HKSAR v. Hossain Aejaz

HCMA 529/2021

[2022] HKCFI 1378

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 529 OF 2021

(ON APPEAL FROM KCCC 2567 OF 2020)

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J U D G M E N T

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1.The appellant was convicted after trial on one count of “Common assault” and one count of “Failing to wear a mask in the public place within the specified period”, and was fined $2,000 and $3,000 respectively. The appellant now appeals against his conviction for both offences.

The prosecution case

2.The prosecution case pertains to two incidents that took place on 8 October 2020 and 9 October 2020 inside a Mosque in Tsim Sha Tsui which was open to public.  PW1 is the religious leader who works at the Mosque.  Prior to the incidents, PW1 had from time to time reminded worshippers to wear masks but the appellant objected to this requirement.

3.On 8 October 2020, the appellant went to the Mosque and joined the prayer session.  When PW1 was about to start leading the third prayer for the day, the appellant suddenly approached PW1 from behind and removed PW1’s mask in anger, asking PW1 why he was wearing a mask.  PW1 raised his hand to stop the appellant and the other worshippers came up to separate the appellant from PW1.  A report was made to the police.  The appellant was arrested by PW2, a police officer arriving at the Mosque, and was brought to the police station for investigation.

4.On 9 October 2020, the appellant went to the Mosque and was praying.  When PW3, a police officer arrived, he saw the appellant praying without a mask.  Despite repeated requests made to the appellant to wear a mask he refused to do so.  The police officer provided and gave the appellant a new mask however the appellant refused to wear it.  PW3 therefore arrested the appellant.

5.The prosecution produced two sets of record of interview (P1 and P2) taken by PW3 in which the appellant admitted: (i) taking off PW1’s mask on 8 October 2020; and (ii) not wearing a mask on 9 October 2020.  The appellant explained that the Mosque is a sacred place and a person praying should let God see his face.

6.On the dates of the incidents, there was a requirement from the government that the public has to wear a mask at the public area.  The prayer hall of the Mosque was regarded as a public place as any member of the public can go inside the Mosque and pray.

The defence case

7.The appellant acted in person.  He elected to give evidence and called no other defence witness.

8.The appellant’s testimony was that prior to 8 October 2020 he had made numerous requests to PW1 asking him not to wear a mask when leading a prayer, but PW1 refused his request.  The appellant stated that on 8 October 2020 he approached PW1 during prayers in the Mosque and removed his mask gently without saying anything.

9.While the appellant was removing his mask, PW1 raised his hand and “stroked” onto the appellant’s hand.  The appellant lost balance and fell onto the ground.  Soon after that, about 40 to 50 other worshipers came to appellant. Some of them beat him and some of them tried to subdue him.  Finally, he was brought to the corner of the prayer hall.  PW1 continued with the prayer.  Later one, one of the worshippers came to the appellant and asked him to offer an apology to the PW1.  The appellant refused.  A report was made to the police.

10.The appellant admitted that he removed his own mask when he prayed inside the Mosque on 9 October 2020.  The appellant confirmed that there was no difficulty for him to wear a mask prior to his arrest.

The verdict

11.The trial magistrate accepted PW1 and PW3 to be honest and reliable witnesses, and rejected the appellant’s evidence about the incident on 8 October 2020.

12.The trial magistrate found that the appellant removed PW1’s mask knowing that PW1 would not consent to it, and convicted him on the charge of “Common assault”.  She found that the appellant approached PW1 from his back and suddenly removed his mask forcibly with anger and said “Why wearing mask!”. She found that the appellant knew that PW1 would not consent to the removal of his mask.  PW1 felt that he was in danger of being attacked by the appellant and therefore PW1 raised his hand to stop the appellant and to protect himself. The magistrate found this touching was without the consent of PW1 and it was intended to cause PW1 to apprehend immediate unlawful violence and /or recklessness as to whether such apprehension was caused as was evidenced from PW1’s reaction.

13.The trial magistrate also found the appellant’s religious belief was not a reasonable excuse for him not to wear a mask, and convicted him on the charge of “Failure to wear a mask in the public place”.

Grounds of appeal

14.The appellant appeared in person.  The appellant submitted that masks should not be worn during prayers as God needs to see the prayer’s whole face. He submitted that he was a devout Muslim and the belief of Muslims was for masks to be removed during prayer.  For the reasons of his and Muslims religious belief he did not wear a mask and for the same reasons the religious leader PW1 should not wear a mask during prayers.  He therefore gently removed the mask from PW1’s face.

15.The appellant further submitted that the magistrate should not have found PW1 to be a credible witness as he was fraudster, he was cheating the worshippers at the Mosque and was dishonestly making money for himself and not supporting the poor people that attended the Mosque.

Consideration

16.In the present case, the magistrate considered all the appellant’s criticism and allegations against the credibility of PW1.  She carefully considered the exhibits adduced by the appellant in support of his allegations against PW1.  She found that the criticisms, allegations and the exhibits did not affect the credibility and reliability of the evidence of PW1.  The magistrate dealt fully with these in paragraph 31 of the Statement of Findings.  Having considered PW1’s evidence as a whole, she found PW1 to be an honest and reliable witness.

17.The magistrate was entitled to come to the findings as she did.  The reasoning was sound and there is nothing to show that it was plainly wrong for the trial magistrate to accept the evidence of PW1 nor PW3.

18.During the appellant’s cross-examination of PW1 and PW3 and in the appellant’s own evidence, the appellant himself accepted that he did remove PW1’s mask on 8 October 2020, and that he was not wearing a mask while praying at the Mosque on 9 October 2020.  There is ample evidence to support the two charges and his conviction on both counts are neither unsafe nor unsatisfactory.

19.For the above reasons, the appellant’s appeal against conviction should be dismissed.

Ms Joyce Poon, PP of the Department of Justice, for the respondent

The appellant appeared in person