14 Sept 2023法庭線#8369
Moroccan man convicted of removing regional flags day after National Day and throwing them onto road, given suspended sentence
2022 年十一國慶翌日凌晨，36 歲摩洛哥籍男子涉於北角拆下逾 20 支國旗、區旗，再拋出馬路。署理主任裁判官鄧少雄早前指，被告案發時喝醉，裁定侮辱國旗罪脫；而醉酒並非侮辱區旗罪的辯護理由，因此罪成。
被告獲保釋至周四（14 日）判刑，署理主任裁判官鄧少雄重申被告當時僅飲醉，才扯下旗杆，沒有表達任何意見或立場，認為情況特殊，而礙於簽證不確定可否續期，無法判處社服令等，最後判處 2 周監禁、緩刑 12 個月。
In the early hours of the day after National Day in 2022, a 36-year-old Moroccan man allegedly removed more than 20 national and regional flags in North Point and threw them onto the road. Acting Chief Magistrate Daniel Siu Hung Tang previously found that the defendant was drunk at the time of the incident and acquitted him of insulting the national flag. However, intoxication was not a defence to the charge of insulting the regional flag, and he was convicted.
The defendant was released on bail until Thursday (the 14th) for sentencing. Acting Chief Magistrate Daniel Siu Hung Tang reiterated that the defendant had merely been drunk and pulled down the flagpoles, without expressing any opinion or stance. The court considered the circumstances unusual, but was unable to impose a community service order or similar sentence because it was uncertain whether his visa could be renewed. He was ultimately sentenced to two weeks’ imprisonment, suspended for 12 months.
13 Sept 2023法庭線#8360
Young man initially acquitted over spanner and hiking stick; convicted after High Court remits case, jailed for 3 months
2019 年 9 月 2 日清晨，22 歲男子被指在葵涌遭警員搜出士巴拿及行山杖，早前裁定管武罪不成立；律政司以案件呈述方式上訴得直，案件發還予原審重新考慮。
裁判官林子勤周三（13 日）聽取陳詞後，裁定被告罪成，即時囚 3 個月。官指，他原接納被告錄影會面中，稱士巴拿、行山杖用於自衛，惟受制於高院裁決，以及考慮被告沒作供，故此次不予比重。官續說，被告警誡下曾有「入罪性陳述」，即他稱擬保護連儂牆，考慮袋內裝備等，指唯一合理推論是擬在爆發衝突時以兩物攻擊他人。
一直望向官的被告聞判，即時別過臉。官又指，本案所涉物品較控方呈上案例破壞性低，以判囚 5 個月為量刑起點，並酌情減刑至囚 3 個月。
On the morning of 2 September 2019, a 22-year-old man was allegedly found by police in Kwai Chung with a spanner and a hiking stick. He was previously acquitted of possessing an offensive weapon. The Department of Justice succeeded in an appeal by way of case stated, and the case was remitted to the trial court for reconsideration.
After hearing submissions on Wednesday (the 13th), Magistrate Lam Tsz-kan convicted the defendant and immediately sentenced him to three months’ imprisonment. The magistrate said he had initially accepted the defendant’s account in a video-recorded interview that the spanner and hiking stick were for self-defence. However, in light of the High Court’s ruling and the defendant’s decision not to give evidence, he did not give that account weight this time. The magistrate further said the defendant had made an “incriminating statement” under caution, saying that he intended to protect a Lennon Wall. Taking into account the equipment in the bag and other matters, the only reasonable inference was that he intended to use the two objects to attack others if a confrontation broke out.
The defendant, who had been looking at the magistrate, immediately turned his face away when the sentence was delivered. The magistrate also said the objects involved in this case were less destructive than those in the precedent cited by the prosecution. Taking five months’ imprisonment as the starting point for sentencing, he exercised discretion to reduce the sentence to three months.
12 Sept 2023法庭線#8358
Zeek ordered to pay truck driver more than HK$440,000 after court finds employment relationship
網上物流平台 Zeek（斑馬）的營運公司，再被入稟追討欠薪。一名貨車司機索償逾 44 萬元欠薪、代通知金、遣散費及有薪假期等，案件周二（12 日）於勞資審裁處續審。公司代表續缺席聆訊。
暫委審裁官吳芷玲指，考慮申索人證供及其提交的文件後，裁定申索人與被告存僱傭關係，本案所有申索得直，並下令被告另須賠償訟費 6,000 元。
申索人周一於庭上供稱，曾為「順豐智能櫃」送貨，後被安排調至「斑馬到家」工作。他周二續供稱，為前者送貨時亦是由斑馬的營運公司支薪。
The operator of online logistics platform Zeek (Zebra) has again faced a claim for unpaid wages. A truck driver sought more than HK$440,000 in unpaid wages, payment in lieu of notice, severance pay and paid holidays, with the case continuing at the Labour Tribunal on Tuesday (12th). The company’s representative remained absent from the hearing.
Acting adjudicator Chi Ling Ng said that, after considering the claimant’s testimony and the documents he submitted, the tribunal found that an employment relationship existed between the claimant and the respondent. All claims in the case were allowed, and the respondent was also ordered to pay HK$6,000 in legal costs.
The claimant testified in court on Monday that he had delivered goods for “SF Smart Lockers” before being assigned to work for “Zebra at Home”. He continued his testimony on Tuesday, saying that when he delivered goods for the former, he was also paid by Zeek’s operating company.
11 Sept 2023獨媒#8353
24-year-old Student Who Hid for 1½ Years Jailed 4 Years for Perverting Course of Justice and Rioting; Court Rejects House Arrest as Mitigating Factor
24歲男學生馮清華，與10.1荃灣衝突中槍的「健仔」同被控暴動罪，他們及其餘兩人於荃葵青區的酒店及私人住宅等藏匿年半，一直無到庭應訊，直至去年於西貢被捕。馮早前承認妨礙司法公正及暴動罪，今（11日）在區域法院（借用西九法院）被判囚4年。暫委法官彭亮廷判刑時指，接納被告並非潛逃計劃的策劃者，並因受人唆擺才窩藏。辯方求情時指出被告窩藏期間已等同承受517日軟禁，但彭官拒絕接納這為減刑因素。他解釋即使被告是受人唆擺，但若不是他首肯及配合，就不會發生本案，彭官指：「被告的經歷完全是他自己招致及招惹回來。」
Twenty-four-year-old student Fung Ching-wah was charged with rioting alongside “Tsang Chi Kin”, who was shot during the October 1 clash in Tsuen Wan. They and two others hid in hotels and private residences in the Tsuen Wan and Kwai Tsing districts for a year and a half, failing to appear in court, until they were arrested in Sai Kung last year. Fung earlier pleaded guilty to perverting the course of justice and rioting, and was sentenced to four years’ imprisonment today (11th) at the District Court, sitting at the West Kowloon Courts. In sentencing, Acting Judge Pang Leung-ting accepted that the defendant was not the planner of the escape plan and had sheltered others after being incited by them. The defence submitted in mitigation that the defendant had effectively endured 517 days of house arrest while in hiding, but Judge Pang rejected this as a mitigating factor. He explained that although the defendant had been incited by others, the case would not have occurred without his consent and cooperation. Judge Pang said: “The defendant’s experience was entirely brought about and invited by himself.”
7 Sept 2023法庭線#8334
Owner of ‘Ying Shui Mi Grocery Store’ and Another Charged over Cartoon Goods with False Trade Descriptions; Pleas Set for October
兩人被指於 2022 年 7 月於旺角銀城廣場一個臨時檔，售賣具虛假說明的貨品，被控一項「供應應用虛假商品的貨品」及一項「管有已應用虛假商品說明的貨品」，案件周四（ 7 日）在西九龍裁判法院提堂，其中一名被告為「影衰 Mi 雜貨店」東主。
控方要求被告答辯，辯方指未收到控方案情，申請押後至 10 月 18 日答辯，獲署理主任裁判官香淑嫻批准，被告續准保釋。控罪指，涉案貨品包括「Winnie the Pooh」、「Little Twin Stars」T-shirt 等。翻查資料，銀城廣場 1 樓當時正舉辦「隱世市集」。
Two people were accused of selling goods bearing false trade descriptions at a temporary stall in Silvercord Plaza, Mong Kok, in July 2022. They were each charged with one count of supplying goods to which a false trade description had been applied and one count of possessing goods to which a false trade description had been applied. The case came before the West Kowloon Magistrates’ Courts on Thursday (7th), with one of the defendants being the owner of ‘Ying Shui Mi Grocery Store’. The prosecution asked the defendants to enter pleas, but the defence said it had not received the prosecution’s case materials and applied for an adjournment until 18 October. Acting Principal Magistrate Veronica Shuk Han Heung granted the application, and the defendants were continued on bail. The charges allege that the goods included ‘Winnie the Pooh’ and ‘Little Twin Stars’ T-shirts. Records show that the first floor of Silvercord Plaza was hosting a ‘Hidden Market’ at the time.
7 Sept 2023法庭線#8335
10.1 Wong Tai Sin | Young man jailed for 4½ years for riot; leave to appeal conviction and sentence refused
有網民於 2019 年國慶日發起「六區開花」行動，多區演變成警民衝突，多人被控暴動罪。當中一名 22 歲青年經審訊後被裁定罪成，判囚 4 年 6 個月。他不服定罪和刑罰，周四（7 日）於高等法院處理上訴許可申請。
申請方指，現場有片段顯示，青年被制服後，曾攙扶一名受傷警離開現場，其行為與他是否有意圖參與暴動相關，惟原審官沒考慮此點，判刑時亦對其善舉隻字不提，沒作出扣減。上訴庭法官彭寶琴即日頒判詞，指此事發生於申請人被捕後，無法支持他沒意圖參與暴動，又指申請人不作供，試圖依賴「旁枝末節」要求法庭作出猜想，並不恰當。
至於申請方指青年「救助」警員屬減刑因素，法官指，警員盤問下表明「我唔同意佢（申請人）係幫緊我」，並指當時搭著其後頸，是以防他逃走 。法官又指，即使接納他曾「協助」警員，在「暴動」此嚴重罪行下，原審拒絕考慮此求情並無不妥。
Netizens launched a “blossoms in six districts” action on National Day in 2019, with events in several districts developing into clashes between police and protesters. Many people were charged with rioting. A 22-year-old man was convicted after trial and sentenced to 4 years and 6 months in prison. He challenged his conviction and sentence, and his application for leave to appeal was heard at the High Court on Thursday (7th).
The applicant’s side said video footage showed that, after the young man had been restrained, he helped an injured police officer leave the scene. This was relevant to whether he had intended to participate in the riot, but the trial judge had not considered the point and had made no mention of the good deed when sentencing or deducted any time on that basis. Court of Appeal judge Pang Po-kam handed down judgment the same day, saying the incident occurred after the applicant had been arrested and could not support his claim that he had not intended to participate in the riot. She also said that, as the applicant did not give evidence, it was inappropriate for him to seek to have the court speculate based on “peripheral details”.
Regarding the applicant’s submission that the young man’s “assistance” to the police officer was a mitigating factor, the judge said the officer stated under questioning: “I do not agree that he [the applicant] was helping me.” She said he had put his arm around the back of the officer’s neck at the time to prevent him from escaping. The judge also said that even if it were accepted that he had “assisted” the officer, the trial judge was not wrong to refuse to take this mitigation into account given the seriousness of the offence of rioting.
7 Sept 2023法庭線#8336
First protest-related gathering restriction case: Lee Cheuk-yan and others denied leave for final appeal on same day; CFA says regulation has expired
2020 年五一勞動節，工黨李卓人、社民連梁國雄等 8 人，以 4 人一組遊行到政總外請願，被裁定違「限聚令」罪成，判囚 14 天、緩刑一年半，是首宗涉及示威、被告不認罪被裁罪成的限聚令案件。高院於 2022 年拒批上訴至終審法院證明書，工黨 4 人直接向終審法院申請上訴許可。
終院周一（4 日）開庭處理，法官即日拒絕批出許可。終院事隔 3 日，於周四（7 日）頒判詞指，限聚令是政府因應緊急疫情所制定的公共衛生規例，現時已期滿失效，成為「一紙空文」，因此其正確詮釋，不再具重大而廣泛的重要性。
就申請方指，若未來再出現疫情，會實施類似規例，判詞認為，政府採取甚麼感染控制措施，取決於疫情性質等因素，沒有任何基礎假設政府會發布相似規例。
On Labour Day in 2020, Labour Party member Lee Cheuk-yan, League of Social Democrats member Leung Kwok-hung and six others marched in groups of four to petition outside the Government Headquarters. They were convicted of violating the gathering restriction order after pleading not guilty, and sentenced to 14 days’ imprisonment, suspended for 18 months. It was the first gathering restriction order case involving a protest in which defendants who pleaded not guilty were convicted after trial. In 2022, the High Court refused to issue a certificate for an appeal to the Court of Final Appeal, and four Labour Party members applied directly to the Court of Final Appeal for leave to appeal.
The Court of Final Appeal heard the application on Monday (4th) and refused leave on the same day. Three days later, on Thursday (7th), it handed down its judgment, stating that the gathering restriction order was a public health regulation enacted by the Government in response to the emergency pandemic situation. It has now expired and become “a piece of waste paper”; therefore, its proper interpretation no longer raises a matter of substantial and wide importance.
In response to the applicants’ argument that similar regulations could be introduced if another pandemic occurred in the future, the judgment said that the infection-control measures adopted by the Government would depend on factors including the nature of the pandemic, and there was no basis for assuming that the Government would issue similar regulations.
7 Sept 2023法庭線#8337
‘Headliner’ accused of insulting police; Communications Authority and union appeal, Court of Appeal to rule within nine months
通訊事務管理局 2020 年裁定港台《頭條新聞》有集數污衊、侮辱警方，並向港台發出警告，節目隨後停播。記協與港台工會提司法覆核挑戰決定，2021 年獲高院裁定部分勝訴。通訊局、港台工會與記協其後均提上訴，上訴庭周三（6 日）審理。
通訊局一方認為，原審錯誤裁定局方在處理投訴時，有責任調查節目內容的真確性，而《頭條新聞》將醫生不夠口罩，與「衙差大把有得剩」連繫上，屬污衊及侮辱警員，引致市民不信任警隊。
工會、記協一方則指，節目中「取消徒步巡邏，唔使行咇」說法誇張，但有新聞報道的事實基礎，而且是針對有關事件，非警員群體。法庭聽取陳詞後，押後 9 個月內頒布判詞
In 2020, the Communications Authority ruled that some episodes of RTHK’s ‘Headliner’ denigrated and insulted the police, and issued RTHK a warning. The programme was subsequently taken off the air. The Hong Kong Journalists Association and an RTHK staff union sought judicial review of the decision and partially won their case in the High Court in 2021. The Communications Authority, the RTHK staff union and the Journalists Association subsequently all appealed, and the Court of Appeal heard the case on Wednesday (the 6th).
The Communications Authority argued that the lower court had erred in finding that it was responsible for investigating the accuracy of programme content when handling complaints. It said that ‘Headliner’ had linked doctors not having enough masks with the statement that ‘the police have plenty left over’, which amounted to denigrating and insulting police officers and caused the public to lose trust in the police force.
The union and the Journalists Association argued that the programme’s statement that foot patrols had been cancelled and officers no longer needed to ‘walk the beat’ was exaggerated, but had a factual basis in news reports and targeted the incident concerned rather than police officers as a group. After hearing submissions, the court reserved judgment to be delivered within nine months.
5 Sept 2023獨媒#8323
Second Bridge Clash: Four CUHK Students Convicted of Rioting Jailed; Appeals Dismissed, Must Continue Serving Terms
2019年11月11日「黎明行動」，有示威者在中大二號橋向吐露港公路投下雜物，警察一度向校園發射多枚催淚彈驅散，並闖入校園拘捕5名學生。5名中大生否認暴動及蒙面等罪，受審後全部罪成，被判監4年9個月至4年11個月。其中4人不服定罪及刑罰申請上訴，今（5日）在高等法院聆訊，上訴庭終拒絕批出上訴許可，並駁回上訴，各被告需繼續服刑。3名法官認為本案背景嚴重，不能與其他案例相比，警方設防線阻止有人從二橋擲物，但示威者卻衝擊防線希望奪回二橋主導權，一旦有人擲物會引致火車出軌令乘客前仆後倒，甚或導致「十車連環相撞」。
During the “Dawn Operation” on 11 November 2019, protesters threw objects from CUHK’s Second Bridge towards the Tolo Highway. Police fired multiple rounds of tear gas into the campus to disperse them and entered the campus to arrest five students. The five CUHK students denied rioting and mask-related offences, but were all convicted after trial and sentenced to between four years and nine months and four years and 11 months in prison. Four of them applied to appeal against their convictions and sentences. At a hearing at the High Court today (the 5th), the Court of Appeal ultimately refused leave to appeal and dismissed the appeals, meaning that all four defendants must continue serving their sentences. The three judges considered the circumstances of the case serious and not comparable with those in other cases. They said police had set up a cordon to prevent objects from being thrown from the Second Bridge, but the protesters had attacked the cordon in an attempt to regain control of the bridge. If objects had been thrown, they could have caused a train to derail, sending passengers falling forwards and backwards, or even causing a “10-car chain collision”.
5 Sept 2023法庭線#8324
Same-sex marriage | Jimmy Sham partially succeeds in final appeal; CFA says Hong Kong must provide alternative framework to recognise same-sex couples’ relationships
「彩虹行動」成員、前民陣召集人岑子杰，早前就香港法律不承認海外同性婚姻提司法覆核敗訴。他不服判決，上訴至終審法院，周二（5 日）獲裁定部分勝訴。終院 5 名法官，以 3 比 2 裁定，香港法律沒有提供任何替代途徑，在法律上承認同性伴侶關係，違反《人權法案》享有的權利，有關命令暫緩兩年執行。至於岑另挑戰香港不承認同性婚姻，及不承認外地同性婚姻屬違憲，則被終院一致駁回。
常任法官李義、霍兆剛及非常任法官祈顯義均認為，本港須有替代法律框架，承認同性伴侶關係，以滿足他們的基本社會需求及獲取合法身分認同，以免他們覺得自己低人一等。3 位法官又同意，《人權法案》第 14 條所述的私生活權利適用於本案，舉例提到過往有同性伴侶為爭取權益提出司法覆核，須公開其私生活，成為公眾關注焦點，都構成私生活的的干預。
首席法官張舉能及常任法官林文瀚則持不同意見，認為上訴方以平等權爭取法律上認可同性伴侶關係，形同「走後門」，無疑於以另一名義爭取同性婚姻。
Jimmy Sham Tsz-kit, a member of Rainbow Action and former convenor of the Civil Human Rights Front, previously lost a judicial review challenge over Hong Kong law’s failure to recognise overseas same-sex marriages. Dissatisfied with the judgment, he appealed to the Court of Final Appeal and was partially successful on Tuesday (5th). The five CFA judges ruled by a 3-2 majority that Hong Kong law provided no alternative means of legally recognising same-sex couples’ relationships, in breach of rights under the Bill of Rights. The order was suspended for two years. The CFA unanimously dismissed Sham’s other challenges against Hong Kong’s non-recognition of same-sex marriage and its non-recognition of same-sex marriages conducted overseas as unconstitutional.
Permanent judges Tony Li and Joseph Fok, and non-permanent judge Lord Collins, all held that Hong Kong must have an alternative legal framework recognising same-sex couples’ relationships, in order to meet their basic social needs and provide legal recognition of their identities, so that they would not feel inferior. The three judges also agreed that the right to privacy under Article 14 of the Bill of Rights applied to the case. They cited, as an example, same-sex couples who had previously sought judicial review to assert their rights and had to disclose details of their private lives, becoming the focus of public attention—conduct that also constituted interference with private life.
Chief Justice Andrew Cheung and Permanent Judge Johnson Lam dissented, holding that the appellants’ pursuit of legal recognition of same-sex couples’ relationships on the basis of the right to equality amounted to “using the back door” and was effectively seeking same-sex marriage under another name.
Translations are supplied by the source workbook. Consult the original reporting for context.
