關於 rule 40 criminal procedure ，我們在網路上蒐集到這些相關的討論、資訊與評價

叱吒風雲的駱應淦大狀，型到一個點。

"Very often, these young people are inflicted with serious injuries in the process of arrest and thereafter. It would be hard to find any decent, sensible and law-abiding individual who champions these young people simply because they support criminal acts and the flouting of the law. But many, including large sections of the local public and numerous members of the international community, do sympathize with our young people who are prepared to forgo their own liberty, security and even their lives to give voice to a cause supported by many to change the injustices of the current establishment, which point-blank refuses to listen and to give way."

Here is what the brightest legal mind in HK has said, in full:

Having practised criminal law in Hong Kong for 40 years, and defended individuals for a full array of crimes, ranging from the most heinous crimes of violence to massive commercial frauds, I could lavishly chronicle the trials and tribulations of being a criminal barrister. I can say that the challenges in the criminal Bar are often rewarded with the sense of triumph in seeing justice achieved when, more often than not, conviction is returned on good evidence or when the liberty of an accused is secured because the evidence is not up to the mark. In either event there is an adherence to a standard, a procedure, which people can trust, and do trust. This is an important facet of our treasured Rule of Law.

Experience at the criminal Bar carries with it the burden of a delicate sensitivity to any ruffling of law and order. The current conflicts in our society are therefore a particular cause of pain, conflicts which see many young people, including many juveniles still in secondary schools, finding themselves on the wrong side of the law, having committed acts of road obstruction, serious vandalism, sometimes even physical assault causing others harm. Very often, these young people are inflicted with serious injuries in the process of arrest and thereafter. It would be hard to find any decent, sensible and law-abiding individual who champions these young people simply because they support criminal acts and the flouting of the law. But many, including large sections of the local public and numerous members of the international community, do sympathize with our young people who are prepared to forgo their own liberty, security and even their lives to give voice to a cause supported by many to change the injustices of the current establishment, which point-blank refuses to listen and to give way. It is worth remembering that the government’s ill-advised attempts to pass the much deplored extradition bill was halted only, and perversely, after many young people forcibly blocked entry into the Legislative Council due to pass the bill and engaged in violent clashes with the police. The recalcitrant stance of those who govern plays a large part in sowing the seeds of violence.

There is no doubt that violence cannot and must not be condoned, and no decent, sensible and law abiding person that I know condones the vandalism and violence which has been perpetrated by those involved in the protests. Mere condemnation, however, goes no way to help. It does not deal with the root of the problem, which lies in large part with those in government.

The problem, unfortunately, includes the police force, which executes the increasingly repressive policy of the government, and more. Since June, release of teargas by police has become order of the day; it is not difficult to find footages of police nakedly beating up a protester who has been hunted down, or freely dispensing peppar spray at close range at protesters, journalists and even a legislator. Complaints of beatings inside police stations after arrests are commonplace and reported by barristers who made legal visits. Yet, day and day out, one hears only official denial of abuse and wrongdoing (or excuses for inaction, as in the case of the 21 July incident in Yuen Long West Rail station). Shooting of an 18-year-old on 1 October was justified by the Commissioner of Police as “lawful” and “reasonable” just hours after the incident, even though basic international principles demand full inquiry and report. None of the law-breakers in uniform is being brought to account. Indeed, they cannot even be identified because they eschew any identification as required by the police’s own rules and guidelines. Arbitrary arrests abound. Ordinary citizens have been arrested for shouting abuse at the police.

No one underestimates the difficulty of the job of police in circumstances such as these, but neither reason nor restraint is being shown. The standard and procedure that we have taken pride in and taken for granted for so long, seem to have vanished. The professionalism of the police force is also severely questioned.

In such climate the Bar Association, of which I am a Council member, has in my view rightly identified the relevant legal issues and spoken out about them. It is not shameful to hold those armed with power, public authority and weaponry to account. Nor it is blind-sightedness to point out that the problem is an intractable executive. These are what the Bar Association should do in defending the Rule of Law.

《免於恐懼的自由祈禱會》
呂秉權先生的分享

#絕望中的希望 《免於恐懼的自由》祈禱會
呂秉權 兄弟分享--- #沸點即場筆錄

片段 ▶️ https://www.facebook.com/109180535767655/posts/2493494547336230?s=548400948&v=e&sfns=mo

主教、神父、各位兄弟姊妹，大家好！很感恩可以在這裏跟大家分享，大家還是平平安安。我想起一位從大陸偷偷地來香港返教會，「宗教自由行」的姊妹，她說，想不到竟然可以在街頭報佳音，如果在大陸做這事的話，一早就被拒捕了！原來，我們可以站在街上祈禱、唱聖詩，是這麼美好的事情！

今次逃犯條例的修訂，令政府有一個很大的讓步，我可以說，這是一個奇蹟、是一個神蹟！

為我們這群，一直研究中國大陸政治的朋友來說，看著所有原先的蛛絲馬跡，中央對港的方針，是沒有讓步這計劃的！我跟大家說，原本這樣的逃犯條例，是怎樣的一回事：北京和林鄭月娥，他們以為這條例必定順利通過！為什麼？

首先，立法會絕對有足夠的票數去支持、商界也在中央的操控下一一「跪低」，即使你不情願，你不願意收回你的司法覆核也好，你最好也要跪低。

第二，在民意而言，北京已經評估過香港狀況，就算最多反對聲音、最壞程度，北京原先的評估，反對者就是佔中的規模；而佔中的規模，特區政府和警方已綽綽有餘，足以瓦解這行動於無形。兼且，這幾年來，香港的警隊， 已經不再是同樣的警隊了！香港的警隊已經進化了很多。

在後勤，我們亦知道解放軍已預備好。上一次佔領行動的時候，解放軍駐港部隊的深圳後勤部隊已經演練了；他們以四人枱一個人的規模，預備進行必要的介入，但最終沒有用到，但是他們是有部署的。如果有1萬人的集會，四個人抬1人，換句話說，就是說有4萬兵力在後勤準備。今次，不要以為我們看不見明顯的徵兆；解放軍駐港部隊已經不經不覺地做了不少工作。大家可記得？山竹襲港時，市面和郊野公園有大片破壞，解放軍駐港部隊幾百人，居然越過了駐軍法，沒有通知特區政府的情況下，可以出兵幾百人，穿着制服，他們以清理郊區的名義，動員幾百人，沒有駐軍令、沒有適當程序，他們就派了幾百個解放軍來了。這一點，我自己認為是十分危險的訊號。

第三，除了因為林鄭信心爆棚外，還有中央的因素在內。如果我們只看表面的話，會以為（修例）只是林鄭個人決定。其實，逃犯條例的修訂，中央跟香港談了很多年了，他們問香港要人，要了很多年了！今次在這修訂逃犯條例的大背景下，中央政府希望「法律武器化」香港；簡單來說，就是用任何香港的程序和法律去實行國家安全，這至高無上的保障。中央想通過這條移交逃犯條例，其實是一條「萬能Key」，文匯大公的權威解讀，國內中港智囊研究多年中港移交條例，除了一般所說：大陸犯罪的人匿藏在香港、除了香港人在國內犯罪回到香港外...... 更重要的計劃，就是威脅「國家安全」的罪犯。

在文匯大公報，5月23日引用權威人士解讀：當遇到威脅國家安全的罪犯時，一般是由香港，按照香港法律程序去處理的。那換句話說，是有不一般的情況了？當不一般的情況出現了，是不是就是可以超越香港程序去處理？而在國內研究這問題的智囊，很清楚跟我們說，在中國法律上，是沒有「政治犯」的！我們從前說反革命罪犯、或現在煽動顛覆國家政權罪犯，他們並非「政治犯」，而只是三個字：刑事犯！當我們面對刑事犯的時候，是否不引渡呢？是不是用政治犯為保護罩，我們就不引渡危害國家安全的罪犯呢？國內的智囊說，國內的邏輯是相反的！正是這些人破壞國家安全，香港更不能夠成為國家安全的漏洞，更加要去移交（罪犯），這是最恐怖的。

為什麼我們覺得恐怖呢？因為我們怎樣去定義一個人危害國家安全呢？那標準是相當之闊！在內地，只要你所謂「得罪共產黨」，你做一些黨不喜歡你做的事；你批評中央、你去支援內地的宗教，也許你報導一些新聞，內地不喜歡的......很容易你就會被檢控。

以往很多人被「砌生豬肉」（誣告），用藏毒罪、用偷竊罪、用間諜罪...... 被指控，是很恐怖的情況！我們中國大陸所行的體制，是人民民主專政，簡單來說就是「專政」兩個字！

專政是什麼呢？專政就是說，當面對政府所認為的「敵人」時，就可以不需要依照法律辦事、可以越過法律。如果大家還記得，在內地發生過不少專政事件，劉霞為什麼會完全沒有在法律程序下，被剝奪人身自由、被軟禁這麼久？銅鑼灣書店的相關人士，為什麼可以在香港跟泰國等地被綁架；被綁了之後，自願被剝奪所有法律權利，不見家人，在電視機面前認罪......為什麼呢？因為當時中國政府正在實行專政。

國家主席劉少奇，用憲法的名義叫大家不可以這樣去迫死人， 到最後......他們將一個被鬥到遍體鱗傷，急需醫院治療的一個國家主席，丟在河南的一個密室，失救至死。專政還可以令十大元帥賀龍，他患有糖尿病和各種疾病；死的時候被人專政，把高質量的葡萄糖液，打進他的身體，葡萄糖液與糖尿病結合...... 令他的腎臟衰竭、身體衰竭而死。

當一個國家說自己依法治國，但隨時可以行專政的時候，香港的法律開了一扇門，與這種專政的做法接連、以國家安全名義...... 這是多麼恐怖的事呢？而這個程序去修例，就是原來的劇本！

原來的劇本亦包括，中央在年頭的時候，審視全國的形勢，去防止各種的失控，各種不穩定因素，各種的風險。國家開了全國最高省部級的領導幹部大會，有習近平在中央黨校開講，很出名的什麼灰犀牛、黑天鵝、六個穩定，就是從這會議中出來的。當時中共領導人，是很害怕一件事： 所謂的中國「逢九必亂」，逢年份有9，他們就容易有大亂，中共見證着：
1949年，國共的更替；59年，大饑荒；69年，中蘇珍寶島之戰，國家主席劉少奇被鬥死；79年，中越戰爭；89年，六四事件；99年，法輪功圍中南海；2009年，新疆七五騷亂。

2019年頭的時候，中共已經開了全國大會去防止有任何混亂的情況。他們做了很多措施，亦都分享了很多經驗怎去處理問題。當時在中央的劇本中，香港的局勢可以說：穩如泰山！沒有可能在逢九必亂的其中一亂，是沒有可能的。他們所擔心的是經濟、與及萬一出現的失業問題，中美貿易之戰，絕對不是香港的事情。

近年，中央領隊領導人對香港的研判，他們認為香港局勢是非常的大好！為什麼這樣說呢？因為全面管治權已逐步落實，立法會受到建制的加持，由於這些社運、甚至旺角騷亂的人，相繼被重判；各種不同政見的人被DQ，整個社會的公民意識越來越低；北京與林鄭政府是極有信心的，這條例，不可能不通過！習近平早年說怎樣處理群眾運動時，清楚地說到：他剛剛上台，要扭轉胡、溫時代的那種妥協作風。習近平說：不可以：小鬧小解決、大鬧大解決、不鬧不解決！他不能讓這情況持續下去！習近平任內對港的多番措施，沒有一件證明他是妥協的；除了梁振英的不連任，而當時，是因為他在建制及商界中拿不到票 。有數票的人說，取得601票已是十分困難了，不是群眾的力量造成。而今次面對6月9日103萬人大遊行，大家可以看到，林鄭與北京政府當時的不妥協，遊行完後，無論人數有多少，依然故我，條例繼續。

當我們常常會問：天主你在哪裏？天主，為什麼香港可以被人摧殘至此？不知怎樣來了一個逆轉 ！當我們很多時質疑青年是「廢青」，在612星期三，出現了一個大家都不想看見、但卻成了一個逆轉的場面！一班青年人，他們有些是寫了遺書的，決定自己去擋子彈的情況下，他們去衝擊立法會、衝擊警方防線！當然從法律來說，他們的做法是犯法的；但是從一個公義的角度，他們認為這事情不應該這樣繼續下去，所以，他們做了抗爭。而這種抗爭，竟令到已經升級變形的香港警隊，殺紅了眼，連內部評估，也認為當警方被衝擊後，出去對群眾的清場用槍、去射頭部、用各種武器去攻擊一些無辜的人；警隊的一些內部評估，也認為是過火了。是這情況令到整件事逆轉！整個國際的壓力，令到北京政府難以承受。

那原先他們的計劃是怎樣呢？在內地的電視，和平集會的鏡頭全部被刪去，被描繪成示威者衝擊警察、暴徒般襲擊，今次他們想說成香港暴徒襲擊政府，以拿取道德高地。殊不知，警方濫用武器、過度執法、逆轉了整個畫面！原本習近平的計劃：叫做「楓橋經驗」，那就是遇到群眾事件時，就地解決，矛盾不上交！煎你的皮、但內裡燒不焦；鬥你的表面，但內部不會出事......

但很可惜，今次特區政府不單止沒有「矛盾不上交」，不但上交中央、還上了國際層面；令中共面對非常大的壓力，因而出現了一個逆轉。

我認為，這是天主的眷顧、天主的神跡！

到最後，我想用一個眼神去完結我這個分享：我記得，在612過後，我跟朋友去了一所聖堂，在聖堂門口見到一對警察，虎視眈眈，還是非常強硬的態度，他們想去捉拿聖堂內的青年。我在聖堂內看見一位青年，穿著黑背心，眼神很惶恐。我問他，可要幫他買件衣服，讓他離開？他說：「不用了」，他在聖堂得到了保護，找到了他的家，真正的父親、母親。當我行出教堂外，警察的目光，好像張牙舞爪，想要抓一個孩子......

希望上主繼續眷顧我們，賜我們平安；希望傷者能得平安...... 主佑香港！

2019年6月19日晚上

▶️ 祈禱會直播 https://www.facebook.com/1764198537146061/posts/2394608974105011?s=548400948&sfns=mo

▶️再談逃犯條例修定研討會 https://www.facebook.com/hkjpcom/videos/2180158835373248?s=667412853

“Hope in despair”
sharing of Mr Lui Ping Kuen at the “freedom from fear” prayer meeting

Bishop, father, brothers and sisters:

I am so grateful to share with you all here and I am grateful that we are all safe. I think of a sister who sneaked in Hong Kong to attend church services, “Religious Individual Visit”. She was surprised that there was street caroling in Hong Kong because one will be arrested if one does this in the Mainland. It is so wonderful that we can pray and sing hymns on the street!

I can claim that it is a miracle that the government retreats on the extradition bill!

For people like us who have studied Chinese Politics for a long time, we found that the Central Government had no plan to retreat in their policy towards Hong Kong from the clues we observed. I told you what the extradition bill was about originally: Beijing and Carrie Lam thought that the bill must be passed smoothly! Why?

First of all, there were definitely enough votes in the Legislative Council to pass the bill, and the business sector also submitted under the control of the Central Government, whether you were willing or not, whether you wanted to withdraw the judicial review application or not, you’d better submit to it.

Secondly, the Central Government has assessed the views of people in Hong Kong and they thought that the worst case scenario would be similar to that of the scale of Umbrella Movement only. They believed that the HKSAR Government and the Police could handle that scale of protest easily. Moreover, Hong Kong Police Force is not the same as the one a few years ago and has improved a lot. We also knew that the People's Liberation Army was well prepared to support. The logistic unit of People's Liberation Army Hong Kong Garrison in Shenzhen has drilled during the previous occupying movement. They prepared to intervene, on a scale of 4 soldiers to remove 1 protester, when necessary. Although it was not carried out eventually, they were prepared. If there is a rally of 10 thousands people, 4 soldiers removing 1 protester, that means there are 40 thousands soldiers preparing to support. We can see significant signs that People's Liberation Army Hong Kong Garrison has done a lot when we are not aware of it. Do you still member, there was extensive damage in urban and rural areas during the strike of severe typhoon Mangkhut? A few hundred soldiers from the People's Liberation Army Hong Kong Garrison wearing their uniform, bypassing the Garrison Law and without informing the HKSAR Government, were mobilised in the name of clearing the rural areas. Ignoring the Garrison Law and proper procedure, they sent a few hundred soldiers. I think this is a very dangerous sign.

Thirdly, besides the overconfidence of Carrie Lam, the Central Government is also a key factor. On the surface, we would think this (amendment of the bill) is solely Carrie Lam’s own decision. In fact, the amendment of extradition bill has been discussed between the Central Government and the HKSAR Government for many years. They have been asking Hong Kong for people they wanted for many years! The Central Government wants to make law their weapon in Hong Kong, to put it simply, the Central Government wants to exercise national security by using any procedures and laws in Hong Kong, this is the ultimate protection. The Central Government wants to pass this extradition bill, which works for nearly anything. From the authoritative interpretation by the Wen Wei Po and Ta Kung Pao, the think tank in Mainland which has been studying extradition law between Mainland and Hong Kong for many years, that it is because, besides the situations that the criminals from the Mainland hide in Hong Kong or Hong Kong people committed offences in the Mainland and hide in Hong Kong, more importantly the criminals that threaten “national security”.

On 23 May, Wen Wei Po and Ta Kung Pao quoted interpretation from authority that it is normally handled by Hong Kong according to Hong Kong legal procedures when there are criminals that threaten national security. In other words, there are abnormal situations? Will it bypass the Hong Kong legal procedures to handle the case when abnormal situation occurs? Member of think tank in the Mainland who studies this issue told us clearly that, there is no “political offenders” under Chinese law. No matter the “counter-revolutionary” offenders in the past or the current “inciting subversion of state power” offenders, they are not “political offenders” but criminal offenders! Are we not to extradite a criminal offender? Are we not to extradite offenders threatening national security by using “political offender” as a protection shield? Member of think tank in the Mainland said, the logic in Mainland is the opposite! As these people cause damage to national security, Hong Kong should not be the loophole of national security and more justified to extradite (offenders). This is the most dangerous part.

Why do we think that this is dangerous? It is because it is very easy for one to be defined as threatening national security. In the Mainland, if you do anything that the Communist Party doesn’t want you to do and upset the Communist Party, such as criticising the Central Government, supporting the religions in Mainland, reporting some news they don’t like. You are easy to be prosecuted.

In the past, there were a lot of people being prosecuted with false accusations including possession of drugs, theft, espionage. It is very horrible! The system in Mainland China is called “People’s democratic dictatorship”, to put it simply, dictatorship! What is dictatorship? It means that the Government do not need to follow the law and can bypass the law when dealing with their “enemies”. There were many incidents occurred under dictatorship in the Mainland if you still remember. Why were Liu Xia put under house arrest, deprived of personal freedom, for such a long time without following any legal procedures? Why were the people related to Causeway Bay Books kidnapped in places like Hong Kong and Thailand, then voluntarily deprived all legal rights, not to meet their families, and pleaded guilty on television? Why? It is because the Chinese Government is practising dictatorship at that time.

President Liu Shaoqi asked people not to persecute and caused the death of others in the name of constitution, at the end… They left a president who was seriously hurt by the crowd and was required to be sent to hospital for treatment urgently, in a room in Henan secretly and died as he was not saved in time. Dictatorship also made one of the then 10 Marshals of the Communist Party, He Lung, who suffered from diabetes and other illnesses, dead after an injection of a large dose of glucose. The glucose and diabetes caused his death by kidney failure and multiple organ failure.

When a country claims that it exercises rule by law, but it can also exercise dictatorship at anytime, if the Hong Kong legal system will be connected to this dictatorship, in the name of national security… how horrible is this? And this is the original script, which the law would be amended according to this procedure! The original script also included that, the Central Government has assessed the situation of the whole country to prevent any out-of-control situation, to prevent any uncertainties and risks in the beginning of this year. A countrywide meeting for officials of provincial level was held and Xi Jinping gave a speech at the Central Party School. Those famous saying included “grey rhinocero”, “black swan”, “six certainties” are originated from this meeting. The leaders of Communist Party were scared of one thing: the so-called “chaos in the years ending in 9” as the Communist Party witnessed chaos happened in those years ending in 9: 1949 - the Kuomintang was replaced by the Communist; 1959 - the Great Famine; 1969 - Sino-Russian Zhenbao dao War and President Liu Shaoqi was dead; 1979 - Sino-Vietnamese War; 1989 - Tiananmen Square Protests; 1999 - Falun Gong practitioners surrounded the Zhongnanhai (Central Government compound in Beijing); 2009 - 5th July Incident in Xinjiang.

In the beginning of 2019, countrywide meeting was held by the Communist Party to prevent any chaotic situation. They have done a lot and shared experience on handling problems. On the script of the Central Government at that time, the situation in Hong Kong was extremely stable. This was impossible for Hong Kong to become one of the chaos in the “chaos in the years ending in 9”. This was impossible. They were worried about the economics and the possible unemployment problem, US-China Trade War, definitely not Hong Kong issue.

The leaders of Central Government assessed that the circumstance in Hong Kong was very favourable in recent years. Why did they think so? It is because overall jurisdiction is gradually exercising in Hong Kong, the Legislative Council is supported by the pro-establishment camp; the social activists or even people involved in MongKok Riot were serving severe sentences; people of different political views were disqualified, civil awareness of the community became lower and lower; Beijing and Carrie Lam’s team were very confident in passing the bill. Talking about how to handle social movement, Xi Jinping stated that he would change the compromising style of Hu(Jintao)-Wen(Jiabao) Era when he came to power. Xi Jinping said no to “small conflict solves on a small scale, large conflict solves on a large scale, no conflict then nothing will be solved”! He could not allow this situation to continue. None of the policies towards Hong Kong showed any compromise during Xi Jinping’s rule, except no second term of office for CY Leung. It was because he could not get enough votes from the pro-establishment camp and the business sector at that time. One who counted the number of votes (before the election to estimate the number) said that it was difficult enough to get 601 votes. It was not a result of the power of the people. There were 1 million and 30 thousands people joining the demonstration on 9th June, we could see that Carrie Lam and Beijing Government did not compromise. No matter how many people joined the demonstration, they continued the procedures to pass the bill after the demonstration.

When we keep asking: “Where are you God?” “God, why are Hong Kong people tortured like this?” Here comes a reverse! When we question the youngsters as “useless”, on Wednesday 12th June, a situation that we all didn’t want to see occurred, but it made a reverse! A group of youngsters, some of them have written their testaments and decided to block the bullets, charged against Legislative Council and the Police cordon lines! Of course, their acts were illegal from the legal point of view; however, from the point of justice, they didn’t think that this issue should continue in this way. Therefore, they protested. This kind of protest unexpectedly triggered the uncontrolled attack by the upgraded and distorted Hong Kong Police. Even the internal assessment of the Police Force considered that the Police who used guns, shot in the head and used different weapons to attack innocent people, to clear the scene after being clashed, went too far. This is what made the issue reversed! The international pressure made it unbearable for Beijing Government.

Then what was their original plan? On the Mainland television, shots of peaceful assembly were all deleted and would be described as the protesters crashing the Police and attacking like mob. They wanted to claim that Hong Kong mob attacked the Government to gain moral high ground. However, excessive use of force by the Police reversed the whole situation. The original plan of Xi Jinping was called "Fengqiao Experience” which solves the social events on site and not to escalate it; attacks the surface but not to affect the core part. Unfortunately, the HKSAR Government could not solve the problem on site and escalated to the Central Government, and even reached an international level. It created a very big pressure for the Communist Party and made a reverse.

I think this is mercy from God, a miracle from God!

Lastly, I would like to conclude my sharing by the expression shown in one’s eyes. I remember I went to a church with friends after the 12th June incident and saw a pair of policeman at the entrance of the church, looking aggressive and wanted to catch the youngsters in the church. I saw a youngster in church, wearing a black vest, looked terrified in his eyes. I asked him whether I should help him to get clothes so that he could leave. He answered no. He found protection and home in the church, found his real father and mother. When I left the church, from the look of the policemen, it seemed to me that they wanted to catch a child…

May God continues to bless us with peace and may the wounded be given peace. God bless Hong Kong!

Evening of the 19th of June

#沸點直擊

戴耀廷的結案陳詞

公民抗命的精神

首先，這是一宗公民抗命的案子。
我站在這裏，就是為了公民抗命。陳健民教授、朱耀明牧師與我一起發起的「讓愛與和平佔領中環運動」，是一場公民抗命的運動。在以前，少有香港人聽過公民抗命，但現在公民抗命這意念在香港已是家傳戶曉。
終審法院在律政司對黃之鋒案Secretary for Justice v Wong Chi Fung (2018) 21 HKCFAR 35採納了約翰羅爾斯在《正義論》中為公民抗命所下的定義。公民抗命是「一項公開、非暴力、真誠的政治行為，通常是爲了導致法律上或社會上的改變，所作出的違法行爲。」
在律政司對黃之鋒案，賀輔明勳爵是終審法院的非常任法官。在此案，終審法院引述了賀輔明勳爵在R v Jones (Margaret) [2007] 1 AC 136的說法：「出於真誠理由的公民抗命在這國家有源遠流長及光榮的歷史。」終審法院認同公民抗命的概念是同樣適用於其他尊重個人權利的法制如香港。但為何公民抗命是光榮和文明呢？終審法院沒有進一步解釋。
約翰羅爾斯的定義大體只能說出公民抗命的行為部分。 在馬丁路德金博士非常有名關於公民抗命的著作《從伯明罕市監獄發出的信》中，他道出更多公民抗命的意圖部分或公民抗命的精神。這信函是他在 1963年4 月16日，因在亞拉巴馬州伯明罕市參與示威爭取民權後被判入獄時寫的。
在信函中他說：「一個人若不遵守不公義的法律，必須要公開，充滿愛心和願意接受懲罰。個人因為其良心指出某法律是不公義的，而且甘心接受懲處，是要喚起社會的良知，關注到那中間的不公義，這樣其實是對法律表達了最大的敬意。」
馬丁路德金博士認為有時法律在表面上是公義的，但實行時卻變得不公義。他說：「我未得准許而遊行，並因而被捕，現在的確有一條法例，要求遊行須得准許，但這條法例如果是用了來…否定公民運用和平集會和抗議的權利，則會變成不公義。」
他還說：「 面對一個經常拒絕談判的社區，非暴力的直接行動正是為了營造一次危機，以及加強一種具創造力的張力，逼使對方面對問題，也使問題戲劇地呈現出來，讓其不能再被忽略。」
馬丁路德金博士對我啟發良多，我們也把這精神栽種在「讓愛與和平佔領中環運動」中。緊隨馬丁路德金博士在公民抗命之路的腳步，我們努力去開啟人心中那份自我犧牲的愛及平靜安穩，而非煽惑憤怒與仇恨。
終審法院在律政司對黃之鋒案進一步引述賀輔明勳爵在R v Jones (Margaret) 的說法：「違法者與執法者都有一些規則要遵守。示威者的行為要合乎比例，並不會導致過量的破壞或不便。以証明他們的真誠信念，他們應接受法律的懲處。」
雖然終審法院在律政司對黃之鋒案沒有引述這部分，賀輔明勳爵在R v Jones (Margaret) 還說：「另一方面，警察與檢控官的行為也要有所節制，並法官在判刑時應考慮示威者的真誠動機。」這些有關公民抗命的規則應也適用，終審法院應不會反對。
公民抗命的目的並不是要妨擾公眾，而是要喚起公眾關注社會的不公義，並贏取人們認同社會運動的目標。若一個人被確立了是在進行公民抗命，那他就不可能會意圖造成不合理的阻礙，因那是與公民抗命背道而馳，即使最後因他的行動造成的阻礙是超出了他所能預見的。
非暴力是「讓愛與和平佔領中環運動」的指導原則。公民抗命的行為，就是佔領中環，是運動的最後一步。進行公民抗命時，示威者會坐在馬路上，手扣手，等候警察拘捕，不作反抗。我們計劃及希望達到的佔領程度是合乎比例的。我們相信所會造成的阻礙是合理的。
我相信我們已做了公民抗命中違法者所當做的，我們期望其他人也會做得到他們所當做的。

追求民主

在一宗公民抗命的案件，公民抗命的方法是否合乎比例，不能抽空地談，必須考慮進行那行動的目的。
這是一宗關乎一群深愛香港的香港人的案件，他們相信只有透過引入真普選，才能開啟化解香港深層次矛盾之門。
我就是他們其中一人。與那些一起追尋同一民主夢的人，為了我們的憲法權利，我們已等了超過三十年。當我還在大學讀法律時，我已參與香港的民主運動。現在，我的兒子也剛大學畢業了，香港還未有民主。
馬丁路德金博士在信函中還說：「壓迫者從不自願施予自由，自由是被壓迫者爭取得來的。…如同我們出色的法學家所說，延誤公義，就是否定公義。」我們在追求公義，但對當權者來說，我們計劃的行動誠然是妨擾。
《基本法》第45 條規定行政長官的產生辦法最終達至由一個有廣泛代表性的提名委員會按民主程序提名後普選產生的目標。《公民及政治權利國際公約》第 25 條規定：「凡屬公民，無分第二條所列之任何區別，不受無理限制，均應有權利及機會：…（乙）在真正、定期之選舉中投票及被選。選舉權必須普及而平等，選舉應以無記名投票法行之，以保證選民意志之自由表現 …」
聯合國人權委員會在《第25號一般性意見》，為《公民及政治權利國際公約》第 25 (乙) 條中的 「普及而平等」，提供了它的理解和要求。第15段說：「有效落實競選擔任經選舉產生的職位的權利和機會有助於確保享有投票權的人自由挑選候選人。」第17段說：「不得以政治見解為由剝奪任何人參加競選的權利。」
全國人民代表大會常務委員會在2004年就《基本法》附件一及附件二作出的解釋，實質改變了修改行政長官選舉辦法的憲法程序。在行政長官向立法會提出修改產生辦法的法案前，額外加了兩步。行政長官就是否需要進行修改，須向全國人民代表大會常務委員會提出報告。全國人民代表大會常務委員會根據香港特別行政區的實際情況和循序漸進的原則作出確定。相關法案須經立法會全體議員三分之二多數 通過，行政長官同意，並報全國人民代表大會常務委員會批准或者備案。
在2014年8月31日，全國人民代表大會常務委員會完成了憲法修改程序的第二步，作出了有關行政長官產生辦法的決定。全國人民代表大會常務委員會除決定行政長官可由普選產生外，就普選行政長官的產生辦法設下了具體及嚴厲的規定。
提名委員會的人數、構成和委員產生辦法都得按照第四任行政長官選舉委員會的人數、構成和委員產生辦法而規定。提名委員會按民主程序只可提名產生二至三名行政長官候選人。每名候選人均須獲得提名委員會全體委員半數以上的支持。
按著全國人民代表大會常務委員會自行設定的程序，全國人民代表大會常務委員會應只有權決定是否批准或不批准行政長官提交的報告，而不能就提名委員會的組成及提名程序，設下詳細的規定。全國人民代表大會常務委員會連自己設定的程序也沒有遵守。
若按著全國人民代表大會常務委員會設下的嚴厲條件去選舉產生行政長官，香港的選民就候選人不會有真正的選擇，因所有不受歡迎的人都會被篩選掉。這與普選的意思是不相符的。
這些香港人進行公民抗命，是要喚起香港社會及世界的關注，中國政府不公義地違背了憲法的承諾，也破壞了它的憲法責任。我們所作的，是為了維護我們及所有香港人的憲法權利，包括了反對我們的行動的人；是為了要我們的主權國履行承諾；是為了爭取香港憲制進行根本改革；及為香港的未來帶來更多公義。

和平示威的權利

這案件是關乎和平示威自由及言論自由的權利。
根據「讓愛與和平佔領中環運動」的原先計劃，舉行公眾集會的地方是遮打道行人專用區、遮打花園及皇后像廣場，時間是由2014年 10月1 日下午三時正開始，最長也不會超過2014年 10月5 日。我們期望會有三類人來到。
第一類人已決定了會參與公民抗命。他們會在過了合法的時限後，繼續坐在遮打道上。他們是那些在「讓愛與和平佔領中環運動」意向書上選了第二或第三個選項的人。第二類人決定不會參與公民抗命，而只是來支援第一類人。過了合法的時限後，他們會離開遮打道，去到遮打花園或皇后像廣場。他們是那些在「讓愛與和平佔領中環運動」意向書上選了第一個選項的人。第三類人還未決定是否參與公民抗命的行動。他們可以到合法時限快要過去的最後一刻，才決定是否留在遮打道上。
我們相信警方會有足夠時間把所有參與佔領中環公民抗命的示威者移走。估計會有數千人參與。我們要求參與者要嚴守非暴力的紀律。我們採用了詳細的方法去確保大部分即使不是所有參與者都會跟從。
我們是在行使受《基本法》第27 條保障的和平示威自由的憲法權利。這也與同受《基本法》第27 條保障的言論自由有緊密關係。透過《基本法》第39條，言論自由、表達自由、和平集會的自由受《香港人權法》第16 及17條的憲法保障，而這些條文與《公民及政治權利國際公約》第19 及21是一樣的，是《公民及政治權利國際公約》適用於香港的部分。
若原訂計劃真的執行，那可能會觸犯《公安條例》一些關於組織未經批准集結的規定，但我們相信那會舉行的公眾集會是不會對公眾構成不合理的阻礙的。會被佔領的空間，包括了馬路，是公眾在公眾假期可自由使用的。計劃佔領的時期，首兩天是公眾假期，最後兩天是周末。
當公眾集會的地方轉到政府總部外的添美路、立法會道及龍匯道的行人路及馬路的範圍（下稱「示威區域」），雖然集會的主題、領導、組織及參加者的組成已改變了，但精神卻沒有。在2014年9 月27 和 28日，人們是被邀請來示威區域參加集會的。這仍然是公民在行使和平示威自由及言論自由的權利。
相類似的公眾集會也曾在2012年9 月3至 8日，在反國民教育運動中在示威區域內舉行。除卻公民在那時候還可以進入公民廣場（政府總部東翼前地），在2012年9月在反國民教育運動的佔領空間，與示威者在2014年9 月27 和 28日在警方封鎖所有通往示威區域通道前所佔領的空間是很相近的。
自2012年的反國民教育運動後，這示威區域已被普遍認同，是可以用來組織有大量公眾參與，反對香港特別行政區政府的大型公眾集會的公共空間。換句話說，公眾都認知示威區域是一個重要場地，讓香港公民聚集去一起行使和平示威自由的權利。
根據此我們也抱有的公眾認知，當我在2014年9 月28日凌晨宣布提前佔領中環的時候，我們只可能意圖叫人來到示威區域而不會是任何其他地方。要佔領示威區域以外的地方，沒可能是當時我們所能想到的。沒有人會如此想的。
在梁國雄對香港特別行政區案Leung Kwok-hung v. HKSAR (2005) 8 HKCFAR 229, 終審法院指出： 「和平集會權利涉及一項政府（即行政當局）所須承擔的積極責任，那就是採取合理和適當的措施，使合法的集會能夠和平地進行。然而，這並非一項絕對責任，因為政府不能保證合法的集會定會和平地進行，而政府在選擇採取何等措施方面享有廣泛的酌情權。至於甚麼是合理和適當的措施，則須視乎個別個案中的所有情況而定。」
如控方証人黃基偉高級警司 (PW2) 在作供時所說，當有太多的示威者聚集在鄰接的行人路，警方為了示威者的安全，就會封鎖示威區域內的馬路。能有一個公共空間讓反對政府的人士和平集會以宣洩他們對香港特別行政區政府的不滿，對香港社會來說，那是一項公共利益。即使在示威區域長期舉行集會是違反《公安條例》，但這不會對公眾構成共同傷害。受影響的部分公眾只是很少，而造成的不便相對來說也是輕微。
終審法院常任法官包致金在楊美雲對香港特別行政區案Yeung May-wan v. HKSAR (2005) 8 HKCFAR 137中說：「《基本法》第二十七條下的保障，不會純粹因為集會、遊行或示威對公路上的自由通行造成某種干擾而被撤回。本席認為，除非所造成的干擾屬不合理，即超出可合理地預期公眾可容忍的程度，否則集會、遊行或示威不會失去這項保障。關於這一點，本席認為，大型甚或大規模集會、遊行或示威的參加者往往有理由指出，只有如此大規模的活動才能協助有效地表達他們的意見。除此之外，本席認為最明顯的相關考慮因素是干擾的嚴重程度和干擾為時多久。不過，也可能有其他的相關考慮因素，本席認為包括以下一項：在有關的干擾發生之前，是否有人曾一度或數度作出一項或多項干擾行為？可合理地預期公眾能容許甚麼，乃屬事實和程度的問題，但在回答這個問題時，法庭務須謹記，毫無保留地保存相關自由，正是合理性的定義，而非僅是用作決定是否合理的因素之一。」
參與示威區域的公眾集會的示威者並不能構成阻礙，因示威區域的馬路是由警方封鎖的。警方封鎖示威區域的馬路是為了保障示威者的安全 ，讓他們可以安全地及和平地行使和平集會的權利。就算在示威區域是造成了一定程度的阻礙，考慮到示威者是在行使他們的和平示威自由的憲法權利，那阻礙也不能是不合理的。
即使當示威者在2014年9 月28日走到分域碼頭街及夏慤道，人們只是被邀請來到示威區域而不是留在那些道路上。警方被要求開放通向示威區域的通路，好讓人們能去到示威區域與示威者們一起。若非通往示威區域的通路被警方封鎖了，大部份人即使不是所有人，應都會進入示威區域，而那些道路就不會被佔領。催淚彈也就沒有需要發放。
警方應有責任去促使公民能在示威區域舉行公眾集會，但警方卻把示威區域封鎖了，阻礙人們來到示威區域參與公眾集會。示威區域內的示威者不可能意圖或造成任何在示威區域以外所出現的阻礙，因他們只是邀請人們來到示威區域與他們一起。
當警方見到已有大量人群在示威區域外意圖進入示威區域，警方仍不負責任地拒絕開放通向示威區域的通路。警方必須為示威區域外所造成的阻礙及之後發生的所有事負上責任。
在警方發放87催淚彈及使用過度武力後，一切都改變了。如此發放催淚彈是沒有人能預見的，事情再不是我們所能掌控。到了那時候，我們覺得最重要的事，就是帶領參加運動的人平安回家。
在發放催淚彈後的無數個日與夜，我們竭力用不同方法去盡快結束佔領。我們幫助促使學生領袖與政府主要官員對話。我們與各方商討能否接受以變相公投為退場機制。我們籌組了廣場投票。即使我們這些工作的大部分最後都沒有成效，但我們真的是盡了力及用盡能想到的方法去達到這目標。最後，我們在2014年12 月3日向警方自首。金鐘範圍的佔領在2014年12 月11日也結束了。

不恰當檢控

這是關乎不恰當地以公眾妨擾罪作為罪名起訴的案件。
如賀輔明勳爵in R v Jones (Margaret) 所指出，檢控官也有公民抗命的規則要遵守的，他們的行為要有所節制。
在 “Public Nuisance – A Critical Examination,” Cambridge Law Journal 48(1), March 1989, pp. 55-84, 一文，J. R. Spencer 看到：「近年差不多所有以公眾妨擾罪來起訴的案件，都出現以下兩種情況的其中一個： 一、當被告人的行為是觸犯了成文法律，通常懲罰是輕微的，檢控官想要以一支更大或額外的棒子去打他； 二、當被告人的行為看來是明顯完全不涉及刑事責任的，檢控官找不到其他罪名可控訴他。」兵咸勳爵在 R v Rimmington [2006] 1 AC 469 採納了J. R. Spencer 對檢控官在控訴公眾妨擾罪時暗藏的動機的批評。
若有一適當的成文罪行能涵蓋一宗公民抗命案件中的違法行為，我們可以合理地質問為何要以公眾妨擾罪來起訴？即使這不構成濫用程序，但這案件的檢控官一定已違反了賀輔明勳爵在 R v Jones (Margaret) 所指出適用於他的公民抗命的規則，因他並沒有節制行為。
這是關乎不恰當地以串謀及煽惑人煽惑為罪名起訴的案件。
同樣地，在一宗公民抗命的案件及一宗涉及和平示威自由的權利的案件，以串謀及煽惑人煽惑為罪名起訴，那是過度的。在串謀的控罪，控方提出的証據是我們的公開發言。按定義，公民抗命一定是一項公開的行為。若這些公開發言可以用於檢控，那會把所有的公民抗命都扼殺於萌芽階段。那麼說公民抗命是一些光榮之事就變得毫無意義，因公民抗命根本就不可能出現。更惡劣的後果是，社會出現寒蟬效應，很多合理的言論都會被噤聲。對言論自由的限制必然是不合乎比例。
在香港普通法是否有煽惑人煽惑這罪名仍存爭議，但即使真有這罪行，在一宗公民抗命的案件及一宗涉及和平示威自由的權利的案件，以串謀及煽惑人煽惑為罪名起訴，那是過度地、不合理地及不必要地擴展過失責任。
因主罪行是那惹人猜疑的公眾妨擾罪，以煽惑人煽惑去構成公眾妨擾罪來起訴，那更會把過失責任擴展至明顯不合理的程度。若檢控官的行為不是那麼過度和不合理，起訴的罪名是恰當的，我們是不會抗辯的。無論如何，當控罪相信是過度及不合理，我們提出抗辯不應被視為拒絕接受法律的懲處，違反了違法者的公民抗命規則。
有些問題是我這位置難以解答的。若檢控官違反了賀輔明勳爵在 R v Jones (Margaret) 所指出的公民抗命的規則，那會有甚麼後果呢？由誰來糾正這錯誤呢？

守護法治

歸根究底，這是一宗關乎香港法治與高度自治的案件。
作為香港法治及憲法的學者，我相信單純依靠司法獨立是不足以維護香港的法治。 缺乏一個真正的民主制度，政府權力會被濫用，公民的基利不會得到充分的保障。沒有民主，要抵抗越來越厲害對「一國兩制」下香港的高度自由的侵害，會是困難的。在「雨傘運動」後，還有很長的路才能到達香港民主之旅的終點。
終審法院常任法官鄧國楨在退休前法庭儀式上致辭說：「雖然法官決意維護法治，讓其在香港的價值及運用恒久不變，但關鍵在於社會對法官予以由衷的支持。那應是何等形式的支持？我認為，應是全面而徹底的支持。如果法官受到不公的抨擊，請緊守立場並支持他們。可是，不要只因爲某些事件才對他們表示支持。那並不足夠，也可能已經太遲。大家應致力在社會上培養有利於法治的氛圍。我們在香港擁有新聞自由及選舉自由，必須努力發聲，讓你的選票發揮作用。請相信我，自由的代價是要時刻保持警覺。更重要的是，永遠不要放棄或低估自己的力量。如果我們整體社會堅持維護法治，無人可以輕易把它奪走。千萬不要讓此事變得輕而易舉。」
我們都有責任去守護香港的法治和高度自治。我在這裹，是因我用了生命中很多的年月，直至此時此刻，去守護香港的法治，那亦是香港的高度自治不可或缺的部份。我永不會放棄，也必會繼續爭取香港的民主。
我相信法治能為公民抗命提供理據。公民抗命與法治有共同的目標，就是追求公義。公民抗命是有效的方法去確保這共同目標能達成，至少從長遠來說，公民抗命能創造一個氛圍，讓其他方法可被用來達成那目標。
若我們真是有罪，那麼我們的罪名就是在香港這艱難的時刻仍敢於去散播希望。入獄，我不懼怕，也不羞愧。若這苦杯是不能挪開，我會無悔地飲下。

DCCC 480/2017

Closing Submission of Tai Yiu-ting (D1)

1. First, this is a case of civil disobedience.

2. Here, I am standing up for civil disobedience.

3. The Occupy Central with Love and Peace Movement, initiated by Professor Chan Kin-man, Reverend Chu Yiu-ming and I, was a movement of civil disobedience.

4. Civil disobedience, known little by Hong Kong people in the past, is now a household idea in Hong Kong.

5. The Court of Final Appeal in Secretary for Justice v Wong Chi Fung (2018) 21 HKCFAR 35 at paragraph 70 endorsed the definition of civil disobedience put forward by John Rawls in A Theory of Justice (Revised Edition, 1999) at p. 320.

6. Civil disobedience is “a public, nonviolent, conscientious yet political act contrary to law usually done with the aim of bringing about a change in the law or policies of the government.”

7. In Secretary for Justice v Wong Chi Fung, the Court of Final Appeal with Lord Hoffmann as the non-permanent judge repeated at paragraph 72 what Lord Hoffmann had said in R v Jones (Margaret) [2007] 1 AC 136 at paragraph 89, “civil disobedience on conscientious grounds has a long and honourable history in this country.” The Court of Final Appeal accepted that the concept of civil disobedience is equally recognisable in a jurisdiction respecting individual rights, like Hong Kong.

8. However, it was not explained why civil disobedience is honourable and civilised.

9. John Rawls’ definition spells out more the actus reus of civil disobedience.

10. In his very famous work on civil disobedience, Letter from a Birmingham Jail reproduced in The Journal of Negro History, Vol. 71, No. 1/4 (Winter - Autumn, 1986), pp. 38-44, Dr Martin Luther King Jr. provided more the mens rea of civil disobedience or the spirit of civil disobedience. The Letter was written by him on 16 April 1963 while in jail serving a sentence for participating in civil rights demonstration in Birmingham, Alabama.

11. He said (p. 41), “One who breaks an unjust law must do so openly, lovingly, and with a willingness to accept the penalty. I submit that an individual who breaks a law that conscience tells him is unjust, and willingly accepts the penalty by staying in jail to arouse the conscience of the community over its injustice, is in reality expressing the very highest respect for law.”

12. To Dr King, a law could be just on its face but unjust in its application. He said in the Letter (p. 40-41), “I was arrested…on a charge of parading without a permit. Now there is nothing wrong with an ordinance which requires a permit for a parade, but when the ordinance is used to …deny citizens the First Amendment privilege of peaceful assembly and peaceful protest, then it becomes unjust.”

13. He also said (p. 39), “Nonviolent direct action seeks to create such a crisis and establish such creative tension that a community that has constantly refused to negotiate is forced to confront the issue. It seeks so to dramatise the issue that it can no longer be ignored.”

14. I was inspired very much by Dr King, and this is the same spirit we have implanted in the Occupy Central with Love and Peace Movement. Following Dr King’s steps closely in the path of civil disobedience, we strive to inspire self-sacrificing love and peacefulness but not to incite anger and hatred.

15. The Court of Final Appeal in Secretary for Justice v Wong Chi Fung further cited what Lord Hoffmann had said in R v Jones (Margaret), “[T]here are conventions which are generally accepted by the law-breakers on one side and the law-enforcers on the other. The protesters behave with a sense of proportion and do not cause excessive damage or inconvenience. And they vouch the sincerity of their beliefs by accepting the penalties imposed by the law.”

16. Though the Court of Final Appeal did not quote this part of the judgment in Secretary for Justice v Wong Chi Fung, Lord Hoffmann in R v Jones (Margaret) also said, “The police and prosecutors, on the other hand, behave with restraint and the magistrates impose sentences which take the conscientious motives of the protesters into account.” These other conventions of civil disobedience should also apply, and it is not likely that the Court of Final Appeal would object.

17. The purpose of civil disobedience is not to obstruct the public but to arouse public concern to the injustice in society and to win sympathy from the public on the cause of the social movement.

18. If it is found that a person is committing an act of civil disobedience, he could not have intended to cause unreasonable obstruction as it will defeat the whole purpose of civil disobedience itself even if his action might at the end have caused a degree of obstruction more than he could have known.

19. Non-violence was the overarching principle of the Occupy Central with Love and Peace Movement. The act of civil disobedience, i.e. occupy Central, was the last resort of the movement. The manner of civil disobedience by the protesters was to sit down together on the street with arms locked and wait to be arrested by the police without struggling. The scale of occupation was planned and intended to be proportionate. We believe that the obstruction must be reasonable.

20. I believe we have done our part as the law-breaker in civil disobedience. We expect the others will do their parts.

21. In a case of civil disobedience, whether the means of civil disobedience is proportionate; contextually, the end must be considered.

22. This is a case about some Hong Kong people who love Hong Kong very much and believe that only through the introduction of genuine universal suffrage could a door be opened to resolving the deep-seated conflicts in Hong Kong.

23. I am one of those Hong Kong people. With all people who share the same democratic dream, we have waited for more than thirty years for our constitutional rights. Since the time I was a law student at the University, I had been involved in Hong Kong’s Democratic Movement. Now, my son has just graduated from the University, democracy is still nowhere in Hong Kong.

24. Also said by Dr King in the Letter (p. 292), “…freedom is never voluntarily given by the oppressor; it must be demanded by the oppressed…We must come to see with the distinguished jurist of yesterday that ‘justice too long delayed is justice denied.’”

25. In seeking for justice, our planned action in the eyes of the powerholders may indeed be a nuisance.

26. According to Article 45 of the Basic Law the ultimate aim of the selection of the Chief Executive (“CE”) is by universal suffrage upon nomination by a broadly representative nominating committee in accordance with democratic procedures.

27. Article 25 of the International Covenant on Civil and Political Rights (“ICCPR”) provides that, “Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions: … (b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors…”

28. The United Nations Human Rights Committee gave its understanding and requirements of universal and equal suffrage under Article 25 of the ICCPR in its General Comment No. 25 adopted on 12 July 1996. (CCPR/C/21/Rev.1/Add.7).

29. Paragraph 15 provides that, “The effective implementation of the right and the opportunity to stand for elective office ensures that persons entitled to vote have a free choice of candidates.”

30. Paragraph 17 provides that, “political opinion may not be used as a ground to deprive any person of the right to stand for election.”

31. Through its Interpretation of Annex I and Annex II of the Basic Law in 2004, the Standing Committee of the National People’s Congress (“NPCSC”) in effect changed the constitutional procedures to amend the election methods of the CE.

32. Before the CE can put forward bills on the amendments to the election methods to the Legislative Council (“LegCo”), two more steps are added. The CE is required to make a report to the NPCSC as regards whether there is a need to make an amendment and the NPCSC must make a determination in the light of the actual situation in the Hong Kong Special Administrative Region (“HKSAR”) and in accordance with the principle of gradual and orderly progress. Such bills need to have the endorsement of a two-thirds majority of all the members of the LegCo and the consent of the CE, and they shall be reported to the NPCSC.

33. On 31 August 2014, the NPCSC completed the second step of the constitutional reform process by issuing a decision on the election method of the CE. The NPCSC laid down specific and stringent requirements on the election method of the CE by universal suffrage in addition to the determination that starting from 2017 the selection of the CE may be implemented by the method of universal suffrage.

34. The number of members, composition and formation of the Nomination Committee (“NC”) have to be made in accordance with the number of members, composition and formation method of the Election Committee for the 4th CE. The NC can only nominate two to three candidates for the office of CE in accordance with democratic procedures. Each candidate must have the endorsement of more than half of all the members of the nominating committee.

35. In accordance with the procedure added by itself, the NPCSC should only have the power to make a determination of approving or not approving the CE’s report but not providing detailed requirements on the composition and nomination procedures of the NC. The NPCSC has failed to follow the procedures set by itself.

36. If the requirements set by the NPCSC on the election method of the CE were to be followed, electors in Hong Kong would not have a genuine choice of candidates in the election as all unwelcome candidates would be screened out. This is not compatible with the meaning of universal suffrage.

37. These Hong Kong people resorted to civil disobedience to arouse more concern in the community and the world that the Chinese Government had unjustly broken its constitutional promise and breached its constitutional obligation.

38. We did all we had done to protect our constitutional rights and the constitutional rights of all Hong Kong people including those who disagreed with our action, to demand a constitutional promise to be honored by our sovereign, to strive for a fundamental reform in the constitutional system of Hong Kong, and to bring more justice to the future of Hong Kong.

39. This is also a case of the right to freedom of peaceful demonstration and the right to freedom of speech.

40. According to the original plan of the Occupy Central with Love and Peace Movement, the public meeting to be organised was to be held at the Chater Road Pedestrian Precinct, the Chater Garden, and the Statue Square, from 3:00 pm on 1 October 2014 to the latest on 5 October 2014.

41. We expected that there would be three groups of people coming. The first group of people decided to commit the act of civil disobedience. They would continue to sit on the Chater Road after the notified time expired. They would be the people who had chosen the second or the third option in the letter of intent of the Occupy Central with Love and Peace Movement.

42. The second group of people decided not to commit the act of civil disobedience but just came to support the first group of people. They would leave the Chater Road after the notified time expired and move to the Chater Garden or the Statue Square. They would be the people who had chosen the first option in the letter of intent of the Occupy Central with Love and Peace Movement.

43. The third group of people might not have made up their mind yet on whether they would join the action of civil disobedience. They could decide at the very last moment when the notified time expired by choosing where to stay.

44. We believed that the police would have sufficient time to remove all the protesters joining the act of civil disobedience of occupy Central; estimated to be a few thousands.

45. We asked all participants to observe the discipline of non-violence strictly. We adopted specific measures to ensure most if not all participants would follow.

46. We were exercising our constitutional right to the freedom of peaceful demonstration protected by Article 27 of the Basic Law. It is also closely associated with the right to freedom of speech also protected by Article 27 of the Basic Law. By Article 39 of the Basic Law, constitutional protection is also given to freedom of opinion, of expression and of peaceful assembly as provided for in Articles 16 and 17 of the Hong Kong Bill of Rights, those articles being the equivalents of Articles 19 and 21 of the ICCPR and representing part of the ICCPR as applied to Hong Kong.

47. If the original plan were to be carried out, it might breach some requirements under the Public Order Ordinance concerning the organisation of unauthorised assembly. However, we believed that the public meeting to be held would not cause unreasonable obstruction to the public.

48. The space to be occupied, including the carriageway, can be freely used by every citizen on public holidays.

49. The first two days of the planned occupation were public holidays and the last two days were the weekend.

50. When the venue of the public meeting was moved to the area outside the Central Government Offices including the pavements and carriageways at Tim Mei Avenue, Legislative Council Road and Lung Hui Road (“the Demonstration Area”), though the public meeting’s themes, leadership, organization and composition of participants had changed, the spirit had not.

51. People were asked to join the public meeting in the Demonstration Area on 27 and 28 September 2014. It was still an exercise of their constitutional right to freedom of peaceful demonstration and freedom of speech by Hong Kong citizens.

52. Similar public meetings had been held in the Demonstration Area during the Anti-national Curriculum Campaign from 3-9 September 2012. Citizens at that time could have access to the Civic Square, i.e. the East Wing Forecourt of the Central Government Offices. Other than that, the space being occupied by protesters during the Anti-national Curriculum Campaign in September 2012 was very similar to the space that was being occupied by protesters on 27 and 28 September 2014 before the police cordoned all access to the Demonstration Area.

53. Since the Anti-national Curriculum Campaign in 2012, the Demonstration Area has been generally recognised to be the public space that can be used for organising big public meetings with a large number of people participating to protest against the Government of the HKSAR. In another word, the Demonstration Area is known to the public to be an important venue for citizens of Hong Kong to gather and to exercise their right to peaceful demonstration together.

54. On the basis of this public knowledge that we share, at the time when I announced the early beginning of the Occupy Central in the small hours on 28 September 2014, we could only be intending to ask people to come to the Demonstration Area but no other place. Occupying places outside the Demonstration Area could not have been in the thought of us at that time. No one could have intended that.

55. The Court of Final Appeal in Leung Kwok-hung v. HKSAR (2005) 8 HKCFAR 229 at paragraph 22 pointed out that, “…the right of peaceful assembly involves a positive duty on the part of the Government, that is the executive authorities, to take reasonable and appropriate measures to enable lawful assemblies to take place peacefully.”

56. As senior superintendent Wong Key-wai (PW2) said in his evidence, the police closed the carriageways in the Demonstration Area for the safety of the protesters when there were too many protesters on the adjacent pavements.

57. Having a public space for the public opposing the Government of the HKSAR to gather and vent their dissatisfaction against the Government peacefully is a public benefit to the society of Hong Kong. No common injury to the public can be caused even if a public meeting is being held in the Demonstration Area in contravention with the Public Order Ordinance for a prolonged period. The section of the public that will be affected is very small and the inconvenience caused is comparatively insignificant.

58. Mr Justice Bokhary PJ said in Yeung May-wan v. HKSAR (2005) 8 HKCFAR 137 at paragraph 144, “The mere fact that an assembly, a procession or a demonstration causes some interference with free passage along a highway does not take away its protection under art. 27 of the Basic Law. In my view, it would not lose such protection unless the interference caused is unreasonable in the sense of exceeding what the public can reasonably be expected to tolerate. As to that, I think that the participants in a large or even massive assembly, procession or demonstration will often be able to say with justification that their point could not be nearly as effectively made by anything on a smaller scale. Subject to this, the most obviously relevant considerations are, I think, how substantial the interference is and how long it lasts. But other considerations can be relevant, too. These include, I think, whether the interference concerned had been recently preceded by another act or other acts of interference on another occasion or other occasions. What the public can reasonably be expected to tolerate is a question of fact and degree. But when answering this question, a court must always remember that preservation of the freedom in full measure defines reasonableness and is not merely a factor in deciding what is reasonable.”

59. No obstruction can be caused by the protesters participating in a public meeting in the Demonstration Area as all carriageways in the Demonstration Area were closed by the police. The police closed the carriageways in the Demonstration Area to ensure the protesters there can exercise their right to freedom of peaceful assembly safely and peacefully. Even if there were to be some degree of obstruction in the Demonstration Area, the obstruction could not be unreasonable in light of the constitutional right to freedom of peaceful demonstration of the protesters.

60. Even after protesters walked into the carriageways of Fenwick Pier Street and Harcourt Road on 28 September 2014, people were continuing to be asked to come to the Demonstration Area but not to stay on those roads. The police were demanded to reopen the access to the Demonstration Area so that people could come and join the protesters in the Demonstration Area. If the access to the Demonstration Area were not blocked by the police, most if not all of the people out there would have entered the Demonstration Area and those roads would not have been occupied. No tear gas would need to be fired.

61. It should be the duty of the police to facilitate the holding of a public meeting in the Demonstration Area by citizens. However, the police had cordoned the Demonstration Area and prevented people from joining the public meeting in the Demonstration Area. Any obstruction outside the Demonstration Area could not be intended or caused by the protesters gathering in the Demonstration Area who were just inviting other people to join them in the Demonstration Area.

62. The police irresponsibly refused to reopen the access to the Demonstration Area even after the police saw that a large number of people were gathering outside the Demonstration Area intending to enter the Demonstration Area. The police must be responsible for the obstruction outside the Demonstration Area and what happened afterwards.

63. Everything changed after the firing of the 87 canisters of tear gas and excessive force had been used by the police.

64. The firing of tear gas in such a way was something that no one could have known. Matters were no longer in our control. By then, the most important thing we wanted to do was to bring everyone home safe.

65. In the many days and nights following the firing of the tear gas, we had tried to use different methods to bring an earlier end of the occupation. We helped arrange a dialogue between the student leaders and senior government officials. We tried to convince others to accept an arrangement of de facto referendum as a mechanism to retreat. We organised a plaza voting. Even though most of the things we had done came to be futile, we did work very hard and exhausted all methods we could think of to achieve this goal. In the end, we surrendered to the police on 3 December 2014. The occupation at the Admiralty area ended on 11 December 2014.

66. This is a case about the improperness of laying charges relating to public nuisance.

67. As asserted by Lord Hoffmann in R v Jones (Margaret), prosecutors also have conventions to follow in a case of civil disobedience. They should behave with restraint.

68. In “Public Nuisance – A Critical Examination,” Cambridge Law Journal 48(1), March 1989, pp. 55-84, at p. 77, J. R. Spencer observed that, “...almost all the prosecutions for public nuisance in recent years seem to have taken place in one of two situations: first, where the defendant’s behaviour amounted to a statutory offence, typically punishable with a small penalty, and the prosecutor wanted a bigger or extra stick to beat him with, and secondly, where the defendant’s behaviour was not obviously criminal at all and the prosecutor could think of nothing else to charge him with.”

69. Lord Bingham in R v Rimmington [2006] 1 AC 469 at paragraph 37 endorsed the criticisms of J. R. Spencer concerning the ulterior motive of a prosecutor laying a charge of public nuisance.

70. If there is an appropriate statutory offence to cover the unlawful act in a case of civil disobedience, one would rightly ask why laying the charges of public nuisance? Even though it might not be an abuse of process, the prosecutor in this case must have breached the convention of civil disobedience applicable to him as asserted by Lord Hoffmann in R v Jones (Margaret) for failing to behave with restraint.

71. This is a case about the improperness of laying charges of conspiracy and incitement to incite.

72. Similarly, laying charges of conspiracy and incitement to incite is excessive in a case of civil disobedience and a case of the right to freedom of peaceful demonstration.

73. Pieces of evidence relied upon by the prosecution in the conspiracy charge were public statements made by us. Civil disobedience by definition must be a public act. If these public statements can be used to support the prosecution, all civil disobedience at its formation stage will be suppressed. It is meaningless to talk about civil disobedience as something honourable as no civil disobedience would have happened. Even worse, a chilling effect will be generated in society, and many legitimate speeches will be silenced. The restriction on the right to freedom of speech must be disproportionate.

74. Whether there can be an offence of incitement to incite under the Hong Kong common law is still disputable. Even if there is such an offence, laying charges of incitement to incite in a case of civil disobedience and a case of the right to freedom of peaceful demonstration must have extended culpability excessively, unreasonably and unnecessarily.

75. Since the substantial offence is the questionable offence of public nuisance, laying a charge of incitement to incite public nuisance must have extended culpability to even a manifestly unreasonable degree.

76. If the prosecutor has not acted in such an excessive and unreasonable manner and proper charges were laid, we would not have filed a defence.

77. Nonetheless, filing a defence against charges believed to be excessive and unreasonable should not be considered to be failing to comply with the conventions of civil disobedience on the part of the law-breakers as not accepting the penalties imposed by the law.

78. There are some questions that I am not in the position to answer. If the prosecutor fails to comply with the convention of civil disobedience asserted by Lord Hoffmann in R v Jones (Margaret), what will be the consequence? Who is responsible for rectifying the wrongs?

79. At the end, this is a case about Hong Kong’s rule of law and high degree of autonomy.

80. As a scholar of the rule of law and the constitutional law of Hong Kong, I believe that merely having judicial independence is not sufficient to maintain the rule of law in Hong Kong.

81. Without a genuinely democratic system, powers of the government can still be exercised arbitrarily, and the fundamental rights of citizens will not be adequately protected. Also, without democracy, it will be difficult to withstand the more and more severe encroachment on Hong Kong’s high degree of autonomy under the policy of “One Country Two Systems”. After the Umbrella Movement, there is still a long way before we can reach the destination of Hong Kong’s journey to democracy.

82. Mr Justice Tang, PJ at his Farewell Sitting (2018) 21 HKCFAR 530 at paragraphs 17-19 said, “…although judges are prepared to uphold the rule of law as it has always been understood and applied in Hong Kong, the community must be willing to support them. In what form the support should take? I think the support should be all-embracing. If the judiciary is unfairly attacked, you should hold firm and stand up for them. But, support should not only be events driven. That is not enough. It may be too late. You should endeavour to nurture an atmosphere friendly to the rule of law. We have a free press and free elections in Hong Kong. Make your voice heard and your vote count. Believe me, the price of freedom is indeed eternal vigilance. Above all else, do not give up or underestimate your strength. If we as a community insist on the rule of law, it cannot be taken from us easily. Do not make it easy.”

83. We all have our duty to defend the rule of law and the high degree of autonomy in Hong Kong.

84. I am here because I have used many years of my life and up to this very moment to defend the rule of law of Hong Kong, an integral part of Hong Kong’s high degree of autonomy. I will also never give up on striving for Hong Kong’s democracy.

85. I believe that civil disobedience can be justified by the rule of law. Civil disobedience and the rule of law share the same goal in pursuing justice. Civil disobedience is an effective way of securing the attainment of this common goal at least in the long run by creating the climate within which other means can be used to achieve that goal. (See Benny Yiu-ting Tai, “Civil Disobedience and the Rule of Law,” in Ng, M. H. (Ed.), Wong, J. D. (Ed.). (2017). Civil Unrest and Governance in Hong Kong. London: Routledge. At pp. 141-162.)

86. If we were to be guilty, we will be guilty for daring to share hope at this difficult time in Hong Kong.

87. I am not afraid or ashamed of going to prison. If this is the cup I must take, I will drink with no regret.


List of Authorities

1. Secretary for Justice v Wong Chi Fung (2018) 21 HKCFAR 35, paragraphs 70 and 72.
2. John Rawls, A Theory of Justice (Revised Edition, 1999), p. 320.
3. Martin Luther King Jr. “Letter from a Birmingham Jail,” The Journal of Negro History, Vol. 71, No. 1/4 (Winter - Autumn, 1986), pp. 38-44.
4. R v Jones (Margaret) [2007] 1 AC 136, paragraph 89.
5. UN Human Rights Committee, General Comment No 25 adopted on 12 July 1996 (on Article 25 of the International Covenant on Civil and Political Rights), CCPR/C/21/Rev.1/Add.7, paragraph 15 and 17.
6. Leung Kwok-hung v HKSAR (2005) 8 HKCFAR 229, paragraph 22.
7. Yeung May-wan v HKSAR (2005) 8 HKCFAR 137, paragraph 144.
8. J. R. Spencer, “Public Nuisance – A Critical Examination,” Cambridge Law Journal 48(1), March 1989, pp. 55-84, p. 77.
9. R v Rimmington [2006] 1 AC 469, paragraph 37.
10. Farewell Sitting for the Honourable Mr Justice Tang PJ (2018) 21 HKCFAR 530, Tang PJ, paragraphs 17-19.
11. Benny Yiu-ting Tai, “Civil Disobedience and the Rule of Law” in Ng, M. H. (Ed.), Wong, J. D. (Ed.). (2017). Civil Unrest and Governance in Hong Kong. London: Routledge. At pp. 141-162.