tag:blogger.com,1999:blog-3459094382106008140.post6029577320437746116..comments2024-03-29T16:19:39.762+11:00Comments on 標少札記: 侮辱國旗區旗之二標少http://www.blogger.com/profile/09140798187543833983noreply@blogger.comBlogger20125tag:blogger.com,1999:blog-3459094382106008140.post-67753939503633044382013-03-05T21:57:57.860+11:002013-03-05T21:57:57.860+11:00I should say except the ones who are politically e...I should say except the ones who are politically ehcoing the Chinese octave and singing like the Yellow River Cantata.標少https://www.blogger.com/profile/09140798187543833983noreply@blogger.comtag:blogger.com,1999:blog-3459094382106008140.post-2758340520675303252013-03-05T21:33:05.753+11:002013-03-05T21:33:05.753+11:00montwithin,
I am sorry to say you are naive this ...montwithin,<br /><br />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. 標少https://www.blogger.com/profile/09140798187543833983noreply@blogger.comtag:blogger.com,1999:blog-3459094382106008140.post-45990949494445433392013-03-05T20:12:03.995+11:002013-03-05T20:12:03.995+11:00I'm going on a complete tangent here. I wonder...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.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-3459094382106008140.post-59821744292471728902013-03-04T15:26:42.371+11:002013-03-04T15:26:42.371+11:00montwithin,
I have to throw the towel.
I think a...montwithin,<br /><br />I have to throw the towel.<br /><br />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.標少https://www.blogger.com/profile/09140798187543833983noreply@blogger.comtag:blogger.com,1999:blog-3459094382106008140.post-6515833836902076832013-03-04T15:00:01.968+11:002013-03-04T15:00:01.968+11:00Thus CFA's reasoning failed both test of neces...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.<br /><br />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.<br /><br />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.<br /><br />Anyway, Koo could definitely argue that his sentence was disproportional. Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-3459094382106008140.post-69091852440891871862013-03-04T14:37:43.552+11:002013-03-04T14:37:43.552+11:00Further interpretation on the restriction of right...Further interpretation on the restriction of rights (<a href="http://www.unhchr.ch/tbs/doc.nsf/0/6c76e1b8ee1710e380256824005a10a9?Opendocument" rel="nofollow">general comment 27</a>):<br /><br />"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)<br /><br />"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"<br /><br />"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."<br /><br /><br /><br />Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-3459094382106008140.post-90154884530910635192013-03-04T14:24:21.534+11:002013-03-04T14:24:21.534+11:00Bill,
Their reasoning was still wrong, for they w...Bill,<br /><br />Their reasoning was still wrong, for they were dealing with ICCPR, which the somehow became the central issue in this case. ICCPR Committee (<a href="http://acnudh.org/wp-content/uploads/2012/01/CCPR-C-GC-34.doc" rel="nofollow">general comment no 34</a>) has this to say, regarding Article 19(3), the order public clause:<br /><br />"However, when a State party imposes restrictions on the exercise of freedom of expression, these may not put in jeopardy the right itself"<br /><br />"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"<br /><br />"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..."<br /><br />"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"<br /><br />"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"<br /><br />"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"<br /><br /><br />Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-3459094382106008140.post-31212774093991091902013-03-04T08:56:29.255+11:002013-03-04T08:56:29.255+11:00montwithin,
Maybe I should not just give readers ...montwithin,<br /><br />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.<br /><br />"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."<br />...........<br />"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."標少https://www.blogger.com/profile/09140798187543833983noreply@blogger.comtag:blogger.com,1999:blog-3459094382106008140.post-21413485324074344062013-03-04T08:44:11.857+11:002013-03-04T08:44:11.857+11:00True. I just want to show my displeasure about the...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. <br /><br />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.標少https://www.blogger.com/profile/09140798187543833983noreply@blogger.comtag:blogger.com,1999:blog-3459094382106008140.post-26680466834506886762013-03-04T01:10:54.854+11:002013-03-04T01:10:54.854+11:00Para. 63 seems like a gross misrepresentation of A...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.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-3459094382106008140.post-3780515634824888682013-03-04T00:25:17.318+11:002013-03-04T00:25:17.318+11:00Dear Bill
Perhaps we should look at the whole mat...Dear Bill<br /><br />Perhaps we should look at the whole matter from a different angle - result is the only thing that matters.<br /><br />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.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-3459094382106008140.post-7074875244417109662013-03-03T23:01:30.785+11:002013-03-03T23:01:30.785+11:00Anonymous and montwithin,
Frankly, a second bite ...Anonymous and montwithin,<br /><br />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,<br /><br />"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."<br /><br />There is almost no room for revisitation.<br /><br />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. 標少https://www.blogger.com/profile/09140798187543833983noreply@blogger.comtag:blogger.com,1999:blog-3459094382106008140.post-60444944643986762912013-03-03T19:48:19.343+11:002013-03-03T19:48:19.343+11:00Bill,
Yes, some did try but their supreme courts ...Bill,<br /><br />Yes, some did try but their supreme courts ruled against them each time. <br /><br />Anonymous,<br /><br />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. <br /><br />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.<br />Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-3459094382106008140.post-65082401271601054962013-03-03T18:25:11.476+11:002013-03-03T18:25:11.476+11:00For option 1, it appears that our CFA had dealt wi...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.<br /><br />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".Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-3459094382106008140.post-18810635844920896252013-03-03T18:13:23.339+11:002013-03-03T18:13:23.339+11:00I realise now there are quite a number of countrie...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.標少https://www.blogger.com/profile/09140798187543833983noreply@blogger.comtag:blogger.com,1999:blog-3459094382106008140.post-24027001559775255922013-03-03T15:38:20.891+11:002013-03-03T15:38:20.891+11:00New Zealand does have a law banning flag desecrati...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.<br /><br />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. Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-3459094382106008140.post-49442915639017537112013-03-03T12:15:28.509+11:002013-03-03T12:15:28.509+11:00montwithin,
I did not expand my study to see if t...montwithin,<br /><br />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. <br /><br />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.標少https://www.blogger.com/profile/09140798187543833983noreply@blogger.comtag:blogger.com,1999:blog-3459094382106008140.post-41329572412788039532013-03-03T03:38:40.745+11:002013-03-03T03:38:40.745+11:00That's the mess one will have when he attempts...That's the mess one will have when he attempts to merge a common law system with a continental one willy-nilly.<br /><br />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".<br /><br />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.<br /><br />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.<br /><br />Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-3459094382106008140.post-41452101337637361542013-03-02T23:01:10.684+11:002013-03-02T23:01:10.684+11:00In that case, the Regional Flag desecration charge...In that case, the Regional Flag desecration charge should not be indictable. It is absurd. The "on indictment" aspect should be scratched. 標少https://www.blogger.com/profile/09140798187543833983noreply@blogger.comtag:blogger.com,1999:blog-3459094382106008140.post-62708235301658682342013-03-02T22:47:00.392+11:002013-03-02T22:47:00.392+11:00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。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。Anonymousnoreply@blogger.com