HKSAR v. LUI PO LAM PAUL

[English Translation - 英譯本]

HCMA 168/2023

[2024] HKCFI 369

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 168 OF 2023

(ON APPEAL FROM WKCC NO. 2950/2022)

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JUDGMENT

1.  The appellant was charged with twelve counts of “exposing other persons to the risk of infection”, contrary to section 32(1) of Prevention and Control of Disease Regulation, Cap.599A of the Laws of Hong Kong. The appellant was convicted of Charges 1 to 9 and acquitted of Charges 10, 11 and 12 after trial by the magistrate. The appellant was unrepresented during the trial and acted in person.

2.  The respective dates of offence for Charges 1 to 9 are 24 February 2022 (Charges 1, 2), 25 February 2022 (Charges 3, 4, 5, 6, 7) and 26 February 2022 (Charges 8, 9).

3.  The dates of offence for Charges 10 to 12 are 27 February 2022 (Charges 10, 11) and 28 February 2022 (Charge 12).

4.  The prosecution alleged that between 24 and 28 February 2022, the appellant dined at four restaurants, entered two supermarkets, took the MTR twice to make round trips between Sham Shui Po and Mong Kok stations and took the MTR four times to make round trips between Sham Shui Po and Tsim Sha Tsui stations.

5.  The particulars of offence for all the twelve charges state that the appellant “knew that he was infected with a specified infectious disease” during the abovementioned period and he was prosecuted on this basis. Hence, when the prosecution stated in their closing submission that the appellant had already committed all the offences on the basis of “at least knowing that he was a contact”, the magistrate made it clear that it was different from what was stated in the particulars of offence. He rejected the prosecution’s change in position and ruled that whether the appellant was “a contact” as stated in the Ordinance should not be considered.

6.  The appellant submitted a sample for virus test to the West Kowloon General Out-patient Clinic at the Cheung Sha Wan Government Offices on 24 February 2022. He was informed on 4 March that the result was positive. The magistrate, based on this positive result, held that:

“27. The first point is about whether the appellant was infected with an infectious disease. The test on 24 February came out with a positive result on 4 March. This proved that the appellant was infected with an infectious disease, i.e., COVID-19. What remains is whether the appellant knew that he was infected with an infectious disease.”

7.  The magistrate summarised the appellant’s testimony in court as follows:

“The summary of the appellant’s evidence

22. The appellant agreed in court that at the relevant times of the offences he, as stated in the admitted facts, went to different restaurants and shops and took the MTR. The appellant claimed that he thought there was no isolation order on him at that time and the RAT results had yet to be recognised by the government. Besides, his going out, for example, going out for meals, buying daily commodities and commuting for work, was not for fun but out of necessity.

23. The appellant disagreed that he knew he was infected with novel coronavirus; the RAT was simply inaccurate. He only suspected that he might be infected with novel coronavirus but the chance was only fifty-fifty. That was why he went for the nucleic acid test for verification. At that time, false positive cases were quite common and the symptoms might just be those of a flu.”

8.  Then the magistrate had the following analysis about whether the appellant knew that he was infected:

“28. What the appellant said was just an excuse. Everything points to the appellant having been infected with novel coronavirus. He tested positive twice with the RAT (different brands were used for further testing) and had also presented with symptoms of novel coronavirus, for example, fever, cough and sore throat, etc. These were the symptoms he was aware of.

29. The appellant claimed that the RAT was just for reference and he had to wait for the nucleic acid test results for verification to support his argument. Actually, the final test result had nothing to do with whether the appellant knew that he was infected with novel coronavirus. The test result was just to verify or refute the correctness of what the appellant was aware of?

30. Besides, although the RAT results on the 24^th and 25^th had yet to be formally recognised by the government, the test provided a basis for people to identify the existence of novel coronavirus and provided an indicator for the infected to further undergo a test which was recognised at that time.

31. On the contrary, if the RAT result of the appellant was negative or if he did not have any symptoms, then it would be understandable that he did not know he was infected with novel coronavirus. It is obvious that the appellant knew he was infected with novel coronavirus.”

9.  According to the admitted facts, on 24 February, in addition to providing the deep throat saliva sample at the abovementioned West Kowloon General Out-patient Clinic at the Cheung Sha Wan Government Offices, the appellant also underwent nucleic acid test at the testing station at Maple Street Playground. The appellant was informed on 28 February that the test result was negative. The chronological order of the two tests is not clearly stated in either the admitted facts or record of interview. It is only known that the appellant submitted the samples for testing on the same day.

10.  The basis on which the magistrate found the appellant not guilty of charges 10 to 12 is as follows:

“The accusations concerning the two days on the 27^th and 28^th (charges 10 to 12)

32. It is worth noting that, according to the evidence, the appellant underwent testing at Maple Street Playground on 24 February and received a report with a negative test result at six something on the morning of 28 February. This result is favourable to the appellant. I believe that this result gave the appellant a basis to think that he was not infected with novel coronavirus. On this basis, it means that I cannot refute the appellant’s account that he believed that he was not infected with novel coronavirus on the 28^th.

Besides, regarding the 27^th, it was uncertain in terms of evidence whether the appellant’s RAT yielded a positive or negative result on that day. A more favourable inference to the appellant would be a negative result. Therefore, on this basis, the appellant also had a basis to think that he was not infected with novel coronavirus.”

11.  Given that the appellant knew the negative test result on 28 February and the appellant was not sure on the 27^th about the result of the rapid test taken on the same day, the magistrate found that the appellant “had a basis to think that he was not infected with novel coronavirus” and thus acquitted him of charges 10, 11 and 12.

12.  Regarding the rapid tests conducted by the appellant himself, the magistrate made the following findings:

“The relevance between the Government Notice which announced that RAT results would be accepted starting from the evening of the 26^th and the present case

35. The RAT results for the 24^th (substantiated by relevant screen captures and the appellant’s admission) and the 25^th (as per the appellant’s admission) were both positive. The RAT was conducted on the 25^th when the Notice had not yet come into effect. The result should not fall within the scope of the Notice dated the 26^th.

36. Regarding the RATs conducted between the 26^th (he claimed in the Record of Interview that he took the test in the morning, P5A, item 162) and the 27^th, the RAT results for these few days were probably positive (uncertain for the 27^th) according to the contents of the appellant’s Record of Interview. In any event, there is nothing from the existing evidence to show that the RAT kits used by the appellant were among the approved rapid antigen test products listed in the Government Notice. Giving the benefit of doubt to the appellant, these two RAT results should not fall within the scope of the Notice.

37. The prosecution submitted that infected persons were required to undergo a 7-day home quarantine and could not go out unless negative results were obtained on the last two days. For the reasons mentioned earlier, I am of the view that this argument is not applicable.

38. Finally, as set out in the particulars of the offences, the prosecution relied on the appellant’s presence and conduct in the locations alleged in the offences as the basis. However, I notice that for some offences, for example, the one in relation to “Gwing Kee Shredded Chicken”, I do not know what the appellant had done there, whether he dined in or ordered take-away. Another example is what act had the appellant actually committed while taking the MTR. The appellant’s conduct was not specified in the evidence. This however has no bearing on the elements of the offence. Pursuant to section 32, the prosecution only have to prove one of the elements and it will suffice.

39. The content of the appellant’s admission generally tallies with the account given by the appellant in court and the facts admitted. In other words, the appellant admitted his presence and conduct at the alleged times and locations and also admitted to the times at which the tests were conducted, the test results and the symptoms he presented with during that period of time, etc. I attach full weight to it.

40. In light of the above analysis, I found that the prosecution have proved beyond reasonable doubt all the elements of charges 1 to 9 and convicted the appellant of these charges. I found him not guilty of charges 10 to 12.”

13.  As far as I can understand, it seems that the magistrate found the appellant “was infected with an infectious disease” based on the positive result of the sample submitted for nucleic acid test by the appellant in Cheung Sha Wan on 24 February 2022. Then the magistrate found that, after taking into consideration of the rapid test result and that the appellant was aware of experiencing symptoms of novel coronavirus including fever, cough, sore throat, etc. at that time, the appellant knew that he had been infected with novel coronavirus. The magistrate did not deal with the inter-relationship and interaction between the fact that it was not until 4 March that the appellant was informed of the positive result for the sample submitted on 24 February and the element of the offence, namely the time when the appellant came to know that he was infected.

Grounds of Appeal

14.  The trial magistrate misunderstood the important elements for conviction in the statutory provisions.

15.  The trial magistrate overlooked or failed to give sufficient consideration to the evidence given by PW1. He did not have an evidential basis to make a clear finding that the defendant knew that he was infected.

16.  Considering the evidence in the present case and the judgment as a whole, the appellant’s conviction is unsatisfactory and unsafe.

The respondent’s reply

17.  The respondent was of the view that the first and second grounds of appeal were directed at the magistrate’s finding of fact. The respondent suggested that the crux of the present appeal was whether the prosecution had sufficient evidence to prove that the appellant was infected with COVID-19 at that time, and whether he knew that he was infected, amidst the government’s adjustments to requirements concerning the test results and isolation order.

18.  The respondent said “the appellant’s sample for the nucleic acid test submitted on 24 February at the West Kowloon General Out-patient Clinic (Cheung Sha Wan), which came back positive, was sufficient to prove that the appellant was infected with COVID-19. The fact that the appellant was informed of the result of his nucleic acid test at a later stage would only affect whether the prosecution had sufficient evidence to prove that the appellant knew that he was infected.”

19.  The respondent was of the opinion that “on the issue of considering whether the appellant knew that he was infected with COVID-19, (the magistrate) had already given sufficient consideration to PW1’s evidence. The magistrate was also well aware that the government, before 26 February, did not accept a positive rapid test result as a standard to define who was infected. The respondent believed that the magistrate did not determine whether the appellant knew he was infected solely based on the positive rapid test results. The magistrate had taken into consideration the following factors and had sufficient evidential basis to draw the only reasonable inference that the appellant obviously knew that he was infected with COVID-19 at the material times.”

20.  The factors referred to above are: “While all the results of the rapid tests conducted by the appellant himself for the three consecutive days between 24 and 26 February were positive, he also developed various symptoms of the novel coronavirus disease, such as fever, cough and sore throat, etc. It was also the appellant’s admission that he was fully aware that all these were symptoms of the novel coronavirus.”; “The appellant also agreed that on 24 February, having found that he ‘was tested positive’ and feeling unwell, he notified his employer that he needed to take leave.”; and “The appellant posted a photo of beef rice vermicelli in a public Facebook group called ‘Yellow Economic Circle’. The text added to the photo read ‘Haven’t been to Yoshinoya for more than two years. Today, having a sore throat and not much of an appetite, wanna eat some rice vermicelli in soup. If you get it, you get it. Lam Cheng, you want mutual destruction, I will definitely visit blue shops more frequently.’ When being cross-examined, the appellant agreed that just as what he had said in the video-recorded interview, he was dissatisfied that the government’s anti-epidemic measures had led to his unemployment, therefore, after knowing that his rapid test result was positive, he published the above post on a momentary impulse. After being reminded by netizens that his post in the ‘Yellow Economic Circle’ might have breached the law, the appellant deleted the post.”

21.  The respondent argued that “as shown by the appellant’s series of moves together with the text added to the photo after he found on 24 February that his rapid test result was positive, obviously it was only after he knew that he was infected with COVID-19 that he deliberately visited Yoshinoya for meal and published the above post.”

22.  The respondent was of the view that “the appellant’s awareness of whether he was infected was based on the information he had at the time, i.e. he was tested positive by different brands of rapid tests for 3 days in a row, together with the fact that the appellant presented with symptoms which clearly showed that he was infected with the novel coronavirus disease. All the information pointed to the fact that the appellant had already been infected with COVID-19 by that time. Coupled with the evidence mentioned in paragraph 24 above and the conduct of the appellant on 24 February, the only reasonable inference must be that the appellant knew that he had been infected with COVID-19 at that time. It was not until 28 February and 4 March respectively that the appellant was notified of the nucleic acid test results. Those results were just to verify or refute after the offence the correctness of what the appellant was previously aware of, which was in fact irrelevant to the appellant’s awareness of whether he had already been infected at the time of the offence, namely before obtaining the nucleic acid test results. As such, the respondent submitted that the magistrate, in view of the reasons above, had found that the appellant’s subsequent arguments were just trying to justify himself, and such observation was beyond reproach.”

Dealing with the grounds of appeal

23.  In respect of each of the charges in the present case, the only element of the offence at issue that had to be dealt with by the magistrate was whether the appellant, on the respective dates of offence, “knew that he was infected with a specified infectious disease” under the Ordinance. My view is that the three grounds of appeal submitted by the appellant can be dealt with together.

24.  The relevant contents of the Ordinance are as follows:

“Exposure of Public Infection

32. Persons not to expose others to infection

(1) A person shall not, knowing that he is a contact[1] or is infected with a specified infectious disease, expose other persons to the risk of infection－

(a) by the person’s presence or conduct in－

(i) any public conveyance; or

(ii) any street, public place, place of entertainment or assembly, club or hotel; or

(b) by carrying on any trade, business or occupation.

(1A) Subsection (1)(a) does not apply to the presence of a person in respect of whom an order is made by a health officer under section 22(1) or 23(1) in any place or public conveyance if such presence is permitted under the terms specified in the order.

(2) A person who has the care of any person whom the first mentioned has reason to believe is a contact or is infected with a specified infectious disease shall make every reasonable endeavour to prevent the person from doing any act described in subsection (1).

(3) A person who contravenes subsection (1) or (2) commits an offence and is liable on conviction to a fine at level 3 and to imprisonment for 6 months.”

25.  First of all, I agree with the appellant’s argument as stated in his ground 2 that the magistrate “did not have an evidential basis to make a clear finding that the defendant knew that he was infected”. The magistrate did not, in the above paragraphs summarized from his Statement of Findings, provide a specific and clear explanation of the factual basis for his finding that the appellant “knew that he was infected with a specified infectious disease”.

26.  In paragraph 35 of the Statement of Findings, the magistrate appeared to have rejected the rapid test result on the 25^th as, according to the admitted facts, it was only after the Notice was issued at 2228 hours on 26 February that persons tested positive by rapid test were considered as being infected. However, I cannot be certain whether the magistrate also treated the appellant’s rapid test result on the 24^th in the same manner.

27.  As to the rapid test conducted by the appellant after the Notice dated 26 February, the magistrate held that there was no evidence to show that the RAT kits used by the appellant were among those recognized brands as set out in the Notice. As such, his RATs on the 26^th and the 27^th “should not fall within the scope of the Notice”. I take it that even if the RAT results had been positive, it would not be able to prove that the appellant should be considered as “being infected with COVID-19” at that time.

28.  As later pointed out in paragraph 40, “in light of the above analysis, I found that the prosecution have proved beyond reasonable doubt all the elements of charges 1 to 9”, the magistrate convicted the appellant and then proceeded to sentencing. I cannot grasp from the contents of the Statement of Findings precisely why the magistrate was of the view that the appellant “knew he was infected with a specified infectious disease”.

29.  Appeals from Magistrates’ Courts are conducted by way of retrial. If the evidence shows that the prosecution have successfully proved the elements of the offences, the appellant can still be convicted.

30.  Nevertheless, I am of the view that the prosecution would not be able to prove that the appellant “knew that he was infected with a specified infectious disease” at all the material times when the 9 offences of which he was convicted took place. The following are the reasons.

31.  It is a fact that the appellant was infected with the novel coronavirus. To “know” a certain fact does exist, the first and foremost condition is that such a fact does actually exist before someone is able to know the existence of it. If such a fact does not exist, then there is no way to know that it exists.

32.  Therefore, in order to prove that the appellant knew that he was infected, the prosecution must first of all prove that the appellant was actually infected at the relevant times. If, in fact, the appellant was not infected at that time, then no matter how hard he tried to think that it was true, it would not make him become infected. An uninfected person moving around the community would not in any event constitute the commission of the offence in question.

33.  It was the evidence of PW1 Dr. Yeung that based on the medical consensus at all the material times of the 9 offences in question of which the appellant was convicted, the only way for the appellant to “know” that he himself had been infected with the novel coronavirus was by a positive nucleic acid test result which reflected that novel coronavirus was detected in his body.

34.  When cross-examining PW1, the appellant established that “tested” positive referred to tested positive by “nucleic acid test”:

“Transcript 12L-N: Q: That is, what you mean is, for those tested positive by nucleic acid tests, they were required to－undergo isolation, or be sent to community isolation facilities?

A: Right, because at that time, on the 20^th, basically… nucleic acid test was still what we called the gold standard.”

35.  Dr. Yeung, later when questioned by the magistrate, further confirmed that before 26 February, the sole criterion for virus testing was the result of the nucleic acid test:

“Transcript 13M-N:

Court: In brief, what you’ve just mentioned is that from the 26^th onwards, positive results of rapid tests are acc－accepted.

Answer: Correct.

Court: Right. Before the 26^th, the sole criterion was the result of the nucleic acid test, right?

Answer: Yes, correct.

Court: That’s right. All right. Thank you.

36.  At the end of the cross-examination, the appellant had the following exchange with Dr. Yeung regarding the accuracy of rapid test:

“Transcript 13A-14M:

Q: Right, so, that means if, presumably results from rapid tests conducted on or before 25 February in fact could only be used as reference, shall I put it this way?

A: Generally speaking, we－probably the situation at that moment, in fact－ if you, (positive cases by) rapid tests were basically required to be followed up with testing called nucleic acid testing.

Q: That’s right, that is, as reference?

A: A procedure further conducted to verify it. Right.

Q: Right. Well, as seen on the news at that time, there were quite a lot of false positive cases. How did they occur? How to define false positive?

A: As far as testing is concerned, basically it can be put like this, even if － that is, an or(dinary)－ an RAT, I assume, that is, you are talking about an RAT, I suppose?

Q: That’s right, yes.

A: For an RAT, basically, it has, like, its own sensitivity, or another of ours, that is, sensitivity in English. The other one is actually called specificity, that is, accuracy. Fundamentally, sensitivity mainly refers to whether positive cases can be detected. The other one, specificity, that is, accuracy, basically it refers to whether some false negative (cases) can be screened out. So, the whole situation was, at that moment actually, that is, actually we, the whole government or even the entire scientific community, we were also, that is, accumulating some data to see whether the RATs could be truly helpful in the whole matter. After collecting certain amount of data, we realized that the accuracy of the RATs was basically sufficient. Also, the then situation had actually been taken into consideration. Basically, the number (of cases) found was quite large. So, after taking many various factors into account, that is, the government confirmed the acceptance of a positive RAT result on 26 February and treated and dealt with it as a positive case. That’s the reason.

Q: Hypothetically, if the RATs were done before 25 Feb－February, if, for example, that is, the accuracy was not yet recognized by the government? In addition, if going for the tests, would it be possible that the environmental circumstances led to false positive results, that means, inaccurate?

A: Dare not -- cannot rule it out, uh, cannot rule it out…

Q: That means, such possibility cannot be ruled out?

A: Correct. But, generally speaking, that is, if (we) now look back, actually, that is, if the RAT result was positive, it was very likely that the PCR (result) would also be positive.

Q: But you are now saying that the inclusion only commenced after being recognized by the government on 26 February?

A: If you adopt, basically, if you adopt this watershed, that is, if, for example, for dealing with the cases, it was after 26 February.

Q: Yes, all right.

A: Or 20, on or after 26 February, right.

Q: Yes, all right, thank you doctor. I have finished asking the questions. Thanks.” (Emphasis added by this Court)

37.  Summarizing the above questions and answers, Dr. Yeung agreed in his evidence that on or before 25 February 2020, the RAT results were merely for reference and a nucleic acid test was required for further verification. The government only accepted the positive RAT results as a proof of the existence of the novel coronavirus on or after 26 February. Dr. Yeung did not rule out the possibility of “false positive” cases due to the environmental circumstances. Dr. Yeung was not asked about why there were different results for the two tests conducted in Cheung Sha Wan and Maple Street on 24 February in the present case.

38.  Based on the above evidence of the prosecution witness, coupled with what the appellant said in the record of interview that he, after being tested positive by the RAT, considered he might be infected with the novel coronavirus, one of the reasonable inferences in view of the appellant’s belief after he had been informed of the positive RAT result was that he considered he might have been infected. However, there is a distinction between “knowing that he may have been infected” and “knowing that he is infected”. The former one does not require the appellant to have been truly infected, but the latter one, as stated above, has to be based on the fact that the appellant was infected.

39.  The only positive result of the nucleic acid test in the present case, which was not known until 4 March, came from the sample provided by the appellant on 24 February to the West Kowloon General Out-patient Clinic at the Cheung Sha Wan Government Offices.

40.  Hence, 4 March was the earliest time the appellant could know that he was infected on 24 February. It was impossible for the appellant to “know that he was infected” before 4 March.

41.  Besides, accepting that the results of all 4 nucleic acid tests of the appellant were accurate, there was no virus in the sample provided by the appellant on 21 February. There was virus in the sample provided by the appellant in Cheung Sha Wan on 24 February, so it was possible that there was virus in the appellant’s body on the 22^nd, 23^rd and 24^th. However, the test result of the sample provided also on 24 February in Maple Street was negative. Therefore, it was also possible that the appellant carried no virus on the 22^nd, 23^rd and 24^th. Surely, another possibility is that one of the two test results was inaccurate.

42.  The burden of proof lies on the prosecution that they have to prove all the elements of the offence beyond reasonable doubt. In addition, if the same set of facts allows for more than one reasonable inference to be drawn by the tribunal of fact and there is an inference in favour of the accused, then the tribunal of fact can only decide, based on the inference in favour of the accused, whether the prosecution can prove the offender has committed the offence.

43.  Based on the above analysis, the first negative result of the sample submitted on 21 February in Cheung Sha Wan and the negative result of the sample submitted on 24 February in Maple Street, it is possible that the appellant was not infected during the period between 21 and 24 February.

44.  The appellant did not submit any sample for the nucleic acid test on 25 and 26 February, and the sample submitted on 4 March by the appellant was tested negative. Therefore, it is possible that the appellant was not infected during the period between 25 February and 4 March.

45.  Based on the above inference in favour of the appellant, it is possible that the appellant was not infected on the offence dates of charges 1 to 9.

46.  Since it is impossible for the appellant to know that he was infected during the periods stated in charges 1 to 9, and it is possible that he was not infected, the appeal against the convictions of the appellant must be allowed.

Should the charges be amended pursuant to section 27 of the Magistrates Ordinance and the case be remitted for a retrial?

47.  The difficulty of instituting prosecution against the offender on the basis of “knowing that he is infected” is the discrepancy between the timing of the offender committing the offence and the timing of knowing that he is infected. If the prosecution cannot prove that the person was moving around the community after being informed of the nucleic acid test result, they will also not be able to prove that the person has already committed the offence. Hence, a person of this category, namely “a contact”, has been intentionally added to the Ordinance, and intentionally defined as “any person who has been, or is likely to have been, exposed to the risk of contracting an infectious disease” by the lawmaker, to ensure public safety.

48.  Any person obtaining a positive rapid test result for the novel coronavirus can be regarded as “a person knowing that he is likely to have been exposed to the risk of contracting an infectious disease, namely novel coronavirus”. As for the appellant in the present case, he even developed symptoms similar to those of ordinary novel coronavirus patients, including sore throat and fever, at the time of offences.

49.  When the defence pointed out in the final submission that the appellant was “at least a contact”, probably the magistrate should have considered amending the charges under section 27 of the Magistrates Ordinance as there was a variance between the charges and the evidence adduced in support of them by adding the allegation of “or knowing that he is a contact”.

50.  I understand that the appellant had no legal representation in the original trial. The magistrate might have thought that it might be unfair to the appellant if amendment was made at such a late stage. However, the defence put forward by the appellant was all along that the rapid test was for reference. He was only informed of his positive nucleic acid test result on 4 March for the first time, while the offence dates were from 24 to 28 February. Thus, he did not commit any one of the offences. Amending the offences by adding “the appellant knew that he was a contact” supposedly would not cause any injustice to the appellant. The appellant, if needed, could also recall the witnesses for his examination pursuant to the Ordinance.

51.  Nonetheless, I accept the submission by Mr Lee, counsel representing the appellant, particularly taking into consideration that the appellant has already served over half of the imprisonment terms and has about two-odd months of imprisonment terms left after deducting remission. I agree that it is inappropriate to make an order to amend the charges and remit the case to the magistrates’ court for a retrial at this stage.

Conclusion

52.  The appeal against the convictions of charges 1 to 9 is allowed. There will be no order as to costs.

Translated by the Court Language Section of the Judiciary and vetted by Mr P Y Lo, Barrister-at-law.

[1]  “Contact means any person who has been, or is likely to have been, exposed to the risk of contracting a specified infectious disease;”