這是我第二篇寫小麗老師的文, 第一篇是評論她「公民抗命式」的無牌賣熟食: 給小麗老師寫一篇。這一篇討論她搞「桂林日市」究竟是否犯法。我沒有興趣針對她, 我相信她有很祟高的理想。小麗老師說她事前曾徵詢過律師意見, 「昨日以自由定價方式分享美食、物品，亦只派發預先製作的熟食，並非開爐加熱食物，事前曾諮詢律師意見，只使用街道三分之一位置，不構成阻街，認為沒有觸犯法例。」我假設這報導準確無誤, 憑此作為我評論的基礎。

以違法手段爭取小販發牌究竟是否行得通呢? 先看下在大原則方面法庭對小販要發牌經營的看法。在莊劍勇案, 終審法院常設法官陳兆愷這樣講:

2. Hawking is a fact of life in Hong Kong. For both social and legal reasons, it has become necessary to control and regulate such activity. The main control takes the form of a licensing system whereby only licensed persons are permitted to hawk at designated areas or at allocated places and subject to the conditions contained in the licence and to provisions set out in the governing statutes.

這講法我想沒有人會爭議, 爭議的只是應否放寬對小販發牌, 發牌的經濟效益及爭取發牌的手法。很明顯, 小麗老師明白以前以身試法做熟食小販的手段行不通, 所以這次諮詢法律意見。那麼, 這次「桂林日市」行動真的不違法嗎?

雖然自由定價方式出售食物或貨品, 未必不屬販賣行為, 但我不想花時間循這方面討論, 因為他們的舉動比較含糊, 難下定論。我只看阻街這一項。

佔用三份之一的街道算不算阻街呢? 先看法例:

章：	228	標題：	《簡易程序治罪條例》	憲報編號：
條：	4A	條文標題：	在公眾地方造成阻礙	版本日期：	30/06/1997

---

任何人無合法權限或解釋而陳列或留下，或導致陳列或留下任何物品或東西，而這些物品或東西對在公眾地方的人或車輛造成阻礙、不便或危害者，或可能對在公眾地方的人或車輛造成阻礙、不便或危害者，可處罰款$5000或監禁3個月。

法例包含兩個考慮因素, 一, 會不會造成阻礙, 二, 有沒有合法權限或解釋(lawful authority or excuse)。第一個元素是事實的裁斷, 視乎實際的情況, 譬如街道的闊度、人流、擺檔的數量、引起多少幫襯的人聚集、對其他道路使用者是否構成阻礙或不便等。桂林街是港鐵其中一個出口, 週末時候的深水埗, 毫無疑問會對其他道路使用者構成阻礙或不便。繼而要考慮擺檔的人有沒有合法權限或解釋。終審法院在楊美雲案對此有詳細討論:
39. Leaving aside for the moment the constitutional right to demonstrate, the offence created by s 4(28) has two main limbs: (i) there must be an act which directly or consequentially causes an obstruction to a public place; and (ii) that act must have been done without lawful authority or excuse. Although s 4(28) refers to conduct whereby an obstruction “may accrue”, this does not mean that the mere possibility of obstruction may be sufficient. As was pointed out by Stock JA (para 60), this simply means that where it is clear that obstruction will be caused, there is no need to wait until obstruction is actually caused before an offence is committed. For the purposes of considering the applicable authorities, obstructing the highway may be taken as the paradigm example of obstructing a public place, and no distinction needs to be drawn between the two.

40. So far as the first limb is concerned, the authorities indicate that any physical occupation of a road which interferes (to an extent which is more than de minimis) with the use of that road by others constitutes an obstruction: Nagy v Weston [1965] 1 All ER 78 at 80; Hirst and Agu v Chief Constable of West Yorkshire (1987) 85 Cr App R 143 at 151.

41. It is, however, the second limb which is of importance for present purposes. The fact that someone physically obstructs the highway or some public place does not in itself constitute an offence. It is only where this takes place without lawful authority or excuse that a breach of s 4(28) occurs. Accordingly, while the impeding of pedestrian access to the Liaison Office amounted to a physical obstruction for the purposes of s 4(28), the demonstrators would only be guilty of an offence under that section if they caused the obstruction without lawful excuse. The burden of proving that it was without lawful excuse lies on the prosecution: Hirst and Agu, at 150 and 151. One might add in parentheses that questions concerning lawful authority (relevant to cases involving statutory permits or licences for market and street traders, and the like: see Hirst and Agu, at 151) do not arise on this appeal.

42. It is clear that a person who creates an obstruction cannot be said to be acting without lawful excuse if his conduct involves a reasonable use of the highway or public place: Nagy v Weston, at 80; Hirst and Agu, at 150. The suggestion in some of the earlier reported cases that the public’s right to use the highway is limited to the right of passage and re-passage and acts incidental or ancillary thereto, is too narrow. It is now established that “......the public have the right to use the public highway for such reasonable and usual activities as are consistent with the general public’s primary right to use the highway for purposes of passage and repassage” (DPP v Jones [1999] 2 AC 240 at 255E-G per Lord Irvine of Lairg LC; see also Lord Clyde at 279F, and Lord Hutton at 290H).

43. Many examples of obstructions which may nevertheless constitute reasonable use of the highway can be found in the cases: two friends stopping for a chat when they happen to meet on the street, people handing out leaflets for commercial purposes, collecting money on a charity’s flag-day, stopping on the street to look into shop windows, to take a photograph or to make a sketch, and so forth. While other users of the road or footpath may be to some extent impeded by such conduct, the law looks upon such cases applying what Stock JA (citing Harper v G N Haden and Sons Limited [1933] 1 Ch. 298, 320) called “the law of give and take”. It seeks to strike a balance between possibly conflicting interests of different users of the highway based on a requirement of reasonableness. Whether any particular instance of obstruction goes beyond what is reasonable is a question of fact and degree depending on all the circumstances, including its extent and duration, the time and place where it occurs and the purpose for which it is done: Nagy v Weston, at 80, DPP v Jones,at 257E-G, 281E-F and 293B-C.

44. Where the obstruction in question results from a peaceful demonstration, a constitutionally protected right is introduced into the equation. In such cases, it is essential that the protection given by the Basic Law to that right is recognized and given substantial weight when assessing the reasonableness of the obstruction. While the interests of those exercising their right of passage along the highway obviously remain important, and while exercise of the right to demonstrate must not cause an obstruction exceeding the bounds of what is reasonable in the circumstances, such bounds must not be so narrowly defined as to devalue, or unduly impair the ability to exercise, the constitutional right.

對小麗老師這次的行為, 在考慮完實際阻街法律之外, 再要考慮憲法賦予的示威權。這次行動毫無疑問屬爭取對小販發牌的一種示威, 這種示威有沒有超越了合理的權限呢 (while exercise of the right to demonstrate must not cause an obstruction exceeding the bounds of what is reasonable in the circumstances)? 這是一個實際案情裁斷的問題, 要拿揑示威權利和構成罪行的平衡點。這種以擺16檔的宣示方式, 若被檢控, 未必能夠說服法庭是不超越合理權限的做法。以擺檔形式的和平示威, 也可以構成阻街罪, 不一定因為只佔用了三份一條街道, 在比例上較少而變得合理。不擺檔的和平示威, 也可以表達支持增發小販牌的訊息, 到其時不涉途人駐足或幫襯, 阻礙就減低和合理得多。