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【2019法律年度開啟典禮】終審法院首席法官馬道立致辭全文 (18:13)

2019年法律年度開啟典禮今於大會堂舉行,終審法院首席法官馬道立致辭時再次強調,法庭處理「具爭議」的案件時,不會偏幫任何一方,亦不會尋找某種中間方案來解決社會關注的政治、社會或經濟問題。以下為馬道立致辭全文:

【馬道立致辭全文(中文版)】

律政司司長、大律師公會主席、律師會會長、各位法官、各位尊貴的嘉賓、女士們、先生們:

我謹代表香港司法機構熱烈歡迎各位出席法律年度開啟典禮。這個典禮對司法機構來說意義重大,因為我可藉此機會向市民大眾闡述關於香港法制的事宜。今年我想談談法庭的運作──亦即法官和法庭如何處理案件──以及有關提高法官退休年齡的建議的最新進展。此外,我想略述數目激增的免遣返聲請的案件。這類案件大大加重了法庭的工作量,給各級法院造成巨大壓力,而且情況將會持續。

過去一年,各級法院均曾審理具爭議的案件。我所指的「具爭議」的案件,是源自備受爭議的政治或社會事件,而有些時候社會大眾對這些事件抱有截然不同的看法。這些看法大多數是兩極化,沒有共同基礎的。假如說法庭在處理這類案件時左右為難,這個描述嚴格來說並不準確。正如過往我曾多次指出,法庭的功能或職責不是裁決政治或社會議題(又或是經濟議題)。法庭不會偏幫任何一方,亦不會尋找某種中間方案來解決社會關注的政治、社會或經濟問題;而實際上,不論何時,法庭處理的只是其席前的糾紛所涉及的法律議題,別無其他。這一點對法官和明白法律的人士而言,固然清晰;然而,對部分社會人士而言,這或許不是那麼顯而易見。過去一年,在部分前述的具爭議的案件──不論民事還是刑事案件──作出判決後,社會上出現了針對法庭判決的批評,有時甚至是對法官進行人身攻擊。這些批評部分屬惡言攻擊(這是完全不能接受的),亦有詆毀法官政治偏頗。甚至有評論指,法庭的一些決定,包括終審法院的判決,使香港的法治受到損害。

正因如此,我認為應該在此闡述一下法庭的運作。我要再次表明,我並不是說不可以批評法庭和法庭的判決;事實上,恰好相反:我們一直樂意聽取具建設性的批評,而且,每人皆享有言論自由。《基本法》第27條就是保障言論自由。然而,關鍵在於批評要來得有效、有建設性,就必須有理可據,而非基於誤解或錯誤的信息。

因此,讓大眾知道法庭如何運作和處理案件乃是重要的。這點適用於所有案件,而非只限於具爭議性的案件。就此,我需要提出幾個重點,這些重點正正體現了香港法律制度的特質。

1. 首先,是司法獨立的概念。法官在履行其憲制職責時,獨立於一切外界的干涉,不論是行政機關、立法機關,甚或任何人。

2. 這個概念反映在我剛才提到的《基本法》裏。《基本法》(如其序言明文指出)保障國家對香港的基本方針政策的實施。《基本法》第二條訂明,全國人民代表大會授權香港享有「獨立的司法權和終審權」。《基本法》第19條重申這點,述明香港特別行政區「享有獨立的司法權和終審權」。《基本法》第85條清楚說明香港法院「獨立進行審判,不受任何干涉」。

3. 法官的獨立性亦反映於司法誓言。司法誓言是每位法官作出的莊嚴和真誠的承諾;法官宣誓擁護《基本法》,以「無懼、無偏、無私、無欺」之精神為香港特別行政區服務,並主持正義。根據《基本法》第104條的規定,每位法官均須作出司法誓言。

4. 司法獨立的必要性不證自明。當某一方尋求針對他人而行使其個人權利時,特別是涉及行政部門時,要法庭偏袒任何一方是絕不可能的。法庭裁決法律糾紛時,公義的天秤不會傾斜,不會偏幫或針對任何一方。 

這或許從另一角度強調了我擬闡述的第二點:法律面前人人平等。在香港象徵公義的雕像(即立於終審法院大樓樓頂的泰美斯女神),不但不偏歪地手持着代表公義的天秤,更是蒙上雙眼的。法庭就席前的糾紛作出判決時,不會有預設立場而偏幫或針對任何一方。《基本法》第25條規定香港居民「在法律面前一律平等」。第41條訂明香港居民以外的其他人,享有剛才所述的同等權利和自由,包括第25條所規定的。人人有權依法享有平等的對待,任何人都不可凌駕於法律之上;這是公平和公義的精要所在。保證人人平等的條文,不僅存在於《基本法》;《香港人權法案》(載於香港法例第383章《香港人權法案條例》)第一條亦提及享受權利不分區別。第十條訂明「人人在法院或法庭之前,悉屬平等」。《香港人權法案》是以成文法規的形式展現《公民權利和政治權利國際公約》的有關規定。《基本法》第39條訂明公約適用於香港的有關規定,必須通過香港特別行政區的法律予以實施。《公民權利和政治權利國際公約》是聯合國大會於1966年12月19日通過的國際條約,有172個締約方。

第三,法庭裁決案件時,只會考慮相關的法律爭議點;換言之,在法庭席前處理的任何法律糾紛,其結果皆取決於法律本身。即使案件在政治、社會或經濟方面會帶來影響,法庭亦只會考慮法律問題。這是剛才所提述的3條《基本法》條文中有關行使司法權所指的含義。司法誓言亦要求法官「盡忠職守,奉公守法」,為香港服務。

法庭按照案情依據法律判案,這代表沒有其他考慮因素可影響案件的結果,包括我之前提及的政治、社會或經濟因素。終審法院在約一年前頒發的一份判案書中,對這方面作出了最清楚不過的說明(註):

「本院認為有必要在本判案書開首便述明,香港特別行政區法庭的角色或職能並非參與這場或任何其他政治辯論。事實上,法庭的職責是藉獨立審判,施行香港特別行政區的法律,包括《基本法》,並依法就任何案件所提出的法律爭議作出裁斷。法庭對任何一宗案件作出判決時,只會將適用的法律原則應用於相關事實,從而恰當地判決案件,並在判案書說明理由,這是本院在處理此等上訴案件時唯一的職責。」

第四,欠缺妥善上訴機制的法律系統,稱不上是完備的。在香港,我們實行兩級上訴制。裁判法院的案件會先上訴至原訟法庭,及後可再上訴至終審法院;區域法院的案件則先上訴至上訴法庭,繼而可再上訴至終審法院。至於原訟法庭的案件,會先上訴至上訴法庭,其後可再上訴至終審法院。整個法院架構的最高級別是(根據《基本法》第82條)獲授予「終審權」的終審法院。

香港法制的第五項重要特質是具透明度,我在去年的演辭亦曾談及這點。法院的工作具透明度,方能獲取社會對法制的信心。與此相關的有以下各項:

1. 所有級別法院的聆訊均開放予公眾旁聽,只有少數特別情況,例如涉及兒童事宜的案件,才須進行閉門聆訊。法庭程序公開進行,適用於包括前述的具爭議案件,而該等案件均受到傳媒的廣泛報道。

2. 法庭於書面判決列出判決的理由,且是公開予公眾查閱。法庭的判案書詳述達至案件結論所涉的分析和步驟。每當公眾人士質疑:「法庭為何會有如此裁決?」他們都可以從書面判決得到即時及詳盡的答案;根本毋須揣測或猜度法庭作出判決的背後考慮,更不應妄稱法官可能考慮了與法律無關的因素(例如政治因素)。當然,任何人均有權選擇不閱讀法庭的判案書,但如要對法庭判決作出有意義和有理可據的評論,便應當首先了解法庭的判決理由。

3. 我們法院的書面判決,不論紙本或電子版,公眾均可隨時查閱。除特殊情況外,判案書會上載至司法機構網站。

我已論述過香港法制的5個重要層面,此舉的目的是提供所需背景,讓大家能夠在這個基礎上,對法庭的工作,特別是對法庭就社會大眾甚為關注的問題所作的裁決,適當地予以審視和評論。我們生活在複雜的社會、複雜的世界;人們時常以批判的角度質疑那些影響他們的決定正確與否。這些決定有時未必容易理解。當不同人士提出合理但南轅北轍的觀點時,在正確的背景和基礎上了解事情更顯得必要。

我必須強調,社會大眾對我們工作的信任必不可少,其重要意義,不僅在於大眾須明白司法機構的運作跟社會息息相關,更重要的,是要展現法治在香港是如何運作。對香港而言,也許沒有多少事情比法治更為重要,而我們必須致力維護這個我們社會的要素。正如我8年前上任之始申明,這是我作為終審法院首席法官的使命。

司法機構正準備迎來新一年的挑戰,確保法官質素保持在至高水平至為重要。我過去與內地、英國、澳洲、新西蘭、加拿大、新加坡和美國等其他司法管轄區的法官交流所得的深刻印象,是我們的司法機構備受尊重。雖然如此,維持至高專業水平是妥善執行司法工作的關鍵。剛才我提到希望社會對我們的法律制度有信心。這份信心在香港以外亦同樣體現出來,從我們法庭所處理的案件量便可見一斑。與世界其他司法管轄區相比,香港法官的工作量屬繁重,而所處理的案件亦極其複雜。很多人選擇在香港法庭進行訴訟,正是因為他們對我們的法律制度有信心。

剛才所說的表明了香港司法機構擁有最優秀的法官的重要性。過往我曾詳細闡述,我們為吸引最佳的人選加入司法機構而推行的各項措施。其中,提高各級法院法官的退休年齡,是吸引兼備司法和專業才能(有關準則載於《基本法》第92條)的傑出人才的方法之一。正如我去年所述,相比其他普通法司法管轄區,香港的法官退休年齡確實過低,未能配合實際情況。可以相當肯定,提高退休年齡對招聘法官以及挽留經驗豐富的法官,均會大有幫助。

提高退休年齡的建議獲得政府、立法會議員和兩個法律專業團體的廣泛支持。這實在值得歡迎,而我亦對此心存感激。當然,修訂相關法例是必須的,而草擬工作亦已進入最後階段。我衷心希望一切所需的法例可於年中獲得通過並正式生效。這既合乎公眾利益,亦對社會有莫大的裨益。

今天我想談及的最後一項事宜,是早前提及的繁重案件量。特別是近年,有大批人士湧入香港,提出免遣返聲請,亦即一般所稱的酷刑聲請。《禁止酷刑和其他殘忍、不人道或有辱人格的待遇或處罰公約》(一般稱為《禁止酷刑公約》)適用於香港。如有任何人聲稱有充分理由相信其在另一地方將有遭受酷刑的危險,或有遭受殘忍、不人道或有辱人格的待遇或處罰、迫害等風險,《禁止酷刑公約》的締約方便不得將該人遣返回該地。近年,政府須處理數量非常龐大的這類免遣返聲請。處理這類聲請通常涉及以下程序:入境事務處在處理申請後,申請人假如不滿有關結果,可向酷刑聲請上訴委員會提出行政上訴。一旦上訴被委員會駁回,申請人通常會向原訟法庭申請司法覆核許可,以尋求濟助。假如申請被拒絕,便會上訴至上訴法庭,繼而上訴至終審法院。

龐大的案件量使原訟法庭和上訴法庭承受沉重壓力。終審法院同樣亦感受到壓力。各級法院審理每一宗案件都經過深思細慮;故此,延誤有時在所難免。增撥資源固然需要,但單靠增撥資源不能解決所有問題。舉例說,我們需要更多法官入職,但這不單純是涉及財政資源。再者,調配人手和資源處理免遣返聲請,無疑會對其他案件和其他司法工作產生不良影響。司法機構將會與律政司磋商,探討對法例作出適度的修訂的可行性,從而更有效率地處理此等酷刑聲請。我們當然會諮詢相關持份者,希望屆時大家繼續給予支持。

為本年度的演辭作結之時,我謹此向社會大眾保證,各級法院的所有法官均致力奉行我剛才闡述的各項理念。每位法官都銳意堅守法治,服務社會。為社會服務是司法誓言中的一項基本要素,每位法官均恪守這莊嚴的承諾。

我謹此祝願各位和家人於2019年及豬年諸事順遂、喜樂滿懷。

註:律政司司長訴黃之鋒(2018)21 HKCFAR 35,第5段。

 

【馬道立致辭全文(英文版)】

Secretary for Justice, Chairman of the Bar, President of the Law Society, fellow judges, distinguished guests, ladies and gentlemen,

On behalf of the Hong Kong Judiciary, I extend a warm welcome to all of you to the Opening of the Legal Year. For the Judiciary, the occasion is an important one because it allows me to address the public on matters concerning Hong Kong's legal system. This year I would like to say something about the process of the courts – in other words how cases are handled by the judges and the courts – and also to give an update on the proposed extension of the retirement ages for judges. I also want to say a few words about the proliferation of cases in our courts involving non-refoulement clraims. The substantially increased workload on our courts resulting from this type of case has given and will continue to provide much pressure on our courts at all levels.

This past year has seen courts at every level adjudicate on controversial cases. By "controversial" I am referring to those cases which emanate from controversial political or social events and over which members of the community have at times vastly different views. Many of such views are polarised seemingly without any common ground. It would be strictly speaking inaccurate to say that courts are caught in the middle when they are called on to handle such types of case. As I have said many times on previous occasions, it is no part of a court's function or duty to adjudicate on political or social issues, nor economic ones, whether siding with one extreme or another, or finding some sort of middle ground to solve the community's political, social or economic concerns. Rather, at all times, the court is concerned with dealing with one aspect and one aspect only: a resolution of the legal issues arising in the dispute before it. This is saying the obvious as far as judges and those who understand the law are concerned, but perhaps not always so obvious to some others in the community. Following some judgments in the type of controversial case to which I have been referring – whether civil or criminal – there have over the past year been criticisms levelled against decisions of the courts and sometimes even personally against judges. Such criticisms have ranged from the abusive, which are totally unacceptable, to imputations of political bias. There have even been comments along the lines that the rule of law in Hong Kong has somehow been undermined as a result of certain decisions of the courts, including judgments of the Court of Final Appeal.

It is in this context that I regard it as desirable that something should be said about the process of the courts. I make it clear again that I am not saying that there should be no criticism of the courts and judgments; indeed, quite the contrary. Constructive criticism of the courts is always welcome and every person of course has the freedom of speech. Article 27 of the Basic Law guarantees the freedom of speech. However, my point is that criticism, in order to be effective and constructive, must be informed as opposed to being based on misunderstandings or inaccuracies.

It is therefore important that everyone should be aware of just how the courts operate and handle cases. This applies to all cases, not only those which are controversial. A number of points need to be made and these embody the very characteristics of Hong Kong's legal system.

1. First, the concept of an independent judiciary. In the discharge of their constitutional duties, judges are independent from any outside interference, and this includes the executive, the legislature and indeed anyone else.

2. This is reflected in the Basic Law, to which I have already referred and which, as the Preamble states expressly, ensures the implementation of the basic policies of the People's Republic of China regarding Hong Kong. Article 2 of the Basic Law states that the National People's Congress authorises Hong Kong to enjoy "independent judicial power, including that of final adjudication". Article 19 repeats this, stating that the HKSAR (Hong Kong Special Administrative Region) is to be "vested with independent judicial power, including that of final adjudication". Article 85 is clear in stating that Hong Kong courts "shall exercise judicial power independently, free from any interference".

3. The independence of judges is also reflected in the Judicial Oath. This Oath is a solemn and sincere undertaking by every judge to uphold the Basic Law and to serve the HKSAR and administer justice "without fear or favour, self‑interest or deceit". This oath is required to be taken under Article 104 of the Basic Law.

4. The necessity for an independent judiciary is self‑evident. When the rights of individuals are sought to be enforced against others, and particularly where the executive is involved, there can be no question of the courts being in any way partial towards anyone. The scales of justice are held evenly: they are not tilted in favour of or against any one when a legal dispute is being determined. 

This is perhaps another way of emphasising the second point I wish to make: equality before the law. The statue of justice in Hong Kong - Themis at the top of the Court of Final Appeal Building - not only holds the scales of justice evenly, she is blindfolded. The courts which decide the disputes before them are not pre‑disposed in favour of or against any of the parties. The Basic Law requires in Article 25 that all Hong Kong residents "shall be equal before the law". Article 41 states that other persons shall enjoy the same rights and freedoms set out earlier, including Article 25. Everyone is entitled to equal treatment under the law, no one is above it. This is the essence of fairness and justice. The guarantee of equality exists not only in the Basic Law. Article 1 of the Hong Kong Bill of Rights, contained in the Hong Kong Bill of Rights Ordinance Cap. 383, refers to the entitlement to rights without distinction. Article 10 states in terms that "all persons shall be equal before the courts and tribunals". The Bill of Rights is the embodiment in statute form of the provisions of the International Covenant on Civil and Political Rights (ICCPR). Article 39 of the Basic Law states that this Convention, as applied to Hong Kong, must be implemented in our laws. The ICCPR is an international instrument adopted by the General Assembly of the United Nations on December 19, 1966 and has 172 parties to it.

Thirdly, in determining the outcome of cases, courts will look only to the legal issues involved; in other words, it is the law that governs the result in any legal dispute before the courts. Even where a case has political, social or economic ramifications, it is only the law that will be considered by the courts. This is what is meant by the exercise of judicial power when that term is used in those three articles of the Basic Law referred to earlier. The Judicial Oath also requires judges to serve Hong Kong "conscientiously, dutifully, in full accordance with the law".

A determination of the merits according to law means that no other consideration can influence the outcome of a case, and this includes those factors I have earlier identified: political, social or economic factors. I can put this no clearer than the way it was stated by the Court of Final Appeal in a judgment given almost one year ago (Note):

"It is important to state at the outset of this judgment that it is not the role or function of the courts of the HKSAR to enter into this or any other political debate. Instead, the duty of the courts is, through an independent judiciary, to administer the law of the HKSAR, including the Basic Law, and to adjudicate on the legal issues raised in any case according to the law. In reaching a decision in any given case, a court exclusively applies the applicable legal principles to the relevant facts and thereby reaches a decision on the appropriate disposition of the case, explaining its reasons in its judgment. That is the sole task of this Court in these appeals."

Fourthly, no system of law is complete without a proper appellate structure. We have in Hong Kong what is known as a two-tier appellate system. Appeals from the Magistrates' Courts first go to the Court of First Instance and then to the Court of Final Appeal. Appeals from the District Court go to the Court of Appeal and then to the Court of Final Appeal.  Appeals from the Court of First Instance go to the Court of Appeal and then to the Court of Final Appeal. The apex of the court structure is the Court of Final Appeal, in which is vested, according to Article 82 of the Basic Law, the "power of final adjudication".

The fifth important characteristic of Hong Kong's legal system is transparency, a facet I had dealt with in last year's speech. In order to begin to earn the community's confidence in the legal system, the work of the courts has to be transparent. Here, the following points are relevant:

1. Court proceedings at every level are open to the public to observe apart from a few special situations that require a closed hearing such as matters involving children. The openness of court proceedings includes those controversial cases I have earlier referred to. Such cases are also widely reported by the press.

2. The reasoning of the courts in arriving at their decisions, in the form of written judgments, is open for the public to read. The judgments of the court reveal in great detail the precise steps taken by the court to reach its conclusion in any case. Whenever any member of the public asks the question "Why has the court made the decision it has?", there is a ready and comprehensive answer to this question in the form of the written judgment. There is simply no need to speculate or guess just what was behind a court's decision on any matter, much less assert that the judge might have taken into account factors extraneous to the law, such as political factors. Naturally, one can choose not to read a court's judgment, but if one is to make a meaningful and informed comment about a court's decision, it would surely be advisable as a starting point to learn just what were the reasons for the decision in the first place.

3. The written judgments of our courts are readily accessible whether in hard or soft form. Save in exceptional situations, they are available on the Judiciary's website. 

I have now dealt with five important facets of Hong Kong's legal system. The purpose of this exercise is to provide the necessary context within which to enable everyone properly to appraise and comment on the work of the courts, in particular those decisions of the courts on matters which greatly concern the community. We live in a complex society and a complex world in which people constantly and critically question the validity of decisions which affect them. Sometimes these decisions may not be easy to grasp. And when reasonable points of view of different people pull in opposite directions, the need to understand matters in proper context becomes even more pronounced.

I cannot emphasise enough the necessity of having the community's confidence in what we do. The significance of this lies of course not just in understanding that what the Judiciary does is of considerable relevance to the community, but more important it demonstrates the existence of the rule of law in operation in Hong Kong. There are perhaps few things that are more important to Hong Kong than our rule of law, and this is a feature of our community we must strive to maintain. As I mentioned at the outset when I assumed office over 8 years ago, this is my mission as Chief Justice.

As the Judiciary prepares to face challenges this coming year, it is vital that the quality of judges remains high. Although we have a judiciary that is much respected – this has been the strong impression I have gained from the exchanges I have had with judges from other jurisdictions including the Mainland, the United Kingdom, Australia, New Zealand, Canada, Singapore and the USA – the maintenance of high standards is key to the proper administration of justice. I have earlier mentioned the confidence which I hope the community has in our legal system. This confidence is shared outside Hong Kong. One indication of this is the volume of cases dealt with in our courts. By world standards, the workload of Hong Kong judges is among the heaviest and the most complex. Many persons choose to litigate in the Hong Kong courts precisely because they have confidence in our legal system.

What I have just said underlines the necessity of having the best quality judges in the Hong Kong Judiciary. I have in the past given details of measures we have implemented to try to attract the best candidates to join the Judiciary. One of the means to attract candidates of sufficiently high judicial and professional qualities – the criteria stipulated in Article 92 of the Basic Law – is to extend the retirement ages of judges at all levels of court. As I mentioned last year, Hong Kong has unrealistically low retirement ages for judges by comparison with other common law jurisdictions. There is little doubt that an extension of retirement ages will greatly assist in both the recruitment of judges and also the retention of experienced judges.

The proposed extension of retirement ages has widespread support from the Government, legislators and both branches of the legal profession. This support is to be welcomed and I am grateful for it. Of course, legislative amendments have to be made and the drafting exercise has reached an advanced stage. I sincerely hope that all necessary legislation will be passed and made effective by the middle of the year. This is very much in the public interest and for the good of the community.

The final matter I wish to touch upon this evening is related to the heavy caseload I have earlier mentioned. Particularly in recent years, Hong Kong has seen an influx of persons who have made non‑refoulement claims, commonly known as torture claims. Hong Kong is subject to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, commonly known as the Convention Against Torture or CAT. When a person claims that there are substantial grounds for believing that he or she would be in danger of being subjected to torture or risk of cruel, inhuman or degrading treatment or punishment, persecution, etc, in another place, no party subject to the CAT can repatriate that person to that place. In recent years, the Government has had to deal with a very large number of such non‑refoulement claims. The process of dealing with such claims frequently involves the following: after the Immigration Department has processed an application, if an applicant is dissatisfied with the result, he or she may launch an administrative appeal to the Torture Claims Appeal Board. In the event that the Board rejects the appeal, what has turned out to be the usual course is then to seek relief by way of an application for leave to apply for judicial review to the Court of First Instance. If this is refused, the decision is then appealed to the Court of Appeal and from there, to the Court of Final Appeal.

The volume of cases dealt with by the Court of First Instance and the Court of Appeal is high and this has resulted in much pressure put on these courts. The pressure is also felt in the Court of Final Appeal. All cases are carefully considered at each level of court, and as a result delays are perhaps inevitable. Additional resources will naturally be required but this alone cannot solve all the problems. For example, more judges will be needed and this is not just a matter of financial resources. Further, the deployment of manpower and resources to dealing with non‑refoulement claims will certainly have an adverse impact on how we deal with other cases and other judicial work. The Judiciary will be liaising with the Department of Justice with a view to exploring the possibility of introducing modest legislative amendments so as to facilitate a more efficient handling of such torture claims. Relevant stakeholders will of course be consulted. I hope that we can count again on the support of everyone.

I end this year's speech with an assurance to the community that all our judges at all levels are totally committed to those ideals I have endeavoured to articulate. Each is committed to the rule of law and to serving the community. Service to the community is a key element in the Judicial Oath and every judge abides by this solemn promise.

I wish all of you and your families a fulfilling 2019 and happiness in the coming Year of the Pig.

Note: Secretary for Justice v Wong Chi Fung (2018) 21 HKCFAR 35, at para. 5.

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