很少人注意到，辯方質疑政府選擇性檢控(註一)，要求永久擱置聆訊一段。高院法官區慶祥指“未能達到其舉證責任”，即辯方無法達到最起碼要求。
辯方在聆訊的最後一天提出永久擱置聆訊。其法律依據是政府“濫用司法程序，為的是達到制定有關司法程序以外的目的”(註二)。
代表律師的抗辯總括為(註三)：
1
法庭不應成為梁振英的政治工具；
2
其他議員也有玩嘢，為何偏偏選中他們；
3
政府沒有交代為何不起訴其他議員；
4
4.1
戴啟思陳詞，起訴是為了改變立會內的分組點票實力；
4.2
陳文敏陳詞，聆訊中途釋法在外加政治影印；
4.3
余若薇陳詞，選擇性起訴有不可告人秘密；
4.4
李柱銘綜合上述陳詞，指行政機構起訴立法機構並不尋常；
5
李柱銘陳詞，聆訊中途加入“嚴格形式和內容規定”本身足以證明濫用司法程序。
區慶祥不接納辯方陳詞，並遂一反駁 ─ With respect, the
Defendants’ principal basis for saying that the proceedings were brought for
political purposes is at best speculative and in any event does not hold out: (註四)。
但更為重要的是，提出“永久擱置聆訊”的理由有明確法律界限(註五)，其要求門檻很高，而且，在這裡，舉證的責任在辯方(註六)。“永久擱置聆訊”被批准的機會很低。
後記
辯方律師團隊的孤注一擲的最直接結果是，四位被DQ的議員負多數百萬律師費(對方的)。
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附錄
註一
被告人的擱置申請
46. 在聆訊的最後一日，被告人以濫用司法程序為原因申請永久擱置或撤銷此等針對他們的法律程序。他們指稱，原告人展開此等針對他們的法律程序，是出於原告人不可告人的政治考慮或是其他別有用心的目的。被告人聲稱，尤其明顯的是，在本屆立法會有其他候任議員也據稱用相同的態度和方式作出立法會誓言，但原告人沒有解釋為何沒有展開針對他們的取消資格法律程序。
47. 法庭考慮過各方其後呈交的書面陳詞後撤銷擱置申請，理由如下：
（a）法庭注意到，政府已早於2016年12月發出公告，說明展開此等法律程序的決定純粹是基於法律意見，包括獨立的大律師的法律意見，並沒有滲雜任何政治考慮。
（b）被告人指出，政府是有“政治動機”才只針對他們展開法律程序，而不向其他人士提出訴訟，目的是使到這些民主派人士喪失資格，從而摧毀民主派及其他非建制派在立法會地方選區議席的大多數比例。被告人亦呈述，在此情況下，一項恰當的推斷是，此等針對他們的法律程序只是因為政府屈服於不當的政治壓力所致。法庭認為此等指稱頂多只屬揣測，而且無論如何這結論是不合邏輯的，因為這個理論不能合理地解釋為何原告人選擇只是針對本案的四名被告人而不針對其他人，當該等其他人也可概括地視為“民主派”或非建制派。
（c）此外，案例強調，法律上有一項重要和清晰的區分，就是運用司法程序取得有利的判決，和不當地利用司法程序，從而為達到制定有關司法程序目的以外的目的。明顯地，原告人控告被告人，是有意圖使他們受到正式審判，從而尋求原告人所申索的濟助。就算取消被告人的資格可以達到司法之外的某些目的（雖然法庭並不接受此說法），這並不構成濫用司法程序，因為指稱的目的是要取得法律所容許的結果。
（d）當上述各點作為整體地衡量，被告人無法達到其舉證責任，以證明展開這些針對他們的法律程序是濫用司法程序，並是由於原告人為了達到別有用心的目的或政治動機而作出的。
註二
(1) An improper purpose is a purpose to use a
proceeding as a means of obtaining some advantage for which that proceeding is
not designed. It is the use of the
proceedings which must be examined and which may constitute an abuse of
process. The purposes which legal
proceedings are designed to serve are the protection or vindication of
particular rights or immunities, the maintenance or affection of particular
legal relationships and the imposition of particular legal penalties,
liabilities and obligations. The pursuit
of a legal remedy is not converted into an abuse of process merely by an
unworthy or ulterior motive.
註三
237. The Defendants’ submissions in support of the
stay applications are essentially these:
(1) It is an abuse of legal power and process
for political considerations: Judicial Review Handbook at paragraph 52.2. In particular, it is submitted that the court
should not allow its process to be used by the CE and the SJ to advance
sectional interests so that a political advantage is gained by selective
disqualification. Cf: Porter v Magill
[2002] 2 AC 357, at paragraph 19(5), per Lord Bingham.
(2) In the present context, there are many other
members-elect (“the Other Members-Elect”) who took the LegCo Oath on 12 October
2016 in similar ways, conducts and manner as the Defendants did, which ways, conducts and manner are now
subject to the Plaintiffs’ complaint in these proceedings for legal
non-compliance. In particular, a number
of the Other Members-Elect read out messages and slogans not related to the
oath before and after the oath itself.
Notwithstanding the close similarities in the way in which the Other
Members-Elect and the Defendants took the LegCo Oath, the Plaintiffs only
selectively brought the present disqualification proceedings against the
Defendants but not the Other Members-Elect.
(3) The Plaintiffs have not explained why they
have not brought similar proceedings against the Other Members Elect. In the circumstances, in particular given the
Defendants’ identification of the Other Members-Elect, the court can infer that
the Government has no good reason if she gives no explanation for taking a
particular course if all the circumstances of the case seem to put in favour of
taking a certain course. Cf: Padfield v
Minister of Agriculture, Fisheries and Food [1968] AC 997 at 1053G-1054A, per
Lord Pearce.
(4) In this respect:
(a) Mr Law further says it is obvious in these
circumstances, in particular in the lack of any explanations from the
Government, that the Government is “politically motivated” in only bringing the
proceedings against the Defendants but not the others so as to disqualify so
many pro democrats as would destroy their majority in the LegCo in Geographical
Constituencies. In support, Mr Law has
filed his 3rd affirmation disposing that
the pro-democrats and non-establishment camp have a majority of 17:16 in the
Geographical Constituencies, and that if he, Mr Leung, Ms Lau (excluding Mr Yiu
who belongs to the functional constituency) are also disqualified, the
pro-democracy and non-establishment camp would lose their 17:16 majority in the
Geographical Constituency.
(b) Ms Lau asserts it is inevitable to infer in
the absence of an explanation that these proceedings were brought against only
the four Defendants for an improper purpose, namely succumbing to undue
political pressure. She says the inference
of political pressure is fortified in light of the fact that the Interpretation
was issued in the middle of the judicial trial of the disqualification
proceedings which eventually resulted in the CFI Judgment, and the Explanations
that accompanied the Interpretation have gone far beyond the Interpretation.
(c) Mr Yiu says that the Plaintiffs selectively
targeted the four Defendants for purposes they (the CE and the SJ) do not want
to make clear to the public. Mr Yiu
further says the 2nd affirmation of Ms Wong Hwa Yih in fact shows that the
Plaintiffs simply could not come up with any good reasons that they could
disclose to say why only the Defendants have been targeted for
disqualification, as the affirmation (including the press statements) contains
nothing but bare denials and self serving assertions that they have relied on
legal advice to sue only the Defendants.
It must be noted (as emphasized by all the Defendants in their
submissions) that the Plaintiffs have chosen not to waive the legal privilege
(which they could have) and disclose the purported legal advice to support the
explanations.
(d) Mr Leung effectively agrees and adopts the
above submissions of the other Defendants and says, in the absence of an
explanation, the Plaintiffs’ decision to sue only the four Defendants was
tainted with political considerations or arbitrary. He further submits that this is particularly
so as these proceedings are “unique” in that the executive (the CE in his personal
capacity) and the SJ are suing the legislature viz the President and the Clerk
and the four elected members of the LegCo.
(5) Mr Leung also argues that the Plaintiffs
have extended their case in the hearing against the Defendants (which has not
been set out in the Forms 86 and the Originating Summonses) by submitting that
messages added before, during or after the reading of the LegCo Oath form part
of the oath itself, amounting to a contravention of Exact Form and Content
Requirement. This by itself is an abuse
of process.
註四
253. With respect, the Defendants’ principal basis
for saying that the proceedings were brought for political purposes is at best
speculative and in any event does not hold out:
(1) Mr Law’s above contention (which is shared
by Mr Leung and Ms Lau) on political motivation is, as submitted by Mr Yu, a
non sequitur. If there was indeed a
political motive in seeking disqualification of pro-democrats in order to
secure a pro-establishment majority in the Geographic Constituency as alleged,
Mr Law’s theory does not explain why the Plaintiffs would have to be selective
and only proceeded against the four Defendants, but not the Other
Members-Elect, who could generally also be regarded belonging to the
“pro-democrats” and “non-establishment” camp.
The theory also could not explain why the Plaintiffs at the same time
also commenced the proceedings against Mr Yiu who, as pointed by Mr Law
himself, belongs to the functional constituency.
(2) The same applies to Ms Lau’s allegation that
the proceedings were issued under “political pressure”. If this were correct, it is difficult to
understand why the same alleged “political pressure” would not have caused the
Plaintiffs to seek to disqualify the Other Members-Elect as well.
(3) It must be remembered that the burden is on
Defendants to prove abuse. Mere
speculation based on a prima facie logically defective theory does not suffice.
(4) Mr Yiu’s purely speculative, vague and
unsupported submission that “it appears the Plaintiffs selectively targeted the
four Defendants for purposes they (the CE and the SJ) do not want to make clear
to the public” also simply could not discharge the burden to show abuse.
(5) Mr Leung’s additional submission to say that
the proceedings are brought for political considerations because it is “unique”
for the executive (being the CE and the SJ) to sue the legislative (viz the
President and the four elected members-elect) is, with the greatest respect,
without any substance. As a matter of
proper legal procedures and rights, the CE and the SJ are the proper parties to
bring these proceedings concerning the constitutional compliance by
members-elect of the LegCo to take the LegCo Oath. See: the CA Judgment, paragraphs 48 - 50, per
Cheung CJHC.
(6) Moreover, as emphasized by Poon JA in the CA
Judgment at paragraph 87, elected members-elect of the LegCo must also comply
with the constitutional requirements provided in the BL. When disputes arise as to whether individual
LegCo members have breached the constitutional requirements mandated in the BL,
the court has a duty to adjudicate and rule on the matters, and in so doing,
the court does not seek to undermine the authority or function of the LegCo or
diminish the mandate that the electors gave to the LegCo members
concerned. Rather, the court ensures
that the LegCo or the members concerned exercise their powers lawfully in
accordance with the constitutional requirements to maintain the integrity of
the LegCo and the confidence of the public in the institution.
(7) Hence, the mere fact that disqualification
proceedings are commenced by the CE and the SJ (as the proper parties) against
elected members-elect of the LegCo and the President or the Clerk in relation
to disputes concerning the important question of constitutional compliance in
taking the LegCo Oath and in assuming the Office cannot by itself be said to be
political in nature.
註五
240. Moreover, in considering an application for
permanent stay based on using the proceedings for an improper purpose, the law
draws a clear and important distinction based on the use of the process for
obtaining judgment against the misuse of the process for a predominant purpose
other than for which the proceedings are designed. This important distinction has been explained
and illustrated in the following authorities.
241. Mason CJ, Dawson, Toohey and McHugh JJ in
Williams v Spautz, supra, at 526 gave the example as follows:
“Thus, to take an
example mentioned in argument, an alderman prosecutes another alderman who is a
political opponent for failure to disclose a relevant pecuniary interest when
voting to approve a contract, intending to secure the opponent's conviction so
that he or she will then be disqualified from office as an alderman by reason
of that conviction, pursuant to local government legislation regulating the
holding of such offices. The ultimate purpose of bringing about
disqualification is not within the scope of the criminal process instituted by
the prosecutor. But the immediate purpose of the prosecutor is within that
scope. And the existence of the ultimate purpose cannot constitute an abuse of
process when that purpose is to bring about a result for which the law provides
in the event that the proceedings terminate in the prosecutor's favour.”
242. Similarly, Lord Wilson JSC and Sumption JSC respectively
explained this in Crawford Adjusters (Cayman) Ltd, supra, at paragraphs 63 and
149:
註六
(3) It must be remembered that the burden is on
Defendants to prove abuse. Mere
speculation based on a prima facie logically defective theory does not suffice
(2) The onus of proving an abuse in any given
case rests upon the party alleging abuse.
That onus is a heavy one.
239. As submitted by Mr Yu SC for the Plaintiffs,
the burden on proving an abuse is on the Defendants, which burden is a heavy
one, and the power to grant a permanent stay is one only to be exercised in the
most exceptional circumstances: Williams v Spautz (1992) 174 CLR 509 at 529;
Fox v Attorney-General [2002] NZLR 62 at 71.
Hence, it has been observed by Sumption JSC in Crawford Adjusters
(Cayman) Ltd v Sagicor General Insurance (Cayman) Ltd [2014] AC 366 at paragraph
149 that such cases are extremely rare.
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