HKSAR v. Kwok Wing Kin and Others

FAMC No. 50 of 2022

[2023] HKCFA 30

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 50 OF 2022 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

HCMA NO. 187 OF 2021)

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REASONS FOR DETERMINATION

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Mr Justice Ribeiro PJ:

1.At the hearing, we dismissed this leave application for reasons which we now provide.

2.On 1 May 2020, about three months after the first case of COVID-19 was reported in Hong Kong, eight persons decided to stage a May Day procession from Admiralty Centre to the Central Government Offices to demand unemployment benefits and to protest against COVID restrictions on public gatherings affecting freedom of demonstration.

3.After ignoring repeated police warnings, they were charged with participating in a prohibited group gathering contrary to section 6 of the Prevention and Control of Disease (Prohibition on Gathering) Regulation (“the Regulation”)[1] which had come into operation on 29 March 2020, having been issued by the Chief Executive in Council as a public health emergency regulation pursuant to section 8 of the Prevention and Control of Disease Ordinance.[2]

4.The Regulation’s object was to ban “group gatherings” for the purpose of “preventing, protecting against, delaying or otherwise controlling the incidence or transmission of” the COVID-19 virus.[3] Section 3 provided that “No group gathering may take place in any public place during a specified period”.[4] “Group gathering” was defined as “a gathering of more than four persons”[5] and a “prohibited group gathering” was defined as “a group gathering the taking place of which is prohibited under section 3”.[6] Section 6 made it an offence for anyone to participate in or organise, etc, a prohibited group gathering (subject to a defence of lawful authority or reasonable excuse[7]) punishable by a fine and imprisonment for 6 months. A person committing such offence might be given an option of paying a fixed penalty fine of $2,000.[8] Although fixed penalty tickets were issued against them, summonses were issued against the eight defendants since they chose not to pay and to dispute liability.

5.After trial before the Magistrate, Mr Cheang Kei-hong,[9] they were convicted of participation in a prohibited group gathering contrary to section 6 and sentenced to 14 days’ imprisonment suspended for 18 months. Their appeal before Wong J[10] was dismissed. The Courts below found that the eight defendants had together constituted and participated in a group gathering involving more than the permitted maximum of four persons. Applications to the Judge for certification of points of law with a view to making a leave application to this Court were refused on the basis that the grounds advanced either involved pure questions of fact or were not reasonably arguable.[11]

6.The present applicants, comprising four of the convicted defendants, now seek certification and leave to appeal. They seek to raise questions as to the true construction of certain sections of the Regulation, in particular, as to the meaning of “group gathering” in the context of the Regulation as a whole, and as to what is capable of constituting a “reasonable excuse”. They wish to challenge the restriction on group gatherings arguing that this involves a disproportionate and unconstitutional infringement of the freedom of demonstration.

7.It is unnecessary to deal with the specific grounds sought to be advanced since this application falls at the first hurdle. In criminal cases, the Court’s statute provides that leave to appeal shall not be granted unless the court below or the Appeal Committee certifies:

“... that a point of law of great and general importance is involved in the decision or it is shown that substantial and grave injustice has been done.”[12]

8.In the present case, the applicants have no prospect of showing that a point of law of great and general importance is involved in the decision since the Regulation expired at midnight on 31 March 2023 and has since been a dead letter. The proper construction of its provisions, whether regarding its definition of “group gathering” or any of its other sections, is no longer of any general importance, let alone of great and general importance. The prohibition no longer operates so that its constitutionality and questions of proportionality are entirely moot. There is no arguable question of any substantial and grave injustice.

9.In their reply submissions, the applicants contend that the questions are of great and general importance because “there may be similar regulations enacted in response to similar pandemic[s] in the future”, inviting the Court to “take judicial notice that the SARS outbreak occurred in just less than 20 years before COVID-19”.

10.That submission is without substance. The hope is obviously that there will not be a fresh pandemic any time soon. But even if there is, no basis exists for assuming that the same public health emergency measures, let alone a regulation having similar wording and calling for a similar construction, would be issued. What control measures may be required would depend on the nature of the pandemic, its mode of infection and a host of other considerations. The SARS outbreak was very different in nature and called for very different public health measures.

11.The Regulation was not a statute. It was a public health regulation made by the Chief Executive in Council in response to a developing public health emergency. It was on each occasion given a short expiry date and was frequently amended – changing the maximum number of participants in a group gathering eight times before the matter came to trial in the present case. Unlike a property or commercial or criminal statute, there is no question of such a Regulation receiving a beneficial, enduring construction from the Court of Final Appeal.

12.For the aforesaid reasons, leave to appeal was refused.

Mr Anson Wong Yu Yat and Mr Jason Kung, instructed by JCC Cheung & Co. Solicitors, for the 1^st, 2^nd, 5^th and 7^th Appellants (Applicants)

Mr Andrew Li, SPP and Mr Christopher Fung, SPP (Ag), of the Department of Justice, for the Respondent