DQ案中的律師辯護

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DQ案中的律師辯護

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今次DQ案涉及複雜法律觀點,各被告都由交代律師作辯,當中的一些辯詞頗為有趣。現在較多人提及的「今日立法嚟宣佈你尋日違法」說法明顯地是政治論述,而非法律論述。它沒有被被告律師團隊採用。

但李柱銘嘗試以基本法104條釋法等於修法,不能追溯作抗辯(註一)。它被法官指之前案例已清楚說明,李柱銘不應在此點上糾纏。

This point is therefore simply not open to Mr Lee to argue.

陳文敏和戴啟思嘗試以宣誓的古老傳統說明它帶有政治性質,因此應該當為一儀式從輕處理─should be regarded as a mere formality。但區慶祥引用釋法,指它是憲制責任,而且,他引用案例,認為它是其他地區的普通法也如是 ─ with reference to the common law authorities therein. 。

在法庭應否介入的問題上,由於法庭認為宣誓屬憲政責任,所以它認為有權介入 ─ what is at stake is the compliance of a constitutional requirement of great significance.。(註四)

在是否牴觸國際人權公約和言論自由上,區慶祥指出,其必須在現行法律之下 ─ unless “prescribed by law” ,因此相當不客氣地批評李柱銘 ─ “so vague and uncertain”。(註五)區慶祥甚至嘲笑李柱銘的邏輯。(註六)

區慶祥接納了辯方律師的請求,civil standard of proof of balance of probabilities ,他同意要客觀地考慮個案─ viewed objectively, he or she declined or neglected to take the LegCo Oath(註七)。 但這很痛苦,被告的個人主觀意圖不是抗辯理由 ─ Hence, evidence on such subjective intention, thought process or meaning are irrelevant to the object exercise.。(註八)

戴啟思為羅冠聰辯護時表示羅沒有主張港獨就得啦,但明顯地本案與是否港獨無關。(註九)羅冠聰也寫了一份證人陳述書,表示他不是批評現行政府和中國政權 ─ were not intended to criticize either the Hong Kong Special Administrative Region Government or the People’s Republic of China.(註十),但被區慶祥抄稱(註十一)。

最痛苦的是劉小麗的法庭辯護。她的律師說:“ In particular, she now maintained that by taking the oath at a slow pace, she wished to “contrast with some LegCo members that [she] was indeed solemn and sincere and was taking [her] oath seriously.””

但被控方引用:“於2016年10月13日,劉女士在臉書(Facebook)刊登一篇文章說明她在宣誓過程中所作的行為。同日在蘋果日報刊登的一篇報導也登載了她的說明。”

The Plaintiffs now submit that this is a clear case that, objectively viewed, Ms Lau did not genuinely and faithfully accept and thus bind and commit herself to the obligations pledged in the LegCo Oath.
157. (法官)I agree.

因此, 法官同意了控方的指控。

姚松炎的律師辯護也很大鑊。秘書處告訴了他, 加插字眼不成, 叫他看文件。他的證人陳述書表示:對方沒有影印給他。

210. With respect, this could not assist Mr Yiu at all:

(1) Ignorance or misunderstanding of the law is never a good excuse to justify an act which is legally invalid.
(2) Further, whilst the court looks only at the objective effect of Mr Yiu’s words and conduct, it is worth noting that Mr Yiu was, at the material times, fully aware of the existence of Hartmann J’s judgment in Leung Kwok Hung v Legislative Council Secretariat, supra, and that he was reminded by the Clerk on 20 September 2016 that he should “read the judgment of Mr Justice Hartmann” if he had any doubt. The fact that “no copies of that judgment were handed out” to the members is no excuse for not reading it, since it is available online to everyone and Mr Yiu was intending to take the risk of adding words to his LegCo Oath.

後記

對於政治審判和法庭抗爭,前中策組的雷競璇(註12)說了一個故事。他在中大時與方蘇等同學反對殖民地示威,被拉上法庭。法官問他們認不認罪,雷競璇當代表,表示不認。法官問,為什麼?雷競璇答:「反對殖民地沒有錯。」 法官說:「這不是法律答辯,入罪。」他們不服上訴。上訴法官問他們的上訴理由。雷競璇答:「反對殖民地沒有錯。」法官說:「這不是上訴理由,維持原判。」前後不足5分鐘。

區慶祥在今次的判詞裡,尺度收得十分緊。泛民議員們可能需要親自閱讀。

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附錄

註一

第一百零四條
#香港特別行政區行政長官、主要官員、行政會議成員、立法會議員、各級法院法官和其他司法人員在就職時必須依法宣誓擁護中華人民共和國香港特別行政區基本法,效忠中華人民共和國香港特別行政區。

第一百五十八條
本法的解釋權屬於全國人民代表大會常務委員會。

全國人民代表大會常務委員會授權香港特別行政區法院在審理案件時對本法關於香港特別行政區自治範圍內的條款自行解釋。

香港特別行政區法院在審理案件時對本法的其他條款也可解釋。但如香港特別行政區法院在審理案件時需要對本法關於中央人民政府管理的事務或中央和香港特別行政區關係的條款進行解釋,而該條款的解釋又影響到案件的判決,在對該案件作出不可上訴的終局判決前,應由香港特別行政區終審法院請全國人民代表大會常務委員會對有關條款作出解釋。如全國人民代表大會常務委員會作出解釋,香港特別行政區法院在引用該條款時,應以全國人民代表大會常務委員會的解釋為準。但在此以前作出的判決不受影響。

全國人民代表大會常務委員會在對本法進行解釋前,徵詢其所屬的香港特別行政區基本法委員會的意見。

註二

20. The Interpretation as to the true and proper meaning of BL104 is binding on all the courts in Hong Kong. See: Director of Immigration v Chong Fong Yuen (2001) 4 HKCFAR 211 at 222G-H, per Li CJ; the CA Judgment, paragraphs 8, 29, 53 - 58; the CFI Judgment, paragraph 20.
21. In this respect, Mr Lee SC (for Mr Leung) seeks to contend in these proceedings that the Interpretation is not a true and proper interpretation of BL104 as envisaged under Article 158 of the BL, but amounts to an amendment of BL104. As such, it does not and cannot operate retrospectively.
22. However, the Court of Appeal in the CA Judgment at paragraphs 53 - 59, in rejecting a similar argument, has concluded that the Interpretation provides the true and proper meaning of BL104 and takes effect from 1 July 1997. This conclusion is binding on this court. This point is therefore simply not open to Mr Lee to argue.

註三

53. This is in any event also consistent with the common law position that the law requires the oath taker to genuinely believe in the pledges of the oath as this court has observed at paragraphs 30 - 32 in the CFI Judgment with reference to the common law authorities therein.

註四

57. It is therefore incorrect to say that the court in determining whether there is “decline” or “neglect” by a member-elect to take the oath in failing to comply with the legal requirements must in general give a wide margin of deference and great weight to the President or the Clerk’s decision in this respect. The extent of the relevance, where appropriate, of the oath administrator’s decision to the court’s determination of the question of the strict legal compliance of a subject oath taking has already been addressed by the learned Chief Judge in the CA Judgment at paragraphs 39 and 40 as follows:
“39. In the final analysis, what is at stake is the compliance of a constitutional requirement of great significance. In any given set of facts, this can admit of one correct answer only. There is no room for a court to simply sit back without correcting an answer given by the oath administrator which the court considers to be wrong, at the expense of the constitutional requirement. What is in issue is squarely a judicial matter which the courts alone are given the judicial power of the Special Administrative Region under the Basic Law to determine. What is involved is not an ordinary judicial review type of situation where the court only conducts a Wednesbury unreasonableness review. Rather, there can be only one right answer when the issue of compliance with the constitutional requirement is raised and nothing short of a full merit review will suffice. The court, according to the Basic Law, is the ordained organ to determine the question.

註五

60. As provided under Article 39(2) of the BL, these rights shall not be restricted unless “prescribed by law”. Mr Lee argues that the present requirements of oath taking are “so vague and uncertain” that they fail to meet the “prescribed by law” requirement.

註六

63. With the greatest respect to Mr Lee, I am unable to accept these startling submissions.
64. Mr Lee’s submissions, put to its logical conclusion, amount to saying that the court could declare BL104, which itself is a provision of our constitution, to be “unconstitutional” if it does not meet the “prescribed by law” and proportionality requirements.

註七

72. The court would adopt the civil standard of proof of balance of probabilities in determining whether the Defendants declined or neglected to take the LegCo. However, in doing so, I accept the submissions by the leading counsel for Mr Law, Ms Lau and Mr Yiu that, in light of the importance of the question, it requires cogent evidence to find on the balance of probabilities that objectively the Defendants did decline or neglect to take the LegCo Oath.
73. Bearing all the above principles in mind, I would now look at each of the Defendants case in turn to determine whether, viewed objectively, he or she declined or neglected to take the LegCo Oath.

註八

227. As I have repeatedly explained above, given the objective test, it is not necessary as a matter of law to find a specific intention to break or not to comply with the specific legal requirements relevant to oath taking. It is sufficient to show that the oath taker intended to adopt a particular way, conduct or manner to take the LegCo Oath, and that particular way, conduct and manner of taking the oath objectively assessed do not comply with the relevant legal requirements.

102. As the Court of Appeal has emphasized in the CA Judgment, the court adopts an objective assessment of the evidence relevant to the oath taking to determine whether the oath taken is compliant with the legal requirements. As I mentioned above, in adopting the objective assessment, the court is to determine what a reasonable person would objectively understand the meaning from the words, conducts and manner adopted by the oath taker in taking the oath. In that exercise, the court must also apply a degree of common sense. However, in the objective assessment, the court is not concerned with the subjective intention of the oath taker in adopting the subject words, conducts and manner or the subjective meaning the oath taker seeks to accord to those words, conducts and manner. Hence, evidence on such subjective intention, thought process or meaning are irrelevant to the object exercise.

註九

97. Second, linked with the above contentions, Mr Dykes appears also to submit that, given that the historical purpose of taking an oath of allegiance in England is to avert acts of sedition and subversion, as long as Mr Law is not advocating independence of Hong Kong, there would be no infringement of the allegiance obligations in the LegCo Oath. Objectively the court cannot and should not conclude that he did not faithfully and sincerely believe in and commit to those obligations as Mr Law, says Mr Dykes, does not advocate Hong Kong independence.
98. I must also reject this submission. The law requires, among others, the oath taker to faithfully and sincerely believe in and commit himself to the allegiance obligations in the LegCo Oath. This is a question that would be assessed objectively by looking at all the relevant matters pertaining to it. Someone who advocates and supports independence of Hong Kong would obviously be regarded as not having a genuine and sincere intention to commit himself to those allegiances for the reasons already explained in the CFI and CA Judgments. However, as a matter of general principle, this cannot be the only basis or circumstances where the court could conclude that the oath taker has failed to show objectively the requisite faithful and sincere belief and commitment. It must be open to the court to find the same when appropriate in other circumstances.

註十

99. Third, Mr Law has filed an affirmation in this application seeking to explain what he now said to be the real meaning and intention behind making the Opening and Closing Statements, and in reading out the LegCo Oath in the way as he did. In gist, he explained that:
(1) The words and sentences he used in the Opening Statement were not intended to criticize either the Hong Kong Special Administrative Region Government or the People’s Republic of China.

註十一

(2) In pronouncing in “the Opening Statement” that “但今日呢個神聖嘅儀式,已經淪為政權嘅工具,強行令民意代表屈服喺制度同埋極權之下”

註十二

中策組聘雷競璇研「特別項目」

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