Author: Gu Minkang
Hong Kong is still worrying.
In this chaotic vortex in Hong Kong, police and judges have once again become the focus of public opinion.Recently, the provocation of radical demonstrators and mobs has gradually upgraded, and the harm of the use of weapon has also been continuously enhanced, such as powerful laser pens, giant slingshots, gasoline bombs, etc. Recently, it has blocked the airport harassment and harmed passengers, and beaten reporters.Homes and a large number of flights have been canceled.
On August 15th, the Hong Kong High Court approved Dai Yaoting, one of the initiatives of illegal occupation of China, received bail during the appeal.Dai Yaoting was sentenced to 16 months in prison. However, after only four months in prison, he went out of prison for a bail of HK $ 100,000 ($ 17,000).In addition, many radicals or mobs have been released one by one after being arrested or unconditional after being arrested.Therefore, many public opinion has pointed to Hong Kong's judicial system and foreign judges.In my previous article, many readers have discussed similar issues, so they want to talk about related issues again.
About riot and bail
In fact, as early as 2016, 37 people in Mong Kok in Hong Kong were arrested, but they were approved by the judge. The riots that lasted two months since the beginning of June, and many people who were charged with riots were approved by the judge.Therefore, some people simply attribute this phenomenon to the police to catch people, and the judge let people go, which may be caused by the lack of understanding of Hong Kong's legal system.
In Hong Kong, obtaining bail has become a right to be charged with suspects, so there is a principle bail and refusing to be known as an exception.When the judge decides whether to give bail, the judge may consider various factors comprehensively.Of course, the nature and severity of crimes should be the most important consideration. For riots suspect suspects should consider applying an exception, that is, it is not approved to be released.
Why do you say that?Because the crime of riots is a serious anti -social violence, it is of great harm to society, and the accused may continue to sin during the bail, especially the riots that have frequently occurred in the past two months.Out of negative information, it is also unfavorable to the stability of society.
In the Hong Kong Criminal Procedure Regulations, the bail has also been made in detail. The key is Article 9D and 9G.Article 9D stipulates that the right to be granted for bail is approved by the controlled person, and Article 9G clearly stipulates that in special circumstances, it can be rejected by the controlled bail.The first consideration of the consideration should be the nature and severity of the crime, and once the conviction is determined, it is quite possible to dispose of the mansable manner. In addition, such as the nature and weight of the evidence of the prosecution of the crime of crime, and so on.
In Hong Kong, the crime of riot is a very serious crime.Article 19 of the Public Security Regulations stipulates that (1) If anyone who participates in Article 18 (1), a person who is determined to be an illegal assembly to destroy social tranquility. The assembly belongs to a riot, and the assembly is a assembly riots.(Revised by Article 12, 1970 No. 31) (2) Anyone involved in the riots, that is, the crime of crime of violence: (A) Once the public prosecution procedure is convicted, it can be imprisoned for 10 years;A second -level fine and imprisonment can be punished for five years.The provisions of these two torture periods in Hong Kong, which is pursuing light torture, belongs to a very heavy sentence, and also shows the severity of this sin.
Relatively speaking, the punishment of the crime of attacking the police will be lighter.Article 36 of the crime of infringing people is quite serious.Considering the riots for more than two months, bail to suspects who were prosecuted for these crimes would cause them to return to those radical demonstrators, causing further harm to social turmoil.
About temporary ban order
In addition, the chaos at the Hong Kong Airport has recently affected the hearts of many people, especially the demonstrations of these two days have not been applied to the relevant departments at all. This is illegal in itself.Article 7 of the Public Security Regulations is the regulation of public rally. Article 18 clarifies illegal assembly crimes, and it is also a serious crime.
Many voices are puzzled by this. Is there no way to deal with the police, after all, the airport involves flight safety issues.Law, of course, the police can clear the field, but it is precisely because the airport involves flight safety and partial retention passengers, and there is a big deal if the control is not good.Just like the two mainland people were beyond the thugs on the evening of the 13th, even if the police came to the scene to rescue, they were still besieged by radical demonstrators.
In addition, we also noticed that, in the same night, Yu Ruohai, a senior lawyer of Hong Kong, applied for a ban on behalf of the Airport Administration and was successfully approved by the court. Once the prohibited order was posted within the airport, it was effective.
This is a temporary prohibition order. It refers to the court instructions that the court issued by the court to the court in which the parties issued by the party to the court after the parties were invaded in court to participate in the court hearing.Police can assist.In violation of the prohibition, the criminal sanctions will constitute the crime of contempt of the court.
At present, the Hong Kong Airport Administration has obtained a temporary ban on courts, and it is forbidden for anyone to obstruct or interfere with the normal use of Hong Kong International Airport in illegal and intentionally.No one can attend or participate in any demonstration, protests or public activities held outside the airport administration at the airport.The ban can also be used for other occasions, but the court must be approved by the court, which depends on whether it can persuade the judge for exact reasons.In the past, during the illegal occupation, the court also issued a ban order to prohibit the occupation of Mong Kok's specific areas.
About foreign judges
It is inevitable that when people are exploring Hong Kong bail issues or the Hong Kong judicial system, they will naturally think of the issue of foreign judges in Hong Kong;(Basic Law) Relevant regulations lack enough understanding.
First, how to define foreign judges?There may be different standards.The conferences of the Hong Kong Local Judiciary Personnel Association stipulate that as long as the judges recruit with local treatment or have close contact with Hong Kong, they are regarded as local judges regardless of their nationality.Of course, if the nationality alone is based on the nationality, the judge holding a foreign nationality is collectively referred to as a foreign judge, and it is also to explore the needs of the issue.
Secondly, the Basic Law clearly allows the existence of foreign judges.Article 82 of the Basic Law stipulates that the final judicial trial of Hong Kong belongs to the Court of Final Appeal. The Court of Final Appeal may invite judges in other areas of ordinary laws to participate in the trial.Article 92 of the Basic Law stipulates that Hong Kong judges and other judicial personnel can choose according to their judicial and professional.In other words, foreign judges of the Court of Final Appeal are hired as needed, and other courts and judicial talents can be hired for a long time.Unless the basic law is amended, this situation is legal within 50 years.Foreign judges are allowed in Hong Kong, which is closely related to the policy of one country and two systems. Because of the different policies of Hong Kong and the Mainland, the general law system is continued after the return. Foreign judges may be helpful for the continuation and development of the general law system in Hong Kong.Of course, the basic law allows foreign judges to exist in Hong Kong, which does not mean that this system is impeccable.
Foreign judges are very professional and admirable in dealing with ordinary criminal cases.Examples that are allowed to exist in a country within a country are also available in Singapore.One of the biggest features of the Singapore International Commercial Court is to allow the chief judges to designate foreigners as judges. In addition to the local judge groups of 21 people, there are also international judges. Most of these people come from the Commonwealth countries and are former chief judges.Or the idol -level and star -level judges from the British and American system were hired as a member of the Singapore International Judge by Singapore.There are currently six judges from Britain, four in Australia, and one of the United States, Canada, Hong Kong, France, and Japan. It guarantees at least one foreign judge in all cases.These people have the same rights and obligations as the Singaporean judges and participate in the trial.(See Wang Jiangyu: The international and independence of the Singapore International Business Court) In contrast, foreign judges in Hong Kong have more trial permissions than foreign judges in Singapore: they not only trial civil and commercial cases, but also trial criminal cases (including involving involvedNational Security Case).Because the judge's judgment implements a few obedience to the majority system, the foreign lawA vote of officials is also crucial.In particular, the judgment of the Court of Final Appeal is important, because her judgment has become a binding law, and the change in some major policies in Hong Kong will have a profound impact.
Judging from the current situation, ordinary Hong Kong people still praise judicial independence. They also respect the court's judgment, and rarely have the case where the court's decision is not implemented.
Of course, the issues to be explored may be in cases involving national security (such as Hong Kong independence cases, or riots targeting Hong Kong independence).Foreign judges (including Hong Kong local judges) need to balance the rights of national interests and freedom of speech, and the right to rally.Because Article 104 of the Basic Law stipulates that whether it is the Chief Executive, the main officials, the members of the Executive Council, the Legislative Councilor, and the judges of the court, and other judicial officials, other judicial personnel must take an oath according to law.This means that whether it is a foreign or local judges, you must swore to loyalty to the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China and loyal to the Hong Kong Special Administrative Region of the People's Republic of China.The two systems.
Fortunately, the author also noticed that the courts in Hong Kong have realized the major negative impact of the crime of riots on the social order and economic development of Hong Kong.Serious punishment.I sincerely hope that young people will not take criminal acts as hero behaviors and embark on the road of no return.
The judgment of foreign judges should be objective and cannot be fully denied, but it can do the corresponding improvement.Of course, the localization of judges is one of the options, but as far as the provisions of the meeting mentioned earlier, localization does not solve the fundamental problem, and it is better to consider improving from other aspects.For example, the selection of foreign judges should be improved. Article 88 of the Basic Law stipulates that the judge of Hong Kong, according to the independent committee of the independent committee composed of the local judges, the legal community and other places, is appointed by the Chief Executive.The question is, should the operation of the independent committee increase the transparency?Should I conduct more detailed background investigations on candidates?How to play the consent of the Legislative Council's consent of the Foreign Judge of the Final Appeal?These can be further discussed.
