山中 問我對戴耀廷教授所寫「和平佔中」所犯何法？ 一文有沒有異議，山中在開我玩笑，叫我評論名教授的看法。山中叫到，我很快看了文章一遍，有兩點可以講。第一，教授文中引用香港特別行政區訴周諾恆及另一人案 (HCMA193/2012)來作法律分析，這一點我有極大保留。其實戴教授用周諾恆案來闡釋法律，用得有點奇怪。我以前寫過三篇文關於這件案的，分別為搶咪案的上訴判辭 ,搶咪案的上訴判辭之二 及搶咪案上訴至終審法院 ，高等法院原訟庭法官張慧玲及終審法院上訴委員會均批准控辯雙方上訴許可，以便終審法院審議在公眾地方作出擾亂秩序的行為罪的法律元素，戴教授在終審法院尚未釐清有關元素之前，還依賴該案在高等法院原訟庭的判決作為論據，是否有點魯莽行事。
另一點值得關注的是，戴教授分析參加佔中者可能干犯阻礙公眾地方及未經批准集結罪，並闡述一經定罪，可能的判罰。可是，戴教授沒有進一步說明一旦被定罪的深遠影響。表面上看，一旦被定罪，罰款不超過10000元及判監不超過3個月，3年內不再犯法及定罪，便可受到《罪犯自新條例》不准披露有關案底的保障，不過，有關保障一生只可享用一次，而不是每3年就有一次機會。而且，在《罪犯自新條例》不准披露有關案底的保障下，被定罪的人並不等如這紀錄絕對無需披露。為了參加佔中，在不清楚有可能產生甚麼後果的人，不要只憑勇不可擋之志，換來一生的悔恨。如果決志做死士烈士，認清後果，為了清析目標和遠大理想，那麼，我沒有甚麼可以再講。我想67暴動也有類似心智的人。
I think they are having a conceptual problem of whether to "paralyze" or not. It is all well and jolly if everybody joins them so Central would be paralyzed by default. If they chose to occupy a private area or a lane of the road, the police could remove them from the scene and the movement would end at that point. Whether they would be charged or what sentence they would face are secondary questions.
回覆刪除or they could stick to one place and remain there indefinitely. How'd that work?
If the occupation does not create a paralysing effect, who bothers and why bother? If they just occupy a side street or the promenade, I do not think the police will take action. The police have to be tolerating and strike a balance between the right of protest and law and order. If the entire act is peaceful and creates no obvious disruption, I don't think they will be charged.
回覆刪除I am really puzzled whether they are going to paralyse Central or not. If they stick to one place similar to what was done to HSBC Headquarters, I think there will be application for injunction by the affected party. Maybe you should enlighten me what they really want.
To be honest, I have not a singe clue what they want. First they said they aim to paralyze, then it was about a discussion session, then it became a moral statement, now I'm not sure what it is trying to be.
刪除If I were them, I would announce anything in the first place. I'd just wait to see what kind of act I could do with this amount of people. I guess they originally thought they could do it Indian style, but it is obvious that it could not happen. The best they can hope for now is to emulate Occupy Wall Street, stay in a public place indefinitely or until the police kick them off.
It can be that they are still fathoming their answer.
刪除Perhaps they should have their answer first before trying to do anything.
刪除Maybe they have but they will modify the answer from time to time after collecting wisdom from discussions.
刪除If that's the case, then I cannot fathom what their objective would be, and it seems that their actions are not aligned to an overarching and clear strategic point.
刪除其實如果只犯了公安條例s.17A(2)的未經批准的集結罪或簡易程序治罪條例s.4A的阻街罪，但沒有被判監，是否不會正式留案底？因為根據2004年警務處呈交立法會保安事務委員會的可被記錄罪行名單，這兩項罪行並不在列（但非法集結罪和公眾地方內擾亂秩序行為罪卻是在表中的）。
回覆刪除可被記錄罪行名單中文版： http://www.legco.gov.hk/yr03-04/chinese/panels/se/papers/se0402cb2-2986-1c.pdf
可被記錄罪行名單英文版： http://www.legco.gov.hk/yr03-04/english/panels/se/papers/se0402cb2-2986-1e.pdf
SL
SL,
刪除You are always so helpful.
The list you provide to me is not exhaustive to be honest. There are addition conditions imposed. As stated in the explanatory note, when a sentence of imprisonment (including suspended sentence) is imposed, offences outside the list will also be recorded. Apart from that, the list was compiled in 2004, given the prevalence of protest these days, you don't know if the police have already adjust the list to include some commonly seen offences these days.
S.4A Obstruction has not been included in the list for many years though it is a very common offence day in and day out. Hawking obstruction also is laid under this section. So unless it has come to a custodial end, I believe there should not be anything for the activists to worry about as far as this one is concerned.
S.17A(2) you mentioned above I think you meant to say S.17A(3) Taking part in unauthorized assembly. It is dubious from the police 2004 list whether this one was/is included because it can be generally grouped as Unlawful Assembly in the list. You can see S.17B of Disorderly Conduct is also included so I would infer Taking part in unauthorized assembly is in the recordable list. When tried summarily, it is liable to 3 years imprisonment.
Looking at the list sometimes you will feel it does not make sense to see Begging (Begging for alms)
is also included. It is only a regulatory offence attracting a level 2 fine and imprisonment for 1 month for first and second convictions. Mind you, Obstruction of the public place is liable to 3 months' imprisonment.
"我想67暴動也有類似心智的人。"
回覆刪除Very true. There are several books publishd in the last year or two about those people. This is another clue that the more radical "democrats" are behaving like Hong Kong communists of yesteryears. :)
I actually wrote 2 blogs 《火樹飛花》----讀了之後 and 再寫《火樹飛花》 last November.
回覆刪除Thanks Bill. I will take a look.
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