HKSAR v. Hurek Simon

HCMA 42/2021

[2021] HKCFI 2477

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 42 OF 2021

(ON APPEAL FROM ESS 20338 OF 2020)

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BETWEEN

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Before:  Hon D’Almada Remedios J in Court

Date of Hearing:  25 June 2021

Date of Judgment:  25 June 2021

Date of Reasons for Judgment:  24 August 2021

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REASONS FOR JUDGMENT

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1.The appellant was convicted on his own plea of guilty of an offence of “Leaving the place of quarantine without permission of an authorized officer on 25 March 2020”, contrary to section 8(1)  and (5)  of the Compulsory Quarantine of Persons Arriving at Hong Kong from Foreign Places Regulation, Cap. 599E (“the charge”).

2.The appellant was sentenced to 10 days’ imprisonment by Magistrate Peter Yu (“the Magistrate”).

3.On the same day the appellant filed a Notice of Appeal against Sentence and applied for bail pending appeal which was granted by the Magistrate.

4.The Magistrate handed down his Reasons for Sentence on 4 January 2021.

5.On 25 June 2021, I allowed the appellants appeal against sentence set aside the term of imprisonment and substituted it with a fine.  I now hand down my reasons.

Brief Facts

6.After pleading guilty to the charge, the appellant admitted the brief facts.

7.The appellant entered Hong Kong from England via the Hong Kong International Airport (“HKIA”)  at about 0748 hours on 25 March 2020.  He was issued with a Quarantine Order (“the Order”)  on the same day.  He was to quarantine himself at his home, in a flat at Kam Cheun Building, 130 Des Voeux Road Wes, Hong Kong (“the place of quarantine”)  until the expiry of the order at 2359 hours on 7 April 2020.

8.The order indicated inter alia, that the appellant unless with the permission of an authorised officer was required to confine himself at the place of quarantine and that a breach of any requirement rendered him liable to a fine of $25,000 and to imprisonment of 6 months.

9.On 25 March 2020 at 1030 hours, the staff at “U Select” (“the supermarket”)  at 189 Des Voeux Road West saw the appellant, who was wearing a wristband and a facemask, shopping at the supermarket and reported him to police.

10.A police officer arrived at the supermarket at around 1033 hours and located the appellant therein.  Upon enquiry, the appellant admitted he arrived in Hong Kong from England at around 0656 hours that same day, 25 March 2020.  He returned home to his flat at the aforementioned building and subsequently went to the supermarket to buy daily necessities.

11.No permission to the leave the place of quarantine was given to the appellant.

Grounds of Appeal

12.In his Perfected Grounds of Appeal and his written submissions, Counsel for the appellant, Mr Christopher Grounds, advanced very detailed grounds of appeal all of which is not necessary to repeat here.

13.Generally, Mr Grounds submitted that the magistrate sentence of 10 days’ imprisonment imposed on the appellant was manifestly excessive and/or wrong in principle.  He contended that taking all relevant mitigating factors into account, a fine was appropriate or at worst, the appellant should have been considered for community service.  A sentence of imprisonment should not have been considered or imposed in this case.  Even if a sentence of imprisonment was deemed appropriate then it should have been suspended.

14.Further, the appellant submitted that the magistrate erred in principle and failed to place sufficient weight on the mitigating factors or to consider them properly or at all and that taken as a whole, this led to a manifestly excessive and wrong in principle sentence of imprisonment.

15.In reply, Counsel for the Respondent, Mr Derek Lau advanced that an immediate custodial sentence was entirely justified and that a deterrent sentence was needed to send a clear message not to treat these orders lightly. Mr Lau, submitted that in order to properly assess the appropriateness of the sentence imposed by the magistrate, it is important to have regard to the statutory objective of the regulation and take into account the gravamen of the offence.  Mr Lau went on to say that it is imperative that the quarantine rules are strictly complied with, for people who flout the quarantine rules by leaving their places of quarantine are essentially putting the health of all members of the community at risk.  He said bearing in mind the paramount importance of ensuring public health.  A fine nor a non-custodial sentence was sufficient to reflect the gravity of the offence or to deter similar offences.

DISCUSSION

16.The sole issue in this appeal is whether the sentence of imprisonment imposed was manifestly excessive and wrong in principle.

17.The purpose of quarantine is to separate and restrict the movement of people who may be exposed to a contagious disease (in this case Covid)  and to keep them away from the community (in Hong Kong)  so they will not infect anyone. I agree with Mr Lau that the paramount importance is ensuring public health and not putting the community at risk.

18.The maximum penalty for this offence is a level 4 fine ($25,000)  and 6 months’ imprisonment.  The wide range of penalties is indicative that the legislature has taken into account the severity of the level to which the present offence may be committed.  Therefore, not all breaches should attract the higher end of the spectrum of imprisonment.  In contrast, not all breaches need attract punishment at the lower end a fine.  It is balancing act entirely dependent on the circumstances of each case.

19.In the magistrate’s reasons for sentence he was aware the appellant was of clear record and committed this offence at the outset of his quarantine period, whilst pending activation of his tracking device and had breached it as he realized only when he arrived home that he had no food and went to the supermarket nearby his home to buy the basic necessities.  he said :-

“9. I have considered the submissions by Mr Swainston and all materials submitted. I also recognize the fact that, like most wrongdoers in this type of cases, the Defendant comes from a good background and has a clear record. I also take into account other matters that are favourable to him such as the supermarket was not far away from his flat; he was wearing a mask at the material time, he made full admission to the police at scene etc.

10. The present regulation came into effect on 19 March 2020 with the purpose of combating the global outbreak of the COVID-19 and protecting public health. In sentencing, the Court should impose a sentence with sufficient deterrence in order to send a clear message to the general public that this kind of offence is viewed seriously by the Court and that irresponsible behaviours towards the general public would not be tolerated.

11.   Mr Swainston submitted that the present case is distinguishable from other cases as the Defendant only left the place when the successful activation of the tracking device was still pending and that he did not leave his place in the middle of the quarantine period.  I do not agree.  I do not find there to be any material difference from other leaving the place of quarantine cases.  The wording in the quarantine order is clear.  The Defendant was required to be quarantined at the address he provided with immediate effect, irrespective of whether the activation of the tracking device was successful.”

20.The magistrate was alert to the impact of a custodial sentence on the employment of appellant.  At para 8 of his reasons, he stated:

“8. Lastly, Mr. Swainston invited me to consider the effect of conviction on the Defendant. Due to his job nature, he is required to report the present incident to his employer and disciplinary action may be triggered. An imposition of a term of imprisonment would likely result in the termination of his employment and a suspension of his pilot licence.”

21.In mitigation before the magistrate it was submitted that the appellant was in UK for a three-week period of leave.  He had only been in the UK for a few days prior to his being asked and informed by his employer to return to Hong Kong.  He therefore turned around and returned to Hong Kong.  Upon his return he arrived tired and jetlagged.  He travelled home via the Airport Express and then walked home.  When he arrived home he put down his luggage and changed his clothes.  He tried to activate his tracking device without success. He realized that he had no food nor had he had an opportunity to buy food so he foolishly and regretfully made the decision to go downstairs to the shop located close to his premises to buy groceries[1].

22.Whilst breaches of quarantine orders are serious and should be treated as such, in consideration of all the facts here, this is not a case that should have attracted a sentence of imprisonment.  It is essential when sentencing to take into regard the facts which set-out the degree of seriousness in committing the offence and to see if there are any significant mitigating factors.

23.I am satisfied in this case the magistrate failed to take into account the fact that the breach of the quarantine order was committed at the outset of his quarantine order for buying necessities.  It can be envisaged that a more serious breach would be one where it is committed in the middle of the quarantine period and cavorting in social entertainment with others in the community.  At the time of commission of the offence there was no mandatory requirement to wear a mask.  During the breach he was wearing a mask.  The appellant has shown his remorse with his timely plea of guilty.  He is of clear record.  The commission of the offence committed by the appellant was not anywhere near a scenario which warranted an immediate sentence of imprisonment.

24.The breach was committed at a time the government had not mandated the mode of transport to nor the place of quarantine.  The appellant was effectively free to travel and come together with the public whilst on his way home from the airport.  The rules relating to the place of quarantine, the length and method of travel have increasingly tightened since March 2020.  In March 2020 they were clearly not as strict.  There is thus a large difference of perception of breaching the rules when they first came into place and at the time of sentencing by the magistrate.

25.Moreover, the magistrate failed to take into consideration the repercussions and impact of a sentence of imprisonment on the appellant’s current employment and future career.  Due consideration was needed in these circumstances.  Importantly even this “short” sentence of 10 days’ imprisonment may spell disaster for him.  It may result in the suspension of his pilot’s licence, the termination of his employment and the end of the appellant’s career which he has had for his whole life.  At the age of 40 he may have to look for a new career.

26.A loss of employment or of professional or financial benefits are matters that should be taken into account in mitigation (Poon Ping Kwok & Another [1992] 2 HKCLR 231).

Conclusion

27.In balancing the above matters against the circumstances in which offence the offence was committed, the sentence of imprisonment was manifestly excessive and wrong in principle.  For the above reasons the appellant’s appeal against sentence was allowed.

28.As the facts pertaining to the breach of this offence was one falling within the lower end of the scale, I substitute the sentence of imprisonment with one of a fine in the amount of $15,000.  The fine to be paid within 14 days from today.

Mr Derek Lau, SADPP (Ag.) of the Department of Justice, for the respondent

Mr Christopher Grounds, instructed by Tanner De Witt, for the appellant