現在很多人討論公民抗命， 謝連忠律師表示："2014 年賀輔明勳爵 Lord Hoffmann 對公民抗命的正解，2014年的說話，可以用來反駁楊振權2017
的判詞，不承認公民抗命的客觀存在，等如不承認法律對公民抗命的應有承認，這是違反法治傳統，因此公民抗命，在接受了法律的懲罰之後，是無罪的，而法官判刑時，也要考慮這個良好動機，拒絕考慮和抵賴此事實，才是有違法治、破壞法治。"另一位大狀也表示：“ 儘快上訴終審澄清公民抗命彰顯公義的相對刑責吧。”
大律師公會在2014年10月發表了聲明，引用了加拿大英屬哥倫比亞省最高法院首席法官 McEachern 的判詞，“公民抗命是一個哲學原則，而不是法律原則。”
但是在普通法中，法庭還是會觸及公民抗命，主要不是定罪，而是在量刑(註0)。賀輔明勳爵曾在判詞中觸及到公民抗命，並廣泛地被引用(註1)。他在一宗發生在2003年英國反伊拉克戰爭中，反戰份子衝入英軍基地大肆破壞的上訴案件中為公民抗命定下了詮釋。這就是石永泰資深大律師指責戴耀庭副教授，“講D唔講D”的地方。它其實只有7段(註2)。討論的中心是第89段。
89.
My Lords, civil disobedience on conscientious grounds has a long and
honourable history in this country. People who break the law to affirm
their belief in the injustice of a law or government action are sometimes
vindicated by history. The suffragettes are an example which comes immediately
to mind. It is the mark of a civilised community that it can accommodate
protests and demonstrations of this kind. But there are conventions which
are generally accepted by the law-breakers on one side and the law-enforcers on
the other. The protesters behave with a sense of proportion and do not cause
excessive damage or inconvenience. And they vouch the sincerity of their
beliefs by accepting the penalties imposed by the law. The police and
prosecutors, on the other hand, behave with restraint and the magistrates
impose sentences which take the conscientious motives of the protesters into
account. The conditional discharges ordered by the magistrates in the cases
which came before them exemplifies their sensitivity to these conventions.
其大意是肯定了公民抗命的傳統，但抗爭者要食自己，不要以為公民抗爭可以用來脫罪，(當然，完全和平的方式除外，而這些是在人權法等的保障之下)。賀輔明勳爵定下的最重要的法律範疇是：在沒有過份破壞的情況下，裁判官應考慮抗命者的動機(作為酬情輕判)。在這場官司中，示威者破壞了當相的政府物資，而裁判官確是輕判了他們，除了一人曾犯有多宗嚴重案底，被判入獄。這個判詞是五位大法官一致同意的。
這裡還應該注意，根據英國刑事破壞法，它是不用考慮犯事者的動機的。(註3) 賀輔明勳爵是在這之上加上其詮釋的。
(3) For the
purposes of this section it is immaterial whether a belief is justified or not
if it is honestly held."
現在讓我們再看一看公民廣場案上訴庭的判詞：
『67. 原審裁判官認為此案不同一般刑事案件，在考慮案件嚴重性之餘，亦須考慮犯案目的。她信納答辯人等是真心為自己的政治理念及因為對社會現狀關心而表達訴求，而並非是為了自己。』
(看來原審法官是採納了賀輔明勳爵的原則。)
上訴庭認為：
『155. 確立的法律原則是，上訴法庭不會輕易接納律政司司長提出的判刑覆核申請，把下級法庭所處以的判刑上調。原因包括（一）原判刑的法庭對案件有耳聞目賭的優勢，對罪行的嚴重性自有全面了解，多能對犯案者處以合適的判刑；及（二）法律有傾向保障人身自由的推定 (presumption in favourem libertatis)，上訴法庭不會輕言下級法庭的判刑是明顯過輕。相關的法律原則可參考：Attorney General v Lau Chiu-tak & Another [1984] HKLR 23，Secretary for Justice v Wong Chi
Wai [2012] 3 HKC 361。因此，律政司司長必須說服上訴法庭，下級法庭的判刑是犯了法律上的錯誤，或明顯過輕，上訴法庭才會干預，把判刑上調。本席認為，根據所有相關的證據，本案的犯罪情節明顯是嚴重的，是涉及暴力之大規模及嚴重的非法集結。』
原則性的錯誤
『167. 本席認為，原審裁判官在判刑時犯了以下原則性的錯誤：
(一) 原審裁判官完全沒有考慮判刑須具阻嚇的判刑元素，而一面倒地給予答辯人等個人情況、犯案動機等因素不相稱的比重。
(二) 原審裁判官認為案件不涉及嚴重的暴力行為。但是，她卻忽略了這是大規模的非法集結，當中暴力衝突的風險很高。
(三) 原審裁判官認為雖然於保安員在事件中受傷，但是沒有證據顯示各答辯人有份參與導致，或有意圖使他人受到傷害。可是，正如上文指出，從當時客觀的實際環境看來，答辯人等事前一定可以合理地預計得到，參與行動的人和保安及警方發生衝突，有保安因而受傷是無可避免的。可是，原審裁判官完全忽略了這點。
(四) 原審裁判官認為答辯人等只是為了進入一個他們真誠地相信富有歷史意義及代表性的「公民廣場」，圍成一圈喊口號。可是，原審裁判官忽略了事發當晚，學聯和學民思潮已在政總對出的馬路完成集會，而政總前地當時是關閉的，他們沒有絕對權利一定要進入政總前地集會，他們卻執意強行非法進入，又鼓勵或煽動他人強行非法進入，這不僅是自以為是，更是漠視法紀。
(五) 原審裁判官錯誤地給予答辯人等有悔意這一點過份的比重。其實答辯人等除了對保安人員受傷表示歉意外，他們仍然堅持強行進入政總前地是對的，因為他們始終認為這只是行使他們的言論和集會自由。第一答辯人在其社會服務令報告書更表明對其所作所為全無悔意，他認為控罪是侵犯了他的人權，他亦是因公義被定罪。第三答辯人在其社會服務令報告書也有類似的說法。答辯人等即使不否認他們所做過的行為，並表示尊重法庭，又願意在審訊被定罪後承擔法律後果，他們所謂的悔意其實是表面的，可獲法庭給予的比重不應過高。』
(在這裡，上訴庭認為原審法官原則性犯錯的第一點是，“不相稱的比重”。但相比英國反戰份子衝擊軍營案，衝入公民廣場明顯是小兒科。可是不知為何，辯方三位大律師沒有引用此案例，他們一定曾考慮其原因。)
法律的道路已完
從以上分折，似乎有一絲上訴至終審的機會。但律師對所有官司都說成有得打的。只是這場官司必然是政治為主，因為大陸佬一定不同意“沒有阻嚇作用”。
筆者認為，社會抗爭不能服從於法律抗爭之下。例如，十多萬人走上街頭抗議政治審判，明顯是不少市民的看法，與何為政治審判無關。市民不滿上訴庭判決，也與是否攻擊法治無關。回顧古今的社會抗爭，當中的理由邏輯並非最重要因素。
公民抗命是政治範壔而不是法律範壔。在廣場三人案中，三人有兩個屬性，作為領袖和作為衝擊者， 而法院以阻嚇作作為立案重點，顯然荒謬。因為當天參與衝擊者有數十人，他們不會成為領袖，所以法庭無須阻嚇其領袖屬性。
但作為衝擊屬性，又為何選出他們三位呢?例如黃之峰，在社會上有很多支持者，他的大多數支持者不會或不喜歡衝擊的。因而他的教義基本上沒有問題，又為何政治性選擇打擊他呢?由此推論，那天參與者與他們的教義無關， 根本上他們(青年人)傾向衝擊抗議手法。判詞又引用"何必選中我"原則， 但在數十衝擊者中選出他們三人，又令人不服。說到底，法律是為管治階級服務，阻嚇羊群反抗。法律本質是鎮壓機器，
和它討論公民抗命權，是美化了它，給它公義的外衣。
筆者認為：法律的道路已走完。“一個高度分裂型社會，只能適用經濟學家弗蘭克.奈特那句話:基本價值觀的差異是誰能戰鬥到最後的差異。”正正因為很多人走上灣仔街頭，所以林鄭和袁國強頻頻解畫。
--------全文完--------
備註
註0
Sentencing on Conviction
District Judges are usually aware of Lord
Hoffman’s remarks, but lay justices (and their clerks) are often not. It is
important that advocates – and especially defendants representing themselves –
draw the court’s attention to this passage on acting on grounds of conscience,
which is in paragraph 89, R v Jones
[2006] UKHL16.
註一
When civil disobedience is the just
response to an unjust law
By Michael Sissons
12:01AM BST 22 Aug 2003
In a recent judgment in the Court of
Appeal, Lord Hoffmann commented on Dworkin's summary as follows: "It will
of course be different if the law itself is unjust. The injustice of the law
will carry over into its enforcement."
We could promise the Government to make a
ban unenforceable in the run-up to the next general election. We would adhere
to the tenets of civil disobedience developed by Gandhi and Martin Luther King,
which we understand as follows:
1 A valid cause. Ours is now liberty rather
than hunting.
2 Large numbers, strong leadership, and
organisation in support. These we have.
3 All initiatives must be non-violent in
all circumstances.
4 We must generate victimless crimes. We
must try to generate humour.
5 Where there is a price to be paid for our
actions, it is we, not members of the public, who must pay it.
6 Our campaign must be totally inclusive,
involving the widest possible spectrum of support in its planning and
execution.
註二
Judgments - R v. Jones (Appellant) (On
Appeal from the Court of Appeal (Criminal Division)) (formerly R v. J
(Appellant)), Etc
Civil disobedience
89. My Lords, civil
disobedience on conscientious grounds has a long and honourable history in this
country. People who break the law to affirm their belief in the injustice
of a law or government action are sometimes vindicated by history. The
suffragettes are an example which comes immediately to mind. It is the mark
of a civilised community that it can accommodate protests and demonstrations of
this kind. But there are conventions which are generally accepted by the
law-breakers on one side and the law-enforcers on the other. The protesters
behave with a sense of proportion and do not cause excessive damage or
inconvenience. And they vouch the sincerity of their beliefs by accepting the
penalties imposed by the law. The police and prosecutors, on the other hand,
behave with restraint and the magistrates impose sentences which take the
conscientious motives of the protesters into account. The conditional
discharges ordered by the magistrates in the cases which came before them
exemplifies their sensitivity to these conventions.
90. These appeals and similar
cases concerned with controversial activities such as animal experiments, fox
hunting, genetically modified crops, nuclear weapons and the like, suggest the
emergence of a new phenomenon, namely litigation as the continuation of protest
by other means. (See, for examples, R v Hill (1988) 89 Cr App R 74 (nuclear
weapons) Blake v Director of Public Prosecutions [1993] Crim LR 586 (Gulf War)
Morrow, Geach and Thomas v Director of Public Prosecutions [1994] Crim LR 58
(anti-abortion) Hibberd v Director of Public Prosecutions (27 November 1996)
Divisional Court, unreported (Newbury by-pass) Hutchinson v Newbury
Magistrates' Court (2000) 122 ILR 499 (Trident missiles) Nelder v Crown
Prosecution Service (3 June 1998) Divisional Court, unreported (fox hunting)
Lord Advocate's Reference No 1 of 2000 2001 JC 143 (Trident missiles) Director of
Public Prosecutions v Tilly [2002] Crim LR 128 (genetically modified crops)
Monsanto v Tilly [2000] Env LR 313 (genetically modified crops).) The
protesters claim that their honestly held opinion of the legality or dangerous
character of the activities in question justifies trespass, causing damage to
property or the use of force. By this means they invite the court to adjudicate
upon the merits of their opinions and provide themselves with a platform from
which to address the media on the subject. They seek to cause expense and, if
possible, embarrassment to the prosecution by exorbitant demands for
disclosure, such as happened in this case.
91. In Hutchinson v Newbury
Magistrates' Court (2000) 122 ILR 499, where a protester sought to justify
causing damage to a fence at Aldermaston on the ground that she was trying to
halt the production of nuclear warheads, Buxton LJ said:
"There was no immediate and instant
need to act as Mrs Hutchinson acted, either [at] the time when she acted or at
all: taking into account that there are other means available to her of
pursuing the end sought, by drawing attention to the unlawfulness of the
activities and if needs be taking legal action in respect of them. In those
circumstances, self-help, particularly criminal self-help of the sort indulged
in by Mrs Hutchinson, cannot be reasonable."
92. I respectfully agree. The
judge then went on to deal with Mrs Hutchinson's real motive, which ("on
express instructions") her counsel had frankly avowed. It was to
"bring the issue of the lawfulness of the government's policy before a
court, preferably a Crown Court." Buxton LJ said:
"In terms of the reasonableness of Mrs
Hutchinson's acts, this assertion on her part is further fatal to her cause. I
simply do not see how it can be reasonable to commit a crime in order to be
able to pursue in the subsequent prosecution, arguments about the lawfulness or
otherwise of the activities of the victim of that crime."
93. My Lords, I do not think that
it would be inconsistent with our traditional respect for conscientious civil
disobedience for your Lordships to say that there will seldom if ever be any
arguable legal basis upon which these forensic tactics can be deployed.
94. The practical implications of
what I have been saying for the conduct of the trials of direct action
protesters are clear. If there is an issue as to whether the defendants were
justified in doing acts which would otherwise be criminal, the burden is upon
the prosecution to negative that defence. But the issue must first be raised by
facts proved or admitted, either by the prosecution or the defence, on which a
jury could find that the acts were justified. In a case in which the defence
requires that the acts of the defendant should in all the circumstances have
been reasonable, his acts must be considered in the context of a functioning
state in which legal disputes can be peacefully submitted to the courts and
disputes over what should be law or government policy can be submitted to the
arbitrament of the democratic process. In such circumstances, the apprehension,
however honest or reasonable, of acts which are thought to be unlawful or
contrary to the public interest, cannot justify the commission of criminal acts
and the issue of justification should be withdrawn from the jury. Evidence to
support the opinions of the protesters as to the legality of the acts in
question is irrelevant and inadmissible, disclosure going to this issue should
not be ordered and the services of international lawyers are not required.
95. I would dismiss these
appeals.
LORD RODGER OF EARLSFERRY
My Lords,
96. I have had the privilege of
considering the speeches of my noble and learned friends, Lord Bingham of
Cornhill and Lord Hoffmann, in draft. I agree with them and, for the reasons
which they give, I too would dismiss the appeals and answer the certified
questions in the manner proposed. There is nothing which I can usefully add.
LORD CARSWELL
My Lords,
97. I have had the advantage of
reading in draft the opinions prepared by my noble and learned friends Lord
Bingham of Cornhill and Lord Hoffmann. I entirely agree with their reasons and
conclusions and cannot usefully add to them. I would dismiss the appeals and
answer the certified questions in the manner proposed.
LORD MANCE
My Lords,
98. I have had the advantage of
reading in draft the speeches of my noble and learned friends, Lord Bingham of
Cornhill and Lord Hoffmann, and I agree with their conclusions.
LORD MANCE
註三
Judgments - R v. Jones (Appellant) (On
Appeal from the Court of Appeal (Criminal Division)) (formerly R v. J
(Appellant)), Etc.
HOUSE OF LORDS
SESSION 2005-06
[2006] UKHL 16
on appeal from: [2004] EWCA Crim 1981 and
[2005] EWHC 684 (Ad
The charges
39. Most
of the demonstrators were prosecuted summarily before the Magistrates' Courts
(at Southampton or Cirencester respectively) on charges of aggravated trespass
or criminal damage. Aggravated trespass is an offence under section 68 of the
Criminal Justice and Public Order Act 1994. At the time of these events (the
scope of the offence has since been broadened) it was committed by a person
who—
"(1)…trespasses
on land in the open air and, in relation to any lawful activity which persons
are engaging in or are about to engage in on that or adjoining land in the open
air, does there anything which is intended by him to have the effect…(b) of
obstructing that activity, or (c) of disrupting that activity.
(2) Activity
on any occasion on the part of a person or persons on land is 'lawful' for the
purposes of this section if he or they may engage in the activity on the land
on that occasion without committing an offence or trespassing on the
land".
40. Criminal
damage is an offence under section 1(1) of the Criminal Damage Act 1971:
"A person
who without lawful excuse destroys or damages any property belonging to another
intending to destroy or damage any such property or being reckless as to
whether any such property would be destroyed or damaged shall be guilty of an
offence."
41. Section
5 enlarges upon the concept of reasonable excuse:
"(2) A
person charged with an offence to which this section applies shall, whether or
not he would be treated for the purposes of this Act as having a lawful excuse
apart from this subsection, be treated for those purposes as having a lawful
excuse — …
(b) if
he destroyed or damaged or threatened to destroy or damage the property in
question or, in the case of a charge of an offence under section 3 above,
intended to use or cause or permit the use of something to destroy or damage
it, in order to protect property belonging to himself or another or a right or
interest in property which was or which he believed to be vested in himself or
another, and at the time of the act or acts alleged to constitute the offence
he believed—
(i) that
the property, right or interest was in immediate need of protection; and
(ii) that
the means of protection adopted or proposed to be adopted were or would be
reasonable having regard to all the circumstances.
(3) For the
purposes of this section it is immaterial whether a belief is justified or not
if it is honestly held."
全文完
沒有留言:
張貼留言