【人民日報:這10個追問,美國必須回答】
Ten questions the US needs to offer clear answers to the world
1.禽流感病毒改造去年突然重啟,之後無聲無息,為什麽?
1.Regarding the restarted avian influenza virus modification experiment last year, why does the US release no more updates?
去年2月,據美國《科學》雜誌網站披露,美國政府機構已“悄悄”批準曾引發巨大爭議的禽流感病毒改造實驗,這類被認為“危險”的實驗在被禁多年後將很快重啟。相關實驗可將H5N1禽流感病毒改造得易於在哺乳動物間傳播,被認為可能帶來人際傳播風險。美國為何在相關實驗被暫停4年多後重啟這類危險實驗?又為何不見披露進展?
The Science reported in February 2019 that US authorities had quietly approved the avian influenza virus modification experiment. The research, aiming to transform the H5N1 virus to be more capable of infecting mammals, was controversial and considered extremely dangerous. Some experts believe that the modification may increase the risk of human-to-human transmission of the virus.
The question is why the US government decided to unfreeze the experiment 4 years after it was halted, and why there are no more updates regarding the experiment.
2.美軍生物實驗室一度關閉停產,真相是什麽?
2.The United States Army Medical Research Institute of Infectious Diseases (USAMRIID) was previously closed.What is the truth behind ?
日前,據“全球生物防禦”(globalbiodefence)網站報道,位於馬裏蘭州德特裏克堡的美國陸軍傳染病醫學研究所(USAMRIID)已經全面恢復運行。去年7月,美國疾病控制與預防中心(CDC)正式向位於馬裏蘭州德特裏克堡的美國陸軍傳染病醫學研究所(USAMRIID)發出“停產令”,要求其停止進行“特定生物制劑與毒素”研究。今年3月,白宮請願網站出現一道特殊的請願帖,要求美國政府公布去年7月“關閉”德特裏克堡生物實驗室的真正原因。USAMRIID神秘“關閉”和迅速重啟引人關註。針對白宮請願網站請願帖上的要求,美國作何回應?
The Global Biodefence reported in April that the USAMRIID, US Army's primary institution and facility for biological research headquartered in Fort Detrick, Maryland, has resumed full operation. The institution was once ordered to halt the study of biological select agents and toxins (BSATs) last July. In March, there was a petition on the White House website demanding the clarification of the shutdown of USAMRIID. Given that these issues have become a primary public concern, what is the US government's response?
3.去年傳染病演習情景今年真實上演,真的只是巧合?
3.The US Department of Health and Human Services ran a scenario last year that was similar to the COVID-19 outbreak. Is this just a coincidence?
今年3月《紐約時報》披露的一份美國官方秘密文件顯示,2019年1月至8月16日舉行,美國衛生與公共服務部(HHS)發起組織了一場代號為“赤色傳染”(Crimson Contagion)的推演,演習以中國最早出現病毒為模擬情景。2019年10月,美國多個機構又組織了一次代號為“Event 201”的全球流行病演習。演練中的模型假設一種名為CAPS的冠狀病毒,比SARS致命,又如感冒輕易傳播,卻未開發出疫苗,能迅速傳播促成全球大流行。美國去年進行的傳染病演習的設定與現實的吻合度如此之高是否只是巧合?既然有演練在前,新冠疫情發生後美國為何沒有給予足夠的關註和重視、宣稱“尚在掌握之中”?
In March, the New York Times quoted a draft report obtained from the US government saying that from January to August 2019, the US Department of Health and Human Services ran a scenario called "Crimson Contagion" that simulated the fictional outbreak involving a group of tourists visiting China. They then became infected and flew to various countries, including the US.
Last October, a high-level pandemic exercise named Event 201 was hosted by a couple of US organizations. The drill simulated a scenario that a fictional virus called CAPS, which causes more severe symptoms than SARS and transmits via the respiratory route like the common flu, had caused a pandemic. Like COVID-19, there is no vaccine for CAPS.
Given the fact that the simulated virus is so much like COVID-19, is this just a coincidence? Another question is, why did it not take enough preventive measures at the early stages of the coronavirus outbreak since the US has predicted a similar pandemic?
4.提前預測疫情大流行又無視警告情報,為什麽?
4.US intelligence officials warned of coronavirus crisis as early as last November. Why the warning was ignored?
今年4月,據美國廣播公司(ABC)報道,有內部消息稱,早在2019年11月下旬,美國情報官員就曾多次向國防情報局、五角大樓和白宮警告,一場傳染病正在席卷中國武漢地區。美國國家醫學情報中心(NCMI)去年11月出具了一份詳細闡述病毒大流行情況的報告,也就是後來被確認的新型冠狀病毒肺炎“COVID-19”。有分析人士認為武漢疫情爆發可能會演變成一場災難性事件。據美國《華盛頓郵報》網站報道稱在年初的2個多月時間裏,特朗普獲得了美國情報機構發出的關於新冠病毒的密集警告。美國政府為何一直拖到3月13日才宣布進入“國家緊急狀態”?
In April, according to the American Broadcasting Corporation (ABC), it was said that, as early as late November 2019, US intelligence officials had warned the Defense Intelligence Agency, the Pentagon, and the White House that an infectious disease was sweeping through Wuhan, China.
Last November, the US National Center for Medical Intelligence (NCMI) issued a report detailing the coronavirus pandemic, which was later identified as "COVID-19". Some analysts believed that the outbreak in Wuhan might have evolved into a catastrophic event. According to the Washington Post, in more than two months from January to February, Trump had received intensive warnings from the US intelligence agencies about the coronavirus. Why did the US government not declare a "National Emergency" until March 13?
5.有多少流感患者感染的其實是新冠肺炎,能不能說清楚?
5.Among the reported influenza deaths in the US, can the US clarify how many cases are actually infected with COVID-19?
今年2月21日,日本朝日電視臺報道的“美國1.4萬名因流感致死的人中部分可能死於新冠肺炎”掀起熱議。美疾控中心2月底發布的報告顯示,今冬流感季美國估計已有至少3200萬流感。3月11日在美國眾議院,美國疾控中心主任羅伯特·雷德菲爾德(Robert Redfield)親口承認,在美國,確實有一些“流感”死者實際感染的可能是新冠肺炎。美國流感感染者中,到底有多少新冠病例?美國有沒有借流感來掩蓋新冠肺炎的情況?美國何時才能公開美國流感病毒樣本及基因序列信息,或者允許世衛組織或聯合國派遣專家采樣分析?
Japanese Asahi Television reported on February 21 that some of the 14,000 people reportedly killed by influenza in the US might have died from coronavirus, which became a hot topic soon after.
The US Centers for Disease Control and Prevention (CDC) released a report at the end of February, showing that there have been at least 32 million flu illnesses in the US that winter.
On March 11, at the House of Representatives, Robert Redfield, the director of the US CDC, admitted that some in the US who were previously thought to have been killed from the flu may have been infected with coronavirus.
Among the reported influenza deaths in the US, how many cases were infected with COVID-19? Did the US government cover up the spread of coronavirus with the flu? When will the US government make public the samples of the US influenza virus and its genetic sequence, or allow experts from the WHO or the United Nations to sample and analyze?
6.新冠病毒到底什麽時候在美國出現?社區傳播是否早已開始?
6.When did the novel coronavirus first appear in the US? Did community transmission of the coronavirus start sooner than it was reported?
今年4月下旬,美國加利福尼亞州聖克拉拉縣政府公共衛生部門公布的最新檢測報告顯示,早在2月6日當地就有人死於新冠肺炎,這比美國此前公布的首例新冠死亡病例出現時間提前了20多天。據《洛杉磯時報》報道,聖克拉拉縣的衛生官員薩拉·科迪表示,這些新發現的死亡病例說明,當時“已經有相當程度的社區傳播”。聖克拉拉縣行政長官傑弗裏·史密斯表示,這表明新冠病毒早在1月、甚至更早就已經開始在加州傳播。加州州長紐瑟姆已宣布將對去年12月以來疑似新冠死亡病例進行屍檢。新冠病毒到底什麽時候在美國出現?美國新冠疫情在社區的傳播是否早已開始?
A report released in late April by local health authorities suggests that a 57-year-old woman from Santa Clara County of California died from COVID-19 on February 6, some 20 days earlier than the date the US announced its first death caused by the virus.
The Los Angeles Times quoted Santa Clara County health officer Sara Cody in a piece saying, "we presume that each of them represents community transmission and that there was some significant level of virus circulating in our community in early February."
County Executive Officer Jeffrey V. Smith said this is evidence that the coronavirus was circulating in California as early as January or even earlier.
California Gov. Gavin Newsom has ordered all counties in the state to review autopsies of suspected coronavirus deaths dating back to December.
When did the novel coronavirus first appear in the US? Did community transmission of the coronavirus start sooner than it was reported?
7.全球首個啟動新冠疫苗人體試驗,這麽快是怎麽拿到毒株的?
7.How did the US get the virus strains so soon to start the first human testing of a vaccine against COVID-19?
據《華爾街日報》報道,美國國立衛生研究院(National Institutes of Health)3月16日稱,生物科技公司Moderna Inc. (MRNA)針對新型冠狀病毒的試驗性疫苗已開始首次人體測試。對於全球首次針對新型冠狀病毒的疫苗人體試驗在美國啟動一事,專家表示,美國這一針實在太快了,除非很早就開始進行試驗,更早的拿到了病毒株。美國疫苗人體試驗為何進行得如此之快?美國是什麽時候通過什麽方式獲得的毒株?
The Wall Street Journal on March 16 reported that the first human testing of Moderna Inc.'s experimental vaccine against the COVID-19 had already begun. Experts immediately raised questions about the speed of the vaccine development, saying that it would not be possible unless the US had obtained the virus strains from very early on. So how did the US start the first human testing of the vaccine so soon? When and how did they get the virus strains?
8.政府說疫情不嚴重,官員卻在狂拋股票,為什麽?
8.Why did the US government keep downplaying the pandemic while its officials privately dumped stocks?
據《華盛頓郵報》報道,大約在新冠肺炎疫情引發美股暴跌之前一周,美國國會參議院情報委員會主席理查德·伯爾密集出售了自己和夫人持有的33只股票,估價在62.8萬美元到172萬美元之間。為什麽2月中旬美國政府對本國新冠肺炎疫情輕描淡寫,而參議院情報委員會的多位官員卻在那時拋售價值上百萬的股票?難道政客們竟然一邊利用內幕交易售賣股票,一邊對公眾隱瞞疫情?
According to the Washington Post, US Senate Intelligence Committee Chairman Richard Burr and his wife sold up to 1.7 million in 33 different stocks just one week before the market plunged. Why did these officials at the Committee act so quickly while the government was continually understating the pandemic?
Why is the vital information kept confidential to the public while the government officials were taking advantage to practice insider-trading?
9.不許美國專家學者隨意公開談論新冠病毒,是想幹什麽?
9.Why are US experts not allowed to discuss COVID-19 in public?
據美國《紐約時報》報道,在由副總統邁克·彭斯領導美國防疫工作之後,白宮於當地時間2月27日開始,加強了對新冠病毒信息“發聲”的控制。包括美國國立衛生研究院(NIH)過敏和傳染病研究所(NIAID)主任、美國疾控中心(CDC)頂級傳染病專家安東尼·福西(Anthony S. Fauci)在內的眾多科學家和政府衛生官員被要求:只有與美國副總統辦公室協調商議後,才能發聲明或公開露面談論新冠病毒的相關話題。為什麽號稱言論自由的美國不允許專家學者自由公開討論新冠病毒?是想隱瞞什麽還是在害怕什麽?
The New York Times reported that the White House began tightening controls for all coronavirus messaging from health officials on February 27 after Vice President Mike Pence led the nation's epidemic prevention and control efforts.
Several scientists and government health officials, including the nation's leading infectious disease expert Anthony S. Fauci, have been asked to make statements or make public appearances about the COVID-19 only after consultation with the US vice president's office.
Why does the United States, which claims free speech, not allow experts and scholars to discuss the novel coronavirus in public? Does the US want to hide something or fear of something?
10.海外生物實驗室到底在做什麽研究,為什麽從不向外界透露?
10.What research is being done in the US overseas biological laboratories? Why does the US keep tight-lipped about it?
據俄羅斯衛星通訊社日前報道,俄羅斯國家杜馬國際事務委員會副主席波克隆斯卡婭提議核查世界各地美國生物實驗室的合法性。前不久,俄羅斯外交部發言人就美國在前蘇聯國家建立生物實驗室表達關切。俄羅斯內政、外交和國防領域專家格裏高利·特羅菲姆丘克表示,美國這些生物實驗室所從事的工作從不向外界透露,並且這些實驗室引發了大量的問題,在實驗室所在地就曾爆發過大範圍的麻疹等危險的傳染類疾病。美國建立的這些生物實驗室到底在進行什麽研究?美國為何對這些生物實驗室的功能、用途、安全系數等三緘其口?
Natalia Poklonskaya, deputy chairman of the State Duma Committee on Foreign Affairs, has proposed verifying the legitimacy of US biological laboratories around the world, according to Sputnik news agency.
Not long ago, a spokesman for the Russian Foreign Ministry expressed concern about the establishment of a biological laboratory in countries from the former Soviet Union.
Grigory Trofimchuk, a Russian expert in the field of internal affairs, foreign affairs, and national defense, said the work of these biological laboratories was never disclosed to the outside world, and that they had caused several problems, with widespread outbreaks of dangerous infectious diseases such as measles at the laboratory site.
What research is being done in these biological laboratories? Why does the US keep tight-lipped about the function, use, the safety of these biological laboratories?
(來源:人民日報客戶端)
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【 黎安友專文 l 中國如何看待香港危機 】
美國哥倫比亞大學的資深中國通黎安友(Andrew Nathan)教授最近在《外交事務》(Foreign Affairs)雜誌的專文,值得一看。
黎安友是台灣許多中國研究學者的前輩級老師,小英總統去哥大演講時,正是他積極促成。小英在美國的僑宴,黎安友也是座上賓。
這篇文章的標題是:「中國如何看待香港危機:北京自我克制背後的真正原因」。
文章很長,而且用英文寫,需要花點時間閱讀。大家有空可以看看。
Andrew這篇文章的立論基礎,是來自北京核心圈的匿名說法。以他在學術界的地位,我相信他對消息來源已經做了足夠的事實查核或確認。
這篇文章,是在回答一個疑問:中共為何在香港事件如此自制?有人說是怕西方譴責,有人說是怕損害香港的金融地位。
都不是。這篇文章認為,上述兩者都不是中共的真實顧慮。
無論你多痛恨中共,你都必須真實面對你的敵人。
中共是搞經濟階級鬥爭起家的,當年用階級鬥爭打敗國民黨。而現在,中共正用這樣的思維處理香港議題。
文章有一句話:“China’s response has been rooted not in anxiety but in confidence.” 這句話道盡階級鬥爭的精髓。
中共一點都不焦慮。相反地,中共很有自信,香港的菁英階級及既得利益的收編群體,到最後會支持中共。
這個分化的心理基礎,來自經濟上的利益。
文中還提到,鄧小平當年給香港五十年的一國兩制,就是為了「給香港足夠的時間適應中共的政治系統」。
1997年,香港的GDP佔中國的18%。2018年,這個比例降到2.8%。
今日的香港經濟,在中共的評估,是香港需要中國,而不是中國需要香港。
中共正在在意的,是香港的高房價問題。香港的房價,在過去十年內三倍翻漲。
文章是這樣描述:
“Housing prices have tripled over the past decade; today, the median price of a house is more than 20 times the median gross annual household income. The median rent has increased by nearly 25 percent in the past six years. As many as 250,000 people are waiting for public housing. At the same time, income growth for many Hong Kong residents has fallen below the overall increase in cost of living.”
無論你同不同意這些說法,都請你試圖客觀地看看這篇文章。
有趣的是,黎安友在文章中部分論點引述了他的消息來源(但他並沒有加上個人評論),部分是他自己的觀察。
#護台胖犬劉仕傑
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新書:《 我在外交部工作 》
**
黎安友原文:
https://www.foreignaffairs.com/articles/china/2019-09-30/how-china-sees-hong-kong-crisis?fbclid=IwAR2PwHns5gWrw0fT0sa5LuO8zgv4PhLmkYfegtBgoOMCD3WJFI3w5NTe0S4
How China Sees the Hong Kong Crisis
The Real Reasons Behind Beijing’s Restraint
By Andrew J. Nathan September 30, 2019
Massive and sometimes violent protests have rocked Hong Kong for over 100 days. Demonstrators have put forward five demands, of which the most radical is a call for free, direct elections of Hong Kong’s chief executive and all members of the territory’s legislature: in other words, a fully democratic system of local rule, one not controlled by Beijing. As this brazen challenge to Chinese sovereignty has played out, Beijing has made a show of amassing paramilitary forces just across the border in Shenzhen. So far, however, China has not deployed force to quell the unrest and top Chinese leaders have refrained from making public threats to do so.
Western observers who remember the violent crackdown on pro-democracy demonstrators in Tiananmen Square 30 years ago have been puzzled by Beijing’s forbearance. Some have attributed Beijing’s restraint to a fear of Western condemnation if China uses force. Others have pointed to Beijing’s concern that a crackdown would damage Hong Kong’s role as a financial center for China.
But according to two Chinese scholars who have connections to regime insiders and who requested anonymity to discuss the thinking of policymakers in Beijing, China’s response has been rooted not in anxiety but in confidence. Beijing is convinced that Hong Kong’s elites and a substantial part of the public do not support the demonstrators and that what truly ails the territory are economic problems rather than political ones—in particular, a combination of stagnant incomes and rising rents. Beijing also believes that, despite the appearance of disorder, its grip on Hong Kong society remains firm. The Chinese Communist Party has long cultivated the territory’s business elites (the so-called tycoons) by offering them favorable economic access to the mainland. The party also maintains a long-standing loyal cadre of underground members in the territory. And China has forged ties with the Hong Kong labor movement and some sections of its criminal underground. Finally, Beijing believes that many ordinary citizens are fearful of change and tired of the disruption caused by the demonstrations.
Beijing therefore thinks that its local allies will stand firm and that the demonstrations will gradually lose public support and eventually die out. As the demonstrations shrink, some frustrated activists will engage in further violence, and that in turn will accelerate the movement’s decline. Meanwhile, Beijing is turning its attention to economic development projects that it believes will address some of the underlying grievances that led many people to take to the streets in the first place.
This view of the situation is held by those at the very top of the regime in Beijing, as evidenced by recent remarks made by Chinese President Xi Jinping, some of which have not been previously reported. In a speech Xi delivered in early September to a new class of rising political stars at the Central Party School in Beijing, he rejected the suggestion of some officials that China should declare a state of emergency in Hong Kong and send in the People’s Liberation Army. “That would be going down a political road of no return,” Xi said. “The central government will exercise the most patience and restraint and allow the [regional government] and the local police force to resolve the crisis.” In separate remarks that Xi made around the same time, he spelled out what he sees as the proper way to proceed: “Economic development is the only golden key to resolving all sorts of problems facing Hong Kong today.”
ONE COUNTRY, TWO SYSTEMS, MANY QUESTIONS
Chinese decision-makers are hardly surprised that Hong Kong is chafing under their rule. Beijing believes it has treated Hong Kong with a light hand and has supported the territory’s economy in many ways, especially by granting it special access to the mainland’s stocks and currency markets, exempting it from the taxes and fees that other Chinese provinces and municipalities pay the central government, and guaranteeing a reliable supply of water, electricity, gas, and food. Even so, Beijing considers disaffection among Hong Kong’s residents a natural outgrowth of the territory’s colonial British past and also a result of the continuing influence of Western values. Indeed, during the 1984 negotiations between China and the United Kingdom over Hong Kong’s future, the Chinese leader Deng Xiaoping suggested following the approach of “one country, two systems” for 50 years precisely to give people in Hong Kong plenty of time to get used to the Chinese political system.
But “one country, two systems” was never intended to result in Hong Kong spinning out of China’s control. Under the Basic Law that China crafted as Hong Kong’s “mini-constitution,” Beijing retained the right to prevent any challenge to what it considered its core security interests. The law empowered Beijing to determine if and when Hong Kongers could directly elect the territory’s leadership, allowed Beijing to veto laws passed by the Hong Kong Legislative Council, and granted China the right to make final interpretations of the Basic Law. And there would be no question about who had a monopoly of force. During the negotiations with the United Kingdom, Deng publicly rebuked a top Chinese defense official—General Geng Biao, who at the time was a patron of a rising young official named Xi Jinping—for suggesting that there might not be any need to put troops in Hong Kong. Deng insisted that a Chinese garrison was necessary to symbolize Chinese sovereignty.
Statements made by U.S. politicians in support of the recent demonstrations only confirm Beijing’s belief that Washington seeks to inflame radical sentiments in Hong Kong.
At first, Hong Kongers seemed to accept their new role as citizens of a rising China. In 1997, in a tracking poll of Hong Kong residents regularly conducted by researchers at the University of Hong Kong, 47 percent of respondents identified themselves as “proud” citizens of China. But things went downhill from there. In 2012, the Hong Kong government tried to introduce “patriotic education” in elementary and middle schools, but the proposed curriculum ran into a storm of local opposition and had to be withdrawn. In 2014, the 79-day Umbrella Movement brought hundreds of thousands of citizens into the streets to protest Beijing’s refusal to allow direct elections for the chief executive. And as authoritarianism has intensified under Xi’s rule, events such as the 2015 kidnapping of five Hong Kong–based publishers to stand trial in the mainland further soured Hong Kong opinion. By this past June, only 27 percent of respondents to the tracking poll described themselves as “proud” to be citizens of China. This year’s demonstrations started as a protest against a proposed law that would have allowed Hong Kongers suspected of criminal wrongdoing to be extradited to the mainland but then developed into a broad-based expression of discontent over the lack of democratic accountability, police brutality, and, most fundamentally, what was perceived as a mainland assault on Hong Kong’s unique identity.
Still, Chinese leaders do not blame themselves for these shifts in public opinion. Rather, they believe that Western powers, especially the United States, have sought to drive a wedge between Hong Kong and the mainland. Statements made by U.S. politicians in support of the recent demonstrations only confirm Beijing’s belief that Washington seeks to inflame radical sentiments in Hong Kong. As Xi explained in his speech in September:
As extreme elements in Hong Kong turn more and more violent, Western forces, especially the United States, have been increasingly open in their involvement. Some extreme anti-China forces in the United States are trying to turn Hong Kong into the battleground for U.S.-Chinese rivalry…. They want to turn Hong Kong's high degree of autonomy into de facto independence, with the ultimate objective to contain China's rise and prevent the revival of the great Chinese nation.
Chinese leaders do not fear that a crackdown on Hong Kong would inspire Western antagonism. Rather, they take such antagonism as a preexisting reality—one that goes a long way toward explaining why the disorder in Hong Kong broke out in the first place. In Beijing’s eyes, Western hostility is rooted in the mere fact of China’s rise, and thus there is no use in tailoring China’s Hong Kong strategy to influence how Western powers would respond.
IT’S NOT ABOUT THE BENJAMINS
The view that Xi has not deployed troops because of Hong Kong’s economic importance to the mainland is also misguided, and relies on an outdated view of the balance of economic power. In 1997, Hong Kong’s GDP was equivalent to 18 percent of the mainland’s. Most of China’s foreign trade was conducted through Hong Kong, providing China with badly needed hard currencies. Chinese companies raised most of their capital on the Hong Kong stock exchange. Today, things are vastly different. In 2018, Hong Kong’s GDP was equal to only 2.7 percent of the mainland’s. Shenzhen alone has overtaken Hong Kong in terms of GDP. Less than 12 percent of China’s exports now flow through Hong Kong. The combined market value of China’s domestic stock exchanges in Shanghai and Shenzhen far surpasses that of the Hong Kong Stock Exchange, and Chinese companies can also list in Frankfurt, London, New York, and elsewhere.
Although Hong Kong remains the largest offshore clearing center for renminbi, that role could easily be filled by London or Singapore, if Chinese leaders so desired.
Investment flowing into and out of China still tends to pass through financial holding vehicles set up in Hong Kong, in order to benefit from the region’s legal protections. But China’s new foreign investment law (which will take effect on January 1, 2020) and other recent policy changes mean that such investment will soon be able to bypass Hong Kong. And although Hong Kong remains the largest offshore clearing center for renminbi, that role could easily be filled by London or Singapore, if Chinese leaders so desired.
Wrecking Hong Kong’s economy by using military force to impose emergency rule would not be a good thing for China. But the negative effect on the mainland’s prosperity would not be strong enough to prevent Beijing from doing whatever it believes is necessary to maintain control over the territory.
CAN’T BUY ME LOVE?
As it waits out the current crisis, Beijing has already started tackling the economic problems that it believes are the source of much of the anger among Hong Kongers. Housing prices have tripled over the past decade; today, the median price of a house is more than 20 times the median gross annual household income. The median rent has increased by nearly 25 percent in the past six years. As many as 250,000 people are waiting for public housing. At the same time, income growth for many Hong Kong residents has fallen below the overall increase in cost of living.
reported speech exercise 在 黃浩銘 Raphael Wong Facebook 八卦
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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Jun 2, 2021 - This is a 20 sentences reported speech exercise to do with your intermediate or upper intermediate students. The exercise is easy to use and ... ... <看更多>