HKSAR v. Yu Chun Wing
Read the full judgment text of HCMA 550/2021 on BabelCite. This High Court CFI judgment was delivered on 1 November 2022.
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 t
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[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 ______________________ 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:
D. Grounds of appeal 10.Mr Joseph Lee and Mr Ted Noel Chan for the appellant have put forward five grounds of appeal:
E. The related law 11.Section 8(1) of Cap 599, subsidiary legislation F states that:
12.And section 9 provides that:
13.Section 13A of Cap 599, subsidiary legislation F sets out the defence:
14.The Directions in question are as follows:
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:
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:
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:
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:
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’:
56.But when the appellant pointed out that his understanding of ‘closed’ was ‘cannot operate’, the Magistrate pointed out that:
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.
Mr Raymond Cheng, Senior Assistant Director of Public Prosecutions and Ms Joyce Poon, Senior Public Prosecutor (Acting) of the Department of Justice, for the respondent Mr Joseph Lee and Mr Ted Noel Chan instructed by Ho Tse Wai & Partners, for the appellant Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law. [1] Having considered the context of those paragraphs and the four findings by the Magistrate (see p.16E of the appeal bundle), the Magistrate was obviously saying that the appellant knew that gathering on the premises in question was not permitted. That the Magistrate wrote ‘was permitted’ was because of a clerical mistake on his part. [2] ‘ENHANCED MEASURES
[3] ‘ (1) the mode of operation of any business (or activity carried on) at any scheduled premises;
[4] G.N. (E.) 134 of 2021 [5] HKSAR v Tsang Wai Man, CACC 190/2001 [6] Appeal bundle, p.18L. [7] Appeal bundle, pp.18R to 19A. [8] Appeal bundle, p.19M. [9] Appeal bundle, p.190O. [10] Appeal bundle, p.21D-E. [11] Appeal bundle, p.16E. [12] Appeal bundle, p.21L. [13] Appeal bundle, p.21M. [14] Appeal bundle, p.21N-Q. [15] (2016) 19 HKCFAR 110. [16] Appeal bundle, p.21D-E. [17] Appeal bundle, p.21L-M. | ||||||||||||||||||||||
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