26 Feb 2024獨媒#3039
房屋政策及遺產條例拒認同性伴侶裁違憲 政府獲批上訴至終院
Two same-sex couples married overseas were unable to apply for public rental housing or live in Home Ownership Scheme flats after the Housing Authority refused to recognise their spousal status. In another case, one of them was concerned that if they died without making a will, their marriage would not be recognised under the inheritance ordinance and their spouse would be unable to inherit their estate. They subsequently brought judicial reviews. All three cases were decided in their favour. The Housing Authority and the Department of Justice appealed, but the Court of Appeal dismissed both appeals and upheld the original judgments. The Housing Authority and the Department of Justice then applied for leave to appeal the three cases to the Court of Final Appeal. In a judgment handed down on the 26th, the Court of Appeal agreed that the cases involved legal points of great and wide importance and granted leave for the final appeals.
兩對海外結婚的同性伴侶因房委會拒絕承認其配偶身分，未能申請公屋及入住居屋，另其中一人因擔心無立遺囑下離世後，婚姻關係不獲遺產條例承認，配偶不能承繼其遺產，先後提出司法覆核。3案均獲裁定勝訴，房委會和律政司不服決定提出上訴，均被高等法院上訴庭駁回，維持原判。房委會及律政司就3案再申請上訴至終審法院，上訴庭（26日）今頒下判詞，同意3案涉重大而廣泛重要性的法律論點，批出終極上訴許可。
26 Feb 2024法庭線#3042
IFC「組織受禁群組聚集」罪成「Lunch 哥」上訴得直 官：充其量只是響應參與
Li Kwok-wing, known online as “Lunch Gor”, was accused of organising a protest at the International Finance Centre mall (IFC) in Central in September 2020, in breach of the then two-person gathering restriction. He denied the summons charge of “organising a prohibited group gathering”, but was convicted after trial and sentenced to a 15-month probation order. Li appealed against his conviction. High Court deputy judge Anthony Kai On Kwok handed down judgment on Monday (26th), allowing the appeal.
On the trial court’s finding that the appellant was an organiser of the group gathering, the judge said the appellant had gone up an escalator to the second floor after being stopped by mall security and continued shouting slogans. This was “in essence different” from planning or directing a procession route. The judge also cited the Court of Appeal’s ruling on the “818 assembly”, which held that an organiser must bear a certain degree of responsibility or have actively participated in planning and arranging the event; merely being present and participating, “even in a prominent position, is not sufficient”.
The judge ruled that there was no evidence that the appellant was the initiator or organiser of the “和你 lunch” activity. Even if he knew about the activity, his conduct “at most amounted to responding by participating, and did not necessarily make him an organiser”.
被網民稱為「Lunch 哥」的李國永，被指於 2020 年 9 月，在中環國際金融中心商場（IFC ）組織示威，違反當時的「二人限聚令」。他否認傳票控罪「組織受禁群組聚集」，受審後被裁定罪成，判處 15 個月感化令。李不服定罪提上訴，高院暫委法官郭啟安周一（26 日）頒下判詞，裁定李上訴得直。
對於原審裁定上訴人為群組聚集的組織者，官指上訴人的行為是因受商場保安阻止，遂乘扶手電梯至二樓，繼續叫口號，情況與計劃或指導遊行路線「在本質上亦有所不同」。官又引述「818 集會」的上訴庭裁決，指上訴庭認為，組織者必須負起某程度的責任，或有積極參與計劃、安排等，純粹在現場出現，有份參與，「即使在顯眼的位置並不足夠」。
官裁定，沒證據指上訴人是「『和你 lunch』活動的發起人或組織者」，即使他知道該活動，其行為「充其量只是響應參與，而不一定是組織者」。
24 Feb 2024法庭線#3029
《願榮光》禁令案上訴 律政司指32段相關影片違國安法 「法庭之友」質疑改變立場
The Department of Justice’s appeal over its application for an injunction against the song “Glory to Hong Kong” continued before the High Court Court of Appeal on Saturday (24th), after the application for an interim injunction was previously refused. Responding to the Court of Appeal’s earlier concern that the injunction might affect some people’s rights, the Department said it had submitted a revised version to the court, listing news work, academic research and other activities as not subject to restrictions.
The judges questioned whether the revision would increase certainty, noting that the activities were already lawful and that the changes might instead confuse the public. The Department said it would seek further directions on the issue, but reiterated that “Glory to Hong Kong” contained seditious lyrics and that, as a “military anthem”, it affected public sentiment. It said the court should grant the interim injunction and specified that 32 related YouTube links were unlawful.
The amicus curiae, who was assisting the court in an independent capacity, said the Department had not mentioned during the original hearing that the videos violated the National Security Law, questioning whether this represented a “change of position”. The judge ultimately required the Department to submit the revised terms of the injunction by 11 March and said judgment would be handed down within four months.
律政司就歌曲《願榮光歸香港》申請禁制令一案，早前被拒批臨時禁制令，律政司不服提上訴，周六（24 日）在高院上訴庭續審。針對上訴庭早前關注，禁令或影響部分人的權利，律政司今指已向法庭提交修訂版，將新聞工作、學術研究等列入不受限行為。
法官質疑，上述活動本屬合法行為，有關修訂無助增加確定性，而是令市民感到困惑。律政司指會就此再索指示，但重申《願榮光》涉煽動歌詞，如「軍歌」影響市民情緒，法庭應批出臨時禁制令，並指明 32 條相關 YouTube 連結違法。
以獨立身分提供協助的「法庭之友」則指，律政司在原審時，未曾提及相關影片違反《國安法》，質疑是「改變立場」。法官最後要求律政司於 3 月 11 日或之前，提交修改的禁制令內容，並於 4 個月內頒下判決。
23 Feb 2024法庭線#3027
8.18流水式集會｜黎智英等7人「組織集結」獲撤罪 終院駁回律政司上訴許可申請
On 18 August 2019, the Civil Human Rights Front held a flowing assembly at Victoria Park. Following a trial, Jimmy Lai, Audrey Eu and five other pro-democracy figures were convicted of two offences: organising and taking part in an unauthorised assembly. The Court of Appeal allowed the appeals of all seven against the “organising an assembly” convictions and quashed those convictions. Their appeals against the “taking part in an assembly” convictions failed, and those convictions were upheld.
The Department of Justice and the defendants were both dissatisfied with the decision and applied to the Court of Final Appeal for leave to appeal on Friday (the 23rd). The Department of Justice argued that the Court of Appeal’s view that “even if appellants stood at the front of the procession and led the chanting, it could not necessarily be inferred that they were the organisers” was perplexing and incorrect. It reiterated that the defendants’ spontaneous leadership—including Lee Cheuk-yan holding a microphone and Jimmy Lai and Leung Kwok-hung making gestures—also constituted “organising”. After hearing the Department of Justice’s submissions, the Court of Final Appeal judges dismissed the application immediately.
As for the defendants’ appeal concerning “taking part in an assembly”, which disputed whether the Public Order Ordinance, as applied, breached the principle of proportionality, the Court of Final Appeal granted leave to appeal. The defendants also asked the Court of Final Appeal to address issues including the definition of an “assembly” and whether the Public Order Ordinance would create a chilling effect. The court will decide on another date whether to grant leave on those issues.
2019 年 8 月 18 日，民陣在維園舉行流水式集會，黎智英、吳靄儀等 7 名民主派人士，經審訊後被裁定「組織」及「參與」未經批准集結兩罪罪成。上訴庭裁定 7 人「組織集結」上訴得直、撤銷定罪；「參與集結」罪則上訴失敗、維持定罪。
律政司與被告方均不服決定，周五（23 日）向終院提出上訴許可申請。律政司一方指，上訴庭指「即使上訴人站在隊頭、帶領喊口號，也不一定能推論他們是組織者」，推論令人不解及錯誤，重申被告自發帶領，如李卓人手持麥克風，黎智英及梁國雄做手勢，亦構成「組織」。終院法官聽畢律政司陳詞，即場駁回申請。
至於被告一方就「參與集結」申上訴，爭議《公安條例》在執行層面有否違反相稱性，終院則批出上訴許可。被告方另外希望終院處理「集會」定義、《公安條例》會否帶來寒蟬效應等議題，終院擇日決定是否批准。
23 Feb 2024法庭線#3028
理大內暴動案｜22歲男暴動罪成 官駁回上訴許可申請：證供違常理處比比皆是
In November 2019, police surrounded protesters inside Polytechnic University. A 22-year-old man, one of 17 people allegedly attempting to break out and arrested inside the Science Museum, was convicted of rioting after trial. His application for leave to appeal was rejected, with Court of Appeal judge Poon Man-ki handing down her judgment on Friday (23rd) explaining the decision.
The judge said in the judgment that "the applicant's testimony contained numerous aspects contrary to common sense". She said he already knew Polytechnic University had been occupied when he set out for it, yet claimed that he was going there only to seek truth and knowledge. He took a taxi from Wan Chai via the Eastern Harbour Crossing, which she said was an attempt to "conceal his true purpose in entering Polytechnic University". She also said that, despite having experienced danger, he still chose to remain and did not try to find a way to leave, describing his account as "utterly baseless".
2019 年 11 月，警方圍堵理工大學內的示威者，其中 17 人疑「突圍而出」，在科學館內被捕、經審訊被裁定暴動罪成的 22 歲男生，申請上訴許可被拒，上訴庭法官潘敏琦周五（23 日）頒下判詞解釋。
官在判詞指，「申請人證供有違常理之處，比比皆是」，指他出發前往理大時亦已知道理大被佔領，卻聲稱只為求真求知，從灣仔乘的士繞道經東隧前往，指屬「掩飾進入理大的真正目的」；又指他經歷險境後依然選擇留下，沒嘗試找方法離開，說法「實屬無稽」。
22 Feb 2024法庭線#3023
陳真咬甩趙家賢耳等判囚14年半 上訴指總刑期10至12年足夠
In November 2019, a middle-aged man, Joe Chen, attacked people outside Cityplaza, injuring people with a knife and biting off the left ear of Andrew Chiu Ka-yin, who is currently remanded in custody over the “47-person case” and was then an Eastern District councillor. He was sentenced to 14½ years in prison. Dissatisfied with the sentence, he lodged an appeal, which was heard by the Court of Appeal on Thursday (22nd).
2019 年 11 月太古城中心外發生襲擊事件，中年漢陳真持刀傷人，並咬甩現就「47 人案」還押、時任東區區議員趙家賢左耳，被判監禁 14 年半。陳不服刑罰提出上訴，周四（22 日）在高院上訴庭處理。
上訴方稱，涉及趙家賢及另一名受重傷事主的兩罪，原審以 7 年為量刑起點屬過高，認為應定為 5 年至 5 年半；另本案源於同一事件，認為刑期應全部同期或大部分同期執行（法律 101 文章），而總刑期為 10 至 12 年是足夠。
法官彭偉昌指出，案發背景「社會秩序嚴重失序」，指「呢啲行為實際上，嚴重性同罪責升高」，又指看不到陳真傷人與太古城聚集的事件有切割。官押後於 6 個月內頒裁決。
22 Feb 2024法庭線#3024
12.8遊行前搜出槍械 4人認串謀殺警、《反恐條例》下爆炸罪 最高可判囚終身
On the eve of the 8 December 2019 “International Human Rights Day Grand March”, police found a large quantity of weapons, including pistols and bullets. Fourteen people were subsequently arrested, including the “12 Hongkongers” CHEUNG Chun-fu and members of Localist Front Sut Ieng Chong. They were charged with multiple offences, including the first prosecution brought by the government under the United Nations (Anti-Terrorism Measures) Ordinance for “conspiracy to commit the offence of causing an explosion at a prescribed target”. Some defendants were also charged with conspiracy to murder, with both offences carrying a maximum sentence of life imprisonment.
Eight defendants pleaded guilty in succession at the High Court this week. Three admitted the explosives offence under the Anti-Terrorism Measures Ordinance, one admitted conspiracy to murder police, and the other four admitted offences including assisting and abetting the manufacture of explosives and possession of firearms or ammunition without a licence.
2019 年 12 月 8 日「國際人權日大遊行」前夕，警方搜出大批武器，包括手槍、子彈等，事後 14 人被捕，包括「12 港人」張俊富、本土民主前線成員鍾雪瑩等，他們被起訴多罪，其中政府首引《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，部分被告亦被控串謀謀殺，兩罪最高可判終身監禁。
其中 8 名被告本周先後在高等法院認罪，其中 3 人承認《反恐條例》下爆炸罪、1 人承認串謀殺警、另 4 人承認「協助及教唆製造爆炸品」、「無牌管有槍械或彈藥」等罪。
21 Feb 2024獨媒#3010
社民連涉街站掛黑布 10人遭票控展示橫額及無牌籌款 押後至8月訊待另案上訴結果
League of Social Democrats chairperson Chan Po-ying, vice-chairperson Dickson Chau, Yu Wai-pan and volunteers were accused of fundraising without a licence and hanging black cloth on three occasions while operating street booths in Causeway Bay between April and May last year. They were summonsed on a total of 26 charges, including “fundraising in a public place without a permit” and “displaying notices or posters on government land without permission”. The defendants appeared for a further hearing at the Eastern Magistrates’ Courts today (the 21st). They applied to adjourn entering their pleas until the outcome of an appeal in a similar case, after which they would decide their intentions regarding pleas in this case. The case was adjourned to 16 August for a further hearing. The case against Tsang Kin-shing, who was absent from the hearing, was adjourned to 14 May pending re-service of the summons. Before the hearing, eight of the defendants displayed a banner and chanted slogans outside the court, including: “In the name of the rule of law, the reality is silencing”; “Fabricating charges and suppressing political groups”; and “Suppressing freedom of speech and expression is shameful.” Vice-chairperson Dickson Chau said they had not expected that merely distributing leaflets on the street would lead to close surveillance, but stressed that they would safeguard the space for speaking out on the streets and fight their case with reason.
社民連主席陳寶瑩、副主席周嘉發、余煒彬及義工等10人，被指於去年4月至5月期間，三次在銅鑼灣擺街站時無牌籌款及懸掛黑布。他們被票控「沒有許可證而在公眾地方籌款」及「未經准許而在政府土地展示招貼或海報」等共26罪，今（21日）在東區裁判法院再訊。各被告申請押後答辯，待與本案相類的案件有上訴結果後，才決定本案的答辯意向，案件押後至8月16日再訊。至於缺席聆訊的曾健成，其案則押後至5月14日，以待再派遞傳票。其中8人於上庭前，在法院外展示橫額及叫口號，包括：「法治為名，滅聲為實」、「羅織罪名，打壓政團」、「壓制言論表達自由，可恥」。副主席周嘉發表示，沒有想到僅僅在街頭派發單張，也會遭到嚴密監視；但強調會謹守街頭發聲的空間，並據理力爭。
21 Feb 2024法庭線#3014
願榮光咖啡館遭票控男廁有污漬 負責人認罪罰款3,500元
Not One Less Coffee, which will close at the end of this month, was prosecuted by the Food and Environmental Hygiene Department for two offences: allowing persistent stains on the ceiling and inner wall of the toilet bowl in the men's toilet, and failing to keep sanitary fittings clean and properly maintained. The person in charge of the company pleaded guilty at Eastern Magistrates' Courts on Wednesday (21st), saying in mitigation, "We have already tried very hard to clean." The area was cleaned after the condition was discovered, and the two charges resulted in a total fine of $3,500.
將於本月底結業的願榮光咖啡館（Not One Less Coffee），被指男廁天花板及廁盆內壁有持久污漬，遭食環署票控「食物業處所不衞生」及「衞生設備不清潔及維修不妥善」 2 罪。
公司負責人周三（21 日）在東區裁判法院認罪，求情指「我哋已經好努力做清潔」，發現情況後便清潔乾淨，2 罪共罰款 3,500 元。
21 Feb 2024法庭線#3016
鄒幸彤六四煽惑集結案 刑期上訴被駁回 維持判囚15月
At the 2021 June 4 memorial gathering in Victoria Park, Chow Hang-tung, then vice-chairwoman of the Hong Kong Alliance in Support of Patriotic Democratic Movements of China, was accused of posting an appeal for members of the public to participate. She was charged with incitement to unlawful assembly and convicted at trial, receiving a 15-month prison sentence. She initially succeeded in her appeal and had her conviction quashed. The Department of Justice subsequently succeeded in its final appeal, and the Court of Final Appeal restored Chow’s conviction and remitted her sentence appeal to the Court of First Instance.
On Wednesday (the 21st), High Court Judge Esther Toh dismissed Chow’s sentence appeal and upheld the original sentence. The judge said that, in dealing with the appeal in this case, the Court of Final Appeal had already ruled that the prohibition issued by police because of the severity of the COVID-19 pandemic was necessary and proportionate. The appellant therefore could not seek to have the sentence appeal allowed on the ground that the pandemic was not severe. The judge also found no impropriety in the sentence and no grounds to interfere with the magistrate’s sentencing decision.
After learning of the judgment, Chow smiled, shrugged and waved to the public gallery before leaving. It is understood that she is required to serve the sentence in this case until 8 March. She is also remanded in custody in the separate case in which the Alliance is accused of subversion.
2021 年六四維園悼念集會，時任支聯會副主席鄒幸彤被指發文呼籲市民參與，被控煽惑集結，原審罪成判囚 15 個月；她一度上訴得直獲撤銷定罪，及後律政司終極上訴得直，終院恢復對鄒的定罪裁決，並將刑期上訴發還高院原訟庭。
高院法官張慧玲周三（21 日）駁回鄒幸彤的刑期上訴，維持原審判刑，指終院在處理本案上訴時，已裁定警方因新冠疫情嚴重而發出禁令，是必要及相稱，故上訴方不能以疫情不嚴重為由，要求她批准刑期上訴。官又認為刑期上並無不當之處，無理據干預裁判官判刑。
鄒幸彤聞悉判決後，笑著聳肩，向旁聽席揮手後離開。據了解，鄒須就本案刑期，服刑至 3 月 8 日，她另就「支聯會被指煽動顛覆案」須還押。
Translations are supplied by the source workbook. Consult the original reporting for context.
