24 Sept 2024法庭線#4072
港大評議會案張敬生爭提早獲釋失敗 國安委介入作決定指本案煽惑傷人罪涉國安
Kinson Cheung King-sang, the then-chairman of the HKU Students’ Union Council in the case, has failed in his bid for early release. The High Court continued hearing the case on Tuesday (24th). The Correctional Services Department said the Committee for Safeguarding National Security, after being consulted by the Commissioner, had decided that, based on the nature, facts and circumstances of the case, the offence of “inciting a person to wound with intent” involved national security and constituted an offence endangering national security, and that reducing Kinson Cheung King-sang’s sentence would be contrary to national security.
The department said the Commissioner had also considered the report and views of the Review Board, which found that Kinson Cheung King-sang had not shown sufficient remorse and continued to express understanding and sympathy for the perpetrators’ violent acts. It was therefore difficult to believe that he had genuinely repented. The Commissioner was not satisfied that granting a sentence reduction would not be contrary to national security, and decided that Kinson Cheung King-sang was not eligible for a reduction for good conduct in prison. Kinson Cheung King-sang’s side said that although it did not agree that the Committee had the power to make the decision, Kinson Cheung King-sang would not further challenge it through judicial review.
High Court national security law designated judge Esther Toh cited the Jimmy Lai case, saying that decisions of the Committee were not subject to judicial review and were binding on the court. Toh ruled that the Correctional Services Department’s continued detention of Kinson Cheung King-sang was lawful, dismissed his habeas corpus application, and said there was no need to deal further with the bail application. She also ordered Kinson Cheung King-sang to pay the Correctional Services Department’s legal costs. After hearing the decision, Kinson Cheung King-sang briefly leaned back and stared blankly. He must continue serving his sentence and is expected to be released in November.
港大學生會評議會案，在囚的時任主席張敬生爭取提早獲釋失敗。高院周二（24 日）續處理張案，懲教署一方指國安委經署長徵詢後作出決定，指基於案件性質、事實及情況，案中「煽惑有意圖傷人」罪涉及國家安全，屬於危害國安罪行，而若張獲得減刑不利於國安。
懲署方續指，署長同時考慮「評委會」的報告和意見，指張沒足夠反省，仍對施襲者的暴力行為表示理解和同情，難信有真誠悔過，不信納減刑不會不利於國安，遂決定張不可獲獄中行為良好減刑。張一方指，雖不同意國安委有權作決定，惟張不會進一步循司法覆核挑戰。
高院《國安法》指定法官黎婉姫引「黎智英案」，指國安委決定不受司法覆核，對法庭有約束力。黎裁定懲署繼續羈押屬合法，駁回張的人身保護令申請，亦毋須再處理保釋申請，並向懲教一方批出訟費。張敬生聞悉決定一度仰後發呆，他須繼續服刑，料將於 11 月刑滿。
24 Sept 2024法庭線#4074
記協司法覆核運輸署收緊記者查車牌 質疑干預新聞自由 法官3個月內頒判詞
The Hong Kong Journalists Association (HKJA) earlier filed a judicial review application in the High Court challenging new arrangements introduced by the Commissioner for Transport this January for searches of vehicle-registration records. It argued that the arrangements were inconsistent with the principles of freedom of expression and press freedom, and asked the court to rule that the Transport Department’s current policy was unconstitutional. The case was heard at the High Court on Tuesday (the 24th). After hearing submissions from both sides, Judge Ko Ho-man said he would hand down his judgment within three months.
The HKJA argued that the Transport Department’s new policy was inconsistent with the judgment in the “Choy Yuk Ling, Bao case” and interfered with press freedom. The department said it was concerned that vehicle owners’ personal data could be misused, but the Personal Data (Privacy) Ordinance already provided a balance, and refusing to provide the information to journalists was unreasonable.
The Transport Department argued that journalists themselves had no right to obtain personal data, and that the department had a responsibility to safeguard the information it collected from vehicle owners. After the new measures took effect, searches by NOW TV and The Collective relating to the 7.21 Yuen Long incident were both refused. They challenged the refusals and questioned the department’s delay in processing the applications. The department said multiple news organisations had applied for searches on the same day the measures took effect in a deliberate simultaneous test of the new mechanism. It also said the 7.21 incident occurred in 2019 and was not an emergency or reporting involving significant news value.
香港記者協會（記協）早前入禀高等法院提司法覆核，挑戰運輸署署長今年 1 月就車牌查冊實施的新安排，指運輸署安排與言論自由及新聞自由原則不一致，要求法庭裁定運輸署現行政策違憲。案件周二（24 日）於高院聆訊。法官高浩文聽畢雙方陳詞，將於 3 個月內頒下判詞。
記協一方認為，運輸署的新政策與「蔡玉玲案」判決相違背，干預新聞自由。署方稱擔心車主個人資料被濫用，但目前已有《個人資料(私隱)條例》作出平衡，拒絕向記者提供資料並不合理。
運輸署一方則指，記者本身無權取個人資料，署方收集車主資料，有責任把關。至於新措施實施後，《NOW TV》及《集誌社》針對 7.21 元朗事件查冊均被拒，曾提出挑戰並質疑署方延誤處理，署方指，多間新聞機構均於措施生效同日申請查冊，刻意同步測試新機制，又指 7.21 事件發生於 2019 年，並非緊急及涉重大新聞價值的報道。
23 Sept 2024法庭線#4070
法庭檢控主任被指發電郵投訴警方後遭革職 司法覆核11月底或之前裁決
Wong Wah-fan, then a Senior Government Counsel II at the Eastern Magistrates’ Courts, was alleged to have sent an email accusing the police in 2019. He was also alleged to have emailed colleagues on the anniversary of June 4 the following year, in content that “could be understood as” inviting them to take part in an activity in breach of social-distancing measures. He was subsequently suspended, subjected to disciplinary proceedings and found guilty of misconduct. Wong was dismissed in 2024, forfeiting his pension after more than 30 years of service.
Wong filed a judicial review in June this year (Law 101 article), seeking to quash the disciplinary hearing’s findings and the decision to dismiss him. The High Court heard the case on Monday (23rd), with both sides relying entirely on written submissions. Judge Ko Ho-man adjourned the judgment to November 29 or before.
時任東區裁判法院高級二級檢控主任黃華芬，被指 2019 年發電郵指控警方；另涉於翌年六四當日發電郵予同事，內容「可被理解為」邀請參與違反社交距離措施的活動。他其後被停職、接受紀律聆訊，並遭裁定行為失當。黃於 2024 年被革職，失去服務逾 30 年的退休金。
黃今年 6 月提出司法覆核（法律 101 文章），要求法庭撤銷紀律聆訊裁決以及將他革職的決定。高院周一（23 日）開庭審理，雙方全數採納書面陳詞。法官高浩文押後至 11 月 29 日或之前裁決。
23 Sept 2024法庭線#4071
許智峯遭頒令破產 破產管理署申「不開始令」獲批 許破產結束時間延後
Hui Chi-fung, a former Legislative Council member who announced in 2020 that he was going into exile overseas and is wanted by the authorities, failed to pay legal costs in connection with lawsuits brought over multiple anti-extradition amendment incidents and a conviction for contempt of court. The Department of Justice therefore filed a bankruptcy petition against him. The High Court ordered Hui bankrupt in February this year and on Monday (23rd) granted the Official Receiver’s Office a non-commencement order, meaning that the period of Hui’s bankruptcy has not officially begun to run.
Generally, for a first-time bankrupt, the bankruptcy period runs from the date the bankruptcy order takes effect and the bankruptcy is automatically discharged after four years (Legal 101 article). Under the Bankruptcy Ordinance, if a bankrupt person fails to attend an initial meeting specified by the trustee or fails to provide relevant information about assets and other matters, the trustee may apply for a non-commencement order. This suspends the running of the bankruptcy period, thereby postponing the date of automatic discharge until the bankrupt person complies with the relevant requirements.
2020 年宣布流亡海外、正被通緝的立法會前議員許智峯，未有就多宗反修例事件入稟興訟、藐視法庭罪成支付訟費，遭律政司入稟申請破產。高院今年 2 月頒令許智峯破產，並於周一（23 日）就破產管理署申請批出「不開始令」，意指許的破產期未正式開始計算。
一般而言，首次破產人士的破產期由破產令生效當日起計，4 年後自動解除（法律 101 文章）。按《破產條例》若破產人沒出席受託人指明的初次會面，或沒提供相關財產等資料，受託人有權申請「不開始令」，即暫停計算破產期，自動解除破產日期因而延後，直至破產人遵守相關條款。
21 Sept 2024法庭線#4066
11.18油麻地圍捕案全審結 213人被控暴動 200人罪成 97%不涉直接證據
On 18 November 2019, police cordoned off the Polytechnic University, prompting large numbers of people to “besiege Wei to rescue Zhao”. A total of 213 people were arrested in the area around Pitt Street in Yau Ma Tei. They appeared in several courts two days later, and the cases were split into 17 trials. A fire captain testified in court that people had been piled on top of one another in a narrow lane near Yau Ma Tei Station, forming a pile about 1.7 metres high, and that those rescued were taken away by police. Nearly five years after the incident, the final case concluded on Monday (16th). Excluding seven people said to have absconded, 200 defendants across the 17 cases were convicted, with the longest sentence being five years and four months’ imprisonment.
The Stand News reviewed the judgments and found that 97% of the convicted defendants were not implicated by direct evidence. The courts mainly inferred that the defendants had participated in the riot from circumstantial evidence, such as their clothing and equipment, as well as their presence at the scene. One judge said that defendants who had no protective equipment, wore only black or dark clothing, and remained at the riot scene had “undoubtedly emboldened the protesters”. Another defendant was wearing grey clothing and flip-flops when arrested. The judge considered that he had been subdued at the centre of the riot, and that the only inference was that he had been present to support and encourage the riot.
The reporter also calculated that the starting point for sentencing was five years or more for nearly 40% of the defendants sentenced to imprisonment. One judge described the case as “one of the largest and most violent riots in Hong Kong’s history”. Another judge said that, even though there was no evidence that the defendants had personally carried out assaults or caused damage, they had treated Hong Kong’s rule of law and order with contempt and strengthened the riot’s momentum by being present at the scene, and therefore had to receive heavy sentences to deter others.
2019 年 11 月 18 日，警方圍封理工大學，大批市民「圍魏救趙」，213 人在油麻地碧街一帶被捕，兩日後在多個法院提堂，分拆 17 案處理。消防隊長庭上作供指，油麻地站附近窄巷內發生「人疊人」，疊起來約有 1.7 米高，被解救出來的人遭警方帶走。距離事發接近 5 年，最後一案於周一（16 日）審結，除 7 人被指潛逃，17 案共有 200 人罪成﹐最重判囚 5 年 4 個月。
《法庭線》整理判詞，發現 97% 罪成被告不涉直接證據，法庭主要以衣著、裝備等環境證據，以及身處現場，推論被告參與暴動。有法官指，被告無防護裝備、只穿黑衣或深色裝束，逗留在暴動現場，「無疑助長示威者的氣焰」。另有被告被捕時穿灰衣及人字拖鞋，法官認為，他在暴動核心被制服，唯一推論是在場支持及鼓勵暴動。
記者亦統計，近 4 成判囚被告的量刑起點為 5 年或以上。有法官形容，本案是「香港有史以來，其中一宗規模最大及最暴力的暴動」。亦有法官指，即使沒有證據顯示被告曾親自作出襲擊或破壞，但他們視香港法治與秩序如無物，身處現場壯大暴動聲勢，須重判以儆效尤。
19 Sept 2024法庭線#4062
721非白衣人案｜控方結案：林卓廷入元朗直播「刷流量」 抹黑白衣人為黑社會
Former Legislative Council member Lam Cheuk-ting and six other “non-white-shirted” defendants, who are charged with participating in the riot at Yuen Long Station on 21 July, appeared at the District Court on Thursday (19th) for the 50th day of the trial, as the prosecution and defence began their closing submissions. The prosecution said the explanation given by first defendant Lam Cheuk-ting was unreasonable and not credible. It said Lam entered Yuen Long not to perform his public duties, but to “abuse his position to achieve private ends”, and livestreamed in order to “drive traffic” and gain public approval.
The prosecution further said Lam made three posts on Facebook that night, which “in substance implied or expressly indicated that members of the public should go to Yuen Long to cause trouble”. It said one of the causes of the riot was “attributable to the first defendant instigating and participating in it”. It also said Lam smeared the white-shirted men as triad members, failed to mediate between the people inside the gate, and relied on his status as a lawmaker to act as a “leader”, repeatedly provoking and attacking the white-shirted men. The proceedings continued in the afternoon, when the defence was to begin its submissions.
前立法會議員林卓廷與另外 6 名「非白衣人」，被控參與 721 元朗站暴動，周四（19 日）在區院展開第 50 日審訊，控辯開始作結案陳詞。控方指首被告林卓廷的辯解不合理、不可信；指林入元朗非履行公職，而是「濫用職權達到私人目的」，開直播「刷流量」以獲市民認同。
控方續指林當晚 3 次於 FB 發帖，「實則暗示、明示市民入元朗生事」，指暴動其中一個起因是「歸咎於第一被告發動同參與」；又指林抹黑白衣人為黑社會，未有調停閘內人，更恃議員身分作為「領導者」，不斷對白衣人挑釁、攻擊。案件下午續，辯方將開始陳詞。
16 Sept 2024法庭線#4052
11.18油麻地圍捕最後一案判刑 8人暴動罪成 判囚4年兩個月至4年半
On 18 November 2019, police sealed off the Polytechnic University, and large numbers of members of the public “besieged Wei to rescue Zhao”. A total of 213 people were arrested in the area around Pitt Street in Yau Ma Tei and divided into multiple cases for trial. In the case involving 23 defendants, 12 pleaded guilty before the trial began, while the remaining 11 pleaded not guilty and stood trial. Eight of them were convicted of rioting and sentenced on Monday (16th) at the District Court to between 4 years 2 months and 4 years 6 months in prison.
Acting Judge Peony Nga Yan Wong said the riot in the case took place under detailed planning and that the protesters were “prepared for battle”. She took into account factors including the defendants’ family members being ill and the defendants not having given up on themselves during the period awaiting trial, and exercised discretion to reduce their sentences by 2 to 4 months. This was the final Yau Ma Tei roundup case to be sentenced, and all cases arising from the incident have now been concluded.
2019 年 11 月 18 日，警方圍封理工大學，大批市民「圍魏救趙」，213 人在油麻地碧街一帶被捕，分拆成多案審理。其中涉及 23 人的案件，12 人開審前認罪，餘下 11 人不認罪受審，當中 8 人被裁定暴動罪成，周一（16 日）在區域法院被判監禁 4 年兩個月至 4 年半。
暫委法官黃雅茵指，本案暴動在周詳計劃下發生，示威者「有備而戰」。她考慮被告家人患病、候審期間沒有自暴自棄等原因，酌情減刑 2 至 4 個月。本案為最後一宗油麻地圍捕案判刑，同事件案件均已審結。
13 Sept 2024法庭線#4044
通州街公園露宿者案 6警妨礙司法公正罪成保釋候判 判詞詳述屈藏毒過程
Eight police officers were accused of assaulting homeless people, smashing their belongings and falsely alleging drug possession while on duty in February 2020, when they twice conducted anti-drug operations at Tongzhou Street Park. On Friday (the 13th), District Court judge found Sergeant Lam Wah-ka and five officers—Leung Fei-pang, Pong Chun See, Mok Chi-shing, Wan Pak-sze and Chan Sau-yip—guilty of intending to pervert the course of justice. Lam thanked his family and colleagues for their support outside the court (see video in the full article).
Regarding the conduct of the six convicted officers, the judgment detailed how three officers falsely accused homeless man Lai Man-sap of possessing drugs. It said that when they handcuffed Lai, there was nothing in either of his hands. They later placed a “white object” found in another tent into a black container held by an officer. However, the three officers stated in their notebooks and other records that Lai possessed a black plastic box containing drugs. The judge said the fabrication was necessarily misleading and inevitably tended to pervert the course of justice.
The convicted officers also covered two CCTV cameras in the park. One was related to the search of Lai Man-sap’s tent, while the other was related to the operation to arrest Yuen Man-shan. The judgment said the only reasonable inference was that the officers must have anticipated that members of the team would engage in improper or unlawful conduct, such as fabricating or destroying evidence, and found them guilty. The six will return to court on October 8 for mitigation and sentencing. They remain on bail and are barred from leaving Hong Kong.
As for officer Kwok Chin-sing, who was accused of kicking and punching homeless people and smashing their belongings, and officer Hon Ting-kwong, who watched from the side without preventing the offences, both were found not guilty. Neither applied for costs.
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；警長林華嘉及 5 名警員梁飛鵬、龐雋詩、莫志成、尹栢詩、陳守業周五（13 日）在區院被裁定意圖妨礙司法公正罪成。林華嘉在法院外感謝家人、同事支持（見內文影片）。
就 6 名罪成警員的涉案行為，判詞詳述 3 警員誣衊露宿者黎民十藏毒的過程，指他們將黎鎖上手銬時，黎雙手沒任何東西，但其後他們將另一帳幕搜出的「白色物件」，放入警員手中的黑色容器，而 3 警在記事冊等紀錄卻指黎持有載有毒品的黑色膠盒，官指 3 人捏造必然誤導，亦必然傾向妨礙司法公正。
罪成警員亦分別遮蓋公園內兩處 CCTV 鏡頭，一處與搜查黎民十帳幕有關，另一處鏡頭與拘捕阮文山的行動有關。判詞指，唯一合理推論是，警員必然預期隊員會作出不當或不合法的行為，例如揑造證據、銷毀證據等，裁定他們罪成。6 人押後至 10 月 8 日求情及判刑，他們續准保釋，期間不得離港。
至於被指控對露宿者拳打腳踢、砸爛家當的警員郭展昇，以及在旁觀看、無阻止犯案的警員韓廷光，則獲裁定罪名不成立；兩人無訟費申請。
11 Sept 2024法庭線#4037
未獲授權經律師寄投訴信 鄒家成判囚3日、律師罰款 二人不服定罪及刑罰提上訴
In May last year, Owen Chow Ka-shing, who was remanded in custody in the “47-person case”, was accused of sending a complaint letter to the Office of the Ombudsman through a lawyer without authorisation. The letter complained that the Correctional Services Department had damaged two Buddhist books and refused to allow his relatives and friends to send them in. Chow and a female lawyer were charged by the National Security Department with one count of taking an unauthorised article out of a prison. Both were convicted after trial. Chow was sentenced to three days in prison, while the lawyer was fined HK$1,800. Dissatisfied with their convictions and sentences, Chow and the lawyer lodged an appeal on Monday (the 9th). According to the Judiciary’s website, no hearing date has yet been set.
去年 5 月，因「47 人案」還押的鄒家成，被指未經授權透過律師寄出申訴專員公署投訴信，投訴懲教署損毀及拒絕其親友送入兩本佛學書籍。鄒與一名女律師，被國安處控以一項「將未經授權的物品攜離監獄」罪，兩人經審訊後被裁定罪成。鄒家成被判囚 3 天，律師罰款 1,800 元。鄒及律師不服定罪及刑罰，周一（9 日）提出上訴。根據司法機構網頁，案件尚未有聆訊日期。
10 Sept 2024法庭線#4035
鄒幸彤指女性囚犯夏天須穿長褲 懲教政策屬歧視及違憲 獲批司法覆核許可
Chow Hang-tung, the former vice-chairwoman of the Hong Kong Alliance in Support of Patriotic Democratic Movements of China who is remanded in custody in connection with the Alliance case, applied twice this year to a welfare officer to wear shorts but was refused. She objected to the Correctional Services Department requiring female prisoners to wear trousers in summer while male prisoners are allowed to wear shorts, arguing that the policy involves gender discrimination and endangers health. She filed for judicial review in the High Court last Friday, seeking declarations that the policy is unlawful and unconstitutional and an order requiring it to be withdrawn or amended.
High Court Judge Ko Ho-man granted leave for judicial review in writing on Tuesday (10th) (Legal 101 article). According to the Judiciary’s website, no hearing date has yet been set.
正就支聯會案還押的前支聯會副主席鄒幸彤，今年兩度向福利官申請穿短褲被拒絕。她不滿懲教署要求女性囚犯夏天仍要穿長褲，男性囚犯則可穿短褲，認為涉及性別歧視、危害健康，上周五入稟高等法院提司法覆核，要求宣告政策違法及違憲，下令撤銷或修改。
高院法官高浩文周二（10 日）書面批出司法覆核許可（法律 101 文章）。據司法機構網頁，案件暫未有聆訊日期。
Translations are supplied by the source workbook. Consult the original reporting for context.
