程序和觀感之二

Yufen Chun 2021-01-16 3 min read {Quotes} [Philosophy]

開場白

前言”程序和觀感”在 這裡。

據聞：

程序公義是刑事審訊的金科玉律。任何一方「攻擊」及「防守」的機會必須均等。但若機會錯失了，便一去不返 (cannot have a second bite of the cherry)。

另一廂

另一廂，固有的司法管轄權：

Perhaps the true nature of the inherent jurisdiction of the court is not a simple one but is to be found in a complex of a number of features, some of which may be summarised as follows:

  1. The inherent jurisdiction of the court if exercisable as part of the process of the administration of justice. It is part of procedural law, both civil and criminal, and not of substantive law; it is invoked in relation to the process of litigation.

  2. The distinctive and basic feature of the inherent jurisdiction of the court is that kit is exercisable by summary process, i.e., without a plenary trial conducted in the normal or ordinary way, and generally without waiting for the trial or for the outcome of any pending or other proceeding.

  3. Because it is part of the machinery of justice, the inherent jurisdiction of the court may be invoked not only in relation to the litigant parties in pending proceedings, but in relation also to anyone, whether a party or not, and in respect of matters which are not raised as issues in the litigation between the parties.

  4. The inherent jurisdiction of the court is a concept which must be distinguished from the exercise of judicial discretion. These two concepts resemble each other, particularly in their operation, and they often appear to overlap, and are therefore sometimes confused the one with the other. There is nevertheless a vital juridical distinction between jurisdiction and discretion, which must always be observed.

  5. The inherent jurisdiction of the court may be exercised in any given case, notwithstanding that there are Rules of Court governing the circumstances of such case. The powers conferred by Rules of Court are, generally speaking, additional to, and not in substitution of, powers arising out of the inherent jurisdiction of the court. The two heads of powers are generally cumulative, and not mutually exclusive, so that in any given case, the court is able to proceed under either or both heads o jurisdiction.

——– I. H. Jacob. The Inherent Jurisdiction of the Court. [1970] Current Legal Problems. Volume 23, pages 23 – 52.

收場白

  1. 據聞的最後一章：[2021] HKCFA 1。

  2. … though justice may be delayed, it is not properly denied …

    ——– Mr Thomas Winnington. Speeches and Debates in the House of Commons During the Fourth Seffion of the Eighth Parliament of Great-Britain. Anno 11 Geo II 1377-38, page 333.

  3. To the victims and perpetrators alike, I would send a simple but unequivocal message – that justice may be delayed, but it will not be denied.

    ——– Zainab Bangura, Special Representative on Sexual Violence in Conflict. UN News 2 June 2016.