26 Nov 2024法庭線#4296
遺產條例排除同志被裁違憲 政府終極敗訴 終院指條例下權利非建基於贍養責任
Two same-sex spouses sought judicial review after the Housing Authority refused to recognise them as family members, preventing them from applying for public rental housing and moving into Home Ownership Scheme flats. Separately, a gay man sought judicial review because he feared that, if he died without making a will, his husband would be unable to inherit his property under the Intestates’ Estates Ordinance. The three cases had earlier been decided in their favour. On Tuesday (26th), the Court of Final Appeal unanimously dismissed the Government’s appeal by a five-judge panel and ordered it to pay the legal costs, leaving the LGBT applicants successful in all three cases.
Regarding the Intestates’ Estates Ordinance, the judgment said same-sex couples married overseas have relationships of equal closeness to those of heterosexual couples. The ordinance in question aims to distribute a deceased person’s property among relatives, including the deceased’s “intimate human relationships”, and is not dependent on marital status. Same-sex spouses can therefore be beneficiaries.
In response to the Government’s argument that only married heterosexual people have a “duty of maintenance during life”, the Court of Final Appeal said that the rights under the ordinance are not based on such a duty. It also said the ordinance’s definition of “valid marriage” differs from those adopted in other marriage ordinances, and reiterated that the legislature had no sufficient reason to restrict beneficiary spouses to people married under the Marriage Ordinance.
One of the LGBT applicants was originally Ng Hon-lam. After Ng died in 2020, his husband Yik Ho Li took over the case. Lee wrote on Facebook: “Grateful that the court recognised your suffering and recognised your contribution to LGBT equality.”
兩名同性配偶因房委會拒絕承認其家庭成員身分，未能申請公屋及入住居屋，提出司法覆核。另外，男同志因擔心在無立遺囑下離世，丈夫無法按《無遺囑者遺產條例》繼承財產，提出司法覆核，3 案早前獲判勝訴。政府上訴至終審法院，周二（26 日）被終院 5 名法官一致駁回，兼須付訟費，同志一方於 3 案維持勝訴。
針對《遺產條例》，判詞指，海外結婚的同性伴侶與異性夫婦一樣，具有同等密切的關係。而涉案《遺產條例》目的是將死者財產分配予親屬，包括死者的「親密人際關係」，非取決於婚姻狀況，因此同性配偶可成為受益人。
就政府一方指，只有異性已婚人士有「生前贍養責任」。終院反駁，條例下的權利非建基於贍養責任，又指《遺產條例》對「有效婚姻」一詞定義，與其他婚姻條例採用的定義有別，重申立法機關沒充分理由，限制受益配偶必須是根據《婚姻條例》結婚的人。
同志一方其中一名申請人原為吳翰林，吳於 2020 年離世後，由丈夫李亦豪接手。李於 FB 表示：「感激法庭肯定你的苦，肯定你對同志平權的付出」
26 Nov 2024法庭線#4297
721案男子英龍圍暴動等罪成 官裁屬主要參與的白衣人 着辯方解釋打人原因
More than five years after the July 21 attack in Yuen Long, eight white-shirted men have so far been convicted and sentenced to between three and a half and seven years in prison. Tang Ka-man, 43, was accused of being one of the white-shirted men. He denied charges of rioting and wounding with intent, but was convicted of both charges after trial on Tuesday (26th) at the District Court, which had moved to the West Kowloon Magistrates’ Courts. He is the ninth white-shirted man to be convicted and was remanded in custody until December 23 for sentencing.
Acting Judge CHAN Wai-mun compared Immigration Department record photographs, photographs taken by police and footage in the case, saying the defendant had deliberately changed his appearance when appearing in court but confirming that he was the man in the footage. The judge said the defendant had thrown a traffic light and wooden sticks, and pointed a rattan cane at the black-shirted people. His presence was not merely encouraging, but made him a major participant. The judge also ruled that the white-shirted men had reached an agreement to use rattan canes and wooden sticks to injure the black-shirted people, and that the defendant, as one of the white-shirted men, was one of the parties to the agreement.
The judge asked how many people had been injured during the period in question, saying: “Some white-shirted people used rattan canes and sticks to hit the black-shirted people—did anyone report it to the police?” The prosecution said, “We have no such record.” The judge responded: “That’s strange. Even though they were injured, they didn’t go to the police?” The judge also instructed the defence to explain during mitigation “why the white-shirted people hit the black-shirted people.”
元朗 7.21 襲擊逾五年，至今 8 名白衣人罪成，判囚 3 年半至 7 年。43 歲男子鄧嘉民被指為白衣人，他否認暴動、有意圖而傷人兩罪，經審訊後周二（26 日）在區院（移師西九龍裁判法院）被裁定全部罪成，為至今第九名罪成的白衣人，須還押至 12 月 23 日判刑。
暫委法官陳慧敏比對入境處紀錄照片、警方拍攝的照片及本案片段，指被告出庭時故意改外型，但肯定他是片中男子。而被告曾扔交通燈、木棍，並用藤條指向黑衣人，其存在不只鼓勵，亦為主要參與者。官另裁定白衣人達協議用藤條、木棍打傷黑衣人，而被告是白衣人亦是協議的其中一員。
官關注涉案時段有多少人受傷，問「有啲白衫人用藤條、棍打黑衣人，有冇人報警？」控方稱，「我哋冇呢個紀錄。」官聞言稱，「咁奇怪，佢哋受傷都唔去報警？」官另着辯方求情時交代「點解啲白衫人會打黑衫人」。
25 Nov 2024法庭線#4286
反恐第二案｜控方開案：被告計劃將軍澳放炸彈「悼周同學」、手機有試爆片段
In early 2020, explosives were found at Caritas Medical Centre and in an MTR carriage at Lo Wu. The Telegram channel “Ninety-Two Lots” later claimed responsibility. Police arrested eight people and charged seven of them under the United Nations (Anti-Terrorism Measures) Ordinance with “conspiracy to commit an explosion at a prescribed target”; the remaining person was charged with “attempting to manufacture explosives”. All eight pleaded not guilty, and the trial at the High Court entered its third day on Monday (25th).
The prosecution continued its opening submissions, alleging that the defendants planned to plant a bomb outside the car park at Sheung Tak Estate, Tseung Kwan O, on 8 March 2020, at a site commemorating HKUST student Chow Tsz-lok. Telegram messages showed the defendants discussing the proportions for mixing chemicals, purchasing raw materials for explosives, allocating manpower and arranging a “ghost car” for their escape. Surveillance officers also saw the defendants buying sulphur, angle iron and other items.
Some defendants test-detonated explosives inside a flat in Tai Kok Tsui. Several videos of the test detonations were found on the phones of the first and second defendants, showing suspected explosives being ignited, producing red and yellow flashes, with the screen at one point becoming completely blank before large amounts of smoke appeared. The prosecution said the second defendant appeared in some of the footage; the defence disagreed. The trial will continue on Tuesday (26th), when the prosecution is expected to complete its opening submissions.
2020 年初，明愛醫院、羅湖港鐵車廂被發現有爆炸品，Telegram 頻道「九十二籤」事後承認責任。警方拘捕 8 人，以《聯合國（反恐怖主義措施）條例》下的「串謀犯對訂明標的之爆炸」罪起訴當中 7 人，另外 1 人被控以「企圖製造炸藥」罪。8 人不認罪，周一（25 日）於高等法院踏入第 3 天審訊。
控方繼續開案陳詞，指各被告計劃於 2020 年 3 月 8 日，於將軍澳尚德邨停車場外，悼念科大生周梓樂之處放炸彈。Telegram 訊息顯示，被告商討調配化學品的比例、購買炸藥原材料、人手分配、安排「鬼車」逃走等；監視警員亦目擊被告購買硫磺、角鐵等物品。
部分被告在大角咀一個單位內試爆炸藥，首、次被告電話內搜出多段試爆影片，顯示疑似炸藥被點燃後，冒出紅色、黃色閃光，畫面一度一片空白，隨後冒出大量濃煙。控方指，次被告在部分片段中露面，辯方不同意。審訊周二（26 日）續，料將完成開案陳詞。
22 Nov 2024法庭線#4277
20歲學生涉在高院反恐第二案庭外拍照 准保釋候訊 官准離境
A 20-year-old student holding a Two-way Permit was charged with one count of “prohibition on taking photographs, etc., in court” after allegedly taking photographs outside Court 7 of the High Court on Monday (18th). The case came before the Eastern Magistrates’ Court on Friday (22nd). Records showed that the court was handling the second terrorism case that day.
Chief Magistrate Don Man Lung So, at the prosecution’s application, adjourned the case to 17 January 2025 for further investigation and to obtain the Department of Justice’s legal advice. The defendant was granted bail on the existing conditions in the meantime. The prosecution had sought to add a condition prohibiting the defendant from leaving Hong Kong, but after hearing submissions, the magistrate approved the defendant’s departure from Hong Kong.
20歲持雙程證學生，涉於周一（18 日）在高院 7 號法庭外拍照，被控一項「禁止在法庭內攝影等」罪，案件周五（22 日）於東區裁判法院提堂。翻查資料，該庭當天處理反恐第二案。
主任裁判官蘇文隆應控方申請，將案件押後至 2025 年 1 月 17 日再訊，以待進一步調查及索取律政司法律意見。被告期間准以原有條件保釋。控方一度欲新增不得離港的保釋條件，官聽取陳詞後，終批准被告可以離境。
22 Nov 2024法庭線#4278
反恐第二案｜控方開案：明愛醫院、羅湖站爆炸品案 被告涉煎鍋製炸彈、TG討論引爆
In early 2020, explosives were found at Caritas Medical Centre and in an MTR train carriage at Lo Wu station. The Telegram channel “Ninety-Two Fortune Sticks” later claimed responsibility. Seven people were charged with offences under the Anti-Terrorism Ordinance, while the remaining person was charged with attempting to manufacture explosives. All eight pleaded not guilty. The case is being heard by a nine-member jury and High Court judge Chan Chung-hang.
The second day of the trial began on Friday (22nd), with the prosecution reading its opening statement. It said the defendants made bombs in a commercial-residential unit in Tai Kok Tsui. A frying pan in the unit tested positive for potassium nitrate, a raw material for explosives. The defendants entered and left the unit from time to time, and fingerprints belonging to two of them were also found there.
The prosecution cited a large number of Telegram messages, including remarks such as “Smoke bomb, deploy tomorrow”, “The problem is the bot didn’t reply to my ‘boom’”, and “The old thing seems unable to explode”. Except for the sixth defendant, the others denied being the speakers alleged by the prosecution. The prosecution will continue reading its opening statement next Monday.
2020 年初，明愛醫院、羅湖港鐵車廂被發現有爆炸品，Telegram 頻道「九十二籤」事後承認責任。7 人被控《反恐條例》罪名，餘下 1 人被控以「企圖製造炸藥」罪。8 人不認罪，案件由 9 人陪審團及高院法官陳仲衡審理。
案件周五（22 日）展開第二日審訊，控方讀出開案陳詞，指各被告在大角咀一個商住單位製造炸彈，單位內的煎鍋驗出爆炸品原材料硝酸鉀，各被告不時出入單位，亦驗到其中兩名被告的指紋。
控方引述大量 TG 訊息指被告表示「煙彈，明天放」、「問題係個 bot 冇回我 boom」、「舊野好似爆唔到」等。除了第六被告，其餘各人否認是控方指稱的發言者。控方下周一將續讀出開案陳詞。
21 Nov 2024法庭線#4271
2021六四｜「鄭婆婆」被指違口罩令罪名不成立 官指警作供迴避未能接納
On the 32nd anniversary of the June 4 incident on 4 June 2021, Cheng Kit-sheung, known as “Granny Cheng”, was charged by summons with breaching the mask-wearing requirement in Hang Hau. She pleaded not guilty and stood trial. The defence case and the defendant’s testimony were originally scheduled to begin at the Kwun Tong Magistrates’ Courts on Thursday (21st), but the defence said it had decided not to call witnesses or have the defendant testify. Both sides then made their closing submissions that day. After adjourning the case for half a day, Acting Magistrate Tang Tsz-kai ruled that the defendant was not guilty. Outside court, Cheng Kit-sheung described the magistrate as “a judge who sees every detail clearly and cares about people’s livelihoods”.
In his ruling, the magistrate said the evidence of the two police witnesses differed “too greatly” for him to accept it with confidence. Both said they had not activated their body-worn cameras at the time, yet their notebooks contained the words “recording stopped”, which he said was “inexplicable”. The two officers also appeared evasive under cross-examination, prompting him to question whether “there was something they did not want to disclose”. Their conduct made it difficult for the court to accept their evidence. As the prosecution had ultimately failed to prove the case beyond reasonable doubt, the defendant was found not guilty.
2021 年 6 月 4 日「六四事件」32 周年，「鄭婆婆」鄭潔嫦被票控於坑口違口罩令。她不認罪受審，原定周四（21 日）在觀塘裁判法院展開辯方案情、被告親身作供，惟辯方指現決定不傳證人亦不作供，控辯雙方即日結案陳詞。暫委裁判官鄧子楷押後本案半日後，裁定被告罪名不成立。鄭潔嫦在庭外形容裁判官是「明察秋毫，為民生嘅法官」。
官裁決時指，控方兩名警方證人的證供「差異太大」，未能安心接納；二人均稱當時沒啟動隨身攝錄機，惟記事冊有「停止攝錄」字眼，「令人百思不得其解」；兩人面對盤問時又顯迴避，質疑「除非有事件唔想披露」，做法令法庭難以接受，最後基於控方未能舉證至毫無合理疑點，罪名不成立。
21 Nov 2024法庭線#4273
反恐第二案 8人涉口岸爆炸品不認罪受審 高院抽出9人陪審團
In early 2020, explosives were found at Caritas Medical Centre, a public toilet at Shenzhen Bay Port and a MTR train carriage at Lo Wu. Police arrested eight people and charged seven of them with “conspiracy to commit bombing of a prescribed target” under the United Nations (Counter-Terrorism Measures) Ordinance. The remaining person was charged with “attempting to manufacture explosives”. Four of the defendants have been remanded in custody for four years and eight months.
The eight denied the charges and went on trial. The case opened at the High Court on Thursday (21st), with 100 days set aside for the trial. The court selected a jury of seven women and two men (Legal 101 article). The trial was adjourned until Friday (22nd), when the prosecution will read its opening statement, which is expected to take two to three days.
2020 年初，明愛醫院、深圳灣口岸公廁、羅湖港鐵車廂被發現有爆炸品。警方拘捕 8 人，以《聯合國（反恐怖主義措施）條例》下的「串謀犯對訂明標的之爆炸」罪起訴當中 7 人，另 1 人則被控以「企圖製造炸藥」罪。當中 4 人至今還押 4 年 8 個月。
8 人不認罪受審，案件周四（21 日）在高等法院開審，預留 100 天審期，法庭抽出 7 女 2 男陪審團（法律 101 文章）。審訊押後周五（22 日）續，控方將讀出開案陳詞，預計需時 2 至 3 天。
20 Nov 2024法庭線#4258
11.18理大｜台「公視」特約記者非法集結罪成囚15月申定罪上訴許可 官押後宣判
On Nov. 18, 2019, members of the public went to Tsim Sha Tsui to support protesters inside PolyU. Ten people, including Democratic Party chairman Lo Kin-hei, were charged with unlawful assembly and other offences. All except Lo were convicted. A Hong Kong contract reporter for Taiwan Public Television’s programme “Art Is...” was sentenced to 15 months’ imprisonment and has since completed the sentence.
The reporter applied to the High Court on Wednesday (20th) for leave to appeal the conviction. Through counsel, the reporter argued that the laser pointer and multitool carried were not inherently offensive, and that the multitool was used to adjust camera screws. The judge questioned why the multitool was needed to adjust only one camera screw, noting that it was subsequently shown that the screw could be adjusted by hand alone, and said the explanation was far-fetched. The judge reserved the decision.
2019 年 11 月 18 日，市民發起到尖沙咀支援理大內示威者，10 人包括民主黨主席羅健熙，被控非法集結等罪。 除羅健熙外，其餘 9 人被裁定罪名成立。其中台灣公共電視《藝術很有事》香港特約記者被判囚 15 個月，早前已服畢刑期。
該名記者周三（20 日）向高等法院定罪上訴許可，並透過代表大律師指，所攜的鐳射筆及萬用鉗，在本質上不具攻擊性，後者是用作調校相機螺絲。惟法官質疑，萬用鉗只可用作調校相機其中一顆螺絲，其後證明單用手便可調校，說法牽強。法官將押後頒布決定。
20 Nov 2024法庭線#4260
11.12荃灣｜兩男非法集結等罪不成立 律政司上訴得直發還原審
In November 2019, netizens launched a “three-strike” action, and clashes broke out across Hong Kong. Two men were accused of taking part in an unlawful assembly in Tsuen Wan and contravening the Prohibition on Face Covering Regulation. They were acquitted in June 2021. The Department of Justice appealed by way of case stated. The High Court handed down its judgment on Wednesday (the 20th), ruling that the trial magistrate had made errors of law that were contrary to common sense. It quashed the acquittals and remitted the case to the trial court for further handling.
One issue in the appeal was whether the court could require the trial court to reconsider its decision in light of the new case, the “Lo Kin-man case”, which had emerged only after the decision. Judge Anthony Kai On Kwok held that the “Lo Kin-man case” did not establish any new legal principles, but merely “reminded” lower courts of the correct principles. If the trial court had erred, “the appellate court could all the more not sit idly by and must rectify it”.
As for the respondents’ contention that remitting the case was akin to “a second prosecution”, the judge criticised the argument as “unlimitedly broad” and stressed that the case had taken place at the height of the anti-extradition bill movement: “Large numbers of young people in society, in pursuit of the ‘justice’ in their hearts, became lost and frenzied, disregarded social order and committed all kinds of unlawful acts. To uphold the rule of law, the court absolutely has a responsibility to hear cases in accordance with the law.”
2019 年 11 月，網民發起「三罷」，香港各區爆發衝突。兩名男子被指在荃灣參與非法集結及違反《禁蒙面法》，2021 年 6 月被裁定罪名不成立。律政司以案件呈述方式提出上訴，高等法院周三（20 日）頒下判詞，認為原審裁判官在法律上出錯，有悖常理，撤銷無罪裁決，將案件發還原審繼續處理。
上訴爭議之一，是法庭能否要求原審，根據在裁決後才出現的新案例「盧建民案」，重新考慮結果。法官郭啟安認為，「盧建民案」沒有提出新的法律原則，只是「提醒」下級法院正確的原則，若原審有錯，「上訴法庭更不能夠坐視不理，必須予以更正」。
至於答辯方質疑，發還案件有如「二次檢控」。法官斥說法「無限上綱」，並強調本案正值反修例運動的高峰，「社會上大批年青人為了追求他們心中的『正義』，陷入迷失及瘋狂，妄顧社會秩序，做出了各式各樣的違法行為。為了維護法治，法庭絕對有責任依法審理案件」。
19 Nov 2024法庭線#4252
19歲青年涉世界盃外圍賽 播國歌期間背向會場 被控「侮辱國歌」准保釋候訊
On June 6, 2024, during an Asian World Cup qualifier held at Hong Kong Stadium, a 19-year-old man allegedly turned his back to the venue while the national anthem was being played, and was subsequently charged with one count of ‘insulting the national anthem’. The case was brought before the Eastern Magistrates’ Court on Tuesday (the 19th). The defence applied for the defendant not to be required to enter a plea for the time being, and the application was approved by Chief Magistrate Don Man Lung So. The case was adjourned to January 6 next year. In the meantime, the defendant was granted bail of HK$20,000, with his mother providing a HK$1,000 personal surety.
2024 年 6 月 6 日，香港大球場舉行世界盃亞洲區外圍賽，一名 19 歲男子涉嫌在大會奏放國歌期間背向會場，事後被控一項「侮辱國歌」罪。案件周二（19 日）在東區裁判法院提堂。辯方申請暫毋須答辯，獲主任裁判官蘇文隆批准。案件押後至明年 1 月 6 日再訊，期間被告准以 20,000 元保釋，其母親作 1 ,000 元人事擔保。
Translations are supplied by the source workbook. Consult the original reporting for context.
