別的法庭的法官者,更須承諾於法官任期結束後不再從事私人執業。此一獨特規定亦同樣能彰顯這些法官的決心。據我所知,此種限制並不見於任何其他專業界別。這意味着實際上,法律執業者一旦出任法官,將不能重返執業,而這法律專業是他們過去苦讀鑽研、經年耕耘所建立的。對此,我們可更深切理解,離開執業加入司法機構,其背後意義重大。  

為在某程度上解決招聘法官的困難,尤其是在高等法院原訟法庭級別遇到的困難,我欣悉政府已因應司法人員薪俸及服務條件常務委員會作出的建議,同意有關調整法官薪酬及改善服務條件的建議方案。多年以來,對於司法機構在資源上的需要,政府與常務委員會一直給予支持,對此,我極為感激。政府將於適當時候把建議方案提交立法會考慮。  

我們生活和工作於一個複雜的社會。從訴諸法庭的各種法律糾紛的性質來看,其複雜性可見一斑。在這些糾紛當中,部分是我剛才提及的備受關注,及可能對政治、經濟或社會方面有重大影響的案件。我重申應從正確的角度審視此等案件。法院處理此等案件的方式與處理任何其他案件的方式並無分別,即法庭同樣會嚴格依照法律和法律原則來處理。我們的法官,即是每年的法律年度開啟典禮中出現在各位眼前的法官,都是向他們服務的社會負責的。我可以向社會所有市民保證,每位法官均將繼續全心全意,毫無保留地履行其憲法責任和職務。  

最後,我謹此祝願各位和家人於二○一七年和雞年身心康泰、喜樂滿懷、諸事順遂。謝謝各位。

 

2017年1月9日(全文完)

 

English Version

CJ's speech at Ceremonial Opening of the Legal Year 2017 Secretary for Justice, Chairman of the Bar, President of the Law Society, distinguished guests, ladies and gentlemen, On behalf of the Judiciary, I extend a warm welcome to everyone to this year's Opening of the Legal Year. This is the only occasion when the Secretary for Justice, the Law Society, the Bar and I gather together to give our views on the law in Hong Kong. It is an important occasion for me to give my views, where appropriate to do so, on legal matters that are of significance to the community. It is also important that the Secretary for Justice as the principal legal adviser to the Government, the Hong Kong Bar Association and the Law Society as guardians of the law speak on these matters. The importance lies in helping the community better to understand the concept of law. The Judiciary of course has an important part to play in the rule of law in Hong Kong and in the practical manifestation of the rule of law – another name for the operation of the law in practice is the administration of justice. Though crucial the role of the Judiciary, it is not the only relevant institution which has a stake in its advancement. The Government also plays an important role in upholding the rule of law, as do the Bar and the Law Society. In fact, understanding and implementing the rule of law applies to every member of the community and to all institutions within it. The purpose of the law is to facilitate the functioning of a society – all the more so if it is a complex one like Hong Kong – and to achieve a sense of mutual respect and harmony. This is inherent in the concept of law in society and is implicit in the Basic Law, which is the starting point of any discussion about the law in Hong Kong. Many people – I among them – have over the years advocated the simple notion that the law means a respect for not only individual rights and interests, but a respect for the rights and interests of other people as well. This is perhaps a useful definition of what a community means. It certainly underlies much of the courts' approach in dealing with in particular public law cases where often different interests will pull in different directions. This community approach (respect not just of individual rights and interests but respect for everyone's rights and interests) is to be found in the Basic Law: 1. Article 4 (one of the General Principles of the Basic Law in Chapter I) refers to the responsibility of the Hong Kong Special Administrative Region (HKSAR) as a whole safeguarding the rights and freedoms of all residents as well as other persons in Hong Kong. The reference to the HKSAR is a reference to everyone and every institution here.

2. Chapter III is headed "Fundamental Rights and Duties of the Residents". The reference to residents is a reference to Hong Kong residents. There are set out in this Chapter nineteen Articles. All but one of these Articles set out rights. There is however one provision that sets out a duty on residents. Article 42 states that Hong Kong residents and other persons in Hong Kong shall have the obligation to abide by the laws in Hong Kong. Such laws include of course the laws which give other people established rights and liberties.

3. Among such rights is the important right to equality found in Article 25 of the Basic Law: All Hong Kong residents shall be equal before the law. In other words, in the application of the law in Hong Kong, the law has to be equally applied; everyone's rights and interests, for example, have to be respected. The promise of equality is repeated as the very first Article and again in Article 22 in the Hong Kong Bill of Rights. The Hong Kong Bill of Rights represents the statutory implementation of those rights contained in the International Covenant on Civil and Political Rights which is in force by reason of Article 39 of the Basic Law. The Bill of Rights is contained in the Hong Kong Bill of Rights Ordinance Cap. 383.

It is necessary for this what I have called the community approach to rights and interests to be firmly borne in mind as the relevant context when considering aspects of the work of our courts. The work of the courts in Hong Kong is not only in the public law cases which have lately been in the public eye. High profile cases in fact form very much the minority of the cases undertaken by the courts. The vast majority of the cases heard by our judges, covering areas such as crime, family law, commercial law, real property, personal injuries law and other areas, represent the everyday work of our courts. Nevertheless, it is in the relatively high profile public law cases where the community approach is best exemplified. It is common in these types of case, usually in the form of applications for judicial review, for many interests – and more often than not different types of public interest – to clash with one another. Often, individuals or groups will be asserting their own rights or interests. There have been many examples of this handled by the courts over the years: cases involving the freedom of speech, the freedom of demonstration, freedom of marriage, social welfare, elections. Every year, there are important public law cases which engage the public curiosity or which cause controversy, but more important, these are cases which enable the community to see the rule of law at work and to test the confidence which the public will have in the rule of law. Perennial questions are then asked in relation to the Judiciary: 1. How do the courts and our judges approach their responsibilities; and

2. does our Judiciary live up to its ultimate responsibility of being one of the principal guardians of the rule of law? This past year has again seen the Hong Kong courts deal with important cases in public law. Many have been high profile ones. The outcomes of those cases have at least provoked much discussion; sometimes the reactions have been loud. At times, some people and groups from various sectors have voiced criticism of the courts simply because of outcomes to cases not to their liking. Admittedly, courts and judges are not and ought not to be immune to criticism. I fully accept the right of people to comment on the work of the courts, but of course hope that such comments whether in criticism or even praise, should be informed and measured. An understanding of the approach of the courts is important in this discussion. The basic starting point is a facet I have already highlighted – the concept that all are equal before the law. Many take for granted the impressive statue representing justice standing at the top of the front facade of the Court of Final Appeal. This is the statue of the ancient Greek goddess Themis (in Roman mythology, she is named Justitia). Themis is blind‑folded and holds in one hand the scales of justice, a sword in the other. These are symbols of the administration of justice, which are often taken for granted – just look at the number of legal institutions around the world using Themis to represent justice. However, the significance of these symbols of justice bears repetition from time to time in case this is overlooked in any discussion about the law. The blindfold represents the approach of the courts in ignoring the identity of the parties who appear in them. No person or institution has any added advantage or correspondingly disadvantage in the courts by reason of who they are or what they represent. This is of course the concept of equality which I have already emphasised. That no person gains an advantage before the courts by reason only of status is easy to appreciate. What is, however, often not quite as well appreciated is that no person should suffer any disadvantage in the eyes of the law by reason of who they are or what they represent either. Over the past year or so, I have sometimes received complaints from members of the public criticising the courts for the way they have dealt with certain cases. Dissatisfaction is expressed in the courts either not convicting persons of crimes or even where there were convictions, in imposing what are seen to be light, inadequate punishments. Correspondingly, dissatisfaction is also expressed when the courts have convicted or imposed what are seen to be heavy punishments. Whatever motivated these criticisms or comments, it is crucial to bear in mind the approach of the courts. In highly charged or high profile cases, all parties are treated in exactly the same way by the courts as in any other type of case. There is no added value or distinctions. Accordingly, legal principle and legal procedures apply in the same way. Thus, in a criminal case, a defendant will only be convicted if on the available evidence the prosecution proves the case beyond a reasonable doubt. If a conviction results, then any sentence imposed will be determined according to standard and well known sentencing principles. There is no discount or increase to reflect the personal identity of the accused. And where there is any perceived error in the conviction or acquittal, or in any sentence imposed or not imposed, the legal system under which we operate in Hong Kong has a system of appeals going up to the Court of Final Appeal. The scales of justice held in the right hand of Themis reflect the concept of fairness. And in terms of what I have earlier described as the community approach, it represents the balancing exercise which the courts sometimes have to undertake when faced with different points of view. Weighing different factors on the scales to arrive at a balanced view is not confined to those high profile cases I have mentioned. They exist in the day to day work of our courts. In sentencing, for example, different factors are weighed on the scales: the crime itself, the criminal record of the accused, the age of the accused, the element of deterrence in the public interest and other factors. In public law cases, the value and importance of individual rights have sometimes to be seen against wider community interests, in other words other people's rights and interests. The scales will balance giving more, sometimes less, weight to certain factors. This is where the skill and professionalism of the judge becomes critical. The role of judges in the administration of justice is key. It is a critical role because of the constitutional duty thrust on our judges to exercise judicial power. The Basic Law uses the term "independent judicial power" in three articles. The exercise of judicial power means the power to give binding and enforceable adjudications on legal disputes. This includes, for example, the power to impose criminal penalties (including imprisonment) in criminal cases and to make orders with financial consequences in civil cases. In the public law sphere, the power exists in the courts even to strike down legislation or executive acts if they are shown to have been made in violation of constitutional principles. These important powers of the court are represented by the sword in Themis' left hand.

The constitutional duty and responsibility on all judges can at times be an onerous one. There is pressure on our judges, but this is not pressure from outside sources or persons. Hong Kong's judiciary is an independent one which handles cases strictly and only in accordance with the law and the spirit of the law. The pressure, rather, stems of course from the heavy workload faced everyday by our judges. But more than this, the real pressure is for judges to come up with the right outcome. There is pressure in determining guilt or innocence, in the adjudication of complex commercial disputes and, in public law cases to reach a just and proper balance between legitimate interests. There is also pressure in arriving at the correct decisions which one knows have important and far reaching consequences. It has often been emphasised by many people, my predecessor and myself included, that the courts only determine the legal questions and only consider the legal merits of the cases before them. This is true but of course it is also to be recognised that the decisions of the courts will at times have serious political, economic or social repercussions. From the point of view of the community and the courts, it becomes extremely important that the quality of the Judiciary remains of the highest possible standard. This has always been one of the main objectives for me as Chief Justice. Notwithstanding the recruitment difficulties we have for the past few years experienced particularly at the level of the Court of First Instance of the High Court, the maintenance of high standards in the Judiciary cannot be compromised. It remains the case that, speaking as the head of the Judiciary, I would rather there be a shortage of judges rather than to compromise on quality. The Basic Law states that judges shall be chosen on the basis of their judicial and professional qualities. This does not mean just legal ability and experience (although these qualities are obviously included); it also emphasises the quality of a commitment to the community in the discharge of a judge's constitutional duty. This is an important reason for busy and successful legal practitioners in wishing to join the Judiciary. As one local newspaper recently highlighted, there is a significant difference between earnings in the private sector and the earnings (even including benefits) of judges. Given this, one of the main reasons for successful practitioners to become judges, and for some I would say this may really be the only reason for joining the Judiciary, is to serve the community and also to give something back to society. This is demonstrated by the willingness to take a substantial reduction in earnings at a time when many have reached or about to reach the peak of their careers. This is also demonstrated by a unique feature of becoming a judge at the level of District Court and above: the undertaking given not to return to practice after ceasing to be a judge. I know of no other profession in which such a restriction occurs. It means that in reality, a legal practitioner who becomes a judge will not be able to return to the very profession he or she was trained for and has spent many years in developing. This puts into proper perspective the significance of joining the Judiciary. In order to address some of the difficulties in recruitment particularly at the level of the Court of First Instance, I am glad to see that the Government has agreed to a package of proposals enhancing the salary as well as the terms and conditions of service of judges. The Government has done so after recommendations made by the Standing Committee on Judicial Salaries and Conditions of Service. Both the Government and Standing Committee have consistently supported the needs of the Judiciary over the years. I am extremely grateful for this support. The package of proposals will in due course be considered by the Legislative Council. The society in which we all live and work is a complex one. The complexities are reflected in the nature of the legal disputes that go before the courts for resolution. Some of these disputes I have referred to as high profile and may involve important political, economic or social consequences. This should, I reiterate, be seen in proper light. The courts deal with these types of case in precisely the same way as any other case: strictly in accordance with the law and legal principle. Our judges, whom you see every year in the Opening of the Legal Year, are answerable to the community in which they serve and I can assure everyone in the community that each of them will continue to discharge without compromise their constitutional duty and responsibilities. It only remains for me to wish you and your families good health, happiness and fulfilment in 2017 and in the Year of the Rooster. Thank you. Ends/Monday, January 9, 2017(END)

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