政治智慧

[星島日報]熊運信︰身處暴動不離開也犯法

(星島日報報道)修例風波持續,社會嚴重撕裂,上周末全港多處出現因政見不同而起的打鬥情況,律師會前會長熊運信對本報表示,出手打架的人士或觸犯公眾地方打鬥罪,若旁觀者出言鼓勵打鬥行為,或涉嫌協助及教唆他人犯罪,兩者量刑標準一致,不會因一方只「加把口」未出手而判處較輕刑罰。他又表示,若市民身處暴動場面,看見有人扔雜物、縱火等仍然不離去,即使沒有作出暴動行為,仍會被視作參與暴動,「如果你係一個無辜嘅旁觀者,你係咪會走,仲留喺嗰度做咩?」

  不同政見群眾近日不時在街頭、商場內起衝突,先則口角、繼而動手,現場多人圍觀。 熊運信接受本報專訪時表示,參與打鬥的群眾或觸犯公眾地方打鬥罪,旁觀者單單在場並無違法,但若作出鼓勵性行為,如在旁拍手、喊「做得好」等,或涉嫌干犯協助及教唆他人犯罪,一旦法庭證實有打鬥發生,兩者量刑沒有分別,「唔會因為一個人淨係出口,無出手而判輕啲。」至於如何分辨是被襲或參與打鬥,一般而言被襲者的動作傾向想離開和保護自己。

  各區「連儂牆」亦早已被警方形容為高危地方,近來屢有人去「清場」,熊運信解釋,張貼宣傳單張到「連儂牆」上偏向涉及民事法律責任,如果「連儂牆」設置於私人地方,管理處即有權清理;若有人撕走或破壞公眾地方「連儂牆」,涉嫌觸犯刑事毀壞,用火燒的話即屬縱火。

  對於在不同場合如示威遊行現場,曾出現有市民圖制服滋事者的場面,熊運信表示,市民進行「公民拘捕」有風險,因公民拘捕只適用於可判囚十二個月以上的「可逮捕罪行」,若市民判斷錯,或觸犯非法禁錮。同時,示威場面經常出現有途人拍攝示威者而被要求刪照的情況,他指出,香港沒有肖像權,拍攝他人不構成犯罪,反而不讓拍攝者離開有機會觸犯非法禁錮罪,未經批准下刪除他人手機中的相片或構成不誠實使用電腦罪。

  熊運信提出,據《公安條例》規定有多於三人集結,作出擾亂秩序的行為或作出帶有威嚇性、侮辱性或挑撥性的行為,意圖導致任何人害怕,集結人士會破壞社會安寧,即屬非法集結,故大批市民聚集於商場唱反修例歌曲及喊口號等,「看不到單是唱歌如何會被定罪」;市民只罵警察一句不會犯法,因未有辱警罪,「隔住條街鬧更加唔會有事」,不過當有一群人聚集及作出擾亂秩序的行為,控方不用證明集結人士互相認識,也可控告非法集結。

  熊運信又表明,若市民身處暴動場面,看見有人扔雜物、縱火等仍然不離去,即使沒有作出暴動行為,仍會被視作參與暴動,強調無論是非法集結或暴動,都不一定屬主動參與者才會被入罪。他強調,扔汽油彈的行為本身已構成縱火罪,而參與暴動人士,不論有否被控暴動罪,如有非法拆掉或摧毀建築物等行為,一經循公訴程序定罪,最高可處監禁十四年,暴動者非法破壞建築物等則最高判監十年。

  對於有示威者無視禁制令,嘗試阻礙港鐵及機場運作,他重申,即使示威者沒有在港鐵站及機場干犯刑事罪行,單是在內搗亂、違反禁制令,已可被告刑事藐視法庭。他提到,如果在港鐵站及機場作出其他刑事違法行為,如破壞港鐵入閘機等,同步違反禁制令更會成為加刑因素。

  警察經常被指「濫捕」,熊運信說,警察只需在主觀上認為事主有嫌疑,以及有客觀條件支持便可作拘捕,舉例除非警察在主觀上認為有人長得很像偷渡者,但客觀上他正出現在酒會上,在這情況下作出拘捕便有爭議。

The ongoing anti-extradition bill protests have caused a deep rift in the society. Last weekend, numerous fights broke out due to people’s different political views. Stephen Hung, former President of the Law Society, pointed out that those who were engaged in the fights might be liable of the offence of fighting in public places. The onlookers who encouraged the fights by words or actions, might be liable of the offence of assisting and abetting others. Sentencing standards would be the same for both. A lighter sentence would not be given to those who only gave additional remarks or comments. He added that if citizens were in a riot scene and saw someone throwing debris and arson and did not leave, even if they did not engage in any behaviour which constituted riot, they would still be regarded as involved in the riots. “If you were an innocent bystander, you would leave, won’t you? What’s the point of staying there?” Hung asked.
 
People with different political views have continuously stirred up conflicts on the streets and shopping malls which started normally with arguments which then turned into fights with onlookers watching.  In an interview with us, Hung said that those involved in the fights might be liable of the offence of fighting in public places. It is not illegal for onlookers to be present at the scene, However, if they encouraged others to do so such as clapping or shouting, “good job”, might be liable of assisting and abetting others to commit crimes. Once the court confirmed the fights did take place, there would be no difference in sentencing. “Just because a person does the talking only doesn’t mean that he will be given a lighter sentence.” In terms of how to distinguish between an attacker and a person being attacked.  Generally speaking, the person being attacked would normally wish to leave and protect himself.
 
The “Lennon Walls” in various districts have long been described by the police as high-risk places. Recently, there have been numerous “clearance operations”. Hung explained that posting leaflets onto “Lennon Wall” involved civil liabilities. If the “Lennon Wall” were set up in a private place, the management company of the property has the right to clean up. Those who engaged in “Tearing off” or destroying “Lennon Wall” in public places might be liable for criminal damage.  Burning them would constitute arsons.
 
On different occasions such as demonstrations, there were situations where citizens restrained troublemakers.  Hung commented that there is a risk for citizens to perform “citizen’s arrest” as such form of arrest is only applicable to “arrestable offences” with sentences exceeding 12 months. If a citizen misjudged the situation, he might be liable for false imprisonment. Further, there were frequent scenes in protests where passers-by photographed protestors and were asked to delete photos by the protestors. Hung pointed out that there is no portrait right in Hong Kong. Photographing others does not constitute a crime.  In fact, if a person refused to allow the photographer to leave, he might be liable for false imprisonment. Deleting photos from others’ phones without approval would be liable of the offence of access to computer with criminal or dishonest intent.
 
Public Order Ordinance stipulates that when 3 or more persons assembled together conduct themselves in a disorderly, intimidating, insulting or provocative manner intended or likely to cause any person reasonably to fear that they will commit a breach of the peace, constitutes unlawful assembly.  Therefore where a large number of people gathered in the mall to sing anti-extradition songs and shout slogans. “I can’t see how just simply singing can be convicted.” Citizens who only slander the police do not break the law, because insulting police has yet to be made an offence, let alone hurling insults across the street. However, when a group of people gather and disrupt the public order, they can face prosecution for unlawful assembly without the prosecution having to prove that the assembled people know each other.
 
Stephen Hung also indicated that if the public is present in a riot scene and does not leave despite seeing someone throwing debris, committing arsons, even if they did not commit any riot acts, they would still be regarded as participating in the riot. Hung emphasised that it would not require pro-active participation whether in illegal assemblies or riots to be charged. He stressed that the act of throwing a petrol bomb already constitutes the offence of arson. Those involved in the riots, disregard whether they were charged of rioting or not, if the acts involved illegally demolishing or destroy of buildings, etc., shall be liable on conviction on indictment to imprisonment for a maximum of 14 years. Rioters who unlawfully damage buildings, etc. shall be liable on conviction on indictment to imprisonment for a maximum of 10 years.
 
For those protestors who ignored the injunctions and tried to obstruct the operation of the MTR and the airport, he reiterated that even if the protestors did not commit criminal offences at the MTR station and the airport, they could be charged of criminal contempt of court for causing chaos within the premises and violating the injunctions. He mentioned that if other criminal offences were committed at MTR stations and the airport, such as the destruction of MTR gates, the simultaneous violation of the injunction would become a factor for increase in sentence.
 
Police are often accused of “indiscriminate arrest”. Stephen Hung said that the police would only require to show subjectively that they believed that the person were suspicious, with objective conditions to support the arrest. For example, unless the police subjectively thought that someone looked like a stowaway, but objectively that person was in a cocktail reception, it would be controversial to make arrests under such circumstance.

原文轉自星島日報 ,原文連結: http://std.stheadline.com/daily/article/detail/2065507/%E6%97%A5%E5%A0%B1-%E6%B8%AF%E8%81%9E-%E7%86%8A%E9%81%8B%E4%BF%A1-%E8%BA%AB%E8%99%95%E6%9A%B4%E5%8B%95%E4%B8%8D%E9%9B%A2%E9%96%8B%E4%B9%9F%E7%8A%AF%E6%B3%95

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Author: 法律小薯

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