(廣東話版係最底。)


HCCC 155/2022


Chow Hang Tung’s Closing Submissions (Oral)


I. Introduction


1. As a criminal case, this is indeed a weird one. The defence has made no dispute over what happened and has even proactively put forward a great deal of additional evidence as to what the defendant actually did. The defendant never denied any of our actions, nor have we ever claimed that what we said reflected not our true thoughts or was merely some kind of exaggerated rhetoric. We even explicitly stated that we never just talked the talk; we did put our words and our operational goals into practice.


2. Common defence strategies in criminal cases, such as downplaying the alleged conduct and distancing oneself from the events, were entirely absent in this case. Quite the opposite, the defendant embraced the conduct the prosecution labelled as criminal, to the extent that even when the court (and the prosecution) used wordings that sounded more radical, the defendant had no qualms about them. For insofar as the substance is there, the choice of words is simply a peripheral detail.


3. The court can see that the crux of contention in this case is not what the defendant did or was thinking, but what the law seeks to prohibit and what it seeks to protect. And to answer this question, we cannot stop at a superficial comparison of wordings but must instead ask what system the defendant was seeking to end, and what system the Constitution was to establish.


4. The real core issue is whether the law truly forbids us from pursuing a democratic transition and defends the Communist Party's perpetual rule. In the face of the government's abuse of power and arbitrary killings, does the law only allow us to swallow and wallow in our discontent but not to demand an end to such a tyranny?


II. The meaning of Ending One-Party Dictatorship


5. After all, the goal for ‘ending one-party dictatorship’ is to end the state of unchecked power. This is the most important reason for the rule of law to exist, and this is also the obligation that every court in the world should observe. It is impossible for a court to criminalise such a phrase and at the same time claim itself a guardian of the rule of law.


6. The court could, of course, argue that when the defendant uttered the words ‘ending one-party dictatorship’, they weren't referring to ending one-party dictatorship but to something that was entirely unrelated to those words. Leaving aside whether there's any evidence for that, the point is the court cannot rule that the phrase itself is unlawful or implies subversion without simultaneously negating its own mandate.


7. The court must recognise that the key word in that phrase – dictatorship - is not a hollow sign or a term invented simply to provoke emotion. It has its own substance. To avoid confronting the meaning of ‘dictatorship’ and ‘ending one-party dictatorship’’. To treat them merely as the markers of a crime while declaring this rule-of-law objective off limits would amount to self-defeat and would only reinforce the claim that Hong Kong’s rule of law is already dead.


III. The Nature of the Constitution


8. The court must address not only the meaning of ‘ending one-party dictatorship’, but also the true nature of the Constitutional order before deciding whether the two are genuinely in conflict. More than the defendant’s purpose, it is the Constitution’s own meaning that has remained the most uncertain, least supported, and least consensual issue in this case.


9. The purpose of a document that can be properly called a constitution is to regulate the exercise of public power, prevent it from harming ordinary people, and not to constrain them. In other words, a constitution is a tool developed by human society to end all forms of despotism. 


10. If ending dictatorship is the very purpose of a constitution, how can it be spun to become unconstitutional if not by arguing that China’s Constitution is not a proper constitution, but a sham that serves dictatorship? And this will explain why it not only fails to limit the Communist Party’s power but instead entrenches its perpetual rule and can even be used to forbid citizens from challenging illegitimate authority, rather than protecting them from abusive power.


11. The above is substantially the prosecution's argument and the basis for this prosecution. Put simply, the prosecution argues that the system established by the Constitution is not constitutionalism or the rule of law, but one in which the Communist Party monopolises power and directs everything, that is to say, a textbook one-party dictatorship. Even if the prosecution avoid using that term does not alter the substance of its argument.


12. This brings us to the second oddity in this case. The prosecution says we are wrong to call China a one-party dictatorship; it however argues repeatedly that the Constitution establishes exactly that. Throughout the trial, it has been the prosecution, not the defence, that has denigrated the Constitution by insisting it necessarily mandates one-party dictatorship. By contrast, the defence has persistently informed the court that this is not the Constitution’s only possible reading. In fact, the court can interpret the Constitution in a way that accords with the principles of the rule of law and democracy, rather than unduly rendering it into a bizarre monstrosity that completely in breach of the constitutional principles.


13. After all, how much basis does the prosecution have for saying that the Constitution is the interpretation that gave the Communist Party supreme power? It relies almost entirely on a single sentence added into the Constitution just a few years back: ‘The leadership of the Communist Party of China is the defining feature of socialism with Chinese characteristics’. But does that sentence explain what ‘leadership’ means? It does not. Does any provision of the Constitution define the scope of that leadership, what the Party may decide, what it may not interfere with, or the procedures for exercising such power? No. None at all. Throughout the entire Constitution, the only description of the Communist Party’s powers—or possible powers—is the single word ‘leadership’.


14. ‘Leadership’ has never been synonymous with real power or the right to govern. Charles III, for example, is the head of state for the United Kingdom, yet he holds no substantial political power. On what basis, then, can the prosecution argue that the mere word ‘leadership’ in the Constitution gives the Communist Party carte blanche to rule the entire country, override every state organ established by the Constitution, and remain perpetually unaccountable to the people?


15. For example, the Constitution expressly provides that the President of the State is elected by the NPC (Article 62). But if the Communist Party has pre-determined the outcome backstage before it ‘leads’ the NPC to conduct the election, then it is the Communist Party, not the NPC, who is in the driver’s seat for the election. In fact, the NPC also has the power to remove the President from office (Article 63). But if the NPC is subject to Party leadership and cannot act without Party consent, then that constitutional power of removal is nothing but a dead letter.


16. And the problem is not confined to the NPC. It implicates all constitutional organs. The Constitution expressly states that the people’s courts (Article 131) and the people’s procuratorates (Article 136) exercise judicial and prosecutorial power independently. But if decisions about whom to prosecute and how to judge are ultimately dictated by the Party, then what is the point of talking about an independent judiciary or procuratorate?


Most dangerous of all is the principle that the Party commands the gun—that the military must take after the Party and owe loyalty to it. We have heard this constantly in official propaganda, but this directive is utterly unconstitutional. Under the Constitution, the CMC should answer to the NPC, which is elected by the people (Article 94), and owe its allegiance to the Constitution and the people, not to the Party. It is precisely because the Party has taken control of the gun and monopolised overwhelming force that the Constitution with the law stripped of any real power and reduced to mere window dressing.


17. Therefore, the prosecution’s assertion that sees ‘leadership’ as control over everything has no basis in the constitutional order. It is rather contradicting the stipulations of the Constitution. To perceive the Constitution as a shield for arbitrary power rather than a limit on it truly subverts its nature and purpose.


18. In fact, the prosecution’s claim that the Party’s leadership overrides everything is not grounded in any specific constitutional provision. It just sadly reflects the country’s political reality, a reality that has existed for many years before the clause on ‘Party leadership’ was added to the Constitution. Can it therefore be argued that, when the Constitution was amended, the drafters were simply codifying the existing reality and the powers the Communist Party had already assumed? Given constitutional violation is an established fact, does that mean that such a fact should be allowed to define our law?


19. In this regard, the Korean case I referred to in my submission is directly relevant, as it is about how a court should respond when constitutional ideals diverge from the realities of political power.


The case arose from the 5.18 Gwangju Democratic Uprising, which occurred 46 years ago today. Like the Tiananmen Square protests, it involved the military killing civilians and imprisoning many others, but the killers remained in power. The difference,however, was that South Korea later underwent a democratic transition, and the perpetrators were eventually brought to justice. At the time, the defence argued that because they had seized power, rewritten the constitution, and governed under the new constitutional order, their authority must necessarily be constitutional. How, then, could they be accused of subverting the constitution? The Supreme Court rejected that argument. It held that, whatever amendments may be made, a constitution remains, by its very nature, a legal order grounded in popular sovereignty, liberal democracy, human rights, and the rule of law. Such an order can never legitimise a military dictatorship established in breach of democratic procedures. In that context, it was the usurpers - those who assumed that power itself could define the law, who truly subverted the constitution, not the citizens of Gwangju, who resisted martial law and defended its spirit.


20. This judgment shows that holding power does not necessarily confer authority over the meaning of the law. If a constitution is truly to merit that name, it cannot be reduced to the victor’s arbitrary command. It must embody its own coherent and enduring principles and spirit, whether or not those principles are fully realised in practice.


21. In the context of the Chinese Constitution, the essential question is: what is its core spirit? Is it democracy and the rule of law, or dictatorship and rule by man? If it is the former, then the true subverter of the Constitution’s fundamental order is not the defendant, but the Chinese Communist Party, which has long disregarded democratic procedures, monopolised state power, and even sought to legitimise its dictatorship through constitutional amendment. Only if the court accepts the opposite - that the Chinese Constitution is, at its core, a constitution of dictatorship, and that its references to democracy and the rule of law are solely decorative, incapable of displacing the overriding principle of one-party dictatorship - would there be any basis for this case to proceed.


IV. Overthrow, Destroy


22. Even if we assume that the Constitution establishes a one-party dictatorship under the Communist Party’s perpetual rule, and hence the defendant’s objective is fundamentally inconsistent with that framework, does that mean the prosecution has already proved the case? Of course not. For what the prosecution must establish is not the conflict between two theories, but the presence of any element of ‘overthrowing or destroying’ as well as the use of ‘unlawful

means’.


23. The prosecution has never explained what kind of conduct amounts to ‘overthrowing’ or ‘destroying’. Instead, it repeatedly refers to ‘ending’ and, with no justification whatsoever, treats the two as equivalent.


24. Even a cursory look at the dictionary shows that ‘ending’ is not the same as ‘overthrowing’ or ‘destroying’. A restaurant’s closure does not mean someone has overthrown or destroyed it. The owner may want to retire, the landlord may refuse to renew the lease, or the business may simply fail to keep up with the times, hence phased out. There could exist many reasons unrelated to overthrow or destruction. Likewise, if I dislike a restaurant and post a negative review, urge others not to patronise it or, even as a competitor, seek to take over its premises, they do not necessarily become acts of ‘overthrowing’ or ‘destroying’ the restaurant. Because such acts can be conducted in a reasonable, justifiable and lawful manner, they are within my rights as a customer or competitor - even if they ultimately contribute to the restaurant’s ‘closure’.


25. By contrast, if you alleged that I had hired triads to cause trouble at the door, or deliberately lied to defame others, fabricated public opinion, or bribed board members, those acts could possibly be characterised as ‘overthrowing’ or ‘destroying’. 


26. But has the court seen any conduct of that kind in this case? None. On the contrary, the defendant was simply stating facts with reasoned arguments. Even the prosecution cannot deny that those statements were grounded in fact. Be that the case, then how can there be any talk of overthrowing or destroying?


V. Unlawful Means


27. The allegation of ‘unlawful means’ is more absurd. Even at the close of case, the prosecution still cannot say what this unwarranted charge of unlawful means is nor can they produce a single example. At most, it argued that the Hong Kong Alliance had ‘not referred to any lawful means, such as amending the Constitution in accordance with its provisions, for “ending one-party dictatorship”’ (§ 60(11)). It went further to claim that in this case, the evidence has ‘excluded’ any lawful means to such an end (§ 13(5)).


28. Let’s first leave aside the prosecution’s sophistry, which both reverses the burden of proof and defies logic. What if I tell a restaurant to shut down without stressing to its owner the need to follow through legal procedures, am I then inciting him for an unlawful closure? And if only the owner has the legal power to close the restaurant, does my negative review as a customer, which causes the business to fail, thereby becomes the ‘unlawful means’?


29. ‘Not calling for a constitutional amendment by lawful means’ and ‘calling for unconstitutional means to end one-party dictatorship’ are two propositions worlds apart. Neither is equivalent to any part of the other. By and large, the prosecution's argument commits five major logical fallacies.



30. After all, ‘ending one-party dictatorship’ is a matter of making the law effective. It is never a goal that can be achieved simply by amending laws or the Constitution. That is why the Hong Kong Alliance never limited its demands to mere legal amendments by the government. It also called for measures to ensure the law is enforced in practice, including the establishment of oversight mechanisms, accountability, and external scrutiny. The best safeguard, of course, is having genuine, free and fair elections together with an independent and vibrant civil society. To focus on whether we called for Constitutional amendments, or whether such amendments are possible in the current prosecution, is therefore to miss the point entirely.


VI. Contravening the Constitution


31. On the element of ‘unlawful means’, as I just noted, the prosecution can’t just flippantly claim your means were unlawful. They must prove the existence of a specific ‘constitutionally unlawful means’. This also brings to light the third oddity of the case: that the entity alleged to have breached the Constitution could surprisingly be some ordinary persons.


32. The prosecution’s argument on this element is riddled with irreconcilable contradictions and paradoxes. I will focus on three points:


33. First, the prosecution’s case suffers from a basic legal flaw. The Chinese Constitution does not apply directly in full in Hong Kong. It takes effect necessarily through local legislation. I think both the prosecution and defence agree on this. This is also fundamental to ‘One Country, Two Systems’, and there should be no dispute about it.


It follows that, in Hong Kong, ‘contravening the Constitution’ alone cannot constitute a separate allegation of ‘unlawfulness’. Such an allegation can only be established indirectly through a specific Hong Kong law that is violated. But if the prosecution identifies a Hong Kong law that has allegedly been breached, citing that law as the basis for ‘unlawful means’ is sufficient. Any extra reliance on acts that ‘contravene the Constitution’ is redundant.


34. In this case, can the prosecution point to a single piece of Hong Kong legislation that gives effect to Article 1 of the Constitution? Yes, that’s NSL22.


35. It follows that on ‘unlawful means’, the prosecution's case is the defendant is accused of violating the NSL22 by means of violating the NSL22. Such a claim is laughable on its face. In fact, the prosecution is trying to invoke some seemingly different wordings, i.e. ‘contravening the Constitution’, to disguise their circular reasoning. From the outset, the prosecution has had no case on the issue of 'unlawful means' independent of the alleged result of the act. Its approach to dress up a superior statute as an independent legal basis and then shoehorn the elements of the offence from a subordinate statute back into it, is unacceptable.


36. The second point is about who can violate the Constitution. Even if the court accepts the prosecution’s use of ‘contravening the Constitution’ as a basis to establish its case on ‘unlawful means’ under NSL22, the Constitution still binds only a specific class of persons. Yet the prosecution has alleged that the defendant incited ordinary people, while also accepting that ordinary people cannot violate the Constitution. If so, how could the defendant have incited these people to do something they are inherently incapable of doing? The allegation is as absurd as saying, by encouraging a woman to enter a ladies’ toilet, we incited her to breach the rule that bars men from entering it.


37. Third, on the question of how to determine whether an act is unconstitutional, the prosecution still maintained in its closing submission that ‘any act aims at ending one-party dictatorship’ amounted to contravening the Constitution. （§ 69）


Setting aside the fact that this argument is merely a rehash of premise 1, which the court has already rejected, and even if we specifically make constitutional amendment an exception, it does not follow that any other acts aimed at ending one-party dictatorship are unconstitutional. What counts as an act aimed at that objective? The defendant candidly accepted in their evidence that everything the Hong Kong Alliance did was directed toward its five operational

goals, including ending one-party dictatorship. On the prosecution’s logic, therefore, every act of the Alliance, that of holding rallies, raising funds, publishing materials, or even convening a general meeting etc., would all become unconstitutional. That is utterly thought-crime reasoning which, moreover, judges legality by long-term motive.


According to the prosecution’s interpretation of ‘unconstitutional’, I am already violating the Constitution, for I am still pursuing this case with the aim of ending one-party dictatorship. So, why don’t the national security authorities just come and seize me?


38. Clearly, the prosecution’s account of what constitutes an ‘unconstitutional’ act cannot stand. Without a coherent basis for that claim, it cannot prove that the defendant incited any conduct capable of being characterised as ‘contravening the Constitution’, and the element of ‘unlawful means’ therefore fails.


VII.Natural and Reasonable Consequences


39. Even if the prosecution can overcome all the legal obstacles already identified, the court must still be satisfied, as a matter of fact, that the alleged effects of the incitement were the natural and reasonable consequences of the defendant’s words and deeds. Without that safeguard of reasonableness, the law of incitement would stifle freedom of speech and the exchange of ideas, because almost any expression of opinion could be labelled incitement.


40. The defence must also stress that what the words means in themselves and what effect uttering them in a particular context will have are two entirely different matters. The prosecution, however, has consistently conflated the two.


41. For example, if I set up a street stall to invite people to the June 4th rally and mentioned the words ‘ending one-party dictatorship’, the natural and reasonable effect of the event or speech would not suddenly shift from ‘encouraging attendance at the rally’ to ‘encouraging some unidentified act said to be unconstitutional and capable of ending one-party dictatorship’. Listeners are not robots or computer programmes that react to those words with a pre-set response while ignoring everything else said. It makes no sense to define the natural and reasonable consequences of the defendant’s words and deeds solely by reference to the supposed meaning of ‘ending one-party dictatorship’.


42. Moreover, the prosecution’s account of the alleged effects of the incitement in this case is highly unnatural and unreasonable. What, exactly, is the defendant said to have incited others to do? ‘Ending one-party dictatorship by unconstitutional means’. Even if I were to say that plainly to those attending here today: ‘Hi everyone, go and use unconstitutional means to end one-party dictatorship’, I could tell all will be completely baffled, because no one would know what act I was urging them to commit. How can an alleged incitement that no one can understand be described as natural or reasonable?


43. In fact, the court need not rely on some vague descriptions or speculation to assess the effect of the words ‘ending one-party dictatorship’ on those who heard it. The Hong Kong Alliance, with its history of over 30 years, has provided the strongest evidence. It had been the one most directly and persistently incited by the phrase. Yet, in its pursuit of such a goal throughout all these years, what act or means had it used that could possibly be described as an ‘unlawful means’ or as an ‘unconstitutional’ act? None. The prosecution cannot name a single example. If even the group most committed to that ideal, which was backed up with organisation and resources, never resorted to any supposed ‘unlawful means’, on what basis can the prosecution say that inciting others to use such means is the natural and reasonable consequence of the phrase? What is so ‘natural’ about that?


44. Beyond the objective evidence already discussed, the court’s main consideration in deciding whether the alleged effect of an incitement is reasonable must be the protection of human rights. In a society that values freedom of speech and encourages participation in public affairs, criticism of injustice cannot lightly be treated as incitement to some undefined offence. Such overreach is often made a pretext for suppressing dissent and avoiding accountability. Unless

the court applies scrutiny and sets clear limits on what counts as a ‘reasonable effect’, it risks becoming complicit in the government’s power abuse and criminality.


VIII. Conclusion


45. Here are the three oddities I have identified in this case: first, the defence openly embraces the conduct said to be criminal; second, the prosecution slanders the Constitution as an instrument of dictatorship; and third, ordinary citizens become those who breach the Constitution. Indeed, all three point to the same underlying problem: in this case, the standards of right and wrong have been completely reversed. Telling the truth is recast as inciting hatred, seeking justice as exploiting suffering, limiting power as violating the Constitution, and returning power to the people as subverting the state.


46. The key phrase in this case, ‘ending one-party dictatorship’, is by nature a call for the rule of law. It seeks to end a state in which the Party stands above the law and to restore our inherent rights. From the outset, ‘ending one-party dictatorship’ should not have been treated as a matter for criminal prosecution or punishment. Rather, it ought to be the very mission of the court itself.


47. The language and analytical framework of criminal law rest on a basic premise that the criminal justice system is designed to address wrongdoing. When someone dies, property is lost, or someone is assaulted, the law will then step in to decide whether anyone should be held responsible. And because of this premise that something bad has occurred, the usual defence is to distance oneself from it - no, I didn’t do it, I don’t know, I didn’t intend it and so forth.


48. But in this case, there is no underlying wrongdoing to begin with. To force the language and concepts of criminal offences onto a legitimate act is like, for instance, analysing whether helping an elderly woman cross the road constitutes fraud. It could only be a farce and could even distort the law itself.


49. Must everyone simply accept the logic that, whenever those in power label something a crime, be it actually right or wrong, they must respond by evading, distancing themselves, and denying responsibility, saying ‘it wasn’t me’, ‘I didn’t do it’, or ‘I didn’t mean to’, all just to avoid the so-called criminal liability and risk?


50. The defendant’s position is clear: we will not play along by denying what is right and just. We seek to end one-party dictatorship, bring about a democratic transition, and effect a change of regime. No matter how the prosecution tries to portray this as criminal with its discourses, our position remains unchanged, as does our judgment of right and wrong.


51. The only thing that remains unclear at present is how the law will respond to this situation. Can our laws really be allowed to be twisted and moulded at the prosecutor's whim, transforming from guardian of human rights into protector of power abuse, and from champion of justice into that of the leader's will? Does the law still wish to safeguard democracy, or does it want to switch sides and serve a dictatorship? When dictatorship is a reality, the law cannot have two minds. Sooner or later, it must face reality and confront the incompatibility between the rule of

law and dictatorship.


52. So, what is truly being tested here today, what is truly on trial, is not the defendant but our very law. The defendant knows perfectly well what they want and what they stand for. It is the law that remains indecisive, and the court's verdict will declare to the whole world whether our law can still uphold the bottom line of the rule of law and democracy, or if it has already stooped to becoming a watchdog for dictatorship.


______________________


HCCC 155/2022


鄒幸彤的結案陳詞(⼝頭)

Chow Hang Tung’s Closing Submissions (Oral)


I. 前言 Introduction


1. 作為刑事案件，本案其實係一單好奇怪嘅案。辯方對於事實上發生過 D 乜，基本上全無爭議，甚至主動提咗好多額外嘅，被告到底做過 D 乜嘅證據。被告從來冇否認我哋做過嘅所有嘢，從來冇話我哋講嘅嘢唔反映我哋嘅真實諗法，或只係 D 咩誇張修辭。我哋甚至明確咁表示，我哋從來唔只係講下就算，而係有確實咁用行動去踐行我哋嘅說話，我哋嘅綱領。


2. 刑事案件入面常見嘅辯護方向，比如將涉案行為大事化小，同發生嘅事情保持距離等，喺本案係完全無出現。相反，被告係擁抱被控方指稱為犯罪嘅行為，以致就算當法庭用 D 聽起來比較激進嘅字眼，被告都完全無所謂。因為覺得只要內容擺咗喺度嘅，用咩字眼去形容，都只係旁枝末節。


3. 法庭可以見到，本案嘅爭議重心，其實並不在於被告做過 D 乜，諗緊 D 乜，而係法律要禁止 D 乜，保護 D 乜。而要回答呢個問題，我哋就唔可以停留喺膚淺嘅字眼對比，而係要實在咁去問被告要結束嘅係一種乜制度，憲法所確立嘅又係一種乜制度。


4. 真正核心嘅問題，係法律係咪真係禁止我哋追求民主轉型，並保護共產黨嘅永恆執政？面對政府嘅濫權同濫殺，法律係咪要我哋只能忍氣吞聲，而唔能夠要求呢種專政情況嘅結束？


II. 結束一黨專政的意思 The meaning of Ending One-Party Dictatorship


5. 因為「結束一黨專政」，講嚟講去就係要結束權力不受法律限制嘅狀態。而呢個目標，根本就係法律之所以需要存在嘅最大理由，亦係世上所有法院都應當去持守嘅責任。法庭係冇辦法喺將呢一句話打成犯罪嘅同時，仲可以聲稱自己仍然係法治嘅守護者。


6. 法庭當然可以話被告講「結束一黨專政」時唔係講緊結束一黨專政，而係講緊同呢幾隻字本身無關嘅其他嘢——先姑勿論有冇咁嘅證據。但重點係，法庭係唔可能裁定呢句話本身就有乜違法嘅、顛覆嘅含義，而唔同時否定埋自己嘅使命。


7. 法庭要理解，呢句話入面嘅關鍵詞——專政，並唔係空無一物嘅標籤，唔係只係為咗煽動 D 乜情緒先創造出嚟嘅字眼，而係有佢自己實在嘅內涵同含義嘅。唔去面對「專政」同「結束一黨專政」呢句話本身嘅意思，只當佢係一個犯罪嘅記號，輕率咁將呢個法治嘅目標劃為禁區，無異自毁長城，坐實咗香港法治已死嘅講法。


III. 憲法的性質 The Nature of the Constitution


8. 法庭除咗要面對「結束一黨專政」本身嘅含義，更要去問憲法根本制度究竟係一個乜嘢制度，先可能知道呢兩者係咪真係有矛盾。比起被告想要 D 乜，其實憲法想要 D乜，先係本案入面最唔清楚，最無證據亦最無共識嘅一個爭議。


9. 世上能夠叫得做憲法嘅文件，佢哋存在嘅意義就係去規範公權力嘅運作，防止佢危害到普通人，而唔係愛嚟束縛普通人。亦即係話，憲法本身就已經係人類社會為咗結束各種形式嘅專政而發展出嚟嘅一種工具。


10. 既然結束專政就係憲法嘅存在意義，要點樣先可以 spin 到去結束專政竟然會違反憲法呢？除非，你去話中國嘅憲法就唔係一部正常嘅憲法，係徒有憲法之名嘅假憲法真專政。所以中國憲法先至唔單只限制唔到共產黨嘅權力，仲反而可以保障佢永久執政；所以中國憲法先至唔單只保護唔到公民免受權力侵犯，仲反而可以係禁止公民挑戰非

法權力嘅依據。


11. 以上實質上就係控方嘅立論，同支撐起本次檢控嘅基礎。白啲講，控方拗緊嘅就係憲法確立咗嘅制度就唔係憲政同法治，而係一個共產黨獨攬大權，領導一切嘅體制——亦即係教科書式嘅一黨專政，就算控方避用呢個詞，都改變唔到佢哋個主張嘅本質。


12. 呢度又嚟到本案嘅第二怪——控方一方面指責我哋話中國係一黨專政係錯嘅，一方面又不斷主張憲法確立嘅就係一黨專政。於是成個審訊入面，竟然係控方先喺度不斷抵譭憲法，話佢必然係規定咗一黨嘅專政，反而係辯方就一直努力向法庭陳述，專政唔係憲法嘅唯一解讀，其實法庭係有空間去按照合乎法治同民主嘅原則去詮釋憲法嘅，而唔係非必要將佢演繹為完全違背憲政原則嘅奇葩。


13. 畢竟，控方果種話憲法就係賦予咗共產黨無上權力嘅詮釋，又有幾多根據呢？佢哋來來去都只能夠依賴幾年前先加入憲法嘅一句話，即「中國共產黨領導是中國特色社會主義最本質的特徵。」但呢句話有解釋過「領導」係咩意思咩？冇喎。憲法入面又有乜任何嘅條文，有闡述過共產黨領導涵蓋 D 咩範圍，可以決定 D 乜，唔可以介入啲乜，又可以經過乜嘢程序去行使呢個權力咩？都冇喎，零，乜都無講。成部憲法關於共產黨有乜權力——或可能有乜權力嘅表述，就只得孤零零嘅「領導」兩隻字。


14. 「領導」從來就唔等於實權或者執政權。查理斯三世夠係英國嘅領導人啦，但佢係政治上都無實權㗎。既然如此，控方又憑乜去話單係憲法有「領導」呢兩隻字，就等於共產黨可以乜都話哂事，可以執掌成個國家嘅實權，凌駕所有由憲法確立嘅國家機關，兼永永遠遠唔駛向人民負責？


15. 例如憲法明明講到明，國家主席係由人大選舉產生的（第 62 條），但原來背後早就由共產黨內定咗先去「領導」人大去做選舉嘅呢個動作嘅，咁真正行使緊選國家主席呢個權力嘅就已經唔再係人大而係共產黨。而且人大唔只有選舉權，仲有罷免權（第 63條），但如果人大冇黨領導，冇黨同意就唔罷免得國家主席嘅，咁呢個憲法規定嘅罷免權咪名存實亡咗囉。


16. 而且問題唔只係人大，仲包括所有憲政機關，例如話憲法明明規定咗人民法院（第 131條）同檢察院（第 136 條）係獨立行使審判權同檢察權嘅，但原來佢哋告邊個判邊個最終都係要聽黨指揮嘅，咁仲講咩獨立檢察，獨立審判呢？


而最危險嘅係黨指揮槍——軍隊要姓黨，要對黨忠誠，我哋喺官方宣傳都聽唔少，但呢個根本就係完全違憲嘅指示。憲法入面中共軍委嘅負責對象，應該係由人民選舉出嚟嘅人大(第 94 條)，效忠對象亦應該係憲法同人民，而唔係黨。正正因為黨指揮咗槍，掌握咗壓倒性嘅武力，所以憲法同法律係黨面前咪無哂牙力，淪為擺設囉。


17. 所以控方講果種「領導」就等於統管一切嘅講法，喺憲法制度根本無根據甚至可以話係違反緊憲法規定添。呢種將憲法理解成對任意權力嘅保護而非限制嘅做法，先係根本地顛覆緊憲法之所謂憲法嘅性質同功能。


18. 其實控方呢種黨領導大於一切嘅說法從來唔係出自憲法嘅咩具體規定，只係好可悲咁反映緊呢個國家嘅政治現實，而且係喺果條「黨領導」嘅憲法條文出現之前就已經存在多年嘅現實。咁係咪可以去拗，當年修憲嘅時候，立法者梗係睇住個現實去寫條法律㗎嘛，所以憲法嘅呢句「領導」肯定就係想包哂共產黨本身已有嘅權力㗎啦。係咪因為違反憲法嘅專政已經係既成事實，呢個事實就可以反過來定義我哋嘅法律呢？


19. 喺呢一點上，我喺陳詞度提及嘅一個韓國案例，正正就係處理緊當憲法理念同實權結構出現落差嘅時候，法院可如何自處嘅問題。


果單案牽涉嘅正正係發生喺 46 年前嘅今日嘅 518 光州民主運動。果場運動同六四一樣，有好多平民遭軍隊殺害，好多人因此坐監，但無礙殺人者繼續執掌大權。但唔同嘅係，韓國其後經歷咗民主轉型，劊子手最終都要面對法律嘅審判。當時辯方嘅論點就係，我明明已經掌握咗權力，改寫埋憲法，跟足新憲法去統治國家，咁我嘅權力就梗係合憲㗎啦，你哋點可以反過嚟話我紊亂憲法呢？但最高法院話唔係，無論你點改憲法都好，憲法之所謂憲法，由始至終都仍然係同一套講求人民主權、自由民主、人權保障同法治原則嘅法律秩序，而一套咁嘅秩序係任何情況下都唔可能為違反民主程序嘅軍事獨裁去背書。放返係當年嘅處境，真正紊亂緊國憲嘅係果 D 自以為掌握咗權力就等於掌握咗法律嘅篡位者，而唔係反抗戒嚴捍衞憲法精神嘅光州巿民。


20. 呢個判決反映嘅，係掌權唔一定等同於掌握埋法律嘅話語權，喺憲法如果仲叫得做憲法嘅話，就唔可以係勝者為王嘅任意命令，而係應當有其內在而一貫嘅原則同精神，不論呢 D 原則喺現實到有否被落實。


21. 擺返喺中國憲法嘅處境，個大哉問就自然係，呢部憲法嘅核心精神到底係咩呢？係民主同法治，定專政同人治呢？如果係前者，咁真正破壞緊憲法根本秩序嘅顯然就唔係被告，而係長期違反哂各種民主程序，獨攬咗國家大權，甚至嘗試用修憲嚟合法化專政嘅中國共產黨。唯有當法庭滿意唔係嘅，中國憲法嘅核心精神就係專政㗎啦，入面講咩民主法治都只係做下樣，都唔可以損害到一黨專政嘅大原則，咁呢單案先會有審落去嘅必要。


IV. 推翻、破壞 Overthrow, Destroy


22. 即使假設憲法確立嘅就係共產黨永遠執政嘅一黨專政體制，所以被告嘅追求係根本地違背呢個設計嘅，咁係咪等於控方就已經證明到案呢？當然唔係啦，因為控方要證明嘅唔係兩種理論之間嘅矛盾，而係要實實在在咁證明到有「推翻、破壞」嘅元素，同埋有用到「非法嘅手段」。


23. 控方從來冇講清楚，到底咩嘢類別嘅行為，先至會算係「推翻、破壞」。佢哋講嚟講去，都只係話「結束」，然後無端端就係兩者之間劃等號。


24. 但就算我哋只係好膚淺咁去查下字典，都當然可以知道「結束」同「推翻、破壞」並唔係同義詞啦。一間酒樓要結束營業，唔等於佢就係被任何人所推翻同破壞。可能係老闆自己想收山，可能房東唔續約，可能係佢自己追唔上時代被拋棄，可以有各種各樣不涉推翻、破壞而又要結束嘅原因。就算我個人唔鍾意間酒樓，係網上寫好差嘅食評，或者呼籲街坊咪去幫襯，甚至作為競爭對手去爭佢個鋪位，都唔見得就可以跌落「推翻、破壞」嘅框框，因為呢 D 完全都係我合情合理合法地可以去做嘅事，係行使緊我作為食客又好，對手又好嘅權利同自由，即使呢 D 行為係可能會令到間酒樓嘅

「結束」。


25. 但如果你話我做嘅嘢，係搵黑社會上門搞事，或者故意咁講大話造謠抹黑，造假民意，或者收買董事會成員之類，咁呢 D 行為就真係可能有「推翻、破壞」嘅性質啦。


26. 但係本案中，法庭有冇見過任何類似性質嘅行為？完全無嘛。相反，被告一直都只係講事實，講道理，連控方都唔能夠否認我哋講嘅嘢係有事實根據嘅。既然如此，談何推翻、破壞呢？


V. 非法手段 Unlawful Means


27. 至於有關非法手段嘅指控，個情況就更荒謬。控方到結案啦，都始終講唔到呢個莫須有嘅非法手段到底係咩嚟嘅，連一個例子都舉唔到出嚟，最盡最差都只不過係講到支聯會「沒有提及按照國家憲法的規定修改憲法等合法手段來『結束一黨專政』」（§ 60(11)），甚至話本案證據已經「排除」咗被告以任何合法手段去結束一黨專政（§ 13 (5)）。


28. 先唔講控方呢種詭辯完全就係倒置咗舉證責任，邏輯上亦都係唔通嘅。唔通我叫間酒樓執咗佢啦嘅時候，冇強調老闆你一定要按照法律程序執咗佢，我就等於煽動緊佢非法結業咩？唔通因為程序上可以合法執咗佢嘅人只有老闆，我作為食客寫差評令佢執笠就會變咗「非法手段」咩？


29. 「冇叫人用合法方式修憲」，同「有叫人用違反憲法嘅手段去達成結束一黨專政」，根本就係兩個隔咗成個大西洋咁遠嘅命題，兩句嘢嘅每一個部份都唔能夠劃等號。


總括而言，控方嘅主張犯咗五大個邏輯上嘅謬誤：


30. 講到底，「結束一黨專政」本質上係一個法律落實嘅問題，從來就唔係單靠修改法律，包括修改憲法就能達成嘅目標。所以支聯會朝向政府嘅果 D 呼籲，從來就唔係只停留係改法律，而係包括設立監察機制，進行問責，接受外部監督呢啲能保證法律得以落實嘅要求。而最好嘅監督，當然就係真正自由公平嘅選舉，同有獨立力量嘅公民社會。將成個檢控嘅重心放哂喺我哋有冇要求修憲，修憲係咪可能嘅呢 D 問題上面，根本就牛頭唔搭馬嘴。


VI. 違反憲法 Contravening the Constitution


31. 此外，我啱啱都提到控方喺「非法手段」呢個元素上要證明嘅係存在一個「違反憲法嘅手段」，而唔能夠求鬼其咁話總之你個手段唔係合法嘅就以為搞掂。呢度又帶出咗本案嘅第三怪，即本案中被指違反憲法嘅主體，竟然可以係普通人。


32. 控方係呢個元素上嘅案論，充斥住無可調和嘅矛盾同悖論。係呢度我只集中講其中 3點：


33. 首先，控方呢個案情最根本嘅問題，係一個法理上嘅問題。中國憲法係唔可以成部喺香港直接實施嘅，而係必須透過本地嘅法律做中介去產生效力，我諗呢點應該都係控辯雙方嘅共識，亦係一國兩制嘅基礎，無乜好爭議。


既如此，係香港「違反憲法」就唔可能係一個獨立嘅「非法」指控，而係必須同時有另一條可以被違反嘅香港法律嘅存在，呢個說法先有可能係一個間接層次上成立。而其實如果控方講得出果條作為中介嘅香港法律係乜嘅時候，直接引用果條法律作為「非法手段」嘅法律基礎就已經足夠，再講埋「違反憲法」根本就已經係多餘嘅。


34. 喺本案入面，控方有冇可能指得出一條將憲法第一條落實係香港嘅法律呢？有嘅，咪NSL22 自己囉。


35. 亦即係話，控方喺「非法手段」上嘅案情，就係指控緊被告以違反 NSL22 嘅手段違反NSL22。呢個說法，講出嚟都知好笑啦。實質上，控方做緊嘅，咪就係用「違反憲法」呢種表面上好似有啲唔同嘅字眼，嚟掩飾佢哋所依賴嘅循理論證囉。根本由頭到尾，控方喺「非法手段」嘅問題上都無任何獨立於行為結果嘅案情。控方呢種將上位法扮成係一個獨立嘅法律基礎，再倒轉塞返落下位法嘅罪行元素入面嘅做法，絶不能被接受。


36. 第二點，關於邊個可以違憲嘅問題。假設法庭接受控方可以直接依賴「違反憲法」呢種指控作為 NSL22 下嘅「非法手段」，憲法始終係一條有特殊規管對象嘅法律。控方喺本案一方面指稱被告嘅煽感對象係普通人，一方面又承認普通人係唔可能違反憲法嘅。既然如此，被告又到底點樣煽動到呢 D 人去做一樣佢哋本質上就做唔到嘅嘢呢？控方嘅指控，就好似話我哋煽動咗個女仔入女厠，所以就係煽動緊佢去違反男性不得入女廁嘅規定一樣咁荒謬。


37. 第三點，關於點樣判斷某個行為係咪違反憲法嘅問題。控方去到結案陳詞嘅講法，都依然係話以「實現結束一黨專政為目標嘅行為」就等於違憲（§ 69）。


先唔講呢種講法其實等於翻炒已經俾法庭否決咗嘅基礎一，就算我哋特登為修憲劃出一個例外，係咪就可以指稱除修憲外任何以實現結束一黨專政為目標嘅行為都係違憲呢？究意乜嘢叫做以實現結束一黨專政為目標嘅行為呢？被告作供嘅時候已經好大方咁承認，支聯會做嘅所有嘢都係以實現五大綱領包括結束一黨專政為目標㗎啦。換言之，喺控方對「違憲」嘅解讀之下，支聯會無論係集會呀籌款呀出版呀甚至開會員大會呀，通通都會變哂做違反憲法嘅行為，咁嘅詮釋，完全就係思想罪嘅邏輯，而且仲係要以行為嘅長遠動機嚟界定佢嘅合法性。按呢種對「違憲」嘅理解，我呢一刻都已經違緊憲啦，因為我依然係抱住結束一黨專政嘅目標去打呢場官司，所以國安仲唔快啲入嚟拉人？


38. 好明顯地，控方就乜嘢行為會構成「違反憲法」嘅主張，係不可能成立的。而無咗呢個根據，控方根本就無從證明被告煽惑咗任何可以歸類為「違反憲法」嘅行為，非法手段嘅元素亦必然無法成立。


VII. 自然及合理效果 Natural and Reasonable Consequences


39. 就算我哋假設控方可以克服哂先前提到嘅所有法律問題，法庭依然要係喺事實上滿意，控方所提出嚟嘅煽惑效果，係被告言行所造成嘅自然及合理效果。忽略呢一層合理性嘅評估，煽惑罪就會完全扼殺言論自由同思想傳播，因為任何思想嘅表達，其實都可以叫做煽惑。


40. 辯方亦必須強調，文字本身有咩含義，同係某特定場合講呢句話出嚟會做成乜嘢效果，係兩個完全唔同嘅問題，但控方就係一直喺度將兩者混為一談。


41. 例如我擺街站叫人嚟六四集會，果次嘅活動或發言嘅自然同合理效果，唔會因為我係遊說聽眾時提過「結束一黨專政」呢六個字，就突然由「鼓勵他人參與集會」，變成「鼓勵他人做一件唔知係乜但就會違憲兼結束得到一黨專政嘅行為」。聽到嘅人又唔係咩機械人或者電腦程式，一聽到果 6 個字就會觸發咩設計好嘅反應，並自動，忽略發言嘅其他內容。以「結束一黨專政」嘅所謂含義嚟定義被告所有發言同行動嘅自然同合理效果，根本就唔 make sense。


42. 而且，控方本案入面嘅煽惑效果嘅描述，本身就已經係一種極不自然，極不合理嘅描述。被告宜家被指控煽惑在他人去做嘅行為係乜呢？係「以違反憲法手段結束一黨專政」。就算我明明白白咁對住比如宜家旁聽嘅朋友去講呢句話，「喂，大家快 D 去用違反憲法嘅手段去結束一黨專政啦」，我敢講十個入面有十個人都只會成頭黑人問號，因為根本就聽唔明我想要大家做 D 乜。一個無人聽得明白嘅煽惑效果，又點可能叫做自然同合理呢？


43. 其實喺本案入面，法庭根本就唔使靠任何虛無飄渺嘅描述同推論去判斷「結束一黨專政」呢句話會對接受佢嘅人會產生乜嘢效果，因為支聯會 30 幾年嘅歷史就已經係最好嘅證明。最直接，最長期咁被呢句話所煽動咗嘅，其實咪係支聯會自己囉。支聯會咁多年來，為追求呢個目標所做嘅邊一件事，用過嘅邊一個手段，可以符合到「非法手段」或者「違反憲法」嘅描述呢？無，控方一樣都指唔出。連最全心擁護呢個目標，兼有一定資源同組織嘅團體都冇用過咩所謂「非法手段」去實踐呢個理想，控方到底憑乜去話煽惑他人用非法手段，就係呢句話嘅自然同合理效果呢？邊忽自然呢？


44. 除咗上述客觀效果嘅證據之外，法庭係評估某種煽惑犯罪嘅效果係咪合理嘅時候，最需要考慮嘅因素就係對人權嘅保障。一個有言論自由，並鼓勵公民參與社會事務嘅社會，唔可以郁 D 就將對不公義嘅曝光同批評，超譯為煽動緊 D 唔知乜嘢犯罪行為。呢種過度詮釋，往往就係政府封殺異見，逃避問責嘅藉口。法庭如果唔小心把關，為何謂「合理效果」劃出嚴格界線，就好易淪為縱容政府濫權同犯罪嘅幫兇。


VIII. 結論 Conclusion


45. 我提到嘅本案三大怪，一，辯方完全擁抱所謂嘅犯罪；二，控方抹黑憲法為專政；三，公民竟然成為咗違反憲法嘅主體，其實背後都反映緊同一個問題。就係係本案入面，咩嘢係對咩嘢係錯嘅標準，其實係倒轉哂。說出真相變咗煽動仇恨，尋求公義變咗利用苦難，限制權力變咗違反憲法，還政於民變咗顛覆國家。


46. 本案關鍵嘅「結束一黨專政」嘅綱領，本質上就係一個法治嘅訴求，係要求結束黨大於法嘅狀態，要求攞返我哋嘅天賦權利，根本從一開始就唔可以作為刑事檢控同處罰嘅對象，甚至應當就係法庭本身嘅使命。


47. 刑事犯罪嘅語言同分析框架要能夠適用，其實係要有前提嘅，成套刑事系統嘅設計，就係當社會上發生咗一 D 唔好嘅事，有人死咗好、唔見咗嘢好、俾人非禮好，所以法律就要介入，去搵出有冇人需要為呢件壞事負責。亦因為有壞事發生嘅呢個前提在，所以一般嘅辯護方向都係要同呢件事保持距離，我無做我唔知我唔想諸如此類。


48. 但係本案入面，根本就連呢個發咗咩壞事嘅前提都唔存在。夾硬用刑事犯罪嘅語言同槪念去分析一件正當嘅事，例如分析扶阿婆過馬路係咪能夠構成詐騙，只會係一場鬧劇，甚至會扭曲埋法律本身。


49. 係咪每當有權有勢嘅人話某件事係犯罪，唔理果件事本身啱唔啱，所有人就只能夠順住呢個邏輯去回應，去迴避，去切割，去顛倒是非，去話我唔係我無做我唔想，以避免所謂嘅刑責，所謂嘅風險？


50. 被告嘅答案好清楚——我哋唔會玩呢個咁嘅遊戲，去否定一件正確嘅事，正義嘅事，我哋就係要結束一黨專政，就係要民主轉型要改朝換代，無論控方用幾多必然犯罪嘅言語去描述呢件事，我哋嘅立場都唔會改變，對是非對錯嘅判斷亦唔會改變。


51. 宜家唯一唔清楚嘅，只係法律會點樣回應呢種情況——到底我哋嘅法律係咪真係可以任由控方去搓圓㩒扁，從人權嘅守護者變為濫權嘅包庇者，從以公義為先變成以領導意志為先？到底法律仲想要保護民主，定想跳槽去服侍專政？當專政確實存在，法律終究不能一直首鼠兩端，而係早晚要面對現實，面對法治同專政之間嘅根本矛盾。


52. 所以今日係呢度真正受緊考驗嘅，真正被擺咗上枱受緊審判嘅，其實唔係被告而係我哋嘅法律，被告好清楚自己想要乜，代表乜，只有法律依然搖擺不定，法庭點判，將宣告俾全世界聽，到底我哋嘅法律仲係咪能堅守法治同民主嘅底線，定係已經自甘成為專政嘅看門狗。