青關會干擾他人
終審法院在「梁國雄案」（終院刑事上訴2005年第1及2號）中明確表明：「和平集會的權利……意味政府有明確的責任，須採取合理和適當措施，以確保合法舉行的集會能和平進行」。
那即是說，當一些人在行使和平集會的權利時，若受到其他人的干擾，政府（也就是警方）是有責任確保他們能繼續行使和平集會的權利；就如法輪功信徒在行使和平集會的權利時，受到青關會干擾，以大幅橫額遮擋法輪功的攤位，警方有必要採取行動，令法輪功信徒可以繼續行使和平集會的權利。一如終審法院所言，這是警方的法律責任。
警方可能犯上的錯誤，就是視法輪功和青關會兩者都有行使和平集會的權利，為了表示政治中立，因而不採取行動制止青關會干擾法輪功信徒和平集會的權利。
教授上文有關終審法院梁國雄案的引文，來自該案中文撮寫版。這中文撮寫版把原判辭218段撮寫成12段。撮寫的重點準確性是一個問題，再把它的意思進一步自行演繹可能會越撐越遠。2005年的梁國雄案究竟是甚麼案呢？這上訴案所爭議的是和平集結(assembly)須預先獲得警務處長批准的法例是否違憲。
終審法院在「梁國雄案」（終院刑事上訴2005年第1及2號）中明確表明：「和平集會的權利……意味政府有明確的責任，須採取合理和適當措施，以確保合法舉行的集會能和平進行」。
那即是說，當一些人在行使和平集會的權利時，若受到其他人的干擾，政府（也就是警方）是有責任確保他們能繼續行使和平集會的權利；就如法輪功信徒在行使和平集會的權利時，受到青關會干擾，以大幅橫額遮擋法輪功的攤位，警方有必要採取行動，令法輪功信徒可以繼續行使和平集會的權利。一如終審法院所言，這是警方的法律責任。
警方可能犯上的錯誤，就是視法輪功和青關會兩者都有行使和平集會的權利，為了表示政治中立，因而不採取行動制止青關會干擾法輪功信徒和平集會的權利。
教授上文有關終審法院梁國雄案的引文，來自該案中文撮寫版。這中文撮寫版把原判辭218段撮寫成12段。撮寫的重點準確性是一個問題，再把它的意思進一步自行演繹可能會越撐越遠。2005年的梁國雄案究竟是甚麼案呢？這上訴案所爭議的是和平集結(assembly)須預先獲得警務處長批准的法例是否違憲。
青關會在7月15日對法輪功的滋擾事件，以人數而言，並不需要像梁國雄案要預先申請，因為青關會集結人數少於50人。我不能說戴耀廷教授引用梁國雄案那段判辭的中文撮寫無關宏旨，但要指出並非判辭的主旨，而且也引用得不夠全面，判辭第22段這樣講，可以用它來與教授引文比較一下：
Positive duty on the Government
22. Before discussing the constitutional requirements for restriction, it must be 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. However, this obligation is not absolute for the Government cannot guarantee that lawful assemblies will proceed peacefully and it has a wide discretion in the choice of the measures to be used. What are reasonable and appropriate measures must depend on all the circumstances in the particular case.
後面這兩句也很重要，教授沒有引用。教授推論到「一如終審法院所言，這是警方的法律責任」，當真如此？
終審法院進一步引用歐洲人權法庭的案例Plattform ‘Ärzte für das Leben’ v. Austria (1991) 13 EHRR 204，終審法院這樣講：
“Genuine, effective freedom of peaceful assembly cannot, therefore, be reduced to a mere duty on the part of the State not to interfere : a purely negative conception would not be compatible with the object and purpose of Article 11. Like Article 8 [right to respect for private and family life], Article 11 sometimes requires positive measures to be taken, even in the sphere of relations between individuals, if need be.” (para.32)
But the Court recognized that the obligation to take positive measures is not absolute.
“While it is the duty of Contracting States to take reasonable and appropriate measures to enable lawful demonstrations to proceed peacefully, they cannot guarantee this absolutely and they have a wide discretion in the choice of the means to be used. In this area the obligation they enter into under Article 11 of the Convention is an obligation as to measures to be taken and not as to results to be achieved”. (para.34)
如果教授的推論正確，那麼上面這句描述政府權責"they cannot guarantee this absolutely and they have a wide discretion in the choice of the means to be used."應作何解呢？
梁國雄案觸及市民與市民之間和平示威的保障，在另外3段再作解釋：
The protection of the rights and freedoms of others
86. Article 21 of the ICCPR (corresponding to art. 17 of BORO) provides that the protection of the rights and freedoms of others is a legitimate purpose for restricting the right of peaceful assembly. Using the unusual technique which has been referred to, the statute has incorporated it as a purpose in relation to the Commissioner’s discretion to restrict the right and has directed in s.2(2) that it should be interpreted in the same way as under the ICCPR. As with “public order (ordre public)”, it is important to distinguish its function as a constitutional norm in the ICCPR from its use at the statutory level.87. As Mr Martin Lee SC for the 2nd and 3rd appellants fairly accepts, full arguments have not been addressed on the question whether the Commissioner’s statutory discretion in relation to the purpose of the protection of the rights and freedoms of others complies with the constitutional requirement of “prescribed by law” and it would not be appropriate for any concluded view to be expressed on this question.
88. However, it must be pointed out that in the context of the ICCPR, the rights and freedoms of others are not limited to those found in the ICCPR. Nowak: Article 21 p.382 (para.28) and art. 19 p.354 (para.41). The scope of the additional rights and freedoms that are covered may be debatable. As the meaning of the expression in the ICCPR has been incorporated into the Ordinance by s.2(2), it can be seriously argued that in the context of the Commissioner’s statutory discretion to restrict the right of peaceful assembly, a purpose based on a notion of such wide and imprecise import does not satisfy the constitutional requirement of “prescribed by law”.
判辭以 full arguments have not been addressed 及debatable 來描述，教授何以能夠把幾句中文撮寫發揚光大到「就如法輪功信徒在行使和平集會的權利時，受到青關會干擾，以大幅橫額遮擋法輪功的攤位，警方有必要採取行動，令法輪功信徒可以繼續行使和平集會的權利」？歐洲人權法庭也只不過講"they cannot guarantee this absolutely and they have a wide discretion in the choice of the means to be used"。
包致金在該案獨排眾議，成為dissenting minority，也舉了O’Kelly v. Harvey (1883) 14 LR Ir 105來闡述政府對遊行集會作出限制的必要性：
包致金也道出處理社會運動，警察往往要即時作出決定應該採取甚麼行動的難處：
包致金是受民主派廣泛稱讚的開明法官，他尚且體諒前線警察的壓力，市民真的可以隨便謾罵侮辱而心安理得？法律學者引述案例連斷章取義也不如，小市民看了這種文章照單全收，法律界中人只看論據，不看原判辭，也可能毫不懷疑論述的準確性。這種治學態度，豈不是對嚴重分化的社會，傷痕累累的警民關係，再插幾刀？
抽絲剝繭、言必有據；條理分明、無懈可擊;好文！
回覆刪除多謝誇獎，我也可能斷章取義，或者力有不逮，理解錯誤，畢竟218段判辭並不好讀。
刪除I was very lenient when I wrote my post criticizing his logic. His thinking is sloppy and it shows in the way he writes (and with the benefit of having a newspaper editor, no less). He said,「青關會針對法輪功的做法，明顯是有違法律和人權道德的」. First, is it against the law and the morals of human rights? Or, against the law, human rights and moral? Since he was citing human rights law, and the law and human rights law are one and the same thing, it is redundant to separate them into two. This leaves only moral, since his argument on the law is weak. Sure, morally speaking, they are an annoyance, but is it against the law to be a jerk?
回覆刪除Whenever people mention the HK appeal cases in their article, it is my habit of digging out the judgement to have a look to see the ratio decidendi of the case and to examine if there is mis-interpretation. It is not difficult to borrow a few sentences from the judgement and draw some imaginary conclusions. I am not accusing the professor of cheating. I can understand he meant to write something by borrowing the wisdom of the Court of Final Appeal to strengthen his argument and his use of the Chinese summary of the judgement which is normally provided alongside an English summary for the benefit of reporters. He wrote an article in Chinese to publish in the Chinese media. He of course had to write in simple daily language. Even so, the gist of the judgement should not be twisted. He should also emphasize the police had a wide discretion in the choice of the means to be used to protect the rights and freedoms of different protesters.
刪除Since he was citing human rights law, and the law and human rights law are one and the same thing, it is redundant to separate them into two.
刪除----Wrong
Laws have different levels. Canadian Charter of Rights and Freedoms for one has power over any common law.
Please learn to read. You choose not to understand the court's mean idea, but to pick a minor point to show how cool you are. 如果你叫雞，大多數人只會關心只雞身材好吾好，叫床大吾大聲。為可去理巨有冇讀過莎士比亞。
你同你D Friends 都以為自己讀多兩曰書就好叻。吾好笑死人。
標少，
刪除請delete這類低等動物的垃圾回應！
Fans
你哋d 問題就喺覺得自己高人一等。出街行下，追下女仔，個人會正常一點。
刪除上面那一位講「叫鷄」的，請移玉步往對題的平台討論，或者找詹培忠。多讀一兩本書不見得有錯，教授寫文章發表他的個人意見，我不知他是否想笑死人，我只是寫自己的看法，也沒有在他發表的平台留言，沒有妨礙滋擾他。如果我觀點有錯，不如寫一點評論指出來，讓大家笑一下。我一點都唔叻，朋友就好叻，在街上講粗口的我不認識，在法庭上被不知好互的人罵粗口的我倒認識不少。至於一個人是否正常，是一個醫學問題。社會裏有人會心高氣傲，有人會自慚形穢，有人深沉內斂，有人大放厥詞。不正常的人覺得自己正常，或者覺得別人才不正常，如果你認識這種人，就勸他及早求醫，諱疾忌醫，可能會病入膏肓。往往是閉嘴的時候，大家都是正常人，一開口便表露無遺。到了我這把年紀，行街也行得厭了，已到了坐在陽台看街上眾生相的心態，追女仔嘛，恐怕給人在背後講孌童。我為了自己正常一點，不想花唇舌評論閣下這出街追女仔的正常論，否則又要講三段論了。
刪除我覺得上面那位「叫雞」人兄是把戴耀廷看成是個妓男了，否則不會叫我們關心他身材好不好。這人對戴耀廷有「幻想」，我不知道這是否正常。
刪除你想問同性戀是否正常?
刪除請看:http://hktext.blogspot.com.au/2013/08/condemned.html
回覆刪除警方執法不公、放生青關會、唔知閣下又有乜例嚟話警察無權執法呢？
不想重覆講了，請由7月29日的文看起。
回覆刪除Sorry,標少,請先睇睇:呢個係青關會揸把成呎長嘅刀「凶」法輪功,而警察話冇傷人故此唔做嘢,咁又啱?
刪除Did it happen in the same case?
刪除標少:若有引起不快,先行賠個不是。謝謝花時間回答。
刪除Not at all. The purpose of clarifying my stance is to emphasize my impartiality.
回覆刪除From the extracts from the Leung Kwok Hung v HKSAR, FACC2/2005 (8 July 2005), I am afraid, with respect, you have completely misread the judgment and, I hope only unwittingly, been consistently taking things out of their contexts. I tremble, if I might, to find the sheer degree of blind concurrence that I see in the comments under this post. As is said towards the end of the post, “引述案例連斷章取義也不如[sic?]，小市民看了這種文章照單全收 ... 這種治學態度，豈不是對嚴重分化的社會，傷痕累累的警民關係，再插幾刀？”, with which I wholeheartedly agree, I think it only appropriate for me to put right, regrettably belatedly though it is, the unfortunate misinterpretations on the basis of which this post has so merrily proceeded. It may be advisable to always bear in mind these days that even the devil reads the scriptures – and he reads it with the utmost meticulousness.
回覆刪除First, I fail to see how the fact that a duty is not absolute - a principle which both the Court of Final Appeal and the Strasbourg Court have accepted and with which I have little reason to quarrel - can somehow relieve the duty-bears of their duty. The majority of the Court of Final Appeal spoke of "a wide discretion [on the part of the police] in the choice of the measures to be used" (Leung Kwok Hung, [22]), not a discretion WHETHER TO USE ANY MEASURES AT ALL IN THE FIRST PLACE. Nor did anything in the dissenting opinion of the learned Lord Mr Justice Bokhary PJ (as his Lordship then was) appear to allude to a different conclusion on principle. It is, with all appropriate deference and putting it at the lowest, deeply disturbing that someone with a legal background seems to believe that the CFA was, in effect, indulging in an exercise of window-dressing. As the European Court puts it, albeit not a duty in respect of the eventual results achieved, the obligation under Art 11 ECHR is one "as to measures TO BE TAKEN" (Plattform ‘Ärzte für das Leben’ v Austria (1991) 13 EHRR 204 [34]). Giving the word its widest meaning, a "duty", however qualified its scope, however weak its intensity, however free your hand in its fulfilment, is, ultimately, still a duty to be faithfully discharged, even if in some unseemly way. On authorities it is simply unsustainable to maintain that the police are in principle entitled to permit a person unlawfully, in the HKBOR sense (see mutatis mutandis R v To Kwan Hang, HCMA945/1993 (9 September 1994) [41]), interfere with another's freedoms of expression and peaceful assembly, that is, right under their noses.
Of course, it is not inconceivable that, in particular circumstances, non-intervention might in fact be the only "reasonable and appropriate" (Leung Kwok Hung v HKSAR, [22], [65], [92]), or perhaps prudent, measure, but such cases being by their nature rare and exceptional, the onus to justify the police inaction necessarily lies with the sympathisers of the police.
回覆刪除Alongside the misreadings of the Leung Kwok Hung judgment, the abrupt reference to paragraphs 86-88 is also, without intending any offence, extremely baffling. For reasons I am unable to apprehend, there seems to be a mistaken impression that the Court of Final Appeal there was discussing whether "rights and freedoms of others" could, or should, be a basis for proportionate restrictions of Covenant/HKBOR rights. As I read the judgment, the Court was plainly not doing that - the propriety of so treating the phrase is trite and has even been given reaffirmation at the very first sentence of paragraph 86. To that extent the passage quoted at length in this post actually strengthens Professor Tai's thesis rather than detracts from it. It is a puzzle what purpose the quotation is aimed at serving, but it might well purely be the result of my paucity of intelligence.
What the Court was in truth doing bears upon the question of legality, one of those notable aspects of the proportionality test. The Court raised the question, “debatable” (ibid [88]) but not subjected to “full argument” (ibid [87]) as has been rightly point out, whether the phrase “rights and freedoms of others” is capable of covering those rights and freedoms NOT included in the HKBOR itself (hence the epithet “additional” used: ibid [88]). This I find, possibly as a consequence of my limited literacy and reading comprehension skills, not even the most remote relevance to the matter with which this article professes to be dealing. In any case, the rights to freedom of expression and freedom of peaceful assembly of the members of the Falun Gung group fall, plainly and undoubtedly, within the meaning of that phrase, as they are respectively enshrined in Articles 16 and 17 of the HKBOR.
In the final analysis, I wish to stress in my humble opinion that, so long as is compatible with the parameters of reasonableness and proportionality, “政府對遊行集會作出限制的必要性” is self-evident and unquestionable. It is because it is important to strike a fair balance between the rights of demonstrators of one group, and those in opposition to them in another. Again, I am unable to decipher the intended message - assuming, in a spirit of goodwill, its relevance - which underlies the reference to the learned Lord Mr Justice Bokhary PJ’s citation of O’Kelly v. Harvey. Indeed, one should I believe be forgiven for asking, is that not all that was expected by Ms Lam, and indeed many others, of the police – to reasonably and proportionately restrict the right to demonstrate of members of the Hong Kong Youth Care Association Ltd, so as to preserve the freedoms of expression and peaceful assembly of the Falun Gung followers present at the scene?
Thank you for your meticulous analysis. No need to tremble or shudder. After all, what am I? Only when the professors misread and misinterpret the legal precedents do you need to shiver. I will take the time to re-read the judgement to see how wrong I was. In any event, thank you for your contribution.
刪除