HKSAR v. CHAN WAN YIU

[English Translation – 英譯本]

HCMA 272/2021

[2023] HKCFI 2644

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 272 OF 2021

(ON APPEAL FROM KCFS 500016/2020)

________________________

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REASONS FOR JUDGMENT

A.  Introduction

1.  The appellant was summonsed with the offence of “participating in a prohibited group gathering”, contrary to section 6(1)(a)  and (2)  of the Prevention and Control of Disease (Prohibition on Group Gathering)  Regulation, Cap 599G, Laws of Hong Kong (“the Regulation”). The appellant pleaded not guilty to the offence and was convicted by Mr Cheng Lim-chi of the Kowloon City Magistrates’ Court (“the magistrate”)  after trial and sentenced to 14 days’ imprisonment suspended for 18 months.

2.  The appellant appealed against the conviction and sentence.

3.  After the hearing, I dismissed the appellant’s appeal against the conviction and sentence. The reasons are as follows.

B.   Facts

4.  Mr Chan Ka Hin, Jeff, Public Prosecutor for the respondent at the trial, submitted a written submission dated 10 August 2021 containing a summary of the facts of the case and the magistrate’s findings, which I basically adopt.

B.1.   Prosecution case

5.  The prosecution called two witnesses.

6.  On 19 April 2020, the police 999 emergency call service received a complaint that some people were gathering on Sai Yeung Choi Street South near Nelson Street (“the scene”). Sergeant 58187 (“PW1”)  and police constable 26122 (“PW2”)  attended the scene with their colleagues to deal with the matter. Upon arrival, they alighted from a vehicle about 50 metres from the scene and walked towards the scene.[1]

7.  A number of people were gathering at the scene; some of them dispersed in different directions when the police officers arrived, but seven others (including four men and three women)  stayed behind. They were surrounding a table, with five of them sitting on round stools and two of them standing, all around the table. All seven persons were facing the table, sitting or standing. The appellant was one of those sitting on the round stools “chatting” with the others who were encircling the table. During PW1’s investigation, the appellant indicated that he was the person-in-charge of the “stall”, that he did not know any of the other people gathering there, and he was just distributing anti-epidemic supplies. Subsequently, the police issued a summons to the appellant for the offence of violating the group gathering ban.[2]

8.  The “stall” was in fact a bench with five round stools. At the material time, five persons were sitting on the round stools and two were standing next to the bench, each of them being very close to one another. PW2 prepared a sketch showing the situation at the material time (Exhibit P5), where the people were gathering around the bench and the approximate dimensions of the bench, namely about 1.5 metres by 0.5 metres[3].

9.  From Exhibit P3, the photos produced, one can see the size of the bench and the items placed on it.[4]

10.  The two prosecution witnesses pointed out that during the whole time of observation, they did not see any distribution of face masks or any other anti-epidemic supplies, nor did they see anyone collecting those items. On the table of the “stall”, apart from anti-epidemic supplies (that is, face masks, sprays and so on), there were in fact two donation boxes and other things, such as signs with slogans, “Hong Kong, add oil; Going up and down together; and Liberate Hong Kong, Revolution of our times”.[5]

B.2.  Defence case

11.  The appellant did not give evidence, nor did he call any witness. The defence argued that the group gathering was an exempted one under the provisions.

B.3.  Assessment and determination of evidence

12.  The magistrate had reminded himself of the applicable legal principles before assessing the evidence.[6]

13.  The magistrate found that both PW1 and PW2 were very clear and firm about their version of events. The magistrate was of the view that the observations of both PW1 and PW2 were in essence the same. They both clearly pointed out that they saw seven persons around the table when they arrived at the scene.[7]

14.  PW2 pointed out that at the material time, the scene was sufficiently lit, the flow of people was normal and his view was not obstructed. PW1 could see clearly that the appellant sat down and “chatted” with the people on either side of him, which sufficiently shows that his observation was not obstructed. The magistrate was certain about the accuracy of both witnesses’ observations.[8]

15.  The magistrate found the accounts of both PW1 and PW2 reasonable and sensible. They were firm when giving evidence in court, were not evasive or hesitant when answering questions, and were largely unshaken under cross-examination. Therefore, they certainly were honest and reliable witnesses. The magistrate thus accepted their evidence, that is, at the material time, there was a table at the scene and people were gathering there.  Some of them left the scene when they saw the police officers (including PW1 and PW2)  approaching. After those people had left, there were still seven others at the scene, gathering around the table, either standing or sitting, but all were facing the table, and the appellant was one of them, around the table. The appellant sat down and “chatted” with others (two among the seven). The situation there was not consistent with that of distributing face masks or anti-epidemic supplies, and nobody collected any face masks or anti-epidemic supplies, not to mention queuing up for them. During the investigation, the appellant claimed to be the person-in-charge of the “stall”. The size of the table was about 1.5 metres by 0.5 metres, and the total area formed by those surrounding the table, either sitting or standing, was roughly not more than 1.5 metres by 2.5 metres. The seven persons remaining there were all facing the table.[9]

16.  Taking into account the fact that seven persons were gathering there, facing the table, and not far apart from one another, the magistrate was certain that they could not have been sitting or standing there by chance, and that definitely they were gathering together for a purpose. As the scene was undoubtedly a public place and there were more than four persons in the gathering, the magistrate was certain that the seven persons were definitely in a group gathering.[10]

17.  The magistrate considered the fact that it took PW1 and PW2 about one minute to walk to the scene from where they got off the vehicle, and that during the time, they did not see anything like a long queue of people that would have been consistent with distribution or collection of face masks by anyone, or any distribution of face masks or other anti-epidemic supplies in due course.[11]

18.  The magistrate also noticed that there were indeed face masks and liquid sprays on the table at the “stall”, and accepted that they could constitute anti-epidemic supplies. However, they were placed on the table and could have been totally unrelated to distribution of anti-epidemic supplies. In fact, at the material time, the situation was obviously not consistent with that of distributing anti-epidemic supplies.[12]

19.  Having considered the evidence as a whole, the magistrate was of the view that, although there were quite a few items on the table that were obviously unrelated to epidemic prevention, such as the political propaganda items, there were also face masks and sprays and the appellant had told the police that he was the person-in-charge of the “stall” distributing anti-epidemic supplies. Accordingly, the magistrate agreed that, although the appellant chose not to give evidence, there was a sufficient basis for him to make a submission on exemption under the provisions.[13]

20.  Nevertheless, there was no substantive evidence in this case to support the claim that the appellant had distributed face masks or other anti-epidemic supplies at the scene. Likewise, there was no evidence to support the appellant’s case that he intended to distribute face masks or other anti-epidemic supplies at that time; for example, there was no promotional material indicating the approximate time on that evening when face masks or other anti-epidemic supplies would be distributed at the stall.[14]

21.  The magistrate, accepting the observations of the two prosecution witnesses and taking into account all the relevant circumstances, was certain that at the material time, the situation was not at all consistent with distribution of face masks or other anti-epidemic supplies.  Therefore, the magistrate was certain that the appellant could not have been distributing or intended to distribute face masks or other anti-epidemic supplies at that time. Accordingly, it was not an exempted situation. The magistrate did not believe the appellant’s explanation made to the police at that time, namely that he was distributing anti-epidemic supplies. He was certain that the gathering of the people there had nothing to do with distribution of anti-epidemic supplies.[15]

22.  Based on the above, the magistrate was certain that at the material time, there was a group of more than four persons gathering in a public place. He did not accept the alleged reason given by the appellant at the scene that the gathering was an exempted one. The magistrate was therefore certain that the people gathering there at the time were in breach of the “group gathering ban” by gathering around the table together. Hence, he found the appellant guilty of the offence.[16]

C. Grounds of appeal (against conviction)

23.  Mr Simon K.C. Ng for the appellant advanced three grounds of appeal.

(1)  The magistrate failed to consider or give due weight to the mode of operation of the “stall” in question;

(2)  It was not enough for the magistrate to merely consider the one-minute observation of the prosecution witnesses before coming to his finding that the purpose of the “stall” was not for distribution of anti-epidemic supplies; and

(3)  The magistrate failed to consider or give sufficient weight to the fact that when the appellant and the other people noticed the police approaching, the appellant chose to remain at the scene instead of leaving, and that there and then he explained to the police the purpose of the “stall”.

D. The appellant’s submission

24.  The appellant submitted that the facts of the present case were simple. The only issue in dispute was whether the appellant distributed anti-epidemic supplies at the scene, which made it an exempted situation under the provisions.

25.  According to the appellant, as it is an undisputable fact that at the material time there were anti-epidemic supplies on the table, there is a sufficient basis for a case of exempted situation under the provisions. It was in response to a complaint about a group gathering on Sai Yeung Choi Street South near Nelson Street (“the scene”)  that PW1, PW2 and their colleagues went over to the scene to handle the matter. As shown in the admitted facts (Exhibit P2)  and the fixed penalty notice (Exhibit P4), the appellant received P4 at 8:25 p.m. that evening. Therefore, it can be inferred that the “stall” had been there at the scene for quite some time. Be it a long or short time, the operation of the “stall” was in the form of a small-scale mobile hawker. There was no promotional material indicating the approximate time at which the face masks or other anti-epidemic supplies would be distributed that evening, which was understandable or not essential. The appellant submitted that it should suffice as long as someone was there to tell passers-by that there were anti-epidemic supplies for distribution.

26.  The magistrate accepted the evidence of PW1 and PW2 and was certain that at “the material time”, no one was distributing any supplies. The appellant pointed out that in paragraph 16 of the Statement of Findings and Reasons for Sentence, it was mentioned that “upon seeing the police approaching, some of the people left the scene”. Thus, it can be inferred that the appellant and others knew that there were police officers coming towards them and so some of them left. The appellant submitted that it was reasonable to stop distributing the supplies and to wait for the police officers to come over for investigations. It was just during the one-minute observation that the prosecution witnesses did not see any distribution of anti-epidemic supplies. Undoubtedly, they would have no idea whether any anti-epidemic supplies had been distributed before that “one minute”. The appellant contended that the magistrate’s finding, based on that “one-minute” observation, that the stall had nothing to do with distribution of anti-epidemic supplies was unsafe.

27.  The appellant also submitted that the purpose of the stall was not to be determined by reference to time.  For instance, suppose the stall had been there for two hours during which only five persons had come to collect the supplies. Would it mean that the time spent on waiting for people to collect the anti-epidemic supplies should not be counted as the time for distributing them, and therefore the exemption would not apply?

28.  The appellant submitted that the magistrate failed to take into consideration or give sufficient weight to the fact that when the police officers were on their way to the stall after alighting from the vehicle and some people were leaving, the appellant not only chose to remain at the scene, but also, upon enquiry, gave the explanation that he was distributing anti-epidemic supplies. The two things put together corroborate the appellant’s case that he was distributing anti-epidemic supplies at that time. The appellant contended that as the magistrate failed to give consideration or sufficient weight to this, his finding that the appellant’s explanation was incredible was misconceived.

29.  Regarding the appellant’s claim that he did not know the other people present at the scene while the prosecution witnesses found him “chatting” with them, the appellant submitted that it was not wrong for him to “chat” with others after distributing the anti-epidemic supplies.

E. The respondent’s reply

30.  In the appeal, Mr Chak Tsz On, James, Acting Senior Public Prosecutor for the respondent, adopted the written submissions of Mr Jeff Chan, Public Prosecutor. He also made supplemental written submissions on the present case.

31.  The respondent agreed with the magistrate’s analysis that given the distance among the seven persons at the time, they must have gathered together as a group. The respondent also agreed that as some anti-epidemic supplies were placed at the stall, there was a sufficient basis for the defence to make the submission of exemption under the provisions, namely that the group gathering at the material time was for imparting information or skills, or handling supplies or items, that are conducive to the prevention and control of the specified disease.

32.  The respondent submitted that the real key issue in this case is whether at the material time the purpose of the group gathering of the seven persons, including the appellant, was to distribute anti-epidemic supplies, rather than the reason for setting up the stall. Only when the purpose of the seven-person group gathering was genuinely maintaining the operation of the stall would the reason for setting up the stall become relevant to the present case. The respondent submitted that it could not be inferred from the mere fact that the seven persons were gathering near the stall and some anti-epidemic supplies were placed there that the purpose of their gathering must be maintaining the operation of the stall in order to handle supplies or items that were conducive to the prevention and control of the specified disease.

33.  The respondent submitted that, as depicted in the photos in P3, the stall was not large and the quantity of the supplies that could be placed there was naturally limited. In the limited space, the donation boxes and signs with political overtones already took up a significant part of it. The only items that could truly be categorized as anti-epidemic supplies were the face masks and sprays. In the circumstances, based simply on the scale of the stall and the quantity of anti-epidemic supplies, even assuming that the stall was genuinely set up for distribution of anti-epidemic supplies, obviously, it would not have required seven persons to jointly maintain its proper operation for distributing anti-epidemic supplies.

34.  The respondent contended that, under such circumstances, the evidence given by the two prosecution witnesses was of particular importance to understand the purpose of the gathering of the seven persons, including the appellant, at the material time. The seven persons at that time were sitting or standing around the table. PW1 testified that he could clearly see the appellant sitting down and “chatting” with the people on either side of him. The two prosecution witnesses testified that during their observation, no one distributed or collected any supplies.

35.  The respondent submitted that the evidence of the two prosecution witnesses clearly showed that the stall was idle at that time. The people participating in the gathering did not do anything relating to distributing anti-epidemic supplies. The contention that it required the joint effort of the seven persons to distribute anti-epidemic supplies was in itself unreasonable, and the observation by the prosecution witnesses was exactly corroborated by circumstantial evidence such as the size of the stall and the quantity of the anti-epidemic supplies. Accordingly, the purpose of the gathering of the seven persons, including the appellant, at the material time could not possibly be one of ensuring the smooth operation of the stall or distributing anti-epidemic supplies.

36.  Based on the evidence adduced by the prosecution and given the scale of the stall and its idle status at that time, the appellant really needed to explain how the work was divided among the seven persons gathering there in a joint effort to distribute the anti-epidemic supplies. Yet, the appellant elected not to testify and so there was no evidence to undermine the prosecution case. In the absence of credible evidence from the appellant, the magistrate was entitled to come to the finding that the gathering was totally unrelated to distribution of anti-epidemic supplies.

F.    My considerations

37.  Having considered the submissions of both parties, I totally agree with the respondent’s submissions. Given what the two prosecution witnesses saw, the size of the “stall”, the items placed on the bench (especially when the donation boxes and the signs with political overtones took up quite some space), and the fact that the anti-epidemic items on the table occupied very little space, it is hard to see why it would take seven persons to distribute such a small number of anti-epidemic items.

38.  It was submitted that it was not wrong for the appellant to “chat” with others after distributing the anti-epidemic supplies. I wholly disagree. The Regulation prohibited any group gathering in order to reduce the risk of spreading the disease. It was obviously against the purpose of the Regulation when the appellant gathered with others to “chat”.

39.  The appellant exercised his right not to give evidence. As he elected not to testify, there was no evidence to undermine the prosecution case.

40.  The magistrate is correct in finding that the gathering of the appellant and others was unrelated to distribution of the anti-epidemic supplies. I have made the same finding.

41.  I dismiss the appellant’s appeal against conviction.

G. Reasons for sentence

42.  The magistrate’s reasons for sentence as set out in his Statement of Findings and Reasons for Sentence are as follows:

“Sentence

28. During mitigation, the defendant’s background was not mentioned in particular. Therefore, I do not know much about him. I only know that the defendant has one conviction recorded some ten odd years ago which is of a different nature.

29. The fixed penalty for this kind of offence is originally $2,000. Yet, this ‘fixed’ penalty does not take into account what happened in the case; such as, the number of people in the gathering and its duration, or the background of the individual, like whether he is a first offender. If one intends to defend the proceedings after the ticket is issued, a hearing date will be fixed. Thereafter, even if one chooses to pay the fine before attending the court, the total amount of the fixed penalty will become a sum of $2,000 plus $2,000, together with the costs of $500. Similarly, this ‘fixed’ penalty does not take into account what happened in the case and the background of the individual. Thereafter, if one chooses to defend the proceedings, one will have to attend the court hearing. If one pleads guilty only after attending the court hearing, the penalty should be higher than the sum of $4,000 plus the costs of $500.

30. The defendant pleaded not guilty and the case went to trial. He clearly showed no remorse. Thus, I am of the view that it can no longer be dealt with by way of a fine plus costs.

31. The purpose of the legislation is to prevent transmission of the disease effectively. If everyone opts to disobey the Regulation and take part in group gatherings, there would inevitably be a much higher risk of spreading the disease, and we would be left with no clue when the epidemic could be put under control. Given the purpose of the legislation, the sentence shall take into account the number of persons and the duration of the gathering. In this case, it seemed that there were seven persons in the gathering, but actually some others (i.e. around six to eight)  had left when the police arrived. In other words, there were originally more than ten persons in the gathering.

32. The police officers had only observed for around one minute, so it seemed that the gathering did not last long. However, my view is that when the police officers saw so many people gathering there, it was unreasonable for them to continue the observation for a long time as it would increase the risk of spreading the disease. For that reason, the short duration does not serve as a strong mitigating factor.

33. In order to fight the epidemic effectively, it is essential that everyone complies with the legislation. The larger the number of people in the gathering and the longer the time the gathering lasts, the higher the risk would be. Although there was no substantive evidence to show that the gathering had led to the spread of the epidemic, the purpose of the legislation was in fact to prohibit unnecessary gatherings in order to reduce the risk of spreading the disease.

34. According to the information provided by the prosecution, offenders in other cases had previously been sentenced after trial to 14 days’ imprisonment suspended for 18 months for committing a similar offence.

35.   The defendant in this case has shown no remorse. I adopted a starting point of 14 days’ imprisonment. However, there was no evidence to show that this gathering had spread the epidemic, nor was there any evidence that the gathering lasted long, and the defendant had only one previous conviction, which took place quite a long time ago. On that basis, I decided to deal with the case by way of a suspended sentence, and I sentenced the defendant to 14 days’ imprisonment suspended for 18 months.”

H. Grounds of appeal

43.  The appellant agreed that he had one previous conviction, but emphasized that it was quite a long time ago and of a completely different nature.

44.  The appellant cited paragraph 34 of the magistrate’s Statement of Findings and Reasons for Sentence, which reads:

“According to the information provided by the prosecution, offenders in other cases had previously been sentenced after trial to 14 days’ imprisonment suspended for 18 months for committing a similar offence.”

He submitted that the magistrate adopted the same way of sentencing. Nevertheless, the appellant did not know the background of the people involved, the facts of the case, the number of people, etc.

45.  The appellant submitted that the facts of HKSAR v梁進奎[17] cited by the prosecution are different from those of the present case. That case involved a pub of 800 square feet. There were 24 people drinking and entertaining themselves. It was a confined space. The fact that they were drinking and entertaining themselves was more serious than that in the present case.

46.  It was emphasized that the background of the appellant was quite good and the facts of the case were not particularly serious. Moreover, not much of the prosecution evidence was challenged. In the premises, to drastically increase the punishment from a fixed penalty to one of a suspended sentence is manifestly excessive.

I. Reply from the respondent

47.  Under the provision, any person committing the offence of “participating in a prohibited group gathering” is liable on conviction to a fine at level 4 and to imprisonment for 6 months.

48.  In respect of the case of 梁進奎[18] cited by the respondent, the court pointed out that as the facts and background of the cases could be very different, it follows that the respective sentences would naturally be different and the court simply could not lay down any meaningful sentencing guideline.

49.  The respondent submitted that, as in the case of 梁進奎, the court did emphasize that the offence committed by the appellant was of a serious nature, for what he did would have a direct impact on or even destroy the sacrifices and efforts made by the public in an attempt to control the epidemic. It was pointed out in梁進奎that unless there was any special mitigating factor, an immediate custodial sentence would be an appropriate one for the offence of “failing to comply with the directions on prevention and control of disease issued by the Director of Food and (Environmental)  Hygiene”.

50.  Regarding the facts of 梁進奎, the court was of the view that the pub in question was not a large one but the 23 customers were not crammed together. They were spread out in a space of 800 square feet in separate rooms. At the material time, it was a remission period of COVID-19. The Hong Kong government allowed the pubs to resume business and only imposed restrictions on business hours. This shows that although 梁進奎was not considered a serious case, the court was of the view that 14 days’ imprisonment suspended for 24 months was an appropriate sentence.

51.  Since the legislative background, purpose and maximum sentence of the offence are the same as those of the present offence, the respondent was of the view that the court’s decision in 梁進奎 was applicable to the present case. In sentencing the appellant to 14 days’ imprisonment suspended for 18 months, the magistrate was dealing with him leniently and there is nothing to be criticized.

J.   My considerations

52.  First of all, I agree with the magistrate that the purpose of the legislation was to effectively prevent and control the epidemic. If everyone disobeys the Regulation and continues to have group gatherings, there will inevitably be a much higher risk of the disease being spread.

53.  The evidence of this case showed that about seven persons left and seven others remained at the scene when the police arrived, which means that there were initially more than ten persons in the gathering.

54.  It is true that the magistrate did not specify what kind of information the prosecution had submitted, nor was there any relevant facts or background concerning the individuals who had committed a similar offence.

55.  In dealing with the appeal against sentence, my primary consideration is whether the sentence is in contravention of any principle or is manifestly excessive.

56.  Although the facts of this case are different from those of 梁進奎, just as what the respondent pointed out in the submission, the legislative background, purpose and maximum sentence of the offence are the same as those of the present one. In my view, it is appropriate for the magistrate to sentence the appellant to 14 days’ imprisonment and suspend it by discretion. The sentence is not manifestly excessive, nor is it against the principles.

57.  The appellant submitted that to drastically increase the punishment from a fixed penalty to one of a suspended sentence is manifestly excessive. In fact, when the appellant first received the fixed penalty notice, had he pleaded guilty and paid the fine, it would not have been necessary for the court to consider the facts of the case. Yet, he chose to plead not guilty. The court thus had the opportunity to, and had to, consider the facts of the case and thereafter, according to its gravity, decide the culpability and impose the sentence. The court cannot and will not impose a fine simply on account of the fact that it was originally a fixed penalty case.

58.  I dismiss the appellant’s appeal against sentence.

K. Conclusion

59.  For the reasons given above, I dismiss the appellant’s appeal against both conviction and sentence.

Translated by the Court Language Section of the Judiciary and vetted by Mr Walter Lee, solicitor.