5 Dec 2023法庭線#8753
載名畫《維納斯的誕生》書藉禁入收押所 鄒家成提覆核指懲教決定違憲
Owen Chow, a defendant in the case involving 47 pro-democracy primary election defendants, previously revealed on Facebook that the Correctional Services Department had prohibited him from receiving a book featuring the famous painting The Birth of Venus on the grounds that its content involved nudity. On Monday (4th), Chow filed for judicial review at the High Court, arguing that the department’s decision was unlawful, unreasonable and unconstitutional. He asked the court to quash the commissioner’s decision to reject the book and allow him to receive it.
The writ stated that the rejected book was a Chinese translation of German author Dietrich Schwanitz’s work, titled “Education: What You Need to Know About History, Literature, Art, Music, Philosophy and World Cultures”. Correctional officers had placed a notice reading “Nudity! Return!” on the page featuring The Birth of Venus.
The writ said that when Chow had previously been refused books, the department had proactively explained the reasons. This time, however, it only replied to his inquiry that he could not receive the book because it contained “indecent content”, without specifying which part of the content was involved, leaving him surprised. Chow had complained to correctional officers but received no follow-up. He subsequently complained to the Office of the Ombudsman and wrote to Legislative Council members Kwun Ho-ming and Tik Chi-yuen for assistance.
47 名民主派初選案中被告鄒家成，早前在 Facebook 透露，他被懲教署以內容涉「裸露」為由，禁止收取一本載有名畫《維納斯的誕生》的書藉。鄒周一（4日）向高等法院提出司法覆核，指懲教署的決定非法、不合理且違憲，要求法庭頒令撤銷署長拒入書的決定，及容許他收取有關書藉。
入稟狀指，該本被拒書藉為德國作家 Dietrich Schwanitz 的中譯書《教養：關於歷史、文學、藝術、音樂、誓學與世界風俗文化，你必須知道的事》，被懲教人員在《維納斯的誕生》畫作頁面貼上「裸露！退！」標記。
入稟狀提到，鄒過往被拒入書，署方都會主動交代原因，惟今次署方在他查詢下才覆「涉猥褻內容」不能收取，未有指明涉哪部分內容，令他感到詫異。而鄒曾向懲教人員投訴，惟未獲跟進。他之後再向申訴專員公署投訴，及去信立法會議員管浩鳴、狄志遠求助。
5 Dec 2023法庭線#8754
被指轉載黃世澤帖文、煽惑他人杯葛區議會選舉 38歲男子准保釋候訊
The Independent Commission Against Corruption on Tuesday (the 5th) charged a 38-year-old man for allegedly reposting on social media, on 31 October this year during the District Council election, a post that incited others to boycott the election. He was charged with the offence of “engaging in illegal conduct during the election period by inciting another person not to vote through public activity” under the Elections (Corrupt and Illegal Conduct) Ordinance. The defendant was brought to Fanling Magistrates’ Courts on Tuesday afternoon for mention.
Acting Chief Magistrate Cheng Nim-chi, at the defence’s request, adjourned the case until 15 January 2024 for mention. The defendant was granted bail during the adjournment and was barred from leaving Hong Kong.
廉政公署周二（5 日）落案起訴一名 38 歲男子，指他涉嫌在今年 10 月 31 日，即區議會選舉期間，在社交媒體轉載一則煽惑他人杯葛區議會選舉的帖文，違反《選舉（舞弊及非法行為）條例》，被控「在選舉期問內藉公開活動作出煽惑另一人不投票的非法行為」罪。被告周二下午被押解至粉嶺裁判法院提堂。
署理主任裁判官鄭念慈應辯方要求，將案件押後至 2024 年 1 月 15 日再訊，被告期間獲准保釋，不得離港。
5 Dec 2023法庭線#8755
兩男被指山上製爆炸品、家藏爆炸品原料等 申保釋被拒還押候訊
Two men in their 30s were accused of making explosives and conducting blasting experiments at a hillside in Wong Chuk Hang last Sunday (December 3). Police later found lime powder, charcoal powder and other items separately stored at the men’s residences. They were charged with three offences, including conspiracy to manufacture explosives and possession of explosives, and were brought to Eastern Magistrates’ Court for their first appearance on Tuesday (December 5).
The two men walked into court from the detention rooms, with one of them having his hands bound with a white strip. The prosecution applied for an adjournment of 16 weeks, saying the chemical substances involved totalled as much as 30 kilograms and required testing, while the electronic devices seized also needed to be examined. The defence did not object but asked for the period to be shortened to 11 weeks in order to monitor the prosecution’s progress.
Chief Magistrate Tsui Kei-wai accepted the defence’s submission and adjourned the case until February 20, 2024. Both defendants applied for bail, which was opposed by the prosecution. After hearing submissions from both sides, the magistrate refused bail. The two men reserved their right to apply for a review within eight days, and their bail applications will be dealt with again next Wednesday (December 13).
兩名 30 多歲男子被指上周日（12 月 3 日）在黃竹坑山邊自製爆炸品及做爆破實驗，警方其後於二人居所分別搜出另藏石灰粉、點燃炭粉等物，被控串謀製造爆炸品及管有爆炸品等 3 罪，周二（5 日）被押解往東區裁判法院首度提堂。
二人由羈留室步入法庭，其中一人被白色條狀物綁起雙手。控方申請押後 16 周，指涉案的化學物品多達 30 公斤，需時化驗，另要檢驗搜到的電子儀器。辯方不反對，但要求縮短至 11 周，以便檢視控方進度。
主任裁判官徐綺薇採納辯方說法，押後至 2024 年 2 月 20 日再訊。兩被告均申請保釋，控方反對，官聽取雙方陳詞後拒絕保釋。二人保留 8 天覆核權，下周三（13 日）再處理保釋申請。
5 Dec 2023法庭線#8756
11.2灣仔｜8人否認暴動等 4人罪成4人無罪 1被告曾嘗離港意圖妨礙司法公正罪成
On 2 November 2019, a large number of protesters gathered on Hong Kong Island, and clashes between police and protesters broke out in Wan Chai. Eight people denied rioting and other charges. After trial, the judge Chun Man (OIAP) Li ruled at the District Court on Tuesday (5th) that four of them were guilty of rioting, while the other four were acquitted of all charges. The four convicted defendants were remanded in custody until 12 December for sentencing.
Seven of the eight defendants chose to testify. The judge accepted that the accounts given by four of them might be true and that it could not be ruled out that they were innocent passers-by; they were therefore acquitted of rioting.
One of the four convicted defendants had intended to leave Hong Kong on a private aircraft for pets while on bail. The judge said she had paid $100,000 for a one-way ticket, was the only person on board and had not brought a pet. She stated in her immigration declaration that she would stay in the United Kingdom for six months. The judge said her intention to evade trial was clear and convicted her of intending to pervert the course of justice.
2019 年 11 月 2 日，大批示威者在港島區集結，灣仔爆發警民衝突。8 人否認暴動等罪，經審訊後，法官李俊文周二（5 日）在區域法院裁定當中 4 人暴動罪成，另外 4 人全部控罪無罪。4 名罪成被告還押至 12 月 12 日判刑。
8 名被告中有 7 人選擇作供，法官接納當中 4 人的說法可能屬實，不能排除他們是無辜路人，故暴動無罪。
4 名罪成被告中，其中一人在保釋期間曾意圖乘寵物私人專機離港。法官指她花 10 萬元購買單程機票，機上只有她，沒有帶寵物，在入境聲明表示會在英國逗留半年。官指她欲以此方式逃避審訊，意圖昭然若揭，裁定意圖妨礙司法公正罪成。
5 Dec 2023明報#8764
廉署起訴一男涉轉載文章煽惑杯葛區選 通緝文章作者黃世澤
The Independent Commission Against Corruption (ICAC) charged a man this morning with allegedly reposting on his personal online social media page a post that incited others to boycott the District Council election. The ICAC also obtained a warrant from a magistrate for the arrest of the post’s original author, overseas-based current affairs commentator Martin Oei.
廉政公署今早落案起訴一名男子，涉嫌在個人網上社交媒體專頁轉載一則煽惑他人杯葛區議會選舉的貼文。廉署並獲裁判官簽發手令，通緝該貼文的原作者、身在海外的時事評論員黃世澤。
4 Dec 2023獨媒#8747
涉濫發「免針紙」 西醫戴港盛及女商人被控串謀欺詐 戴另涉洗黑錢逾1千萬
A 76-year-old Western medicine practitioner, Tai Kong-shing, and a 58-year-old businesswoman allegedly conspired to issue more than 2,000 medical exemption certificates for COVID-19 vaccination, commonly known as “vaccine exemption certificates”. The case came up again at Kowloon City Magistrates’ Courts today (the 4th), where the prosecution amended the charges. The two now jointly face one count of conspiracy to defraud. Tai additionally faces 12 counts of dishonest use of a computer as alternative charges to the above offence, and three counts of money laundering involving more than $10 million in total. The case was adjourned to December 21 for transfer to the District Court for mention. In the meantime, the two were 각각 granted bail of $100,000 and $5,000 respectively.
76歲西醫戴港盛及58歲女商人涉嫌串謀濫發逾2,000張俗稱「免針紙」的新冠疫苗接種醫學豁免證明書，案件今（4日）於九龍城裁判法院再訊，控方修訂控罪，二人現共同面對一項串謀詐騙罪。戴另被控12項不誠實取用電腦罪，作為上述控罪的交替控罪，他另被控3項洗黑錢罪，涉款合共逾1千萬。案件押後至12月21日轉至區域法院提訊，期間二人分別獲准以10萬及5千元保釋候訊。
1 Dec 2023法庭線#8731
司法覆核區選「三會」提名違憲 郭卓堅敗訴 判詞：不足以證明機制不公
The reformed District Council election will be held on December 10. Candidates must obtain nominations from three members of each of the "the three committees", namely the District, Fire Safety and Fight Crime Committees, in order to qualify to stand. Kwok Cheuk-kin, known as the “Cheung Chau judicial review king”, sought a judicial review arguing that the requirement was unconstitutional and asking the court to quash it. The case was heard in the High Court on Thursday (30th), and Judge Ko Ho-man ruled against Kwok on Friday (1st).
The judgment rejected Kwok’s arguments, stating that the rights to vote and to stand for election are not absolute. The key questions were whether the restrictions pursued a legitimate aim and were proportionate. The judge said the purpose of the "the three committees" nomination system was to ensure “patriots administering Hong Kong” and to have candidates endorsed by people familiar with district affairs, which was a legitimate aim.
The judgment said that although the data showed that members of the "the three committees" tended to favour “their own people”, their personal characteristics should also be considered. As they had already handled district affairs and were important stakeholders in their districts, they were “not necessarily unsuitable”. There was also insufficient evidence in this case to show that the "the three committees" nomination system was unfair or prevented pro-democracy candidates from qualifying to stand.
Overall, the judge found that the "the three committees" nomination system was not without a reasonable basis and had struck a balance between the public interest and rights protected by the Basic Law. Kwok’s application was dismissed. Outside court, Kwok said he would discuss the matter with his lawyers before deciding whether to appeal.
改制後的區議會選舉將於 12 月 10 日舉行，參選人須取得「三會」即分區、防火和撲滅罪行委員會，每個委員會各 3 名委員提名才可入閘參選。「長洲覆核王」郭卓堅提司法覆核指規定違憲，要求法庭頒令取消，案件周四（30 日）在高等法院處理，法官高浩文周五（1 日）裁定郭卓堅敗訴。
判詞反駁郭卓堅一方理據，認為投票權和被選舉權非絕對權利，關鍵在於有關限制是否有合法目的、是否合乎比例。法官提到，「三會」提名制目的是確保「愛國者治港」，參選人獲熟悉地區事務人士認可，接納屬合法目的。
判詞指，雖然數據顯示「三會」成員傾向偏袒「自己人」，但若考慮到「三會」成員的個人特徵，例如他們本身已處理地區事務，屬當區重要持分者，「不一定是不合適」。本案亦沒有足夠證據顯示，「三會」提名制構成不公，阻止民主派入閘。
總括而言，法官認為「三會」提名制，並非沒有合理基礎，亦已在社會利益及基本法保障的權利之間取得平衡，駁回郭卓堅的申請。郭卓堅庭外指，會與律師研究，再決定會否上訴。
1 Dec 2023獨媒#8736
【理大圍城】申加刑遭拒 律政司質疑原審官過度強調被告非暴動策劃者
During the “PolyU siege” in November 2019, 17 people were accused of breaking out of Polytechnic University and fleeing into the Hong Kong Science Museum, and were charged with rioting. Five pleaded guilty to rioting and were sentenced to between 15 and 19 months’ imprisonment. Dissatisfied that the sentences were too lenient, the Department of Justice applied for a review. A hearing was held earlier in the High Court, where the judge ultimately rejected the application, ruling that although the trial judge had made an error in principle, the defendants were about to be released. In a judgment handed down today (the 1st), the judge said the Department of Justice considered that the trial judge, Chan Kwong-chi, had placed excessive emphasis on the fact that the defendants were not planners of the riot, and had speculated that they were merely “victims” while the riot had other “masterminds” behind it. This would affect the assessment of each defendant’s individual culpability.
2019年11月「理大圍城」，17人被指從理大「突圍而出」逃入科學館，被控暴動罪。5人承認暴動罪，被判囚15至19個月。律政司不滿刑期過輕提出覆核，早前在高等法院進行聆訊，法官最後指雖然原審官原則性犯錯，但由於各人即將出獄，故駁回律政司申請。法官今（1日）頒下判詞，當中提到律政司認為原審法官陳廣池過度強調各被告非暴動策劃者，又猜測各人只是「受害人」，而暴動另有「幕後黑手」，這會影響對各人的個人罪責判斷。
29 Nov 2023法庭線#8713
9.21元朗｜涉因政見「私了」兩男子 中年婦暴動、傷人等4罪成判囚5年半
On 21 September 2019, members of the public in Yuen Long held an event marking two months since 7.21. Two drunk men were allegedly assaulted after attempting to attack passers-by. A middle-aged woman was accused of striking the two men with a retractable banner stand and, when police went to arrest her, throwing out of a window the sports shoes she had worn at the scene. After trial, she was convicted on four charges, including riot, wounding with intent and perverting the course of justice, and was sentenced to five and a half years’ imprisonment at the District Court on Wednesday (29th). Judge Anthony Kai On Kwok said the two victims had not directly provoked the incident, but their conduct had inflamed the emotions of those at the scene and was highly unwise. However, regardless of how fierce or offensive the victims’ remarks were, the assailants’ actions could not be lawful. The judge described vigilante action as intimidation, silencing and lawlessness. Regarding the defendant’s act of throwing the sports shoes out of the window, the judge said it weakened the overall strength of the evidence and constituted unequivocal perversion of the course of justice.
2019 年 9 月 21 日，巿民在元朗發起 7.21 兩個月紀念活動，兩名醉漢涉企圖襲擊途人而遭「私了」。一名中年婦被指用易拉架擊打兩人，其後在警方上門拘捕時，將案發時所穿的運動鞋拋出窗外。經審訊後，她被裁定暴動、有意圖傷人及妨礙司法公正共 4 罪成，周三（29 日）在區域法院被判監禁 5 年半。
法官郭啟安指，兩名事主並非直接挑釁，但其行為激化現場人士情緒，非常不智。但即使事主言論如何激烈火爆、不堪入耳，施襲者行為都不可能合法，形容「私了」是恫嚇、滅聲及無法無天的行為。至於被告將運動鞋拋出窗外，法官認為會削弱整體證據力度，屬不折不扣的妨礙司法公正。
28 Nov 2023法庭線#8707
19歲青年認刀斬「八道餐廳」店主 判無限期醫院令 官：做法符公眾利益
In August 2022, an unemployed 19-year-old man surnamed Fung was accused of entering the “yellow shop” restaurant Ba Dao Restaurant in Tsz Wan Shan and suddenly attacking the female owner with a knife. After his arrest, another fruit knife was found on him at the police station. He pleaded guilty to wounding with intent, commonly known as “wounding 17”, and possession of an offensive weapon in a public place. He was sentenced to an indefinite hospital order at the District Court on Tuesday (28th). Judge Wong Si-lai cited mitigation submissions that the defendant had been bullied and sexually assaulted, and that social incidents had triggered his hatred of bullies, leading him to commit the offence. The defendant and the victim did not know each other; without the intervention of a passer-by who subdued him, the victim would have suffered more serious injuries. The judge also cited a psychiatric report stating that the defendant had a very high propensity for violence and posed a very high risk to the public. She therefore adopted the report’s recommendation and imposed an indefinite hospital order, saying that the decision was in the public interest.
2022 年 8 月，19 歲無業馮姓男子，被指進入慈雲山「黃店」食肆「八道餐廳」後，用刀突襲老闆娘，被捕後在警署再被搜出一把生果刀。他承認俗稱「傷人 17」的有意圖而傷人罪及公眾地方管武兩罪，周二（28 日）在區域法院被判處無限期醫院令。
法官王詩麗引述求情指，被告曾遭欺凌和性侵，因社會事件引爆他對欺凌者的憎恨而犯案；被告與事主互不相識，若非途人見義勇為制服他，事主必會受到更嚴重傷害。
官另引述精神科報告指，被告有極高暴力傾向，對公眾構成很高風險，故採納報告建議，判處無限期醫院令，認為做法符合公眾利益。
Translations are supplied by the source workbook. Consult the original reporting for context.
