Political situation
Written by: Lin Jian
2020-11-18 14:11
Last update date: 2020-11-18 14:11
Three former pro-democracy legislators Xu Zhifeng, Zhu Kaidi, and Chen Zhiquan were arrested by the police this morning (18th). During the review of the National Anthem Law, they threw objects with a strong smell in the conference hall, causing the meeting to be suspended.
The crimes involved in the three persons respectively included the offence of contempt under Section 17C of the Legislative Council (Powers and Privileges) Ordinance, and the offences against the person ordinance, "using or attempting to use harmful with the intent to cause harm to others, mental injury or irritation "Items" charge.
Among them, the Privilege Law has been repeatedly used to arrest and prosecute democratic members in parliamentary conflicts. As for the crime of "using harmful substances," it was the first time it was applied to (then) legislators.
Barrister Lu Weixiong said that there are two major factors in the use of the crime of "using harmful substances", including proving that the related objects are harmful to the human body and proving that the defendant has criminal intent to harm others. He believes that there is a lot of room for legal disputes in this case. , Even if prosecuted, it is not easy to be convicted.
▼Xu Zhifeng threw a stinky bomb on the second reading of the National Anthem on May 28▼
+24
+24
+24
According to section 23 of the Offences Against the Person Ordinance, Chapter 212 of the Laws of Hong Kong:
Administration of poison, etc. with intent to damage, etc.
Any person who intends to cause harm, mental injury or irritation to another person, illegally and maliciously administer or cause poison or other detrimental or harmful substances to the person, or cause the person to take poison or other detrimental or harmful substances Articles are guilty of crimes that can be tried on indictment and are punishable by imprisonment for 3 years.
The police detained demonstrators on the same charge last year
Checking the information, this regulation has been cited in the past, and most of them are non-political incidents. For example, foreign domestic helpers are scolded by employers for dissatisfaction, and “adding food” to food or drinking water to retaliate; some parents spray and kill teachers because they are dissatisfied with the school’s discipline of their children Worm water and so on.
One of the relatively political cases involved a male and female students who were found outside the Kwun Tong Police Station during the multi-district "anti-siege" operation during the PolyU siege on November 18 last year. A bottle of alcohol and a bottle of diluted edible vinegar were found. , The police later discovered from the WhatsApp conversation that they were suspected of planning to attack the police with related items, and the two conspired to use harmful substances to cause harm, mental injury or irritation.
The male defendant has pleaded guilty and was sentenced to a rehabilitation center, while the case of the female defendant in the same case continues to await trial.
This is the first time that a politician has been charged with relevant charges for his behavior in the legislature while serving as a member of the legislature.
It is important to note that according to the information of Xu Zhifeng’s social network, when the police arrested Xu, the police told him that the smelly water was poured during the third reading of the "National Anthem Law", which made the President of the Legislative Council Liang Junyan "irritable and mentally frustrated."
Lu Weixiong said that this case is quite controversial in law and it is not easy to be convicted.
(Profile picture)
Lu Weixiong: Depends on expert testimony, "If you can carry a stinky tofu, you will be guilty."
However, the definitions of "mental trauma" and "harmful substances" are not clearly defined. Whether the relevant regulations are easily cited or convicted is a cause for concern.
Barrister Lu Weixiong told the reporter of "Hong Kong 01" that first, the prosecution needs to rely on expert witnesses to prove that the items related to the case are harmful to the human body. "Don't tell me you can take a durian or stinky tofu into the parliament, or put it in front of people. A fart is a tricky person. Anyway, there is an odor. Just talk about the use of harmful substances. The court will have objective standards, not subjectively defined by the prosecution."
In addition, Lu Weixiong pointed out that in order for a criminal offence to be convicted, the defendant must prove that the defendant has the relevant criminal intent. Therefore, the charges of "intent to cause harm to others, mental injury or irritation" may be broadly defined on the surface, but the court may not necessarily accept the prosecution alone. Inferences from this aspect will also depend on objective factors such as the defendant’s defense and the background of the incident to determine whether this "intention" is valid.
In this case, Lu Weixiong believes that there will be considerable room for disputes.
Multi-pictures | Xu Zhifeng and other 3 former congressmen were arrested. Looking back on three waves of stinky bomb offensive, female congressmen are so stink
Zhu Kaidi and other three were arrested for spilling stinky water in violation of the privilege law.
Zhu Kaidi, Xu Zhifeng and Chen Zhiquan were arrested early in the morning in the "Smelly Water Incident" of the Legislative Council
Member of the Executive Council and Senior Counsel Tang Jiahua.
(Photo/Photo by Ou Jiale)
Tang Jiahua: You can judge whether you intend to hurt people in accordance with the objective environment
Senior Counsel Tang Jiahua, a member of the Executive Council, said that there are indeed some disputes over the definition of "mental trauma", but expert opinions can be quoted to confirm whether the parties are mentally impaired. Generally speaking, the definition of "mental trauma" is broader. In criminal cases, the burden of proof lies with the prosecution, and there must be no reasonable doubts.
As for "criminal intent," Tang Jiahua admits that it is not easy to prove, but there are guidelines to follow.
He pointed out that if the case goes to court, the judge will judge according to the objective circumstances at the time. In this case, "ordinary people" will feel that the defendant intends to harm people. "If the defendant's behavior is extreme, normal people will know it. It will cause harm to others, and even if the defendant knows that there will be such a consequence, he (the defendant) can't argue that he has no intention."
01News
Xu Zhifeng Zhu Kaidi Chen Zhiquan Liang Junyan Legislative Council