ASAKU® X Dragon Life
Part.1
All 13 chapters in this book.
Original author:Mingkun Liu
Translator: Claudia Liu @ fanyi4life
Preface: Outline of ASAKU X Dragon Life
In year 36722 on Epic Calendar...
On the surface in the Epic World, green Mirror Cores started to appear on Humans Continent, Fairies Continent, and Phantom Continent. The location differed every time it happened. Meanwhile, the center was pouring out little guarding monsters. In 24 hours, the green core would turn red and release energy of Reversal Impact in radius of one kilometer, to turn back the time. The energy released would bring even more powerful monsters, together with the supreme core monster. One Mirror Core would cause one Reversal Impact which would turn animals or monsters around berserk as well.
The Mirror Cores emerged one after another, with the intervals of three to seven days. Currently, there was no way to destroy it. Once a Reversal Impact took places, the time within the range would be turned back, as well as the lives and scenery would be restored to the previous condition. In other words, people might become younger, but those who haven’t outlived the time reversed would disappear. Things would be restored to normal once they leave the range.
When Reversal Impact happened, not only time was turned back, but plenty of monsters would pour in to protect the core. People that once lived in the time that was reversed would be brought back as well, but appeared like a reanimated corpse without a soul. Yet for others who still remembered them, it would be a moment to look forward to.
Since the time reversed could not be estimated, no one dared to risk inside the range and fight against the monsters. When the Reversal Impact took place, whoever was inside the range could do nothing but evacuate as soon as possible.
On the surface of the Epic World, the Fairies were the only ones that were invulnerable to Reversal Impact, which also explained why the Mirror Core would not be found on the Fairies Continent. The Fairies were shielded from the danger of the Reversal Impact. We were not entirely sure of the reason why the Fairies were protected, but they did not hold the power to destroy the core. The only solution the Fairies could propose was to seal the core, to stop the monsters from flooding in our world.
Delegated by Oudelos, the Fairies King, Asaku, as the Seal Priest from the Light race, led his partners to explore the world. With the Compass of No Return, which could locate the Mirror Core and calculate the time turned back, Asaku would seal the core to stop Reversal Impact and the inundation of monsters.
Chapter One: Asaku the Seal Priest
At three o’clock in the afternoon on Monday, August 12th, year 36722 on the Epic Calendar...
In the Village of Eden, part of the Kingdom of Phil and located on the south-west of Humans Continent, a Mirror Core appeared and villagers started to evacuate. Troops dispatched by the Kingdom of Phil were engaged in a hard fight against monsters to ensure a safe evacuation of villagers. In the last thirty minutes when the core started to turn red, the military retreated and set up a line of defense in a safe zone outside village. Once the Reversal Impact started, the monsters would no longer be limited. All of a sudden, in front of the troops popped up a Folding Corridor from which a young magic knight walked out. The magic knight was dressed in blue with a white cloak, equipped with the Seal Knife and followed by a clown puppet and a winged lion. There was also an adorable little girl, walking with the trio toward the village. Some soldiers saw them and tried to stop them. The magic knight turned around and said, “Per order of Oudelos, the Fairies King, I am the delegate to seal the Mirror Core. My name is Asaku, the Seal Priest from the Light race. You are all useless here, so just run.”
Soldiers said, “How insolent!”
Hearing this, the little girl standing by Asaku punched him on the shoulder and said, “Asaku, that is just rude!”
Then she turned around and saluted the soldiers, saying, “My name is Ellia, and I am the animal trainer from the Soil race. Asaku is my brother, and I apologize for his attitude. May I ask: who is the general leading the troops?”
The human general stepped ahead, replying respectfully, “We appreciate assistance from the Fairies. This is General Stalul. Please kindly seal the core to prevent even more damage.
Ellia asked, “Have all villagers evacuated?”
General Stalul replied, “Yes, we have sent everyone to a safe place.”
Upon hearing this, Asaku said, “Great! So now I can do anything I want freely!” Then he rushed into the village with the clown puppet and the illusion lion, in the direction where the core was with all the monsters.
Ellia saluted General Stalul again and explained, “I am here to investigate the reason why monsters have gone berserk. Even the generally gentle monsters are turned violent by the core. Please proceed with caution.” Then Ellia ran into the village and caught up with Asaku.
Facing assault of countless monsters, Asaku fought back with the Seal Knife. Those monster who were injured by the Seal Knife were sealed and frozen. Meanwhile, this knife absorbed and stored power of monsters. What’s more, it could also soak up power of attributes from the Nature. For example, if the knife came in touch with stone, it took in the power of soil.
When Asaku cast magic, he had the three-star matrix magic on his left hand, the reversed matrix magic on his right hand, so all he had to do was to take in the power, based on its nature, and use it on the matrix magic to initiate an attack. When swamped by monsters, Asaku could use the reversed three-star matrix magic to amplify the magic power; to focus fire, Asaku could zero in on the three-star matrix magic for a fatal blow. The more power the rituals absorb, the more potent the magic will be.
Ellia used the Love Racket to purge the monsters. Ordinary monsters would be pacified and become passive. Some of them would even help Ellia in combat.
The closer they were to the core, the more powerful the monsters were. Determined to dash into the core, Asaku put away the Seal Knife and yelled at the clown puppet, “Come, Ghost Card Uda, transform into the Sun Sword!" Uda then transformed from a clown puppet into a sword as shining as the sun. Asaku chopped his way toward the core with the Sun Sword. However, where the sun didn’t shine, the sword lost its glow and power as well. Uda said, “Asaku, seriously, I don’t have power without the sun. And the sun is setting soon. So chop chop, wrap it up now!”
Asaku replied, “Yea, roger that. I’ll finish the fight as soon as possible!” Then he hopped on the illusion lion, and dashed toward the core.
Soon Asaku and his partners arrived at the core that was about to turn red, but a baby’s crying caught everyone’s attention. Looking for where the crying was from, Asaku found a young mother holding a baby, hiding in a corner nearby. Asaku shouted but there wasn’t time. Without second thought, Asaku flew to the woman and grabbed her. Ellia held the baby tightly and hoped to take the mother and her baby to safety. At that moment, Reversal Impact happened!!
A strong wave of ripple dispersed and things around started to change. The young mother turned into ashes and disappeared, yet the baby in Ellia’s arms survived unharmed like a miracle. Shocked, Ellia held the baby and screamed, “You said everyone was evacuated, everyone!”
Checking on the Compass of No Return, Asaku learned that the time was turned back eighty years. Ghost Card Uda reminded Asaku to seal the core and prevent more loss.
Asaku asked Ellia to take the baby to safety, but once the baby left Asaku’s arms, he started to cry. No one but Asaku could calm the baby down. The baby clutched Asaku. In the end, Asaku carried the baby on his back and returned to combat to seal the core. Ellia even teased Asaku about the baby.
Irritated, Asaku yelled, “Shut up!!”
The yelling woke up the baby and he started to cry. At the same time, both Asaku and Ellia put a finger in front of the mouth and said, “hssssss” to hush the baby.
Asaku said, “The supreme demon has showed up. Let’s go knock it down, get it done and go home!”
The supreme demon for this core was a giant cannibal flower, spitting poison at Asaku and lashing him with its vines. Dodging with Flying-n-Leaping, Asaku chopped all vines he could but failed to get close to the demon for a direct strike.
Strange to say, but the baby Asaku carried stayed composed through the fight. He was so quiet, unusually quiet.
Ellia rode on a mountain pig she just calmed, trying to assist Asaku in combat. Yet the demon was too powerful, so all she could do was flee.
By then, the sun set completely. Ghost Card Uda shouted, “Oh no! The sun…” then it turned back into the clown puppet.
Without the Sun Sword, Asaku could only fight with the Seal Knife.
Asaku thought, “Seriously, the Seal Knife can’t do the monster much harm because the power it absorbs is not enough. I need a blaze to burn it!”
Then Asaku turned around and shouted at Samoyed, the illusion lion, “Cast three fire bolts at me!”
With one turn over, Samoyed jumped into distance and spat three enormous fire bolts to Asaku.
Asaku lifted his left hand, fingers spread out, and a three-star matrix magic appeared on his palm and took in the fire bolts. Jumping high, Asaku dashed back into the cannibal flower’s mouth with his left fist clutching and the fire bolts amplifying.
Asaku stepped forward, letting go of his left fist, “Three-star matrix magic, Fire Tornado!"
The wave of fire burned the cannibal flower into ashes. Asaku hurried to the Mirror Core with a transparent cube of crystal in his hand, the Holy Crystal Cell with inscription on it. Before Asaku successfully cast the ward and sealed the core, numerous monsters still fought on. Thanks to Samoyed, the illusion lion protected everyone.
With one flash, the ward was complete and the core was sealed. All monsters were gone right away, but the surroundings remained the same. Everything was the way they had been eighty years ago.
When it was safe, Asaku approached the villagers and wanted to hand over the baby to them. Unexpectedly, all villagers panicked. They were convinced that the baby was the son of Demon. Asaku learned that the mother gave birth to the baby without a known father, so no villager was willing to adopt the baby. Besides, the baby wouldn’t let go of Asaku. Without an option, Asaku carried the baby on his back and returned to the Fairies Continent with Ellia, who said goodbye to her new mountain pig friend, through Folding Corridor.
Chapter Two: A Trojan Horse
At eleven o’clock in the morning on Tuesday, August 13th, year 36722 on the Epic Calendar, a meeting was held in the Fairies Empire Meeting room with the presence of Fairies King Oudelos, General Alga, Priest Harp, Fairies Princess Jiefulo, Asaku, Ellia, and the human baby.
Asaku got down on one knee and updated the Fairies King Oudelos the current situation in the Village of Eden, while the human baby slept peacefully in the cradle tended by Ellia.
Asaku ended the report, “My King, this is the update of the event in the Village of Eden.”
The Fairies King Oudelos dismissed Asaku and turned to General Alga, saying, “My General, may I have your thoughts on this?” General Alga was red in the face, and the King yelled at him, “Seriously, you two got drunk this early in the day?”
General Alga explained, “Well, we are not to blame. Priest Harp brews the best wine ever, which is perfect to wake me up in the morning.”
Priest Harp argued, “Alga, I thought we were friends! And I even saved the goodies for you.”
“Ahem…” the King coughed to stop the fight, and then everyone fell silent. The King reached out his hand, and Priest Harp presented the King the wine. Bottom up and the King yelled, “Woot! Great wine indeed!” Then he turned around to Asaku and said, “All right, now we can continue.”
Seeing this, Princess Jiefulo said to the King angrily, “Father, really? You have business to attend to. How could you drink with them so early?”
King Oudelos said, “Awww it’s nothing, my honey. It’s quite peaceful on the Fairies Continent.”
Hands on her hips, Princess Jiefulo said, “Oh my… Some sense of danger, please?”
Scratching his head, Asaku said in a hopeless tone, “Do you old things really care about this Mirror Core?”
General Alga said, “We fairies do not interfere whatever happens outside the Fairies Continent. It was the Holy Dragon King who brought us an order from the Gods, stating that only the fairies can fight against the Reversal Impact, so the King is commanding you to handle the core in the Village of Eden.”
Asaku said, “The Holy Dragon King, you mean the conspirator? Why do we have to listen to him?”
Fairies King Oudelos replied, “Because this is an order from Gods, we have to comply.”
Asaku snorted.
Priest Harp walked toward the human baby and said, “This is a remarkable baby. He completely waves off the influence of Reversal Impact.”
Ellia pulled the baby’s blanket, and found on the blanket it said “Adam.” Surprised, Ellia even saw a birth mark of emblem of rainbow on the baby’s back.
The birth mark seemed to be quite weighty. Both the King and General Alga went to the baby to take a closer look at the baby.
Slowly, the Fairies King spat out, one word after the other, “Rainbow… Savior..."
General Alga said, “So the kid is the new successor of Rainbow Savior. His name is Adam."
Priest Harp said, “I suppose it was part of their plan to send Asaku off to the Village of Eden. We are set up!”
Asaku said, “So what now? This baby is so needy and wouldn’t let go of me. If he wakes up and I’m not around, he’s going to cry like there’s no tomorrow. Nuh-uh, I’m not babysitting anyone.”
General Alga asked, “Wait a second, Asaku, you know where the two cores were previously?”
Asaku replied, “Yes, they were in the Time Library on the Elves Continent and Hugilus Desert, south-east of Kingdom of Phil on the Humans Continent. But when I got there, Reversal Impact had been completed on the cores. When I went to the Eden Village, per the King’s order, I should’ve been able to seal the core and stop everything, but the kid was in the way.”
Priest Harp asked, “Both cores happened near Kingdom of Phil on the Humans Continent? Something doesn’t add up here.”
Abruptly, the Fairies King Oudelos stood up and yelled, “General Alga, rally the guards and prepare for war!” Immediately, General Alga dashed out of the meeting room and alarmed the guards!
Asaku asked, “What’s going on?”
Princess Jiefulo said, “Protect the baby with all you can.”
Hearing this, Ellia grabbed Adam who was sound asleep in her arms tightly.
Priest Harp yelled, “This is a scheme plotted against us! The core in the Time Library was to fabricate the history, while that in the Hugilus Desert was to restore the mirror in the lake. The baby was left there on purpose because they knew he wouldn’t be influenced by the Reversal Impact. In the end, you returned to the Fairies Continent through the Folding Corridor with the baby. Your tracks left behind granted access to those who cannot enter the Fairies Continent through the reflection of mirror.
At that moment, a tremendous crash was heard, which shook the whole Fairies Empire. Priest Harp said, “I will put the baby into deep sleep, so his crying wouldn’t attract the mobs. Ellia, please take care of Adam. Asaku, go defend us!”
Ellia replied, “Yes, Priest Harp, I will protect the baby with all my might.”
Asaku yelled, “The situation is dire. I’m right on it! Ghost Card Uda! Samoyed!”
Asaku summoned two escorts and the three rushed to where the loud noise was from.
Right above the Fairies Empire Hall appeared a crack of time and space, from which poured in lots of monsters! General Alga led the Royal Guards to fight!
Seeing this, Asaku yelled with surprise, “What is this all about!”
The next second, Asaku transformed the Ghost Card Uda into the Sun Sword and joined the fight.
Soon, the King and Princess Jiefulo came to the Fairies Empire Hall, heavily protected by the Royal Guards.
Out of the crack, a phantom fox with nine tails appeared in the middle of the hall.
The phantom fox said in an exciting tone, “Woot! You guys are here to welcome me, the gorgeous and graceful me, right? Show me your love~”
Asaku yelled, “You high or what? What did you just smoke!?”
Then a fairy soldier who was responsible for space defense reported to the King, “My King, a Mirror Core just popped up on the Fairies Holy Land!”
Hearing this, the king instantly ordered that General Alga guard the holy land, Asaku take care of the monsters to stop them from approaching, and commanded some royal guards to stay and assist Asaku.
Witnessing the depressing situation, Princess Jiefulo said, “I’ll stay and defend the empire with Asaku.”
The King replied in a serious tone, “No! You have to go to the Holy Land with General Alga.”
Through the corridor behind the hall, the King led General Alga, Princess Jiefulo, Ellia and others to the Fairies Holy Land.
All the monsters in the hall were decimated by Asaku and the royal guards while the phantom nine-tailed fox remained still, as if it had been watching a show, until everyone was killed but the fox.
Bursting in laughter, the fox yelled hysterically, “Now the spotlight is on me and only me~ I’m the center of everything like a superstar!”
When the fox was done talking, it waved its paw, creating an enormous shocking wave. In order to protect the royal guards, Asaku dashed to the front, dressed in Shadow Lion Armor and glowing, and blocked the attack of the phantom nine-tailed fox.
Equipped with the Sun Sword, transformed by Ghost Card Uda, and Shadow Lion Armor, transformed by the illusion lion Samoyed, Asaku was ready for combat.
Once ready, Asaku said to the remaining guards, “Go protect the holy land, and leave the monsters here to me.”
“Thank you, sir!” the royal guards replied and then retreated to the holy land.
The phantom nine-tailed fox said, "I am the Darkmirror General VI from the Mirror Continent. My name is Phantom Nine-Tailed Fox. Awww you can also call me Fox Nine-Nine, you know, cuter~”
The fox continued, “So you are Asaku, the one that has gained the power of Gods, the combination of Gods and Fairies, and that makes you a real… goof, you know, god plus fairy, so goof.”
Asaku shouted back, “You goof! What is this with your stupid nickname, Fox Nine-Nine? I don’t have time for this. I’m going to knock you out now!”
Fox Nine-Nine said, “Awww you think you can beat me? Muahaha~” He blinked to Asaku at once and initiated an attack!
The Fox was rather fierce, so Asaku was having a hard time fighting even with the Sun Sword and the Shadow Lion Armor. Meanwhile, Asaku cast matrix magic to absorb the Fox’s magic. Thanks to the Shadow Lion armor, most of the damage was mitigated.
Moving and attacking, the Fox laughed hysterically, “Hahahaha oh my my~ becoming one with god at the price of fairy power? So you can never cast any elemental magic and… now you can only attack by taking in power first? Awww that is hilarious… hahahaha!”
Asaku said, “Why do you look into my history?”
The Fox replied, “Awwww that’s because I love you, silly~ Muah!”
Asaku yelled, “OH MY GOD that is soooo disgusting!!”
Next, the Fox’s nine tails all spread out, looking all appealing and alluring. The Fox said, “Asaku~ this is going to be my mightiest blow, as powerful as my love for you~”
Even with bare eyes, Asaku could see tremendous power compile on the Fox. He knew, this assault would decide the ending of the fight.
On his mind, Asaku was talking to Uda and Samoyed, “We have to use that skill.”
Ghost Card Uda said, “Are you sure, Asaku? You haven’t mastered the power of God, and this strike will exhaust you. We don’t know when you’d recover.”
Samoyed argued, “But this is the only way out now. I cannot take any more attack from the Fox. We have to knock him out first. We will guard you, Asaku.”
By then, the Fox took in enough energy. He shouted, “Multiple Foxes Explosion!”
Turning over, a pair of angel’s wings and a pair of fairy’s wings grew out on Asaku’s back. The Keys of Seven Attributes flew around Asaku. Glowing, the light around Asaku turned into seven huge swords. Asaku shouted, “Take that, God’s power is with me. Seven Keys Comet Impact!”
The fatal strikes from both parties collided. The Fox was too late to dodge the attack and was gravely injured, so he fled into the crack back to the Mirror Continent. What’s more, Asaku’s potent attack almost wiped the Fairies Empire clean.
Ghost card Uda and the Illusion Lion Samoyed broke away from Asaku, while the latter collapsed on the ground. He was still conscious, but couldn’t move even one finger.
Samoyed carried Asaku on his back and took Uda to the Fairies’ Holy Land. By then, the Fairies Continent that had remained intact for thousands of years was officially intruded.
Arriving at the Holy Land, Asaku saw the Mirror Core on the altar in the center of the holy land. The King was leading fairies to fight against the monsters. Feeling hopeless, Asaku tried to put himself together and asked, “How come Priest Harp hasn’t sealed the Mirror Core?”
Chapter Three: Freeze Froze Frozen
At two o’clock in the afternoon on Tuesday, August 13th, year 36722 on the Epic Calendar.
A Mirror Core was placed in the most important holy land on the Fairies Continent, while Priest Harp didn’t even bother sealing the core; instead, he was only fighting against monsters.
Brought to Priest Harp by Samoyed, Asaku asked Priest Harp why he hadn’t sealed the core in the Fairies Holy Land. After all, it was Priest Harp that gave him the Holy Crystal Cell.
“Holy Crystal Cell was brought back from the God’s Continent by Holy Dragon King. Only you could use the crystal, which is why you were assigned this job.” Priest Harp explained to Asaku.
Upon hearing this, Asaku turned depressed and said, “But I’m too weak to activate the Holy Crystal Cell. So there is nothing we can do but to witness our holy land being destroyed by the Reversal Impact?”
Priest Harp said, “Rest, Asaku, and restore as much health as possible.”
At that moment, Ellia ran toward Asaku, crying, “A guy in a black cloak took Adam away… I was no rival to him… it was my fault…”
Asaku comforted her, “No, it wasn’t your fault. Don’t cry, Ellia…”
Priest Harp said, “I suppose kidnapping Adam was part of the plan.”
General Alga led the Royal Guards to set up a formation of attack, fighting against the monsters around the core. The Fairies King stood right above the core, trying to smash the core with magic of thunder but in vain.
A strong dark light emitted from the high tower of the holy land, creating a gap of time and space. From the gap, a knight riding on a dark dragon flew out. In a voice as loud as thunder, the knight said, “I am General Philips, the Darkmirror General II. Now, authorized by the Mirror Continent, I officially declared war against the Fairies Continent.”
The knight on the dark dragon emitted a unique magic power, which froze all monsters.
Sensing the power, both Asaku and General Alga blurted out, “It’s the power of Salu, the missing fairy of the wind race! Why would fairies’ power pour out from him?”
General Alga added, “Not exactly. This is something more potent, combining fairies’ power of wind attribute and dark power.”
“I can’t think of anyone on the Fairies Continent that can compete with him.”
The Fairies King fell silent.
General Philips waved, and the dark dragon spat out a super tornado that blew away the fairies troops. Some fairies cast defense for protection. Then everyone noticed that the wind did no harm to Princess Jiefulo.
The King commanded, “Take shelter behind Princess Jiefulo.”
The entire troops all hid behind Princess Jiefulo and they followed her wherever she went.
Princess Jiefulo asked, “Why are you guys staying behind me? I’m gonna teach that General Philips a lesson.”
Once she said these words, she moved to General Philip’s direction. The troops were begging her not to move, so they could stay where they were.
General Philips noticed this as well and he showed strong emotion. The next second, he darted to Jiefulo.
While everyone was trying to protect Jiefulo, General Philips grabbed Jiefulo and kissed her. Everyone stopped and so did the furious tornado.
Turning red, Princess Jiefulo pushed Philips away angrily and slapped him hard. “You crazy psycho! How dare you kiss me like this? Who do you think you are?” she shouted at him.
Soothing his cheeks, General Philips seemed disappointed and said, “You’ve forgotten all about…”
Then the dark dragon came take Philips away.
Seeing Philips leave, Jiefulo felt her heart beating fast. She touched her lips that Philips just kissed and burst into tears. She wondered, “What is wrong with me that I feel so sad and sorrowful?”
General Philips rode the dark dragon to the front of the fairies troops and taunted, “Send your best to challenge me.”
General Alga jumped into air, summoned his mount, the griffon, and accepted Philips’ challenge. “This is General Alga,” Alga said, “I am the strongest guardian on the Fairies Continent.”
General Philips said, “I have been waiting for this moment, to finally challenge you to a duel.”
General Alga asked, “Can you answer me one question?”
General Philips interrupted him and said, “I can tell you directly what you want to know. First of all, I am Salu, the missing fairy of the wind race. Secondly… the Salu you know are actually two people. One is on the Fairies Continent and the other is on the Mirror Continent. My real name is Philips.”
General Philips looked at Asaku who was still trying to restore his strength, saying, “Just like Asaku, we both have double masks.”
General Alga gasped, “Double what?!”
Still powerless, Asaku thought, “What does it mean exactly, double masks?”
Then Uda saw Philips’ weapon and said to Asaku, “He has the Moon Sword!”
Asaku replied, “No way. That's not possible.”
Uda explained, “I know I’m right. Moon Sword and I are two ghost cards, and we are connected. How did he get it?”
General Philips said, “Well, time for diplomatic courtesy is over, so I’m going launch an attack~ To begin with….”
Once General Philips snapped his finger, the core was turning red and Reversal Impact was imminent, which shocked Asaku and all the other fairies.
Asaku said, “I can’t believe that he could’ve sped up the time for Reversal Impact. I’m going to seal the core!”
Pity that Asaku was still too weak to even get up. All he could do was lie on Samoyed.
Asaku said to Samoyed, “Get closer, so I can touch the core.”
Samoyed moved closer to the core, and Uda helped Asaku put his right hand on the core. Suddenly, the turning slowed down, leaving Asaku in excruciating pain.
Priest Harp said, “Asaku, you can’t seal the core like this. You are only delaying the inevitable. If you continue like this, you will die from exhaustion.”
Asaku said, “Even this is to buy a bit more time… this is the only thing I can do now.”
Hearing this, Ellia put her hands on Asaku’s, and said,
“I want to guard the Fairies Continent as well.”
Asaku lowered down his head and nodded.
Riding on the griffon, General Alga initiated an attack at Philips. The crash of the two most potent powers in the whole world created a ripple that froze the fairies troops and monsters completely.
As time went by, the combat was heating up, and Asaku couldn’t hold it any more.
All of a sudden, Philips turned to the Fairies King and said, “My King, allow me to tell you: the time set on the core is 1000 fairies’ years, roughly 41 human years. That would be the time of the Eight Races for the fairies!”
Upon hearing this, all fairies appeared shocked and scared.
General Alga said, “I will never ever allow you to turn back the time to 1000 fairies’ years ago. That was a chaotic time, which will cause devastation in the Epic World at this moment!”
Just when General Alga was preparing to launch his most powerful attack, Compressed Air Cannon, General Philips unexpectedly attacked with the same strike!
General Alga said, “You are my student that I’m proud of, and you are Salu from the Fairies Continent!”
Smiling, General Philips remained quiet...
While the two were about to crash, the core glowed in red, the Reversal Impact was triggered and Asaku couldn’t hold it anymore!
At that moment, the Fairies King Oudelos shouted, “As your King, I will not allow the fairies to perish here. Race of Air, assembly to initiate the teleportation ritual!”
Just as the Race of Air was casting the spell, the King said to General Alga and Priest Harp, “Guard the Fairies.”
Quickly, General Alga retreated to the King, together with Priest Harp who yelled at Asaku, “Go! Run as fast as you can!”
The Fairies King then drew a special magic sigil on his hand, which turned into an eagle that dived into the ground.
The King nodded at General Alga and Priest Harp, and the trio shouted, “The supreme sealing magic of the Fairies, Frozen Seal!”
That was the time the Reversal Impact starting to affect the surroundings and the Race of Air launching the teleportation ritual.
General Philips said, “Dang! You even thought of freeze the whole Fairies Continent. Nuh-uh, I’m not going to be trapped here.” Then he opened the gap of time and space but didn’t leave without taking a second look at Jiefulo.
The Reversal Impact was stopped by Frozen Seal, so was the teleportation ritual which wasn’t fast enough to save all fairies. Asaku was lucky, as he was sent away. Right before he was teleported, he heard Priest Harp, saying, “Find the Fairies Queen Aranda… only she can save the Fairies. You are our only hope, Asaku.”
Tears in his eyes, Asaku was sent into the teleportation tunnel and he lost consciousness.
The time on the Fairies Continent stopped. No one could enter, nor anyone could exit.
Chapter Four: Tear of the Mermaid
At ten o’clock in the morning on Monday, August 19th, year 36722 on the Epic Calendar...
Waking up but still dizzy, Asaku heard familiar voices and they were Uda, Samoyed and Ellia. The three were excited to see Asaku. “Woot! Finally, you’ve come to yourself!” said Uda.
Ellia leaned over to Asaku and said, “I was so so worried about you, Asaku… Thought I’d lost you.”
Asaku said, “I’m good. So where are we now?”
Uda replied, “We were sent to the Mermaid Kingdom on the Phantom Continent. The Mermaid Queen arranged accommodation for us here. You slept for almost a week!”
Asaku looked around, and found himself in a small, warm room showered in sunshine reflected by water. “It seems to be a girl’s room,” said Asaku.
Uda said, "Because there are only girls in the Mermaid Kingdom.”
Asaku was surprised, and he saw the room was filled with flowers, so he asked,
"What are these flowers about?”
Shrugging, Uda grinned, “The flowers are from your fans. The whole kingdom knows about you, and all girls are crazy for you. They’ve been sending flowers here, together with their greetings. The Mermaid Queen even promulgated to address you as the Sleeping Prince Charming of the Fairies…”
Samoyed turned around and giggled...
Footsteps were heard outside the door, so Uda told Asaku to fake sleep. If people knew he was awake, the fans would inundate the house immediately.
So Asaku lay down to fake sleep, and then about ten mermaids entered the room with flowers and gifts. Samoyed turned invisible, and Uda transformed into a clown puppet. Nothing could stop these girls --- they all kissed Asaku on the cheeks and wished him the best. It took them quite a while to have all the fun and leave.
Asaku got out of bed, with his hands on the cheeks that were just kissed. All smiling, Asaku blushed.
Ellia looked away, pouting unhappily.
Uda knocked on Asaku’s head and said, “Wake up!”
Asaku said, “I don’t want to stay here like a caged animal. I’m going to sneak out and look for some intel.”
“But Asaku,” Ellia said, “you can’t just go out like this. As the Sleeping Prince Charming of the Fairies, you will create a chaos. Let me dress you up.”
The Mermaid Kingdom is located under water, protected by a ward deep in the ocean. In the kingdom, one can breathe as freely as they can on the land.
On the street, there was a mermaid dressed in a maid’s outfit with a weird hairstyle and makeup, and a clown puppet on “her” shoulder. That was Asaku. Ellia dressed up as a mermaid as well, following Asaku. Samoyed turned invisible and stayed at their side.
Asaku asked, “Why do I have to go out in a maid’s costume? This is so silly! The skirt… it’s so cool down there and that feels so… weird!”
Laughing, Ellia replied, “Told you to wear some panties.”
“Nuh-uh,” Asaku said, “no girls’ panties for me!!”
Uda said, “But people would recognize you without the costume! That’d be trouble if they knew who you are. Thousands of mermaid girls would surround you to show you their love.”
Samoyed turned invisible so only his voice was heard, “Don’t count on me. I can’t stop all of them~”
Asaku said, “What is wrong with this place? The air is so stuffy. It just feels wrong, and the wind is not blowing at all.”
Uda replied, “The Mermaid Kingdom is quite exclusive. They are particularly hostile against the Beast Kingdom on the Phantom Continent. Both Samoyed and I are citizens of the Beast Kingdom, so we can never ever be found here. People say the Mermaid Kingdom enjoys a pleasant relationship with the Fairies Continent, so maybe this is why you are sent here.”
Ellia loved pets and she was talking to the angel fish roaming on the road. Asaku asked her, “Why are you talking to a fish?”
“I can talk to all living creatures~” Ellia replied, “and I want to befriend with all the cute ones.”
Asaku shrugged and said, “I can only understand Uda and Samoyed.”
At the time, a dowager walked by with a group of maids. The dowager gazed at Asaku, which made both Asaku and Ellia nervous.
Completely ignoring Ellia, the dowager said to Asaku, “Huh~ aren’t you a pretty one~ a little bit too flat-chested but no matter. What is your name? Who do you work for?”
Asaku tried to reply with a higher pitch, “Bonjour, Madam! My name… is Eklia, and I am the maid for Mrs. Mel.”
Upon hearing this, the dowager flipped and yelled, “What a waste!! You are adorable and you work for that crazy hag, Mel!?”
Then she took ten pearls from the bag and handed them over to Asaku, telling him, “This is the down payment. You go back and dissolve the contract with that hag, and report to Duke Vitalis Castle tomorrow.”
Once she was done talking, she led the maids and took leave. Asaku and the rest were left behind, startled.
Asaku complained, “Who is she and how can she call me flat-chested…”
Ellia laughed and said, “Eklia… my dear brother… that is awesome! You were hit on dressed up as a girl!! And that Lady Mel is real, too!”
Samoyed laughed so much it almost rolled on the floor.
“That is not funny!” Asaku said, “We still have business here. We’ve lost track of the core for one week, and Priest Harp said I have to find the Fairies Queen to save the Fairies Continent. How can I waste even one more minute here to be someone’s maid?”
Just then Asaku’s stomach rumbled, so he looked at the restaurant on the road and decided to dine in there.
By the entrance, Ellia said goodbye to the angel fish and entered the restaurant with Asaku. They chose a table in the corner to avoid attention.
“What!” Asaku screamed when he read the menu, “One set costs one pearl!”
Uda stopped Asaku immediately, “Quiet, Asaku, if you don’t want to pay, we can go back to the accommodations the Queen arranges for us.”
“Nuh-uh,” Asaku refused, “No way!”
Blushing, Asaku said, “I do enjoy being so popular though…”
Ellia punched Asaku on his shoulder, “Asaku, you are terrible!”
Then the waitress dropped by, asking, “What can I get for you today?”
Asaku gave a gesture of four fingers and said, “Four set meals, please.”
“Are you sure,” the waitress asked, “that you can eat so much?”
Asaku replied, “Sure, no problem at all.”
The waitress replied, “All right, four pearls then. The food will be served right away.”
When the food came, Asaku devoured everything in front of him, while Uda and Samoyed hid in the corner and ate quietly.
Asaku said, “I think we should leave the Mermaid Kingdom as soon as possible for the Beast Kingdom where I can ask help from an old friend, King Brad.
Samoyed said, “But it is forbidden to use the Folding Corridor in the Mermaid Kingdom, so we have to go through the connected tunnel to the Beast Kingdom above water.”
“But the tunnel is guarded," Samoyed continued, “no one is allowed to pass without the permission from the Mermaid Queen.”
“Besides,” Ellia said, “it is rude to leave without saying goodbye. We should at least thank the Queen for her kindness to take us in.”
Uda said, “It is true that the Mermaid Kingdom does maintain a good relationship with the Fairies Continent, but the Mermaid Queen made it official that Asaku is the Sleeping Prince Charming of the Fairies… that just doesn’t sound right.”
Asaku, “But if we don’t go back, we need to make money.”
“Asaku," Ellia said while she laughed, “ you have to support us all by working as a maid then!”
Both Uda and Samoyed nodded.
Holding his head, Asaku grumbled, “Why am I always the one that does all the work?”
While Asaku and his friends were talking, they had no idea that they had been surrounded by mermaid soldiers.
Politely, a girl mermaid soldier said to Asaku, “Friend from the Fairies Continent, our Queen would like to speak to you in Her Majesty’s Castle.”
Asaku said, “Ah… you’ve caught me…”
The mermaid soldiers took Asaku and his friends to the Castle where the Mermaid Queen resided. On the way, the road was full of fans who were crazy for Asaku. They screamed his name and more, “Asaku, my Sleeping Prince Charming of the Fairies… I love you~~”
At night in the castle , Asaku was taken to the Throne Hall where the Mermaid Queen sat on her throne. Both Asaku and Ellia took a bow, and Asaku addressed to the Queen, “Your Majesty, my name is Asaku, and I am from the Fairies Continent. We do not mean to intrude, as our presence here is nothing but an accident. We sincerely beg for your kindness and forgiveness.”
The Mermaid Queen replied, “I am the Mermaid Queen Kamina. You can tell your two escorts to show themselves.”
Hearing this, Uda and Samoyed turned visible and got down on one knee, asking for forgiveness.
Queen Kamina said, “I am fully aware of the situation. The rest of you can leave now.”
The Queen’s entourage took leave and only the Queen and Asaku and his friends remained.
“Follow me.” The Queen said once they were left alone.
The Queen led Asaku and his friends to the Royal Garden, hid them in a concealed corner. She then told them to stay quiet and asked Asaku to play along no matter what happened. Though confused, Asaku concurred.
Shortly, a young woman walked into the garden, with a fairy man, whose hair is white and elegant, flying in the air. The couple looked at each other deeply in the eyes, and the man took out a flower made of seashells and crystal.
The white-haired man said, “Mermaid Princess Yulia, I want to hold your hands in mine forever. Will you marry me?” The young woman shook her head and replied, “No, Fluffy… It has to be my Mother who can make the decision.”
Fluffy held the woman by her hands and said, “Then let’s elope!”
Yulia refused and said, “As much as I love you, such behavior is not allowed.” Then the man tried to leave with the woman, while the Mermaid Queen walked out between them and Asaku and his friends still hid in the dark.
The Queen reprimanded, “How insolent! Release my daughter and leave now!”
The white-haired man talked back, “I have no fear to whatever queen, including you, Your Majesty. If I snap, no one in your kingdom is capable of taking me down.”
The Queen said, “You are indeed contemptuous, but we do need a powerful man to be our King and to protect our people.”
The white-haired man laughed, saying, “So~ Your Majesty has agreed to our marriage then?”
The Queen continued, “But only the most powerful and the most beautiful man can be our King.”
Fluffy replied, “Awww thank you, Your Majesty, for all the kind words.”
The Queen interrupted Fluffy, “No, you are not the only one that is qualified here. Recently, the Sleeping Prince of the Fairies has visited us. He is even more beautiful than you and well-loved by the whole kingdom.”
The Queen then pointed at Asaku who had no choice but to show up, and the latter played along, “I am the Fairy Prince that is truly qualified to be the King. Leave now, before it turns even more humiliating.”
Fluffy yelled, “I will challenge you to a duel! Don’t be so sure you’ll win, Asaku from the Fairies Continent.”
Asaku was surprised, asking, “How do you know who I am? Have we met?”
Fluffy just looked at Asaku without saying one more word.
The Queen clapped and said, “Quiet down, both of you. As the Queen, I shall be fair and just. I will hold a Joust for a Spouse and the winner can marry Princess Yulia and become the future King of the Mermaid Kingdom!”
Asaku yelled in surprise, “What?!”
Fluffy said, “Deal! When will that be?”
“Three days from now," the Queen replied, "and it will be held in the arena.”
“Mother, how could you make such a decision…” Yulia cried while she ran away.
Fluffy was full of confidence and he said, “I’ll show you what I’ve got!” before disappearing in the night.
At the same time, Asaku, Uda, and Samoyed said, “It’s a set up…”
The Queen looked back at Asaku, nodding and smiling…
Back to the Throne Hall, Asaku sat on the corridor, pouting.
The Queen explained, “I understand it was really rude to set you up like this, but the situation called for it as we do not have enough arms to deal with this phantom.”
“Phantom?” Asaku asked, “Fluffy is a phantom?”
The Queen nodded and replied, “Yes, he is a fox from the Illusion Tribe of the Beast Kingdom on the Phantom Continent. We mermaids will never ever marry a beast.”
Samoyed concurred, “The three kingdoms on the Phantom Continent are quite hostile against each other. It is a great mercy that Uda and I can remain free here.”
“But are the arms here so weak?” Asaku asked, "Besides, if they truly love each other, why would Your Majesty have to stand by the rule and separate them?”
The Queen stood up, pointing her scepter at the ceiling right above the throne. The ceiling broke and there was a…
“Mirror Core!” Asaku yelled, “And it is red, so the Reversal Impact occurred already!”
Then Asaku took out the Compass of No Return to confirm the time reversed, but only figured out there was no difference in time. The Mermaid Kingdom wasn’t sent back in the past during the Reversal Impact. What was this all about?
Before Asaku could have a better understanding of what was going on, lots of monsters flooded from the core. Asaku and his friends prepared for combat. One monster dashed toward the Queen, and Ellia screamed, “Watch out, Your Majesty!”
To everyone’s surprise, the monster went right through the Queen.
The Queen said, “Don’t worry about me. Asaku, could you please seal this Mirror Core, first?”
“Yes, Your Majesty.” Asaku replied.
Covered by his friends, Asaku reached the core and sealed it by performing Holy Cell. With the core sealed, the Mermaid Kingdom was freed, and the air refreshed and flew again.
The Queen sat on her throne, and started to explain from the beginning, “About six months ago, the core occurred here. Even with all the arms we could afford, we could not resist it, and then the Reversal Impact took place.”
Surprised, Asaku asked, “But the time remains the same?”
The Queen replied, “The Reversal Impact turned back the time to 130 years ago, when the Mermaid Kingdom was an island above water, instead of deep in the ocean. Our Kingdom didn’t sink into the water until thirty years ago.”
“So the Reversal Impact brought back the Mermaid Kingdom 130 years ago!” Uda said.
The Queen said, “That is correct.”
Asaku asked further, “But what about the Mermaid Kingdom that was influenced by the impact…?”
The Queen replied softly, “Disappeared. We have all disappeared. Everything you see now is a reflection of our thought. We keep on living like this.”
Then the Queen took off an earring in the shape of a drop of water from her left ear, and she gently continued, “This is our beloved treasure, the Mermaid Tears. When the Reversal Impact struck us, the grave fear and sorrow from all our people triggered the Mermaid Tears.”
Trying to hold back tears, Asaku said, “So Your Majesty, and all the people I have seen in the kingdom are reflection of thoughts, protected by the Mermaid Tears.”
Ellia couldn’t hold it anymore, and she just cried out loud.
The Queen continued, “Asaku, you understand this, don’t you… Yulia cannot marry Fluffy, even with my blessing. Once Yulia is married to Fluffy, she, together with the whole kingdom, will realize that we are gone, no more. Could you keep this secret between you and me, please?”
The tears wouldn’t stop from falling, and both Asaku and Ellia nodded.
“Even it’s just an act,” the Queen said, “please do beat Fluffy, marry the princess, become our new King. Please, Asaku… give my people new hope. By then, we will no longer need the Mermaid Tears, and we can disappear with happiness. Could you please do us one last favor?”
Without saying a word, Asaku nodded. Ellia cried so much even the angel fish could swim in her tears.
Three days later, people started to swarm into the arena. The whole kingdom was there to witness the Joust for a Spouse held by the Queen.
Ready and set, Asaku slowly walked into the arena, to keep his promise.
Chapter Five: A Happy Smile
At ten o’clock in the morning on Thursday, August 22nd, year 36722 on the Epic Calendar...
Almost all the citizens of the Mermaid Kingdom gathered at the arena, the cheers were deafening as today would be the day, a new king would be elected. The champion could also win the hand of Princess Yulia, and the game started!
Both Asaku and Fluffy entered the arena, gazing at the other. The atmosphere totally changed.
Fluffy would like to charge in and attack Asaku immediately, while the latter looked at the Queen with so much sadness in his eyes. The Queen nodded at Asaku, with the crying Princess Yulia on her left side, and Ellia on her right side.
The horn was blown, which could be heard miles away. The game officially started!
On his hand, Fluffy attacked with a spear bursting of energy, and Asaku fought back with Uda and Samoyed, both transformed into his most trustworthy gear. Asaku’s Sun Sword clashed with Fluffy’s Shine Spear. Sparkle could be seen everywhere. As the fight intensified, Fluffy cast Magic Light Sword to attack Asaku, which shocked Asaku who tried to block it with the shield on his left hand.
Surprised, Asaku yelled, “Did I see it right? That was my Magic Light Sword?”
Samoyed replied, “You are right. That is your magic.”
Fluffy asked, “Hey Asaku, aren’t you a master of magic attack? Since when you have switched to a sword? Where is your magic?”
Asaku kept quiet, “Tsk…”
Uda said, “Asaku, this seems like a deja vu. I’m sure we know this Fluffy from somewhere.”
Fluffy yelled, “Woot! This is fun! I’m holding nothing back!”
Casting Light Sword Magic, Fluffy charged in to Asaku and attack!
Reaching out with his left hand, Asaku absorbed in the power with the three-star matrix magic. The matrix magic could take in power of three attacks only, so Asaku was still harmed. On his right hand, Asaku blocked the attack of Shine Spear with his Sun Sword.
Rolling over, Asaku released Aurora Impact! The three-star matrix magic seemed to take Fluffy by surprise. While Fluffy tried to dodge the attack, Asaku pushed further with the Sunshine Impact. Both impacts hit Fluffy hard and Asaku was winning.
“I never knew you could attack like this,” Fluffy shouted, “but your light magic doesn’t hurt me much as I also master light magic. You can’t beat me by absorbing my magic power!”
All of a sudden, the white-haired fairy turned into an enormous white fox, together with a bunch of small white foxes.
Asaku yelled, "... I... I hate foxes…”
The crowd started to scream and tried to run away. Princess Yulia was so scared that she wept, and the Queen explained to her this is who Fluffy really was. Princess Yulia cried even louder for being lied to.
Then Fluffy attacked with its enormous body and tail, while casting Meteor Shower at Asaku. The bunch of small white foxes were attacking with their super adorable paws, which made it even harder for Asaku to defend.
to be continued~
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戴耀廷的結案陳詞
公民抗命的精神
首先,這是一宗公民抗命的案子。
我站在這裏,就是為了公民抗命。陳健民教授、朱耀明牧師與我一起發起的「讓愛與和平佔領中環運動」,是一場公民抗命的運動。在以前,少有香港人聽過公民抗命,但現在公民抗命這意念在香港已是家傳戶曉。
終審法院在律政司對黃之鋒案Secretary for Justice v Wong Chi Fung (2018) 21 HKCFAR 35採納了約翰羅爾斯在《正義論》中為公民抗命所下的定義。公民抗命是「一項公開、非暴力、真誠的政治行為,通常是爲了導致法律上或社會上的改變,所作出的違法行爲。」
在律政司對黃之鋒案,賀輔明勳爵是終審法院的非常任法官。在此案,終審法院引述了賀輔明勳爵在R v Jones (Margaret) [2007] 1 AC 136的說法:「出於真誠理由的公民抗命在這國家有源遠流長及光榮的歷史。」終審法院認同公民抗命的概念是同樣適用於其他尊重個人權利的法制如香港。但為何公民抗命是光榮和文明呢?終審法院沒有進一步解釋。
約翰羅爾斯的定義大體只能說出公民抗命的行為部分。 在馬丁路德金博士非常有名關於公民抗命的著作《從伯明罕市監獄發出的信》中,他道出更多公民抗命的意圖部分或公民抗命的精神。這信函是他在 1963年4 月16日,因在亞拉巴馬州伯明罕市參與示威爭取民權後被判入獄時寫的。
在信函中他說:「一個人若不遵守不公義的法律,必須要公開,充滿愛心和願意接受懲罰。個人因為其良心指出某法律是不公義的,而且甘心接受懲處,是要喚起社會的良知,關注到那中間的不公義,這樣其實是對法律表達了最大的敬意。」
馬丁路德金博士認為有時法律在表面上是公義的,但實行時卻變得不公義。他說:「我未得准許而遊行,並因而被捕,現在的確有一條法例,要求遊行須得准許,但這條法例如果是用了來…否定公民運用和平集會和抗議的權利,則會變成不公義。」
他還說:「 面對一個經常拒絕談判的社區,非暴力的直接行動正是為了營造一次危機,以及加強一種具創造力的張力,逼使對方面對問題,也使問題戲劇地呈現出來,讓其不能再被忽略。」
馬丁路德金博士對我啟發良多,我們也把這精神栽種在「讓愛與和平佔領中環運動」中。緊隨馬丁路德金博士在公民抗命之路的腳步,我們努力去開啟人心中那份自我犧牲的愛及平靜安穩,而非煽惑憤怒與仇恨。
終審法院在律政司對黃之鋒案進一步引述賀輔明勳爵在R v Jones (Margaret) 的說法:「違法者與執法者都有一些規則要遵守。示威者的行為要合乎比例,並不會導致過量的破壞或不便。以証明他們的真誠信念,他們應接受法律的懲處。」
雖然終審法院在律政司對黃之鋒案沒有引述這部分,賀輔明勳爵在R v Jones (Margaret) 還說:「另一方面,警察與檢控官的行為也要有所節制,並法官在判刑時應考慮示威者的真誠動機。」這些有關公民抗命的規則應也適用,終審法院應不會反對。
公民抗命的目的並不是要妨擾公眾,而是要喚起公眾關注社會的不公義,並贏取人們認同社會運動的目標。若一個人被確立了是在進行公民抗命,那他就不可能會意圖造成不合理的阻礙,因那是與公民抗命背道而馳,即使最後因他的行動造成的阻礙是超出了他所能預見的。
非暴力是「讓愛與和平佔領中環運動」的指導原則。公民抗命的行為,就是佔領中環,是運動的最後一步。進行公民抗命時,示威者會坐在馬路上,手扣手,等候警察拘捕,不作反抗。我們計劃及希望達到的佔領程度是合乎比例的。我們相信所會造成的阻礙是合理的。
我相信我們已做了公民抗命中違法者所當做的,我們期望其他人也會做得到他們所當做的。
追求民主
在一宗公民抗命的案件,公民抗命的方法是否合乎比例,不能抽空地談,必須考慮進行那行動的目的。
這是一宗關乎一群深愛香港的香港人的案件,他們相信只有透過引入真普選,才能開啟化解香港深層次矛盾之門。
我就是他們其中一人。與那些一起追尋同一民主夢的人,為了我們的憲法權利,我們已等了超過三十年。當我還在大學讀法律時,我已參與香港的民主運動。現在,我的兒子也剛大學畢業了,香港還未有民主。
馬丁路德金博士在信函中還說:「壓迫者從不自願施予自由,自由是被壓迫者爭取得來的。…如同我們出色的法學家所說,延誤公義,就是否定公義。」我們在追求公義,但對當權者來說,我們計劃的行動誠然是妨擾。
《基本法》第45 條規定行政長官的產生辦法最終達至由一個有廣泛代表性的提名委員會按民主程序提名後普選產生的目標。《公民及政治權利國際公約》第 25 條規定:「凡屬公民,無分第二條所列之任何區別,不受無理限制,均應有權利及機會:…(乙)在真正、定期之選舉中投票及被選。選舉權必須普及而平等,選舉應以無記名投票法行之,以保證選民意志之自由表現 …」
聯合國人權委員會在《第25號一般性意見》,為《公民及政治權利國際公約》第 25 (乙) 條中的 「普及而平等」,提供了它的理解和要求。第15段說:「有效落實競選擔任經選舉產生的職位的權利和機會有助於確保享有投票權的人自由挑選候選人。」第17段說:「不得以政治見解為由剝奪任何人參加競選的權利。」
全國人民代表大會常務委員會在2004年就《基本法》附件一及附件二作出的解釋,實質改變了修改行政長官選舉辦法的憲法程序。在行政長官向立法會提出修改產生辦法的法案前,額外加了兩步。行政長官就是否需要進行修改,須向全國人民代表大會常務委員會提出報告。全國人民代表大會常務委員會根據香港特別行政區的實際情況和循序漸進的原則作出確定。相關法案須經立法會全體議員三分之二多數 通過,行政長官同意,並報全國人民代表大會常務委員會批准或者備案。
在2014年8月31日,全國人民代表大會常務委員會完成了憲法修改程序的第二步,作出了有關行政長官產生辦法的決定。全國人民代表大會常務委員會除決定行政長官可由普選產生外,就普選行政長官的產生辦法設下了具體及嚴厲的規定。
提名委員會的人數、構成和委員產生辦法都得按照第四任行政長官選舉委員會的人數、構成和委員產生辦法而規定。提名委員會按民主程序只可提名產生二至三名行政長官候選人。每名候選人均須獲得提名委員會全體委員半數以上的支持。
按著全國人民代表大會常務委員會自行設定的程序,全國人民代表大會常務委員會應只有權決定是否批准或不批准行政長官提交的報告,而不能就提名委員會的組成及提名程序,設下詳細的規定。全國人民代表大會常務委員會連自己設定的程序也沒有遵守。
若按著全國人民代表大會常務委員會設下的嚴厲條件去選舉產生行政長官,香港的選民就候選人不會有真正的選擇,因所有不受歡迎的人都會被篩選掉。這與普選的意思是不相符的。
這些香港人進行公民抗命,是要喚起香港社會及世界的關注,中國政府不公義地違背了憲法的承諾,也破壞了它的憲法責任。我們所作的,是為了維護我們及所有香港人的憲法權利,包括了反對我們的行動的人;是為了要我們的主權國履行承諾;是為了爭取香港憲制進行根本改革;及為香港的未來帶來更多公義。
和平示威的權利
這案件是關乎和平示威自由及言論自由的權利。
根據「讓愛與和平佔領中環運動」的原先計劃,舉行公眾集會的地方是遮打道行人專用區、遮打花園及皇后像廣場,時間是由2014年 10月1 日下午三時正開始,最長也不會超過2014年 10月5 日。我們期望會有三類人來到。
第一類人已決定了會參與公民抗命。他們會在過了合法的時限後,繼續坐在遮打道上。他們是那些在「讓愛與和平佔領中環運動」意向書上選了第二或第三個選項的人。第二類人決定不會參與公民抗命,而只是來支援第一類人。過了合法的時限後,他們會離開遮打道,去到遮打花園或皇后像廣場。他們是那些在「讓愛與和平佔領中環運動」意向書上選了第一個選項的人。第三類人還未決定是否參與公民抗命的行動。他們可以到合法時限快要過去的最後一刻,才決定是否留在遮打道上。
我們相信警方會有足夠時間把所有參與佔領中環公民抗命的示威者移走。估計會有數千人參與。我們要求參與者要嚴守非暴力的紀律。我們採用了詳細的方法去確保大部分即使不是所有參與者都會跟從。
我們是在行使受《基本法》第27 條保障的和平示威自由的憲法權利。這也與同受《基本法》第27 條保障的言論自由有緊密關係。透過《基本法》第39條,言論自由、表達自由、和平集會的自由受《香港人權法》第16 及17條的憲法保障,而這些條文與《公民及政治權利國際公約》第19 及21是一樣的,是《公民及政治權利國際公約》適用於香港的部分。
若原訂計劃真的執行,那可能會觸犯《公安條例》一些關於組織未經批准集結的規定,但我們相信那會舉行的公眾集會是不會對公眾構成不合理的阻礙的。會被佔領的空間,包括了馬路,是公眾在公眾假期可自由使用的。計劃佔領的時期,首兩天是公眾假期,最後兩天是周末。
當公眾集會的地方轉到政府總部外的添美路、立法會道及龍匯道的行人路及馬路的範圍(下稱「示威區域」),雖然集會的主題、領導、組織及參加者的組成已改變了,但精神卻沒有。在2014年9 月27 和 28日,人們是被邀請來示威區域參加集會的。這仍然是公民在行使和平示威自由及言論自由的權利。
相類似的公眾集會也曾在2012年9 月3至 8日,在反國民教育運動中在示威區域內舉行。除卻公民在那時候還可以進入公民廣場(政府總部東翼前地),在2012年9月在反國民教育運動的佔領空間,與示威者在2014年9 月27 和 28日在警方封鎖所有通往示威區域通道前所佔領的空間是很相近的。
自2012年的反國民教育運動後,這示威區域已被普遍認同,是可以用來組織有大量公眾參與,反對香港特別行政區政府的大型公眾集會的公共空間。換句話說,公眾都認知示威區域是一個重要場地,讓香港公民聚集去一起行使和平示威自由的權利。
根據此我們也抱有的公眾認知,當我在2014年9 月28日凌晨宣布提前佔領中環的時候,我們只可能意圖叫人來到示威區域而不會是任何其他地方。要佔領示威區域以外的地方,沒可能是當時我們所能想到的。沒有人會如此想的。
在梁國雄對香港特別行政區案Leung Kwok-hung v. HKSAR (2005) 8 HKCFAR 229, 終審法院指出: 「和平集會權利涉及一項政府(即行政當局)所須承擔的積極責任,那就是採取合理和適當的措施,使合法的集會能夠和平地進行。然而,這並非一項絕對責任,因為政府不能保證合法的集會定會和平地進行,而政府在選擇採取何等措施方面享有廣泛的酌情權。至於甚麼是合理和適當的措施,則須視乎個別個案中的所有情況而定。」
如控方証人黃基偉高級警司 (PW2) 在作供時所說,當有太多的示威者聚集在鄰接的行人路,警方為了示威者的安全,就會封鎖示威區域內的馬路。能有一個公共空間讓反對政府的人士和平集會以宣洩他們對香港特別行政區政府的不滿,對香港社會來說,那是一項公共利益。即使在示威區域長期舉行集會是違反《公安條例》,但這不會對公眾構成共同傷害。受影響的部分公眾只是很少,而造成的不便相對來說也是輕微。
終審法院常任法官包致金在楊美雲對香港特別行政區案Yeung May-wan v. HKSAR (2005) 8 HKCFAR 137中說:「《基本法》第二十七條下的保障,不會純粹因為集會、遊行或示威對公路上的自由通行造成某種干擾而被撤回。本席認為,除非所造成的干擾屬不合理,即超出可合理地預期公眾可容忍的程度,否則集會、遊行或示威不會失去這項保障。關於這一點,本席認為,大型甚或大規模集會、遊行或示威的參加者往往有理由指出,只有如此大規模的活動才能協助有效地表達他們的意見。除此之外,本席認為最明顯的相關考慮因素是干擾的嚴重程度和干擾為時多久。不過,也可能有其他的相關考慮因素,本席認為包括以下一項:在有關的干擾發生之前,是否有人曾一度或數度作出一項或多項干擾行為?可合理地預期公眾能容許甚麼,乃屬事實和程度的問題,但在回答這個問題時,法庭務須謹記,毫無保留地保存相關自由,正是合理性的定義,而非僅是用作決定是否合理的因素之一。」
參與示威區域的公眾集會的示威者並不能構成阻礙,因示威區域的馬路是由警方封鎖的。警方封鎖示威區域的馬路是為了保障示威者的安全 ,讓他們可以安全地及和平地行使和平集會的權利。就算在示威區域是造成了一定程度的阻礙,考慮到示威者是在行使他們的和平示威自由的憲法權利,那阻礙也不能是不合理的。
即使當示威者在2014年9 月28日走到分域碼頭街及夏慤道,人們只是被邀請來到示威區域而不是留在那些道路上。警方被要求開放通向示威區域的通路,好讓人們能去到示威區域與示威者們一起。若非通往示威區域的通路被警方封鎖了,大部份人即使不是所有人,應都會進入示威區域,而那些道路就不會被佔領。催淚彈也就沒有需要發放。
警方應有責任去促使公民能在示威區域舉行公眾集會,但警方卻把示威區域封鎖了,阻礙人們來到示威區域參與公眾集會。示威區域內的示威者不可能意圖或造成任何在示威區域以外所出現的阻礙,因他們只是邀請人們來到示威區域與他們一起。
當警方見到已有大量人群在示威區域外意圖進入示威區域,警方仍不負責任地拒絕開放通向示威區域的通路。警方必須為示威區域外所造成的阻礙及之後發生的所有事負上責任。
在警方發放87催淚彈及使用過度武力後,一切都改變了。如此發放催淚彈是沒有人能預見的,事情再不是我們所能掌控。到了那時候,我們覺得最重要的事,就是帶領參加運動的人平安回家。
在發放催淚彈後的無數個日與夜,我們竭力用不同方法去盡快結束佔領。我們幫助促使學生領袖與政府主要官員對話。我們與各方商討能否接受以變相公投為退場機制。我們籌組了廣場投票。即使我們這些工作的大部分最後都沒有成效,但我們真的是盡了力及用盡能想到的方法去達到這目標。最後,我們在2014年12 月3日向警方自首。金鐘範圍的佔領在2014年12 月11日也結束了。
不恰當檢控
這是關乎不恰當地以公眾妨擾罪作為罪名起訴的案件。
如賀輔明勳爵in R v Jones (Margaret) 所指出,檢控官也有公民抗命的規則要遵守的,他們的行為要有所節制。
在 “Public Nuisance – A Critical Examination,” Cambridge Law Journal 48(1), March 1989, pp. 55-84, 一文,J. R. Spencer 看到:「近年差不多所有以公眾妨擾罪來起訴的案件,都出現以下兩種情況的其中一個: 一、當被告人的行為是觸犯了成文法律,通常懲罰是輕微的,檢控官想要以一支更大或額外的棒子去打他; 二、當被告人的行為看來是明顯完全不涉及刑事責任的,檢控官找不到其他罪名可控訴他。」兵咸勳爵在 R v Rimmington [2006] 1 AC 469 採納了J. R. Spencer 對檢控官在控訴公眾妨擾罪時暗藏的動機的批評。
若有一適當的成文罪行能涵蓋一宗公民抗命案件中的違法行為,我們可以合理地質問為何要以公眾妨擾罪來起訴?即使這不構成濫用程序,但這案件的檢控官一定已違反了賀輔明勳爵在 R v Jones (Margaret) 所指出適用於他的公民抗命的規則,因他並沒有節制行為。
這是關乎不恰當地以串謀及煽惑人煽惑為罪名起訴的案件。
同樣地,在一宗公民抗命的案件及一宗涉及和平示威自由的權利的案件,以串謀及煽惑人煽惑為罪名起訴,那是過度的。在串謀的控罪,控方提出的証據是我們的公開發言。按定義,公民抗命一定是一項公開的行為。若這些公開發言可以用於檢控,那會把所有的公民抗命都扼殺於萌芽階段。那麼說公民抗命是一些光榮之事就變得毫無意義,因公民抗命根本就不可能出現。更惡劣的後果是,社會出現寒蟬效應,很多合理的言論都會被噤聲。對言論自由的限制必然是不合乎比例。
在香港普通法是否有煽惑人煽惑這罪名仍存爭議,但即使真有這罪行,在一宗公民抗命的案件及一宗涉及和平示威自由的權利的案件,以串謀及煽惑人煽惑為罪名起訴,那是過度地、不合理地及不必要地擴展過失責任。
因主罪行是那惹人猜疑的公眾妨擾罪,以煽惑人煽惑去構成公眾妨擾罪來起訴,那更會把過失責任擴展至明顯不合理的程度。若檢控官的行為不是那麼過度和不合理,起訴的罪名是恰當的,我們是不會抗辯的。無論如何,當控罪相信是過度及不合理,我們提出抗辯不應被視為拒絕接受法律的懲處,違反了違法者的公民抗命規則。
有些問題是我這位置難以解答的。若檢控官違反了賀輔明勳爵在 R v Jones (Margaret) 所指出的公民抗命的規則,那會有甚麼後果呢?由誰來糾正這錯誤呢?
守護法治
歸根究底,這是一宗關乎香港法治與高度自治的案件。
作為香港法治及憲法的學者,我相信單純依靠司法獨立是不足以維護香港的法治。 缺乏一個真正的民主制度,政府權力會被濫用,公民的基利不會得到充分的保障。沒有民主,要抵抗越來越厲害對「一國兩制」下香港的高度自由的侵害,會是困難的。在「雨傘運動」後,還有很長的路才能到達香港民主之旅的終點。
終審法院常任法官鄧國楨在退休前法庭儀式上致辭說:「雖然法官決意維護法治,讓其在香港的價值及運用恒久不變,但關鍵在於社會對法官予以由衷的支持。那應是何等形式的支持?我認為,應是全面而徹底的支持。如果法官受到不公的抨擊,請緊守立場並支持他們。可是,不要只因爲某些事件才對他們表示支持。那並不足夠,也可能已經太遲。大家應致力在社會上培養有利於法治的氛圍。我們在香港擁有新聞自由及選舉自由,必須努力發聲,讓你的選票發揮作用。請相信我,自由的代價是要時刻保持警覺。更重要的是,永遠不要放棄或低估自己的力量。如果我們整體社會堅持維護法治,無人可以輕易把它奪走。千萬不要讓此事變得輕而易舉。」
我們都有責任去守護香港的法治和高度自治。我在這裹,是因我用了生命中很多的年月,直至此時此刻,去守護香港的法治,那亦是香港的高度自治不可或缺的部份。我永不會放棄,也必會繼續爭取香港的民主。
我相信法治能為公民抗命提供理據。公民抗命與法治有共同的目標,就是追求公義。公民抗命是有效的方法去確保這共同目標能達成,至少從長遠來說,公民抗命能創造一個氛圍,讓其他方法可被用來達成那目標。
若我們真是有罪,那麼我們的罪名就是在香港這艱難的時刻仍敢於去散播希望。入獄,我不懼怕,也不羞愧。若這苦杯是不能挪開,我會無悔地飲下。
DCCC 480/2017
Closing Submission of Tai Yiu-ting (D1)
1. First, this is a case of civil disobedience.
2. Here, I am standing up for civil disobedience.
3. The Occupy Central with Love and Peace Movement, initiated by Professor Chan Kin-man, Reverend Chu Yiu-ming and I, was a movement of civil disobedience.
4. Civil disobedience, known little by Hong Kong people in the past, is now a household idea in Hong Kong.
5. The Court of Final Appeal in Secretary for Justice v Wong Chi Fung (2018) 21 HKCFAR 35 at paragraph 70 endorsed the definition of civil disobedience put forward by John Rawls in A Theory of Justice (Revised Edition, 1999) at p. 320.
6. Civil disobedience is “a public, nonviolent, conscientious yet political act contrary to law usually done with the aim of bringing about a change in the law or policies of the government.”
7. In Secretary for Justice v Wong Chi Fung, the Court of Final Appeal with Lord Hoffmann as the non-permanent judge repeated at paragraph 72 what Lord Hoffmann had said in R v Jones (Margaret) [2007] 1 AC 136 at paragraph 89, “civil disobedience on conscientious grounds has a long and honourable history in this country.” The Court of Final Appeal accepted that the concept of civil disobedience is equally recognisable in a jurisdiction respecting individual rights, like Hong Kong.
8. However, it was not explained why civil disobedience is honourable and civilised.
9. John Rawls’ definition spells out more the actus reus of civil disobedience.
10. In his very famous work on civil disobedience, Letter from a Birmingham Jail reproduced in The Journal of Negro History, Vol. 71, No. 1/4 (Winter - Autumn, 1986), pp. 38-44, Dr Martin Luther King Jr. provided more the mens rea of civil disobedience or the spirit of civil disobedience. The Letter was written by him on 16 April 1963 while in jail serving a sentence for participating in civil rights demonstration in Birmingham, Alabama.
11. He said (p. 41), “One who breaks an unjust law must do so openly, lovingly, and with a willingness to accept the penalty. I submit that an individual who breaks a law that conscience tells him is unjust, and willingly accepts the penalty by staying in jail to arouse the conscience of the community over its injustice, is in reality expressing the very highest respect for law.”
12. To Dr King, a law could be just on its face but unjust in its application. He said in the Letter (p. 40-41), “I was arrested…on a charge of parading without a permit. Now there is nothing wrong with an ordinance which requires a permit for a parade, but when the ordinance is used to …deny citizens the First Amendment privilege of peaceful assembly and peaceful protest, then it becomes unjust.”
13. He also said (p. 39), “Nonviolent direct action seeks to create such a crisis and establish such creative tension that a community that has constantly refused to negotiate is forced to confront the issue. It seeks so to dramatise the issue that it can no longer be ignored.”
14. I was inspired very much by Dr King, and this is the same spirit we have implanted in the Occupy Central with Love and Peace Movement. Following Dr King’s steps closely in the path of civil disobedience, we strive to inspire self-sacrificing love and peacefulness but not to incite anger and hatred.
15. The Court of Final Appeal in Secretary for Justice v Wong Chi Fung further cited what Lord Hoffmann had said in R v Jones (Margaret), “[T]here 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.”
16. Though the Court of Final Appeal did not quote this part of the judgment in Secretary for Justice v Wong Chi Fung, Lord Hoffmann in R v Jones (Margaret) also said, “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.” These other conventions of civil disobedience should also apply, and it is not likely that the Court of Final Appeal would object.
17. The purpose of civil disobedience is not to obstruct the public but to arouse public concern to the injustice in society and to win sympathy from the public on the cause of the social movement.
18. If it is found that a person is committing an act of civil disobedience, he could not have intended to cause unreasonable obstruction as it will defeat the whole purpose of civil disobedience itself even if his action might at the end have caused a degree of obstruction more than he could have known.
19. Non-violence was the overarching principle of the Occupy Central with Love and Peace Movement. The act of civil disobedience, i.e. occupy Central, was the last resort of the movement. The manner of civil disobedience by the protesters was to sit down together on the street with arms locked and wait to be arrested by the police without struggling. The scale of occupation was planned and intended to be proportionate. We believe that the obstruction must be reasonable.
20. I believe we have done our part as the law-breaker in civil disobedience. We expect the others will do their parts.
21. In a case of civil disobedience, whether the means of civil disobedience is proportionate; contextually, the end must be considered.
22. This is a case about some Hong Kong people who love Hong Kong very much and believe that only through the introduction of genuine universal suffrage could a door be opened to resolving the deep-seated conflicts in Hong Kong.
23. I am one of those Hong Kong people. With all people who share the same democratic dream, we have waited for more than thirty years for our constitutional rights. Since the time I was a law student at the University, I had been involved in Hong Kong’s Democratic Movement. Now, my son has just graduated from the University, democracy is still nowhere in Hong Kong.
24. Also said by Dr King in the Letter (p. 292), “…freedom is never voluntarily given by the oppressor; it must be demanded by the oppressed…We must come to see with the distinguished jurist of yesterday that ‘justice too long delayed is justice denied.’”
25. In seeking for justice, our planned action in the eyes of the powerholders may indeed be a nuisance.
26. According to Article 45 of the Basic Law the ultimate aim of the selection of the Chief Executive (“CE”) is by universal suffrage upon nomination by a broadly representative nominating committee in accordance with democratic procedures.
27. Article 25 of the International Covenant on Civil and Political Rights (“ICCPR”) provides that, “Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions: … (b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors…”
28. The United Nations Human Rights Committee gave its understanding and requirements of universal and equal suffrage under Article 25 of the ICCPR in its General Comment No. 25 adopted on 12 July 1996. (CCPR/C/21/Rev.1/Add.7).
29. Paragraph 15 provides that, “The effective implementation of the right and the opportunity to stand for elective office ensures that persons entitled to vote have a free choice of candidates.”
30. Paragraph 17 provides that, “political opinion may not be used as a ground to deprive any person of the right to stand for election.”
31. Through its Interpretation of Annex I and Annex II of the Basic Law in 2004, the Standing Committee of the National People’s Congress (“NPCSC”) in effect changed the constitutional procedures to amend the election methods of the CE.
32. Before the CE can put forward bills on the amendments to the election methods to the Legislative Council (“LegCo”), two more steps are added. The CE is required to make a report to the NPCSC as regards whether there is a need to make an amendment and the NPCSC must make a determination in the light of the actual situation in the Hong Kong Special Administrative Region (“HKSAR”) and in accordance with the principle of gradual and orderly progress. Such bills need to have the endorsement of a two-thirds majority of all the members of the LegCo and the consent of the CE, and they shall be reported to the NPCSC.
33. On 31 August 2014, the NPCSC completed the second step of the constitutional reform process by issuing a decision on the election method of the CE. The NPCSC laid down specific and stringent requirements on the election method of the CE by universal suffrage in addition to the determination that starting from 2017 the selection of the CE may be implemented by the method of universal suffrage.
34. The number of members, composition and formation of the Nomination Committee (“NC”) have to be made in accordance with the number of members, composition and formation method of the Election Committee for the 4th CE. The NC can only nominate two to three candidates for the office of CE in accordance with democratic procedures. Each candidate must have the endorsement of more than half of all the members of the nominating committee.
35. In accordance with the procedure added by itself, the NPCSC should only have the power to make a determination of approving or not approving the CE’s report but not providing detailed requirements on the composition and nomination procedures of the NC. The NPCSC has failed to follow the procedures set by itself.
36. If the requirements set by the NPCSC on the election method of the CE were to be followed, electors in Hong Kong would not have a genuine choice of candidates in the election as all unwelcome candidates would be screened out. This is not compatible with the meaning of universal suffrage.
37. These Hong Kong people resorted to civil disobedience to arouse more concern in the community and the world that the Chinese Government had unjustly broken its constitutional promise and breached its constitutional obligation.
38. We did all we had done to protect our constitutional rights and the constitutional rights of all Hong Kong people including those who disagreed with our action, to demand a constitutional promise to be honored by our sovereign, to strive for a fundamental reform in the constitutional system of Hong Kong, and to bring more justice to the future of Hong Kong.
39. This is also a case of the right to freedom of peaceful demonstration and the right to freedom of speech.
40. According to the original plan of the Occupy Central with Love and Peace Movement, the public meeting to be organised was to be held at the Chater Road Pedestrian Precinct, the Chater Garden, and the Statue Square, from 3:00 pm on 1 October 2014 to the latest on 5 October 2014.
41. We expected that there would be three groups of people coming. The first group of people decided to commit the act of civil disobedience. They would continue to sit on the Chater Road after the notified time expired. They would be the people who had chosen the second or the third option in the letter of intent of the Occupy Central with Love and Peace Movement.
42. The second group of people decided not to commit the act of civil disobedience but just came to support the first group of people. They would leave the Chater Road after the notified time expired and move to the Chater Garden or the Statue Square. They would be the people who had chosen the first option in the letter of intent of the Occupy Central with Love and Peace Movement.
43. The third group of people might not have made up their mind yet on whether they would join the action of civil disobedience. They could decide at the very last moment when the notified time expired by choosing where to stay.
44. We believed that the police would have sufficient time to remove all the protesters joining the act of civil disobedience of occupy Central; estimated to be a few thousands.
45. We asked all participants to observe the discipline of non-violence strictly. We adopted specific measures to ensure most if not all participants would follow.
46. We were exercising our constitutional right to the freedom of peaceful demonstration protected by Article 27 of the Basic Law. It is also closely associated with the right to freedom of speech also protected by Article 27 of the Basic Law. By Article 39 of the Basic Law, constitutional protection is also given to freedom of opinion, of expression and of peaceful assembly as provided for in Articles 16 and 17 of the Hong Kong Bill of Rights, those articles being the equivalents of Articles 19 and 21 of the ICCPR and representing part of the ICCPR as applied to Hong Kong.
47. If the original plan were to be carried out, it might breach some requirements under the Public Order Ordinance concerning the organisation of unauthorised assembly. However, we believed that the public meeting to be held would not cause unreasonable obstruction to the public.
48. The space to be occupied, including the carriageway, can be freely used by every citizen on public holidays.
49. The first two days of the planned occupation were public holidays and the last two days were the weekend.
50. When the venue of the public meeting was moved to the area outside the Central Government Offices including the pavements and carriageways at Tim Mei Avenue, Legislative Council Road and Lung Hui Road (“the Demonstration Area”), though the public meeting’s themes, leadership, organization and composition of participants had changed, the spirit had not.
51. People were asked to join the public meeting in the Demonstration Area on 27 and 28 September 2014. It was still an exercise of their constitutional right to freedom of peaceful demonstration and freedom of speech by Hong Kong citizens.
52. Similar public meetings had been held in the Demonstration Area during the Anti-national Curriculum Campaign from 3-9 September 2012. Citizens at that time could have access to the Civic Square, i.e. the East Wing Forecourt of the Central Government Offices. Other than that, the space being occupied by protesters during the Anti-national Curriculum Campaign in September 2012 was very similar to the space that was being occupied by protesters on 27 and 28 September 2014 before the police cordoned all access to the Demonstration Area.
53. Since the Anti-national Curriculum Campaign in 2012, the Demonstration Area has been generally recognised to be the public space that can be used for organising big public meetings with a large number of people participating to protest against the Government of the HKSAR. In another word, the Demonstration Area is known to the public to be an important venue for citizens of Hong Kong to gather and to exercise their right to peaceful demonstration together.
54. On the basis of this public knowledge that we share, at the time when I announced the early beginning of the Occupy Central in the small hours on 28 September 2014, we could only be intending to ask people to come to the Demonstration Area but no other place. Occupying places outside the Demonstration Area could not have been in the thought of us at that time. No one could have intended that.
55. The Court of Final Appeal in Leung Kwok-hung v. HKSAR (2005) 8 HKCFAR 229 at paragraph 22 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.”
56. As senior superintendent Wong Key-wai (PW2) said in his evidence, the police closed the carriageways in the Demonstration Area for the safety of the protesters when there were too many protesters on the adjacent pavements.
57. Having a public space for the public opposing the Government of the HKSAR to gather and vent their dissatisfaction against the Government peacefully is a public benefit to the society of Hong Kong. No common injury to the public can be caused even if a public meeting is being held in the Demonstration Area in contravention with the Public Order Ordinance for a prolonged period. The section of the public that will be affected is very small and the inconvenience caused is comparatively insignificant.
58. Mr Justice Bokhary PJ said in Yeung May-wan v. HKSAR (2005) 8 HKCFAR 137 at paragraph 144, “The mere fact that an assembly, a procession or a demonstration causes some interference with free passage along a highway does not take away its protection under art. 27 of the Basic Law. In my view, it would not lose such protection unless the interference caused is unreasonable in the sense of exceeding what the public can reasonably be expected to tolerate. As to that, I think that the participants in a large or even massive assembly, procession or demonstration will often be able to say with justification that their point could not be nearly as effectively made by anything on a smaller scale. Subject to this, the most obviously relevant considerations are, I think, how substantial the interference is and how long it lasts. But other considerations can be relevant, too. These include, I think, whether the interference concerned had been recently preceded by another act or other acts of interference on another occasion or other occasions. What the public can reasonably be expected to tolerate is a question of fact and degree. But when answering this question, a court must always remember that preservation of the freedom in full measure defines reasonableness and is not merely a factor in deciding what is reasonable.”
59. No obstruction can be caused by the protesters participating in a public meeting in the Demonstration Area as all carriageways in the Demonstration Area were closed by the police. The police closed the carriageways in the Demonstration Area to ensure the protesters there can exercise their right to freedom of peaceful assembly safely and peacefully. Even if there were to be some degree of obstruction in the Demonstration Area, the obstruction could not be unreasonable in light of the constitutional right to freedom of peaceful demonstration of the protesters.
60. Even after protesters walked into the carriageways of Fenwick Pier Street and Harcourt Road on 28 September 2014, people were continuing to be asked to come to the Demonstration Area but not to stay on those roads. The police were demanded to reopen the access to the Demonstration Area so that people could come and join the protesters in the Demonstration Area. If the access to the Demonstration Area were not blocked by the police, most if not all of the people out there would have entered the Demonstration Area and those roads would not have been occupied. No tear gas would need to be fired.
61. It should be the duty of the police to facilitate the holding of a public meeting in the Demonstration Area by citizens. However, the police had cordoned the Demonstration Area and prevented people from joining the public meeting in the Demonstration Area. Any obstruction outside the Demonstration Area could not be intended or caused by the protesters gathering in the Demonstration Area who were just inviting other people to join them in the Demonstration Area.
62. The police irresponsibly refused to reopen the access to the Demonstration Area even after the police saw that a large number of people were gathering outside the Demonstration Area intending to enter the Demonstration Area. The police must be responsible for the obstruction outside the Demonstration Area and what happened afterwards.
63. Everything changed after the firing of the 87 canisters of tear gas and excessive force had been used by the police.
64. The firing of tear gas in such a way was something that no one could have known. Matters were no longer in our control. By then, the most important thing we wanted to do was to bring everyone home safe.
65. In the many days and nights following the firing of the tear gas, we had tried to use different methods to bring an earlier end of the occupation. We helped arrange a dialogue between the student leaders and senior government officials. We tried to convince others to accept an arrangement of de facto referendum as a mechanism to retreat. We organised a plaza voting. Even though most of the things we had done came to be futile, we did work very hard and exhausted all methods we could think of to achieve this goal. In the end, we surrendered to the police on 3 December 2014. The occupation at the Admiralty area ended on 11 December 2014.
66. This is a case about the improperness of laying charges relating to public nuisance.
67. As asserted by Lord Hoffmann in R v Jones (Margaret), prosecutors also have conventions to follow in a case of civil disobedience. They should behave with restraint.
68. In “Public Nuisance – A Critical Examination,” Cambridge Law Journal 48(1), March 1989, pp. 55-84, at p. 77, J. R. Spencer observed that, “...almost all the prosecutions for public nuisance in recent years seem to have taken place in one of two situations: first, where the defendant’s behaviour amounted to a statutory offence, typically punishable with a small penalty, and the prosecutor wanted a bigger or extra stick to beat him with, and secondly, where the defendant’s behaviour was not obviously criminal at all and the prosecutor could think of nothing else to charge him with.”
69. Lord Bingham in R v Rimmington [2006] 1 AC 469 at paragraph 37 endorsed the criticisms of J. R. Spencer concerning the ulterior motive of a prosecutor laying a charge of public nuisance.
70. If there is an appropriate statutory offence to cover the unlawful act in a case of civil disobedience, one would rightly ask why laying the charges of public nuisance? Even though it might not be an abuse of process, the prosecutor in this case must have breached the convention of civil disobedience applicable to him as asserted by Lord Hoffmann in R v Jones (Margaret) for failing to behave with restraint.
71. This is a case about the improperness of laying charges of conspiracy and incitement to incite.
72. Similarly, laying charges of conspiracy and incitement to incite is excessive in a case of civil disobedience and a case of the right to freedom of peaceful demonstration.
73. Pieces of evidence relied upon by the prosecution in the conspiracy charge were public statements made by us. Civil disobedience by definition must be a public act. If these public statements can be used to support the prosecution, all civil disobedience at its formation stage will be suppressed. It is meaningless to talk about civil disobedience as something honourable as no civil disobedience would have happened. Even worse, a chilling effect will be generated in society, and many legitimate speeches will be silenced. The restriction on the right to freedom of speech must be disproportionate.
74. Whether there can be an offence of incitement to incite under the Hong Kong common law is still disputable. Even if there is such an offence, laying charges of incitement to incite in a case of civil disobedience and a case of the right to freedom of peaceful demonstration must have extended culpability excessively, unreasonably and unnecessarily.
75. Since the substantial offence is the questionable offence of public nuisance, laying a charge of incitement to incite public nuisance must have extended culpability to even a manifestly unreasonable degree.
76. If the prosecutor has not acted in such an excessive and unreasonable manner and proper charges were laid, we would not have filed a defence.
77. Nonetheless, filing a defence against charges believed to be excessive and unreasonable should not be considered to be failing to comply with the conventions of civil disobedience on the part of the law-breakers as not accepting the penalties imposed by the law.
78. There are some questions that I am not in the position to answer. If the prosecutor fails to comply with the convention of civil disobedience asserted by Lord Hoffmann in R v Jones (Margaret), what will be the consequence? Who is responsible for rectifying the wrongs?
79. At the end, this is a case about Hong Kong’s rule of law and high degree of autonomy.
80. As a scholar of the rule of law and the constitutional law of Hong Kong, I believe that merely having judicial independence is not sufficient to maintain the rule of law in Hong Kong.
81. Without a genuinely democratic system, powers of the government can still be exercised arbitrarily, and the fundamental rights of citizens will not be adequately protected. Also, without democracy, it will be difficult to withstand the more and more severe encroachment on Hong Kong’s high degree of autonomy under the policy of “One Country Two Systems”. After the Umbrella Movement, there is still a long way before we can reach the destination of Hong Kong’s journey to democracy.
82. Mr Justice Tang, PJ at his Farewell Sitting (2018) 21 HKCFAR 530 at paragraphs 17-19 said, “…although judges are prepared to uphold the rule of law as it has always been understood and applied in Hong Kong, the community must be willing to support them. In what form the support should take? I think the support should be all-embracing. If the judiciary is unfairly attacked, you should hold firm and stand up for them. But, support should not only be events driven. That is not enough. It may be too late. You should endeavour to nurture an atmosphere friendly to the rule of law. We have a free press and free elections in Hong Kong. Make your voice heard and your vote count. Believe me, the price of freedom is indeed eternal vigilance. Above all else, do not give up or underestimate your strength. If we as a community insist on the rule of law, it cannot be taken from us easily. Do not make it easy.”
83. We all have our duty to defend the rule of law and the high degree of autonomy in Hong Kong.
84. I am here because I have used many years of my life and up to this very moment to defend the rule of law of Hong Kong, an integral part of Hong Kong’s high degree of autonomy. I will also never give up on striving for Hong Kong’s democracy.
85. I believe that civil disobedience can be justified by the rule of law. Civil disobedience and the rule of law share the same goal in pursuing justice. Civil disobedience is an effective way of securing the attainment of this common goal at least in the long run by creating the climate within which other means can be used to achieve that goal. (See Benny Yiu-ting Tai, “Civil Disobedience and the Rule of Law,” in Ng, M. H. (Ed.), Wong, J. D. (Ed.). (2017). Civil Unrest and Governance in Hong Kong. London: Routledge. At pp. 141-162.)
86. If we were to be guilty, we will be guilty for daring to share hope at this difficult time in Hong Kong.
87. I am not afraid or ashamed of going to prison. If this is the cup I must take, I will drink with no regret.
List of Authorities
1. Secretary for Justice v Wong Chi Fung (2018) 21 HKCFAR 35, paragraphs 70 and 72.
2. John Rawls, A Theory of Justice (Revised Edition, 1999), p. 320.
3. Martin Luther King Jr. “Letter from a Birmingham Jail,” The Journal of Negro History, Vol. 71, No. 1/4 (Winter - Autumn, 1986), pp. 38-44.
4. R v Jones (Margaret) [2007] 1 AC 136, paragraph 89.
5. UN Human Rights Committee, General Comment No 25 adopted on 12 July 1996 (on Article 25 of the International Covenant on Civil and Political Rights), CCPR/C/21/Rev.1/Add.7, paragraph 15 and 17.
6. Leung Kwok-hung v HKSAR (2005) 8 HKCFAR 229, paragraph 22.
7. Yeung May-wan v HKSAR (2005) 8 HKCFAR 137, paragraph 144.
8. J. R. Spencer, “Public Nuisance – A Critical Examination,” Cambridge Law Journal 48(1), March 1989, pp. 55-84, p. 77.
9. R v Rimmington [2006] 1 AC 469, paragraph 37.
10. Farewell Sitting for the Honourable Mr Justice Tang PJ (2018) 21 HKCFAR 530, Tang PJ, paragraphs 17-19.
11. Benny Yiu-ting Tai, “Civil Disobedience and the Rule of Law” in Ng, M. H. (Ed.), Wong, J. D. (Ed.). (2017). Civil Unrest and Governance in Hong Kong. London: Routledge. At pp. 141-162.
what is the purpose of the general assembly 在 黃浩銘 Raphael Wong Facebook 的精選貼文
戴教授,說得太好了!😭😭😭😭
//公民抗命的目的並不是要妨擾公眾,而是要喚起公眾關注社會的不公義,並贏取人們認同社會運動的目標。若一個人被確立了是在進行公民抗命,那他就不可能會意圖造成不合理的阻礙,因那是與公民抗命背道而馳,即使最後因他的行動造成的阻礙是超出了他所能預見的。//
//這些香港人進行公民抗命,是要喚起香港社會及世界的關注,中國政府不公義地違背了憲法的承諾,也破壞了它的憲法責任。我們所作的,是為了維護我們及所有香港人的憲法權利,包括了反對我們的行動的人;是為了要我們的主權國履行承諾;是為了爭取香港憲制進行根本改革;及為香港的未來帶來更多公義。//
//不恰當檢控
......在 “Public Nuisance – A Critical Examination,” Cambridge Law Journal 48(1), March 1989, pp. 55-84, 一文,J. R. Spencer 看到:「近年差不多所有以公眾妨擾罪來起訴的案件,都出現以下兩種情況的其中一個: 一、當被告人的行為是觸犯了成文法律,通常懲罰是輕微的,檢控官想要以一支更大或額外的棒子去打他; 二、當被告人的行為看來是明顯完全不涉及刑事責任的,檢控官找不到其他罪名可控訴他。」兵咸勳爵在 R v Rimmington [2006] 1 AC 469 採納了J. R. Spencer 對檢控官在控訴公眾妨擾罪時暗藏的動機的批評。//
//同樣地,在一宗公民抗命的案件及一宗涉及和平示威自由的權利的案件,以串謀及煽惑人煽惑為罪名起訴,那是過度的。在串謀的控罪,控方提出的証據是我們的公開發言。按定義,公民抗命一定是一項公開的行為。若這些公開發言可以用於檢控,那會把所有的公民抗命都扼殺於萌芽階段。那麼說公民抗命是一些光榮之事就變得毫無意義,因公民抗命根本就不可能出現。更惡劣的後果是,社會出現寒蟬效應,很多合理的言論都會被噤聲。對言論自由的限制必然是不合乎比例。//
//我們都有責任去守護香港的法治和高度自治。我在這裹,是因我用了生命中很多的年月,直至此時此刻,去守護香港的法治,那亦是香港的高度自治不可或缺的部份。我永不會放棄,也必會繼續爭取香港的民主。
我相信法治能為公民抗命提供理據。公民抗命與法治有共同的目標,就是追求公義。公民抗命是有效的方法去確保這共同目標能達成,至少從長遠來說,公民抗命能創造一個氛圍,讓其他方法可被用來達成那目標。
若我們真是有罪,那麼我們的罪名就是在香港這艱難的時刻仍敢於去散播希望。入獄,我不懼怕,也不羞愧。若這苦杯是不能挪開,我會無悔地飲下。//
戴耀廷的結案陳詞
公民抗命的精神
首先,這是一宗公民抗命的案子。
我站在這裏,就是為了公民抗命。陳健民教授、朱耀明牧師與我一起發起的「讓愛與和平佔領中環運動」,是一場公民抗命的運動。在以前,少有香港人聽過公民抗命,但現在公民抗命這意念在香港已是家傳戶曉。
終審法院在律政司對黃之鋒案Secretary for Justice v Wong Chi Fung (2018) 21 HKCFAR 35採納了約翰羅爾斯在《正義論》中為公民抗命所下的定義。公民抗命是「一項公開、非暴力、真誠的政治行為,通常是爲了導致法律上或社會上的改變,所作出的違法行爲。」
在律政司對黃之鋒案,賀輔明勳爵是終審法院的非常任法官。在此案,終審法院引述了賀輔明勳爵在R v Jones (Margaret) [2007] 1 AC 136的說法:「出於真誠理由的公民抗命在這國家有源遠流長及光榮的歷史。」終審法院認同公民抗命的概念是同樣適用於其他尊重個人權利的法制如香港。但為何公民抗命是光榮和文明呢?終審法院沒有進一步解釋。
約翰羅爾斯的定義大體只能說出公民抗命的行為部分。 在馬丁路德金博士非常有名關於公民抗命的著作《從伯明罕市監獄發出的信》中,他道出更多公民抗命的意圖部分或公民抗命的精神。這信函是他在 1963年4 月16日,因在亞拉巴馬州伯明罕市參與示威爭取民權後被判入獄時寫的。
在信函中他說:「一個人若不遵守不公義的法律,必須要公開,充滿愛心和願意接受懲罰。個人因為其良心指出某法律是不公義的,而且甘心接受懲處,是要喚起社會的良知,關注到那中間的不公義,這樣其實是對法律表達了最大的敬意。」
馬丁路德金博士認為有時法律在表面上是公義的,但實行時卻變得不公義。他說:「我未得准許而遊行,並因而被捕,現在的確有一條法例,要求遊行須得准許,但這條法例如果是用了來…否定公民運用和平集會和抗議的權利,則會變成不公義。」
他還說:「 面對一個經常拒絕談判的社區,非暴力的直接行動正是為了營造一次危機,以及加強一種具創造力的張力,逼使對方面對問題,也使問題戲劇地呈現出來,讓其不能再被忽略。」
馬丁路德金博士對我啟發良多,我們也把這精神栽種在「讓愛與和平佔領中環運動」中。緊隨馬丁路德金博士在公民抗命之路的腳步,我們努力去開啟人心中那份自我犧牲的愛及平靜安穩,而非煽惑憤怒與仇恨。
終審法院在律政司對黃之鋒案進一步引述賀輔明勳爵在R v Jones (Margaret) 的說法:「違法者與執法者都有一些規則要遵守。示威者的行為要合乎比例,並不會導致過量的破壞或不便。以証明他們的真誠信念,他們應接受法律的懲處。」
雖然終審法院在律政司對黃之鋒案沒有引述這部分,賀輔明勳爵在R v Jones (Margaret) 還說:「另一方面,警察與檢控官的行為也要有所節制,並法官在判刑時應考慮示威者的真誠動機。」這些有關公民抗命的規則應也適用,終審法院應不會反對。
公民抗命的目的並不是要妨擾公眾,而是要喚起公眾關注社會的不公義,並贏取人們認同社會運動的目標。若一個人被確立了是在進行公民抗命,那他就不可能會意圖造成不合理的阻礙,因那是與公民抗命背道而馳,即使最後因他的行動造成的阻礙是超出了他所能預見的。
非暴力是「讓愛與和平佔領中環運動」的指導原則。公民抗命的行為,就是佔領中環,是運動的最後一步。進行公民抗命時,示威者會坐在馬路上,手扣手,等候警察拘捕,不作反抗。我們計劃及希望達到的佔領程度是合乎比例的。我們相信所會造成的阻礙是合理的。
我相信我們已做了公民抗命中違法者所當做的,我們期望其他人也會做得到他們所當做的。
追求民主
在一宗公民抗命的案件,公民抗命的方法是否合乎比例,不能抽空地談,必須考慮進行那行動的目的。
這是一宗關乎一群深愛香港的香港人的案件,他們相信只有透過引入真普選,才能開啟化解香港深層次矛盾之門。
我就是他們其中一人。與那些一起追尋同一民主夢的人,為了我們的憲法權利,我們已等了超過三十年。當我還在大學讀法律時,我已參與香港的民主運動。現在,我的兒子也剛大學畢業了,香港還未有民主。
馬丁路德金博士在信函中還說:「壓迫者從不自願施予自由,自由是被壓迫者爭取得來的。…如同我們出色的法學家所說,延誤公義,就是否定公義。」我們在追求公義,但對當權者來說,我們計劃的行動誠然是妨擾。
《基本法》第45 條規定行政長官的產生辦法最終達至由一個有廣泛代表性的提名委員會按民主程序提名後普選產生的目標。《公民及政治權利國際公約》第 25 條規定:「凡屬公民,無分第二條所列之任何區別,不受無理限制,均應有權利及機會:…(乙)在真正、定期之選舉中投票及被選。選舉權必須普及而平等,選舉應以無記名投票法行之,以保證選民意志之自由表現 …」
聯合國人權委員會在《第25號一般性意見》,為《公民及政治權利國際公約》第 25 (乙) 條中的 「普及而平等」,提供了它的理解和要求。第15段說:「有效落實競選擔任經選舉產生的職位的權利和機會有助於確保享有投票權的人自由挑選候選人。」第17段說:「不得以政治見解為由剝奪任何人參加競選的權利。」
全國人民代表大會常務委員會在2004年就《基本法》附件一及附件二作出的解釋,實質改變了修改行政長官選舉辦法的憲法程序。在行政長官向立法會提出修改產生辦法的法案前,額外加了兩步。行政長官就是否需要進行修改,須向全國人民代表大會常務委員會提出報告。全國人民代表大會常務委員會根據香港特別行政區的實際情況和循序漸進的原則作出確定。相關法案須經立法會全體議員三分之二多數 通過,行政長官同意,並報全國人民代表大會常務委員會批准或者備案。
在2014年8月31日,全國人民代表大會常務委員會完成了憲法修改程序的第二步,作出了有關行政長官產生辦法的決定。全國人民代表大會常務委員會除決定行政長官可由普選產生外,就普選行政長官的產生辦法設下了具體及嚴厲的規定。
提名委員會的人數、構成和委員產生辦法都得按照第四任行政長官選舉委員會的人數、構成和委員產生辦法而規定。提名委員會按民主程序只可提名產生二至三名行政長官候選人。每名候選人均須獲得提名委員會全體委員半數以上的支持。
按著全國人民代表大會常務委員會自行設定的程序,全國人民代表大會常務委員會應只有權決定是否批准或不批准行政長官提交的報告,而不能就提名委員會的組成及提名程序,設下詳細的規定。全國人民代表大會常務委員會連自己設定的程序也沒有遵守。
若按著全國人民代表大會常務委員會設下的嚴厲條件去選舉產生行政長官,香港的選民就候選人不會有真正的選擇,因所有不受歡迎的人都會被篩選掉。這與普選的意思是不相符的。
這些香港人進行公民抗命,是要喚起香港社會及世界的關注,中國政府不公義地違背了憲法的承諾,也破壞了它的憲法責任。我們所作的,是為了維護我們及所有香港人的憲法權利,包括了反對我們的行動的人;是為了要我們的主權國履行承諾;是為了爭取香港憲制進行根本改革;及為香港的未來帶來更多公義。
和平示威的權利
這案件是關乎和平示威自由及言論自由的權利。
根據「讓愛與和平佔領中環運動」的原先計劃,舉行公眾集會的地方是遮打道行人專用區、遮打花園及皇后像廣場,時間是由2014年 10月1 日下午三時正開始,最長也不會超過2014年 10月5 日。我們期望會有三類人來到。
第一類人已決定了會參與公民抗命。他們會在過了合法的時限後,繼續坐在遮打道上。他們是那些在「讓愛與和平佔領中環運動」意向書上選了第二或第三個選項的人。第二類人決定不會參與公民抗命,而只是來支援第一類人。過了合法的時限後,他們會離開遮打道,去到遮打花園或皇后像廣場。他們是那些在「讓愛與和平佔領中環運動」意向書上選了第一個選項的人。第三類人還未決定是否參與公民抗命的行動。他們可以到合法時限快要過去的最後一刻,才決定是否留在遮打道上。
我們相信警方會有足夠時間把所有參與佔領中環公民抗命的示威者移走。估計會有數千人參與。我們要求參與者要嚴守非暴力的紀律。我們採用了詳細的方法去確保大部分即使不是所有參與者都會跟從。
我們是在行使受《基本法》第27 條保障的和平示威自由的憲法權利。這也與同受《基本法》第27 條保障的言論自由有緊密關係。透過《基本法》第39條,言論自由、表達自由、和平集會的自由受《香港人權法》第16 及17條的憲法保障,而這些條文與《公民及政治權利國際公約》第19 及21是一樣的,是《公民及政治權利國際公約》適用於香港的部分。
若原訂計劃真的執行,那可能會觸犯《公安條例》一些關於組織未經批准集結的規定,但我們相信那會舉行的公眾集會是不會對公眾構成不合理的阻礙的。會被佔領的空間,包括了馬路,是公眾在公眾假期可自由使用的。計劃佔領的時期,首兩天是公眾假期,最後兩天是周末。
當公眾集會的地方轉到政府總部外的添美路、立法會道及龍匯道的行人路及馬路的範圍(下稱「示威區域」),雖然集會的主題、領導、組織及參加者的組成已改變了,但精神卻沒有。在2014年9 月27 和 28日,人們是被邀請來示威區域參加集會的。這仍然是公民在行使和平示威自由及言論自由的權利。
相類似的公眾集會也曾在2012年9 月3至 8日,在反國民教育運動中在示威區域內舉行。除卻公民在那時候還可以進入公民廣場(政府總部東翼前地),在2012年9月在反國民教育運動的佔領空間,與示威者在2014年9 月27 和 28日在警方封鎖所有通往示威區域通道前所佔領的空間是很相近的。
自2012年的反國民教育運動後,這示威區域已被普遍認同,是可以用來組織有大量公眾參與,反對香港特別行政區政府的大型公眾集會的公共空間。換句話說,公眾都認知示威區域是一個重要場地,讓香港公民聚集去一起行使和平示威自由的權利。
根據此我們也抱有的公眾認知,當我在2014年9 月28日凌晨宣布提前佔領中環的時候,我們只可能意圖叫人來到示威區域而不會是任何其他地方。要佔領示威區域以外的地方,沒可能是當時我們所能想到的。沒有人會如此想的。
在梁國雄對香港特別行政區案Leung Kwok-hung v. HKSAR (2005) 8 HKCFAR 229, 終審法院指出: 「和平集會權利涉及一項政府(即行政當局)所須承擔的積極責任,那就是採取合理和適當的措施,使合法的集會能夠和平地進行。然而,這並非一項絕對責任,因為政府不能保證合法的集會定會和平地進行,而政府在選擇採取何等措施方面享有廣泛的酌情權。至於甚麼是合理和適當的措施,則須視乎個別個案中的所有情況而定。」
如控方証人黃基偉高級警司 (PW2) 在作供時所說,當有太多的示威者聚集在鄰接的行人路,警方為了示威者的安全,就會封鎖示威區域內的馬路。能有一個公共空間讓反對政府的人士和平集會以宣洩他們對香港特別行政區政府的不滿,對香港社會來說,那是一項公共利益。即使在示威區域長期舉行集會是違反《公安條例》,但這不會對公眾構成共同傷害。受影響的部分公眾只是很少,而造成的不便相對來說也是輕微。
終審法院常任法官包致金在楊美雲對香港特別行政區案Yeung May-wan v. HKSAR (2005) 8 HKCFAR 137中說:「《基本法》第二十七條下的保障,不會純粹因為集會、遊行或示威對公路上的自由通行造成某種干擾而被撤回。本席認為,除非所造成的干擾屬不合理,即超出可合理地預期公眾可容忍的程度,否則集會、遊行或示威不會失去這項保障。關於這一點,本席認為,大型甚或大規模集會、遊行或示威的參加者往往有理由指出,只有如此大規模的活動才能協助有效地表達他們的意見。除此之外,本席認為最明顯的相關考慮因素是干擾的嚴重程度和干擾為時多久。不過,也可能有其他的相關考慮因素,本席認為包括以下一項:在有關的干擾發生之前,是否有人曾一度或數度作出一項或多項干擾行為?可合理地預期公眾能容許甚麼,乃屬事實和程度的問題,但在回答這個問題時,法庭務須謹記,毫無保留地保存相關自由,正是合理性的定義,而非僅是用作決定是否合理的因素之一。」
參與示威區域的公眾集會的示威者並不能構成阻礙,因示威區域的馬路是由警方封鎖的。警方封鎖示威區域的馬路是為了保障示威者的安全 ,讓他們可以安全地及和平地行使和平集會的權利。就算在示威區域是造成了一定程度的阻礙,考慮到示威者是在行使他們的和平示威自由的憲法權利,那阻礙也不能是不合理的。
即使當示威者在2014年9 月28日走到分域碼頭街及夏慤道,人們只是被邀請來到示威區域而不是留在那些道路上。警方被要求開放通向示威區域的通路,好讓人們能去到示威區域與示威者們一起。若非通往示威區域的通路被警方封鎖了,大部份人即使不是所有人,應都會進入示威區域,而那些道路就不會被佔領。催淚彈也就沒有需要發放。
警方應有責任去促使公民能在示威區域舉行公眾集會,但警方卻把示威區域封鎖了,阻礙人們來到示威區域參與公眾集會。示威區域內的示威者不可能意圖或造成任何在示威區域以外所出現的阻礙,因他們只是邀請人們來到示威區域與他們一起。
當警方見到已有大量人群在示威區域外意圖進入示威區域,警方仍不負責任地拒絕開放通向示威區域的通路。警方必須為示威區域外所造成的阻礙及之後發生的所有事負上責任。
在警方發放87催淚彈及使用過度武力後,一切都改變了。如此發放催淚彈是沒有人能預見的,事情再不是我們所能掌控。到了那時候,我們覺得最重要的事,就是帶領參加運動的人平安回家。
在發放催淚彈後的無數個日與夜,我們竭力用不同方法去盡快結束佔領。我們幫助促使學生領袖與政府主要官員對話。我們與各方商討能否接受以變相公投為退場機制。我們籌組了廣場投票。即使我們這些工作的大部分最後都沒有成效,但我們真的是盡了力及用盡能想到的方法去達到這目標。最後,我們在2014年12 月3日向警方自首。金鐘範圍的佔領在2014年12 月11日也結束了。
不恰當檢控
這是關乎不恰當地以公眾妨擾罪作為罪名起訴的案件。
如賀輔明勳爵in R v Jones (Margaret) 所指出,檢控官也有公民抗命的規則要遵守的,他們的行為要有所節制。
在 “Public Nuisance – A Critical Examination,” Cambridge Law Journal 48(1), March 1989, pp. 55-84, 一文,J. R. Spencer 看到:「近年差不多所有以公眾妨擾罪來起訴的案件,都出現以下兩種情況的其中一個: 一、當被告人的行為是觸犯了成文法律,通常懲罰是輕微的,檢控官想要以一支更大或額外的棒子去打他; 二、當被告人的行為看來是明顯完全不涉及刑事責任的,檢控官找不到其他罪名可控訴他。」兵咸勳爵在 R v Rimmington [2006] 1 AC 469 採納了J. R. Spencer 對檢控官在控訴公眾妨擾罪時暗藏的動機的批評。
若有一適當的成文罪行能涵蓋一宗公民抗命案件中的違法行為,我們可以合理地質問為何要以公眾妨擾罪來起訴?即使這不構成濫用程序,但這案件的檢控官一定已違反了賀輔明勳爵在 R v Jones (Margaret) 所指出適用於他的公民抗命的規則,因他並沒有節制行為。
這是關乎不恰當地以串謀及煽惑人煽惑為罪名起訴的案件。
同樣地,在一宗公民抗命的案件及一宗涉及和平示威自由的權利的案件,以串謀及煽惑人煽惑為罪名起訴,那是過度的。在串謀的控罪,控方提出的証據是我們的公開發言。按定義,公民抗命一定是一項公開的行為。若這些公開發言可以用於檢控,那會把所有的公民抗命都扼殺於萌芽階段。那麼說公民抗命是一些光榮之事就變得毫無意義,因公民抗命根本就不可能出現。更惡劣的後果是,社會出現寒蟬效應,很多合理的言論都會被噤聲。對言論自由的限制必然是不合乎比例。
在香港普通法是否有煽惑人煽惑這罪名仍存爭議,但即使真有這罪行,在一宗公民抗命的案件及一宗涉及和平示威自由的權利的案件,以串謀及煽惑人煽惑為罪名起訴,那是過度地、不合理地及不必要地擴展過失責任。
因主罪行是那惹人猜疑的公眾妨擾罪,以煽惑人煽惑去構成公眾妨擾罪來起訴,那更會把過失責任擴展至明顯不合理的程度。若檢控官的行為不是那麼過度和不合理,起訴的罪名是恰當的,我們是不會抗辯的。無論如何,當控罪相信是過度及不合理,我們提出抗辯不應被視為拒絕接受法律的懲處,違反了違法者的公民抗命規則。
有些問題是我這位置難以解答的。若檢控官違反了賀輔明勳爵在 R v Jones (Margaret) 所指出的公民抗命的規則,那會有甚麼後果呢?由誰來糾正這錯誤呢?
守護法治
歸根究底,這是一宗關乎香港法治與高度自治的案件。
作為香港法治及憲法的學者,我相信單純依靠司法獨立是不足以維護香港的法治。 缺乏一個真正的民主制度,政府權力會被濫用,公民的基利不會得到充分的保障。沒有民主,要抵抗越來越厲害對「一國兩制」下香港的高度自由的侵害,會是困難的。在「雨傘運動」後,還有很長的路才能到達香港民主之旅的終點。
終審法院常任法官鄧國楨在退休前法庭儀式上致辭說:「雖然法官決意維護法治,讓其在香港的價值及運用恒久不變,但關鍵在於社會對法官予以由衷的支持。那應是何等形式的支持?我認為,應是全面而徹底的支持。如果法官受到不公的抨擊,請緊守立場並支持他們。可是,不要只因爲某些事件才對他們表示支持。那並不足夠,也可能已經太遲。大家應致力在社會上培養有利於法治的氛圍。我們在香港擁有新聞自由及選舉自由,必須努力發聲,讓你的選票發揮作用。請相信我,自由的代價是要時刻保持警覺。更重要的是,永遠不要放棄或低估自己的力量。如果我們整體社會堅持維護法治,無人可以輕易把它奪走。千萬不要讓此事變得輕而易舉。」
我們都有責任去守護香港的法治和高度自治。我在這裹,是因我用了生命中很多的年月,直至此時此刻,去守護香港的法治,那亦是香港的高度自治不可或缺的部份。我永不會放棄,也必會繼續爭取香港的民主。
我相信法治能為公民抗命提供理據。公民抗命與法治有共同的目標,就是追求公義。公民抗命是有效的方法去確保這共同目標能達成,至少從長遠來說,公民抗命能創造一個氛圍,讓其他方法可被用來達成那目標。
若我們真是有罪,那麼我們的罪名就是在香港這艱難的時刻仍敢於去散播希望。入獄,我不懼怕,也不羞愧。若這苦杯是不能挪開,我會無悔地飲下。
DCCC 480/2017
Closing Submission of Tai Yiu-ting (D1)
1. First, this is a case of civil disobedience.
2. Here, I am standing up for civil disobedience.
3. The Occupy Central with Love and Peace Movement, initiated by Professor Chan Kin-man, Reverend Chu Yiu-ming and I, was a movement of civil disobedience.
4. Civil disobedience, known little by Hong Kong people in the past, is now a household idea in Hong Kong.
5. The Court of Final Appeal in Secretary for Justice v Wong Chi Fung (2018) 21 HKCFAR 35 at paragraph 70 endorsed the definition of civil disobedience put forward by John Rawls in A Theory of Justice (Revised Edition, 1999) at p. 320.
6. Civil disobedience is “a public, nonviolent, conscientious yet political act contrary to law usually done with the aim of bringing about a change in the law or policies of the government.”
7. In Secretary for Justice v Wong Chi Fung, the Court of Final Appeal with Lord Hoffmann as the non-permanent judge repeated at paragraph 72 what Lord Hoffmann had said in R v Jones (Margaret) [2007] 1 AC 136 at paragraph 89, “civil disobedience on conscientious grounds has a long and honourable history in this country.” The Court of Final Appeal accepted that the concept of civil disobedience is equally recognisable in a jurisdiction respecting individual rights, like Hong Kong.
8. However, it was not explained why civil disobedience is honourable and civilised.
9. John Rawls’ definition spells out more the actus reus of civil disobedience.
10. In his very famous work on civil disobedience, Letter from a Birmingham Jail reproduced in The Journal of Negro History, Vol. 71, No. 1/4 (Winter - Autumn, 1986), pp. 38-44, Dr Martin Luther King Jr. provided more the mens rea of civil disobedience or the spirit of civil disobedience. The Letter was written by him on 16 April 1963 while in jail serving a sentence for participating in civil rights demonstration in Birmingham, Alabama.
11. He said (p. 41), “One who breaks an unjust law must do so openly, lovingly, and with a willingness to accept the penalty. I submit that an individual who breaks a law that conscience tells him is unjust, and willingly accepts the penalty by staying in jail to arouse the conscience of the community over its injustice, is in reality expressing the very highest respect for law.”
12. To Dr King, a law could be just on its face but unjust in its application. He said in the Letter (p. 40-41), “I was arrested…on a charge of parading without a permit. Now there is nothing wrong with an ordinance which requires a permit for a parade, but when the ordinance is used to …deny citizens the First Amendment privilege of peaceful assembly and peaceful protest, then it becomes unjust.”
13. He also said (p. 39), “Nonviolent direct action seeks to create such a crisis and establish such creative tension that a community that has constantly refused to negotiate is forced to confront the issue. It seeks so to dramatise the issue that it can no longer be ignored.”
14. I was inspired very much by Dr King, and this is the same spirit we have implanted in the Occupy Central with Love and Peace Movement. Following Dr King’s steps closely in the path of civil disobedience, we strive to inspire self-sacrificing love and peacefulness but not to incite anger and hatred.
15. The Court of Final Appeal in Secretary for Justice v Wong Chi Fung further cited what Lord Hoffmann had said in R v Jones (Margaret), “[T]here 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.”
16. Though the Court of Final Appeal did not quote this part of the judgment in Secretary for Justice v Wong Chi Fung, Lord Hoffmann in R v Jones (Margaret) also said, “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.” These other conventions of civil disobedience should also apply, and it is not likely that the Court of Final Appeal would object.
17. The purpose of civil disobedience is not to obstruct the public but to arouse public concern to the injustice in society and to win sympathy from the public on the cause of the social movement.
18. If it is found that a person is committing an act of civil disobedience, he could not have intended to cause unreasonable obstruction as it will defeat the whole purpose of civil disobedience itself even if his action might at the end have caused a degree of obstruction more than he could have known.
19. Non-violence was the overarching principle of the Occupy Central with Love and Peace Movement. The act of civil disobedience, i.e. occupy Central, was the last resort of the movement. The manner of civil disobedience by the protesters was to sit down together on the street with arms locked and wait to be arrested by the police without struggling. The scale of occupation was planned and intended to be proportionate. We believe that the obstruction must be reasonable.
20. I believe we have done our part as the law-breaker in civil disobedience. We expect the others will do their parts.
21. In a case of civil disobedience, whether the means of civil disobedience is proportionate; contextually, the end must be considered.
22. This is a case about some Hong Kong people who love Hong Kong very much and believe that only through the introduction of genuine universal suffrage could a door be opened to resolving the deep-seated conflicts in Hong Kong.
23. I am one of those Hong Kong people. With all people who share the same democratic dream, we have waited for more than thirty years for our constitutional rights. Since the time I was a law student at the University, I had been involved in Hong Kong’s Democratic Movement. Now, my son has just graduated from the University, democracy is still nowhere in Hong Kong.
24. Also said by Dr King in the Letter (p. 292), “…freedom is never voluntarily given by the oppressor; it must be demanded by the oppressed…We must come to see with the distinguished jurist of yesterday that ‘justice too long delayed is justice denied.’”
25. In seeking for justice, our planned action in the eyes of the powerholders may indeed be a nuisance.
26. According to Article 45 of the Basic Law the ultimate aim of the selection of the Chief Executive (“CE”) is by universal suffrage upon nomination by a broadly representative nominating committee in accordance with democratic procedures.
27. Article 25 of the International Covenant on Civil and Political Rights (“ICCPR”) provides that, “Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions: … (b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors…”
28. The United Nations Human Rights Committee gave its understanding and requirements of universal and equal suffrage under Article 25 of the ICCPR in its General Comment No. 25 adopted on 12 July 1996. (CCPR/C/21/Rev.1/Add.7).
29. Paragraph 15 provides that, “The effective implementation of the right and the opportunity to stand for elective office ensures that persons entitled to vote have a free choice of candidates.”
30. Paragraph 17 provides that, “political opinion may not be used as a ground to deprive any person of the right to stand for election.”
31. Through its Interpretation of Annex I and Annex II of the Basic Law in 2004, the Standing Committee of the National People’s Congress (“NPCSC”) in effect changed the constitutional procedures to amend the election methods of the CE.
32. Before the CE can put forward bills on the amendments to the election methods to the Legislative Council (“LegCo”), two more steps are added. The CE is required to make a report to the NPCSC as regards whether there is a need to make an amendment and the NPCSC must make a determination in the light of the actual situation in the Hong Kong Special Administrative Region (“HKSAR”) and in accordance with the principle of gradual and orderly progress. Such bills need to have the endorsement of a two-thirds majority of all the members of the LegCo and the consent of the CE, and they shall be reported to the NPCSC.
33. On 31 August 2014, the NPCSC completed the second step of the constitutional reform process by issuing a decision on the election method of the CE. The NPCSC laid down specific and stringent requirements on the election method of the CE by universal suffrage in addition to the determination that starting from 2017 the selection of the CE may be implemented by the method of universal suffrage.
34. The number of members, composition and formation of the Nomination Committee (“NC”) have to be made in accordance with the number of members, composition and formation method of the Election Committee for the 4th CE. The NC can only nominate two to three candidates for the office of CE in accordance with democratic procedures. Each candidate must have the endorsement of more than half of all the members of the nominating committee.
35. In accordance with the procedure added by itself, the NPCSC should only have the power to make a determination of approving or not approving the CE’s report but not providing detailed requirements on the composition and nomination procedures of the NC. The NPCSC has failed to follow the procedures set by itself.
36. If the requirements set by the NPCSC on the election method of the CE were to be followed, electors in Hong Kong would not have a genuine choice of candidates in the election as all unwelcome candidates would be screened out. This is not compatible with the meaning of universal suffrage.
37. These Hong Kong people resorted to civil disobedience to arouse more concern in the community and the world that the Chinese Government had unjustly broken its constitutional promise and breached its constitutional obligation.
38. We did all we had done to protect our constitutional rights and the constitutional rights of all Hong Kong people including those who disagreed with our action, to demand a constitutional promise to be honored by our sovereign, to strive for a fundamental reform in the constitutional system of Hong Kong, and to bring more justice to the future of Hong Kong.
39. This is also a case of the right to freedom of peaceful demonstration and the right to freedom of speech.
40. According to the original plan of the Occupy Central with Love and Peace Movement, the public meeting to be organised was to be held at the Chater Road Pedestrian Precinct, the Chater Garden, and the Statue Square, from 3:00 pm on 1 October 2014 to the latest on 5 October 2014.
41. We expected that there would be three groups of people coming. The first group of people decided to commit the act of civil disobedience. They would continue to sit on the Chater Road after the notified time expired. They would be the people who had chosen the second or the third option in the letter of intent of the Occupy Central with Love and Peace Movement.
42. The second group of people decided not to commit the act of civil disobedience but just came to support the first group of people. They would leave the Chater Road after the notified time expired and move to the Chater Garden or the Statue Square. They would be the people who had chosen the first option in the letter of intent of the Occupy Central with Love and Peace Movement.
43. The third group of people might not have made up their mind yet on whether they would join the action of civil disobedience. They could decide at the very last moment when the notified time expired by choosing where to stay.
44. We believed that the police would have sufficient time to remove all the protesters joining the act of civil disobedience of occupy Central; estimated to be a few thousands.
45. We asked all participants to observe the discipline of non-violence strictly. We adopted specific measures to ensure most if not all participants would follow.
46. We were exercising our constitutional right to the freedom of peaceful demonstration protected by Article 27 of the Basic Law. It is also closely associated with the right to freedom of speech also protected by Article 27 of the Basic Law. By Article 39 of the Basic Law, constitutional protection is also given to freedom of opinion, of expression and of peaceful assembly as provided for in Articles 16 and 17 of the Hong Kong Bill of Rights, those articles being the equivalents of Articles 19 and 21 of the ICCPR and representing part of the ICCPR as applied to Hong Kong.
47. If the original plan were to be carried out, it might breach some requirements under the Public Order Ordinance concerning the organisation of unauthorised assembly. However, we believed that the public meeting to be held would not cause unreasonable obstruction to the public.
48. The space to be occupied, including the carriageway, can be freely used by every citizen on public holidays.
49. The first two days of the planned occupation were public holidays and the last two days were the weekend.
50. When the venue of the public meeting was moved to the area outside the Central Government Offices including the pavements and carriageways at Tim Mei Avenue, Legislative Council Road and Lung Hui Road (“the Demonstration Area”), though the public meeting’s themes, leadership, organization and composition of participants had changed, the spirit had not.
51. People were asked to join the public meeting in the Demonstration Area on 27 and 28 September 2014. It was still an exercise of their constitutional right to freedom of peaceful demonstration and freedom of speech by Hong Kong citizens.
52. Similar public meetings had been held in the Demonstration Area during the Anti-national Curriculum Campaign from 3-9 September 2012. Citizens at that time could have access to the Civic Square, i.e. the East Wing Forecourt of the Central Government Offices. Other than that, the space being occupied by protesters during the Anti-national Curriculum Campaign in September 2012 was very similar to the space that was being occupied by protesters on 27 and 28 September 2014 before the police cordoned all access to the Demonstration Area.
53. Since the Anti-national Curriculum Campaign in 2012, the Demonstration Area has been generally recognised to be the public space that can be used for organising big public meetings with a large number of people participating to protest against the Government of the HKSAR. In another word, the Demonstration Area is known to the public to be an important venue for citizens of Hong Kong to gather and to exercise their right to peaceful demonstration together.
54. On the basis of this public knowledge that we share, at the time when I announced the early beginning of the Occupy Central in the small hours on 28 September 2014, we could only be intending to ask people to come to the Demonstration Area but no other place. Occupying places outside the Demonstration Area could not have been in the thought of us at that time. No one could have intended that.
55. The Court of Final Appeal in Leung Kwok-hung v. HKSAR (2005) 8 HKCFAR 229 at paragraph 22 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.”
56. As senior superintendent Wong Key-wai (PW2) said in his evidence, the police closed the carriageways in the Demonstration Area for the safety of the protesters when there were too many protesters on the adjacent pavements.
57. Having a public space for the public opposing the Government of the HKSAR to gather and vent their dissatisfaction against the Government peacefully is a public benefit to the society of Hong Kong. No common injury to the public can be caused even if a public meeting is being held in the Demonstration Area in contravention with the Public Order Ordinance for a prolonged period. The section of the public that will be affected is very small and the inconvenience caused is comparatively insignificant.
58. Mr Justice Bokhary PJ said in Yeung May-wan v. HKSAR (2005) 8 HKCFAR 137 at paragraph 144, “The mere fact that an assembly, a procession or a demonstration causes some interference with free passage along a highway does not take away its protection under art. 27 of the Basic Law. In my view, it would not lose such protection unless the interference caused is unreasonable in the sense of exceeding what the public can reasonably be expected to tolerate. As to that, I think that the participants in a large or even massive assembly, procession or demonstration will often be able to say with justification that their point could not be nearly as effectively made by anything on a smaller scale. Subject to this, the most obviously relevant considerations are, I think, how substantial the interference is and how long it lasts. But other considerations can be relevant, too. These include, I think, whether the interference concerned had been recently preceded by another act or other acts of interference on another occasion or other occasions. What the public can reasonably be expected to tolerate is a question of fact and degree. But when answering this question, a court must always remember that preservation of the freedom in full measure defines reasonableness and is not merely a factor in deciding what is reasonable.”
59. No obstruction can be caused by the protesters participating in a public meeting in the Demonstration Area as all carriageways in the Demonstration Area were closed by the police. The police closed the carriageways in the Demonstration Area to ensure the protesters there can exercise their right to freedom of peaceful assembly safely and peacefully. Even if there were to be some degree of obstruction in the Demonstration Area, the obstruction could not be unreasonable in light of the constitutional right to freedom of peaceful demonstration of the protesters.
60. Even after protesters walked into the carriageways of Fenwick Pier Street and Harcourt Road on 28 September 2014, people were continuing to be asked to come to the Demonstration Area but not to stay on those roads. The police were demanded to reopen the access to the Demonstration Area so that people could come and join the protesters in the Demonstration Area. If the access to the Demonstration Area were not blocked by the police, most if not all of the people out there would have entered the Demonstration Area and those roads would not have been occupied. No tear gas would need to be fired.
61. It should be the duty of the police to facilitate the holding of a public meeting in the Demonstration Area by citizens. However, the police had cordoned the Demonstration Area and prevented people from joining the public meeting in the Demonstration Area. Any obstruction outside the Demonstration Area could not be intended or caused by the protesters gathering in the Demonstration Area who were just inviting other people to join them in the Demonstration Area.
62. The police irresponsibly refused to reopen the access to the Demonstration Area even after the police saw that a large number of people were gathering outside the Demonstration Area intending to enter the Demonstration Area. The police must be responsible for the obstruction outside the Demonstration Area and what happened afterwards.
63. Everything changed after the firing of the 87 canisters of tear gas and excessive force had been used by the police.
64. The firing of tear gas in such a way was something that no one could have known. Matters were no longer in our control. By then, the most important thing we wanted to do was to bring everyone home safe.
65. In the many days and nights following the firing of the tear gas, we had tried to use different methods to bring an earlier end of the occupation. We helped arrange a dialogue between the student leaders and senior government officials. We tried to convince others to accept an arrangement of de facto referendum as a mechanism to retreat. We organised a plaza voting. Even though most of the things we had done came to be futile, we did work very hard and exhausted all methods we could think of to achieve this goal. In the end, we surrendered to the police on 3 December 2014. The occupation at the Admiralty area ended on 11 December 2014.
66. This is a case about the improperness of laying charges relating to public nuisance.
67. As asserted by Lord Hoffmann in R v Jones (Margaret), prosecutors also have conventions to follow in a case of civil disobedience. They should behave with restraint.
68. In “Public Nuisance – A Critical Examination,” Cambridge Law Journal 48(1), March 1989, pp. 55-84, at p. 77, J. R. Spencer observed that, “...almost all the prosecutions for public nuisance in recent years seem to have taken place in one of two situations: first, where the defendant’s behaviour amounted to a statutory offence, typically punishable with a small penalty, and the prosecutor wanted a bigger or extra stick to beat him with, and secondly, where the defendant’s behaviour was not obviously criminal at all and the prosecutor could think of nothing else to charge him with.”
69. Lord Bingham in R v Rimmington [2006] 1 AC 469 at paragraph 37 endorsed the criticisms of J. R. Spencer concerning the ulterior motive of a prosecutor laying a charge of public nuisance.
70. If there is an appropriate statutory offence to cover the unlawful act in a case of civil disobedience, one would rightly ask why laying the charges of public nuisance? Even though it might not be an abuse of process, the prosecutor in this case must have breached the convention of civil disobedience applicable to him as asserted by Lord Hoffmann in R v Jones (Margaret) for failing to behave with restraint.
71. This is a case about the improperness of laying charges of conspiracy and incitement to incite.
72. Similarly, laying charges of conspiracy and incitement to incite is excessive in a case of civil disobedience and a case of the right to freedom of peaceful demonstration.
73. Pieces of evidence relied upon by the prosecution in the conspiracy charge were public statements made by us. Civil disobedience by definition must be a public act. If these public statements can be used to support the prosecution, all civil disobedience at its formation stage will be suppressed. It is meaningless to talk about civil disobedience as something honourable as no civil disobedience would have happened. Even worse, a chilling effect will be generated in society, and many legitimate speeches will be silenced. The restriction on the right to freedom of speech must be disproportionate.
74. Whether there can be an offence of incitement to incite under the Hong Kong common law is still disputable. Even if there is such an offence, laying charges of incitement to incite in a case of civil disobedience and a case of the right to freedom of peaceful demonstration must have extended culpability excessively, unreasonably and unnecessarily.
75. Since the substantial offence is the questionable offence of public nuisance, laying a charge of incitement to incite public nuisance must have extended culpability to even a manifestly unreasonable degree.
76. If the prosecutor has not acted in such an excessive and unreasonable manner and proper charges were laid, we would not have filed a defence.
77. Nonetheless, filing a defence against charges believed to be excessive and unreasonable should not be considered to be failing to comply with the conventions of civil disobedience on the part of the law-breakers as not accepting the penalties imposed by the law.
78. There are some questions that I am not in the position to answer. If the prosecutor fails to comply with the convention of civil disobedience asserted by Lord Hoffmann in R v Jones (Margaret), what will be the consequence? Who is responsible for rectifying the wrongs?
79. At the end, this is a case about Hong Kong’s rule of law and high degree of autonomy.
80. As a scholar of the rule of law and the constitutional law of Hong Kong, I believe that merely having judicial independence is not sufficient to maintain the rule of law in Hong Kong.
81. Without a genuinely democratic system, powers of the government can still be exercised arbitrarily, and the fundamental rights of citizens will not be adequately protected. Also, without democracy, it will be difficult to withstand the more and more severe encroachment on Hong Kong’s high degree of autonomy under the policy of “One Country Two Systems”. After the Umbrella Movement, there is still a long way before we can reach the destination of Hong Kong’s journey to democracy.
82. Mr Justice Tang, PJ at his Farewell Sitting (2018) 21 HKCFAR 530 at paragraphs 17-19 said, “…although judges are prepared to uphold the rule of law as it has always been understood and applied in Hong Kong, the community must be willing to support them. In what form the support should take? I think the support should be all-embracing. If the judiciary is unfairly attacked, you should hold firm and stand up for them. But, support should not only be events driven. That is not enough. It may be too late. You should endeavour to nurture an atmosphere friendly to the rule of law. We have a free press and free elections in Hong Kong. Make your voice heard and your vote count. Believe me, the price of freedom is indeed eternal vigilance. Above all else, do not give up or underestimate your strength. If we as a community insist on the rule of law, it cannot be taken from us easily. Do not make it easy.”
83. We all have our duty to defend the rule of law and the high degree of autonomy in Hong Kong.
84. I am here because I have used many years of my life and up to this very moment to defend the rule of law of Hong Kong, an integral part of Hong Kong’s high degree of autonomy. I will also never give up on striving for Hong Kong’s democracy.
85. I believe that civil disobedience can be justified by the rule of law. Civil disobedience and the rule of law share the same goal in pursuing justice. Civil disobedience is an effective way of securing the attainment of this common goal at least in the long run by creating the climate within which other means can be used to achieve that goal. (See Benny Yiu-ting Tai, “Civil Disobedience and the Rule of Law,” in Ng, M. H. (Ed.), Wong, J. D. (Ed.). (2017). Civil Unrest and Governance in Hong Kong. London: Routledge. At pp. 141-162.)
86. If we were to be guilty, we will be guilty for daring to share hope at this difficult time in Hong Kong.
87. I am not afraid or ashamed of going to prison. If this is the cup I must take, I will drink with no regret.
List of Authorities
1. Secretary for Justice v Wong Chi Fung (2018) 21 HKCFAR 35, paragraphs 70 and 72.
2. John Rawls, A Theory of Justice (Revised Edition, 1999), p. 320.
3. Martin Luther King Jr. “Letter from a Birmingham Jail,” The Journal of Negro History, Vol. 71, No. 1/4 (Winter - Autumn, 1986), pp. 38-44.
4. R v Jones (Margaret) [2007] 1 AC 136, paragraph 89.
5. UN Human Rights Committee, General Comment No 25 adopted on 12 July 1996 (on Article 25 of the International Covenant on Civil and Political Rights), CCPR/C/21/Rev.1/Add.7, paragraph 15 and 17.
6. Leung Kwok-hung v HKSAR (2005) 8 HKCFAR 229, paragraph 22.
7. Yeung May-wan v HKSAR (2005) 8 HKCFAR 137, paragraph 144.
8. J. R. Spencer, “Public Nuisance – A Critical Examination,” Cambridge Law Journal 48(1), March 1989, pp. 55-84, p. 77.
9. R v Rimmington [2006] 1 AC 469, paragraph 37.
10. Farewell Sitting for the Honourable Mr Justice Tang PJ (2018) 21 HKCFAR 530, Tang PJ, paragraphs 17-19.
11. Benny Yiu-ting Tai, “Civil Disobedience and the Rule of Law” in Ng, M. H. (Ed.), Wong, J. D. (Ed.). (2017). Civil Unrest and Governance in Hong Kong. London: Routledge. At pp. 141-162.
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