16 Aug 2024法庭線#3911
First final appeal in sedition case: CFA refuses leave on constitutionality issue, says line must be drawn between constructive criticism and sedition
人民力量前副主席「快必」譚得志，被指 2020 年擺街站時，發表「黑警死全家」、「光時」等言論，被裁定「發表煽動文字」等 11 罪成，判囚 40 個月，已完成服刑。譚不服定罪，周三（14 日）向終審法院申請終極上訴許可獲批，明年 1 月 10 日進行聆訊。
終院就兩個法律觀點批出許可，拒批煽動罪是否違憲此議題。法官周四（15 日）頒判詞指，煽動罪條文列出煽動意圖、免責意圖類別，字眼亦非含糊、主觀。法官重申，法律容許市民批評，「但必須在有建設性的批評及煽動之間劃出界線」。
Tam Tak-chi, former vice-chairman of People Power, was convicted of 11 offences including uttering seditious words over remarks including “May all black cops’ families die” and “Liberate Hong Kong, revolution of our times” while operating a street booth in 2020. He was sentenced to 40 months’ imprisonment and has completed his sentence. Dissatisfied with the convictions, Tam was granted leave by the Court of Final Appeal on Wednesday (14th) to apply for a final appeal. The hearing will take place on 10 January next year.
The Court granted leave on two legal points but refused leave on the issue of whether the sedition offence is unconstitutional. In reasons handed down on Thursday (15th), the judges said the sedition provisions set out categories of seditious intention and exempted intention, and that the wording was neither vague nor subjective. The judges reiterated that the law allows members of the public to criticise, “but a line must be drawn between constructive criticism and sedition”.
14 Aug 2024法庭線#3901
First Sedition Case Final Appeal: Tam Tak-chi Granted Leave by Court of Final Appeal, Hearing Set for 10 January Next Year
人民力量前副主席「快必」譚得志，被指 2020 年擺街站時，發表「黑警死全家」、「光時」等言論，被裁定「發表煽動文字」等 11 罪成，判囚 40 個月，已完成服刑。譚不服定罪，向終審法院申請終極上訴許可，周三（14 日）獲得批准，案件定於明年 1 月 10 日進行聆訊。
目前因 47 人案還押的譚得志，周三未有到庭。案件由終院常任法官李義、霍兆剛、林文瀚處理，並就申請方 2 項法律爭議批出許可，包括煽動罪須否由陪審團審理、控方須否證明煽暴意圖；另一項爭議，即若煽動罪毋須證煽暴意圖，有否過份限制言論自由而違憲，終院則拒絕批出許可。
針對律政司一方指，舊煽動罪已被《維護國家安全條例》下新煽動罪取代，本案不具重大而廣泛重要性，日後可應用性有限，申請方強調，目前至少有 3 宗涉舊煽動罪的案件未審結，故是次上訴絕非純粹學術討論。
Former People Power vice-chairman Tam Tak-chi, known as “Fast Beat”, was convicted of 11 offences, including publishing seditious words, over remarks including “Black cops, may your whole families die” and “Liberate Hong Kong, revolution of our times” made at a street booth in 2020. He was sentenced to 40 months’ imprisonment and has completed his sentence. Dissatisfied with his conviction, Tam applied to the Court of Final Appeal for leave to make a final appeal. The application was granted on Wednesday (14th), and the case is scheduled to be heard on 10 January next year.
Tam, who is currently remanded in custody in connection with the 47-person case, did not attend court on Wednesday. The case was handled by Permanent Judges of the Court of Final Appeal Lee Yee, Fok Siu-kong and Lam Man-hon. Leave was granted on two legal questions raised by the applicant: whether a sedition charge must be tried by a jury, and whether the prosecution must prove an intention to incite violence. The Court of Final Appeal refused leave on another question—whether, if an intention to incite violence need not be proved for a sedition charge, this excessively restricts freedom of expression and is unconstitutional.
In response to the Department of Justice’s argument that the former sedition offence has been replaced by the new sedition offence under the Safeguarding National Security Ordinance, and that the case is not of substantial and wide importance with limited future applicability, the applicant stressed that at least three cases involving the former sedition offence remain pending trial. The applicant therefore argued that this appeal is not merely an academic discussion.
8 Aug 2024法庭線#3891
Stand News case verdict postponed for third time; presiding judge Kwok Wai-kin’s tenure extended to 2025
《立場新聞》被控「串謀發布煽動刊物」案，由 2021 年 12 月正式起訴至今橫跨逾 2 年半，經三度押後，將在本月 29 日裁決。主審的區院法官郭偉健今年屆退休之齡，惟《區域法院條例》訂明，如有案件正在審理，可按需要留任。
翻查 2024 年 5 月的政府憲報，特首李家超按《區域法院條例》及司法人員推薦委員會建議，延長郭的任期 18 個月，由 2024 年 5 月 15 日起至 2025 年 11 月 14 日止。
司法機構回覆《法庭線》指，一般來說各級法官在延任期間，可繼續享有除薪金外的附帶福利和津貼，例如房屋福利、醫療及牙科福利、子女教育津貼等。
The Stand News case, in which the news outlet is charged with conspiracy to publish seditious publications, has spanned more than two and a half years since the formal charges were brought in December 2021. After three postponements, the verdict will be delivered on the 29th of this month. Presiding District Court Judge Kwok Wai-kin reaches retirement age this year, but the District Court Ordinance provides that a judge may remain in office as necessary if a case is being heard.
According to the May 2024 Government Gazette, Chief Executive John Lee, acting under the District Court Ordinance and on the recommendation of the Judicial Officers Recommendation Commission, extended Kwok’s tenure by 18 months, from 15 May 2024 to 14 November 2025.
The Judiciary told The Witness that, generally speaking, during an extension of tenure, judges at all levels may continue to receive fringe benefits and allowances apart from their salaries, such as housing, medical and dental benefits, and children’s education allowances.
5 Aug 2024獨媒#3879
[National Security Law’s Four Years: Data Analysis] More Than 300 Arrested So Far; Conviction Rate Falls Below 100% for the First Time; At Least Seven Unable to Gain Early Release Under Article 23
2020年6月，全國人大常委會通過《港區國安法》，香港進入「新時代」，當局屢次動用國安法和煽動罪名作拘捕檢控。不足四年，按《基本法》第23條制定的《維護國家安全條例》（下稱23條），今年3月亦正式生效，與《國安法》一同成為當局口中，有效維護國安、保障香港制度、只針對極少數人的「雙法」。
In June 2020, the Standing Committee of the National People’s Congress passed the Hong Kong National Security Law, ushering Hong Kong into a “new era”. The authorities have repeatedly used the National Security Law and sedition charges to make arrests and bring prosecutions. Before four years had passed, the Safeguarding National Security Ordinance, enacted under Article 23 of the Basic Law and referred to as Article 23, also formally came into effect in March this year. Together with the National Security Law, it has become what the authorities call the “two laws” that effectively safeguard national security, protect Hong Kong’s system, and target only an extremely small minority.
25 Jul 2024法庭線#3849
Jimmy Lai case: Court finds prima facie case established on Day 92; Lai to testify, trial adjourned to November 20
壹傳媒創辦人黎智英與《蘋果日報》3 間相關公司，被控「串謀勾結外國勢力」等罪。控方早前完成舉證，由雙方作中段陳詞。案件周四（25 日）在西九龍裁判法院（暫代高等法院）踏入第 92 日審訊，3 名法官裁定黎面對的所有控罪表證成立。辯方索取指示後，指黎智英打算出庭作供，另擬傳召一名關於 Signal 的專家證人，案件押後至 11 月 20 日續審。
黎智英是日穿著灰色西裝外套，妻兒到庭旁聽。年屆 101 歲的「大黃伯」亦有到庭，有旁聽人士向黎做心心手勢，黎微笑點頭示意。散庭前，旁聽人士向黎高呼「保重」、「頂住」。
Next Digital founder Jimmy Lai and three companies linked to Apple Daily are charged with “conspiracy to collude with foreign forces” and other offences. After the prosecution completed its evidence, both sides made mid-trial submissions. The case entered its 92nd day of trial at the West Kowloon Magistrates’ Courts, sitting temporarily as the High Court, on Thursday (25th). The three judges ruled that a prima facie case had been established on all charges faced by Lai. After seeking directions, the defence said Lai intended to testify and also planned to call an expert witness on Signal. The case was adjourned until November 20.
24 Jul 2024法庭線#3847
Jimmy Lai case Day 91 | Defence says no unlawful agreement after National Security Law took effect, seeks ruling that no prima facie case has been established
壹傳媒創辦人黎智英與《蘋果日報》3 間相關公司，被控「串謀勾結外國勢力」等罪。控方早前完成舉證，周三（24 日）在西九龍裁判法院（暫代高等法院）展開第 91 日審訊，由雙方作中段陳詞。法官周四（25 日）將裁定案件是否表證成立，以決定辯方須否答辯。
辯方指，新聞自由和言論自由受《基本法》保障，作為「第四權」可監察或批評政府，而矯正港府錯誤，屬煽動罪中獲豁免的情況。另一方面，辯方指控方只能證明黎於《國安法》生效前的意圖，沒有就他在《國安法》生效後的意圖舉證，認為《國安法》令本身合法行為變成違法，以致「合法協議」自動失效。
控方則指，本案的協議並無因《國安法》生效而自動失效，而「從犯證人」的供詞、黎訪談節目及專欄文章等，均顯示本案有充分、直接證據證明，黎在《國安法》後仍參與協議。
Next Digital founder Jimmy Lai and three companies linked to Apple Daily have been charged with offences including conspiracy to collude with a foreign country or external elements. After the prosecution completed its case, the 91st day of the trial began on Wednesday (24th) at the West Kowloon Magistrates’ Courts (temporarily acting as the High Court), with both sides making mid-trial submissions. On Thursday (25th), the judge will rule on whether a prima facie case has been established, determining whether the defence must present its case.
The defence said press freedom and freedom of expression are protected by the Basic Law, and that the media, as the “fourth estate”, may monitor or criticise the government. It said correcting errors by the Hong Kong government was a circumstance exempted under the sedition offence. The defence also said the prosecution could prove only Lai’s intentions before the National Security Law took effect, and had adduced no evidence regarding his intentions afterwards. It argued that the National Security Law turned conduct that had previously been lawful into an offence, causing the “lawful agreement” to automatically lapse.
The prosecution said the agreement in this case did not automatically lapse when the National Security Law took effect. It said the testimony of an accomplice witness, Lai’s interview programmes and opinion columns, among other evidence, provided sufficient and direct proof that Lai continued to participate in the agreement after the National Security Law took effect.
16 Jul 2024法庭線#3817
47 democrats case | Court postpones mitigation hearings for New Territories West and East defendants, reportedly citing “unforeseen circumstances”
47 名民主派被控「串謀顛覆國家政權」罪一案，已完成四批、共 26 名罪成被告的求情，包括組織者，以及港島、九東、九西、超區和衞服界的參選人，尚餘參選新西的 8 人及新東的 11 人。
司法機構網站顯示，原定 7 月底及 8 月初進行的新西及新東被告求情都押後，新西押後至 8 月 27 至 29 日進行；新東則押後至 9 月 2 至 5 日進行。據悉，法庭周二（16 日）下午發信通知，稱因「未能預見的情況」（unforeseen circumstances）而改期。
In the case involving 47 democrats charged with conspiracy to subvert state power, mitigation submissions have been completed for four batches involving 26 convicted defendants, including the organisers and candidates from Hong Kong Island, Kowloon East, Kowloon West, the Super District and the Health Services sector. The remaining defendants are the eight candidates from New Territories West and 11 from New Territories East.
The Judiciary’s website shows that the mitigation hearings for the New Territories West and New Territories East defendants, originally scheduled for late July and early August, have been postponed. The New Territories West hearings will now take place from 27 to 29 August, while those for New Territories East will take place from 2 to 5 September. The court reportedly sent a letter on Tuesday (the 16th) notifying the parties that the hearings had been rescheduled due to “unforeseen circumstances”.
13 Jul 2024集誌社#3812
Previously embroiled in national security case, Elizabeth Yin Ngor Tang has passport returned and travels to Japan; police: action will be taken according to law
去年被指涉違《港區國安法》被捕的鄧燕娥，最近終獲發還護照，六月去了日本旅行「充電」，今年內亦準備到外地參加女兒婚禮。面對生活，鄧燕娥總輕鬆面對，她說問心無愧。警方指，採取任何行動，會按實際情況，依法處理。
Elizabeth Yin Ngor Tang, who was arrested last year for allegedly violating the Hong Kong National Security Law, has recently had her passport returned and travelled to Japan in June to “recharge”. She is also preparing to travel abroad this year to attend her daughter’s wedding. Facing life, Elizabeth Yin Ngor Tang remains relaxed and says she has a clear conscience. Police said any action would be handled according to the law based on the actual circumstances.
11 Jul 2024法庭線#3805
47-person case: Yu Wai-ming may face disciplinary hearing in addition to sentence; Au Nok-hin writes mitigation letter for Sham Tsz-kit
47 名民主派被控「串謀顛覆國家政權」罪一案，參選九西、超區及衞服 9 人，當中 6 人昨完成求情陳詞，餘下的王百羽、岑子杰和余慧明於周四（11 日）亦完成（陳詞重點見內文表）。案件押後至 7 月 30 日再續，屆時將處理新西 8 人的求情，料需時 3 天。
余慧明一方陳詞時，提到她任職深切治療部護士，參政因 2019 年爆發新冠疫情，因當權者無視醫護關注，遂參選立會爭話語權；而在本案的刑期後，余或要接受護士管理局的紀律聆訊。庭上亦讀出余親撰的求情信（見另稿），不過期間法官打斷指是政治論述。
岑子杰一方提及，控方證人區諾軒為他撰寫求情信，指岑是在九龍西協調會議上，主要反對無差別否決預算案主張的人，對該區沒就否決達成共識「起了決定性作用」。
In the case involving 47 pro-democracy figures charged with “conspiracy to subvert state power”, nine people who stood in Kowloon West, the Super District Council and Health Services constituencies were involved. Six completed their mitigation submissions yesterday, while the remaining three—Wong Pak-yu, Sham Tsz-kit and Yu Wai-ming—also completed theirs on Thursday (11 July). The case was adjourned to 30 July, when mitigation submissions for eight people from New Territories West will be heard; the process is expected to take three days. The key points of the submissions are set out in the table in the article.
During Yu Wai-ming’s submissions, it was said that she worked as an intensive care unit nurse and entered politics after the COVID-19 outbreak in 2019, because those in power ignored healthcare workers’ concerns, leading her to stand for election to the Legislative Council to have a voice. After serving her sentence in this case, Yu may also have to face a disciplinary hearing by the Nursing Council. The court also read out a mitigation letter written by Yu herself (see separate report), but the judge interrupted, saying it constituted political rhetoric.
Sham Tsz-kit’s side said that prosecution witness Au Nok-hin had written him a mitigation letter. It said Sham was the person who, at Kowloon West coordination meetings, mainly opposed proposals to indiscriminately veto the budget, and had played a “decisive role” in the constituency not reaching a consensus on the veto.
11 Jul 2024法庭線#3808
47-Democrats Case Mitigation｜Yu Wai-ming: Still Believe There Was Nothing Wrong with Changing the Order Through Voting; Perhaps My Only Mistake Was Loving Hong Kong Too Much
47 名民主派被控「串謀顛覆國家政權」罪一案，參與九西初選及功能界別的被告周四（11 日）續求情，余慧明的代表大狀石書銘，庭上讀出她親自撰寫的求情信。
余在信中表示，由於政府未能及時採取措施預防新冠疫情爆發，因此希望進入政治體制、參選立法會，增加對政府議價的能力，「但被指控為顛覆國家政權，這在其他民主國家中聞所未聞」。
她指，法庭的裁決「指五大訴求是空中樓閣，但其中的一項訴求，是實現《基本法》所承諾的雙普選」，反問若政府認為落實「23 條」是它的憲制責任，「那麼實現雙普選難道就不是？」
她續指，至今仍認為，通過在立法會投票以改變現有秩序「並沒有甚麼不對」，又稱「也許我犯下的唯一錯誤，就是我太愛香港」。法官陳慶偉此時打斷石書銘，指這並非求情信，而是政治論述。
In the case involving 47 democrats charged with conspiracy to subvert state power, defendants who took part in the Kowloon West primary election and functional constituencies continued mitigation submissions on Thursday (11th). Counsel for Yu Wai-ming, Randy Shu Ming Shek, read out a mitigation letter she had written herself in court.
In the letter, Yu said that, because the government had failed to take timely measures to prevent the outbreak of COVID-19, she had hoped to enter the political system and stand for election to the Legislative Council in order to increase her bargaining power with the government. “But I was accused of subverting state power. This is unheard of in other democratic countries.”
She said the court’s judgment “described the five demands as a castle in the air, but one of the demands was to achieve the universal suffrage promised by the Basic Law”. She asked: if the government believed that implementing “Article 23” was its constitutional responsibility, “then is achieving universal suffrage not [a constitutional responsibility]?”
She continued to say that she still believed there was “nothing wrong” with changing the existing order through voting in the Legislative Council, adding, “Perhaps the only mistake I made was that I loved Hong Kong too much.” Judge Andrew Hing Wai Chan interrupted Randy Shu Ming Shek at that point, saying that this was not a mitigation letter but a political argument.
Translations are supplied by the source workbook. Consult the original reporting for context.
