裁判官上訴後是否應命令重審？上訴駁回

### 案件基本資料 - 案件名稱：HKSAR v FINAN BORIS ANTHONY - 法院：終審法院 (Court of Final Appeal, CFA) - 法官：Ribeiro PJ, Fok PJ and Cheung PJ - 判決日期：2020年7月8日 ### 案情摘要 答辯人被控一項非禮罪，經審訊後被裁判官定罪並判處監禁五個月。答辯人提出上訴，高等法院原訟法庭暫委法官裁定上訴得直，撤銷定罪。檢控方隨後申請重審，但暫委法官拒絕頒布重審命令。檢控方不服該拒絕重審的決定，向終審法院申請上訴許可。本案涉及一宗發生在酒店房間內的非禮事件，答辯人辯稱事發時患有性睡症 (sexsomnia)，對事件沒有記憶，但裁判官不接納其證供。 ### 核心法律爭議 檢控方申請上訴許可，質疑暫委法官拒絕重審的決定。檢控方認為，根據上訴法庭在撤銷定罪後命令重審的酌情權相關因素，本案應命令重審，且公義要求重審。檢控方亦爭辯暫委法官推翻裁判官對證人可信性的裁斷是不當的，特別是在未親自聆聽證人作供的情況下。答辯方則認為，暫委法官已充分考慮所有因素，其拒絕重審的決定並無錯誤。 ### 判決理由 終審法院合議庭駁回檢控方的上訴許可申請。法院指出，本案是根據《裁判官條例》(Magistrates Ordinance) 第113條提出的重審上訴，而非嚴格意義上的上訴。在此類重審上訴中，上訴法庭有權重新評估證據並得出自己的結論。暫委法官在撤銷定罪後，認為若給予辯方證人足夠比重，唯一不可避免的結論將是無罪釋放，因此沒有合理定罪機會，故拒絕重審。終審法院認為，暫委法官有權作出此結論，且其拒絕重審的決定並無可爭議的法律論點。 ### 引用案例與條文 本案未有特別引用 ### 裁決與命令 終審法院合議庭駁回檢控方就暫委法官拒絕命令重審的決定提出的上訴許可申請。終審法院認為，本案並非一個適宜批准上訴許可的案件。 ### 判決啟示 本案重申了終審法院在處理上訴許可申請時的原則，特別是在涉及裁判官上訴（重審）案件中，終審法院不會輕易干預下級法院對事實和證人可信性的裁斷。法院強調，終審法院的職能並非重新審理事實，而是處理具有重大而廣泛重要性的法律問題。 --- ### 免責聲明 本摘要由人工智能自動生成，內容可能存在錯誤或遺漏，僅供參考，不構成法律意見。如需法律建議，請諮詢合資格律師。### Case Details - Case Name: HKSAR v FINAN BORIS ANTHONY - Court: Court of Final Appeal (CFA) - Judge: Ribeiro PJ, Fok PJ and Cheung PJ - Date of Judgment: 8 July 2020 ### Factual Background The respondent was convicted of one count of indecent assault by a magistrate and sentenced to five months' imprisonment. His appeal against conviction was allowed by a Deputy High Court Judge, who quashed the conviction. The prosecution then applied for a re-trial, but the Deputy Judge refused to order one. The prosecution sought leave to appeal to the Court of Final Appeal against this refusal to order a re-trial. The case involved an indecent assault in a hotel room, with the respondent claiming he suffered from sexsomnia and had no memory of the incident, a defence rejected by the magistrate. ### Key Legal Issues The prosecution sought leave to appeal, challenging the Deputy Judge's refusal to order a re-trial. The prosecution argued that, applying the relevant factors governing an appellate court's discretion to order a re-trial after quashing a conviction, a re-trial should have been ordered and justice demanded it. They also contended that the Deputy Judge improperly interfered with the magistrate's credibility findings without having heard the witnesses directly. The respondent argued that the Deputy Judge had properly considered all factors and his decision to refuse a re-trial was not erroneous. ### Ratio Decidendi The Appeal Committee of the Court of Final Appeal dismissed the prosecution's application for leave to appeal. The Court noted that this was an appeal by way of rehearing under section 113 of the Magistrates Ordinance, not an appeal in the strict sense. In such appeals, the appellate court is entitled to re-evaluate the evidence and come to its own conclusions. The Deputy Judge, having quashed the conviction, concluded that if sufficient weight were given to the defence witnesses' evidence, the inescapable conclusion would have been an acquittal, thus there was no reasonable prospect of conviction on re-trial. The CFA found that the Deputy Judge was entitled to reach this conclusion and his refusal to order a re-trial presented no arguable point of law. ### Key Precedents & Statutes None prominently cited ### Decision & Orders The Appeal Committee of the Court of Final Appeal dismissed the prosecution's application for leave to appeal against the Deputy Judge's refusal to order a re-trial. The Court found that this was not a proper case in which to grant leave to appeal. ### Key Takeaways This case reaffirms the principles governing the Court of Final Appeal's approach to applications for leave to appeal, particularly in magistracy appeals (by way of rehearing). The CFA will not readily interfere with lower courts' findings of fact and witness credibility. The Court emphasized that its function is not to re-try facts but to address points of law of substantial and general importance. --- ### Disclaimer This summary is AI-generated and may contain errors or omissions. It is for reference only and does not constitute legal advice. Please consult a qualified lawyer for professional legal advice.