5 Sept 2023法庭線#8325
終院裁定須承認同性伴侶關係 婚姻平權協會：重要勝利 盼替代框架與婚姻權利相同
Jimmy Sham, a member of Rainbow Action and former convenor of the Civil Human Rights Front, earlier filed a final appeal over Hong Kong law’s failure to recognise same-sex marriages conducted overseas. The Court of Final Appeal ruled on Tuesday (the 5th) that Sham had partly succeeded, finding that the government had not established an alternative framework for the legal recognition of same-sex partnerships, in violation of rights enjoyed under the Bill of Rights. (See separate report.)
The Marriage Equality Association said in a statement that the ruling was an important victory, making clear that Hong Kong law must respect and protect same-sex couples. It called on the government to establish a system as soon as possible to recognise the legal status of same-sex couples. Barrister Azan Aziz Marwah said the government could refer to the United Kingdom’s civil partnership system and that, to accommodate the interests of all parties, any alternative framework established by the government should provide the same rights as marriage between opposite-sex couples.
Travas, who had planned to marry overseas, said he was “overjoyed” and hoped Hong Kong could take a further step and accept same-sex marriage. He said that, as a Hong Konger born and raised in the city, he also hoped to be able to mark important moments in Hong Kong. Yiu Tung Suen, a professor at The Chinese University of Hong Kong, said the judgment was an important step for Hong Kong and Asia, but expressed disappointment that the Court of Final Appeal was unwilling to recognise same-sex marriage. Citing research showing that 60% of the public currently supports same-sex marriage, the professor hoped the government would take note, and said that LGBT rights were also an important indicator for enhancing Hong Kong’s global competitiveness and attracting talent from abroad.
「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海外同性婚姻提終極上訴，終院周二（5 日）裁定岑子杰部分勝訴，指政府並未確立替代框架、讓同性伴侶關係獲法律承認，違反《人權法案》享有的權利。（見另稿）。
婚姻平權協會發聲明，形容裁決是重要勝利，明確指出香港法律必須尊重和保障同性伴侶，呼籲政府盡快制定制度，承認同性伴侶的法律地位。大律師馬亞山認為，政府可參考英國的「民事結合」，而為了符合各方利益，政府訂立的替代框架，應與異性婚姻權利相同。
原來打算外地結婚的同志 Travas 直言「喜出望外」，盼香港可再行前一步，接納同性婚姻，指自己作為土生土長的港人，都希望可以在香港實現重要時刻。中大教授孫耀東則指，判決對本港以至亞洲是重要一步，但對終院不願承認同婚感失望，提到研究顯示現時有 6 成市民支持同志婚姻，希望政府正視，又指同志權利對提升本港的全球競爭力及向外招攬人才，都是重要指標。
4 Sept 2023法庭線#8318
9.2「港鐵超合作運動」｜兩男生公眾妨擾無罪 律政司提上訴被即日駁回
On 2 September 2019, members of the public responded to the “MTR Super Cooperation Movement”. Three men were accused of obstructing MTR operations that day and charged with public nuisance. Two of them were found not guilty of public nuisance in May 2021. The Department of Justice, dissatisfied with the ruling, lodged an appeal by way of case stated. The case was heard at the High Court on Monday (the 4th). After hearing submissions from both sides, Judge Cheung Wai-ling dismissed the Department of Justice’s appeal on the same day, with the reasons for judgment to be handed down later.
The Department of Justice argued that the trial magistrate had failed to consider the principle of joint criminal liability, amounting to an error of law. It asked the court to consider remitting the case to the magistrate for reconsideration. The respondent, however, argued that the prosecution had never asked the magistrate at trial to consider that principle. Had it done so, the defence’s line of questioning might have been different, and the defendants might also have given evidence, which it said would affect fairness.
After hearing both sides’ submissions, the judge refused the appeal on the same day. She said that although the charge stated that the two male students had interfered with trains “together with other persons”, the Department of Justice also agreed that the magistrate had not been told during the trial about the parties acting jointly or how their conduct constituted joint action. It was therefore “quite reasonable” for the magistrate not to consider the matter, and the ruling was not contrary to common sense.
2019 年 9 月 2 日，有市民響應「港鐵超合作運動」，3 男被指當日作出阻礙港鐵運作的行為，控以公眾妨擾罪。當中二人於 2021 年 5 月獲裁公眾妨擾罪名不成立，律政司不服裁決，以案件呈述方式提出上訴，案件周一（4 日）於高院處理。法官張慧玲聽畢雙方陳詞，即日駁回律政司上訴，擇日頒下判詞。
律政司一方提出，原審裁判官沒有考慮共同犯罪原則，構成法律上出錯，希望法庭考慮發還案件予原審官，讓其再作考慮。但答辯一方認為，控方原審時從未提出裁判官要考慮此原則，若當時提出，辯方盤問方向或有不同，被告亦可能作供，認為影響公平性。
法官聽畢雙方陳詞，即日拒批上訴，指即使控罪列明兩男生「連同其他人」干擾列車，但律政司亦同意，審訊時沒有向裁判官講及各人共同行事，及其行為如何構成共同行事，裁判官不作考慮亦「好合理」，認為其裁斷並非有悖常理。
4 Sept 2023法庭線#8319
首宗涉示威違限聚令案 李卓人等4人申終極上訴許可被駁回
On May 1, 2020, Labour Party member Lee Cheuk-yan, League of Social Democrats member Leung Kwok-hung and six others marched in groups of four to petition outside the Government Headquarters. They were convicted of breaching the gathering restriction order and sentenced to 14 days’ imprisonment, suspended for 18 months. It was the first gathering-restriction-order case involving a demonstration in which defendants who pleaded not guilty were convicted. In 2022, the High Court refused to issue a certificate for an appeal to the Court of Final Appeal. Four Labour Party members then directly applied to the Court of Final Appeal for leave to appeal. The Court heard the application on Monday (the 4th). After a hearing lasting about 20 minutes, three judges heard submissions from the applicants and refused leave, with the judgment to be handed down on a date to be fixed.
Lee Cheuk-yan, who is currently remanded in custody in connection with the Hong Kong Alliance case, was taken to the Court of Final Appeal in a prison van in the morning. In addition to using an inflatable tunnel, correctional officers this time also used grey curtain material to screen the van’s access route. In court, Lee appeared in good spirits, wearing a grey-black long-sleeved shirt. He waved to members of the public in the gallery and chatted with League of Social Democrats member Tsang Kin-shing, known as “Ah Niu”. Lee’s wife, former Hong Kong Confederation of Trade Unions general secretary Elizabeth Yin Ngor Tang, was also in court. Lee appeared relaxed after hearing the decision and blew kisses to members of the public in the gallery.
2020 年五一勞動節，工黨李卓人、社民連梁國雄等 8 人，以 4 人一組遊行到政總外請願，被裁定違「限聚令」罪成，判囚 14 天、緩刑一年半，是首宗涉及示威、被告不認罪被裁罪成的限聚令案件。高院於 2022 年拒批上訴至終審法院證明書，工黨 4 人直接向終審法院申請上訴許可。終院周一（4 日）開庭處理，聆訊歷時約 20 分鐘，3 名法官聽畢申請方陳詞，拒絕批出許可，擇日頒判詞。
因支聯會案正還押的李卓人，早上由囚車押送到終院。懲教人員除了用充氣隧道，今次亦使用灰色窗簾布遮蓋囚車出入通道。庭內見李卓人精神不俗，穿灰黑色長袖恤衫，與旁聽人士揮手，又與社民連成員「阿牛」曾健成聊天。李卓人妻子、前「職工盟」總幹事鄧燕娥亦有到庭。李卓人聞判神情輕鬆，向旁聽人士飛吻。
31 Aug 2023獨媒#8302
8.31四周年 共22人被起訴太子站暴動及禁錮等罪 6人已被判囚
On the night of 31 August four years ago, demonstrators and passengers argued at Prince Edward station. A large number of police officers then rushed onto the platform and into train carriages to make arrests, and were alleged to have beaten members of the public with batons. Over the past four years, 22 people have been charged with offences including taking part in a riot, unlawful imprisonment and assaulting police at Prince Edward station. Six have been sentenced: five were imprisoned for between one year and five and a half years, while one was sent to a training centre. The other 16 were charged in May this year and are awaiting trial. Court trials that have taken place and a report by the Independent Police Complaints Council both mentioned that male passengers had held hammers and box cutters and attacked demonstrators at the time of the incident. To date, however, only demonstrators have been charged.
四年前的8月31日晚，太子站有示威者與乘客發生爭執，其後大批警員衝入月台及車廂進行拘捕行動，被指揮棍毆打市民。四年過去，至今共22人被控在太子站參與暴動、非法禁錮及襲警等罪，其中6人已判刑，5人被判囚一年至5年半，一人判教導所。另外16人於今年5月被起訴，目前候審。已進行的法庭審訊以及監警會報告，均提及案發時有男乘客曾手持鐵鎚及鎅刀，並攻擊示威者。惟至今僅示威者一方被起訴。
31 Aug 2023法庭線#8303
民間電台街站掛橫額聲援在囚、罪成罰款 曾健成向官稱其裁決「係香港無聲嘅未來」
League of Social Democrats member “Ah Niu” Tsang Kin-shing and two other Citizen’s Radio volunteers were accused of setting up a street station and displaying banners, posters and other items in Causeway Bay in May 2022 in support of prisoners without the Lands Department’s approval. After trial, all three were convicted of “displaying/affixing bills or posters on government land without permission”, fined $2,500 each, and ordered to share removal costs of $157.4.
In delivering her ruling, magistrate Vivian Wai Han Ho said that the process of the defendants’ setting up the street station showed that the items were definitely displayed to a certain extent “permanently, or with habitual regularity”. She also said there was no indication of bias in enforcement. Tsang Kin-shing told the magistrate that following the convictions, it would be difficult to obtain the Lands Department’s approval, saying: “It will be very difficult to set up street stations in Hong Kong in the future,” and “Can’t you tell us which way to go?”
Tsang also asked the magistrate to state in her written judgment that the Lands Department should not “create excuses to prevent people from applying”. The magistrate said she would not make any further ruling. Tsang subsequently said: “Your judgment today… is Hong Kong’s silent future.”
社民連成員「阿牛」曾健成及另外兩名「民間電台」義工，被指 2022 年 5 月在銅鑼灣，未得地政總署批准下，擺設街站並展示橫額、海報等聲援在囚者，被控「未經准許而在政府土地展示／張貼招貼或海報」，經審訊後均被裁定罪成，各被判罰 2,500 元，另須共同承擔 157.4 元移除費。
裁判官何慧嫻裁決時指，從被告設置街站過程等可見，物品絕對屬某程度上「永久，或具慣常規律性」展示，又指看不見執法上有偏頗；曾健成則向官表示，是次被判罪成後，因難以得到地政總署批准，「日後香港係好難可以擺到街站」、「你話唔話到條路畀我哋聽？」
曾又向官提出，希望她在判詞「寫明地政署係應該唔好巧立明目，唔畀人申請」，官則指沒進一步裁決；曾之後表示「你今日嘅判決…就係香港無聲嘅未來。」
31 Aug 2023法庭線#8304
8.18流水式集會｜黎智英、吳靄儀等7人獲撤組織集結罪 律政司申上訴至終院證明書
On 18 August 2019, the Civil Human Rights Front held a flowing assembly at Victoria Park. After trial, seven pro-democracy figures, including Jimmy Lai and Audrey Eu, were convicted of organising an unauthorized assembly and knowingly participating in an unauthorized assembly. They were sentenced to between eight and 18 months’ imprisonment, while Martin Lee, Audrey Eu and Albert Ho were given suspended sentences.
The seven had earlier lodged appeals. Their appeals against the convictions for organising an unauthorized assembly were allowed. Jimmy Lai, Lee Cheuk-yan, Leung Kwok-hung and Cyd Ho had their sentences reduced by between three and six months, and the four had already completed their sentences in this case. The Justice Department told The Witness on Thursday (31st) that it had applied to the Court of Appeal for a certificate to appeal to the Court of Final Appeal, certifying that the Court of Appeal’s decision involved points of law of great and general importance. According to the Judiciary’s website, the case has not yet been scheduled for hearing.
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「明知而參與未經批准集結」罪成，判囚 8 至 18 個月，其中李柱銘、吳靄儀、何俊仁獲判緩刑。
7 人早前提上訴，就「組織未經批准集結」定罪上訴得直，黎智英、李卓人、梁國雄及何秀蘭獲減刑 3 至 6 個月，4 人早前已服畢本案刑期。律政司周四（31 日）回覆《法庭線》指，已向上訴庭申請上訴至終院的證明書，以證明上訴庭的決定，涉及重大而廣泛重要性的法律論點。根據司法機構網站，案件暫未排期聆訊。
30 Aug 2023法庭線#8289
涉為還押者冒簽令狀 指控受警員襲擊入稟索償 退休婦認兩罪判囚5個月
A 64-year-old retired woman and a 33-year-old man were alleged to have signed writs of summons on behalf of two men remanded at Lai Chi Kok Reception Centre, helping them file claims against the police over alleged assaults by police officers. Four people were charged with three offences of conspiracy to make false documents and intending to pervert the course of justice. The retired woman had earlier pleaded guilty to all the charges and was sentenced to five months in prison at West Kowloon Magistrates’ Courts on Wednesday (the 30th). Acting Principal Magistrate Veronica Shuk Han Heung said the case was serious and imprisonment was the only appropriate punishment. For the two conspiracy to make false documents offences, the starting point was three months’ imprisonment; after a guilty-plea reduction, she was sentenced to two months. On the charge of intending to pervert the course of justice, the magistrate said she committed the offence the day after being arrested by police and released on bail. The circumstances were serious and showed disregard for the law. The starting point was six months’ imprisonment; after the guilty-plea reduction, she was sentenced to four months. The sentences for the three offences were partly consecutive, resulting in a total sentence of five months. Two other defendants in the same case are remanded in connection with the “explosives at a border crossing case” and will enter pleas in this case in early October.
一名 64 歲退休婦與 33 歲男子，被指為兩名正在荔枝角收押所還押的男子，冒簽傳訊令狀，助兩人入稟向警方索償。4 人被控 3 項「串謀製造虛假文書」和「意圖妨礙司法公正」罪。退休婦早前承認全部控罪，周三（30 日）在西九龍裁判法院被判囚 5 個月。
署理主任裁判官香淑嫻指，本案性質嚴重，監禁為唯一恰當刑罰。就兩項「串謀製造虛假文書罪」以監禁 3 個月作量刑起點，認罪扣減後判囚兩個月。
至於意圖妨礙司法公正罪，裁判官指她當時被警方拘捕後獲保釋，翌日即干犯此罪，情節嚴重、目無法紀，以監禁 6 個月作起點，認罪扣減後判囚 4 個月。3 罪部分刑期分開執行，共判囚 5 個月。同案 2 被告另涉「口岸爆炸品案」還押，將於 10 月初就本案答辯。
29 Aug 2023法庭線#8278
3男女涉去年六四多處噴「六四」字樣 認8項刑事毀壞 押後9.21判刑
Three 22-year-olds were charged with 12 counts of criminal damage over damage to electrical boxes, lamp posts and other public facilities at multiple locations in Tsuen Wan and Kowloon during last year’s June 4 anniversary and its eve. The three pleaded guilty to eight charges at West Kowloon Magistrates’ Courts on Tuesday (29th), while the prosecution withdrew the remaining four charges.
The facts of the case stated that 222 instances of “June 4” graffiti were found on public facilities across Hong Kong between June 3 and June 4, 2022. After reviewing CCTV footage, police found that the three defendants had spray-painted graffiti at multiple locations in the early hours of June 4. Police subsequently seized the defendants’ mobile phones and found that the second defendant had sent a message to the first defendant saying they wanted to “spray ‘June 4’ until it was all over the streets”.
Acting Principal Magistrate Veronica Shuk Han Heung adjourned the case to Sept. 21 for sentencing. Background and community service order reports were requested for the three defendants, and the court reiterated that all sentencing options remained open. The three were also ordered to reimburse the government HK$417 in cleaning costs.
3 名 22 歲男女涉於去年六四及前夕，在荃灣及九龍多處損壞電源箱、燈柱等公共設施，被控共 12 項刑事毀壞罪，3 人周二（29 日）在西九龍裁判法院承認 8 項控罪，餘下 4 項控罪獲控方撤控。
案情指，2022 年 6 月 3 日、 6 月 4 日期間，全港的公共設施共發現 222 個「六四」字樣的噴漆，警方翻看閉路電視片段發現本案 3 名被告 6 月 4 日凌晨在多處塗鴉。警方其後檢取被告手機，發現次被告曾向首被告發訊息稱，想「噴『六四』噴到周街都係」。
署理主任裁判官香淑嫻押後案件至 9 月 21 日判刑，期間為 3 人索取背景及社會服務令報告，重申所有有判刑選項均開放，另下令 3 人向政府賠償 417 元清潔費。
29 Aug 2023法庭線#8279
11.11馬鞍山火燒人｜圍觀夫婦擾亂秩序原獲裁無罪 高院發還考慮後被裁罪成囚5周
On 11 November 2019, a middle-aged man in Ma On Shan chased and berated people in black whom he suspected of damaging MTR facilities. He later got into an argument with others before flammable liquid was poured over him and he was set on fire. A couple who were alleged to have shouted remarks including “Go back to the Greater Bay Area” at the man were acquitted of disorderly conduct. The Department of Justice earlier appealed against the decision, and the High Court remitted the case to the trial court for reconsideration.
The trial magistrate Arthur Hei Wei Lam ruled at Eastern Magistrates’ Court on Tuesday (29th) that the two were guilty and sentenced them to five weeks’ imprisonment. Lam said some people at the scene were highly agitated and berated the victim, and that the defendants’ remarks had added fuel to the fire.
Lam added that the charge was preventive in nature and considered that the defendants’ conduct had created a real and imminent risk. “Regardless of their political views, the conduct of both defendants must be condemned,” Lam said, adding that immediate imprisonment was required. The sentences were reduced at the court’s discretion in view of the Department of Justice’s delay in drafting its appeal documents. The defendants’ applications for bail pending appeal were refused.
2019 年 11 月 11 日，一名中年漢在馬鞍山，追罵疑破壞港鐵設施的黑衣人，及後再與人爭執，被淋潑易燃液體及點火。一對夫婦被指曾叫中年漢「返大灣區啦」等，獲裁定擾亂秩序罪名不成立。律政司早前不服裁決提上訴，高院發還原審重新考慮裁決。
原審裁判官林希維周二（29 日）在東區裁判法院，裁定兩人罪名成立，判囚 5 周。林指，部分現場人士情緒高漲、指罵事主，被告說話是火上加油。
林續指，控罪屬預防性質，認為被告行為確能造成實際及逼切風險，「不論政見如何，兩人行為都要被譴責」，須判處即時監禁，考慮律政司草擬上訴稿件延誤而酌情減刑。被告申保釋候上訴，被拒絕。
28 Aug 2023法庭線#8271
六旬翁否認街頭無牌奏二胡 指「無休止控訴」向控方索償100萬元 10.24裁決
Lee Kai-sun, a man in his sixties who was previously charged with performing “Glory to Hong Kong” on the erhu without a licence and was eventually acquitted, is alleged to have performed and raised funds without a licence in Tai Wai, Mong Kok and Central between 2021 and 2022. He was summoned on seven charges. The case continued at Sha Tin Magistrates’ Courts on Monday (the 28th).n
Lee “counter-sued” the prosecution in court, saying that over the past four years he had attended hearings at different courts because of his street performances, describing it as “endless prosecution”. He said the prosecution’s submission of further documents had placed him under great pressure and caused him to suffer a mental breakdown, adding, “It appears the prosecution will not stop until it has put me to death.” He therefore sought HK$1 million in compensation from the prosecution. Magistrate CHAN Wai-mun adjourned the case until Oct. 24 for a ruling.
曾因以二胡演奏《願榮光》被票控無牌演奏，最終獲裁無罪的六旬翁李解新，被指於 2021 至 2022 年期間，在大圍、旺角及中環無牌演奏及籌款，共被票控 7 罪，案件周一（28 日）在沙田裁判法院續審。
李解新在庭上「反訴」控方，指 4 年來因街頭奏樂，到不同法院應訊，形容是「無休止的控訴」。他續指，控方再提交多項文件，使自己承受很大壓力、精神崩潰，「看來控方是不把我置於死地而不罷休」，故向控方索償 100 萬元。裁判官陳慧敏將案件押至 10 月 24 日裁決。
Translations are supplied by the source workbook. Consult the original reporting for context.
