HKSAR v. KWOK WING KIN AND OTHERS

[English Translation – 英譯本]

HCMA 187/2021

[2022] HKCFI 2525

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 187 OF 2021

(ON APPEAL FROM ESFS 5-12/2020)

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BETWEEN

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JUDGMENT

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Contents

I. Background

1.  This is a summons case in which the eight appellants (D1 - D8) were each summonsed for one count of “participating in a prohibited group gathering”[1]. They each pleaded not guilty to the count. After trial, the magistrate[2] found them all guilty and sentenced each of them to 14 days’ imprisonment, suspended for 18 months. They all appeal against conviction and sentence.

II. Prosecution case

2.  As indicated by the testimonies of the prosecution witnesses and the video clips produced to the court, the prosecution’s allegations against the appellants can be summarized as follows.

3.  Around 11:04 am on 1 May 2020, D1 to D5 and D8 were standing outside Admiralty Centre, Admiralty, and there were also some reporters and a number of police officers (including a senior inspector (“PW1”)) at the scene. PW1 issued to the six appellants warnings relating to Section 6(1)(a) of the Prevention and Control of Disease (Prohibition on Gathering) Regulation (“the Regulation”) and relevant provisions (“No-gathering Order”) and required them to disperse. Shortly after PW1 started issuing the warnings, D7 also showed up at the scene. Later, D6 also showed up.

4.  After that, D1, D2, D5 and D7 (“Labour Party Group”) lined up horizontally and stood behind a demonstration banner of the Labour Party. D3, D4, D6 and D8 (“League of Social Democrats (LSD) Group”) also lined up horizontally and stood behind a demonstration banner of LSD.

5.  When the four persons of the Labour Party Group, holding the demonstration banner, started a procession, the LSD group also followed and started a procession, chanting slogans together. The two groups talked to each other and stood at different places, and their distances from each other changed when they were moving.

6.  At different stages, PW1 issued a total of four warnings relating to the No-gathering Order to the persons mentioned above and required them to disperse, but all those people just ignored and continued with the assembly and procession.

7.  The appellants went along the pavement on the south side of Harcourt Road outside Admiralty Centre, moved onto the escalator, and reached the footbridge connecting with the Central Government Offices and Tamar Park. At this juncture, PW1 and some police officers stopped the appellants, stating explicitly that the police would issue fixed penalty notices. After that, the procession and assembly continued.

8.  Except D5, the other seven appellants handed over their identity cards to the police on the said footbridge for the police to deal with the issuance of fixed penalty notices. Since D5 refused to hand over his identity card to the police, he was arrested by the police on the said footbridge and taken away from the scene.

III. Defence case

9.  At the trial, all appellants elected not to testify and called no witness.

10.  According to the magistrate’s summary, the issues in this case are as follows:

(i) The constitutionality of the No-gathering Order;

(ii) According to the defence’s interpretation of “group gathering” and “prohibited group gathering”, the appellants did not constitute a “group gathering”, nor did they participate in a “prohibited group gathering”[3];

(iii) whether the appellants have put forward a “reasonable excuse”;

(iv) The fact that the police allowed the seven appellants to continue with the demonstration after issuing fixed penalty notices reflected that their right to peaceful demonstration should not be interfered with and they should not be subject to criminal liability as long as there was a sufficient anti-epidemic distance between the two groups;

(v) About one month before the incident (8 April), when the Labour Party and LSD staged a demonstration, the police did not prosecute anyone for breaching the No-gathering Order. Therefore, the appellants had a reasonable expectation that they would not be prosecuted for gathering on the day of the offence; in addition, it is also criticized that the police adopted inconsistent yardsticks in enforcing the law.

(vi) Given the circumstances of the present case, holding the appellants criminally liable amounted to a disproportionate interference with their rights to peaceful assembly, procession and demonstration.

IV. The magistrate’s findings

11.  The magistrate was satisfied that PW1[4] was a credible and reliable witness and accepted his objective description of what happened in the case and his identification of the appellants[5], but emphasised that no reliance would be placed on the witness’s subjective view of what happened in the case or his personal opinion[6].

12.  As for the other police witness, PW2, the magistrate was also satisfied that she was a credible and reliable witness and accepted her account of what had happened in the case[7].

13.  The magistrate took into account and analyzed the following precedents in dealing with the interpretation of prohibited group gathering[8]:

(i) HKSAR v Fugro Geotechnical Services Ltd[9];

(ii) Sham Wing Kan v Commissioner of Police[10];

(iii) HKSAR v Tse Yee Ping[11]; and

(iv) Secretary for Justice v Leung Kwok Hung[12].

14.  The magistrate was of the view that:

(i) The distance of 1.5 metres was introduced in section 10(2) of the Regulation and was only applied when considering whether there was a “dispersable gathering[13]”;

(ii) The “prohibited group gathering” did not need to include the element of “distance of 1.5 metres”[14];

(iii) Regarding the “prohibited group gathering”, the Regulation did not set out the distance requirement, and that was intentional[15];

(iv) The distance between the participants was a factor for consideration, but the “distance of 1.5 metres” was not an indicative distance; nor was it necessary to add any indicative distance to the definition of “prohibited group gathering”[16];

(v) To determine whether a “gathering” took place, the court must consider the overall factors in the case with all relevant circumstances, including whether the gatherers had a common purpose, whether the gathering was organized in advance, the interaction of the gatherers with each other, the duration of the gathering, and the distance of the gatherers from each other[17]; and

(vi) The acts of the police at that time met the requirements of both principles of tolerance and proportionality at the operation level[18].

15.  The magistrate found that the relevant provisions of the No-gathering Order were constitutional[19].

16.  The magistrate also found that the appellants formed a gathering, which was a prohibited group gathering, and that the appellants participated in such group gathering and were aware that they were participating in such group gathering[20].

17.  The magistrate also found that the excuse relied upon by the appellants was unreasonable, and that the prosecution had put forward proof to the contrary which was sufficient to remove any reasonable doubt, so that the court did believe beyond reasonable doubt that the appellants had no reasonable excuse for conducting the prohibited group gathering in the case.[21]

18.  Eventually, the magistrate held that the prosecution proved the allegations against the eight appellants in the eight summonses beyond reasonable doubt, and therefore found them guilty of the respective summonses against them.

V. Grounds of appeal

19.  On appeal, D1, D2 and D5 were represented by Mr Anson YY Wong, of counsel and Mr Jason CS Kung, of counsel[22], who advanced the following grounds of appeal for these three appellants:

(i) Ground of appeal 1: The magistrate misinterpreted the “prohibited group gathering” prescribed in the Regulation, and erred in refusing to accept that a distance of less than 1.5 metres between the gatherers constituted an essential element of the criminal act;

(ii) Ground of appeal 2: The magistrate erred in finding that the eight appellants formed a gathering at the time of the offence;

(iii) Ground of appeal 3: The magistrate erred in finding that the appellants had no “reasonable excuse”; and

(iv) Ground of appeal 4: The magistrate erred in his operational proportionality analysis.

20.  D4, D6 and D8 were represented by Mr Carter TC Chim, of counsel and Mr Geoffrey KW Yeung, of counsel[23], who advanced the following grounds of appeal for these three appellants:

(i) Ground of appeal 1: The magistrate misinterpreted the “prohibited group gathering” prescribed in the Regulation, and that interpretation was contrary to the legislative intent and/or led to absurd or unreasonable results;

(ii) Ground of appeal 2: The magistrate erred in finding that there was no contravention of Article 27 of the Basic Law and Articles 16 and 17 of the Hong Kong Bill of Rights[24] when the Regulation took the number of people having a “common purpose” as the basis of counting the number of people “gathered”;

(iii) Ground of appeal 3: The magistrate erroneously ignored the principle of de minimis non curat lex and found that the defendants in the present case had a distance of less than 1.5 metres from each other;

(iv) Ground of Appeal 4: The magistrate erred in finding that the appellants, having no lawful authority or reasonable excuse, did not or did not properly consider whether the conviction in the circumstances of this case amounted to a disproportionate encroachment of the appellants’ rights to freedom of assembly and freedom of speech; and

(v) Ground of appeal 5: The magistrate erroneously drew the inference that the facts of the present case would mislead the public about the understanding the Regulation.

21.  D3 was not represented and the grounds of appeal that he advanced may be summarized as follows:

(i) Ground of appeal 1: The magistrate erroneously regarded “common purpose” as a factor for consideration for “prohibited group gathering”, and ignored or underestimated distance and time which were important indicators for reference, and thus found that the appellants had participated in a “prohibited group gathering”;

(ii) Ground of appeal 2: The magistrate erroneously applied the proportionality analysis (in the course of conviction) and underestimated the significance of constitutional rights;

(iii) The magistrate erroneously found that he had participated in a prohibited group gathering; and

(iv) Ground of appeal 3: The magistrate erroneously rejected the appellant’s reasonable excuse.

22.  D7 was also unrepresented and the grounds of appeal that he advanced may be summarized as follows:

(i) Ground of appeal 1: the magistrate did not interpret the Regulation on the basis of legislative intent;

(ii) Ground of appeal 2: the magistrate failed to strike a balance between the freedom of assembly for peaceful demonstration and public health consideration;

(iii) Ground of appeal 3: the magistrate erred in using “common purpose” as the basis of interpreting “gathering” prescribed in the Regulation; and

(iv) The magistrate erroneously found that he had participated in a prohibited group gathering.

VI. Discussion and consideration

23.  In respect of the grounds of appeal advanced by the appellants, I am of the view that discussion and consideration may be made on the following five main issues:

(i) Issue I: The correct legal interpretation of “prohibited group gathering” prescribed in the Regulation[25];

(ii) Issue II: The constitutionality of the Regulation;

(iii) Issue III: According to the correct legal interpretation of “prohibited group gathering”, whether the appellants participated in a prohibited group gathering[26];

(iv) Issue IV: Whether there was a reasonable excuse for the participation of the appellants[27];

(v) Issue V: Whether the prosecution and conviction in the present case did not conform with the maxim of de minimis non curat lex[28]; and

(vi) Issue VI: operational constitutionality: whether a verdict of conviction would constitute a disproportionate interference with the rights of peaceful assembly, demonstration and procession[29].

VI 1. Issues (I) and (II): Interpretation of “prohibited group gathering” and issue of whether the Regulation is unconstitutional

24.  The present case originated from an event of demonstration, involving the constitutional rights of peaceful assembly, procession and demonstration (“the relevant constitutional rights”). The No-gathering Order constituted a restriction of these rights. In such circumstances, the interpretation of “prohibited group” is relevant to the constitutional issue, and therefore I will discuss Issue (I) and Issue (II) together.

VI 1.A The appellants’ submissions

25.  The appellants’ respective submissions on the legal interpretation of “prohibited group gathering” were not really the same, but all criticized the magistrate’s interpretation for failing to strike or to properly strike a balance between the relevant constitutional rights and the legislative intent of the Regulation. The main points of their submissions may be as summarized as below. Where the same point was made in the submissions, this will not be repeated.

Mr Wong’s submissions for D1, D2 and D5

26.  The No-gathering Order should not be construed as prohibiting all assemblies of more than four persons in a public place, but had to be viewed in the light of the actual circumstances (including regarding the assembly, its purpose, time, number of people, the distance of people from each other, etc) in order to strike a balance between the relevant constitutional rights and the legislative intent of the Regulation[30]. If an assembly of more than four persons in a public place was considered a violation of the No-gathering Order regardless of whether the distance of people from each other and their behaviour would pose any public health risk, it would be a disproportionate restriction on the relevant constitutional rights, and such interpretation had to be avoided by the court as far as possible[31].

27.  As it could be seen from section 4(1) of the Regulation, the Regulation was enacted for the purpose of “preventing, protecting against, delaying or otherwise controlling the incidence or transmission of the specified disease [namely coronavirus-2019 (COVID 2019)[32]]”.[33] In other words, the Regulation had the specific purpose of targeting at the coronavirus disease 2019 (COVID-19)(the virus referred to in the following text means the 2019 coronavirus). On this premise, having regard to the presumption against the legislature’s imposition of a statutory interference with the fundamental freedoms of the citizens without clear words[34], and the principle that provisions restricting the freedom of peaceful assembly should be given a narrow interpretation[35], the legislative intent of the Regulation should not be regarded as prohibiting all assemblies of more than four persons in a public place, regardless of whether the assembly would pose any public health risk in relation to the control of the virus[36].

28.  The Regulation sought to prohibit gatherings which posed an unacceptable public health risk during the pandemic. Therefore, a prerequisite for the formation of such gatherings was that the gatherers were physically close enough to each other so that the virus could be transmitted among them[37].

29.  The distance of people from each other was not only one of the factors for consideration but also an essential factor, and the physical distance of gatherers from each other must be less than a certain threshold for the formation of a gathering prohibited by the Regulation[38].

30.  If the people alleged to be gathering were not sufficiently close to each other physically, they should not be regarded as participating in a “prohibited group gathering”, regardless of whether they had a common purpose, because they would not pose an unacceptable public health risk.

31.  In short, the distance of the allegedly gatherers from each other was not merely a factor for consideration, but a prerequisite for forming a “prohibited group gathering”; and “common purpose” was a necessary but not sufficient condition for forming a “prohibited group gathering”.[39]

32.  The distance of 1.5 metres prescribed under the “dispersable gathering” reflected that 1.5 metres was a sufficient distance to satisfy the legislative intent of the Regulation[40]. Therefore, the distance of 1.5 metres was indicative of whether a gathering was a “group gathering” and “prohibited group gathering” in the consideration of the court.

33.  In determining whether there was in fact a “prohibited group gathering”, the court must first consider whether there was sufficient physical proximity between the alleged gatherers. Only if there was, would the court need to consider other factors, such as whether they “had a common purpose, whether the gathering was organized in advance, the interaction of the gatherers with each other, and the duration of the gathering”[41]. Such an interpretation was the only one in conformity with the “principle against doubtful penalisation”.[42]

Mr Chim’s submissions for D4, D6 and D8

34.  Mr Chim submitted that the court should first determine whether there was a “gathering” and at this stage consider whether the gathering was organized in advance, whether there was interaction among the participants, whether it was transient, and whether there was a common purpose. Only when it was the case then the court would have to further determine whether the gathering was “prohibited” or not. At this stage, the court only needed to consider whether the gathering took place in a public place, how many “groups” the gathering consisted of, and whether the number of people in each “group” exceeded the upper limit in law[43], and should not consider whether the people had a common purpose any more.

35.  Mr Chim also pointed out that pursuant to the Prevention and Control of Disease (Requirements and Directions) (Business and Premises) Regulation, Cap 599F of the Laws of Hong Kong (“Cap 599F”), the Secretary for Food and Health (“SFH”) imposed the following social distance restrictions which were in force at the time of the offence:

(i) tables available for use or being used by customers within any premises on which food or drink is sold or supplied for consumption on the premises (catering premises) must be arranged in a way to ensure there is a distance of at least 1.5 metres or some form of partition which could serve as effective buffer between one table and another table at the premises;

(ii) no more than four persons may be seated together at one table within any catering premises.[44]

Mr Chim asserted that there was a contradiction between the magistrate’s interpretation and what the SFH said, because even if a member of the public had complied with the requirements of Cap. 599F, he would contravene the Regulation, which was an absurd or unreasonable result leaving the public feeling baffled and confused[45].

36.  Mr Chim gave the example that in case eight colleagues intended to go to a restaurant together at lunchtime, when they set off from the office to the restaurant together, according to the magistrate’s interpretation of “prohibited group gathering”, even though they were separated into two groups with a distance of at least 1.5 metres apart, they formed a gathering and were in breach of the No-gathering Order because they had a “common purpose”. However, after they had gone into the restaurant, they became in compliance with the requirements of the law. The magistrate’s interpretation of “prohibited group gathering” clearly gave rise to an absurd or unreasonable result and did not conform with the reality in the community[46].

37.  Mr Chim also mentioned grave-sweeping and visits to show flats in new developments as examples of absurdity or irrationality if distance was not used as an objective criterion for determining whether a gathering was formed.

38.  Mr Chim asserted that there should not be such a substantial difference between the Regulation and Cap 599F, where both regulations aimed at epidemic prevention, in particular that there was never any mention in the relevant legislative documents of such a difference between the two regulations in how the number of people was counted. In interpreting these two regulations which were common in purpose and nature, the court should be consistent in the yardstick for law enforcement, and should, in accordance with the principle of in pari materia[47], be consistent in interpretation[48], otherwise the public would be at a loss as to what to do, and it would also give rise to all sorts of unforeseeable and absurd or irrational results[49].

39.  Mr Chim pointed out that the risk of virus transmission increased in an indoor environment where airflow was ineffective and ventilation was generally poorer than the outdoors, and therefore the restrictions of the regulations under Cap 599F ought to have been more stringent than those under the Regulation which targeted at public places[50]. However, the magistrate failed to explain why the restrictions under the Regulation were broader than those under Cap 599F, and therefore the magistrate erred in having ruled that the restrictions under the Regulation were not beyond what was necessary for a legitimate aim.

40.  Mr Chim further pointed out that the magistrate’s approach in interpretation not only rendered the Regulation failing to meet the requirement of rational connection, but also rendered it failing to pass the proportionality test. Therefore, if the Regulation was interpreted in this way, it would be unconstitutional. He cited the case of Bank Mellat v Her Majesty’s Treasury (No 2)[51] in support of his argument.

41.  He also stated that the prosecution did not have any medical expert evidence to prove that gatherings with a “common purpose” were more likely to spread the virus than gatherings without a “common purpose”. The prosecution had never been able to demonstrate any difference between gatherings with and those without a “common purpose”, or there was a rational connection between restricting the former and “preventing and combatting the pandemic” so that it was necessary to prohibit gatherings with a “common purpose”[52].

D3’s submission

42.  D3 submitted that there was no legislative meaning of “common purpose” in the Regulation itself, otherwise it would have been expressly provided. Such construction and relevant law enforcement action were unconstitutional under the right to demonstration conferred by the Basic Law[53].

43.  If eight persons who were divided into two groups of four with each group being separated by 1.5 metres or more (at least for most of the time) were considered to be in the same group because of having a “common purpose” and were hence prosecuted for being in a “prohibited group gathering”, then it would be particularly questionable whether such harsh restriction (or yardstick for law enforcement) which actually concerned only “common purpose”, disregarding distance or duration, was rationally connected with a legitimate aim and the pursuit of the legitimate aim, was not more than necessary to accomplish a legitimate aim, or came within the test suggested by the prosecution (“manifestly without reasonable foundation”)[54].

44.  The provision relevant to the offence in the present case was similar to the one under section 10(4) of the [R]egulation, both in terms of penalties and the requirement of a reasonable excuse, and both provisions should therefore be understood as follows: “dispersable gathering” should be a warning given by law enforcement officers as required under the circumstances at the scene (where people gathered were less than 1.5 metres from each other), whereas a “prohibited group gathering” could be understood as an obvious or intentional gathering of people who were less than 1.5 metres from each other for a prolonged period, and hence immediate prosecution could be made without the need of dispersion (or with the failure of dispersion)[55].

45.  Even if “social distancing” was not the most essential consideration, in a proportionality test, the court needed to take into account the overall factors and all relevant circumstances, including whether the gatherers had a common purpose, whether the gathering was organized in advance, the interaction of the gatherers with each other, the duration of the gathering and the proximity of the gatherers. With such considerations, one should not arrive at a conclusion like the magistrate’s[56], particularly because:

(i) The Food and Health Bureau (“FHB”) told the Legislative Council on 9 May that:

(1) On 5 May 2020 (namely four days after the incident), the Executive Council advised that the Regulation be changed by increasing the number of persons allowed for each group gathering from four to eight persons, and the FHB further stated that “these measures have begun to deliver results since early April 2020 with a gradual decrease in the number of confirmed cases. Generally speaking, Hong Kong has successfully ‘flattened the curve’…”;

(2) Loosening of restrictions was suggested for reasons including “the low number of local cases”, “the high level of alertness in terms of personal hygiene among the population” and so on;

(3) “… While there is no strict science to determine the number of people allowed for group gathering, we have taken into account the social and economic considerations plus the latest public health risk and have decided to increase the number of people to no more than eight in each group gathering”.

(ii) From April 20 to May 1, namely the day of the incident, there have been no confirmed case for 12 consecutive days.

46.  D3 also criticized that the inconsistent yardsticks adopted by the police in enforcing the law on different occasions gave rise to the risk of abuse of public power[57]. On that day, PW1’s only consideration was whether the people at the scene had violated the law and public health, and he paid no regard at all to the freedoms protected by the constitution. It was a misinterpretation of the No-gathering Order and disregard of the fundamental rights that the court was determined to protect.

D7’s submission

47.  D7 criticized the magistrate’s improper consideration in balancing the need for epidemic prevention against the relevant rights, which was a mistake in the assessment of proportionality[58].

VI 1.B Relevant laws

VI 1. B (a) Relevant statutory provisions

48.  Pursuant to section 2 of the Regulation[59], “group gathering” （羣組聚集）means a gathering of more than four persons[60]; and “prohibited group gathering” （受禁團體聚集）means a group gathering prohibited under section 3.

49.  Section 3 of the Regulation provides that[61]:

“(1) No group gathering may take place in any public place during a specified period.

(2) Subsection (1) does not apply to-

(a) an exempted group gathering specified in Schedule 1; and

(b) a group gathering that is permitted under section 5(1).”

50.  Pursuant to section 6(1) of the Regulation, if a prohibited group gathering takes place, a person who participates in the gathering commits an offence.

51.  Merely from the relevant provisions above, the statutory definition of a group gathering is very simple, meaning a gathering of more than four persons at the time in question[62]. In addition, any group gathering taking place in a public place constituting a prohibited group gathering is prohibited by the Regulation, unless the group gathering is:

(i) an exempted group gathering; or

(ii) a group gathering that is permitted under section 5(1).

Otherwise, a person who participates in a prohibited group gathering commits an offence.

52.  In the present case, the eight persons in question were not in an exempted group gathering or a group gathering permitted under section 5(1).

VI 1. B(b) Laws relating to statutory interpretation

53.  Section 19 of the Interpretation and General Clauses Ordinance[63] provides as follows:

“An Ordinance shall be deemed to be remedial and shall receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Ordinance according to its true intent, meaning and spirit.”

54.  In 王曉秋 訴 香港護士管理局 (Wang Xiao Qiu v The Nursing Council of Hong Kong)[64] , the Court of Appeal stated that:

“35. ... In interpreting a statute, the court must first consider the literal construction of the provision, and if the literal meaning of the provision is unclear, the court may take the original legislative intent into account in arriving at a reasonable and logical interpretation…”

55.  The Court of Final Appeal in HKSAR v Lam Kwong Wai & Another[65] stated that the modern approach to statutory interpretation is based on legislative intent:

“The modern approach to statutory interpretation insists that context and purpose be considered in the first instance, especially in the case of general words, and not merely at some later stage when ambiguity may be thought to arise[66]. Nevertheless, it is generally accepted that the principles of common law interpretation do not allow a court to attribute to a statutory provision a meaning which the language, understood in the light of its context and the statutory purpose, is incapable of bearing[67]. A court may, of course, imply words into the statute, so long as the court in doing so, is giving effect to the legislative intention as ascertained on a proper application of the interpretative process. What a court cannot do is to read words into a statute in order to bring about a result which does not accord with the legislative intention properly ascertained.”

56.  In the more recent case of Kwan Ka Hei[68] , the Court of Final Appeal stated that:

“The modern approach to statutory interpretation is well established. The proper starting point is to look at the relevant words or provisions having regard to their context and purpose. The context of a statutory provision should be taken in its widest sense and includes the other provisions of the statute and the existing state of the law. The purpose of a statutory provision may be gleaned from the provision itself or from a relevant report of the Law Reform Commission or the explanatory memorandum to the bill or from a statement of a responsible official to the Legislative Council in respect of the bill.” [69]

57.  The Court of Final Appeal in Director of Immigration v Chong Fung Yuen[70] also stated that[71]:

(i) The courts’ role under the common law in interpreting the statute is to construe the language used in the text of the instrument in order to ascertain the legislative intent as expressed in the language. Their task is not to ascertain the intent of the lawmaker on its own. Their duty is to ascertain what was meant by the language used and to give effect to the legislative intent as expressed in the language. It is the text of the enactment which is the law and it is regarded as important both that the law should be certain and that it should be ascertainable by the citizen.

(ii) The courts do not look at the language of the article in question in isolation. The language is considered in the light of its context and purpose[72]. The exercise of interpretation requires the courts to identify the meaning borne by the language when considered in the light of its context and purpose. This is an objective exercise.

(iii) Whilst the courts must avoid a literal, technical, narrow or rigid approach, they cannot give the language a meaning which the language cannot bear[73].

(iv) The courts should give a generous interpretation to the provisions that contain constitutional guarantees of freedoms. However, when interpreting the provisions that define the categories of permanent residents, the courts should simply consider the language in the light of any ascertainable purpose and the context[74].

58.  In HKSAR v Cheung Kwun Yin^[75], the Court of Final Appeal stated that the purposive interpretation did not disregard the ordinary meaning of words, and in interpreting a statute, unless the context or purpose points to a different meaning, words were given their natural and ordinary meaning.

59.  In T v Commissioner of Police[76], the Court of Final Appeal stated that the courts should avoid producing absurd or unreasonable results in interpreting statutes[77].

VI 1. B(c) Laws relating to relevant constitutional issues

60.  Article 27 of the Basic Law states that Hong Kong residents shall have freedom of speech and freedom of assembly, of procession and of demonstration. Persons in Hong Kong other than [Hong Kong residents] shall enjoy these rights and freedoms.[78]

61.  Article 39 of the Basic Law states that the provisions of the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and International Labour Conventions as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region. The rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by the law, and such restrictions shall not contravene the provisions of the preceding paragraph of this Article.

62.  It follows from Article 39 of the Basic Law that the relevant rights and freedoms may be restricted as prescribed by law, but such restrictions shall not contravene the provisions of the international covenants and conventions referred to in the preceding paragraph, and that they shall not be restricted unless prescribed by law.

63.  Article 42 of the Basic Law also states that the persons referred to in paragraph 60 above shall have the obligation to abide by the laws.

64.  Article 16(2) of the Hong Kong Bill of Rights[79] states that everyone shall have the right to freedom of expression. However, Article 16(3) also states that:

(i) The exercise of the rights above carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but such restrictions shall only be such as are provided by law and are necessary:

(1) for respect for the rights or reputations of others; or

(2) for the protection of national security or public order (ordre public), or of public health or morals.

65.  Article 17 of the Hong Kong Bill of Rights also states that the right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.

66.  The case law states that the nature of freedom of speech or expression covers both the content and form of expression, and includes not only the mainstream opinions or forms of expression, but also the opinions and forms of expression that are not mainstream, are deviant or offensive, or even unpopular.

67.  The Supreme Court of the UK in a recent case Director of Public Prosecutions v Ziegler[80] said that arrests, prosecutions, convictions and sentences were all restrictions on fundamental rights such as freedom of expression and freedom of peaceful assembly.

68.  Freedom of expression is a constitutional right protected by both the Basic Law and the Hong Kong Bill of Rights. However, both the Basic Law and the Hong Kong Bill of Rights make it clear that these rights may be restricted by law, subject to the following two requirements[81]:

(i) The restrictions must be prescribed by law; and

(ii) The restriction must be necessary to safeguard a specific legitimate purpose.

69.  In HKSAR v Ng Kung Siu[82], the Court of Final Appeal states that freedom of expression is a fundamental freedom in a democratic society. It lies at the heart of civil society and of Hong Kong’s system and way of life. The courts must give a generous interpretation to its constitutional guarantee. In particular, it has to be ascertained whether the matter that requires justification is a wide or limited restriction. The wider the restriction, the more difficult it would be to justify. In considering the extent of a restriction, it is well settled that any restriction on the right to freedom of expression must be narrowly interpreted.

70.  In Yeung May Wan & Others v HKSAR[83], the Court of Final Appeal states that the freedom to demonstrate is a constitutional right. It is closely associated with the freedom of speech. These freedoms of course involve the freedom to express views which may be found to be disagreeable or even offensive to others or which may be critical of persons in authority. These freedoms are at the heart of Hong Kong’s system and it is well established that the courts should give a generous interpretation to the constitutional guarantees for these freedoms in order to give to Hong Kong residents their full measure.[84]

71.  Au J of the Court of First Instance of the High Court[85] stated in Sham Wing Kan[86] that:

“It is trite that the courts adopts a purposive construction of a statutory provision, which should be construed in its context, and insofar as possible, the court should adopt a construction which is constitutionally compliant.”[87]

72.  If, as in the present case, a restriction on freedom is imposed for reason of public health, the prosecution must prove that the restriction must be necessary and proportionate (proportionality), striving to strike a balance.

73.  According to Leung Kwok Hung[88], the burden is on the Government to justify any restriction imposed. This approach to constitutional review involving fundamental rights, which has been adopted by the Court, is consistent with the approach followed in many jurisdictions. In a society governed by the rule of law, the courts must be vigilant in the protection of fundamental rights and must rigorously examine any restriction that may be placed on them.

74.  The Court of Final Appeal also points out in Leung Kwok Hung[89] that the constitutional requirement of necessity involves the application of a proportionality test[90], which the CFA in Hysan Development Co Ltd v Town Planning Board[91] states that the court has to decide through a four-step proportionality analysis as follows:

(i) The restriction must pursue a legitimate aim;

(ii) The restriction must be rationally connected to that legitimate aim;

(iii) The restriction must also be no more than is necessary to accomplish that legitimate aim; and

(iv) Where an encroaching measure has passed the three steps above, the analysis should incorporate a fourth step, asking whether a reasonable balance has been struck between the societal benefits of the encroachment and the inroads made into the constitutionally protected rights of the individual, asking in particular whether the pursuit of that societal interest results in an unacceptably harsh burden on the individual.

VI 1.C Discussion and consideration on the interpretation of the issue of “prohibited group gathering" and relevant constitutional issues

75.  The Regulation targets at prohibited group gathering and, according to the provisions applicable at that time[92], it set out:

(i) group gathering meant a gathering of more than 4 persons; and

(ii) the conditions under which group gatherings were prohibited[93].

76.  The regulation does not provide a definition of the term “gathering”. Paragraphs 53 to 59 above have set out the main principles of statutory interpretation, and paragraphs 66 to 74 above have set out the matters to be considered in the interpretation of an ordinance where it restricts a constitutional right.

77.  One of the key issues in this appeal is the interpretation of the term “gathering”, while the maximum number of people under the “No-gathering Order” is not a key issue in the present case.

78.  I notice that in the Regulation, the term “gathering” is presented rather than, for example, a limitation of the maximum number of people present or the distance of people from each other.

79.  In the authoritative dictionaries below, “gathering” has the following meanings:

(i) “A group of people meeting together for a particular purpose” (Collins Cobuild English Dictionary) (Chinese translation);

(ii) “A meeting of people for a particular purpose” (Oxford Learner's Dictionaries Online) (Chinese translation);

(iii) “A bringing together or coming together of people; an assembly, meeting” (Shorter Oxford English Dictionary) (Chinese translation).

80.  It can be seen from the explanations of the above dictionaries that the ordinary meaning of the word “gathering” includes the concept of “common purpose” as mentioned by the magistrate.

81.  In determining whether there was any gathering as prescribed in the Regulation, Mr Wong said that “common purpose” was a necessary but not crucial consideration. The other appellants pointed out that it would be improper to consider “common purpose” for the following reasons:

(i) Whether or not people who gathered had a common purpose had nothing to do with the purpose of epidemic prevention for which the regulations were enacted; and

(ii) The spread of the virus had nothing to do with whether there was a common purpose among the people involved.

However, the distance of people from each other is much associated with the transmission of the virus.

82.  As noted above, the interpretation of the word “gathering” in the Regulation must be based on the purpose for which it was enacted. The Regulation was made for preventing, protecting against, delaying and controlling the transmission of the virus and relevant cases[94].

83.  It is well known that social distancing is an anti-epidemic measure widely used around the world, including the requirement of ensuring that people keep a certain distance apart, and the number of people gathered is also a concern. The larger the number of people gathered, the higher but not lower the risk of virus transmission, and the more difficult it will be to track and control infection cases. Therefore, setting an upper limit of the number of people in a gathering as necessary and proportionate to the circumstances is a reasonable and proper measure.

84.  However, it would be harsh if an upper limit is set on the number of people present at a particular location or occasion regardless of the circumstances, so that those present breach the regulation once the number of people present exceeds the limit. The Regulation operates on the basis of the number of people in the gathering, counting only the number of people in a gathering within the meaning of the Regulation, instead of all people present; this is a more lenient approach.

85.  Since the number of people in a gathering is the basis for considering whether there is a breach of the Regulation, the meaning of a gathering is an important issue. I am of the view that if a number of people are present at the same place without a common purpose, it would be hard to say that they gather. If the people present at a place are simply regarded as gathering irrespective of whether they have a common purpose, then all those who walk together along busy streets would be regarded as gathering. This does not appear to be the legislative intent nor conform with the ordinary meaning of the word “gathering”.

86.  Of course, it is not, as some appellants suggested, that mere proof of a common purpose among the people is sufficient to find that they were gathering, there are also other factors which must be considered.

87.  In the context of the Regulation, the distance of people from each other is an important factor for the constitution of a gathering. This I do not object.

88.  According to mainstream medical opinion, the virus involved in the pandemic could be transmitted by air-borne droplets, so keeping a proper distance apart was an effective preventive measure. Of course, it is not impossible for the virus to be transmitted by other means, for example, one may get infected by having contact with the virus released by a patient in the environment.

89.  It would not be the legislative intent to determine whether there is a prohibited group gathering merely based on the presence of a common purpose. To give an obvious example, if four people got to a football pitch for the same purpose, each standing at one of the four corners of the pitch at about 100 metres apart, without any direct or indirect contact, it is believed that in general a reasonable person would not consider this to be a restricted gathering within the meaning of a regulation enacted for epidemic prevention. Of course, the evidence showing the overall circumstances would still be required in order to determine whether or not these people constituted a gathering. Differences in detail may lead to different conclusions.

90.  Therefore, the court has to consider whether the people concerned had a common purpose. “Common purpose” is also an important factor in determining whether there was a gathering, in distinction from totally unassociated people just standing/sitting together. However, people are not found to be gathering by the sole proof of having a common purpose, other relevant factors are required to be considered as well. Distance is an important consideration, and the further apart the people are from each other, the more likely that they do not constitute a gathering.

91.  The magistrate pointed out that to determine whether there was a “gathering”, the court would need to consider the overall factors and all relevant circumstances in the case, including whether the people who gathered had a common purpose, whether the gathering was organized in advance, the interaction among the people who gathered, the duration of the gathering and the distance of the people who gathered from each other.[95] I agree with this view.

92.  The factors raised by the magistrate for consideration in general coincide with those set out in the HKSAR v. Ou Lihua[96]. In dealing with Ou Lihua, which was a case involving almost the same rule, I pointed out that:

“27. Generally speaking, the word “gathering” means assembling or getting together.

28. When judgments are made, the circumstances as a whole as shown by the evidence shall be taken into account, and if appropriate, the matters that can be considered include the following (while it is impossible to make an exhaustive list of the matters encompassing all instances):

(1) the circumstances surrounding the location involved in the case;

(2) the distance between the various persons concerned;

(3) the similarities and differences of the words and acts of the various persons;

(4) whether the circumstances showed that the various persons shared a common purpose;

(5) whether the circumstances showed some arrangements or preparations for the activity; and

(6) the duration when the persons concerned were present, and so on."

93.  Among the above matters, those relevant to the facts of the case are factors for the finder of facts to consider in determining whether there was a gathering, but it is important that since statutory interpretation is for ascertaining the legislative intent, it is necessary to take into account in the consideration that the purpose for enacting the Regulation was epidemic prevention.

94.  In a pandemic situation, the government, when faced with an extremely serious public health situation, had to make measures based on the knowledge and information available at the time in response to the current situation. The design had to meet the anti-pandemic objectives, balance the overall interests and various rights in the community and also take into account the needs of various parties in reality. The measure of social distancing was a preventive measure that had been implemented in various places and considered to be substantially effective. The distance of 1.5 metres has been used in many places under different situations. Some places sometimes adopt longer distances and others adopt shorter distances depending on the actual situation, and the decision must involve consideration on various aspects. There is scientific evidence that a distance of 1.5 metres is effective in reducing the risk of transmission, but it does not mean that maintaining such distance could prevent getting infected with the disease.

95.  One of the submissions made by the appellants was that as long as each person kept a distance of 1.5 metres from others, it would not constitute a group gathering. I disagree because, on the one hand, the ordinance did not make this distance a prerequisite for group gathering; and on the other hand, 1.5 metres was only a standard set down based on the scientific knowledge after balancing the interests of all parties in view of environmental needs. This standard was applied as a criterion for “dispersing a group gathering”[97], but not a prerequisite for constituting a group gathering. Obviously, it was the intention that this mandatory requirement is not a prerequisite for constituting a group gathering. In the view of this court, for the purposes of the Regulation, whether or not a gathering is constituted can only be decided by looking at the overall circumstances disclosed by the evidence.

96.  The appellants also submitted that the Regulation involved prosecution for simply non-compliance, which was too harsh and unfair, compared to the requirements under “dispersable group gathering”. I do not agree with this argument. The term “prohibited group” targets at gathering of four or more persons who are sufficiently connected. The term “dispersable group gathering” targets the situation where there are more than one gathering combinations and the total number of people in these different gathering combinations is more than four. The people who made up these different combinations may be unrelated and unconnected. An example of a dispersable group gathering which one can imagine is the situation where foreign domestic helpers rest in public places on a holiday. Two or three of them sit together, each individual combination does not form any group gathering. The combinations are not necessarily connected, but the total number of people in the area they occupy is not insignificant. Under the regulation governing dispersable group gatherings, provided there is a distance of 1.5 metres between groups, it would be acceptable by law. If the distance is shorter, an officer would have the power to disperse the those in breach; and for exercising this power, an officer might make such orders which were reasonably necessary or expedient, including flexibly ordering the combinations to have a distance apart in compliance with the law, and it is an offence to refuse or wilfully neglect to comply with such an order. In addition, officers are entitled to use such force that is reasonably necessary to disperse that dispersable group gathering. In my view, it is hard to say that the measures against dispersable group gatherings are more lenient than those against prohibited groups.

97.  Both types of groups involve the same concern, which is the gathering together of multiple people with the risk of virus transmission, but the different regulations are based on the government’s assessment, taking into account various rights and practical needs, and they do not lead to any injustice or contradiction as the appellants criticized. Dispersable groups may involve the presence of multiple unconnected gathering combinations at the same place, compared with the consideration of accommodating interconnected persons (prohibited groups), a more stringent measure is understandable for the purpose of epidemic prevention. Therefore, even if there are less than four persons in each gathering combination, once the distance of the gathering combinations is less than 1.5 metres from each other and the total number of people in the combinations is more than four, it becomes a dispersable group gathering which may be dispersable by force. A prohibited group must involve four or more interconnected people getting together, which is dealt with differently when compared with a dispersable group, and this is understandable.

98.  One of Mr Chim’s submissions was that even if the court found that there was a gathering, the court should still consider how many groups (gathering combinations) it consisted of. The importance of this issue was that, under the correct legal interpretation, if the eight persons in the present case were in fact two separate gatherings of only four persons each, they were not a prohibited group. I do not think it is the correct way to deal with it. As stated above, the court should determine whether there was a group gathering, i.e. a gathering of more than four persons, according to the evidence, and the key is whether the evidence is sufficient to prove beyond reasonable doubt that these persons were gathering. If this can be proved, then it does not matter whether the people who made up this gathering came from different backgrounds or organizations, or whether technically they were artificially divided into combinations. In the circumstances of the present case, it was for the court to decide whether there were two separate gathering combinations of four persons each at the scene as described by the appellants, or there was a gathering of eight persons as alleged by the prosecution, which was a finding of fact according to the evidence.

99.  The appellants submitted that the United Nations Human Rights Committee has issued the following guidelines in relation to Article 21 of the International Covenant on Civil and Political Rights (the right to peaceful assembly):

“IV. Restrictions on the Right of Peaceful Assembly

...

45. The protection of “public health” may exceptionally permit restrictions to be imposed, for example where there is an outbreak of an infectious disease and gatherings are dangerous. This may in extreme cases also be applicable where the sanitary situation during an assembly presents a substantial health risk to the general public or to the participants themselves.

...

59. In general, States parties should not limit the number of participants in assemblies. Any such restriction can be accepted only if there is a clear connection with a legitimate ground for restrictions as set out in article 21, for example where public safety considerations dictate a maximum crowd capacity for a stadium or a bridge, or where public health considerations dictate physical distancing.”

100.  The relevant guidelines relate to Article 21 of the Covenant, which provides as follows:

“The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.”

101.  This is one of the guidelines issued by the United Nation Human Rights Committee from time to time and has no legal status in Hong Kong. However, States parties will take this into account when they formulate laws and measures. As noted above, the relevant rights have been implemented in accordance with Article 39 of the Basic Law and the constitutionality of the permissible restrictions should be assessed pursuant to the established legal principles[98].

102.  With the exception of Mr Wong[99], the submissions of the other appellants all touched on the issue of the unconstitutionality of the relevant regulation, each of them suggested that the Regulation was unconstitutional as they excessively encroached the relevant constitutional rights, in particular where the distance of 1.5 metres was not used as the key consideration in interpreting what a prohibited group was.

103.  In the present case, it is not disputed that the Regulation restricts some constitutional rights.

104.  I consider this issue according to what is stated in paras 68 to 74 above.

105.  It is beyond any doubt that the aim pursued by the relevant provisions is a legitimate one.

106.  As mentioned above, the formulation of epidemic prevention measures involved considerations from various perspectives. Apart from the anti-epidemic function and constitutional rights, it was also necessary to take into account the actual impact of the measures on the overall economy, the commercial operation of particular industries and the public, such as the impacts on the public’s need to be out for meals and travel convenience, and to strike a balance. This was clear from the many documents provided by the authorities to the Legislative Council.

107.  In passing, one of Mr Wong’s submissions was that the court should not take into account the kind of documents referred to in the preceding paragraph in interpreting the relevant regulation for the following reasons in general:

(i) The regulation was subject to the negative vetting procedure, and by the time the authority made its statements to the Legislative Council, it was already two months after the regulation came into force and one month after the occurrence of the case;

(ii) According to the authoritative text Bennion on Statutory Interpretation, the court should not rely on statements made after the promulgation of a regulation in interpreting legislation;

(iii) The Court of Final Appeal also points out in Chong Fung Yuen[100] that a prudent approach is particularly called for where the courts intend to consider post-enactment materials[101].

108.  I emphasise that by referring to the above-mentioned documents which the authorities submitted to the Legislative Council, I am not suggesting that they have been used in the interpretation of the provisions. I just want to indicate, as it can be seen from these documents, in adjusting the details of the restrictive measures from time to time, the authorities have taken into account various factors including those set out in paragraph 106 above.

109.  One point in Mr Chim’s submissions[102] was that even if a member of the public complied with the requirements of the Cap. 599F[103] regulation, he would still be in breach of the Regulation, which would be an absurd or unreasonable result and would leave the public in a state of bewilderment and confusion. In my view, this submission has no merit. Although restaurants are a kind of public place and both regulations were subsidiary legislations made under the same ordinance[104], interpretation must be undertaken as a whole and a public place such as a restaurant was governed by Cap. 599F. The Regulation, since the version of 20 November 2020, has stated in section 3(1)(a) that what was prohibited was “a group gathering at a public place other than Cap. 599F premises”. However, the version in force at the time of the offence did not express in such a way and the relevant wording was “no group gathering may take place in any public place during a specified period”. In my view, the different presentations adopted in regulations at different times do not necessarily indicate a change in legislative thinking. It was likely that the implied meaning was just made explicit in the later version of the Regulation. In any event, the Regulation and Cap. 599F have been co-existing, and it is clear from the provisions that Cap. 599F targets at the catering business and the related premises and other scheduled premises such as places of entertainment, fitness centres, beauty salons, etc. The legislative intent is clear: even though the premises of catering business and scheduled premises are public places, regulatory enforcement should be done pursuant to Cap. 599F, and the Regulation governed public places other than those stated in Cap. 599F. The targets of the two regulations are different and, therefore, even if the specific rules are different, they would not give rise to the undesirable consequences as described by Mr Chim. Moreover, the design of different rules within one regulation or in different regulations involve the various considerations set out above, and it would not be meaningful to insist on comparing different rules.

110.  The magistrate had the following observations, with which I fully agree:

“ (x) I have not neglected that when Cap. 599G was made by the legislator, the purpose was to prevent, protect against, delay or otherwise control the incidence or transmission of COVID-19. From the global experience of COVID-19 raging around the world, the lower the number of people gathering, the better the chance to achieve the purpose of epidemic prevention. The title of Cap. 599G clearly states “Prohibition of Group Gathering”. As the name implies, Cap. 599G was also made towards this direction by the legislator aiming at minimizing gatherings of people and the number of people in gatherings, in order to achieve the purpose of prohibiting group gatherings. However, in practice, due to various social needs, contact between people is not possible to be banned completely. What the legislator could do was to take different measures in response to different situations and occasions, in order to minimize gatherings of the people and the number of people in gatherings for the purpose of epidemic prevention. Therefore, I believe that the legislator has adopted different measures in different situations to achieve the same purpose of epidemic prevention. Hence, the restrictive measures adopted by the legislator in dealing with “prohibited group gatherings” do not necessarily have to be the same as those in dealing with “dispersable gatherings”. In other words, I do not accept the argument advanced by the defence that since “dispersable gathering” contains the element of “1.5-metre distance”, in order to achieve the same purpose of epidemic prevention, “prohibited group gathering” must also contain the element of “1.5-metre distance’;

(xi) ... In addition, the legislator also had to take into account the various needs of the providers, operators, practitioners and users of catering business and scheduled premises, so it is actually unobjectionable that the restrictive measures adopted by the legislator in Cap. 599F for the purpose of epidemic prevention are different from the restrictive measures of “prohibited group gathering” in Cap. 599G. I do not think that the two can be regarded as comparable;”

111.  I agree with Mr Wong that the regulation(s) had the specific purpose of targeting at the virus. In this context, the presumption that the legislature would not interfere with the citizens’ fundamental freedoms without clear words should be taken into account[105] and a narrow interpretation should be given to the provisions restricting freedom of peaceful assembly[106]. However, I do not agree with him that the legislative intent of the regulation should not be taken as prohibiting all gatherings of more than four persons in a public place, as a gathering of four persons did not necessarily pose a public health risk in respect of virus control. The four-person requirement was set to reduce the public health risk and had been adjusted in response to change of circumstances. Moreover, what was restricted was gatherings of which the number of people was more than the statutory maximum at that time, rather than regarding the presence of people more than the maximum number at a certain place as a breach of the regulation. The physical proximity stressed by the appellants should be taken into account, but common purpose was also a factor to be considered and was indeed important. There were other relevant factors which should be considered as well. The duty of the finder of facts was to determine whether there was a prohibited group gathering based on the overall circumstances revealed by the evidence.

112.  Mr Chim submitted that if common purpose was taken into account as a consideration of the existence of a gathering and physical proximity was ignored, it was not a regulation reasonably related to the maintenance of public health. I find it difficult to agree with this submission. As stated above, social distancing was a commonly used preventive measure, limiting the number of people who gathered was one of the useful regulations, there was a purpose for expressing it in terms of gathering[107], and the presence of a common purpose was a consideration in determining whether there was a gathering.

113.  For the foregoing reasons, I find that the Regulation was rationally connected to the maintenance of public health, and therefore I proceed to deal with the consideration of the third step mentioned in paragraph 74 above.

114.  In assessing whether the relevant restriction has gone beyond what is necessary to accomplish the relevant legitimate aim, two standards have been applied by the court: (i) whether the impugned measure was “no more than necessary to accomplish that legitimate aim” (“no more than necessary”), and (ii) whether the impugned measure is “manifestly without reasonable foundation” (“manifestly without reasonable foundation”).

115.  In the present case, the magistrate has applied the test of whether it was “manifestly without reasonable foundation” and found that the measure in question was proportionate.

116.  On this issue, the Court of Final Appeal in the Hysan Development[108] has elaborated with the following key points[109]:

(i) The first standard was whether the impugned measure was “no more than necessary [to accomplish the legitimate aim in question]”. That laid down a test of reasonable, not strict, necessity. If the court was satisfied that a significantly less intrusive and equally effective measure was available, the impugned measure might be disallowed. An alternative standard was one which asked whether the encroaching measure was “manifestly without reasonable foundation”. This was a standard closely related to the concept of “margin of discretion”.

(ii) The difference between these two standards was one of degree. They indicated positions on a continuous spectrum of “reasonableness” rather than wholly separate concepts. The acceptable range of reasonable alternatives might be significantly narrower where the standard of reasonable necessity was applicable.

(iii) The choice of standard in a case depended on the context of the appropriate margin of discretion. In cases calling for a wide margin of discretion, a threshold of “manifestly without reasonable foundation” might be appropriate; cases whereas admitting of a narrow or no margin of discretion were more appropriately analysed on the basis of reasonable necessity [to accomplish the legitimate aim in question].

(iv) The scope of the margin of discretion varies according to the context. The significance and degree of interference with the right concerned, the nature and features of the encroaching measure, the identity and constitutional role of its originator and any special competence possessed by such person were relevant factors.

(v) In some cases, the interference might be so great that neither proportionality analysis nor margin of discretion were meaningful concepts. A right might be held to have been encroached because the impugned measure had destroyed the “essence of the right”.

(vi) In cases where a wide margin of appreciation is required, the court should apply the “manifestly without reasonable foundation” test. In such cases, the court recognises that the decision-making authorities for the impugned measure is in a better position (if it has special access to information and has the expertise to make a comprehensive assessment) to assess whether the measure is appropriate and in the public interest and should be given a wide margin of discretion. In practice, if the court decides to apply the “manifestly without reasonable foundation” test, the court will give the decision-making authorities considerable latitude to choose between a wide range of possible options. If the final option pursues a legitimate aim and is rationally connected to that aim, the court will not insist that the lesser intrusive option be adopted by the decision-making authorities. The court will only intervene if the option chosen by the decision-making authorities is “clearly beyond the spectrum of reasonable options”.[110]

117.  I also refer to the following observations of the Court of Appeal of the UK in R (Dolan) v Secretary of State for Health and Social Care and Another[111] when it held that the UK’s “lockdown” measure did not breach human rights provisions under the European Convention on Human Rights:

“97. ...we consider that a wide margin of judgement must be afforded to the Government and to Parliament. This is on the well-established grounds both of democratic accountability and institutional competence. We bear in mind that the Secretary of State had access to expert advice which was particularly important in the context of a new virus and where scientific knowledge was inevitably developing at a fast pace. The fact that others may disagree with some of those expert views is neither here nor there. The Government was entitled to proceed on the basis of the advice which it was receiving and balance the public health advice with other matters.”[112]

118.  I agree that in the context of this pandemic, the court should give the government wide discretion to deal with public health threats. The government’s policy on combating the pandemic was formulated with the professional advice given by the expert advisory panel coupled with the input of all sectors of the community, and the court was far less equipped in this regard. While not viewing the restrictions on rights lightly, I think that the court should not easily substitute its own opinion for any public health policy formulated upon taking into account expert opinion and the interests of all parties, and therefore I agree that the “manifestly without reasonable foundation” test should be applied and the issue considered in that light.

119.  On the issue of whether the relevant provisions on “prohibited group gathering” is manifestly without reasonable foundation, I have taken into account the following matters, most of which were also considered by the magistrate:

(i) Article 2(1) of the Hong Kong Bill of Rights[113] provides that: “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.”

(ii) In paragraph 26 of the General Comment no. 36 (2019) on article 6 of the International Covenant on Civil and Political Rights (the right to life), the UN Human Rights Committee points out that the duty to protect life also implies that States parties should take appropriate measures to address the general conditions in society that may give rise to direct threats to life or prevent individuals from enjoying their right to life with dignity. These general conditions may include the prevalence of life threatening diseases.

(iii) On 11 March 2020, the World Health Organization (WHO) declared that the COVID-19 outbreak constituted a pandemic globally. As at 25 March 2020, there were over 430,000 reported cases of COVID-19 from 199 countries/areas/territories around the world. The total number of confirmed cases in Hong Kong doubled from 193 to 454 from 19-26 March 2020, and there were more and more local cases of unknown source. According to a study released by the University of Hong Kong on 20 March 2020, there was the obvious imminent risk of sustained local outbreak in Hong Kong at that time.

(iv) COVID-19 is a new infectious disease with numerous unknowns. There is only limited scientific evidence in terms of the virus’ actual path of transmission and the effectiveness of reduced social contacts on the spread of the virus, especially at the initial stage of the pandemic. The “No-gathering Order” was formulated according to the professional opinions of the expert advisory panel.

(v) Initially quite a number of countries implemented measure(s) of reducing social distance [sic], and the WHO also advocated reduction of social contacts to control the spread of the virus.

(vi) In facing the grave public health crisis the virus brought to Hong Kong and the world at large, it was not unreasonable for the policy-making authorities, in laying down anti-epidemic policies, to formulate measures on the basis of the knowledge and information available at that time.

(vii) If any employee was required to be quarantined and could not go to work due to his/her own infection and need for treatment or someone else’s infection which turned him/her into a close contact, it would bring about negative effects to the overall economy as well as individual public or private organizations. The burden would aggravate with the increased number of infections, and individuals might also suffer loss of income.

(viii) The “No-gathering Order” is not a permanent measure. There are time limits on both the Regulation itself or the periods which the “No-gathering Order” specifies – during the period in question, the Regulation was set to be implemented for 3 months and the period specified for the “No-gathering Order” was 14 days. When it comes to the consideration of whether the “No-gathering Order” needs to be extended, the SFH has to take into account whether such an extension is needed for “preventing, protecting against, delaying or otherwise controlling the incidence or transmission of [COVID-19]”. Therefore, the effective period of the “No-gathering Order” would be reviewed regularly.

(ix) Even if the “No-gathering Order” is extended, the SFS can still adjust the restriction on the number of people for group gatherings. In fact, the restriction on the number of people in group gatherings has been eased with the number of confirmed cases falling back and tightened with the number of confirmed cases going up[114].

(x) Although the “No-gathering Order” has restricted the ways of exercising the freedoms of expression, assembly and so on, it does not restrict the substantial content of what is to be expressed. Those wishing to exercise such rights may still express their demands with no group gathering in breach of the Regulation constituted; or express their opinions on the internet or social media, and conduct processions and assemblies in compliance with the Regulation.

(xi) Under section 7, it is a defence for those who have lawful authority or reasonable excuse.

(xii) Schedule 1 of the Regulation has set out a number of exempted group gatherings. Even though processions and demonstrations are not among the exempted group gatherings in Schedule 1, those who intend to conduct a group gathering for a procession or demonstration may apply to the Chief Secretary for Administration for permission in compliance with the conditions set out under section 5(1) of the Regulation[115].

(xiii) In R (Dolan)[116], the UK Court of Appeal had to deal with the issue of whether a lockdown order had excessively restricted rights, and some of the restrictions also concerned limits to the number of people. The Court of Appeal took the following matters into account:

(1) The public health consequences of the virus are not to be measured only in the number of deaths, but also include many people, in particular the elderly, who were hospitalized and many placed in intensive care units, with intrusive treatment. Moreover, the extent of the many serious consequences of the long COVID remain unclear;

(2) At the time when the authorities formulated the relevant Regulations, the state of knowledge about the virus was uncertain. Although the relevant knowledge continues to develop, many things were still uncertain;

(3) The government was entitled to take into account different public opinions and interests of different people when formulating the policies and measures to strike a balance between public health and the effects on areas such as the economy or education;

(4) The difficulty of the issues the authorities face should not be viewed lightly because it involved the evaluation of scientific evidence, and the court should be slow to intervene;

(5) The court has to take into account whether the regulation has provided, for instance, reasonable excuse as a defence; and

(6) Whether the regulation in question is time-limited and subject to regular review.

(xiv) Hon Chow J[117] said in梁志洪 訴 香港政府[118] that:

“7. The basic rights and obligations of the citizens set out in Articles 27 and 28 of the Basic Law above are not absolute. I take the view that by way of a ‘proportionality analysis’ of the Prevention and Control of Disease (Prohibition on Group Gathering) Regulation, Cap 599G (the ‘No-gathering Order’) the qualification of the restriction on those rights (i.e. a group gathering of more than 8 people in any public place is prohibited during the specified period) may be allowed for these reasons:

(1) The No-gathering Order is for the pursuit of legitimate aims, i.e. public health and safety;

(2) The No-gathering Order has a rational connection with those aims;

(3) The No-gathering Order cannot be categorized as ‘manifestly without reasonable foundation’;

(4) A reasonable balance has been accomplished between the societal benefits derived from the No-gathering Order and the encroachment on the constitutionally protected private rights, without leading to an individual having to face an unbearably harsh burden.”

120.  I have also taken into account all the matters the appellants raised in their submissions, including the following:

(i) The freedom of speech is an important constitutional right, which includes the rights of procession and demonstration;

(ii) Those who exercise the freedom of speech has the right to choose the way by which the right is exercised;

(iii) As part of the related constitutional rights, the government has the positive duty to take reasonable and appropriate measures to enable lawful assemblies to take place peacefully[119];

(iv) In previous cases involving freedom of speech and freedom of assembly, the court would normally adopt the standard of “no more than reasonably necessary for accomplishing a legitimate aim”[120]. In any event, the two standards described in paragraph 114 above are positions on a continuous spectrum[121]. Even if the court does not adopt the standard of “no more than reasonably necessary for achieving a legitimate aim”, which is of a higher one, one can also refer to Infinger, Nick v the Hong Kong Housing Authority[122], in which a standard lower than “no more than reasonably necessary for accomplishing a legitimate aim” but higher than “manifestly without reasonable foundation” was adopted;

(v) On the interpretation of the Regulation, the way adopted by the magistrate and that described by the respondent in their submissions did not conform to sufficient certainty which is one of the constitutional requirements[123];

(vi) The magistrate’s view on the defence provision and the respondent’s proposition in their submissions were both excessively stringent, which would lead to non-conformity to proportionality by the Regulation itself and at the operational level;

(vii) Even if those who are minded to exercise the relevant right are entitled to apply to the Chief Secretary for Administration for permission of a group gathering according to section 5 of the Regulation, the conditions are harsh, and permission will only be granted by reason of the exceptional circumstances of the case that otherwise serves the public interest of Hong Kong[124];

(viii) The various stipulations in the Regulation in the present case do have a bewildering effect and are contradictory to other regulations, especially many of those in Cap 599F. One may find them bewildering and may even breach the law inadvertently; and

(ix) In 梁志洪[125] which was cited by the respondent, the applicant in the case did not put forward any grounds for a judicial review, and neither did the court give any explanations for the adoption of the standard of “manifestly without reasonable foundation”; and the case did not involve any analysis on operational proportionality or facts on political expression, therefore it is of no referential value.

121.  In relation to (ix) in the preceding paragraph, I concur that the judgment is a very brief precedent with limited referential value.

122.  Items (i) and (ii) are important factors to be taken into account in assessing whether the Regulation in question is constitutional, which is also one of the most important issues in the present case. Relevant considerations can be found in various places in this judgment, and I do not intend to write anything more about this here.

123.  Item (iii) concerns the authorities’ responsibility on the measures to be taken in relation to a lawful assembly conducted in a peaceful manner. The present case did not involve the situation where the authorities had not taken measures so that the assembly could not proceed in a peaceful manner. Moreover, and more importantly, the assembly being lawful is the precondition for the authorities to bear the relevant responsibilities.

124.  In relation to (iv), my analysis, considerations and conclusion can be found in paras 114 to 118 above.

125.  Item (v) concerns whether the relevant Regulation has adequate certainty. The appellants allege that the provisions do not have adequate certainty for two main reasons:

(i) If the existence of a gathering was not determined by the physical distance, there would be no adequate certainty; and

(ii) There are contradictions among restrictions within the Regulation in question and between regulations, which cause bewilderment.

126.  On the issue that restrictions on constitutional rights have to be prescribed by law, the Court of Final Appeal said in Leung Kwok Hung[126] that:

(i) The phrase “prescribed by law” is consistent with international human rights jurisprudence, which mandates the principle of legal certainty. To satisfy this principle, the law has to be adequately accessible to the citizen and must be formulated with sufficient precision to enable the citizen to regulate his conduct[127].

(ii) The citizen must be able (if necessary, upon taking appropriate advice) to reasonably foresee the consequences which a given action may entail. Those consequences need not be foreseeable with absolute certainty: experience shows this to be unattainable. Again, whilst certainty is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice[128].

(iii) There is an inevitable tension between requiring a law to be formulated with sufficient precision and the desirability of avoiding excessive rigidity in the law. The appropriate level of precision must depend on the subject matter of the law in question[129].

127.  The appellants mainly focused on the interpretation of the term gathering, and stressed the point that if 1.5 metres became a condition of a gathering, there would be no question of inadequate certainty, otherwise, certainty would be inadequate, and those various issues which the appellants set out in their submissions would arise.

128.  As described in paras 76 to 98 above, whether a gathering was constituted was a judgement made after considering all relevant factors, which was a finding of facts according to the evidence. I take the view that the elements of the charge are adequately certain and not unconstitutional accordingly.

129.  Regarding (vi), I take the view that the grounds put forward by the appellants are not substantiated. The reasons will be set out when the issue relating to reasonable excuse[130] is dealt with below.

130.  In relation to (vii), I take into account that there is in fact no relevant application in the present case. In any event, the important thing is that the measures were designed to provide channels for applying for the permission to have a group gathering.

131.  On (viii), I have done an analysis and given my considerations in paragraph 109 above.

132.  In the context of the present case, when assessing whether the restrictions in question were necessary for the purpose of meeting the legislative intent, the test adopted should be close to “manifestly without reasonable foundation”. Having considered the overall relevant circumstances, including what was described in paragraph 119 above and the submissions from the parties of both sides, I take the view that the restrictions in question do meet the criteria of proportionality and satisfy the Step 3 analysis described in paragraph 74 above.

133.  Following that, I consider the Step 4 analysis described in paragraph 74 above.

134.  The magistrate took the view that a reasonable balance had been achieved between the social benefits brought about by the formulation of the relevant provisions on “prohibited group gathering” (i.e. maintaining public health and accordingly mitigating the economic losses incurred by this public health danger) and the restrictions on the freedom of peaceful assembly, procession and demonstration protected by the Basic Law and the Hong Kong Bill of Rights, and that no related individual would be caused to face any unacceptable harsh burden. Taking into account the various considerations in the previous paragraphs, I concur with this conclusion.

VI 1.D Conclusion

135.  Based on the above reasons, I rule as follows:

(i) The Regulation is constitutional;

(ii) A gathering of more than four people was a group gathering; and

(iii) Whether a gathering was formed is a finding of fact. The fact finder has to take into account the epidemic prevention purpose of the Regulation and the overall relevant circumstances revealed by the evidence, especially the distance of people from each other and whether there was a common purpose, to decide if there was a gathering.

VI 2. Issue (III): Whether the 8 appellants formed and participated in a gathering

136.  Two of the issues in the present appeal are:

(i) Whether the eight appellants formed a gathering; if yes, a group gathering existed at the scene; and

(ii) Whether each of the appellants participated in this group gathering.

137.  Both at trial and at the appeal, the appellants stressed the point that at the scene there were two gatherings of four people each, instead of one gathering consisting of eight people as described by the prosecution.

138.  The magistrate’s finding was that the eight appellants formed a gathering, and because the gathering of this group took place in a public place during the period specified by the Regulation, it was a group gathering.

139.  According to what the magistrate observed by watching the video footage[131], the conduct of the various appellants can be briefly described as follows[132]:

(i) At about 11:04 a.m. (00:00 on player): D1, D2, D3, D4, D5 and D8 were outside Admiralty Centre;

(ii) 00:00 on player: D7 appeared and walked up to where D1, D2 and D8 were standing;

(iii) Later, D8 reasoned with the police;

(iv) 06:07 on player: D8 said, “Each of us, four persons per group, would be one and a half metres apart. Let me tell you, let me tell you formally…we would be, four persons per group, one and a half metres apart, keeping a safe social distance;”

(v) 06:45 on player: D1, D2, D5 and D7 (i.e. the Labour Party Group) were taking out the banner and slogan placards of the Labour Party for the demonstration; D6 first appeared on footage;

(vi) 07:20 on player: These four people formed a row and stood behind the demonstration banner of the Labour Party;

(vii) 07:23 on player: D3, D4, D6 and D8 (i.e. the LSD Group) started to take out the banner and slogan placards of the LSD for the demonstration;

(viii) The LSD party’s slogans shown on the banner for the demonstration they were holding and those held by the Labor Party for the demonstration were related to two issues, namely ‘unemployment’ and ‘freedom of procession’;

(ix) 07:45 on player: D3, D4, D6 and D8 formed a row and stood behind the banner for the demonstration they were holding. D8 was holding a microphone. D3 was on D8’s right side, holding the loudspeaker that was connected to the microphone. D3, D4, D6 and D8 were standing behind D1, D2, D5 and D7;

(x) 07:53 on player: The Labour Party Group consisting of D1, D2, D5 and D7 and the LSD Group behind them consisting of D3, D4, D6 and D8 started walking, holding the banners and placards for the demonstration and shouting slogans;

(xi) 08:09 on player: D1, D2, D5 and D7 started proceeding to the bottom landing of the escalator connecting Admiralty Centre and the footbridge to Central Government Offices, and D3, D4, D6 and D8 followed;

(xii) D6’s appearance on the footage started at 06:45 on the player. His conduct fused smoothly with the other seven defendants. (They) started the procession together, so one could see that D6 had a tacit agreement with the other seven defendants, and D6 knew well before that he was going to take part in a procession conducted by the other seven defendants;

(xiii) From 07:23 on player, when the two groups were in the middle of the procession, D8 was using the microphone and D3 was holding the loudspeaker (the microphone was connected to the loudspeaker). Before the two groups started the procession, D7 got the microphone from D5’s hand and spoke through the microphone; and D1 did move about at the scene outside Admiralty Centre with the loudspeaker, assisting D7 and D8 making speeches;

(xiv) D8 has said at different times that “Each of us, four persons per group, one and a half metres apart”, “we would, four persons per group, one and a half metres apart…”, “we are separate…” and “we, every four people in a group, one and a half metres apart”. From D8’s use of the expression “we”, one can see that in D8’s mind, these eight people, “we”, were considered as a single unit, a collective body.

(xv) When D8 said those words at various times, the other appellants are not speaking or expressing disagreement with D8’s words. One can see that the others were just like D8, considering these eight people, “we”, as a single unit, a collective body.

(xvi) By the same token, at 05:12 on the player, D7 also said, “…we two groups of people go in procession…”. One can see that D7 and the other six (D6 has not appeared yet by that time) were like D7, considering “we” as a single unit, a collective body.

(xvii) 09:32 on player: D1, D2, D5 and D7 moved onto the footbridge from the top landing of the escalator;

(xviii) 09:38 on player: PW1 asked the four to stop and said that he had to issue summonses to them;

(xix) 09:43 on player: D3, D4, D6 and D8 also moved onto the footbridge one by one from the top landing of the escalator;

(xx) 10:01 on player: PW1 asked the four to stop and said that he had to issue summonses to them; and

(xxi) Except D5, the other seven appellants handed their ID cards to the police on the footbridge to let the police go through the procedure of issuing fixed penalty notices. Since D5 refused to hand his ID card to the police, he was arrested on the footbridge and taken away.

140.  The appellants stressed the point that as the video footage showed, the eight appellants deliberately divided themselves into groups of four at the material time (the Labour Party Group and the LSD group respectively) and ensured a sufficient anti-epidemic distance between the two groups. Between 09:43 and 09:51 on the player it is even shown that the LSD group moved farther away from the Labour Party Group after getting on the footbridge and chose to continue their procession in another route. Therefore, it was obviously erroneous when the magistrate found that “at the material time the eight defendants formed a gathering”.

141.  Mr Wong also criticized that it was erroneous or unsatisfactory when the magistrate, by his judgment or visual measurement, stated that at 01:01 [133] and/or 01:42 [134]on the player, the distance between some of the appellants was less than 1.5 metres, because it was simply impossible to assess the distance accurately based on two-dimensional images.

142.  Having seen the footage personally, I have basically no objection as to the magistrate’s observations as described in paragraph 139 above. Regarding Mr Wong’s criticism of the magistrate’s observation on the distance of the appellants from each other, I do not think it is important because magistracy appeals are conducted by way of a rehearing[135], the findings of the relevant facts do not involve assessment of the credibility of the witnesses. I am in the same position as that of the magistrate without involving the latter’s advantage of being able to hear and observe the witnesses. I am entitled to make judgments based on my own observations.

143.  I based my consideration of this issue on what is said in paragraphs 91 to 93 and 98 above, taking into account the submissions of the appellants as well.

144.  Having considered the overall circumstances revealed by the evidence, I concur with the magistrate’s finding that at that time the appellants, a total of eight persons, gathered, having a common purpose of going on a demonstration for labour rights. They gathered together, ignored the directions from the police together and went on a procession. They brought along slogans with them, showing that they came prepared. There is no evidence in the case that they merely met accidentally, and on the contrary the evidence shows that they came on a prior arrangement. They not only had a common purpose, as to the distance they had from each other, no matter it was more than or less than 1.5 meters, they were very close from the perspective of epidemic prevention. The conduct of the appellants lasted about 10 minutes, and it was the magistrate’s view that if the police had not intervened, there would not have been any sign of stopping. On this point, I share the same view. Having said that, I have not overlooked the fact that in the end each one of them left on his own accord instead of doing so upon police order or police action. Perhaps it was the belief in each of the appellants that doing this would not constitute a gathering against the law. However, according to my interpretation of the relevant legislation and the judgment made according to the evidence, what they did constituted a gathering.

145.  Both issues of whether these eight people constituted a gathering and whether each one of them did take part involve the issue of their intention.

146.  However, on the issue of whether there constituted a gathering, I take the view that the test is still the one described in paragraphs 91 to 93 above, which involves an objective finding of fact. It is only that at the time of consideration, it is necessary to take into account the accused’s state of mind[136] revealed by the evidence, including whether there was a common purpose, and each person’s conduct would manifest his state of mind. What was going on in each one’s mind was not necessarily unrelated, but in the present case, obviously, it was not that they had no intention to come together, but they only subjectively thought that their conduct did not constitute a gathering in law.

147.  On deciding whether an accused did take part, it is required to determine whether he had such intention, and the prosecution has to prove beyond reasonable doubt that the accused in question did have the intention to take part in the activity or act of what has been found by the court as a group gathering. On the premise that the court had found what appeared on the scene was an eight-people group gathering, the appellants’ assertion that they had intentionally formed groups of four was at most the wish of individual persons of how to take part in this group gathering.

148.  From what is shown on the footage, I am certain that each of the appellants had the intention to participate in the activity or act which has been found by the court as a group gathering in the present case.

VI 2.A. Conclusion

149.  Based on the above reasons, I rule that:

(i) The eight appellants in the present case constituted a group gathering;

(ii) This group gathering took place in a public place and was a prohibited group gathering; and

(iii) Each of the appellants did take part in this group gathering.

VI 3. Issue (IV): Reasonable excuse and relevant constitutional issues

150.  Since I have found that each appellant did take part in a prohibited group gathering, the next issue is: whether they can rely on the defence under section 7 of the Regulation[137]: there was a reasonable excuse for their participation. The other defence of having lawful authority is not applicable in the present case.

151.  There is no elaboration on the meaning of reasonable excuse in the Regulation. On reasonable excuse, a number of Hong Kong cases[138] have cited Pascoe v The Nominal Defendant (Queensland) (No 2)[139], an Australian case, which puts forward the view that “…a reasonable excuse…means a cause which a reasonable man would regard as an excuse, a cause consistent with a reasonable standard of conduct…”. In HKSAR v Ho Loy[140], the Court of Final Appeal held that when considering the defence of “reasonable excuse”, the court had to look at three matters:

(i) identify the matters said to constitute reasonable excuse;

(ii) examine whether the excuse was genuine;

(iii) make an assessment of whether that excuse was reasonable, which the court would do on an objective standard depending on the particular facts of the case.

152.  The magistrate pointed out that the arguments in support of a reasonable excuse which the defence put forward at trial could be summarized as:

(i) Each appellant was exercising the rights of peaceful assembly, procession and demonstration conferred by the Basic Law and the Hong Kong Bill of Rights;

(ii) Some of the appellants took part in an activity of a similar nature outside the Government House on 8 April 2020. The police did not issue any summons to prosecute those who took part, thereby leading the appellants in the present case into having the reasonable expectation that they could gather in the same manner in the present case without being prosecuted with a summons; and

(iii) There existed exceptional circumstances in the present case[141], so that the appellants were obviously taking part in the relevant prohibited group gathering with a reasonable excuse.

153.  The magistrate had the following observations[142]:

(i) The exercise of the rights of peaceful assembly, procession and demonstration conferred by the Basic Law and the Hong Kong Bill of Rights is not necessarily a “reasonable excuse”. At the end of the day, the court will still have to assess each appellant with any objective standard that whether the excuse of exercising his rights is reasonable;

(ii) The eight appellants could have exercised their rights without contravening the No-gathering Order, but they ignored the restrictions in the provisions relevant to “prohibited group gathering” and the numerous warnings given by the police and insisted that all eight of them took part in an operation which was found to be a “prohibited group gathering”;

(iii) Even though the police did not issue summonses to those who gathered in the same way outside the Government House on 8 April 2020, there was no evidence in the case whatsoever which showed that the police promised, indicated, acquiesced or there was this convention of issuing no summonses on such conduct. On the contrary, PW1 gave a number of warnings in the present case to inform each of the appellants that the police might issue a summons to them. If it was still said that each of them had a reasonable expectation in these circumstances, it would just be wishful thinking and arguing his way out of it;

(iv) He did not accept the submissions by the defence on the so-called exceptional circumstances.

154.  The magistrate held that: the exercise of the rights of peaceful assembly, procession and demonstration was not absolute, and the No-gathering Order was constitutional (including at the operational level); proof to the contrary that was sufficient to rule out reasonable doubt was put forward by the prosecution so that the court accepted beyond reasonable doubt that the defence did conduct the prohibited group gathering in question without any reasonable excuse.

155.  At the appeal, the appellants criticized that it was erroneous for the magistrate to find that the matters described in paragraph 152 above did not constitute a reasonable excuse.

156.  Section 7(2) of the Regulation provides as follows:

“(2) A person is taken to have established a matter that needs to be established for a defence under this section if—

(a) there is sufficient evidence to raise an issue with respect to that matter; and

(b) the contrary is not proved by the prosecution beyond reasonable doubt.”

157.  The magistrate correctly pointed out that according to the provision, the defence only had an evidential burden[143] as to the defence. He pointed out that:

“According to section 7(2) of Cap 599G, the defendant has the evidential burden to raise that he has a reasonable excuse, i.e. to put forward adequate evidence to raise an issue in respect of that matter. After the defendant has discharged his evidential burden, the prosecution will have to put forward sufficient evidence to prove the contrary beyond reasonable doubt”[144]

158.  In this regard the appellants put forward submissions on two limbs:

(i) Even if each appellant conducted the prohibited group gathering, they did so with a reasonable excuse; and

(ii) In the exceptional circumstances of the present case, there would be no way to pass the Step 3 and/or Step 4 of the proportionality test[145] if each of the appellants had to bear criminality. In other words, to impose criminality on the appellants would not satisfy operational proportionality because so doing would:

(1) go beyond what was necessary for accomplishing the legitimate aim of public health; and/or

(2) fail to strike a reasonable balance between safeguarding the social benefits of public health and the encroachment of the relevant constitutional rights.

159.  The appellants have also put forward the following matters as exceptional circumstances in support of their submission that there was a reasonable excuse for their gathering in question:

(i) The day in question was the Labour Day. The Labour Party Group was exercising the related constitutional right to fight for labour rights by way of a procession and demonstration. The appellants in question were all members of the Labour Party which was a party giving concern to labour rights and interests. They were putting up a demonstration for labour rights on the Labour Day “as in the past”. Their demand was proper, and it was an exercise of their constitutional right.

(ii) During the procession, the eight appellants deliberately divided themselves into groups of four (i.e. the Labour Party Group and the LSD Group) and ensured that the two groups were more than 1.5 metres apart to maintain a sufficient epidemic prevention distance. Throughout the procession, each of them was wearing a mask to lower the risk of spreading disease.

(iii) At about 09:36 on the player, one can see from the footage that not long after the procession had started, the police already started their action of issuing summonses. The original procession route set by the eight appellants was only a short one, from Admiralty Centre in Harcourt Road to the Designated Public Activity Area outside the East Wing Forecourt of the Central Government Offices. The duration of the gathering was short.

(iv) The rendezvous point was somewhere near the Central Government Offices, where it was not busy or crowded. It was also a reasonable move that the procession for labour interests submitted a petition letter on reaching the outside of the Central Government Offices.

(v) By the day in question, there had been no confirmed local infections for 12 consecutive days already. The pandemic situation at that time was relatively stable[146].

(vi) The fact that after the summonses had been issued, the police let the Labour Party Group and the LSD group continue with the procession and coordinated the two groups so as to ensure a sufficient distance between them could actually reflect that as long as there was a sufficient anti-epidemic distance between the two groups, the appellants’ right of peaceful demonstration should not be interfered with (including being put criminally liable).

(vii) The police adopted inconsistent enforcement criteria regarding similar demonstrations happened on 8 April 2020 and the day in question.

160.  In his submissions, apart from referring to some of the matters above, D3 also pointed out: the prosecution’s subtext was that no demonstration, no risks. If that was the case, the authorities should have removed the Exempted Group Gatherings in Schedule 1 so as to achieve an even lower risk, otherwise the effectiveness of the Regulation would be undermined, and the right of survival of the general public jeopardized.

161.  I have ruled that the restrictions in the [R]egulation imposed on the relevant constitutional rights are constitutional. However, the court would still have to assess and consider whether it was unconstitutional at the operational level of the [R]egulation.

162.  Mr Chim cited the English cases Ziegler[147], R (Dolan)[148] and Leigh v Commissioner of Police of the Metropolis[149] and submitted that even though there was the No-gathering Order during the pandemic period, such prohibitions were still subject to the protection of human rights, such as the freedoms of procession, demonstration, assembly and speech, and in individual cases, the exercise of these fundamental rights might amount to a “lawful authority or reasonable excuse” for a gathering.

163.  Mr Chim also submitted that the magistrate had committed a fundamental error when considering whether the appellants’ exercise of the basic rights amounted to a reasonable excuse for failing to conduct a proportionality analysis or examine the related factors and evidence within the proportionality framework, rendering the convictions unsafe and unsatisfactory. In any event, under a correct proportionality analysis, the prosecution has not been able to prove that the appellants’ exercise of the basic rights in the exceptional circumstances in the present case could not constitute a reasonable excuse. The convictions must therefore be quashed.

164.  The appellants made the following criticisms:

(i) The magistrate did not conduct any proportionality analysis at all;

(ii) Even if he did, his consideration was not conducted according to the four steps of the proportionality analysis, especially steps 3 and 4;

(iii) What the Regulation restricted in the present case was the very cardinal fundamental rights of political expression by way of procession and demonstration[150]. Regarding the expression of political demands, the highest degree of protection on the freedom of speech was needed[151]. The magistrate did not adopt “no more than necessary for accomplishing that legitimate aim” which was a higher threshold, or at least a standard which was lower than “no more than necessary for accomplishing that legitimate aim” but higher than “manifestly without reasonable foundation”, and that was erroneous; and

(iv) It was also improper to hold that the appellants did not have a reasonable excuse on the only basis that they were still able to exercise their rights without breaching the No-gathering Order.

165.  The appellants[152] also submitted that according to the following findings of facts made by the magistrate or the undisputable evidence, the prosecution failed to prove that the convictions would not cause disproportionate restriction on the fundamental rights of the defendants:

(i) the assembly was one held on the Labour Day on 1 May to express political demands (including those relevant to labour interests);

(ii) the assembly was just an outdoor procession of eight persons in groups of four, maintaining a social distance between the two groups, and all people were wearing masks. The entire video recording lasted for less than 10 minutes from the beginning to the moment of issuing the summonses. The procession has lasted for only about two minutes; and

(iii) On the day in question, the pandemic situation in Hong Kong was relatively stable.

166.  Mr Li, Senior Public Prosecutor, said the following in his submissions:

(i) The UK case Ziegler[153] cited by the appellants has not been accepted by the superior courts in Hong Kong;

(ii) Even if Ziegler[154] was accepted to be applicable in Hong Kong, the court was also required to find on the facts to assess if the convictions in the present case failed the proportionality test. If the convictions could pass the proportionality test, the appellants would have no reasonable excuse[155].

(iii) Although the court should give sufficient regard to the rights of peaceful assembly and demonstration, such rights were not absolute and may be subject to lawful restrictions. The excuse relied upon by the appellants were not objectively reasonable, and their convictions were proportionate for the following reasons:

(1) The appellants might exercise the rights of peaceful assembly and procession without breaching the No-gathering Order;

(2) If the appellants had made a prior application to the Chief Secretary for permission of group gathering pursuant to section 5 of the Regulation, the Chief Secretary could have assessed the proportionality and sought opinion from the public health experts as necessary and could have also attached conditions to the permit so as to ensure that the requirements of public health were fulfilled;

(3) The appellants insisted on exercising the rights of peaceful assembly and demonstration in a way in breach of the No-gathering Order instead of doing it in any other more reasonable ways;

(4) If the court accepted that the exercise of the rights of peaceful assembly and procession directly constituted a reasonable excuse, the effectiveness of the No-gathering Order would be greatly undermined, which would just be the opposite to the purpose of minimizing social contacts by implementing the Regulation;

(5) Apart from considering the appellants’ rights of peaceful assembly and demonstration, the court was also required to strike a balance and protect the right to life of the general public; and

(6) From the anti-epidemic experience in Hong Kong and places all over the world, since the COVID virus was highly contagious, a small number of confirmed cases could spread rapidly through social contacts within a short period of time. Therefore, implementation of strict anti-epidemic measures such as No-gathering Order was necessary.

167.  Mr Li has also cited the English case of R (Dolan)[156], which indicates that the Court of Appeal of the UK, by applying the proportionality test in Ziegler[157], held that a large majority of the cases in breach of the “lockdown order” had no reasonable excuse and recognised that there were powerful public interests which lay behind the implementation of the “lockdown order”[158].

168.  It was not until June 2021 that the Supreme Court of the UK[159] gave its judgment in Ziegler[160] , and this may be the reason why it has not been considered by the superior courts in Hong Kong.

169.  I agree that since the present case involves the exercise of relevant constitutional rights, in assessing and considering the issues of reasonable excuse and whether convictions should have been made, the test on proportionality should be applied. The relevant judgment is a finding of facts.

170.  In any event, the Court of Appeal in Leung Kwok Hung v SJ (No 2)[161] has established the application of the proportionality analysis on two levels[162]: systemic proportionality by reference to the legislation[163] and operational proportionality by reference to the actual enforcement of law[164]. In that case, the Court of Appeal stated that in assessing the operational proportionality, the court should consider the facts and circumstances of the case. The Court of Appeal also pointed out that this involved a proper balance between the following two matters[165]:

(i) the enforcement authority has to show a degree of tolerance to those exercising their rights;

(ii) those exercising their rights should comply with the relevant legislations and rules in force.

171.  Regardless of whether the magistrate had made the mistake(s) alleged by the appellants, since a magistracy appeal is a rehearing[166], the issues presently under discussion do not involve dispute of facts or witnesses’ credibility, I have full authority to determine the relevant issues according to the evidence.

172.  The prosecution bears the burden to prove that proportionality is satisfied. In assessing proportionality, the purpose of imposing restrictions on the relevant rights must be taken into account, which is preventing the pandemic in the present case. In the course of consideration, it is necessary to pay regard to the relevant constitutional rights as well as the rights that other people are entitled to enjoy.

173.  As to the standard of assessment, I think that the justifications stated in paragraphs 114 to 118 above are still applicable, and the standard close to “manifestly without reasonable foundation” should be adopted.

174.  In Ziegler v Director of Public Prosecutions[167] of the UK, which the appellants have heavily relied on, the High Court[168] pointed out that the exercise of a constitutional right might amount to a reasonable excuse, but the Court did not hold that it must be the case. When the Supreme Court[169] dealt with that case[170], it pointed out that each case should be considered on its own facts[171], and a fair balance had to be struck between the exercise of a relevant right and the rights of others.[172]

175.  The Court of Appeal of the UK in R (Dolan)[173] held the same view[174].

176.  In my assessment, I have considered proportionality by reference to the following operational aspects:

(i) the authority enforced the law against the appellants;

(ii) it was held that the appellants had participated in the prohibited group gathering with no reasonable excuse; and

(iii) the appellants were found to be guilty of the offence in question.

177.  On that day, the police enforced the No-gathering Order pursuant to the Regulation. First, it is my ruling that they all did violate the No-gathering Order and the police were justified to enforce the law. As to proportionality, having considered that it was then the early pandemic period, based on the factor of the overall environment as mentioned in paragraph 184 below, plus the fact that the police officers could only make judgment by relying on the observation and assessment made at the scene, and summonses were issued only when repeated warnings were futile. In my view, the actions taken by the police cannot be validly criticized.

178.  I move on and consider the issue of reasonable excuse, bearing in mind that the requirement of assessing proportionality.

179.  I agree with Mr Li’s submissions. In Yeung May Wan[175], which the appellants have heavily relied upon, the Court of Final Appeal only held that at the stage of considering the “reasonable excuse”, the court in assessing the reasonableness should recognise and give sufficient weight to the relevant constitutional right, but did not hold that the exercise of constitutional rights could directly constitute a reasonable excuse.

180.  The Court of Final Appeal pointed out in Yeung May Wan[176] that whether an excuse was reasonable was a question of fact and degree, and the court should take into account the facts and the extent, duration, time, place and purpose of the breach. Where a breach resulted from a peaceful demonstration, the court must take into account the relevant rights in assessing the reasonableness of the behaviour.[177]

181.  The Queen’s Bench of the High Court of the UK[178] pointed out in R (Leigh) v Commissioner of Police of the Metropolis[179] that lawful exercise of rights in relation to human rights and freedom might constitute a reasonable excuse, and since the burden of proving that an accused had no reasonable excuse lay on the prosecution, the court had to take into account all relevant factors based on a fact-specific inquiry to assess proportionality.

182.  On the operational level, the law enforcement authorities are also required to evaluate proportionality, assessing the risk caused to public health by the act involved and considering the balance in respect of the relevant rights. The relevant factors included:

(i) the current public health situation;

(ii) the importance of the subject issue involving the accused’s act, and how close it was to the exercise of the relevant rights;

(iii) the location of the acts, number of participants, whether any precautionary measure was in place; and

(iv) the potential effects on the rights of others.

183.  The Supreme Court of the High Court of the UK[180] in Ziegler[181] pointed out that if the breach involved the exercise of constitutional rights, the court might in evaluating proportionality consider various factors including the following:

(i) extent of the breach;

(ii) purpose, location and duration of the breach;

(iii) the extent of interference caused to others’ rights;

(iv) the importance of the subject issue for which the constitutional right was to be exercised; and

(v) whether those who breached the law faithfully believed in what they were expressing.

The Supreme Court of the UK also made it clear that the above was not an exhaustive list of all to be taken into account[182], because it was impossible to anticipate all factors for consideration.

184.  In my view, in considering this issue, it is necessary to rely on the overall circumstances at the material time as the basis. For cases which happened on different days, the factors required to be taken into account may be different, and the weight accorded to each factor may also be different. As far as what happened at that time is concerned, the following matters are important:

(i) it was the initial stage of the pandemic when the global medical field had only very limited knowledge of the disease;

(ii) the gravity of the pandemic was very serious in many countries;

(iii) the pandemic might be recurrent according to the information available at that time;

(iv) when the pandemic was serious, a serious impact could be caused to the medical system, and it was difficult to anticipate accurately if such an impact would occur;

(v) there was no vaccine at that time, and also there was no clue as to the time for its availability;

(vi) there was yet any medicine for treating this disease;

(vii) Hong Kong relied heavily on various supplies from the outside, and effective anti-epidemic measures were essential in maintaining such supplies;

(viii) Hong Kong was densely populated, and hence it was particularly important to prevent and control highly contagious diseases;

(ix) If any employee was required to be quarantined and could not go to work due to his/her own infection and need for treatment or someone else’s infection which turned him/her into a close contact, it would bring about negative effects to the overall economy as well as individual public or private organizations. The burden would aggravate with the increased number of infections.

185.  The relevant constitutional rights are important undoubtedly.

186.  Expressing the demands for labour interests on the Labour Day on 1 May carries special meanings. I have no doubt that they all faithfully believed in what they were expressing. However, as said by the magistrate, apart from procession, there were many other channels and means of expression which might not be less effective than the activity carried out this time. Moreover, procession might not necessarily be conducted with eight persons altogether in such way.

187.  Although there had been no local confirmed cases for days before the day in question, as said above, the situation was not stable and might recur. No expert at that time advised that the outlook was optimistic. Given the extent of knowledge about the pandemic at that time, and the fact of having no vaccine or medication available, it was reasonable to err on the side of caution.

188.  In fact, only eight people took part in the procession. It did not last long and the location was not a busy part of the city. However, there were helpers and reporters at the scene; the presence of reporters made it incredible that the situation was beyond the expectation of the people involved.

189.  These eight persons could have acted separately if they so wished, but they just insisted on acting together. Even if they did maintain a distance of 1.5 metres from each other, it would be wishful thinking to assume no risk of transmission. Consideration in this regard must be made on the basis of the knowledge and understanding of the virus and the development of the pandemic at that time.

190.  The appellants submitted that the police’s subsequent permission, allowing the procession to continue, could justify a reasonable excuse, or in any event, a factor for consideration in the proportionality analysis. In my view, the police arrangement of allowing two groups to continue the procession at a long distance apart, instead of the eight of them to continue together, was reasonable and justified under the circumstances at that time. It had accomplished a balance between the exercise of constitutional right and control of the disease. This arrangement did not constitute any reasonable excuse for the eight of them to gather or any factor in favour of the appellants in the proportionality analysis.

191.  As to how the police had handled another case, as there is no evidence that the police had given any indication or undertaking, the alleged reasonable expectation is groundless. This is particularly so where the circumstances of each case are not the same.

192.  The appellants mentioned some exempted group gatherings, such as gatherings for work at workplace and the number of people at a wedding, and submitted that such arrangements reflected that the authorities whilst managing to achieve a reasonable balance by the measures implemented in these different scenario, had been too harsh in dealing with the exercise of the relevant constitutional rights, and thus failed to strike the balance. In my view, it is not realistic to differentiate various rights in respect of their different importance. Moreover, as said in the precedents, the court is required to consider the case on its merits and facts, which in the present case includes the necessity and reasonableness of acting in such way at the time and place in question, and the evaluation of the balance between the exercise of the relevant rights and societal interests, in particular epidemic prevention.

193.  After careful consideration, having regard to the importance of exercising the relevant constitutional rights and the submissions from both sides, I agree with the magistrate’s conclusion, namely, the appellants had no reasonable excuse in participating the prohibited group gathering in the present case.

194.  As to whether the convictions are proportionate, my answer is in the affirmative, and the discussion and analysis can be seen in Part VI 5 below.

VI 3.A Conclusion

195.  It is ruled as follows:

(i) Taking the present case in its entirety, the law enforcement action carried out by the authorities satisfies the proportionality test; and

(ii) The prosecution has proved beyond reasonable doubt that the appellants have taken part in this prohibited group gathering with no reasonable excuse.

VI 4. Issue (V): Principle of de minimis non curat lex

196.  Mr Chim cited Prem Singh v Director of Immigration[183] in criticizing that the relevant findings of the magistrate had ignored the principle of “de minimis non curat lex”[184]. He supported his argument with the following matters:

(i) The incident relied upon by the prosecution as the basis for the prosecution lasted for only 11 minutes in total;

(ii) It was almost 7 minutes after the commencement of the said period that D2 first appeared in the footage;

(iii) Within that period of 11 minutes, there were at the most only about ten second or so when the people might be less than 1.5 metres apart;

(iv) There is no sufficiently concrete evidence as to whether the distance had ever been truly less than 1.5 metres;

(v) Even if there has been such moment(s), since everybody was moving, the duration of the distance being less than 1.5 metres was extremely short.

In the light of the above, it would be against the principle to allege that the people had gathered and prosecute them for breaching the No-gathering Order, because such breach, even if there was, was an extremely trivial matter.

197.  In Prem Singh[185], since the appellant had been convicted of indecent assault and sentenced to two weeks’ imprisonment, his application for permanent residency was refused. He appealed to the Court of Final Appeal. One of his grounds was that the above term of imprisonment was de minimus and should not be considered as breaking the continuity of his stay in Hong Kong. Although his appeal was allowed on other grounds, the Court of Appeal held that the term of two weeks’ imprisonment was not de minimus to the relevant consideration, and there was no reason to ignore the prison sentence in determining the application for residency. However, the Court of Final Appeal also stated that the maxim of de minimis non curat lex was a common law principle of construction which applied unless a contrary legislative intent could be seen, and this common law principle did not appear to be denied in the Basic Law[186]. Bokhary PJ[187] stated that whether a matter was trivial was a question of fact and degree.[188]

198.  Given the rampant COVID pandemic, the knowledge grasped by the medical sector was not sufficient and could be said to be limited at the time of the offence, the pandemic might cause extremely large impact to the medical system and the community as a whole. For the purpose of epidemic prevention, generally, a breach of the No-gathering Order could hardly be described as trivial. This Court has also held that the requirements in the present case are constitutional, and the assessment of systemic proportionality is satisfied.

199.  In this regard Mr Chim in his submissions emphasised the distance of people from each other and the short time span involved.

200.  I am of the view that Mr Chim has overstressed the above matters which although they could be related to the gravity of the facts, as mentioned above, whether there was a gathering did not solely depend on the distance between individuals. As far as the present case is concerned, it is my judgment that there was a gathering. Having regard to the scale of the gathering and the overall circumstances at the scene, including people’s persistent action despite the police warnings, it can hardly be described as a trivial matter, and the law should not be dispensed with.

VI 4. A   Conclusion

201.  The relevant ground of appeal fails.

VI 5. Issue (VI): Whether convictions satisfy proportionality

202.  I have found the following:

(i) At the material time, there was a group gathering;

(ii) That was a prohibited group;

(iii) All appellants have participated in this prohibited group; and

(iv) There was no reasonable excuse for their participation.

203.  Under such circumstances, I agree with the magistrate’s ruling that the prosecution has proved all elements of the offence beyond reasonable doubt.

204.  As the present case involved restrictions on constitutional rights, I further considered if the law enforcement conducted by the authority and the convictions were proportionate, and whether a balance has been accomplished between the constitutional rights and the purpose of epidemic prevention.

205.  Having regard to the various factors set out in Part VI. 3 above, my conclusion is in the affirmative.

VII. Conclusion on the appeal against convictions

206.  I am of the view that none of the grounds of appeal has been established for the following reasons:

(1) The Regulation is constitutional;

(2) The prosecution has proved all elements of the offence and negated the appellants’ claim that the excuses they raised were reasonable; and

(3) The law enforcement action and the verdicts of conviction were proportionate and not unconstitutional.

207.  My judgment is as follows: the convictions of all appellants are supported with sufficient evidence, and the magistrate’s judgment is safe and satisfactory in fact and in law. Therefore, all appellants’ appeals against convictions are dismissed with the convictions upheld.

VIII. Appeal against sentence

208.  On each appellant, the magistrate imposed a term of 14 days’ imprisonment, which was suspended for 18 months.

209.  The magistrate considered the following matters in sentencing:

(i) The nature and circumstances of the case, including the location and duration of the offence and each appellant’s behaviour (including they were all wearing masks).

(ii) Each appellant’s background, in particular:

(1) D1, D2, D5 and D7 all had no criminal record;

(2) although the other appellants had previous records, those records were not related to the present case, and therefore the starting points adopted in sentencing would not be different;

(iii) Submissions for mitigation:

(1) The case occurred shortly after the No-gathering Order had come into effect, and the public in general might not fully understand the correct construction of it;

(2) The case occurred on the Labour Day on 1 May, D1, D2 and D5 were members of the Labour Party and they exercised their rights of peaceful assembly, procession and demonstration to strive for labour interests as in the past;

(3) The appellants behaved with self-restraint in exercising the constitutional rights without involving violence[189];

(4) The appellants intentionally divided themselves into groups of four and ensured a distance of 1.5 metres between the two groups;

(5) The activity lasted for a short period of time and was not held in a busy area;

(6) The pandemic situation was relatively stable at that time with no local confirmed case for 12 consecutive days, and there was no evidence showing that the incident caused any substantial effect to public health; and

(7) The police had not issued any summons to prosecute the people who had gathered in a similar manner outside the Government House on 8 April 2020.

210.  The magistrate indicated his view on the submissions for mitigation as follows:

(i) Although the appellants had different interpretations on the “No-gathering Order” at the time of the offence, PW1 had given repeated warnings to them at the material time, making it clear that their gathering was in breach of the “No-gathering Order”. Nevertheless, the appellants persisted on continuing to act in their own ways;

(ii) The exercise of the rights of peaceful assembly, procession and demonstration was not absolute. In fact, at the material time, the appellants could have carried out a peaceful assembly, procession and demonstration in compliance with the requirements under the “No-gathering Order”, yet they insisted on gathering in the unlawful way they chose, and hence breached the “No-gathering Order”. Such a claim of exercising the rights was not a valid mitigating factor. Even if D1, D2 and D5 exercised their rights of peaceful assembly, procession and demonstration “as in the past”, since Hong Kong as well as the world was facing a pandemic which happened less than once in a century, the insistence on having procession and demonstration “as in the past” was simply in disregard of the overall interests and health of the general public in the community;

(iii) Although the police did not issue any notice to prosecute the people who gathered in a similar way outside the Government House on 8 April 2020, PW1’s repeated warnings given to the appellants could not be ignored; and

(iv) Although Hong Kong had recorded no locally acquired confirmed case for 12 consecutive days by that time, the pandemic had yet been under control by the time of sentence (i.e. 10 months after the case).

211.  The magistrate had the following observations as well:

(i) The eight appellants disregarded the law and police warnings, being conceited and just insisting on continuing to participate in the prohibited group gathering. The extensive media coverage of the eight appellants’ behaviour might mislead some citizens into thinking that such behaviour was acceptable;

(ii) The facts of the case were so serious that a fine was not sufficient to reflect the gravity of the present case; and

(iii) Having regard to the fact that the duration of the prohibited group gathering in question did not last long and the location was not a busy area, plus the number of participants, and that the present case was the first one resulted in conviction after trial for the offence concerned, the magistrate considered that the present case did not warrant an immediate custodial sentence.

212.  All appellants criticized that the sentence of 14 days’ imprisonment suspended for 18 months was manifestly excessive and/or wrong in principle.

213.  Mr Wong, advanced the grounds of appeal for D1, D2 and D5 as follows:

“8. The magistrate’s sentence (ie 14 days’ imprisonment suspended for 18 months) is manifestly excessive and/or wrong in principle:

(1) D1, D2 and D5 had no criminal record before this case, to which the magistrate has failed to give proper weight;

(2) The magistrate has given no or insufficient consideration to the relevant mitigating factors[190];

(3) The magistrate erred in finding that [the appellants’] exercise of the relevant constitutional rights was not a valid mitigating factor in the present case[191], and has given no or insufficient consideration that imposing a custodial sentence (albeit suspended) on [the appellants] would constitute disproportionate interference to their relevant constitutional rights;

(4) the magistrate, on the one hand, accepted that ‘the prohibited group gathering did not last for long, did not take place in a busy area, plus the number of participants’[192] and [the appellants] ‘were all wearing masks’[193], whereas on the other hand ruled that [the appellants] were ‘obstinate and stubborn, and neglected the overall interests and the public health’[194], which are self-contradictory; and

(5) the magistrate has relied on findings which was supported by no evidence, namely ‘the extensive media coverage of the conduct of the eight [appellants] might mislead some citizens into thinking that such conducts of [the appellants’] was acceptable’[195].”

214.  D3’s ground of appeal is that the sentence is manifestly excessive. It is submitted as follows:

(i) the magistrate did not pay sufficient regard to the fact that he was exercising his constitutional rights;

(ii) nor took into account that the pandemic situation was improving;

(iii) the magistrate ignored the circumstances in reality and erred in concluding that they had the improper motive and act such as bending on their own way and knowingly committing the offence.

(iv) they have each done their best in applying epidemic preventive measures;

(v) quite a few other restrictions, such as those on weddings and other premises, were relatively lax, or might even had exemption. On comparison, demonstrations were controlled more strictly.

215.  Mr Chim advanced the grounds of appeal for D4, D6 and D8 as follows:

(i) The magistrate erred in inferring that the facts of the present case would mislead the public into interpreting the regulation wrongly; and

(ii) Viewing the facts of the present case as a whole, the sentence imposed by the magistrate is manifestly excessive.

216.  D7 put forward the following grounds:

(i) they were exercising the constitutional rights; and

(ii) it was just the early stage after the formulation of the restrictions, the citizens did not have full knowledge and understanding.

217.  Mr Li submitted that the sentences passed by the magistrate were proper:

(i) He accepted that the present case was not one of the most serious of the same type: At the time of the offence, the pandemic was relatively speaking not too serious, the gathering was in relatively small scale, the participants of the gathering were wearing masks, and the location was not a busy part of the city. However, he also indicated that the court should not ignore that far more people were drawn to the gathering than the actual participants, including the police officers who must enforce the law and maintain order in response to the gathering and also members of the press who reported the matter at the scene.

(ii) He also invited the court to take into account the appellants’ persistence in gathering, deliberately breaching the “No-gathering Order” despite the repeated warnings given by the police.

(iii) The evidence in the case was sufficient for the magistrate to find that the appellants’ behaviour would be extensively reported by the media. The appellants, as political figures well known to the public, openly breached the “No-gathering Order”, and D7 and D8 even argued with PW1 about the scope of application of the “No-gathering Order” many times before and after the procession. The magistrate was indeed well justified to find that their behaviour would mislead some citizens and take that into consideration in sentencing. Even if the police issued summonses to prosecute them, it did not mean that the appellants were convicted in law, and they might still argue for their liability in the proceedings.

218.  Section 6(2) of the Regulation provides that the charge in the present case may be subject to the sentence of a fine at level 4 (currently $25,000) and imprisonment for 6 months. Since each case has its own overall situation, nature and circumstances, the court has laid down no sentencing guideline.

219.  In sentencing, the court must consider the overall circumstances of the case as well as the accused’s personal circumstances. In cases involving breach of “No-gathering Order” in exercising constitutional rights, the fact that an appellant was exercising his/her right is an important factor in considering the appropriate sentence.

220.  A series of precedents has confirmed that unless an immediate custodial sentence should be imposed, no suspended sentence should be considered.[196]

221.  Therefore, although the magistrate finally ordered that the sentence of imprisonment shall not take effect under certain condition(s) pursuant to section 109B of the Criminal Procedure Ordinance[197], this Court shall consider if it was proper that the magistrate had sentenced the appellants to imprisonment in the first place in view of the overall circumstances of the present case.

222.  The present case involved only eight persons, took place briefly in a non-busy part of the city, and people involved did not fail to take anti-epidemic measures However, the relevant Regulation was essential in preventing the pandemic. Non-compliance by the citizens would cause significant impact to the anti-epidemic work and seriously undermine the interests of the community. Furthermore, the appellants’ persistence on committing the offence upon being informed of the breach in fact increased the risk of spreading the disease at the scene. Under the overall circumstances described above, passing a lenient sentence by the court might inevitably convey a wrong message.

223.  After carefully considering the overall circumstances of the case, making reference to the case of Court of Appeal, SJ v Wade[198], and having regard to submissions from the parties, I am of the view that the magistrate’s observations, analysis and consideration are in general reasonable and sensible, and the sentences imposed by him are not wrong in sentencing principles nor manifestly excessive, and are proportionate upon considering that the appellants were exercising their constitutional rights.

224.  Therefore, the appeal against sentence are also dismissed, the sentence of 14 days’ imprisonment, suspended for 18 months, imposed on each appellant is upheld.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law.