HKSAR v. CHANG HOO CHANG

[English Translation - 英譯本]

HCMA 596/2021

[2022] HKCFI 1757

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 596 OF 2021

(ON APPEAL FROM KCFS 105/2021)

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JUDGMENT

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1.  The appellant was charged with the offence of failing to wear a mask in a public place without lawful authority or reasonable excuse[1]. He pleaded not guilty. After trial, he was convicted by the deputy magistrate[2] (“the magistrate”) and fined $12,800 to be paid by 10 instalments. The appellant appeals against both the conviction and sentence.

Prosecution Case

2.  The prosecution alleged that on 23 March 2021, two patrolling police officers (PW1 and PW2) spotted that the appellant was not wearing a mask when he was chatting with a woman in the street.

3.  According to PW1’s testimony, she was outside the shop “Grains Era” when she saw the appellant sitting at an angle in the sitting-out area across the road with his right face facing “Grains Era”. Since her view was not obstructed, she could clearly see the right face of the appellant. As she observed, the appellant was chatting with a woman beside him at that time and was not eating or drinking. She crossed the road and went into the sitting-out area with other police officers to approach the appellant. In the meantime, she asked PW2 to switch on his Body Worn Video Camera (BWVC) to record what happened afterwards. Then, she informed the appellant of the relevant contravention and requested him to show his identity card. After spending a long time to understand the situation, the appellant took out his identity card, and she issued a fixed penalty ticket to the appellant. The whole process lasted for about an hour.

4.  PW2’s testimony is summarised as follows. When he patrolled to the place outside “Grains Era”, he noticed that the appellant sitting on the bench in Nam Cheong Street sitting-out area was not wearing a mask. As he observed, the appellant was seen doing nothing other than chatting with a woman. The police officers crossed the road and went into the sitting-out area to approach the appellant. At this juncture, the appellant was still not wearing a mask. He wore it only upon seeing them. PW2 switched on his BWVC to record the incident when he was approaching the appellant. He and other police officers explained to the appellant the contravention and asked him to take out his identity card. At first, the appellant was unwilling to take out his identity card, but he finally took it out when Sergeant 8173 (PW3) arrived at the scene. The whole process lasted for about an hour.

5.  At trial, PW3 was called for cross-examination at the defence’s request. Under cross-examination, he said that he never told the appellant that he would not be prosecuted, or anything like “there’s no other way, our forki have the job to do, will ask for mercy in court for you, don’t worry, there won’t be a conviction, it’ll be an acquittal”. All along he told the appellant that he would be prosecuted.

Defence case

6.  At trial, the appellant gave evidence in court and did not call any witness.

7.  In gist, the appellant’s testimony was that on that day, he and his wife were about to go to the market to buy food. As he suffered from incontinence, he had to take medication to control it under his doctor’s instructions. When he was chewing the relevant medicine, PW1 appeared and said that he would be prosecuted for not wearing a mask. The action of the police caused him to delay taking the medicine and drinking water. And PW3 said the words that he alleged at paragraph 5 above.

8.  He disagreed that he was not wearing a mask at that time. He also produced four photographs in support of his account.

Findings of the magistrate

9.  The magistrate was satisfied that PW1 and PW2 were honest and reliable witnesses and attached full weight to their testimonies. He was also satisfied that PW3 did not say the words which were put to him by the appellant.

10.  On the other hand, the magistrate refused to accept the appellant’s testimony, in particular his assertion of taking the medicine.

11.  The magistrate found that the appellant was chatting with the woman sitting beside him at that time without wearing a mask, and that he failed to provide any reasonable excuse or lawful authority. Accordingly, the appellant was convicted by the magistrate.

Grounds of Appeal against Conviction

12.  In the appeal, the appellant acted in person, as he was at the trial. The grounds of appeal advanced by him are summarised as follows:

(1)  The magistrate erred in accepting the testimonies of the prosecution witnesses that were inherently improbable and unreasonable;

(2)  The request he made to the magistrate of having the prosecution produce the video footage showing him taking the medicine was neither complied by the prosecution nor attended to by the magistrate;

(3)  The prosecution failed to produce the video footage of the police officers approaching him from “Grains Era”; and

(4)  The magistrate wrongly refused to accept his testimony.

13.  It was also pointed out by the appellant that:

(1)  He told the police officers at the outset that he was taking the medicine;

(2)  In that one hour of confrontation, he repeatedly requested the police officers to put his statement into writing that he was taking the medicine and was about to drink water;

(3)  There was omission from the police officers, as a result of which no forensic evidence of the residual medicine in his mouth was available;

(4)  The burden of proof was not fully discharged by the prosecution;

(5)  It was not necessary to take off the mask for chatting, but it was for taking the medicine. He was wearing denture but he had to use natural teeth to chew the medicine; therefore, he had to make adjustments with his fingers and to take time to finish it;

(6)  He did not dispute that the mask was held in his hand and he was not wearing it when the police officers appeared, but he was not chatting and was having the act of chewing the medicine, which should have been seen by the police officers; and

(7)  He and his wife lived in a building nearby.

Additional evidence

14.  I was asked by the appellant to take regard to the documents attached in his written submission in considering the appeal, which are as follows:

(1)  A rental agreement showing that his residence is in the vicinity of the offence location;

(2)  A statement in relation to his chronic illnesses (incontinence, deaf and wearing of denture) and the need of chewing the medicine prescribed by the hospital before meals; and

(3)  A sketch showing the offence location and the surrounding conditions.

15.  In my opinion, the rental agreement is not crucial to the present appeal. Although it may be of some assistance to the appellant’s case, it is of no use to the evaluation of the credibility of the prosecution witnesses’ testimonies.

16.  On the question of the appellant’s statement pertinent to his illnesses and taking of medication, it concerns the facts of the case. Had it been mentioned by the appellant at trial, it should have been taken into account and considered by the magistrate. If not, there would be no sufficient ground for him to adduce it as a supplement in the appeal.

17.  The sketch provided by the appellant is for the purpose of:

(1)  showing that the distance mentioned by the prosecution witnesses was inaccurate; and

(2)  showing that the view of the prosecution witnesses could be obstructed.

18.  With regard to the point of distance, it is not crucial to the appeal even if the evidence at trial was somewhat different from the truth. As to whether the view of the prosecution witnesses could be obstructed, it was already shown clearly in the footage produced at trial. The use of the sketch is limited.

Discussion and consideration

19.  The appellant testified that it was necessary for him to take off his mask briefly to take the medicine. This may constitute a reasonable excuse, depending on the circumstances. If the appellant’s assertion is true, or may be true, it should be taken by the magistrate as the basis for consideration. The magistrate should also evaluate the credibility of the prosecution witnesses to decide whether their testimonies were definitely true and reliable. PW1 said that the appellant was not eating nor drinking. She did not see the appellant taking any medicine during the period of her observation.

20.  The evaluation of whether a certain witness is honest and credible and whether the testimony is true and reliable falls within the scope of the decision of the trial magistrate. The appellate court can only rely on the written transcript for making its decision as it lacks the advantage of hearing the evidence and observing the demeanour of the witness in court. Accordingly, the appellate court will not hastily interfere with the decision of the trial magistrate unless his or her findings of fact are unreasonable or illogical or the evidence was inherently improbable, or when dealing with evidence, the magistrate had misquoted, omitted or failed to consider or analyse any important issues.[3] In HKSAR v Finan Boris Anthony[4], the Court of Final Appeal pointed out that the appellate court will only depart from the magistrate’s determination if the magistrate’s finding of fact and determination of a witness’s credibility are plainly wrong.[5]

21.  The magistrate stated clearly that he had taken into account the clear record of the appellant when making the evaluation.

22.  Having viewed the produced video footage and perused the appellant’s submission and the reasons given by the magistrate in his evaluation of credibility, I consider that the appellant has failed to put forward any strong and sufficient ground for the court to deem it appropriate to interfere with the magistrate’s decision of accepting the prosecution witnesses’ testimonies and refusing to accept his exculpatory account.

23.  With regard to the appellant’s assertion that the prosecution failed to produce the video footage of the police officers before their arrival at his position, there was no evidence in the present case that the police officers were already recording at that stage. The duty of the magistrate is to consider, based on the evidence before him, whether the prosecution has proved beyond reasonable doubt the matters that have to be proved and not to make speculation on those in the absence of evidence.

24.  The appellant’s criticism of the police officers on their failure to take him to the police station and conduct examination of his mouth was unsound. According to the testimonies that were accepted by the magistrate, he never told the police officers at the scene that he was taking the medicine. In any event, the circumstances stated by the appellant do not constitute a failure of the prosecution to fully discharge its burden of proof.

25.  In the appeal hearing, I had the chance to view the produced video footage. It was clear that the footage started only when the police officers had arrived right in front of the appellant, but nowhere did it show that the appellant was chewing or taking the medicine. He was only seen drinking water. The content of the footage was not inconsistent with the statements of the police officers.

26.  Having examined the evidence of the present case, I consider that the appellant failed to raise any sufficient ground for the court to interfere with the findings of the magistrate. I also consider that the conviction was safe and satisfactory with adequate evidence in support.

27.  Based on the above reasons, the appellant’s appeal against conviction is dismissed and the conviction affirmed.

Appeal against Sentence

28.  The appellant was fined $12,800 to be paid by 10 instalments.

29.  In considering the sentence, the magistrate took into account the following matters:

(1)  The nature and facts of the case;

(2)  The personal background of the appellant:

(i)  He is 77 years of age, married, living with his wife;

(ii)  He has a son who is not living with him;

(iii)  He has been out of work for 8 to 9 years due to his age and receiving the living allowance of about $3,800 per month;

(iv)  His health condition: no serious illnesses other than the hearing and dental problems and also incontinence;

(3)  The appellant was convicted after trial; and

(4)  The provision in section 12(3) of Schedule 2 of the Ordinance.

30.  The appellant did not advance any specific ground of appeal against the sentence. He detailed his poor health condition in the submission.

31.  The matters considered by the magistrate were those that should be taken into account by him.

32.  Ms Anthea Kwok, Senior Public Prosecutor, for the respondent, submitted that the appellant was convicted after trial, and that the defence he offered was not by any means reasonable. Further, the facts of the present case were not trivial. The appellant did not wear a mask in a public sitting-out area. At that time, a woman was beside him and he was talking. As shown in the produced video footage, the appellant wore his mask again only at the request of the police officers. The risk of spreading virus was very high.

33.  According to section 6(1) of the Prevention and Control of Disease (Wearing of Mask) Regulation[6] (“the Regulation”), a person who contravenes the provisions[7] in the present case is liable to a fine at level 3, namely $10,000. Moreover, section 12 of Schedule 2 of the Regulation provides that:

“(1) This section applies if –

(a) a person has notified the Authority in accordance with a demand notice that the person wishes to dispute liability for an offence under section 6(1); or

(b) a person has been given leave under section 11(2) of this Schedule to dispute liability for an offence under section 6(1).

(2) A summons issued in any proceedings against the person for the offence may be served on the person in accordance with section 8 of the Magistrates Ordinance (Cap. 227).

(3) If –

(a) in consequence of the notification or leave, the person appears in any proceedings in answer to a summons, and

(b) the person is convicted of the offence after having offered no defence or a defence that is frivolous or vexatious,

the magistrate before whom the proceedings are heard must, in addition to any other penalty and costs, impose an additional penalty equal to the amount of the fixed penalty.

(4) Any proceedings commenced against a person falling within subsection (1)(a) must terminate if the person pays in accordance with subsection (5) –

(a) the fixed penalty;

(b) an additional penalty equal to the amount of the fixed penalty; and

(c) $500 by way of costs.”

34.  Sentencing lies in the power of the court. In exercising the power of sentencing, the court shall make considerations based on the statutory provisions, legal principles and decided cases. Statutes set limit on power of sentencing; for instance, setting the maximum penalty or the sentencing options such as dealing with a person who is convicted of possession of a dangerous drug or possession of an offensive weapon.

35.  For the present offence, it is also provided in the Ordinance that if the circumstances fall within the provision, the magistrate shall exercise his power of sentencing in accordance with the Ordinance.

36.  The relevant provision is set out in section 12 above[8].

37.  It is clear that the provision in Schedule 2 of the Regulation is to encourage an alleged offender to discharge his liability by paying a fixed penalty in accordance with section 6A. However, its purpose is not for the court to impose the penalty in accordance with section 12 of Schedule 2 when the law enforcement agency issues a fixed penalty ticket to an alleged offender and the latter chooses not to pay and is eventually convicted by the court. It is only under the special circumstances set out in section 12(3) of Schedule 2 that the court shall deal with it in such manner, and that the penalty imposed shall be in accordance with section 12 as provided in the legislation.

38.  The magistrate is bound by the above provision subject to the following conditions:

(1)  In consequence of the notification or leave, the person appears in any proceedings in answer to a summons; and

(2)  The person is convicted of the offence after having offered no defence or a defence that is frivolous or vexatious.

If the above conditions are met, the magistrate before whom the proceedings are heard must, in addition to any other penalty and costs, impose an additional penalty equal to the amount of the fixed penalty.

39.  In the present case, the authority issued a summons to the appellant when he had given notification to the police to dispute liability. The appellant also appeared in the trial of the present case in answer to the summons. Accordingly, condition (1) above is met.

40.  With regard to condition (2), namely, “the person is convicted of the offence after having offered no defence or a defence that is frivolous or vexatious”, it contains two criteria, one of which is “convicted of the offence”. The appellant was convicted by the magistrate, and his appeal against conviction is also dismissed, there is no problem with this criterion.

41.  The other criterion, which is also the core issue of the present case, is whether the appellant was convicted of the offence after having offered no defence or a defence that was frivolous or vexatious.

42.  At trial, the appellant testified and offered a defence. Therefore, I have to consider whether the appellant was convicted of the offence after having offered a defence that was frivolous or vexatious.

43.  There is no definition given to the expression of a frivolous or vexatious defence in the Ordinance.

44.  Such penalty provisions are common in the ordinances pertinent to fixed penalty. Examples are the Fixed Penalty (Criminal Proceedings) Ordinance[9], various provisions in the subsidiary legislation of the Prevention and Control of Disease Ordinance, and the Fixed Penalty (Public Cleanliness and Obstruction) Ordinance[10]. However, there is also no definition given to the relevant expression in these ordinances.

45.  “Frivolous” and “vexatious” are long established concepts in civil procedure that enable the court to consider exercising the power to strike out pleadings[11]. Where circumstances constitute an abuse of proceedings, it is clearly within the scope of the above concepts.

46.  In civil procedure, a proceeding is frivolous when it is not capable of reasoned argument, without foundation or where it cannot possibly succeed; a proceeding is vexatious when it is oppressive or lacks bona fides.[12]

47.  In my opinion, whether a defence is “frivolous” or “vexatious” should be decided on the basis of the usual literal meaning of the two words and in accordance with the actual fact, and the trial magistrate is the best candidate to make the decision.

48.  According to authoritative dictionaries, “frivolous” can mean: having no serious purpose, lacking sense, silly; and “vexatious” can mean: not based on the truth, annoying, having no purpose.

49.  The considerations applicable to civil cases[13] may serve as a reference in criminal cases.

50.  In the consideration, it must bear in mind the following important principles in criminal law:

(1)  The defendant is entitled to plead not guilty and conduct a defence under the principle of “presumption of innocence”. The burden of proof is on the prosecution[14]. The defendant has the right to put the prosecution to strict proof.

(2)  The defendant has the right to silence, which remains the same at trial.

(3)  By pleading not guilty, the defendant may lose the opportunity of being treated leniently, but it should not be the reason for the court to enhance his sentence.

(4)  A costs order against a convicted defendant will normally only be made if the defendant’s conduct has led to unnecessary and extraordinary expenses for the prosecution.[15]

51.  Fixed penalties are designed to provide an administrative measure to speedily deal with offenders and obviate the need of the relevant persons to appear in court. Payment of fine is not an admission of guilt. Pursuant to section 5(2) of Schedule 2 of the Regulation, a person who has paid a fixed penalty in compliance with the provision is not liable to be prosecuted or convicted for the offence. It is to save the authority and the society from spending resources on criminal prosecution and reduce the risks of failed prosecution against the alleged offenders. On the other hand, many people pay the fixed penalties in lieu of being prosecuted, appearing in court proceedings and facing the risks of being convicted. It is not the legislative intent that an alleged person who has failed to pay the fixed penalty should inevitably be punished in accordance with section 12(3).

52.  One will not lose the protection of the legal principles mentioned at paragraph 50 above just because of non-compliance with the provision to pay a fixed penalty.

53.  Even if the relevant person is convicted after trial, the magistrate still has discretion as to penalty[16]. It must be noted that pursuant to section 6 of the Regulation, the maximum penalty of the offence is a fine at level 3, which is currently $10,000. Of course, as stated above, the power of sentencing shall be exercised in accordance with the law. Where the circumstances fall within section 12(3) of Schedule 2 of the Regulation, the magistrate shall act in accordance with the provision. However, in deciding “other penalty” and the “costs”, the magistrate’s discretion as to penalty still remains[17]. The legislature has set a threshold on the penalty imposed in accordance with section 12(3) while a magistrate has the duty to examine it and make a decision.

54.  Under the aforesaid legal principles, it is my view that the threshold would not be easy to pass in determining whether the appellant was “frivolous” or “vexatious”. A decision should be made by the magistrate after careful consideration. It should not be decided that the appellant was “frivolous” or “vexatious” simply for the reason that the magistrate refused to accept the testimony given by the defendant for his defence[18]. Of course, if the appellant was speaking nonsense, or the defendant’s account, even if accepted, did not constitute a lawful authority or reasonable excuse, it could be taken as “frivolous” or “vexatious”.

55.  In HKSAR v Ball, John Edward[19], Deputy Judge[20] Line[21] considered that a defence was not necessarily “frivolous” or “vexatious” if it was due to the defendant’s misunderstanding of the law. Alternatively, it was held to be “frivolous” or “vexatious” for a false accusation brought up indiscriminately against the prosecution[22] and also for sheer sophistry[23].

56.  Apart from the above stated, in my opinion, one can also consider whether the issue raised by the defendant is manifestly unreasonable or unfounded; whether the evidence against him is manifestly indisputable or of overwhelming probative weight; and whether the facts he put forward are extremely nonsensible. Of course, I am not prepared to make a full list of the matters to be considered. They are only some examples given.

57.  As far as the present offence is concerned, I notice that the burden is on the defendant to establish that he has lawful authority or reasonable excuse for his non-compliance of the regulation, but it is one of adducing evidence[24]. If there is sufficient evidence to raise an issue with respect to the lawful authority or reasonable excuse, the contrary shall be proved by the prosecution beyond reasonable doubt.[25]

58.  In the present case, the magistrate pointed out that he did not consider that the appellant had any reasonable defence. According to section 5A(3)(e)(ii) of the Regulation, it constitutes a reasonable excuse for the appellant not to wear a mask if it is for lawful taking of medication. In determining whether the above reasonable excuse was established by the appellant, the magistrate had to decide firstly whether the appellant’s testimony would be accepted. If it was decided that there was sufficient evidence in the appellant’s testimony to raise an issue with respect to the relevant excuse, it would give rise to the burden of proof of the prosecution as mentioned at the previous paragraph.

59.  As seen from the analysis at the previous paragraph, the relevant considerations involve the magistrate’s assessment on the credibility of the witness. It is not that the appellant “did not have any reasonable defence” as stated by the magistrate[26].

60.  In the absence of a sufficient explanation from the magistrate on his decision with respect to the conditions in section 12(3)(b) of Schedule 2 of the Regulation, I have reservation as to whether the penalty imposed in accordance with section 12 was safe and satisfactory.

61.  I have read the Statement of Findings. Taking into account the incident involving the evaluation of the credibility of both the prosecution and defence witnesses, it is hard for me, without hearing them in person, to safely and properly decide on paper whether the defence offered by the appellant was “frivolous” or “vexatious”. Accordingly, I will not make considerations based on section 12(3) of Schedule 2 of the Regulation.

62.  The maximum penalty of the present offence is a fine at level 3, which is currently $10,000. I agree with Ms Kwok’s submission[27] that the facts of the case were rather serious. Having regard to the overall circumstances of the present case and the personal background and financial situation of the appellant, I consider that a fine of $6,000 should be imposed. The appellant pleaded not guilty. Upon considering the overall circumstances, I am of the view that there is not any factor which enables a reduction of the sentence.

63.  Based on the above reasons, I allow the appeal. The fine is varied to $6,000. Taking into account the financial situation of the appellant, I order that the fine be paid by six instalments of $1,000 each, the first of which be paid on or before 1 August 2022 and the remaining five instalments be paid thereafter on or before the 1^st day of each month.

Remarks

I am grateful to Ms Anthea Kwok, Senior Public Prosecutor, for her supplementary submission with respect to the appeal against sentence in short notice.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Ms. Jenny Chung, Solicitor.