20 Sept 2024法庭線#4065
新煽動罪3案審結 兩案量刑起點與舊罪譚得志案一致 官：立法藉嚴刑除危國安風險
The first three cases under the Article 23 “new sedition offence” were concluded this week, marking the first time that courts have imposed sentences under the new law, which raises the maximum penalty. The sentencing starting points have attracted considerable attention. In two cases, the defendants had previous convictions for the old sedition offence, and the magistrate set imprisonment of 18 months as the starting point in both cases—the same level as in the Tam Tak-chi case under the old offence. In the remaining case, the starting point was 12 months’ imprisonment.
All three cases were handled by Chief Magistrate So Wai-tak, and all three defendants were represented by barrister Steven Kwan. Citing a Court of Appeal case, the defence argued that raising the maximum sentence did not mean that the penalty should consequently be increased. So cited another case in response, saying that the legal principle in the case relied on was wrong, and that the increase in penalties reflected the legislature’s intention to eliminate through harsher punishment the risks of endangering national security and disrupting social order, which the court had to take into account.
23 條「新煽動罪」的首 3 宗案件本周審結，是法庭首次按提升最高刑罰的新法例判處刑罰，量刑起點備受關注。其中，有舊煽動罪案底的兩名被告，裁判官皆以囚 18 個月為量刑起點，水平與舊罪的譚得志案一樣。餘下一案，官則以囚 12 個月為量刑起點。
3 案均由總裁判官蘇惠德處理，3 被告同樣由大狀關文渭代表。關引上訴庭案例，指調高最高刑期也不等於刑罰要隨之調高；蘇則引另一案例反駁，指關引的案例法律原則有錯，又指調高刑罰反映立法機關藉嚴刑消除危害國安、破壞社會秩序的風險，法庭必須考慮。
19 Sept 2024法庭線#4060
23條｜首宗新煽動罪定罪 27歲男認6.12穿「光時」衫遊蕩 判囚14個月
On June 12 this year, a 27-year-old man was accused of loitering at Shek Mun MTR Station while wearing clothing bearing the words “Liberate Hong Kong, Revolution of Our Times” and a yellow “F.D.N.O.L” mask, and of refusing to produce his identity card. He was charged with three offences, including the new sedition offence under the Safeguarding National Security Ordinance. He pleaded guilty to the sedition charge and was sentenced to 14 months’ imprisonment at West Kowloon Magistrates’ Courts on Thursday (19th).
今年 6 月 12 日，27 歲男子被指穿著印有「光復香港 時代革命」衣物、戴黃色「F.D.N.O.L 」口罩，在石門港鐵站遊蕩及拒出示身份證，被起訴《維護國家安全條例》下「新煽動罪」等 3 罪。他承認煽動罪，周四（19 日）在西九龍裁判法院被判囚 14 個月。
總裁判官蘇惠德指判刑須考慮立法原意，指當局藉更嚴峻的刑罰強化預防性，消除危害國安的風險。官指，被告在 6 月 12 日，即示威者視為標誌性的日子，伺機宣場危害國安訊息，斥其「藉一個象徵啟動的日子…企圖令動亂的思想死灰復燃。」
官又指，若法律不及早介入，會令社會再陷亂象，認為判刑的阻嚇不單為防止無知之人仿傚，亦要阻嚇「已經持有或認同被告人主張的人，從事散播危害國家安全思想的活動。」官以 18 個月監禁為量刑起點，因被告曾有類同案底，官斥不知悔改須加刑儆效尤。
19 Sept 2024法庭線#4061
23條｜男子涉巴士椅背寫煽動字句 承認3項煽動罪囚10月
The National Security Department of the police earlier charged a 29-year-old man with three new sedition offences under the Safeguarding National Security Ordinance and two counts of destroying or damaging property. The defendant pleaded guilty to the three sedition offences at West Kowloon Magistrates’ Courts on Thursday (19th) and was sentenced to 10 months’ imprisonment.
The case stated that the defendant had written phrases including “Hong Kong independence” and “Liberate Hong Kong” on buses on separate occasions. After his arrest, he said he was expressing that he had freedom of speech. In mitigation, the defence said the defendant had wanted to prove that Hong Kong still had freedom of speech, but that his “social experiment was doomed to fail”. It also said that although the maximum sentence for the new sedition offence had increased from two years to seven years, the maximum sentence applied only to the most serious cases and “does not mean that all sentences have to be increased three and a half times”. The defence said the defendant hoped to turn over a new leaf after serving his sentence and “not get involved in social testing again”.
In sentencing, Chief Magistrate So Wai-tak said the defendant knew that the relevant phrases were illegal but had nevertheless repeatedly committed the offences. He also said the defendant had targeted buses to spread messages advocating Hong Kong independence and endangering national security. If intervention had not been made at an early stage, the “ripple effect” would have caused society to fall into chaos again.
警方國安處早前落案控告一名 29 歲男子，控以 3 項《維護國家安全條例》下新煽動罪，以及兩項摧毀或損壞財產罪。被告周四（19 日）在西九龍裁判法院承認 3 項煽動罪，被判囚 10 個月。
案情指，被告先後在巴士上寫上「香港獨立」、「光復香港」等字句，被捕後稱以此表達自己有言論自由。辯方求情指被告欲證本港仍有言論自由，但其「社會實驗注定失敗」，又指新煽動罪最高刑期由2年上升至7年，但最高刑期只適用於最嚴重者，「唔係所有都要增加3倍半」。辯方指，被告期望服刑後重新做人，「唔再牽涉喺社會測試上」。
總裁判官蘇惠德判刑時指，被告明知有關字句違法，仍一而再、再而三犯案，又指他以巴士為目標，達致宣揚香港獨立和危害國安的訊息。若不及早介入，在疊加效應的影響下，「會導致社會再次陷入亂象」。
7 Sept 2024同文#4029
【域外適用】美國政府多部門共同發布香港商務警示 指 23 條含糊定義危害企業及公民安全
On 6 September, the US government issued a Hong Kong Business Advisory on the business environment in Hong Kong. First released in July 2021, the advisory significantly heightens warnings about risks to US companies operating in Hong Kong in light of actions taken by the Chinese and Hong Kong Special Administrative Region governments in recent years, particularly the impact of the National Security Law (NSL) and the newly implemented Safeguarding National Security Ordinance (SNS Ordinance) under Article 23 of the Basic Law. The revised advisory was jointly issued by the US Departments of State, the Treasury, Commerce, Agriculture and Homeland Security, and highlighted reputational, regulatory, financial and legal risks arising from the actions of the Chinese and Hong Kong authorities.
美國政府於 9 月 6 日對香港的營商環境發布香港商務警示（Hong Kong Business Advisory），自 2021 年 7 月首次發表後，鑑於中國及香港特別行政區政府近年來的行動，特別是國安法（National Security Law, NSL）與全新實施基本法第 23 條維護國家安全條例（Safeguarding National Security Ordinance, SNS Ordinance）的影響，該諮詢顯著提升了對在港美國公司的風險警示。美國國務院、財政部、商務部、農業部和國土安全部共同發布此修訂諮詢，強調因中國及香港當局行為而產生的聲譽、監管、財務及法律風險。
22 Aug 2024法庭線#3929
23條｜男子涉巴士椅背寫煽動字句 辯方稱正與控方商討控罪 押後9.19再訊
The police National Security Department earlier charged a 29-year-old man with three counts of the new offence of sedition under the Safeguarding National Security Ordinance, and two counts of destroying or damaging property. The case was mentioned again at the West Kowloon Magistrates’ Courts on Thursday (22nd).
The defence applied to adjourn the case to Sept 19 for another mention, pending discussions with the prosecution over the charges. The application was granted, with the defence saying it was "confident that the final outcome would not require a trial". The defendant did not apply for bail and was remanded in custody pending the next hearing.
警方國安處早前落案控告一名 29 歲男子，控以 3 項《維護國家安全條例》下新煽動罪，以及兩項摧毀或損壞財產罪，案件周四（22日）在西九龍裁判法院再訊。
辯方申請將本案押後至 9 月 19 日再訊獲准，以待與控方商討控罪，並指「有信心最後嘅結果並不需要審訊」。另被告沒有保釋申請，還押候訊。
20 Aug 2024集誌社#3918
新聞自由指數｜業界評分 11 年新低 92％ 從業員評 23 條立法損害大
The Hong Kong Journalists Association released its latest 2023 Press Freedom Index Survey Report on the 20th. The industry rating fell to 25 points, the lowest since the Press Freedom Index was established in 2013, marking its fifth consecutive annual decline since 2019. The public rating rose slightly from last year to 42.2 points but remained at a low level. After legislation of Article 23 of the Basic Law was completed this year, 92% of news practitioners said it had caused very great or fairly great damage to press freedom.
香港記者協會今（20日）公布最新《2023年度新聞自由指數調查報告》，業界評分創 新聞自由指數 2013 年成立以來的歷史新低，自 2019 年起連續五年下跌至 25 分；公眾評分則較去年輕微回升至 42.2 分，但仍屬於低位徘徊。《基本法》23 條於今年完成立法，92％ 新聞從業員認為對新聞自由造成極大或頗大損害。
7 Aug 2024法庭線#3886
23條｜涉6.12穿「光時」衫、戴黃口罩 27歲男擬認「新煽動罪」9.16答辯
On June 12 this year, a 27-year-old man was accused of wearing clothing bearing the words “Liberate Hong Kong; Revolution of Our Times” and a yellow “FDNOL” mask, loitering at Shek Mun MTR station and refusing to produce his identity card. He was charged with three offences, including the “new sedition offence” under the Safeguarding National Security Ordinance, and appeared again at West Kowloon Magistrates’ Courts on Wednesday (the 7th).
The defence said the defendant intended to plead guilty to the new sedition offence. He was further remanded until Sept 16 for plea. The prosecution was represented by Senior Prosecutor Ting Wai Lee, and the defence by barrister Steven Kwan. The case was handled by Chief Magistrate Su Wai-tak. The defence also said that the charge of refusing to produce an identity card was brought under the Public Order Ordinance, but stressed that the defendant had not intentionally refused to produce his identity card. If the prosecution amended the charge to failing to produce an identity card under the Immigration Ordinance, the defendant would plead guilty.
The case was adjourned to Sept 16 for plea, pending discussions between the prosecution and defence.
今年 6 月 12 日，27 歲男子被指穿著印有「光復香港 時代革命」衣物、戴黃色「FDNOL」口罩，在石門港鐵站遊蕩及拒出示身份證，被起訴《維護國家安全條例》下「新煽動罪」等 3 罪，周三（7 日）在西九龍裁判法院再訊。
辯方透露，被告擬認新煽動罪，續還押至 9 月 16 日答辯。控方由高級檢控官李庭偉代表，辯方由大律師關文渭代表，案件由總裁判官蘇惠德處理。辯方指，被告打算承認「新煽動罪」。另外，辯方指本案的拒出示身份證罪，屬於《公安條例》下的控罪，但強調被告非故意不出示身份證，若控方改控《入境條例》下的沒出示身份證罪，被告將會認罪。
案件押至 9 月 16 日答辯，候控辯雙方商討。
7 Aug 2024法庭線#3888
23條｜涉網上提「革命無罪」男子被控「新煽動罪」 辯方稱將爭議控罪合憲性
A 58-year-old man was accused of posting seditious statements or photographs on online platforms including YouTube between March and June this year. The wording allegedly involved included “revolution is not a crime; rebellion is justified”. He was charged under the Safeguarding National Security Ordinance with knowingly publishing a publication with a seditious intention, and appeared again at West Kowloon Magistrates’ Courts on Wednesday (the 7th). The defence said the new sedition offence does not require proof of an intention to incite violence and violates the freedom of expression guaranteed by the Basic Law, and will challenge the constitutionality of the charge. Chief Magistrate So Wai-tak noted that the Tam Tak-chi case would address the same issue and asked whether the proceedings should await the Court of Final Appeal’s judgment. The defence said the two sedition offences were not completely the same and that the ruling was “not 100 per cent applicable to this case”. The prosecution and defence will make submissions on the issue on 20 September. The defendant was remanded in custody. The prosecution was represented by Senior Public Prosecutor Ting Wai Lee, and the defence by barristers Steven Kwan, Yvonne Lai Kwok Leung and Sze To Tsz-long. The case was handled by Chief Magistrate So Wai-tak.
今年 3 月至 6 月期間，58 歲男子被指在 YouTube 等網上平台，發布煽動陳述或相片，據悉涉案字眼包括「革命無罪造反有理」，被控《維護國家安全條例》下的「明知而發布具煽動意圖的刊物」罪，周三（7 日）在西九龍裁判法院再訊。
辯方表示，新煽動罪毋須證明煽暴意圖，違反《基本法》賦予的言論自由，爭議控罪合憲性。總裁判官蘇惠德關注，「譚得志案」將處理同一爭議，應否等候終院判決，辯方則稱兩項煽動罪不完全相同，「唔係百分之百可以適用於本案」。
控辯雙方訂於 9 月 20 日就此陳詞，被告續還押。控方由高級檢控官李庭偉代表，辯方由大律師關文渭、梁麗幗及司徒子朗代表，案件由總裁判官蘇惠德處理。
5 Aug 2024獨媒#3879
【國安法四年．數據分析】至今逾300人被捕 定罪率首跌破100% 23條下至少7人未能提早獲釋
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.
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」。
25 Jun 2024法庭線#3729
23條｜警方首就新煽動罪檢控發稿公布 29歲男涉巴士椅背寫煽動字句 還押8.22再訊
The government issued a press release at noon on Tuesday (25th), saying that the Police National Security Department had charged a 29-year-old man with three counts of the new sedition offence under the Safeguarding National Security Ordinance and two counts of destroying or damaging property. The case is also the first prosecution under the new sedition offence announced by police in a press release since Article 23 came into force. In the two previous prosecutions recorded by the media, police did not issue news announcements.
The case was brought before the West Kowloon Magistrates’ Courts on Tuesday afternoon. The prosecution applied to adjourn the case for further police investigation, including examination of the defendant’s phone and computer and investigation into whether he was involved in other cases. The prosecution opposed bail, while the defence did not make a bail application. The defendant was remanded until Aug 22 for mention.
政府周二（25 日）中午發稿，指警方國安處落案控告一名 29 歲男子，控以 3 項《維護國家安全條例》下新煽動罪，以及兩項摧毀或損壞財產罪。此案亦是「23 條」生效後，首宗警方發稿公布的新煽動罪檢控，之前傳媒有紀錄的兩宗檢控，警方均未發新聞公告。
案件周二下午在西九龍裁判法院提堂，控方申請押後案件，待警方進一步調查，檢查被告的電話、電腦，以及調查被告是否涉及其他案件。控方反對被告保釋，辯方則沒有擔保申請，還押至 8 月 22 日再訊。
Translations are supplied by the source workbook. Consult the original reporting for context.
