HKSAR v. YU CHUN WING

[English Translation – 英譯本]

HCMA 550/2021

[2022] HKCFI 3209

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL CASE NO. 550 OF 2021

(ON APPEAL FROM KTS NO. 15090 OF 2021)

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JUDGMENT

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A.  Introduction

1.  Mr Joseph To, a Magistrate sitting at the Kwun Tong Magistracy (‘the Magistrate’), found the appellant guilty after trial of one count of being a manager of scheduled premises who did fail to comply with the direction of the Secretary for Food and Health issued under section 8(1) of Cap 599, subsidiary legislation F, contrary to sections 9(1) and 9(2) of the Prevention and Control of Disease (Requirements and Directions) (Business Premises) Regulations, Cap 599, subsidiary legislation F, of the Laws of Hong Kong. The appellant was sentenced to 4 weeks’ imprisonment suspended for 12 months. He now appeals against conviction.

B.  Facts

2.  Ms Joyce Poon, Acting Senior Public Prosecutor for the respondent, has set out the facts of the present case in her written submissions. This Court basically adopts them.

B.1.  The prosecution case

3.  The prosecution case alleged that when police officers patrolled past the unit in question on 5 March 2021 at about 11:25 p.m., they found that there was laughter coming out from the unit. Therefore, they knocked on the door for entry, and found that there were 8 people (including the appellant) playing mah-jong and having fun in there. The unit in question was equipped with various amusement amenities, including mah-jong tables, game machines and karaoke. The logo K T E A S Y was put up outside the unit. Investigation revealed that promotional messages of a social media platform by the name Partyroom_Kteasy made mention of the on-site amenities, the size of the premises and business hours, and there was also mention of ‘price is calculated per head’ and ‘1 free for every 10 people’.

4.  According to G.N. (E.) 134 of 2021 announced on 2 March 2021 on directions for scheduled premises (‘the Directions’) under the Prevention and Control of Disease (Requirements and Directions) (Business and Premises) Regulation, Cap 599F (‘Cap 599F’), premises that are maintained or intended to be maintained for hire for holding social gatherings (commonly known as party rooms) were to be closed from 4 March 2021 to 17 March 2021 in accordance with the Regulations, and the date of the offence was included.

5.  Under caution, the appellant admitted that he was the person in charge of the party room, and said that the event on that occasion was a no-charge private gathering.

B.2.  The defence case

6.  The appellant agreed to the prosecution case but disputed the definition of the term ‘closed’ in the Directions. The appellant had no previous criminal conviction and elected to testify. When he was testifying unrepresented in court he said that he had contact with the police before the offence and was informed of the sort that it would not be a problem if it was for private use. Moreover, the appellant had the personal experience of coming across patrolling police officers while having a meeting in the unit in question, and came to know that if the unit in question was used for the purpose of a meeting instead of being rented out to someone else for use, there would not be a problem.

7.  The appellant also pointed out that of the 8 people present on the night in question, 6 knew one another whereas the other 2 showed up incidentally. After his own assessment of the risk of infection, the appellant took the view that by having 4 of them playing mah-jong in one room while the other 4 having dinner at the other end was already able to reduce the risk of infection.

8.  The appellant took the view that the word ‘closed’ was equivalent to not in operation, and was misled into using the unit in question. The appellant did not call any defence witnesses.

C.  Reasons for verdict

9.  The Magistrate set out his reasons for verdict in his Statement of Findings:

‘13. The defendant had no any previous criminal conviction records, which shows that he had no intention to commit crimes, and that lends support to the credibility of his testimony. Taking the overall testimony into account, the court does not accept that the defendant is an honest and reliable witness.

14. The legislation clearly aims at “premises that are maintained (or intended to be maintained) for hire for holding social gatherings”, and the court takes the view that the word “closed” has to be related to the purpose of the premises “holding social gatherings”. The defendant also had personal experience that when the premises were not used for “social gatherings”, for example staff meetings or that the premises were not rented out for use by someone else, there would not be a problem. From this one can be aware that the accused knew clearly what “closed” meant, i.e., not to allow people for socializing to enter. However, at the material time there was an ongoing social gathering on the premises in question.

15. The defendant testified that at the time of having the event in question a risk assessment was made. The court takes the view that what the defendant meant by a risk assessment cannot be on a par with government policies formulated on the basis of expert opinions. The court is of the view that the defendant’s assertion does not constitute a reasonable excuse, because if the court would accept anyone to conduct a risk assessment on his own and permit that person to put the anti-epidemic measures behind him, those measures would exist in name only. The court is of the view that since the defendant conducted a risk assessment, this showed that he was clearly aware the gathering in question was [not] permitted.’[1]

D.  Grounds of appeal

10.  Mr Joseph Lee and Mr Ted Noel Chan for the appellant have put forward five grounds of appeal:

(1)  The Magistrate did not maintain an objective and neutral stand when dealing with the trial of the present case, and he joined the ‘arena’ as well, thereby causing the appellant not to have a fair trial, which was a procedural irregularity;

(2)  The Magistrate erroneously interpreted the requirement relating to ‘closed’ in (I) of the Directions;

(3)  The Magistrate erroneously found that at the time of the offence the premises in question fell under the scheduled premises in (I) of the Directions；

(4)  The Magistrate erroneously rejected the appellant’s testimony; and

(5)  The Magistrate erroneously rejected the ‘reasonable excuse’ in the present case.

E.  The related law

11.  Section 8(1) of Cap 599, subsidiary legislation F states that:

‘(1) For preventing, protecting against, delaying or otherwise controlling the incidence or transmission of the specified disease, the Secretary may issue a direction imposing requirements or restrictions, for a period specified in the direction, in relation to any or all of the following—

(a) any business carried on, or any activity carried out, by any person on any scheduled premises, including the mode of operation of the business or activity;

(b) the closing of any scheduled premises;

(c) the opening hours of any scheduled premises on a day.’

12.  And section 9 provides that:

‘Manager of scheduled premises and organizer of specified event must comply with directions of Secretary

(1) The manager of any scheduled premises (other than event premises), or the organizer of a specified event held on event premises, must comply with any direction issued under section 8(1) that applies in relation to the premises.

(2) A manager or an organizer who contravenes subsection (1) commits an offence and is liable on conviction to a fine at level 5 and to imprisonment for 6 months.’

13.  Section 13A of Cap 599, subsidiary legislation F sets out the defence:

‘Defence

(1) It is a defence for a person charged with an offence under section …… 9(2) or …… to establish that, at the time of the alleged offence, the person had lawful authority or reasonable excuse for contravening the provision concerned.

(2) Without limiting subsection (1), it is a defence for a person charged with an offence under section …… 9(2) or …… for a failure to comply with a direction to establish that, at the time of the alleged offence, the person had taken all reasonable steps to comply with the direction.

(3) 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.’

14.  The Directions in question are as follows:

‘G.N. (E.) 134 of 2021
PREVENTION AND CONTROL OF DISEASE
(REQUIREMENTS AND DIRECTIONS)
(BUSINESS AND PREMISES) REGULATION

Directions in Relation to Scheduled Premises

I hereby exercise the power conferred on me by section 8 of the Prevention and Control of Disease (Requirements and Directions) (Business and Premises) Regulation (Chapter 599, sub. leg. F) (the Regulation) to direct that for a period of 14 days beginning on 4 March to 17 March 2021—

(I) (a) the following premises as set out in Part 1 of Schedule 2 to the Regulation must be closed: —

(1) Bathhouse;

(2) Premises (commonly known as party room) that are maintained or intended to be maintained for hire for holding social gatherings;

(3) Establishment (commonly known as club or nightclub) that is open late into the night, usually for drinking, and dancing or other entertainment;

(4) Karaoke establishment;

(5) Mah-jong-tin kau premises; and

(6) Swimming pool;

(b) no members of the public may gather in the above premises; and

(c) the restriction in paragraph (I)(b) above is a restriction imposed in relation to a group gathering at the above premises and is applicable to a person who participates in a group gathering in the premises, a person who organizes a group gathering in the premises and a person who controls or operates the premises in which a group gathering takes place;

(II) the following premises as set out in Part 1 of Schedule 2 to the Regulation may open subject to the requirements and restrictions detailed at Annex: —

(a) Amusement game centre;

(b) Fitness centre;

(c) Place of amusement;

(d) Place of public entertainment;

(e) Beauty parlour;

(f) Club-house;

(g) Massage establishment;

(h) Sports premises; and

(i) Hotel and guesthouse.

2 March 2021

Secretary for Food and Health’

F.  Grounds of appeal (2) and (3)

15.  I will first deal with grounds (2) and (3), which involve the interpretation of the law.

F.1.  The appellant’s submissions

16.  The appellant cited the related Directions, and submitted that the term ‘closed’ did not exist in isolation, and had to be construed in conjunction with (I)(b) and (I)(c) in the Directions. The appellant cited section 8(3) of Cap 599, subsidiary legislation F: that the Secretary may impose different requirements or restrictions under section 8(1) for (a) different categories or descriptions of scheduled premises; and (b) different categories or descriptions of persons entering or present on any scheduled premises. The appellant submitted that in relation to the Direction on ‘closed’, the Secretary, in accordance with section 8(3) of the Regulation, aimed at a certain category or description of persons, namely, members of the public. In other words, in the premises set out in Part 1 of Schedule 2, members of the public were not permitted to gather there.

17.  The appellant submitted that if the legislative intent of Direction (I) was for those premises to be completely closed so that it would be impossible for anyone to gather at or use those premises, then there would be no need to add in (I)(b) and (c) (or to state in (I)(b) that no one, instead of no members of the public, may gather in the above premises). Therefore, Direction (I) does not prohibit private gatherings on those premises.

18.  The appellant mentioned that on 9 February 2022 the Secretary gazetted an amendment to the Prevention and Control of Disease (Prohibition on Group Gathering) Regulation, Cap 599G, to add section 8A(1), which would be in force for a period of 14 days. Section 8A(1) reads as follows:

‘A multi-household gathering at any private premises is prohibited from taking place during a period specified under section 8B(1).’

The appellant submitted that from this one could see that, when the Secretary was formulating the Directions in question, her intent did not include the prohibition on gatherings on private premises, otherwise there would not have been the need to add section 8A(1) above subsequently.

19.  The appellant submitted that although the premises in question were a party room, the prosecution was unable to prove that at the material time those who took part in the social gathering were ‘members of the public’. On the contrary, the evidence showed that those who were present made contact with one another through a Signal group, and the number of the attendees had been fixed. The appellant submitted that the assertion that it was a gathering of friends on that day was not challenged by the prosecution at all.

20.  The appellant submitted that the premises in question were not scheduled premises. In the premises set out in Part 1 of Schedule 2 of the Regulation, the nature of ‘premises that are maintained (or intended to be maintained) for hire for holding social gatherings (commonly known as party room)’ was of a more special nature and different from premises such as bathhouses, night clubs, karaoke establishments, mah-jong premises and swimming pools. The amenities such as mah-jong tables, refrigerators, game machines, etc., in a regular party room are no different from those in many people’s homes. What we call a party room is actually some interior space suitable for gatherings.

21.  The appellant submitted that when the court took a closer look at the definition of a party room in the Directions, it would not be difficult to find that those premises had to be for the purpose of hiring. The appellant took the view that the prosecution had to prove that at the material time those premises were being hired, otherwise any premises that could be used for holding social gatherings had to be closed. No doubt this would excessively broaden the definition of party rooms, which was certainly not the original intent of the Directions. By the same token, if, at the material time, the premises in question were used for a private gathering by the owner or the manager, then obviously those premises were not being hired.

22.  Although those premises were ordinarily a party room for hire, the prosecution did not have any evidence to refute the appellant’s assertion: that a private gathering was being held at the material time rather than [the premises were] maintained (or intended to be maintained) for hire for holding social gatherings.

F.2.  The respondent’s reply

23.  The respondent cited the definition of the word ‘closed’ in the Xiandai Hanyu Cidian 《現代漢語詞典》in relation to shops as ‘not in business or operation: several schools have been closed’. In Shorter Oxford English Dictionary, the definition of ‘close’ includes ‘having no part left open’, whereas the definition of ‘closed’ includes ‘not open’. From a literal sense, the term ‘closed’ refers to completely closed, stop operating, irrespective of the targets, and does not only aim at members of the public. Therefore, private gatherings needed to be prohibited as well.

24.  The respondent quoted from the Legislative Council Brief, which the government submitted to the Legislative Council in March 2020 when Cap 599F was being enacted, that[2]: the legislative intent was to implement more stringent measures for the purpose of ensuring social distancing or preventing people from congregating, and to regulate or prohibit activities/premises that would attract a group of people staying closely or mingling together for a prolonged period of time to prevent the spread of the disease. In relation to the scheduled premises, since the nature of the activities at the scheduled premises require relatively close contact or it is impossible for the participants to wear a mask throughout the process, it was necessary to take measures such as restricting the operation of any activities carried on at the premises, or even more extreme measures, including closure of the premises.

25.  The respondent took the view that I(b) and I(c) in the Directions were irrelevant to the interpretation of the term ‘closed’ in I(a), because:

(1)  Since the enactment of Cap 599F on 28 March 2020, Directions I(b) and I(c) never appeared in all the related G.N. (E.)s from G.N. (E.) 17 of 2020 (dated 27 March 2020) to G.N. (E.) 255 of 2020 (dated 21 December 2020);

(2)  Directions I(b) and I(c) first appeared in G.N. (E.) 3 of 2021 (dated 4 January 2021), which was in line with the time, i.e. 20 November 2020, when section 3 of Prevention and Control of Disease (Prohibition on Group Gathering) Regulation, Cap 599G (‘Cap 599G’) on places where group gatherings were prohibited was amended;

(3)  From the time of its enactment, section 3 of Cap 599G only stipulated that no group gatherings may take place in any public place. From the version dated 20 November 2020, however, apart from the part of no group gatherings may take place in a public place, subsection (1)(b) was also added, i.e. ‘a group gathering at any Cap. 599F premises in relation to which a relevant requirement or restriction is not complied with’; and

(4)  From the temporal proximity of the two amendments, I(b) and I(c) added to the Directions were only for the purpose of reflecting the new amendment of Cap 599G in terms of group gatherings on scheduled premises. In particular, I(c) in the Directions explicitly states that I(b) was a restriction imposed in relation to a group gathering, and the wording in I(c) was the same as that in section 6 of Cap 599G.

26.  Moreover, if the closure was only aimed at members of the public, then only ‘closed for business’ was needed. If ‘closed’ was only limited to ‘closed for business’, there would be no need to subdivide section 8(1) of Cap 599F into three categories[3]. Therefore, the Direction on ‘closed’ scheduled premises was a more stringent restriction, different from only restricting the mode of operation of the businesses on the scheduled premises.

27.  Regarding the prohibition of a multi-household gathering on private premises as a new provision under Cap 599G, it concerns a group gathering instead of Cap 599F, which is involved in the present case. The places the new provision regulates are private premises, which are in nature different from the scheduled premises involved in the present case.

28.  The respondent did not agree with the appellant’s assertion that the prosecution needed to prove that at the material time the premises in question were being hired before the definition of a party room was met.

29.  According to Part 1, Schedule 2 of Cap 599F and (I)(a) of the Directions, ‘premises that are maintained or intended to be maintained for hire for holding social gatherings (commonly known as party room)’ are scheduled premises.

30.  The respondent took the view that the definition of a party room was that it was for hire instead of being hired. There was evidence in the present case that the premises in question were equipped with amusement amenities including mah-jong tables, game machines and karaoke, there was the logo of ‘K T E A S Y’ outside the unit, the account name on the social platform Instagram was ‘Partyroom_Kteasy’, the promotional messages mentioned the on-site amenities, size of the site, business hours, ‘price is calculated per head’ and ‘1 free for every 10 people’. Therefore, there was evidence to prove that the premises in question were for hire.

31.  The definition or nature of the premises should not be affected by the circumstances under which the user is using them. ‘For hire’ means that the site can be hired, and is irrelevant to whether it was being hired at the material time. Another scheduled premises in the Directions[4], commonly known as clubs or night clubs, have the definition of ‘premises open late into the night, usually for drinking, and dancing or other entertainment’. It is impossible for the nature of such premises to change because there is no one drinking, dancing or having other entertainment at the time. Similarly, it will do that a party room can be for hire, and its definition does not stipulate that the premises has to be being hired at the material time.

F.3.  Discussion

32.  Having considered the submissions from the appellant and the respondent, I agree entirely with the arguments in the respondent’s submissions. The premises in question were ‘maintained or intended to be maintained for hire for holding social gatherings (commonly known as “party room”)’, and fell within the scheduled premises under Schedule 1 and (I)(a) in G.N. (E.) 134 of 2021.

33.  Scheduled premises are set apart from the usual private premises, especially in terms of the practical situation in Hong Kong. The homes of the majority of the Hong Kong people are not big, and they cannot be on a par with ‘party rooms’.

34.  The legislative intent and purpose were to regulate people from gathering and having a party in a ‘party room’. It made no difference whether it was a private party being held at the premises in question or that the premises were hired to members of the public for holding a party.

35.  These two grounds of appeal failed.

G.  Grounds of appeal (1), (4) and (5)

36.  I will now proceed to deal with the other grounds of appeal.

G.1.  The appellant’s submissions

37.  The appellant cited the case of Tsang Wai Man （曾偉民）[5], which emphasized that a judge plays the role of a listener in a trial. The Magistrate, however, joined the arena by interpreting conclusively Direction (I) before the hearing the arguments.

38.  On this ground, the appellant quoted the transcript of the trial and put forward the following submissions:

(a)  The appellant expressed that he was not guilty. After that, the Magistrate already had an argument with the appellant in relation to the meaning of Direction (I) when the former was trying to gain an understanding from the prosecution as to its basis of prosecution, and came to a conclusion on ‘closed’:

Court: ‘Understood. See that? There at A – 1A, “the following premises as set out in Part 1 of Table 2 – in Schedule 2 to the Regulation – must be closed”. That is to say, I do not care what you do, if you do not close (it) and someone gets in and uses the amenities, then this Direction is already violated, do you understand this point?’[6](underlining added)

(b)  The appellant had expressed that his understanding of ‘closed’ was based on an enquiry made with the police at an earlier time. Matters in this regard concerned whether the appellant had an ‘reasonable excuse’, but the Magistrate already cut in on the appellant’s account at this stage and completely denied the relevance of this matter:

Court: ‘Even I – you listen to me first. Even if I assume what you say is correct, the police are not lawyers. The so-called advice they gave you, I have no idea why they gave you such advice, I have no idea why they gave – gave you that. If they gave you that, actually you should have consulted a lawyer. Even if the police gave you such advice, the onus was on you to complete the Direction in the legislation. The onus lies with you, you cannot put up the excuse that because someone told you to do such a thing, so you did it. This is not an excuse which the court will accept. At most you can only say that that person directed you to do that, and he would also be guilty. Even if what you say is correct, even if what you say is right, okay? You say you dispute that, but you do not dispute that at that time it was open and there were people there, correct?’[7];

(emphases added)

(c)  Again, the Magistrate expressed on multiple occasions that the appellant was wrong when the latter attempted to put forward his understanding of ‘closed’:

‘Pardon me, sorry, you – I think you have got it wrong. Prosecution, the evidence you depend on is that in their Instagram account there, it is clearly stated that it is a party – party room, right? There is the publicity.’[8]

‘Defendant, I think you have got it wrong. What it means by “for hire” is that be it your place, or that you rented it, or that you can use it, and no matter whether you are the landlord or the tenant, if you let people in to use it at a charge, actually it has been hired by someone for use.’[9]

(emphases added)

(d)  When the appellant expressed that he held a different understanding of ‘closed’ again, the Magistrate adamantly expressed that the premises in the present case needed to be closed:

‘There is not really any definition on closed. Actually anyone understands closed. If you look up the dictionary you know what closed is. That is to say not opening the doors for op… -- not opening the doors for operation. That means, for example, you have staff in there tidying things up – but not opening the doors for people to come in then you are also closed.’[10];

(e)  When the Magistrate equated ‘closed’ with ‘not to open the door, not to permit people for socializing in’[11], the appellant expressed disagreement in face of this and the Magistrate reiterated his own view, including:

‘Do you have any dictionary which says that? Which dictionary of yours tells you that closed means not to operate?’[12],

‘I have never heard that closed means not to operate.’[13],

‘But it says it is for [hire]. That is to say, for hire means that people could hire [it], it does not say it has the meaning of being hired. Do you understand? Anyway, whether you were using it or not, whether you were operating it or not, you had to close it, it was that simple. Of course, if you say I closed it, I closed the doors so as not to permit people in, but I had staff inside – inside doing work and other people could not get in, that outsiders could not get in, that still counts as closed. This I can accept. But if you permitted outsiders to get in, how can you say it was closed? On this point, you – you accept that literally? I will take – I will take the view that you need – you only need a decision in law. It is that simple. I will make a record of it. Next paragraph.’[14];

(emphases added)

(f)  The prosecution had not commenced its case even at this stage. However, the Magistrate obviously had come to a conclusion in relation to the outcome of the present case, and pointed out that the appellant ‘you only need a decision in law…I will make a record of it.’

39.  The appellant invited the court to listen to the recording (10:01:00-11:02:00) on page 21 N to Q of the appeal bundle to understand the tone of voice and that of speech adopted by the Magistrate (I have listened to the recording in question in court).

40.  The appellant submitted that any reasonable person who heard the Magistrate’s tone of voice and what was said by him when having the argument with the appellant at that time would definitely come to the view that the Magistrate had made a decision on the word ‘closed’. The case was concluded in a short while, and the Magistrate gave his verdict immediately and gave exactly the decision which was consistent with his earlier view.

41.  The appellant took the view that the Magistrate had come to a conclusion on the interpretation of the legislative provisions and whether the appellant was in breach of the law since the commencement of the trial. Any neutral onlooker would certainly take the view that the Magistrate had on multiple occasions pointed out to the appellant that the latter’s interpretation of the word ‘closed’ was wrong before hearing the evidence. The Magistrate did not adjourn to think after hearing the evidence and the closing submissions and found the appellant guilty right away and remanded him.

42.  From the appellant’s not guilty plea to the argument between the Magistrate and the appellant to the appellant’s testimony and submission to the Magistrate’s verdict and remanding the appellant, the entire trial lasted only 47 minutes (09:44-10:31). At the time of the verdict, if there was any neutral onlooker present at the hearing, he or she would without the need to guess to know that the Magistrate would not change his view and would give, just like what the Magistrate himself said, the appellant a ‘decision in law’.

43.  The appellant complained that the Magistrate did not explain to him the legal consequences of section 65C of the Criminal Procedure Ordinance in a trial. After the appellant had expressed agreement with the facts of the prosecution and indicated that he was only disputing the term ‘closed’, the Magistrate put forward the suggestion to the prosecution that the facts be produced as evidence based on 65C without the need to call witnesses. The Magistrate not only took the place of the prosecution, he even deprived the appellant of the opportunity to obtain favourable testimony from the prosecution witnesses (that it was a no-charge private gathering that was being held on the premises in question at the material time).

44.  The appellant also complained that it was improper for the Magistrate to find that the appellant was not an honest witness only because the Magistrate did not concur with the appellant on the term ‘closed’.

45.  The appellant quoted what the Court of Final Appeal said in paragraph 36 of HKSAR v Ho Loy[15], that a consideration of the defence of a ‘reasonable excuse’ involved looking into three matters:

(a)  the matters said to constitute reasonable excuse must be identified;

(b)  the court would then examine whether the excuse was genuine; and

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

46.  The appellant submitted that the way the Magistrate handled the case had made him unable to hear any evidence in the prosecution case that might support the appellant having a reasonable excuse. In particular, the appellant stressed that the original PW1 was a friend of the appellant’s, and he was invited to attend the premises in question at the material time. The purpose and the course of his appearance on the premises in question might lend support to the defence case, and directly affect the Magistrate’s consideration of the above matters.

47.  Moreover, in his evidence in chief, the appellant testified that he had consulted a police officer and was informed that it was permitted if it was for non-commercial use, and the gathering the appellant was holding at the material time was a private one. The Magistrate did not make use of evidence in this regard to deal with whether the appellant had a reasonable excuse.

48.  There are exceptional circumstances in the present case because of the ambiguities in the legal provisions, plus the fact that those who were present at the social gathering at the material time were all the appellant’s friends, business partners and their friends. Obviously the appellant had a genuine excuse, which was also reasonable.

49.  The appellant submitted that the Magistrate did not give him any opportunity for mitigation after the Magistrate had found him guilty of the charge and simply adjourned the case for 5 weeks for a Background Report. It was only later when the appellant was granted bail by the High Court pending appeal that he was spared the 5-week remand. Eventually the appellant was sentenced to 4 weeks’ imprisonment suspended for 12 months. Although the appellant has not appealed against sentence, the Magistrate’s unfair practice towards the appellant would also lead the neutral observers present at the hearing in court to think that the appellant did not receive a fair trial.

G.2.  The respondent’s reply

50.  The respondent submitted that the Magistrate at that time always maintained a neutral stance, held an open attitude, was playing the role of a listener and provided the unrepresented appellant with assistance as well. The Magistrate also read out the prosecution case paragraph by paragraph before asking for the appellant’s consent. The respondent concurred that it would have been better if the Magistrate had explained the legal consequences of section 65C to the appellant, but the appellant was not deprived of his rights.

51.  The respondent submitted that the Magistrate had the advantage of hearing and observing the appellant testifying, and the appellate court should not interfere with the Magistrate’s finding of facts lightly.

52.  In relation to the defence put forward by the appellant, the respondent submitted that what the appellant relied on was the personal experience he had mentioned and the risk assessment by himself, and that the Magistrate was not erroneous in not accepting the appellant’s explanation.

G.3.  Discussion

53.  Having listened to and read the transcript of the trial in question, I concur with the appellant on his ground that he had not received a fair trial, especially when the Magistrate did not give the appellant any opportunity for mitigation and remanded him for 5 weeks for a Background Report. I cannot see really why there was the need for the Magistrate to ask for a Background Report. Even if there was the need, why was a 5-week remand necessary?

54.  I understand that the Magistrate did not approve of the appellant’s understanding of the term ‘closed’, but I take the view that the way the Magistrate handled the case at that time did lead one to feel that he was overbearing to the appellant. All the Magistrate needed to do was to make enquiries with the appellant as to his overall case of not guilty and the scope of the argument, and then start hearing testimonies and evidence and that would do. There was no need to argue with the appellant on the legal interpretation of ‘closed’ and he should not have done so.

55.  I have also noticed that actually the Magistrate himself also pointed out that ‘closed’ was equivalent to ‘not opening the doors for operation’:

‘There is not really any definition on closed. Actually anyone understands closed. If you look up the dictionary you know what closed is. That is to say not opening the doors for op… -- not opening the doors for operation. That means, for example, you have staff there tidying things up – but not opening the doors for people to come in then you are also closed’.[16] (emphasis added by me)

56.  But when the appellant pointed out that his understanding of ‘closed’ was ‘cannot operate’, the Magistrate pointed out that:

‘Court: Do you have any dictionary which says that? Which dictionary of yours tells you that closed means not operating?

Defendant: Because…

Court: I have never heard that closed means not operating.

Defendant: My apologies, Your Worship, because – the provision at that time aimed at the Scheduled Premises, and these premises were for commercial purposes.’[17] (emphasis added by me)

Such self-contradictory assertions by the Magistrate himself do confuse people (especially the unrepresented appellant).

57.  I understand that when the Magistrate came to know that actually the appellant did not have any dispute against the facts of the case, he suggested that the facts be produced as evidence by way of 65C to save time. This was understandable and not altogether inexcusable. A more appropriate way of handling the matter, in my view, would be to explain to an unrepresented accused the consequences of producing evidence to the court by way of 65C and make enquiries with the accused to see whether he required any prosecution witness to testify.

58.  In the present case, the appellant did not dispute the prosecution case at all. It looked like that the Magistrate found the appellant dishonest and unreliable solely because of the way the appellant understood the term ‘closed’. The Magistrate did not specify which aspects of the appellant’s testimony he did not accept, especially whether the appellant had been informed by a police officer that a ‘private gathering’ was ‘permitted’.

59.  Having read the transcript, I take the view that the defence the appellant relied on was his claim that he had personally heard the police officer say that a ‘private gathering’ was ‘permitted’, therefore he took the view that ‘closed’ was equivalent to not in operation and not doing business. That he said he had conducted a ‘risk assessment’ was not an excuse, but to point out that not only did he not rent the place out, that it was only a private gathering that was being held at that time, he even conducted an assessment and divided ‘8 people’ into ‘two groups’ to minimize the risk. It looked like that the Magistrate rejected the appellant’s evidence on the appellant’s ‘brash’ ground.

60.  Based on my legal interpretation of the term ‘closed’ and having taken the content of sections 9(1) and 13A of Cap 599, subsidiary legislation F into account, I take the view that at that time the appellant’s act was in violation of section 9(1), and his allegation that he did so because he was informed by the police officer that a ‘private gathering’ was ‘permitted’ does not constitute a reasonable excuse. Although police officers are law enforcers, it is impossible for them to offer the appellant ‘legal advice’, nor can they do so.

61.  Having said that, any accused deserves a fair trial, about which there is no doubt. Although I have found that the appellant did not have a reasonable excuse, he believed what the police officer said owing to a mistake: that holding a ‘private gathering’ was ‘permitted’, and because of that he breached the law. His misbelief in the police officer’s view would be a mitigating factor to alleviate his guilt, especially when ordinary people (including the appellant) would have difficulty in the interpretation of the law in question.

62.  Not only did the Magistrate not deal with the mitigating factor of whether the appellant had been misled by the police officer, he even did not give the appellant any opportunity to make submissions in mitigation and remanded the appellant for 5 weeks for a Background Report. The way the Magistrate handled the matter was unfair on the appellant.

H.  Decision

63.  The appellant did actually commit the offence, but on the basis that he did not have a fair trial, I would allow this appeal to quash the appellant’s conviction and sentence.

I.  Postscript

64.  It has come to my attention that in both his oral verdict and Statement of Findings, the Magistrate pointed out the appellant did not have a criminal record, which showed that he had no ‘criminal intent’. The way the Magistrate put it is wrong. Not having a conviction record shows that the accused has a low propensity to commit crimes instead of having no criminal intent.

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