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短評:關於青年新政及香港民族黨年宵攤位被取消一事

2017/1/24 — 15:19

青年新政Facebook圖片

青年新政Facebook圖片

青年新政及香港民族黨於2017 年 1 月17 日及 18日,分別接獲食物環境衛生署(下稱「署方」)書面通知其維多利亞公園年宵攤位的特許協議已被署方單方面終止(下稱「通知」)。如果署方沒有確實的證據,證明於年宵攤位售賣或擺放的貨品/物品,以及進行的活動有可能危及公共秩序及安全;或證明持相反意見者,確實會作出危及公共秩序及安全的行為,署方的決定難免引起公眾質疑,並視之為政治打壓,實屬不智。

通知中指出,署方是根據該特許協議第10 條終止該特許協議,即署方有權在任何情況就整段/部份年宵期提早終止該特許協議。署方於通知中提及:

● 署方相信該兩個組織於其年宵攤位內將會售賣或擺放的貨品/物品,以及相關活動,與宣揚「港獨」的訊息有關;及

● 因參與年宵人士可能包括支持及反對「港獨」,在年宵內售賣或擺放與「港獨」有關的貨品/物品,以及進行相關活動很大機會危及公共秩序及安全。

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署方以保障公眾利益為由,終止與該兩個組織就年宵攤位簽訂的特許協議。

其後,青年新政於2017 年 1 月19 日在其 Facebook 專頁上載一段與署方職員郭先生的電話錄音。署方郭先生在電話錄音中承認青年新政的年宵攤位並未搭建,「現階段暫時」估計他們將於其年宵攤位內售賣或擺放的貨品/物品與宣揚「港獨」的訊息有關。

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法政匯思留意到:

● 該特許協議賦予食環署權利在任何情況就整段/部份年宵期提早終止該特許協議;及

● 署方在是次商業性質的年宵活動中行使了公權力,以保障公眾利益為由終止特許協議。

署方在行使其公權力時,須根據基本法下第二十七條保障香港市民言論、出版及結社的自由及履行第一百一十五條中香港特別行政區的責任,實行自由貿易政策,保障貨物、無形財產和資本的流動自由。

任何行政機關在行使其公權力並作出決定時,必須秉持公平及公正等法律原則。署方在作出相關的決定前,應先與有關人士協商解決方案、讓有關人士作出辯解及考慮採取其他措施保障市民安全。在作出任何決定後,署方亦應盡快公開相關資料,令有關人士及公眾明白其決定的理據。

每年出席年宵的市民或團體眾多,其中持有不同政見的實屬平常。單憑有不同意見人士出席或進行活動,而揣測任何攤位或活動會危及公共秩序及安全,實難以令公眾信服。如署方真的因為任何組織或團體的政見而終止其特許協議,實在是開了一個極壞的先例。

法政匯思
2017年1月24日

 

The Progressive Lawyers Group's Short Commentary in relation to the Termination of the Stalls of Youngspiration and the Hong Kong National Party in the Lunar New Year Fair

On 17 and 18 January 2017 respectively, Youngspiration and the Hong Kong National Party received a written notice (“the Notice”) from the Food and Environmental Hygiene Department (“the Department”), stating that it had terminated their franchise agreements for operating stalls at the Lunar New Year Fair in Victoria Park, Causeway Bay. If the Department does not have solid evidence to prove that the goods and articles placed or under sale at the stalls and the activities to be carried out at the stalls are likely to endanger the public order and safety, or prove that the dissidents will indeed endanger the public order and safety, this decision of the Department will be questioned by the public and be regarded as political oppression. The Department's decision is therefore unwise.

In the Notice, the Department relied on Clause 10 of the Franchise Agreement, namely that the Department has the right to early terminate the Franchise Agreement for the whole / the part of the period of the Lunar New Year Fair. In the Notice, the Department stated that:

- The Department believed that the two organisations are going to sell or place goods / articles in their respective stalls in the Lunar New Year Fair, and carry out related activities, promoting “the Independence of Hong Kong” or the like; and

- Since the participants of the Lunar New Year Fair may include those who support or oppose “Hong Kong independence”, selling or placing goods / articles relating to “Hong Kong independence ” or carrying out related activities in the Fair would very likely endanger public order and safety.

In asserting that it is protecting public interest, the Department terminated the Franchise Agreement with the two organisations for the Lunar New Year Fair.

Subsequently, Youngspiration uploaded an audio recording clip of a conversation with a staff member of the Department, Mr Kwok, on its Facebook Page on 9 January 2017. Mr Kwok in this telephone recording admitted that the stall of Youngspiration in the Lunar New Year Fair has not yet been erected. “At this stage”, the guess was that that they would sell or place goods / articles relating to the promotion of “Hong Kong independence”.

The Progressive Lawyers Group notes that:

- The Franchise Agreement empowers the Department at any time to terminate the Agreement in any event in respect of the whole / the part of the period of the Lunar New Year Fair.

- In terminating the Agreement, the Department exercised public power in this Lunar New Year Fair (which is of commercial nature), claiming that it was to protect the public interest.

In exercising its public power, the Department should, pursuant to Article 27 of the Basic Law, protect the freedom of speech, publication and association of Hong Kong residents, and to fulfill its responsibility as set out in Article 115 to pursue the policy of free trade and safeguard the free movement of goods, intangible assets and capital.

Any administrative bureau, in the exercise of its public power and decision making, must uphold the principles of fairness and justice. The Department, when reaching the relevant decision, should have firstly consulted the relevant stakeholders for a resolution, allowing the stakeholders to defend and to consider other ways to protect the safety of the public. After reaching any decisions, the Department should have also disclosed relevant information as soon as possible so that stakeholders and the public would understand the rationale of its decision.

Each year, there are a lot of citizens and organisations participating in the Lunar New Year Fair. It is normal to see different political views amongst them. It is difficult to convince the public that any stall or activity would endanger the public order or safety solely based on the attendance or activities of some dissidents. It is a terrible precedent if the Department terminates the Franchise Agreement for any particular political views of any party or organisation.

Progressive Lawyers Group
24 January 2017

 

原題為〈法政匯思短評:關於青年新政及香港民族黨年宵攤位被取消一事〉

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