匿名在上一篇侮辱國旗區旗的留言，驅使我再寫一篇。匿名說得對，侮辱國旗或國徽，可判監3年，原審裁判官沒有講錯。可是，我仍然覺得有錯，錯的地方在於當年立法訂下刑罰時的思維。保護國旗、國徽的法律比起保護區旗、區徽嚴苛。先比較一下這兩條例的分別。
任何人公開及故意以焚燒、毀損、塗劃、玷污、踐踏等方式侮辱國旗或國徽，即屬犯罪，一經定罪，可處第5級罰款及監禁3年。
任何人公開及故意以焚燒、毀損、塗劃、玷污、踐踏等方式侮辱區旗或區徽，即屬犯罪─
对于在公共场合故意以焚烧、毁损、涂划、玷污、践踏等方式侮辱我国国旗的，应当依法追究其刑事责任或行政责任，以上述方式侮辱我国国旗的，构成侮辱国旗罪，根据全国人民代表大会常务委员会关于惩治侮辱中华人民共和国国旗国徽罪的决定，判处三年以下有期徒刑、拘役、管制或者剥夺政治权利。上述行为情节较轻的，追究其行政责任，参照治安管理处罚条例的处罚规定，由公安机关处以十五日以下拘留的行政处罚。
香港侮辱國旗判監3年是抄足大陸的刑法。試問香港一貫判刑的思維，怎能夠想像侮辱國旗會判處重刑？侮辱區旗所定循簡易程序處理的刑罰才是合理的刑罰。當然，侮辱區旗可循公訴程序處理這立法完全是廢話，純粹用來襯托侮辱國旗可判監3年，侮辱國旗那3年監卻是抄襲大陸的刑法。這是可悲之處。我完全不能想像，在甚麼情況下，可以在區域法院審理侮辱區旗罪。就算在大陸，侮辱國旗情節較輕的，也不過處以15日行政拘留。古思堯那9個月不應改判14日監嗎？1998年的吴恭劭案，同樣侮辱國旗區旗，雖然方式跟古思堯不一樣，也只不過判自簽2000元守行為12個月。吴恭劭案並非判刑指引，但控方也沒有提出判罰過輕的覆核申請，多少反映控方沒有很大異議。
《國旗及國徽條例》屬憲報編號1997年第116號， 《區旗及區徽條例》屬憲報編號1997年第117號，可見兩條例立法草議過程緊貼，在裁判法院處理卻刑罰差異顯著，前者嚴峻，後者矛盾，原審裁判官應把最高刑罰視作監禁1年，古思堯沒有同類紀錄，他雖然否認控罪，卻沒有爭辯案情，可處以罰款，極其量判監14日，4項控罪，part and parcel，同期執行。
| 文件： | A401  | 標題： | 國旗及國徽條例 | 憲報編號： | 116 of 1997 |
| 條： | 7 | 條文標題： | 保護國旗、國徽 | 版本日期： | 01/07/1997 |
| 文件： | A602 | 標題： | 區旗及區徽條例 | 憲報編號： | 117 of 1997 |
| 條： | 7 | 條文標題： | 保護區旗、區徽 | 版本日期： | 01/07/1997 |
(a) 一經循公訴程序定罪，可處第5級罰款及監禁3年；及
(b) 一經循簡易程序定罪，可處第3級罰款及監禁1年。
兩條控罪除了刑罰有別，用字完全一樣。驟眼看不以為意，國旗比區旗尊貴，更應受尊崇，所以刑罰較重？非也，此乃掩眼法。希望讀者不要以為我標異立新，我以下的推論從沒有見其他人講過，如果有的話請告訴我。
首先為不熟悉法律的朋友解釋一下。循公訴程序(on indictment)處理的控罪是比較嚴重的控罪，譬如盜竊，循公訴程序定罪，可判監10年。若然選擇循公訴程序處理的話，審理的法庭會是區域法院或高等法院原訟庭，而不是裁判法院。但是輕微的盜竊，裁判官的權力已足以處理，無需轉介更高級的法院。裁判官處理公訴罪行(indictable offence)的權力，來自《裁判官條例》第92及93條，循簡易程序處理的可公訴罪行法(indictable offences dealt with summarily)，附表2第I部指明的罪行除外(except an offence specified in Part I of the Second Schedule)。公訴罪行循簡易程序處理，裁判官有權判監兩年及罰款100,000元(第6級罰款)。
解釋公訴程序，跟侮辱國旗區旗有甚麼關係呢？我寫的目的是要闡示侮辱國旗，區旗立法的荒謬之處。
侮辱區旗，在裁判官席前只可循簡易程序處理，最多罰10,000元(第3級罰款)及判監1年。但侮辱區旗，單獨一項控罪(stand alone)，可以轉介區域法院審理，而侮辱國旗卻不可以，侮辱國旗單獨一項控罪，只可在裁判法院審理。由此可見，國旗比區旗重要，更應受尊崇，所以刑罰較重的看法並不正確。香港侮辱國旗的法例及刑罰，看來是抄襲《中华人民共和国国旗法》第十九條：
第十九条
在公众场合故意以焚烧、毁损、涂划、玷污、践踏等方式侮辱中华人民共和国国旗的，依法追究刑事责任；情节较轻的，参照治安管理处罚条例的处罚规定，由公安机关处以十五日以下拘留。
（释义）本条是对侮辱国旗的行为追究法律责任的规定。在公众场合故意以焚烧、毁损、涂划、玷污、践踏等方式侮辱中华人民共和国国旗的，依法追究刑事责任；情节较轻的，参照治安管理处罚条例的处罚规定，由公安机关处以十五日以下拘留。
对于在公共场合故意以焚烧、毁损、涂划、玷污、践踏等方式侮辱我国国旗的，应当依法追究其刑事责任或行政责任，以上述方式侮辱我国国旗的，构成侮辱国旗罪，根据全国人民代表大会常务委员会关于惩治侮辱中华人民共和国国旗国徽罪的决定，判处三年以下有期徒刑、拘役、管制或者剥夺政治权利。上述行为情节较轻的，追究其行政责任，参照治安管理处罚条例的处罚规定，由公安机关处以十五日以下拘留的行政处罚。
這篇文不知能否使匿名君滿意？
我同意你的觀點。移植《刑法》應是政治考慮，當局不想讓人有機會得出國旗在SAR比大陸低等的結論。
回覆刪除In that case, the Regional Flag desecration charge should not be indictable. It is absurd. The "on indictment" aspect should be scratched.
刪除That's the mess one will have when he attempts to merge a common law system with a continental one willy-nilly.
刪除If they did indeed copy the text from PRC's Flag Law, then we will have more contradictions: 1) HK has no "administrative detention", which is used to detain people who have not actually committed a crime in PRC; 2) PRC can hold the offender liable either criminally or administratively (but not and/or, based on the letter of the law; and the latter, based on a superficial reading, seems to apply to the misrepresentation of the flag by some government apparatus, but can be applied to individuals as well) while at the same time considers the mutilation of the flag a "crime".
Expanding on the first point, it means that it will be impossible to use PRC's Flag Law as a sentencing guide like you suggested; it is just inapplicable. On the second one, it means that all the considerations in the original text are all gone now, and what is leaving behind is really just a skeleton that cannot seem to decide whether the mutilation of the nation flag is a crime or not. The current HK law does not sit well with the spirit of the original law.
I will throw another one out: no common law jurisdiction that I know of would hold anyone liable for mutilating the national flag. This type of legislation is really a continental thing, and it does not sit well with the spirit of the common law.
montwithin,
刪除I did not expand my study to see if there is any similar legislations in the common law system.I take your words. Even if the law comes from the continental system, it can sit well and settle well in the HK law if judicial officers have an indoctrinated mindset of the common law system.
The legislation is ridiculous enough but what is more pathetic is that the trial magistrate appeared to me trying to shoe shine PRC. His reasons to justify a severe sentence, as reported, were absurd. The reasons he gave were a unison of the octave of the mainland judge. He was making the defendant a hero in this case. If he tried to be a sycophant, then it was a failure. No wonder I could find so many faults on the judicial officers these days. Their appointments are controversial. Some of them are obviously unfit to be appointed.
New Zealand does have a law banning flag desecration, but its supreme court had ruled that it has to be read consistently with the freedom of expression, so it is rather pointless.
回覆刪除HK can solve the contradictions by either: 1) having the highest court to rule on how and where freedom of expression ends, and the result of which wouldn't be pretty to either side; 2) having an "activist" judge to do a reading-in by saying the desecration of flag is not a crime when it is exercised with the intent to express freely, basically going the New Zealand route.
I realise now there are quite a number of countries stipulate laws to ban desecration of national flag. These countries include USA, Australia and New Zealand. The NZ case you referred to in the comment should be Hopkinson v. Police, [2004] 3 NZLR 704, the full judgement of which I am unable to find at the moment. The issue in that case is apparently the desecration of flag contravened the NZ Bill of Rights. After Hopkinson, the police appeared to try to bypass this precedent by charging the defendant in another case (The Queen v Valerie Morse [2009] NZCA 623) with Offensive Behaviour (for burning the flag) under Summary Offences Act 1981. She was convicted and her appeal dismissed in the High Court of NZ but overturned in the Court of Appeal. The focus was shifted from flag desecration to Offensive Behaviour. Maybe, it is time the issue be revisited in the Court of Final Appeal of Hong Kong, though the revisitation is an uphill battle. For Ku, it is worth a try if his appeal against conviction is dismissed in the High Court. I assume he will appeal both conviction and sentence.
刪除For option 1, it appears that our CFA had dealt with this issue in Ng Kung Siu case and it is unlikely that it will overrule its previous decision (besides, the chance of having similar cases going all the way up to the CFA is very slim). For option 2, it appears that even we have an "activist" magistrate who is willing to do it, it is very likely for the prosecution to appeal. The magistrate's ruling is very likely to be overruled by the appellate court, unless we have a couple of Lord Denning sitting not just in the appellate court but also in our CFA.
刪除All I wanna say is that it is the five-starred red flag flying over the land...unlike the star-spangled banner which would "protects those who hold it in contempt".
Bill,
刪除Yes, some did try but their supreme courts ruled against them each time.
Anonymous,
If they don't go for either option, then like Bill said above, they would be making a martyr out of Koo, and thus defeating the purpose of their action.
Anyway, I don't know how or if they can take it up to CFA (again) in face of Ng Kung Siu case, but then, like you said, it shows that it's the five stars flag flying all over now. There is no place for constitutional reasoning when you have that.
Anonymous and montwithin,
刪除Frankly, a second bite of CFA is only my wishful thinking. In Ng Kung Siu, CFA has considered the Basic Law as well as the Bill of Rights. CFA concluded the restriction on freedom of speech and expression is necessary. In para 63 of the judgement, the court opined,
"Accordingly, section 7 of the National Flag Ordinance and section 7 of the Regional Flag Ordinance are necessary for the protection of public order (ordre public). They are justified restrictions on the right to the freedom of expression and are constitutional."
There is almost no room for revisitation.
Let 古思堯 be the martyr again under the 5 stars flag if the appeal of sentence is not allowed to a large extent. Sometimes I feel tha it is a blessing to have left the arena. My conscience is not tainted or my eyes are not tinted by the crimson flags. I can still enjoy the freedom of posting my demurred views.
Para. 63 seems like a gross misrepresentation of Art. 12 ICCPR, in which "protection of public order" means in case of national emergency such as being invaded by a foreign power or stopping hate crimes even. One cannot use this against imaginary threats. I'm disgusted by just reading that.
刪除montwithin,
刪除Maybe I should not just give readers a slice of the pie. I think in Ng Kung Siu, the concept of public order was discussed in a wider perspective. I should cite 2 more paragraphs here in all fairness.
"49. It is important to recognise that the concept of public order (ordre public) is not limited to public order in terms of law and order. This is well recognised by textwriters and has been accepted in decisions in Hong Kong. See Tam Hing-yee v Wu Tai-wai [1992] 1 HKLR 185 at 190 and Secretary for Justice v Oriental Press Group Ltd [1998] 2 HKLRD 123 at 161 (CJHC and Keith J at first instance) (also reported at [1998] 2 HKC 627) and on appeal to the Court of Appeal Wong Yeung Ng v Secretary for Justice [1999] 2 HKLRD 293 at 307I (also reported at [1999] 2 HKC 24). The expression used is not merely "public order" but "public order (ordre public)". The inclusion of the words "ordre public" makes it clear that the relevant concept is wider than the common law notion of law and order. In this case, both the Magistrate and the Court of Appeal appear to have dealt with the concept of public order (ordre public) as limited to public order in terms of law and order. That approach is not correct."
...........
"55. As to the time, place and circumstances with which we are concerned, Hong Kong has a new constitutional order. On 1 July 1997, the People's Republic of China resumed the exercise of sovereignty over Hong Kong being an inalienable part of the People's Republic of China and established the Hong Kong Special Administrative Region under the principle of "one country, two systems". The resumption of the exercise of sovereignty is recited in the Preamble of the Basic Law, as "fulfilling the long-cherished common aspiration of the Chinese people for the recovery of Hong Kong". In these circumstances, the legitimate societal interests in protecting the national flag and the legitimate community interests in the protection of the regional flag are interests which are within the concept of public order (ordre public). As I have pointed out, the national flag is the unique symbol of the one country, the People's Republic of China, and the regional flag is the unique symbol of the Hong Kong Special Administrative Region as an inalienable part of the People's Republic of China under the principle of "one country, two systems". These legitimate interests form part of the general welfare and the interests of the collectivity as a whole."
Bill,
刪除Their reasoning was still wrong, for they were dealing with ICCPR, which the somehow became the central issue in this case. ICCPR Committee (general comment no 34) has this to say, regarding Article 19(3), the order public clause:
"However, when a State party imposes restrictions on the exercise of freedom of expression, these may not put in jeopardy the right itself"
"Paragraph 3 lays down specific conditions and it is only subject to these conditions that restrictions may be imposed: the restrictions must be “provided by law”; they may only be imposed for one of the grounds set out in subparagraphs (a) and (b) of paragraph 3; and they must conform to the strict tests of necessity and proportionality"
"Seccond legitimate ground is that of protection of national security or of public order (ordre public)...Extreme care must be taken by States parties to ensure that treason laws and similar provisions relating to national security, whether described as official secrets or sedition laws or otherwise, are crafted and applied in a manner that conforms to the strict requirements of paragraph 3..."
"the concept of morals derives from many social, philosophical and religious traditions; consequently, limitations... for the purpose of protecting morals must be based on principles not deriving exclusively from a single tradition”. Any such limitations must be understood in the light of universality of human rights and the principle of non-discrimination"
"Restrictions must be “necessary” for a legitimate purpose...a State party, in any given case, must demonstrate in specific fashion the precise nature of the threat to any of the enumerated grounds listed in paragraph 3 that has caused it to restrict freedom of expression"
"Restrictions must not be overbroad. The Committee observed in general comment No. 27 that “restrictive measures must conform to the principle of proportionality; they must be appropriate to achieve their protective function; they must be the least intrusive instrument amongst those which might achieve their protective function; they must be proportionate to the interest to be protected…The principle of proportionality has to be respected not only in the law that frames the restrictions but also by the administrative and judicial authorities in applying the law”. The principle of proportionality must also take account of the form of expression at issue as well as the means of its dissemination"
Further interpretation on the restriction of rights (general comment 27):
刪除"States should always be guided by the principle that the restrictions must not impair the essence of the right...the relation between right and restriction, between norm and exception, must not be reversed" (note: meaning rights should be held in higher regard)
"it is not sufficient that the restrictions serve the permissible purposes; they must also be necessary to protect them. Restrictive measures must conform to the principle of proportionality; they must be appropriate to achieve their protective function; they must be the least intrusive instrument amongst those which might achieve the desired result; and they must be proportionate to the interest to be protected"
"The principle of proportionality has to be respected not only in the law that frames the restrictions, but also by the administrative and judicial authorities in applying the law. States should ensure that any proceedings relating to the exercise or restriction of these rights are expeditious and that reasons for the application of restrictive measures are provided."
Thus CFA's reasoning failed both test of necessity and proportionality. It cited order public as a "permissible purposes" but did not define, clarify, and characterise, the nature of the threat the society will be facing. "State party, in any given case, must demonstrate in specific fashion the precise nature of the threat", and the threat has to be big enough. Hurting one's feeling is not a threat to the society.
刪除The New Zealand Supreme Court made the right interpretation here. It would be unnecessary to restrict the freedom of expression using flag desecration law when the person was merely expressing a political statement, and rights have to be held in higher regard than restriction; however, he could be criminally liable if his intent was to provoke hatred and/or violent actions.
Furthermore, the court must take into account of its common law traditions, where such restriction is considered unconstitutional in similar jurisdictions. In addition, most HK people probably don't care about the flags, so the order public interpreted in lights of social interest and morality does not work.
Anyway, Koo could definitely argue that his sentence was disproportional.
montwithin,
刪除I have to throw the towel.
I think a more detailed discussion on the proportionality principle can be seen in LEUNG KWOK HUNG AND OTHERS v. HKSAR; Reported in: [2005] 3 HKLRD 164; (2005) 8 HKCFAR 229. I think CFA canvassed the issues in your further comments. In Ng Kung Siu, the discussion was too brief.
Dear Bill
回覆刪除Perhaps we should look at the whole matter from a different angle - result is the only thing that matters.
Since a maximum of 3 years' imprisonment can be imposed for desecration of PRC flag by way of summary trial without the need for an indictment, it reflects the seriousness in it. After all, why bother to try it in DC or CFI if they can secure the maximum penalty by way of summary trial.
True. I just want to show my displeasure about the stipulation of punishment for desecration of the Regional Flag when compared with that of the National Flag. One way of sentencing is to look at the maximum. The other way is to look at the norm and also the severity of the act. The trial magistrate seems to look at it like an offence of Disorderly Conduct was before the court.
刪除I could see the sentencing norm from a leftist newspaper compiling a table about the court results in dealing with these kind of cases. They were from binding over, fine to short term imprisonment. Most of the cases tried in the magistrate's court with a jurisdiction of 2 years' imprisonment and yet rarely do we see the justification of a sentence on the high end of the scale.
I'm going on a complete tangent here. I wonder why people like the dean of the law faculty of HKU don't come out and make a big deal out of this issue. This one is much more important than Lin's article; it has been taken to the CFA, and there is ground to suggest that CFA has erred in its reasoning. Ideally, there would have been a league of lawyers working on this case at this very moment. Perhaps I'm just to naive to even have that image in my head.
回覆刪除montwithin,
刪除I am sorry to say you are naive this time to have that kind of image in your mind. Never once did I see academic or Senior Counsel expressing any demurred view about the CFA decisions. League of lawyers working on this case is purely your wishful thinking.
I should say except the ones who are politically ehcoing the Chinese octave and singing like the Yellow River Cantata.
刪除