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張秀賢傘運九子案罪成之陳情書
(隨後附上英文版本 Please scroll down for the English version.)
法官閣下:
「也許很多老練的人會說我們只有理想,不求實際,但假若學生也變得世故,又有誰可以單純的為著理想,努力為社會帶來改變?」
「我們相信,堅持真普選,建設公平政制,是這時代賦予我們的責任。我們避無可避,亦退無可退。面對時代的挑戰,我們選擇毅然面對。」
在此刻,又回想起2014年九月,我在中大開學禮時向中大同學所說的開學辭。在庭上出席審訊的四星期,看到控方和其他辯方代表所播放的片段,又令人憶起五年前的種種。
參與緣起
當年三月,內閣「澄」獲得3431票,即近八成信任票當選第四十四屆中大學生會幹事會。當年參選,我們向中大同學提出政綱:只接受沒有篩選和只有合理門檻的選舉設計。我們也承諾,假如最終政改方案不符合基本標準,任內會全力推動、宣揚、積極參與和協助籌辦佔中運動。後來種種,其實都是實踐競選學生會時候,對中大同學的莊嚴承諾。
雨傘運動以「罷課不罷學」作為前奏,我們不上課,但一直學習民主理論;那星期以重奪公民廣場作結,學生縱身躍進公民廣場,換來卻是警察圍堵與多條罪名。當晚,抗爭者除了渴望爭取民主,更多人卻是高呼「保護學生」,只因為學生單純為理想而行,冀盼爭取更好的將來。
其實,香港人在爭取民主的路上跟學生一樣,在跌跌碰碰中學習,卻又單純不為自身利益。傘運初期,參與者買物資,自行分類垃圾,甚至設立自修室供學生溫習。大家總是守望相助,不計回報,畫面都在腦海揮之不去,令人感動。
分歧迷失
79天的雨傘運動,估計超過一百萬港人參與,成為歷來最大規模的民主抗爭。我們堅持和平、非暴力原則,堅守行動底線爭取民主政制。可是,香港政府無視民意,北京政府堅持 不義的「八三一方案」,最終使整場運動無功而還。
雖然在運動當中,我們看到許多觸動人心的片段,但抗爭曠日持久,矛盾積累就使分歧變成參與者之間的一道道裂縫。到佔領後期,或許我們都感到迷失、不安,不知運動未來如何是好。因為分歧,所以互相猜疑;因為誤解,所以互不信任;因為敵視,所以衝突漸生。昨天的因,今天的果,部分佔領者不滿我們的決策,出現「拆大台」等事件,溝通問題為日後更大的政治路線紛爭埋下伏線,延續至今。
雨傘運動落幕,民主普選尚未實現,我們卻為了政治路線的分野而互相仇視,甚至成為出言傷害,使人與人之間的傷口更難癒合。候選人和議員被DQ、旺角案,大家面對政權打壓,參選、投票、行動無用,無力感蓋過一切。幾乎所有人都感到迷失,不知道可以做甚麼才可以改變當下。
回歸初心
人非聖人,不可能所有人都心無仇恨。此刻說要放下過往分歧,不再爭吵,同樣並沒可能。我只希望當初走在同一條路上的人,不要越走越遠;未來的日子也許難捱,但讓我們記得最初無私奉獻的美好,努力修補彼此關係,理解各自想法與難處;唯有用寬容、溝通取代排斥、仇恨,回歸初心,我們才能走得更遠。
我還記得當天開學辭的這句:「我們所享受的,正正是前人選擇抗爭的成果;香港未來命運,在乎我們的選擇。」
當日的學生,今日都已長大成人,有人可能變得世故;然而,我知道大家仍舊記得初衷:共同決定自己的未來。即使我在五年前已知道,今天將會身處法庭的被告欄,為了這小城的未來,我還是會堅持最初的信念。跟戰友一起參與雨傘運動,我與有榮焉;縱使面對罪成刑責,我也會不亢不卑。
面對判決,大家可以傷心,可以難過。可是悲痛過後,大家仍要努力自強,化成推動力守護初心,帶著社會繼續前行。
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Your Honour,
“Perhaps pragmatists will say that we only talk about ideals and never rationalise on them. But if students were all worldly and tactful, who would be left to wholeheartedly pursue ideals and strive to bring changes to our society?”
“We believe we have to deal with the problems our historical moment proposes – the burden of our time. The burden that our time confers upon us is to insist on the implementation of genuine universal suffrage and to build a fair and just political system. It is impossible for us to escape or retreat from such attendant responsibility. We choose to face up to these challenges of our time.”
At this moment, I yet again recall the inauguration speech I gave to my fellow students at the Chinese University of Hong Kong Inauguration Ceremony back in September 2014. During the 4-week trial in Court, the recordings played by both the Prosecution and the Defence also sent me down the memory lane of everything that has happened 5 years ago.
The Beginning
In March 2014, our Cabinet “Claritas” received a total of 3431 votes, which was equivalent to almost 80% of the total number of votes of confidence, and was officially elected as the 44th Executive Committee of the Student Union of the Chinese University of Hong Kong.
When we were campaigning for the election, we published our political platform for our fellow students: we would only accept a form of universal suffrage that had a reasonable threshold and not one that precluded any screening of candidates. We also promised that, if the final constitutional reform proposal did not meet these basic standards, we would during our term of office exert all efforts to promote, propagate, actively participate and facilitate the organisation of the Occupy Central Movement. The subsequent events all took place in fulfillment of these solemn promises we had made to our fellow CUHK students during our Student Union election campaign.
“Boycott Classes, Not Education” was the precursor of the Umbrella Movement. Although we did not attend classes, we learned and educated ourselves on democratic theories. That week ended with the recapture of the Civic Square. Students leaped faithfully into the Civic Square, but what they had exchanged in return were a siege by policemen and numerous criminal charges. That night, protestors not only desired to fight for democracy, many more times they were calling upon authorities to “protect the students”, because students were simply acting upon their idealistic pursuits, hoping to secure a better future for all.
All Hong Kong citizens and students are actually just birds of the same feather on this tortuous road to democracy – we have to learn from our bumps and battle scars, yet our motives are pure and selfless. At the early stages of the Umbrella Movement, participants generously distribute resources, tidily sort their rubbish and even set up self-study areas for students to revise. They were always reaching out and helping those around them without expecting anything in return – these touching scenes have persisted in my mind ever since.
Divided and Lost
It was estimated that over one million people in Hong Kong participated in the 79-day Umbrella Movement, making it the largest scale democratic protest in this city’s history. We insisted to uphold the peaceful and non-violent principle, standing firm on the bottom line of our action in our quest for democracy. Nevertheless, the Hong Kong Government completely disregarded the clear calls of the public, while the Beijing Government hung onto the unjust “831 Proposal”, eventually leading to the ineffectuality of the Movement.
Although I have witnessed countless heart-warming moments throughout the Movement, as our protest became protracted, conflicts accumulated and turned participants’ differences into splits. Towards the end of the Occupy Movement, some of us perhaps felt lost, uneasy and uncertain about the Movement’s fate. As there were divided views, there were doubts. As there were misunderstandings, there were mistrusts. As there was hostility, confrontations gradually emerged. The fruits of today are the seeds of yesterday – since some participants were discontented with our decisions, incidents such as “tearing down the big stage” occurred. Communication problems paved the way for more serious disagreements regarding our city’s political road map, which persisted until this day.
The curtains of the Umbrella Movement have been long drawn. We have yet to attain genuine universal suffrage. Yet, we harbour animosity towards each other due to divergence in political stances; we even vocally attack each other, making the wounds among us even more difficult to heal. In the face of recent events such as the disqualification of Legislative Council members and candidates, the Mong Kok Case and different kinds of political oppression, our sense of helplessness took over. Actions aiming to bring about systematic changes, including participation in elections, voting and engagement in the political discourse, were reduced to futile efforts. Pretty much everyone feels lost and unsure of what he could do to effect meaningful changes in this day and age.
Tracing Back to the Original Intention
Human beings are no saints. It is impossible that we do not feel any antipathy towards others. It is just as impossible to tell people to let go of their differences and to not fight each other anymore. My only wish is that people who started on the same path will not grow any further apart. The days to come may be very difficult, but let us not forget about the beauty of our selfless sacrifice at the start. We should work hard on repairing relationships with each other and understanding each other’s thoughts and difficulties. We can only go further if we replace rejection and antipathy with tolerance and communication. We can only go further if we hold true to our original intention.
I still remember this phrase from my inauguration speech: “what we get to enjoy today are the outcomes from our forebears’ choice to protest; the future of Hong Kong depends on our very own choice.”
The students then are now all grown up. Some of them might have become more seasoned and tactful. Nonetheless, I know that we all remember our original intention: together we choose our own destiny. I knew as early as five years ago that I would eventually find myself at the defendant’s dock today, but for our small yet precious city’s future, I remain true to my originally intention. I am incredibly honoured and privilege to be able to participate in the Umbrella Movement with my fellow comrades. In spite of criminal sanctions, I will remain neither condescending nor servile.
With the impending sentence, I know many of you would feel sorrowful and miserable. But when it is all over, I hope that you will all remain resilient, harness your feelings and transmute that energy into a positive force that safeguards our originally intention. I count on you to continue leading our society forward.
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全文:
http://m.mingpao.com/ins/instantnews/web_tc/article/20170220/s00001/1487583133001
(報章轉載錯漏不少,敬請留意)
I have known Mr Donald Tsang since 2005. As Secretary for Justice (SJ), I worked closely with Donald as Chief Executive (CE) between October 2005 and June 2012. In addition to official dealings, I consider Donald to be a good friend and someone I admire for his dedication to public service.
Donald's over 40 years of service and contribution to Hong Kong is a matter of public record. Others will speak to his key role in helping Hong Kong weather through stormy financial crises. Here I would refer to his significant contributions to the public based on my own personal experience particularly in the area of the rule of law in Hong Kong.
During my 7-year tenure as SJ, I had on numerous occasions tendered legal advice to Donald as CE. He would sometimes debate with me and test the basis of the advice; but he has never acted against such legal advice. This in itself is a remarkable attribute as the head of the HKSAR.
Donald always said to me the Governors he previously worked with, however headstrong, would always abide by the legal advice of the Attorney General, and it is important that the CE of the HKSAR should stay that way.
Congo Case
One of the most important tasks, if not the most important task, of the CE of HKSAR is to faithfully and effectively implement the principle of “one country, two systems.” The power of the Standing Committee of the National People’s Congress (NPCSC) to interpret the Basic Law and its exercise have always been considered a major challenge to the post-1997 constitutional order.
During my tenure as SJ, the NPCSC interpreted the Basic Law once in 2011. That was upon the reference by the Court of Final Appeal (CFA) on the question of state immunity. The issue in the case is whether the People’s Republic of China’s doctrine of absolute immunity (under which no foreign state can be sued in the court at all) should be followed in Hong Kong. Prior to 1997, Hong Kong’s common law provided for restrictive immunity, where foreign states could be sued if the dispute arouse out of commercial transactions.
The HKSAR Government lost in the Court of First Instance and in the Court of Appeal. If the Government were to lose again in the CFA, it could stir up serious political and economic repercussions for China particularly vis-à-vis her African friends. National interest of China was at stake. The Ministry of Foreign Affairs was understandably very concerned.
Immense political pressure mounted. There were suggestions that Beijing should not take any risk but should consider taking more definitive measures such as an interpretation of the Basic Law before the appeal was heard. If that were to happen, on the eve of the appeal hearing, the damage to judicial independence would not be less than an overriding post-judgment interpretation.
I cannot go into further details for confidentiality reasons. However, I can testify that Donald has been solid and staunch in endorsing my stance against any extra-judicial measure in view of its adverse impact on the rule of law.
Owing in no small part to Donald’s endorsement and resolve, the Central People’s Government (CPG) was content to trust the HKSAR Government and the CFA, and to leave the appeal to be heard by the highest court, despite grave risk and many conflicting views given by others. At the end, the Government won in the CFA by a majority of 3 to 2. The Court further referred the relevant Basic Law provisions to Beijing for interpretation, as required under Article 158 of the Basic Law, before pronouncing the final judgment. A huge constitutional crisis was warded off. The rule of law had prevailed.
Over this difficult episode, I know Donald had been under tremendous pressure. I remember often times he suffered from acute acid reflux before and after major discussions. Yet he stood firm throughout.
As CE, Donald had faithfully discharged the indispensable trust reposed by both the CPG and by Hong Kong. He had the courage to stand by what he believes to be right and the ability to address mutual concerns and to strengthen mutual understanding. He had performed well the crucial bridging role in the two-way process under “one country, two systems” at critical times.
Constitutional Reform
There was another important event in which Donald’s principled stance had been vital in achieving a favourable result for Hong Kong: constitutional reform.
Although no change could be made of the imminent 2017 CE election method due to the set-backs in 2016, during Donald’s tenure as CE, he has been made significant contributions toward moving Hong Kong closer to universal suffrage.
The first landmark was achieved, with tremendous efforts by the core team under Donald’s lead, when the NPCSC delivered its decision in December 2007 setting out “the timetable” and “road map” for universal suffrage in terms of the elections of CE and Legco.
Second, in 2010, the Government managed to secure Legco’s support to pass the 2012 constitutional reform package. Here, Donald had played a pivotal role, one perhaps not many are aware of.
Whether the 2012 reform package could be passed in 2010 was crucial to ensure “gradual and orderly progress” and that the next round (i.e. the intended goals of universal suffrage in electing CE in 2017) could be achieved.
In June 2010, the original government proposal was losing support and hope was vanishing for it to be passed at Legco. Time was running out. Whether to modify the package by incorporating a proposal of the Democratic Party (i.e. the additional 5 District Council Functional Constituency seats to be elected by over 3 million electorate, “the new DCFC election method”) appeared to be the lynchpin.
Without going into details again for confidentiality reasons, I can again testify that the make-or-break moment was when Donald made the timely and difficult decision to revise the package by incorporating the new DCFC election method. It was an agonizing decision for him as he had to override certain internal opposition and to risk personal credibility and trust before the CPG. As an insider, I know that decision was not a political manoeuvre but a selfless act for the sake of the long-term wellbeing of Hong Kong and the smooth transition toward universal suffrage.
Son of Hong Kong
Donald is truly a “son of Hong Kong” (香港仔). His genuine concern for the public good is most vividly demonstrated when Hong Kong was caught in crises of one kind of another.
Hong Kong went through attacks of avian flu and swine flu. Donald tirelessly headed the cross-bureau task forces and chaired long and intensive meetings. I remember more than once Donald being caught in very heated debates with colleagues, pushing them to the limit to mobilize maximum resources and manpower, in order to give the public maximum protection against these outbreaks. He would grill colleagues over thorny issues such as requisitioning hotels as places of quarantine, not satisfied with the usual civil service response of reluctance, as lives of many were at stake.
Over the Manila hostage incident in August 2010, Donald vigorously pressed the President of the Philippines for full investigation, joining the victims’ families and the rest of Hong Kong to cry for justice, although his action raised eyebrows as foreign affairs strictly is a matter of the CPG under Article 13 of the Basic Law.
Donald had a strong concern for young people. During my tenure, exceptionally I was commissioned to chair a Steering Committee to combat drug abuse by youth. The public might not realize this initiative in fact came from Donald. He was deeply concerned and alarmed by the reports reflecting the seriousness of the problem. He was determined to tackle the problem pro-actively. The Steering Committee was unprecedented, involving concerted and strategic efforts of different departments and bureaus. More importantly, Donald was instrumental in putting in substantial and sustainable resources to strengthen the efforts. The figures of reported drug abusers, particularly among young abusers, have seen significant decline in the past few years.
Other contributions on the rule of law
There was no shortage of controversial cases involving judicial reviews and fundamental human rights. Amidst other voices and political pressure, Donald had fully taken on board the legal position that the Government has a positive duty to protect such rights, including taking reasonable and appropriate measures to enable lawful demonstrations to take place peacefully.
Further, Donald also readily took on my advice regarding procedural fairness in handling Government businesses with quasi-judicial element such as administrative appeals.
Donald truly believes in judicial independence. He assured me repeatedly the independent and internationally renowned Judiciary in the HKSAR is our pride and the cornerstone of our success. His personal commitment to this cause is manifested in his positive response in acceding to many recommendations of the Mason Report endorsed by the Standing Committee on Judicial Salaries and Conditions of Service.
Furthermore, his conviction on the importance of the law as Hong Kong’s assets was amply manifested in his exceptional support in the development of Hong Kong’s capacity as an international arbitration centre. Donald was very understanding on the need of expansion on this front and had put in personal efforts to make it happen. He was instrumental in enabling resources are in place to secure additional space for the Hong Kong International Arbitration Centre, and to procure the arbitration arm of the International Chamber of Commerce and the China International Economic and Trade Arbitration Commission to set up regional offices in Hong Kong.
A fair man who has given much to the public
Before joining the Government, I was an Election Committee member of the Legal Subsector elected on the same ticket as Ms Audrey Eu, Mr Alan Leong and other vocal barristers. In that capacity, in 2005, I first met Donald in an election forum where I questioned him harshly and criticised the Government’s earlier attitude over certain rule of law issues. Instead of bearing any grudge, in the late summer of 2005, Donald invited me to take up the post as SJ, assuring me that he would give me full support in upholding the rule of law in Hong Kong. That quality of fairness in Donald and that personal assurance to me have never slackened in the following 7 years in which I served in his cabinet.
As CE of the HKSAR, Donald had truly poured himself out. I strongly believe his significant contributions to Hong Kong in the past over 4 decades should be properly recognized.
Dated the 20th day of Februray 2017.
Wong Yan Lung SC
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