HKSAR v. Ou Lihua

[English Translation – 英譯本]

HCMA 325/2020

[2022] HKCFI 865

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 325 OF 2020

(ON APPEAL FROM ESS 10883/2020)

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BETWEEN

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Before: Hon A Wong J in Court

Date of Written Submission of the Appellant: 14 March 2022

Date of Judgment: 6 April 2022

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JUDGMENT

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1.The appellant was charged with one count of “organizing a prohibited group gathering”[1] to which she pleaded not guilty. She was convicted by a deputy magistrate[2] (“the magistrate”) after trial, and she now appeals against the conviction.

Prosecution Case

2.The prosecution’s evidence against the appellant came from a female police officer (“the prosecution witness”). Her testimony can be summarized as follows[3].

3.On 17 April 2020, the prosecution witness and other police officers went to the Central Piers to conduct an anti-prohibited-gathering operation. At around 6:40 pm, she saw three men and two women at Pier No. 9. The two women were performing singing and dancing, and the appellant was one of the women. The three men and the two women were 1.5 metres apart. The two women who had wireless microphones, one or more microphone box amplifiers and one or more tripods were swaying to the beat. At that time, the prosecution witness was about 15 metres away from the two women and the three men. Subsequently, the said five persons together packed up the items, including the microphone box amplifier(s), tripod(s), several plastic stools and some personal belongings, and moved to the AIA Observation Wheel, which was about 30 metres away. The three men assisted the two women in packing up and moving the things.

4.After the two women had put the items in place, tested the microphones, and set the tripod(s) and plastic stools in position, one of the men sat on a fixed bench, another one kept wandering, and the third one sat on a plastic stool. The two women resumed singing and dancing. Except for the man sitting on the bench, the other two men were interacting with the two women, dancing together, and they also picked up the microphones and sang a few lines. At that time, they were less than 1.5 metres apart. The man sitting on the fixed bench was also less than 1.5 metres away from them. The prosecution witness observed for about 15 minutes at about 20 metres away from them. At around 7:20 pm, she went forward, revealed her identity to the two women and asked them to whom the equipment belonged. The appellant said that they belonged to her and the other woman. The prosecution witness asked them to provide their personal particulars and indicated that they would be prosecuted by way of summonses. The prosecution witness said that during the whole period of observation, apart from the said two women and three men, some passers-by also went there and stayed to watch the performance of singing and dancing from time to time.

Defence Case

5.At the trial, the appellant testified in court. Her testimony can be summarized as follows[4].

6.On that day, she and her classmate from a singing class surnamed Yeung (transliteration) sang together at Pier No. 9. She was well aware that a gathering of more than four persons was legally prohibited and that alternatively, each person in a gathering of more than four had to keep a distance of 1.5 metres apart from each other. They brought along the items belonging to both of them, including the microphone box amplifier(s), wireless microphones and tripod(s) for holding iPad(s). As to the square plastic stools, they placed them at the pier previously and did not bring them there on that day. At around six o’clock in the evening, she and Yeung put the audio equipment in place and started singing. Occasionally, some passers-by came over to watch. The appellant would ask the passers-by to scatter and keep a distance of 1.5 metres apart. At no time was there a gathering of more than four persons.

7.After singing for about half an hour, they moved to the Observation Wheel. The appellant moved the tripod(s) herself and Yeung carried the audio equipment. As to the several square plastic stools, since she walked in the front, she did not see who carried them at the back.

8.She did not see a man sitting on the fixed bench, nor did she dance or sing with the two men mentioned by the prosecution witness. Even if some people were by their side, there were no more than four persons and they were 1.5 metres away from each other. On that day, they only wanted to try out the audio equipment as the sound would be better through the audio equipment. The plastic stools were used for taking a rest by her or others who felt tired. In any event, the stools were placed such that they were 1.5 metres apart from each other.

9.During the whole course of events, they did not stay together with three men. The prosecution witness discriminated against her and framed her because she was a mainlander. Previously, a police officer had indicated to her that nothing would happen but eventually, she received a summons against her.

Findings of the Magistrate

10.The magistrate accepted the testimony of the prosecution witness[5], but did not accept the exculpatory parts of the appellant’s testimony[6].

11.The magistrate made the following findings of facts[7]: On that day, the appellant and Yeung brought the microphones, microphone box amplifier(s) and tripod(s) to the scene, and put the plastic stools, which had been placed at the pier previously, at the location where they subsequently sang and danced. The only reasonable and irresistible inference was that the appellant made the arrangement and preparation, and therefore she did organize the performance and gathering at a public place. At the outset, at Pier No. 9, everyone kept a distance of 1.5 metres apart from each other. However, when they moved to the place near the Observation Wheel, circumstances had changed and the five persons gathered together (the appellant, Yeung and the three men whom the prosecution witness mentioned), and the distance of 1.5 metres was no longer kept. Therefore, at that time, the nature of the gathering had turned into a prohibited group gathering. The prosecution witness had observed and found that the situation had lasted for 15 minutes before she moved forward to reveal her identity. The magistrate was certain that at that time the appellant definitely knew that a prohibited group gathering was taking place and continued to sing and dance while holding the gathering.

12.The magistrate found that the appellant organized the said gathering without lawful authority or reasonable excuse[8].

13.Accordingly, the magistrate found the appellant guilty.

Grounds of Appeal

14.On appeal, the appellant was not legally represented[9]. Apart from submitting a printout of the standard grounds of appeal such as the evidence being insufficient to support a conviction or the evidence being improperly accepted or rejected, she also lodged her submission dated 14 March 2022 containing the following statements:

(1) she was a law-abiding good citizen and did not break the law;

(2) the evidence was insufficient to support a conviction;

(3) the prosecution witness who repeatedly asked her for her native place obviously discriminated against her;

(4) a male police officer had said to her, “It’s fine; you may leave,” but the prosecution witness did not let her go and insisted on framing her; and

(5) she did not commit the subject offence.

Relevant Laws and Regulations

15.Section 3 of the Prevention and Control of Disease (Prohibition on Gathering) Regulation[10] (“the Regulation”) provides that group gatherings at any public place are prohibited from taking place during a specified period. According to G.N. (E.) 27 of 2020, the Secretary for Food and Health had the period from 10 April 2020 to 23 April 2020 gazetted as a specified period. In other words, the day in question, 17 April 2020, was within a specified period.

16.Pursuant to section 6 of the Regulation[11],

“6. Offence if prohibited group gathering takes place

(1) If a prohibited group gathering takes place, each of the following persons commits an offence—

(a) a person who participates in the gathering;

(b) a person who organizes the gathering;

...

(2) A person who commits an offence under subsection (1) is liable on conviction to a fine at level 4 and to imprisonment for 6 months.”

17.Section 2 of the then[12] Regulation provided that a group gathering meant a gathering of more than four persons, save and except exempted gatherings or gatherings permitted by the Chief Secretary for Administration[13]. The present case does not involve such exceptional circumstances.

18.At that time, section 7 of the Regulation provided for the following statutory defences:

“(1) It is a defence for a person who is charged with an offence under section 6(1) in respect of a prohibited group gathering to establish that, at the time of the alleged offence, the person had lawful authority or reasonable excuse—

(a) for a person charged under section 6(1)(a)—for participating in the gathering;

(b) for a person charged under section 6(1)(b)—for organizing the gathering; or

...

(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.”

Discussions and Considerations

19.The primary duty of the magistrate was to make findings on the course of events, and it involved assessment of the credibility of the testimonies of the prosecution witness and the appellant.

20.The magistrate accepted the testimony of the prosecution witness. She gave the following account in respect of her findings in this regard[14]:

(1) The evidence of the prosecution witness was simple, clear and straightforward. Under cross-examination, she appeared honest and unshaken. She was not evasive, nor did she exaggerate the incident. For instance, the appellant claimed that at that time she did call on the onlookers to scatter and keep a distance of 1.5 metres apart and so on. The prosecution witness fairly replied that due to the volume of the microphone box amplifier(s) and the distance from which she observed, even if the appellant talked to someone next to her, she would not be able to hear it.

(2) It was alleged that the prosecution witness discriminated against the appellant because she had asked about the appellant’s native place. The prosecution witness explained that it was for the purpose of obtaining background information to fill in the relevant documents used in prosecuting the appellant by way of summons.

(3) During cross-examination, the appellant contended that her plastic stools were placed so that they were 1.5 metres apart. The prosecution witness frankly admitted that it was correct, but she also said that no one actually sat on the plastic stools for long and the onlookers did not sit down either.

21.The magistrate did not accept the exculpatory parts of the appellant’s testimony and gave the following reasons[15]:

(1) The appellant said that when she was singing, she was facing the front and could see if anyone was coming over. She maintained that at no time were there more than four persons gathering and everyone kept a distance of 1.5 metres away from each other. The appellant also said that she was aware of the restrictions on gatherings, ie, not more than four persons and the requirement of keeping a distance of 1.5 metres apart. She also said that at that time she had indicated this point to the onlookers and was certain that there were never more than four persons. She was very attentive as to whether there were more than four onlookers and whether a distance of 1.5 metres was kept. However, when the appellant was asked about the three men and one woman as alleged by the prosecution witness, she immediately became uncertain and evasive: she said that she did not pay attention as to whether anyone was moving the things to the Observation Wheel together with her because she was walking in the front. Besides, she was able to tell that it was Yeung who moved the audio equipment, but she said she did not notice who moved the plastic stools.

(2) The appellant said that she did not see or notice who placed the plastic stools there. The magistrate took the view that had she and Yeung been the only persons who moved the items and placed the apparatus there, it would have been impossible that the appellant did not see anything or was not sure who performed the said acts.

(3) When asked about the man sitting on the bench, the appellant said that she did not see or notice him because the bench was behind her. Later on, she said that she did not remember. However, while not noticing and not remembering, she was able to say that the distance was more than 1.5 metres.

(4) When the prosecution alleged that the two men had interacted with her, she said that it was possible, but maintained that a distance of 1.5 metres was definitely kept.

(5) On the one hand, the appellant said that she was law-abiding, had borne in mind the restrictions on gatherings, and was very attentive to the circumstances of the crowd. However, on the other hand, she also said that she did not notice or see those three men and at the same time maintained that there were no more than four persons gathering, and that everyone kept a distance of 1.5 metres from each other. Her evidence was self-contradictory.

(6) The appellant claimed that she only wanted to “sing some songs” with her classmate and to try out the audio equipment, but brought so many items from her residence in Shau Kei Wan to the Central Piers, and placed several plastic stools at the location where they sang. Her account was unreasonable.

22.The evaluation of whether a certain witness is honest and credible falls within the scope of the decision of the trial magistrate. The appellate court can only rely on the written transcript for making its decision and does not have the benefit of hearing the evidence and observing the demeanour of the witness in court. Accordingly, unless the findings of facts made by the magistrate are unreasonable or illogical or the evidence was inherently improbable, or when dealing with evidence, the magistrate had misquoted, omitted or failed to consider and analyse any important issue, the appellate court would not hastily interfere with the decision of the trial magistrate.[16]

23.The appellant did not specifically point out any impropriety in the magistrate’s findings on the credibility of the evidence of both parties.

24.After perusing the Statement of Findings, I am of the view that there is no sufficient reason to interfere with the magistrate’s findings in this regard, and therefore I will consider the matter based on the magistrate’s findings of facts.

25.The prosecution was required to prove that on the date and at the time and place particularized in the charge, the appellant did:

(1) organize;

(2) a prohibited group gathering.

26.I will first deal with item (2) above. As stated above, the Regulation then in force stipulated that a group gathering was a gathering of more than four persons. The Regulation did not provide any definition for the word “gathering”. I take the view that the word “gathering” is an everyday expression and should be considered based on the ordinary meaning of the word, and the case should be decided on the basis of the evidence.

27.Generally speaking, the word “gathering” means assembling or getting together.[17]

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 in the entire incident):

(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.

29.The distance of 1.5 metres to be kept between two individuals is stipulated in section 10(2) of the Regulation. This is the only provision in the Regulation that contains such expression[18]. The relevant provision is as follows:

“For subsection (1)(b), if the distance between any participant of a gathering in a public place and any participant of another gathering in the place is less than 1.5 metres, then each of the gatherings is a dispersable gathering.”

30.I agree with the submission made by Mr Ng Wing-kit, Acting Senior Public Prosecutor for the respondent, that the provision regarding the distance of 1.5 metres only applies to dispersible gatherings. It was a condition for exercising the power to disperse gatherings under section 10 of the Regulation, but it did not mean that a gathering in which such a distance was kept would not constitute a prohibited group gathering or that it could be relied on for proving a statutory defence[19].

31.Based on the evidence accepted by the magistrate, I totally agree that a prohibited group gathering did exist at the time and place stated.

32.I now proceed to consider whether the magistrate’s finding that the appellant organized this prohibited group gathering is safe and correct.

33.Similarly, the Regulation does not provide any definition for the word “organize”. This is also an everyday expression which generally incorporates the meaning of arrangement or preparation.

34.The following cases, though relating to offences different from that in the present case, may serve as references.

35.In HKSAR v Chan Wai Yip Albert[20], when considering whether the appellant organized the procession in that case, Barnes J took into account the evidence which showed that he appeared in that activity by way of taking an active leadership role.[21]

36.In the English case of Flockhart v Robinson[22], when considering whether the accused organized the procession in question, the court pointed out that if the evidence showed that he had planned the route of the procession or had indicated to someone the route of the procession[23], then he was taking part in organizing that procession.

37.From the evidence accepted by the magistrate, in particular, that the appellant and Yeung brought the wireless microphones, microphone box amplifier(s) and tripod(s) to the scene at the Observation Wheel and placed them there, and that they also placed the plastic stools at the location where they sang and danced,

38.I am of the view that the magistrate’s finding that the appellant organized the prohibited gathering is safe and supported by ample evidence.

39.The magistrate was of the view that the appellant could not rely on the statutory defence stated in section 7. I agree with this conclusion. The statutory defence was that there was lawful authority or reasonable excuse in organizing the gathering concerned. In this case, there was no sufficient evidence to raise an issue with respect to these matters.

40.At the trial, the appellant asserted that everyone was more than 1.5 metres away from each other. Even if the case is considered based on this assertion for the time being, this will, firstly, result in a safe conclusion as the magistrate found that it was a prohibited gathering; and secondly, this will not constitute a reasonable defence in this case.

41.The appellant fails to put forward any valid ground of appeal. Having reviewed the evidence of the case, I am of the view that the magistrate’s conviction is unmistaken and supported by ample evidence. Therefore, the appeal is dismissed and the conviction is upheld.

Mr Ng Wing-kit, Acting Senior Public Prosecutor of the Department of Justice, for the respondent

The appellant, unrepresented, appearing in person

Translated by the Judgment Translation Unit of the Judiciary and vetted by Ms. Jenny Chung, Solicitor.