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【有關司法機構被官營媒體攻擊的聲明】

《人民日報》於2020年12月27日發表一篇抨擊香港法院在一宗涉及知名人士的案件中批准被告人保釋的評論文章，而文章發表的時候該獲准保釋的決定已進入上訴程序，我們就此表示嚴重關注。文章攻擊法院的判決，並形容《蘋果日報》創辦人黎智英「惡名昭彰，極度危險」，以及是「亂港禍首」。該報斷言在黎智英案中，不准保釋須是前設的常規，並要求司法機構「作出正確選擇」。文章又認為已經有足夠證據顯示黎智英已觸犯國安法第55條，該條訂明某些案件可以移交中國大陸審訊。當上訴委員會將於2020年12月31日就政府申請上訴許可召開聆訊，由國家政權控制和營運的報章刊登該篇評論文章，令人尤其擔心及被視為是試圖干預我們獨立的司法機關的程序公義。

作為致力守護長久以來珍而重之的法治和司法獨立的法律執業者，我們認為有責任提出以下關注，並以個人名義僅此聲明：

1、 官營媒體對司法機關毫無基礎的攻擊應當停止

在數位親建制人士及官方控制和營運的媒體 － 包括《文匯報》及《大公報》－ 要求「司法改革」及嘲諷「黃官」的日益壓力下，出現上述評論文章，我們深表憂慮。我們注意到司法機構自今年9月以來，已就對其日趨激烈的攻擊發表了四份聲明。

誠然，公眾有權討論及評論法院的裁決及其根據的事實及法律，惟討論不應流於憑空論斷、政治抹黑，或企圖向法院就某些案件的裁決施加壓力，否則公眾對司法機構的聲譽、專業和獨立勢必受到嚴重破壞。特別是《人民日報》刊登的評論文章，會被視為明顯地向法院將要審理的案件施加壓力，此舉可以是違反審理中的案件不應評論的原則，以及有損公平審訊。這些攻擊應當立即停止。

我們亦呼籲律政司採取行動，維護司法機構免受官方控制或營運的媒體作出毫無基礎和不實指控。正如高浩文法官在其判詞中指出，「在普通法司法管轄區，例如香港，傳統上法官和司法機構是不會公開地就針對其裁決和個人而作出的不公平和不適當的批評為自己辯護，而傳統上負責律政的官員則有責任反駁錯誤的指控，以維護司法機構和個別法官。」

2、 公平審訊及無罪假定

不論如何解讀，香港特區政府有法律責任保護每一位香港居民的基本權利不受侵犯，包括公平審訊的權利。我們質疑一旦涉嫌觸犯國安法第55條下，該等權利是否仍然受到保障。理由有兩方面：第一，我們質疑中國大陸在刑事審訊的程序中，對公平審訊是否有足夠的保障，那是由於中國尚未落實《公民與政治權利國際公約》，這亦是長久以來為人詬病。第二，12名香港居民於2020年12月28日在深圳鹽田法院受審的案件，沒有公開審訊，他們亦沒有權選擇他們委託的法律代表，令人質疑香港特區政府有否履行其法律責任。

上述關注，反映國安法無法為被告人提供足夠的基本人權保障，並在法律上存在很多不確定性。正如英國最高法院院長賓漢（Lord Bingham）在其著作《The Rule of Law》中說明，法治的核心是在一個地方裡，所有不論屬公共或私人的個人和機構，都必須受法律的約束及保障，而法律必須是公開和預先頒佈，以及由法院公開執行。因此，我們促請有關當局嚴格遵守法治原則，自我約束，以及謹慎運用國安法賦予的權力。

帝理邁
林洋鋐
彭皓昕
蔡頴德
黃耀初

2020年12月30日


【Statement on Continuous Attacks on the Judiciary and
Art. 55 of the National Security Law】

We note with grave concern that on 27 December 2020, l the People’s Daily published anr editorial piece criticizing a decision in respect of a bail application that is currently subject to an ongoing appeal. In attacking the judicial decisions in Apple Daily founder, Mr Jimmy Lai Chee-yin’s case, the People’s Daily has labelled him as a “notorious and extremely dangerous” and an “insurgent”. It added that the presumption against bail should be the norm in cases such as Lai’s and urged the judiciary to “make the right decision”. The commentary further claimed that there were sufficient grounds in Mr Lai’s case for invoking Article 55 of the National Security Law (NSL) - which allows certain cases to be transferred to Mainland China for trial. This type of commentary appearing in a newspaper run/controlled by the Central Government, when the Appeals Committee would soon be hearing the Hong Kong Government’s application for leave to appeal on 31 December 2020, is particularly worrying and borders on an attempt to interfere with the due administration of justice by Hong Kong’s independent judiciary.

We, the undersigned, in our personal capacity and as lawyers committed to safeguarding the Rule of Law and the independence of judiciary, we feel duty bound to draw attention to the following matters:

(1) Unfounded attacks against the judiciary by state-run/controlled media should cease

The above-mentioned commentary was made amid intensifying calls for “judicial reform” and deriding “yellow judges” from various pro-establishment figures and state-run/controlled media, including Wen Wei Po and Tai Kung Po. To that end, we note that the judiciary has had to issue a total of four statements since September this year, in light of the intensifying attacks mounted against it.

Whilst members of the public have the right to discuss and comment on court rulings for reasons grounded on fact or law, such discussion should not cross into bare assertions, imputations of political bias, or attempts to put pressure on the Judiciary to decide specific cases in a particular manner. Otherwise, public confidence in the integrity, professionalism and independence of the judiciary would be seriously undermined. Notably, the commentary published by People’s Daily, could be perceived as putting pressure on the judiciary to decide a pending case in a particular manner, which breaches the sub judice rule and could prejudice the accused’s right to a fair trial. These attacks should cease immediately.

We also call on the Secretary of Justice to take action to defend the Judiciary against unwarranted accusations led by state-run/controlled media. As Judge Russell Coleman noted in his judgment, “it has been the traditional view that Judges and the Judiciary do not speak out in defence of their decisions or to defend themselves against unfair and inappropriate criticism [...] in common law jurisdictions like Hong Kong, it was the tradition that the minister responsible for the administration of justice has the duty of defending the Judiciary or individual Judges against wrong accusations”.

(2) Concerns about fair trial and presumption of innocence

The Hong Kong Government has the legal obligation to protect any Hong Kong residents, whose rendition is sought, from violation of his/her fundamental and non-derogable rights, including the right to fair trial. We question whether such rights can be guaranteed upon invoking of Article 55 of the NSL. The reason is two-folded. First, we question whether China has adequate protection on the right to fair trial during the criminal process, as mainland China has not ratified the International Convention on Civil and Political Rights (ICCPR) and has been long criticised on such. Second, the fact that the 12 Hong Kong residents who stood trial at Shenzhen Yantian People’s Court on 28 December 2020 were denied the right to open trial and the right to appoint lawyers of their choice, casts considerable doubt on whether the Hong Kong Government can fulfil its legal obligation.

These concerns reflect that the NSL lacks adequate protections to safeguard an accused’s fundamental human rights and lacks legal certainty. As Lord Bingham wrote in his book, The Rule of Law, at the core of the rule of law is the notion “that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts”. Accordingly, we urge the authorities to uphold strict adherence to the rule of law and exercise restraint and caution in invoking its power under the NSL.
Mark Daly
Michelle Tsoi Wing Tak
Kenneth Lam
Davyd Wong
Janet Pang Ho Yan

Dated this 30 December 2020

ARDS

Do we need ARDS? This is a good question, isn’t it?
by Jean-Louis Vincent, Carlos Santacruz

After all, once we’ve made a diagnosis of ARDS (acute respiratory distress syndrome), what do we actually do with it? Does it really change the way we treat these patients? In Berlin, we revisited the criteria for ARDS diagnosis [1], but was this a major advance? Some years ago, one would have claimed that a diagnosis of ARDS indicated that a protective ventilation strategy using small tidal volumes was needed. However, we have now learned that this strategy is also of use in patients at risk of ARDS, and, even more, that it should be used in all ventilated patients, even for short periods of time during surgery [2]. Hence, because we also need to apply some positive end-expiratory pressure (PEEP) in severe hypoxemia, identification of ARDS does not mean different ventilator settings. Profound sedation, even with muscle relaxants, may be needed in all forms of severe respiratory failure, to improve tolerance to extreme respiratory conditions. Likewise, we have not been able to develop any specific pharmacologic intervention for ARDS. Admittedly, one could argue that the label ‘ARDS’ is merely a marker of severity, highlighting a need for special care and attention, but this is also the case for other causes of severe hypoxemia.
A key issue is the notoriously heterogeneous nature of ARDS, as a result of the variety of associated diseases and also the underlying pathological alterations. Autopsy studies have revealed that many patients do not have the typical diffuse alveolar damage (DAD) pattern; in our experience, only 50 % of patients with a clinical diagnosis of ARDS who underwent autopsy had DAD [3]. In a very recent autopsy study, Lorente et al. [4] reported that DAD was associated with greater degrees of respiratory and general disease severity, and with a greater likelihood of death from shock. Kao et al. [5] reported that only 56 % of 101 patients with a clinical diagnosis of ARDS who underwent open lung biopsy had DAD; a pathological finding of DAD was associated with increased hospital mortality in these patients. Likewise, in 83 patients with ARDS who underwent open lung biopsy, Guerin et al. [6] reported that DAD, present in 58 % of these patients, was associated with more severe ARDS.
The risk is that, once a diagnosis of ARDS is made and the label attached, we may focus our attention on fine tuning mechanical ventilation and perhaps using prone positioning in severe cases (when practically feasible). We may think we have a diagnosis, so that the search for an underlying cause is neglected. Yet ARDS is not a specific disease and control of the cause is of paramount importance to maximize a patient’s chances of survival.
According to the standard criteria [1], a diagnosis of ARDS requires the presence of an identified risk factor. However, there are cases where the clinical presentation is identical, although there is no identified risk factor. Common causes of such ‘pseudo-ARDS’ cases were recently reviewed by Guerin et al. [7]. In a recent article in Intensive Care Medicine, Gibelin and colleagues [8] reviewed their experience at two large centers in Paris and found that 50 (7.5 %) of 665 patients labeled as ARDS in fact had ‘pseudo-ARDS’, because they did not have an identified risk factor. These patients in general had less severe acute illness and a slower progression of their respiratory failure. As expected, cancer, pulmonary fibrosis and vasculitis represented the majority of these cases, and this may explain the generally higher mortality rates in these patients. Importantly, some of these ‘pseudo-ARDS’ cases had potentially reversible conditions, and the use of corticosteroids may have been beneficial. Indeed, one could consider that corticosteroids were indicated in most, if not all, these patients, and were actually administered in 17/17 survivors and 25/33 non-survivors. The authors propose that this strategy should be studied prospectively, but we contend that the evidence in support of such an approach is already strong enough. In any case, a prospective study of these rare cases would hardly be feasible.
The key message is that we must always try to find a cause for severe acute respiratory failure. Indeed, this is a concept that can be generalized to any severe disease, and is also true for other syndromes, like sepsis, shock or coma. Even brain death needs to have a defined cause. Finding the underlying cause of the severe respiratory failure can not only help guide treatment but may also lead to earlier discontinuation of life support if a non-reversible, terminal condition is identified.
http://bit.ly/1SlGYxr