2017年7月17日 星期一

區慶祥在處理DQ4位議員案裡

區慶祥在處理DQ4位議員案裡,設立了8項准則及2個客觀標準。若將案件上訴至終審,可能需要推翻其前設或證明其運用不當。

准則一

依法宣誓是成為議員的必要條件。(1)

准則二

依法宣誓意即宣讀誓章時須符合三規定:“嚴格形式和內容規定”“莊重規定”、“實質信念規定”。(高院上訴庭案例,首席法官;釋法)(註二)

准則三

增多或減少即違反“嚴格形式和內容規定”。(高院上訴案例,夏正民;釋法)(註三)

准則四

“莊重規定”要符合一般意義上的尊嚴和莊重。 (釋法,高院上訴案例,原訟庭案例)(註四)

准則五

“實質信念規定”要反映在宣誓者的十分認真和真心實意地願意執行誓章的內容。(釋法,高院上訴案例,原訟庭案例) (註五)

准則六

改變了誓章的形式、內容及宣誓的方式,即屬觸犯《基本法》第104條,即立即失去議員資格。(釋法,高院上訴案例,原訟庭案例)(註六)


准則七

法院是對宣誓是否合乎要求的最終裁決。(高院上訴庭案例)

准則八

法院以客觀測試驗證宣誓人是否合符要求,宣誓人的主觀意圖是無須考慮的。(釋法,高院上訴案例,原訟庭案例)

客觀測試

測試一
宣誓人的行為、態度及言詞如何向一位合理人士傳遞的訊息。
測試二
某客觀組成不符合宣誓內容的做法。(註九)

後記

由以上看到,今次判詞的設定十分嚴苛,對餘下的尚未DQ的議員帶來實質壓力。因為不單止政府,任何藍絲希望上位,提出訴訟,法院都很難拒絕許可。筆者仍然認為總辭是解決這方面壓力的唯一方法。

雖然案件未引用終審法院案例,是否打上終審需要考慮:
1.          龐大的經濟負擔;
2.          終審會否推翻高院首席法官的判詞;
3.          終審的判詞將成案例,影響往後判決;
4.          會否引來人大釋法,迫死終審;
5.          拖延補選,做成實質懸空。

總之,現在的問題已是政治掛帥,不單是法律問題。

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附錄

1
B3.   The legal requirements for taking the LegCo Oath
26.   Upon considering the plain words of BL104, the Interpretation, the relevant provisions in the ODO, the CA Judgment, the CA Leave Judgment, and the CFI Judgment, together with the authorities cited in those judgments, the court has identified the following legal principles which govern the taking of the LegCo Oath as prescribed by BL104.
27.   First, it is a constitutional and mandatory requirement that a member elect of the LegCo must properly and validly take the LegCo Oath both in form and in substance as required by the law before he could assume the Office.  In other words, taking the LegCo Oath in accordance with the law is a prerequisite and precondition to the assumption of the Office.  See: BL104, the Interpretation, paragraph 2(1) and the CA Judgment, paragraph 27.

註二
28.   Second, taking the LegCo Oath in form and in substance means, in law, that the oath taker must:
(1)    take the LegCo Oath in exactly the same form and content as prescribed under Schedule 2 of the ODO (“the Exact Form and Content Requirement”);
(2)    do it solemnly and sincerely (“the Solemnity Requirement”); and
(3)    sincerely believe in and strictly abide by the pledges in the oath at the time of taking the oath (“the Substantive Belief Requirement”).
See: the Interpretation, paragraphs 2(2), (3) and 3; the CA Judgment, paragraph 27.

註三


29.   Third, under the Exact Form and Content Requirement, the oath taker must accurately and completely read out the oath as prescribed.  Further, as set out expressly under paragraph 2(3) of the Interpretation, an oath taker who “intentionally reads out words which do not accord with the wording of the oath prescribed by law, …, shall be treated as declining to take the oath.  The oath so taken is invalid and the oath taker is disqualified forthwith from assuming the public office specified in [BL104]” (emphasis added).  The mischief of “reading out words which do not accord with the wording of the prescribed oath” provided in this paragraph as a matter of plain meaning must cover not only the failure to read out words of the prescribed form of the oath, but also the adding of words or worded messages to the taking of the oath.  In the premises, if the oath taker fails to read out the prescribed oath completely and accurately, or seeks to add to the oath other words or worded messages, this would be regarded in law as altering the form and content of the prescribed oath and thus in breach of the Exact Form and Content Requirement.  See also the Interpretation, paragraphs 2(1) and (3).

30.   This is also consistent with the judgement in Leung Kwok Hung v Legislative Council Secretariat (HCAL 112/2004, 6 October 2004, per Hartmann J) at paragraph 35 - 37, as I will further explain at paragraphs 88 - 91 below.

註四

31.   Fourth, under the Solemnity Requirement, the oath taker must take the oath in a such solemn manner.  The word “solemn” bears the commonly understood meaning of being dignified and formal.   In other words, understood in the context of oath taking, the oath taker has to take the oath in such dignified and formal way and manner which commensurate and is consistent with the respect that should be accorded to the constitutional importance of the oath taking requirement, and to reflect and underline the very serious and important commitment of the oath taker to bind himself or herself to bear true allegiance to the Hong Kong Special Administrative Region of the People’s Republic of China and to uphold the BL.  See: the Interpretation, paragraphs 2(2) and (3); the CA Judgment, paragraph 26 and 27, per Cheung CJHC, paragraph 72, per Lam VP; the CFI Judgment, paragraphs 31 to 33; and AG v Bradlaugh (1885) 14 QBD 667 at 685, per Brett MR.

註五

32.   Fifth, under the Substantive Belief Requirement, the oath taker in taking the oath must at the time of the oath also faithfully and genuinely commit and bind himself or herself to uphold and abide by the obligations set out in the LegCo Oath.  See: the Interpretation, paragraph 3; the CA Judgment, paragraph 26 and 27, per Cheung CJHC, paragraph 72, per Lam VP; the CFI Judgment, paragraphs 31 to 33.

註六

33.   Sixth, an oath taker who seeks to alter the form, manner or substance of the oath when taking it will offend BL104 and be unlawful and of no effect.  See: the Interpretation, paragraph 2(2); the CFI Judgment, paragraph 31, adopting Leung Kwok Hung v Legislative Council Secretariat, supra, at paragraphs 36 - 40.
34.   An oath taker would be in law disqualified from assuming or entering on the Office or must vacate the Office if he or she declines or neglects to take the LegCo Oath when requested to do so.  In this respect, the oath taker shall be regarded in law to have declined or neglected to take the LegCo Oath if he commits any intentional acts or conducts, which are found not to be compliant with the oath taking legal requirements.  See: the Interpretation, paragraphs 2(3) and (4); section 21 of the ODO; the CA Judgment, paragraph 43; the CFI Judgment, paragraphs 34 - 35 and 94 - 100.

註七

35.   Seventh, the court is the final arbiter in determining whether an oath taker has declined or omitted to take the LegCo Oath in failing to comply with the legal requirements.  See: the CA Judgment, paragraphs 32   33.

註八

36.   Eighth, the court adopts an objective test in determining this question.  In other words, the court would determine whether the manner and way in which an oath taker takes the LegCo Oath when assessed and viewed objectively is compliant with the legal requirements and whether the said manner and way is carried out intentionally or wilfully.  See: the CA Judgment, paragraphs 5, 27 and 41; the CFI Judgment, paragraphs 33, 35(1), 38   40, 42, 45 and 46.
37.   In this respect, given the objective assessment, the court would look at the conducts, manner and words adopted by an oath taker in taking the LegCo Oath with a view to deciding what meaning those conducts, manner and words convey to a reasonable person, and whether he or she intentionally acted in such a way.  In this objective exercise, the court is not concerned with the subjective meaning of the conducts, manner and words adopted by the oath taker and the oath taker’s subjective intention or thinking in so doing is irrelevant.  Cf: Ming Shiu Chung v Ming Shiu Sum (2006) 9 HKCFAR 334 at paragraph 72, per Ribeiro PJ.
38.   The above principles are in my view clear in light of the authorities and the constitutional and statutory provisions.  However, in support of their opposition in these proceedings, the Defendants’ respective leading counsel have advanced a number of submissions seeking to challenge or qualify the above legal principles.  It is convenient for me to deal with these general legal submissions at this stage.

註九

110. Given the objective test, in determining whether an oath taker has in law declined or neglected to take the oath, it would be sufficient to find that (a) the oath taker intended to adopt the very words, conducts and manner which are under challenge to take the oath; and (b) the said words, manner and way on an objective construction are found to be not in compliance with the oath taking legal requirements.  It is not a necessary element for the court to be satisfied that the oath taker has a specific intent to flout or not to comply with the very legal requirements.  Of course, if it can be established on an objective assessment that the oath taker indeed intended not to comply with those specific legal requirements in taking the oath, it would be a fortiori that he or she has declined or neglected to take the oath.