6 Feb 2024法庭線#2951
許智峯遭頒令破產 兼須支付訟費 許曾聲言對生活、財政「毫無影響」
Former Legislative Council member Ted Hui, who announced in 2020 that he was going into exile overseas and is wanted by the authorities, was the subject of a bankruptcy petition filed by the Department of Justice in the High Court in November 2023. The case was heard in the High Court on Tuesday (6th), with neither Hui nor the Department of Justice represented in court.
Master Yu Kai-chiu said all the Department of Justice’s documents had been served and that Hui had not responded. He therefore ordered Hui to be declared bankrupt with immediate effect and to pay the legal costs. In response, the Department of Justice confirmed that the bankruptcy petition was related to Hui’s failure to pay legal costs, and said it would continue to pursue the relevant amount in accordance with the law, declining further comment.
According to information reviewed, Hui said on his personal Facebook page at the end of 2023 that he was in Australia and had been admitted as a lawyer by an Australian court. Regarding the Department of Justice’s bankruptcy petition, Hui said bankruptcy proceedings in Hong Kong would have “no impact whatsoever” on his life or finances in Australia.
2020 年宣布流亡海外、正被通緝的立法會前議員許智峯，2023 年 11 月被律政司入稟高等法院作破產呈請。案件周二（6 日）在高院聆訊，許智峯及律政司雙方都沒派代表到場。
聆案官余啟肇指，律政司所有文件已送達，對方沒回應，故頒令許即時破產，並須付訟費。律政司回覆時確認，破產呈請與許未支付訟費有關，又指將依法繼續追討有關款項，不作其他評論。
翻查資料，許智峯 2023 年底在個人 Facebook 專頁提及身在澳洲，並獲澳洲法庭認許為律師。對於律政司的破產呈請，許稱在港的破產申請對其澳洲生活、財政「毫無影響」。
4 Feb 2024法庭線#2935
鄒幸彤六四煽惑集結案 終院裁警擁寬闊酌情權 翻查近月集會警要求識別參與者
In the case involving Chow Hang-tung’s alleged incitement of a June 4 gathering, the Court of Final Appeal ruled at the end of January 2024 that the police ban on the 2021 June 4 vigil was lawful, and said the police had broad discretion. Leung Kam-wai, then a standing committee member of the Hong Kong Alliance in Support of Patriotic Democratic Movements of China who liaised with the police, said he had proposed measures in line with the government’s anti-epidemic rules at the time. The police also raised questions, but did not respond to the concerns or propose conditions.
A review of 16 public processions and gatherings issued with letters of no objection over approximately the past month found that in 15 cases, the police required organisers to assist in identifying participants, such as requiring participants to carry small flags, wear specified clothing or put on stickers.
Leung Kam-wai said the police had never previously required assistance in identifying participants, and believed the current measures undermined freedom of assembly. The Hong Kong Federation of Trade Unions, whose affiliated union had obtained a letter of no objection to hold a procession, said through its chairman Wong Kwok that it respected the new arrangements and could basically adapt to them. He also said he did not want incidents like those in previous years, when processions turned violent, to happen again.
在鄒幸彤涉煽惑六四集會案，終院 2024 年 1 月底裁定，警方禁止 2021 年六四晚會的禁令合法，又指警方有寬闊的酌情權。當年與警方接洽的前支聯會常委梁錦威指，曾按當時政府的防疫規定提出措施，警方亦有提出問題，但沒回應擔憂，或提出條件。
翻查近約一個月獲發「不反對通知書」的 16 個公眾遊行、集會，發現當中 15 個，警方都要求主辦方協助識別參與者身分等，例如參與者需持小旗、穿指定衣飾、貼上貼紙等。
梁錦威指，警方過去從沒要求協助識別參加者，認為現時措施有損集會自由。有屬會獲得「不反」舉辦遊行的工聯會，理事長黃國則稱尊重新安排，「基本上適應到」，又指不希望再有前幾年，遊行變成暴力的事件發生。
31 Jan 2024獨媒#2918
涉8.31太子站半週年破壞警車 兩男暴動罪成 各囚3年4個月
On the half-year anniversary of the 31 August Prince Edward station incident, protesters gathered outside Mong Kok Police Station and several people were arrested. Two men were charged more than two years later with rioting over allegedly surrounding and damaging a police vehicle that day. They pleaded not guilty and went to trial, but were convicted and each sentenced to 3 years and 4 months in prison at the District Court on the 31st. Acting Judge Newman Hing Wai Wong said the two defendants were not leading figures and there was no evidence that they had planned the riot. The judge believed they had been encouraged by the atmosphere at the scene and had joined the riot on impulse. The judge also said the riot lasted for more than 10 seconds and, fortunately, the participants’ actions did not cause actual bodily harm to police officers. Taking into account the two men’s good backgrounds and young ages, the judge reduced their sentences by two months.
8.31太子站事件半週年，有示威者在旺角警署外集結，多人被捕。兩男涉當日包圍及破壞警車，事隔逾2年被控暴動罪。他們不認罪受審，最後被裁定罪成，今（31日）在區域法院各被判囚3年4個月。暫委法官王興偉指，兩名被告並非領頭角色，亦無證據顯示他們策劃暴動，相信是受現場氣氛鼓勵，臨時投入參與暴動。他又指，本案暴動維持十多秒，幸好參與者的行為沒有對警員造成真正身體傷害。王官另考慮到兩人有良好背景及年紀輕，故減刑2個月。
31 Jan 2024法庭線#2920
10.1 油尖旺｜2人暴動罪成囚4年4月 不服定罪申上訴被拒
During protests in Yau Tsim Mong on National Day in 2019, 12 people were charged with participating in a riot on Nathan Road. Eleven had earlier been found guilty, and two of them applied for leave to appeal against their convictions. The applications were heard in the High Court on Wednesday (the 31st).
The applicants said one of them testified at trial that there had been no clashes ahead when she was crossing the road near Public Square Street. However, the trial judge referred to another news clip and said that hundreds of black-clad people at the scene were equipped with gear. The applicant said there was a time difference between the clip and what she had witnessed, and described the trial judge as having “read his own assumptions into it”.
Regarding the other applicant’s argument that items including a face mask and goggles found during a search at the scene were not necessarily intended for use in a riot, High Court judge Pang Wai-cheong questioned this, saying the items must have been for participating in the protest. He gave the example of a group of people hacking someone to death and a person being stopped and found with knives, asking, “Could it be such a coincidence that they were slaughtering cattle?” The judge ultimately refused to grant leave to appeal and issued both men with warnings about the risk of a reduction order. They must continue serving their sentences.
2019 年國慶日有市民在油尖旺區示威，有 12 人被控於彌敦道參與暴動，11 人早前被裁定罪成，其中 2 人不服定罪申請上訴許可，周三（31 日）在高等法院處理。
申請方指，申請人於原審供稱在眾坊街附近過馬路時，前方沒有衝突，惟原審法官參考另一新聞片段，指現場有數以百計「黑衣人」配有裝備。申請人認為，片段與她目睹的情況有時差，形容原審「僭建咗佢嘅諗法」。
對於另一申請方指在現場被搜出口罩、護目鏡等物品，不一定用於暴動，上訴庭法官彭偉昌質疑，相關物品必定為參與示威的物品，並舉例稱有一班人群毆斬人，若有人被截停搜出刀具，「有冇咁橋喺度劏牛？」。法官最終拒批上訴許可，並向兩人發出「減時命令風險警告」，兩人須繼續服刑
31 Jan 2024法庭線#2921
理大內暴動案｜22歲男暴動罪成囚50月 不服定罪申上訴許可被駁回
In November 2019, police surrounded protesters inside the Hong Kong Polytechnic University. Seventeen people allegedly broke out and were arrested inside the Science Museum. Six of them had earlier been convicted of rioting; four were sentenced to between 50 and 53 months’ imprisonment, while the other two were sentenced to detention in a training centre.
One of the six, now aged 22, disputed his conviction and applied for leave to appeal. After hearing submissions at the High Court on Wednesday (the 31st), Court of Appeal judge Pun Man Kei ruled that there were no reasonable grounds for argument in the appeal and refused leave on the same day. The judge said the conviction at trial was based on a “bundle” of factual findings, from which it could be inferred that the man had encouraged others to take part in the riot by remaining at the scene. She also said his evidence was “simply insulting the intelligence of the court.”
The judge also issued a warning about the risk of a non-deduction order. The man is entitled to apply to the Court of Appeal again for leave to appeal, but if the application is dismissed, the court has the power to order that his detention while awaiting the appeal will not count towards his sentence.
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，當中 6 人早前被裁定暴動罪成，4 人被判囚 50 至 53 個月，另兩人被判入教導所。
其中一名現年 22 歲男生不服定罪，申請上訴許可。上訴庭法官潘敏琦周三（31 日）在高等法院聽畢陳詞後，認為其上訴沒合理爭拗之處，即日拒批許可。官指，原審定罪基於「一籃子」的事實裁斷，可推斷男生藉留守鼓勵他人參與暴動；又指其證供「簡直係侮辱緊法庭嘅智慧」。
法官同時發出「減時命令風險警告」，即男生有權再向上訴庭申請上訴，但假如申請被駁回，上訴庭有權命令，他在等候上訴期間的關押不計入刑期之內。
30 Jan 2024獨媒#2899
【12港人】喬映瑜認潛逃及製爆炸品 囚5年1個月 稱內地服刑時有中聯辦及國務院人士探訪
QUINN Moon, one of the 12 Hong Kong people, admitted in a mainland Chinese court in 2020 to organising others to illegally cross the border. After serving two years, she was transferred to Hong Kong, and has been detained in Hong Kong and the mainland for a total of three and a half years. Kiu Yuen was involved in the Mong Kok bomb case and earlier pleaded guilty to three charges of perverting the course of justice, possessing explosives and making explosives. She was sentenced to five years and one month in prison at the District Court today (30th). In a personally written mitigation letter, the defendant said: “On the first New Year’s Eve after I was captured, two women sent by the Liaison Office and the State Council came to visit me, helping me understand that the country still cares about Hong Kong’s young people.” Judge Chen Kwok-chi said the escape plan involved agencies on the Taiwan side and could be described as having “connections reaching from heaven to earth”. If the defendant had successfully evaded legal punishment, it would have been “a grave insult to the rule of law” and “a dagger As One stabbing Hong Kong’s long-standing bail system hard”. Judge Chen also said there was reason to believe that those who successfully absconded would not live quietly abroad, but would instead launch extensive attacks on and condemnation of Hong Kong’s regime. In addition, Judge Chen said the parties seemed not to know whether they would encounter rough seas and capsize during the voyage, or even “encounter pirates and find themselves in danger”.
12港人案之一的喬映瑜，於2020年在內地法院承認組織他人偷越邊境，服刑兩年後移交本港，她在中港合共已關柙3年半。喬原涉旺角炸彈案，早前承認妨礙司法公正、管有及製造爆炸品共3罪，今（30日）在區域法院被判囚5年1個月。被告親撰求情信指，「被抓獲後的第一個除夕，中聯辦及國務院委派兩名女士前來探訪，使我理解到國家還是關心香港年輕人」。法官陳廣池指，潛逃計劃牽涉台灣方面機關，可說是「搭上天地線」；若被告成功避開法律制裁，是「對法治的莫大侮辱」，亦「有如一把匕首，向香港一貫的保釋制度狠狠捅了一刀」。陳官亦指，有理由相信成功潛逃者不會默默在外地居住，而是大肆對香港的政權攻擊和謾罵。另外，陳官提到各人似乎不知航行途中會否遇風浪反艇，甚或「遇上海盜而身陷險境」。
30 Jan 2024獨媒#2900
煽惑六四集會恢復定罪 鄒幸彤申保釋候刑期上訴結果遭拒
The police banned the June 4 vigil in 2021. Chow Hang-tung, former vice-chairwoman of the now-disbanded Hong Kong Alliance in Support of Patriotic Democratic Movements of China, was accused of inciting members of the public on social media and in articles published in Ming Pao to participate in an unauthorised assembly. She was convicted at trial and sentenced to 15 months in prison, but subsequently won her appeal, with her conviction and sentence quashed. The Department of Justice appealed, and the Court of Final Appeal ruled last Thursday (25th) that the appeal was successful, restoring Chow’s conviction and remitting her sentence appeal to a High Court judge for handling. Chow applied at the High Court today (30th) for bail pending the outcome of her sentence appeal. After hearing submissions from both sides, judge Cheung Wai-ling rejected the application and also refused to lift restrictions on reporting the bail proceedings. Chow must continue serving her sentence. As Chow left the court, a member of the public in the gallery waved and said, “Take care!” Chow also waved with a smile and said, “Happy New Year! Bye bye!”
2021年六四晚會遭警方禁止，已解散的支聯會前副主席鄒幸彤被指在社交媒體和《明報》發文煽惑市民參與未經批准集結，原審罪成判囚15個月，她其後上訴得直，獲撤銷定罪及刑罰。律政司提出上訴，終院上周四（25日）裁定律政司上訴得直，恢復鄒的定罪，刑期上訴發還高院法官處理。鄒幸彤今（30日）於高院申請保釋等候刑期上訴結果，法官張慧玲聽畢雙方陳詞後拒絕申請，亦拒絕解除報導保釋程序的限制，鄒須繼續服刑。鄒幸彤離庭時，旁聽人士揮手說：「保重！」，鄒亦面帶笑容揮手說：「新年快樂！Bye bye！」
26 Jan 2024法庭線#2886
8.18流水式集會｜黎智英等7人「組織集結」獲撤罪 律政司申終極上訴許可
On 18 August 2019, the Civil Human Rights Front held a rolling assembly in Victoria Park. Following a trial, Jimmy Lai, Audrey Eu and five other pro-democracy figures were convicted of organising an unauthorised assembly and taking part in an unauthorised assembly. The Court of Appeal allowed their appeal against the organising charge and quashed the convictions, but dismissed their appeal against the charge of taking part in an assembly and upheld those convictions.
Both sides, dissatisfied with the decision, applied to the Court of Appeal for certificates to appeal to the Court of Final Appeal. The Court of Appeal granted the defendants’ application concerning the charge of taking part in an assembly, but rejected the Department of Justice’s application concerning the acquittal on the organising charge. The Department of Justice confirmed in its reply that it had directly applied to the Court of Final Appeal for leave to appeal.
The Court of Final Appeal’s website shows that a hearing will be held on 23 February to deal with both sides’ applications for leave to appeal. The case will be handled by Permanent Judges Lee Yee, Fok Siu-kong and Lam Man-hon.
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「組織未經批准集結」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。
雙方均不服決定，向上訴庭申請上訴至終審法院證明書；上訴庭批准被告方就「參與集結」罪上訴的申請，拒絕律政司就「組織集結」罪脫的申請。律政司回覆時確認，已直接向終院提出上訴許可申請。
終院網頁顯示，將於 2 月 23 日開庭，處理雙方的上訴許可申請，由常任法官李義、霍兆剛及林文瀚處理。
26 Jan 2024獨媒#2888
涉噴「人類有權不打疫苗」字句 青年認罪囚5個月 官：激發不良份子或致使用暴力
A 22-year-old man was arrested by the National Security Department after allegedly spray-painting the words “People have the right not to be vaccinated” and “Guillotine to settle accounts with black cops” on an industrial building in Kwun Tong and the exterior wall of a building in Mong Kok the year before last. He earlier admitted three counts of criminal damage and was sentenced to five months’ imprisonment at Kwun Tong Magistrates’ Courts today (26th). Acting Principal Magistrate Liu Kei-wan said the wording challenged the law, the police as an important law-enforcement agency, and government policies implemented to protect public health. Liu said the wording could incite undesirable elements and give them an opportunity to exploit the situation, and was quite likely to lead to people using violence, seriously endangering public order and safety.
一名22歲男子涉前年於觀塘工廈及旺角大廈外牆，噴上「人類有權不打疫苗」、「斷頭台清算黑警」等字句，被國安處拘捕。他早前承認3項刑事毀壞罪，今（26日）在觀塘裁判法院被判囚5個月。署理主任裁判官劉綺雲指，涉案字句挑戰法律、挑戰作為重要執法機關的警方，以及挑戰政府為保障市民健康而實行的政策。劉官認為字句會激發不良份子並令其有機可乘，相當可能導致有人使用暴力，並嚴重危害公眾秩序及安全。
25 Jan 2024法庭線#2874
鄒幸彤六四煽惑集結案 終院一致裁律政司得直、恢復定罪 官指警禁令顯然合法
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 attend. She was convicted of incitement to unlawful assembly at trial and sentenced to 15 months’ imprisonment, but succeeded in her appeal and had the conviction quashed. On Wednesday (the 24th), however, the Court of Final Appeal unanimously ruled in favour of the Department of Justice’s final appeal, restoring Chow’s conviction and remitting the appeal against sentence to the High Court’s Court of First Instance.
The five judges were divided into two camps on the key issue of whether a defendant may challenge an “administrative act” in a criminal trial—an “indirect challenge”, such as relying on a challenge to the legality of a police ban on an assembly as a defence. Legal commentator Edward Wong Kai-yeung i said the Court of Final Appeal had essentially reached its ruling by a margin of 3 to 2, holding that a defendant may challenge the relevant legality in a criminal case.
According to the judgment, the Chief Justice, Andrew Cheung Kui-nung, and one other judge considered that allowing the validity of a ban to be disputed would weaken its authority and cause harm in areas including national security—for example, the police would not know whether they could arrest people who disregarded the ban. Justice Ribeiro and two other permanent judges considered that a defendant could challenge the legality of an administrative act, but held that Chow’s grounds were not valid.
Justice Ribeiro said the police’s “positive duty” did not include taking every possible step to ensure that an assembly could take place. He stressed that organisers were responsible for proposing measures and convincing the police that they had the ability to implement them. He also said that, in this case, it was entirely understandable that the police were not convinced that the Alliance had the ability to ensure implementation of the measures and maintain public safety, and considered the police ban “clearly proportionate and lawful”.
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；她上訴得直獲撤銷定罪。不過終院周三（24 日）一致裁定，律政司終極上訴得直，恢復對鄒的定罪裁決，並將刑期上訴發還高院原訟庭處理。
5 名大法官對關鍵問題，即被告可否在刑事審訊中挑戰「行政作為」、提出「間接挑戰」，例如以挑戰警方集會禁令的合法性作為辯護理由，分成兩大陣營。法律評論員黃啟暘指，終院基本上以 3 比 2 大比數達成裁定，被告可在刑事案中挑戰相關合法性。
根據判詞，首席法官張舉能等兩大法官認為，若容爭議禁令有效性，會削弱禁令的權威，對國安等構成損害，例如警方將不知可否拘捕不顧禁令者。常任法官李義等 3 大法官則認為，被告可挑戰行政作為的合法性，不過指鄒的理據不成立。
李義指出，警方的「主動責任」並不包括想方設法確保集會得以舉行，強調主辦方有責提出措施，並要說服警方，他們具有能力執行。李又指在本案中，完全理解警方不信服支聯會有能力確保執行措施，維持公眾安全，認為警方的禁令「顯然合符比例和合法」。
Translations are supplied by the source workbook. Consult the original reporting for context.
