26 Oct 2024法庭線#4181
終院裁須設同性伴侶承認框架 距離限期不足1年 同志團體在想甚麼？
Shum Tsz-kit, a member of Rainbow Action and former convenor of the Civil Human Rights Front, earlier brought a final appeal over Hong Kong law’s failure to recognise same-sex relationships. He won the appeal in part at the Court of Final Appeal last September, when the court ruled that the Government’s failure to recognise same-sex relationships violated the Hong Kong Bill of Rights and required the Government to establish an alternative legal framework within two years to meet their basic social needs and provide legal recognition of their status.
With less than a year remaining before the deadline, no specific legislative framework has yet emerged. The Policy Address released in the middle of the month also made no mention of the issue, prompting disappointment from some LGBT groups. In response to enquiries from The Witness, the Constitutional and Mainland Affairs Bureau said the Government was conducting detailed studies and drawing up implementation arrangements in different areas covered by the court’s ruling. Secretary Erick Tsang said in response to a Legislative Council member’s question in May that, given the complexity and wide-ranging nature of the issue, the bureau was conducting detailed studies with the relevant policy bureaux and would consult the Legislative Council at an appropriate time.
The Witness interviewed LGBT groups and lawyers. Several described the Court of Final Appeal’s ruling as meaning that the Government must recognise same-sex relationships comprehensively, or that it could prompt Hong Kong to establish civil unions for same-sex couples. They said it was undoubtedly a historic step in the city’s progress towards LGBT equality, while some groups urged the Government to use the opportunity to promote same-sex marriage. Others, however, noted that the judgment left room for the executive authorities to determine the details. What form the final framework will take and whether its protection will be comprehensive remain unknown.
「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同性伴侶關係提終極上訴，去年 9 月獲終審法院裁定部分勝訴，指政府不承認同性伴侶關係，違反《人權法案》，要求港府於兩年內訂立替代法律框架，以滿足他們的基本社會需求及獲取合法身分認同。
距離限期不足一年時間，暫未見具體立法框架，月中公布的《施政報告》亦未有著墨，有同志團體對此表示失望。政制及內地事務局回覆《法庭線》查詢時指，政府正按法院裁決，就有關議題所涉及的不同範疇進行詳細研究及制定落實安排。局長曾國衞今年 5 月則曾回覆立法會議員提問指，鑑於議題複雜且牽涉廣泛，局方正與相關政策局進行詳細研究，會適時徵詢立法會。
《法庭線》訪問了同志團體及律師，多人形容，終院判決意味政府須整全地承認同性伴侶關係，或促使香港訂立同性伴侶民事結合，對本港同志平權進程無疑是歷史性一步，更有團體倡政府趁機推動同婚；但亦有人關注，法院判詞留下空間，具體細節由行政當局釐定，最終框架將以何種形態出現、保障是否全面，仍屬未知之數。
25 Oct 2024法庭線#4180
8.31灣仔｜女生暴動無罪 律政司上訴得直發還原審 辯方申上訴至終院證明書被拒
On 31 August 2019, members of the public launched a march on Hong Kong Island, after which clashes between police and protesters broke out. A first-aider and a female law student were charged with rioting and were later acquitted. The student was also awarded costs. The Court of Appeal earlier allowed the Department of Justice’s appeal and remitted the student’s case to the trial court for reconsideration, after which the defence lodged a further appeal. In a judgment handed down on Friday (25th), the Court of Appeal said the legal points raised by the applicant were not of great and general importance, and refused to issue a certificate for an appeal to the Court of Final Appeal.
The applicant argued that the trial judge’s refusal to convict on the basis that there was reasonable doubt in the case could not be conflated with making findings of fact without evidential support. The Court of Appeal rejected this, saying that “this is merely a false proposition packaged as a legal point and does not require consideration by the Court of Final Appeal”. Citing its earlier judgment, it said that the trial court’s approach of dissecting and considering the circumstantial evidence one item at a time, “imagining all sorts of defences for the respondent”, amounted to “speculation in the absence of evidence”.
2019 年 8 月 31 日，市民在港島區發起遊行，及後爆發警民衝突。一名急救員及法律系女學生被控暴動，後獲裁無罪，女生另獲批訟費。上訴庭早前判律政司上訴得直，將女學生的案件發還原審重新考慮，之後辯方再提上訴。上訴庭周五（25 日）頒下判詞，指申請方提出的法律觀點，並非具有重大而廣泛的重要性，拒批上訴至終審法院證明書。
申請方指出，原審法官基於案件有合理疑點而拒絕定罪，不能與在沒有證據支持下，作出事實裁斷混為一談。上訴庭則反駁指「這只是一個包裝成為法律觀點的偽命題，無需終審法院處理」；並引述早前頒下的判詞，指原審就環境證供逐一分拆考量，「為答辯人想像各式各樣的答辯理由」是「在缺乏證供下作出臆測」。
24 Oct 2024法庭線#4173
自閉症男生侮辱國旗等罪成提上訴 指原審無考慮自閉症 新呈心理學家證供
On 1 October 2022, a 19-year-old autistic male student was alleged to have damaged the flagpoles of five national and regional flags in Sham Shui Po; the flags themselves were not damaged. He was convicted of three offences, including insulting the national flag, and sentenced to a rehabilitation centre. He appealed against his convictions, with the appeal heard in the High Court on Thursday (24th). Acting Judge Yiu Fan-chi summarised the appellant’s arguments, noting that the trial magistrate had not considered whether the appellant’s autism affected his criminal intent. The appellant also argued that his trial barrister had been negligent by failing to rely on autism as a defence, and that he should have asked the court to arrange for the pace of his testimony to be slowed. The judge reserved judgment and will consider whether to admit newly submitted evidence from a clinical psychologist and other experts.
2022 年 10 月 1 日，19 歲自閉症男學生，被指在深水埗損毀 5 支國旗及區旗旗桿，旗幟並沒受損。男生被裁定「侮辱國旗」等 3 罪成，判入更生中心。男生不服定罪提上訴，周四（24 日）在高等法院審理。
暫委法官姚勳智總結上訴方爭議，指原審裁判官沒考慮上訴人的自閉症狀況會影響犯案意圖。上訴方亦指原審代表大狀失職，沒以自閉症作辯解，指他應向法庭提出安排減慢作供速度。官押後頒判詞，並考慮是否接納新呈的臨床心理學家等專家證供。
24 Oct 2024法庭線#4175
通州街公園露宿者案 意圖妨礙司法公正罪成男警梁飛鵬提上訴 累計3警提上訴
Eight police officers were charged with assaulting homeless people, smashing their belongings and falsely accusing them of possessing drugs while on duty in February 2020, when they carried out two anti-drug operations at Tong Chau Street Park. Six of them—Sergeant Lam Wah-ka and officers Leung Fei-pang, Pong Chun See, Mok Chi-shing, Wan Pak-sze and Chan Sau-yip—were convicted of intending to pervert the course of justice. After the two convicted officers Pong Chun See and Wan Pak-sze filed appeals against their convictions and sentences last Friday (18th), the day after sentencing, another officer, Leung Fei-pang, has also filed an appeal.
Of the three officers who filed appeals, Leung Fei-pang and Pong Chun See were sentenced to two years and one month in prison, while Wan Pak-sze was sentenced to three years and one month. The Judiciary website shows that Leung and Pong Chun See will apply for bail pending appeal at a hearing on 7 November 2024, which is expected to last 15 minutes.
8 名警員被控於 2020 年 2 月執勸期間，即兩度進行反毒品行動掃蕩通州街公園時，對露宿者施襲、砸爛家當、誣衊藏毒；當中 6 人即警長林華嘉，警員梁飛鵬、龐雋詩、莫志成、尹栢詩、陳守業被裁定意圖妨礙司法公正罪成。繼兩名罪成警員龐雋詩、尹栢詩於上周五（18 日），即判刑翌日提出定罪及判刑上訴後，再有一名警員梁飛鵬提上訴。
3 名提上訴的警員，梁飛鵬及龐雋詩被判囚 2 年 1 個月，尹栢詩則被判囚 3 年 1 個月。司法機構網頁顯示，梁及龐將在 2024 年 11 月 7 日，就上訴期間申請保釋聆訊，料需時 15 分鐘。
23 Oct 2024法庭線#4169
通州街公園露宿者案 罪成警員龐雋詩、尹栢詩 判刑翌日即提上訴
Eight police officers were charged with assaulting homeless people, smashing their belongings and falsely accusing them of possessing drugs while on duty in February 2020, when they carried out two anti-drug operations at Tongzhou Street Park. Six of them—Police Sergeant Lam Wah-ka, and police officers Leung Fei-pang, Pong Chun See, Mo Chi-shing, Wan Pak-sze and Chan Sau-yip—were found guilty of attempting to pervert the course of justice.
High Court records show that the two convicted officers, Pong Chun See and Wan Pak-sze, lodged appeals against their convictions and sentences last Friday (the 18th), the day after they were sentenced. They were sentenced to 2 years and 1 month and 3 years and 1 month in prison, respectively. Judiciary website information shows that Pang will appear on November 7 this year for a hearing on an application for bail pending appeal, which is expected to last 15 minutes.
8 名警員被控於 2020 年 2 月執勸期間，即兩度進行反毒品行動掃蕩通州街公園時，對露宿者施襲、砸爛家當、誣衊藏毒；當中 6 人即警長林華嘉，警員梁飛鵬、龐雋詩、莫志成、尹栢詩、陳守業被裁定意圖妨礙司法公正罪成。
高等法院資料顯示，兩名罪成警員龐雋詩、尹栢詩於上周五（18 日），即判刑翌日提出定罪及判刑上訴。二人分別被判囚 2 年 1 個月及 3 年 1 個月。司法機構網頁顯示，龐將在今年 11 月 7 日就「上訴期間申請保釋」聆訊，料需時 15 分鐘。
22 Oct 2024法庭線#4167
西灣河搶槍等罪成囚6年 男學生提上訴被即日駁回 官6個月內頒判詞
During the “Dawn Operation” on 11 November 2019, a traffic police officer fired live rounds at 21-year-old “Patrick Chow Pak-kwan” Patrick Chow Pak-kwan in Sai Wan Ho. Chau and a 19-year-old male student arrested at the scene were convicted after trial of obstructing a police officer, attempted robbery and other offences, and both were sentenced to six years’ imprisonment. The student appealed against his conviction and sentence, but the Court of Appeal dismissed the appeal on Tuesday (22nd), with the judges to hand down their reasons within six months.
The appeal argued that it could not be ruled out that the student had grabbed at the gun as a natural reaction. It also said he had approached because he believed the police would exercise restraint and would not open fire, and might have intended to stop the clearance of roadblocks. Even if he had taken the gun, it was only to prevent himself from being injured and did not involve “permanent deprivation” of the officer’s service firearm. The appeal further argued that he was young and had been brainwashed, believing that he was acting for justice: “They were all victims.”
The judges repeatedly questioned why the student had not given evidence at trial, meaning there was no evidence proving his account, and said they could not construct every possible scenario on his behalf. The Department of Justice said the trial court had considered the account that he had grabbed at the gun, but found it untenable after analysis.
2019 年 11 月 11 日「黎明行動」，有交通警在西灣河以實彈射擊 21 歲「熊仔餅」周柏均，周與當場被捕的 19 歲男學生，經審訊被裁定阻差、企圖搶劫等罪成，同被判囚 6 年。男學生提出定罪及判刑上訴，周二（22 日）被上訴庭即日駁回，官將於 6 個月內頒判詞。
上訴方指，不能排除男學生案發時是自然反應下作出撥槍動作，又指他走近因信警方執法克制、不會開槍，可能是想阻止清理路障，就算取槍也只是想防止自己受傷，不涉「永久剝奪」警員的配槍。另指案發他年輕、被洗腦，自以為正義，「佢哋都係受害者」。
法官多次質疑男學生原審時沒作供，故沒證據證明其說法，指不能代為構想各式各樣可能性。律政司一方則指，原審有考慮過撥槍說法，但分析後認為不成立。
21 Oct 2024法庭線#4164
大坑西邨重建 再多兩居民與平屋和解 另兩居民申暫擱程序押後12月中聆訊
Dah Kung West Estate in Shek Kip Mei is to be demolished and redeveloped. Poor People’s Housing, which built and manages the estate, failed to reach settlements with 13 residents and was refused permission to resume possession proceedings. Poor People’s Housing appealed, and the appeal was heard in camera at the District Court in September this year. The judgment was published on the Judiciary’s website on Monday (21st).
District Court Chief Judge Justin Ko disclosed in the judgment that two more residents had reached settlements with Poor People’s Housing. As Poor People’s Housing was unwilling to continue participating, the court ordered the settlement meetings for the remaining defendant residents to be terminated and the case to proceed to the case management conference stage. The judge adjourned the matter to mid-December for another judge to handle the residents’ applications to stay the legal proceedings and Poor People’s Housing’s proposed opposition (see the chronology table in the main text).
District Court Judicial Registrar Wing Sum Soong previously said in a judgment that the process and outcome of the settlement meetings were regrettable. In its appeal, Poor People’s Housing asked the court to clarify the judicial jurisdiction and powers of the master. Justin Ko said that the master’s forceful expression of views during the settlement meetings was not biased, and that conducting hypothetical analysis did not amount to prejudging the case. He also said that the parties should have been given an opportunity to make submissions before the judgment was published.
石硤尾的大坑西邨將清拆重建，興建與管理該邨的「平民屋宇」與 13 名居民和解不果，要求恢復收樓訴訟程序被拒，「平屋」提出上訴，今年 9 月在區院閉門聆訊，判詞周一（21 日）在司法機構網站公布。
區院首席法官高勁修在判詞透露，再有兩名居民與「平屋」達成和解，而由於「平屋」不願繼續參與，法庭下令終止餘下被告居民的和解會議，並推展至案件管理會議階段。官押後至 12 月中聆訊，交由另一法官處理居民暫時擱置法律程序的申請，以及「平屋」的反對建議（時序見內文表）。
區院司法常務官宋泳琛早前在判詞指，和解會議的過程及結果令人遺憾。「平屋」上訴時要求法庭釐清聆案官的司法管轄權及權力。高勁修指，「聆案官在和解會議中有力地提出意見並非偏頗，作推演亦非未審先判」，同時指應在公布判詞前，讓與訟方有機會發表意見。
18 Oct 2024法庭線#4159
社民連街站非法籌款案 陳寶瑩向終審法院申上訴許可
In the case concerning the League of Social Democrats allegedly conducting illegal fundraising by displaying a Patreon QR code at a street booth in 2021, chair Chan Po-ying appealed against the conviction. The appeal was dismissed in April this year by Yiu Fan-chi, an acting High Court judge.
Chan Po-ying confirmed to The Witness on Friday (18th) that she had applied to the Court of Final Appeal for leave to appeal. The case number has appeared on the Court of Final Appeal website under “Applications for Leave to Appeal for which Notices of Hearing Have Not Been Issued”.
社民連被指 2021 年街站展示 Patreon 二維碼非法籌款案，主席陳寶瑩就定罪提出上訴，今年 4 月被高院暫委法官姚勳智駁回。
陳寶瑩周五（18 日）向《法庭線》確認，已向終審法院申請上訴許可，終院網頁的「尚未發出聆訊通知書的許可申請」一欄已顯示該案件的編號。
17 Oct 2024法庭線#4155
通州街公園露宿者案 6警罪成判囚2年1個月至3年5個月 警長因最高級加刑半年
Eight police officers were charged with assaulting homeless people, smashing their belongings and falsely accusing them of possessing drugs while on duty in February 2020, when they twice conducted anti-drug operations at Tong Chau Street Park. Six of them—Police Sergeant Lam Wah-ka, officers Leung Fei-pang, Pong Chun See, Mok Chi-shing, Wan Pak-sze and Chan Sau-yip—were convicted of the offence of attempting to pervert the course of justice and were sentenced on Thursday (the 17th) to between 2 years 1 month and 3 years 5 months in prison.
District Court judge Kit Yee (1971) Cheung said the public had certain expectations of and trust in the police force, but the defendants had abused their authority and falsely accused innocent members of the public. Their conduct brought shame on the force and caused the public to lose confidence in its impartiality. The judge stressed that although the charge against the homeless man “Ah Sap” was ultimately withdrawn, it could not be overlooked that the defendants’ false allegation of drug possession meant that “an innocent person was prosecuted and went through unnecessary legal proceedings.”
The judge increased the sentences because the defendants had acted together, while allowing discretionary reductions because they had good backgrounds, had previously served the public in the police force and had experienced pressure while awaiting trial. The police sergeant received an additional six-month sentence because he was the highest-ranking officer at the scene, failed to stop the conduct and participated in it.
8 名警員被控於 2020 年 2 月執勸期間，即兩度進行反毒品行動掃蕩通州街公園時，對露宿者施襲、砸爛家當、誣衊藏毒；當中 6 人即警長林華嘉，警員梁飛鵬、龐雋詩、莫志成、尹栢詩、陳守業被裁定意圖妨礙司法公正罪成，周四（17 日）被判囚 2 年 1 個月至 3 年 5 個月。
區院法官張潔宜指市民對警隊有一定期望和信任，各被告濫用職權，誣告無辜市民，行為令警隊蒙羞，亦令公眾對警隊的公正性失去信心。官強調露宿者「阿十」最終雖獲撤控，但不能忽略被告誣衊藏毒令「無辜的人曾被檢控，經歷不必要的法律程序。」
官因各被告夥同犯案而加刑，另因被告背景良好、過往於警隊服務市民、候審期間的壓力而酌情減刑。警長被告則因是現場職級最高人員，沒阻止更參與其中而被額外加刑 6 個月。
17 Oct 2024法庭線#4157
《頭條新聞》被指辱警違守則 港台工會上訴部分得直 通訊局向終院提上訴
In 2020, the Communications Authority ruled that the “無品芝麻官” and “驚方訊息” segments of RTHK’s Headliner defamed and insulted the police. The Hong Kong Journalists Association and the RTHK union brought a judicial review challenging the decision and partly won in the High Court in 2021. The Communications Authority, the RTHK union and the Hong Kong Journalists Association each appealed the parts of the judgment they lost. The Court of Appeal earlier unanimously dismissed the Communications Authority’s appeal and upheld the original ruling that the “無品芝麻官” segment did not breach the Television Programme Code. The union and the Hong Kong Journalists Association won their appeal concerning “驚方訊息”, and the Court of Appeal ordered the Communications Authority’s warning to be set aside.
The Communications Authority told The Witness that, after seeking the advice of its legal advisers, it had decided to appeal the Court of Appeal’s ruling to the Court of Final Appeal, and had applied to the Court of Appeal for leave to appeal.
通訊事務管理局於 2020 年裁定港台《頭條新聞》內的「無品芝麻官」及「驚方訊息」環節，屬污衊、侮辱警方，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、港台工會與記協各就敗訴部分提上訴。上訴庭早前一致駁回通訊局上訴，維持原審裁決，即「無品芝麻官」環節並無違反《電視節目守則》；工會、記協就「驚方訊息」提出的上訴，則獲判勝訴，上訴庭下令撤銷通訊局的警告。
通訊局回覆《法庭線》查詢，指徵詢法律顧問意見後，決定就上訴庭裁決，向終審法院提出上訴，已向上訴庭申請上訴許可。
Translations are supplied by the source workbook. Consult the original reporting for context.
