HKSAR v. KWOK WING KIN AND OTHERS

HCMA 187/2021

[2022] HKCFI 3831

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO 187 OF 2021

(ON APPEAL FROM ESFS 5 - 12 OF 2020)

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J U D G M E N T

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1.  This is an application for a certificate that the decision in the case involved points of law of great and general importance. Despite the trial and the appeal hearing were conducted in Chinese, all parties agreed that it is convenient and desirable that this hearing be conducted in English.

BACKGROUND

2.  There were originally eight accused in this case. They were jointly charged with the offence of Participating in a Prohibited Group Gathering, contrary to section 6(1)(a) and 6(2) of the Prevention and Control of Disease (Prohibition on Gathering) Regulation[1] (“the Regulation”). They pleaded not guilty and were found guilty after trial. They lodged an appeal which was dismissed by me.[2]

THE APPLICATION

3.  All but the 6^th Appellant applied under section 32 of the Hong Kong Court of Final Appeal Ordinance (“the Ordinance”)[3] for a certificate that various points of law of great and general importance were involved in my decision.

THE POINTS OF LAW

4.  The points of law which are asked to be certified are:

(1)  What is the proper interpretation of “group gathering” and “prohibited group gathering” in the Regulation? (Question 1: 1^st, 2^nd, 5^th and 7^th Appellants, represented by Mr Anson Wong Yu Yat, together with Mr Jason Kung)

(2)  Whether participating in a peaceful assembly which constitutes a “prohibited group gathering” is capable of constituting a reasonable excuse for the purpose of section 7(1) of the Regulation? (Question 2: 1^st, 2^nd 5^th and 7^th Appellants)

(3)  Whether the offence of participating in a prohibited gathering under section 6(1)(a) of the Regulation is compatible with fundamental rights to freedom of assembly and expression enshrined in Articles 27 and 39 of the Basic Law and Articles 16 and 17 of the Hong Kong Bill of Rights? (Question 3: 3^rd, 4^th and 8^th Appellants, represented by Mr Carter Chim, together with Mr Geoffrey Yeung)

(4)  Whether, on the true interpretation of section 6(1)(a) of the Regulation, or alternatively as remedially construed in order to be compatible with fundamental rights to freedom of assembly and expression, two groups of people should be treated as one “group gathering” even though two groups keep not less than 1.5 metres apart from each other? (Question 4: 3^rd, 4^th and 8^th Appellants)

(5)  Whether, for the purpose of proving the requisite mens rea for the offence created under section 6(1)(a) of the Regulation, there is a legal requirement that the defendant has the specific intent to participate in a gathering of more than four persons? (Question 5: 3^rd, 4^th and 8^th Appellants)

(6)  What is the proper margin of discretion for the Court’s assessment of the proportionality of the convictions in the present case under the principles set out in Director of Public Prosecutions v Ziegler[4]? (Question 6: 3^rd, 4^th and 8^th Appellants) and

(7)  Whether the convictions and the sentence in the present case satisfy the proportionality test under the principles set out in Director of Public Prosecutions v Ziegler[5]? (Question 7: 3^rd, 4^th and 8^th Appellants)

DISCUSSION

5.  Section 32(2) of the Ordinance provides:

“(2) Leave to appeal shall not be granted unless it is certified by the Court of Appeal or the Court of First Instance, as the case may be, that a point of law of great and general importance is involved in the decision or it is shown that substantial and grave injustice has been done.”

6.  In considering an application for certification of a question of law, the court has to be satisfied that the proposed question is reasonably arguable.[6]

7.  The decision of the UK Supreme Court in Director of Public Prosecutions v Ziegler[7] was heavily relied upon by the Applicants at the appeal. Recently, in Reference by the Attorney General for Northern Ireland – Abortion Services (Safe Access Zones)(Northern Ireland Bill)[8], the UK Supreme Court made clarifications in some aspects of the judgment in Ziegler and such clarifications are applicable in a case like the present one.

8.  As regards Question 1, stressing that the purpose of the Regulation is for preventing, protecting against, delaying or otherwise controlling the incidence of or transmission of COVID-19[9], and bearing in mind the importance of the relevant constitutional rights and established principles in construction of statutes while such rights are engaged, the gist of the submission of Mr Wong is that on a proper interpretation of “group gathering” and “prohibited group gathering” as provided in the Regulation, it is a precondition of the existence of these gatherings that the physical distance between the participants should be less than 1.5 metres.

9.  The terms “group gathering” and “prohibited group gathering” are defined in the Regulation.[10] At the material time[11], “group gathering” was defined as “a gathering of more than 4 persons” and “prohibited group gathering” was defined as “a group gathering the taking place of which is prohibited under section 3.” Whilst an issue on appeal was in relation to interpretation of the two terms, the prescribed number of persons was not an issue.

10.  My decision is that in deciding whether there was a group gathering, the whole circumstances as revealed by evidence should be considered[12], bearing in mind the purpose of enacting the Regulation[13]. I do not consider the precondition which Mr Wong submitted is reasonably arguable. The decision that there was a group gathering was basically a finding of facts. So was the decision that there was a prohibited group gathering. I do not consider there is justification to certify the question.

11.  As regards Question 2, the decision of the appeal was made on the basis that exercise of constitutional right is capable of being a reasonable excuse. Having considered the whole of the relevant circumstances pertaining at the time of the alleged offence, having particular regard to the importance of the constitutional rights, and applying the relevant test in assessing proportionality[14], I found that in participating in the gathering, none of the Applicants had reasonable excuse. Despite framed as a question of law, in the context of the present case, whether reasonable excuse existed was primarily a finding of facts.[15] I do not find it reasonably arguable that the test adopted in the assessment is erroneous. I am not persuaded that there is justification to certify the question.

12.  As regards Question 3, the question posed was involved in the decision[16] and no doubt is a question of great and general importance. However, having regard to the submission of Mr Chim, I do not consider it is reasonable arguable that the decision in the case is erroneous. I therefore do not certify the question.

13.  As regards Question 4, in my judgment, the issue basically involved a finding of facts and there is no justification to certify the question posed.

14.  As regards Question 5, I held that it is not necessary to prove the specific intent as suggested. In my judgment, the point is not reasonably arguable. Therefore, I do not certify the question.

15.  As regards Question 6, I do not consider it reasonably arguable that the test adopted in the decision of the appeal was erroneous as submitted by Mr Chim. I therefore do not certify the question.

16.  As regards Question 7, in dismissing the appeal I found both the conviction and sentence were proportional in the circumstances. It was in essence a finding of facts by application of established legal principle and having taken into consideration of the whole of the relevant circumstances pertaining at the time of the offence.[17] I do not consider the submission of Mr Chim provided sufficient ground for me to hold that it is reasonably arguable that the test adopted in the decision of the appeal[18] and the final decision on proportionality were erroneous. I therefore do not certify the question. Despite the Respondent brought to the attention of the court the recent decision of Reference by the Attorney General for Northern Ireland – Abortion Services (Safe Access Zones)(Northern Ireland Bill)[19], the submission of Mr Andrew Li, SADPP(Ag), Counsel for the Respondent, was that it is not necessary to certify because of this case as it does not have the effect of affecting the otherwise safe decision in the present case.

CONCLUSION

17.  For the reasons stated, I decline to certify any of the questions posed.