此致：聯合國人權事務委員會（petitions@ohchr.org，ccpr@ohchr.org）

主題: 請聯合國關注港府利用公安惡法踐踏人權

c.c. cmabenq@cmab.gov.hk；ceo@ceo.gov.hk；editorial@localpress.org.hk；editorial@thestandnews.com；contact@hkhrm.org.hk

To: Human Rights Committee, United Nations（petitions@ohchr.org，ccpr@ohchr.org）

Re.: Pls Look into Hong Kong Government's Abuse of Public Order Ordinance to Harass Dissidents (Please roll down for English version)

敬啟者：

敬請 聯合國人權事務委員會密切關注：近來，香港政府，為消滅異見聲音，不斷利用香港公安條例中惡法，濫捕濫告，而暴動案往往嚴刑峻罰，令大量義人含冤入獄，均涉嫌違反國際人權公約。香港公安條例中過時殖民地惡法，包括非法集會、非法集結，違反國際人權的言論集會自由，應予廢除。公安條例暴動罪則過時，定義模糊，刑罸過重，不合國際人權公約的比例原則，應予廢除或釐清縮窄定義。晚近某些暴動案法官涉嫌違反無罪推定；判刑或有重刑觀念，並忽略抗暴人士的示威行動對社會之貢獻。敬請 協助含冤入獄人士。

示威集會本是人權

香港《公安條例》源於英治時期，六七土共暴動，導致無辜市民死傷枕藉，港府乃制訂《公安條例》，對付土共，如規定公眾集會要向警方申請牌照，否則犯非法集會罪。一九九五年立法局修訂公安條例，規定公眾集會只須事先通知警方。詎料九七後，港共政權恢復惡法，要集會人士事先申請警方不反對通知書，用以打壓爭取民主人權自由人士，惡法中非法集會（unauthorized assembly）、非法集結（unlawful assembly）罪名違反國際人權公約訂明的言論、集會、結社自由。

三人或以上在公共地方聚集，引人驚社會安寧受破壞，即屬非法集結罪，但破壞社會安寧非常含混，甚難定義。

公安條例暴動罪不合國際人權公約的比例原則

非法集結一旦與破壞社會安寧掛鉤，即屬暴動，最高刑罸判監十年！

比例原則

合乎比例（proportionality）概念為人權法不可或決部份，指限制民權的操施法令須與目的成合理比例，目的包括社會安全、公眾利益。合乎比例又指罪罰須相稱。

香港公安條例的暴動罪，名過其實，最高刑罰及近來實際判罰均遠超於案情。比較本地舊日暴動及英美暴動，無論歷時、死傷、損失，一六年新歲旺角所謂「暴動」，都小巫見大巫，根本只屬警民衝突。法學博士桑普指出，一六丙申旺角警民衝突源於「支持小販、反警抗暴」，在道德政治、歷史方面有功。台灣太陽花運動，志在反兩岸黑箱服貿協議，台北地院認為運動是公民抗命，判眾被告無罪。

無罪推定原則

最近幾單旺角暴動案的法官判案，涉嫌違反《公民權利和政治權利國際公約》無罪推定原則。比如楊家倫案，法官特別留意到被告哨牙，相片中犯案者亦露出哨牙，於是認為被告有罪。另一案被告薛達榮自辯謂見有人跑，基於安全遂「人跑佢又跑」，法官沈小民認為如不想惹人誤會是參與者，便應留在原地。然王岸然指出，心理學家或有常識者皆知，十個被狗追的人有十種不同反應，不會有所謂最正常做法。大好青年就因法官的有罪假定而入獄了。

濫捕濫告

《公民權利和政治權利國際公約》第九條：任何人不得無理予以逮捕或拘禁。然雨傘革命後，警方不斷濫捕濫告異見人士。

例一：立法會議員梁頌恆、游蕙禎曾以候任立法會議員身分，欲走入立法會會議廳依法宣誓，主席梁君彥違法下令保安阻他們入會議廳，現梁、游竟被控立法會內非法集結。例二：九名曾參與「佔領行動」人士被控以普通法的「公眾妨擾罪」，最高罰監禁七年。至於《簡易程序治罪條例》公眾地方妨擾罪，主要是輕微擾亂行為，如隨處大小便，最高罰款五百元及監禁三個月。例三：香港眾志、社民連成員被控舊年反釋法遊行中非法集結、煽惑他人擾亂秩序。律政司須證明各人當晚究竟有無及如何使用暴力或威脅使用暴力。

結論

聯合國人權事務委員會香港司法執法部門近年涉嫌踐踏國際人權、普世價值。建議公眾集會、示威遊行，只須照九五年的公安修訂條例，循例通知警方。暴動本為對付六七土共暴徒，亦應取消，況現已有襲警罪、傷人罪及公共地方行為不檢罪；或至少應釐清縮窄暴動及破壞社會安寧的定義。法庭判案須謹守無罪推定及毫無合理疑點方可定罪原則，刑罰當合乎比例，考慮抗暴人士的示威行動對社會之貢獻。警方必須停止濫捕濫告異見人士；香港特區政府不可以司法纏繞，鎮壓爭取民主自由的聲音。至於經已含冤入獄人士，應循上訴及國際支援等途徑，盡早獲釋。

敬祝

鈞安！

曾焯文（博士）謹啟

面書網址：https://www.facebook.com/drchapmanchen/

To: Human Rights Committee, United Nations（petitions@ohchr.org，ccpr@ohchr.org）

Re.: Pls Look into Hong Kong Government's Abuse of Public Order Ordinance to Harass Dissidents

c.c. cmabenq@cmab.gov.hk；ceo@ceo.gov.hk；editorial@localpress.org.hk；editorial@thestandnews.com；contact@hkhrm.org.hk

Dear Sir/Madame,

Please look into the fact that recently, in order to stifle dissident voices, the Hong Kong Communist Government has been arbitrarily arresting and prosecuting people by way of outdated clauses in Hong Kong Public Order Ordinance. And the sentences of defendants in riot cases are in general incredibly harsh, such that a lot of good people are now in prison. These phenomena are suspected of contravention of International human rights.

Evil clauses in the Public Order Ordinance, like unauthorized assembly and unlawful assembly, should be abolished as they contravene the rights to freedom of speech, assembly and demonstration, as enshrined in the International Covenant on Civil and Political Rights. The riot charge is also outdated, its definition vague, and its maximum penalty too heavy, contradicting the notion of proportionality which is part and parcel of human rights law. It should therefore be abolished or at least its definition should be narrowed down and clarified.

The way certain riot cases were tried recently are suspected of contravening the presumption of innocence. The defendants might not have been proven guilty beyond a reasonable doubt. Did the judges concerned not intend to dissuade future protesters with exceedingly heavy penalty? Was the protester-defendants' contribution to the democracy and freedom of Hong Kong society taken into account in sentencing? Efforts had better be made to rescue righteous people wrongly imprisoned.

Protest and Assembly are Human Rights

HK Public Order Ordinance originated from the 1967 Riot, in which local communists killed and injured numerous innocent citizens. The HK Government then passed the Ordinance to deal with local communists. Certain evil clauses in the Ordinance were abolished in 1995, which were, however, revived by the Provisional Legco in 1997. E.g., in 1995, public assemblies only required prior notice of the Police while they now require a "notification of no objection" from the Police. The offenses of unauthorized assembly and unlawful assembly apparently contravene the right of peaceful assembly as enshrined in International Covenant of Civil and Political Rights.

When three persons or more gather in a public place and cause fear of "breach of peace" , they may be found guilty of unlawful assembly, but "breach of peace" is excessively vague, and thus easily abused by the authorities.

Proportionality

The concept of proportionality is indispensable to human right law. It means that legal measures restricting civilians' rights must be proportional to the end of public interests and social security. It also means punishment being proportional to crime.

Once the link between a unlawful assembly and "breach of peace" is confirmed, the participants will be found guilty of "riot", the maximum penalty for which is 10 years in prison! This is excessive and, in recent cases, out of proportion with the alleged acts. Compared with the 1967 Riot, the 2011 London Riot, etc. the 2016 Lunar New Year Mongkok "Riot" is just a minor matter, or a police-civilian conflict.

The 2016 Mongkok police-civilian conflict originated from righteous civilians supporting hawkers in defiance of brutal police officers, and the protesters are meritorious ethically and politically. Likewise, The Sunflower Student Movement is associated with protest against the secretive Cross-Strait Service Trade Agreement. In contrast with HK courts, the Taiwan law court finally acquitted the protesters on the ground that the movement was civil obedience.

Presumption of Innocence

The way several Mongkok riot cases were tried recently are suspected of contravening the principle of presumption of innocence as enshrined in the Universal Declaration of Innocence. E.g., in the Yeung Ka-lun case, the judge Anthony Kwok on 3 April, 2017, found the defendant to be the culprit on the ground that both the defendant and a photo of the culprit had protruding teeth. In another riot case, the Judge Sham on 16 March, 2017, rejected a defendant Sit’s defence that he had only been mere observers at the riot. He said that Sit should not have run away along with the crowd – which could have caused a stampede – if he did not want police to confuse him with a rioter. Yet, by common sense, everybody knows ten persons being chased by a dog have ten different reactions.

Arbitrary Arrests and Prosecutions

"No one shall be subjected to arbitrary arrest, detention" (International Covenant on Civil & Political Rights, Art. 9). Yet, after the Umbrella Revolution, the HK police has kept arbitrarily arresting and charging dissidents.

Example 1: Democratically elected law-makers Baggio Leung and Yau Wai-ching have been charged with unlawful assembly in the Legco, for having tried to force their way into a Legco conference against a number of security guards sent by the Chair of Legco to stop them. At that time, they were not yet disqualified for challenging China during a swearing-in session.

Example 2: Occupy leaders each face public nuisance charges under the Common Law over 2014 Hong Kong protests. The maximum penalty is 7 years in prison, while under the Summary Offences Ordinance, the maximum penalty for nuisances committed in public place (which refer to minor offences like urinating in a public place) is only a fine of HKD500 or three-month imprisonment.

Example 3: Nine Hong Kong activists , including two from Demosisto as well as members of League of Social Democrats and Student Fight for Democracy, were charged with incitement to behave in a disorderly manner in a public place, taking part in an unlawful assembly, etc. in a protest against Basic Law interpretation by Beijing.

Conclusion

The Human Rights Committee had better look into how Hong Kong police and judiciary have been trampling upon human rights and universal values in HK. Public assemblies, protests and demonstrations should only require perfunctorily notifying the police. Either the riot offence should be abolished or its definition narrowed down. The HK courts should strictly comply with the principles of presumption of innocence and reasonable doubt, and sentences must be proportional to corresponding crimes. The HK police must stop arbitrarily arresting dissidents and the HK Government must not try to suppress voices of protesters by judicial harassment. As for innocent people already imprisoned, they should be released as soon as possible by such means as appeal or through international support.

With best regards,
Yours truly,

Chapman Chen, Ph.D.（signed）

Facebook page: https://www.facebook.com/drchapmanchen/