HKSAR v. Kwok Wing Kin and Others
Read the full judgment text of HCMA 187/2021 on BabelCite. This High Court CFI judgment was delivered on 18 October 2022.
1. This is a summons case in which the eight appellants (D1 - D8) were each summonsed for one count of “participating in a prohibited group gathering” [1] . They each pleaded not guilty to the count. After trial, the magistrate [2] found them all guilty and sentenced each of them to 14 days’ imprisonment, suspended for 18 months. They all appeal against conviction and sentence.
Cited by 4 cases · Cites 33 cases
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[English Translation – 英譯本] HCMA 187/2021 [2022] HKCFI 2525 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MAGISTRACY APPEAL NO 187 OF 2021 (ON APPEAL FROM ESFS 5-12/2020) _______________ BETWEEN
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_______________ JUDGMENT _______________ Contents 1.This is a summons case in which the eight appellants (D1 - D8) were each summonsed for one count of “participating in a prohibited group gathering”[1]. They each pleaded not guilty to the count. After trial, the magistrate[2] found them all guilty and sentenced each of them to 14 days’ imprisonment, suspended for 18 months. They all appeal against conviction and sentence. 2.As indicated by the testimonies of the prosecution witnesses and the video clips produced to the court, the prosecution’s allegations against the appellants can be summarized as follows. 3.Around 11:04 am on 1 May 2020, D1 to D5 and D8 were standing outside Admiralty Centre, Admiralty, and there were also some reporters and a number of police officers (including a senior inspector (“PW1”)) at the scene. PW1 issued to the six appellants warnings relating to Section 6(1)(a) of the Prevention and Control of Disease (Prohibition on Gathering) Regulation (“the Regulation”) and relevant provisions (“No-gathering Order”) and required them to disperse. Shortly after PW1 started issuing the warnings, D7 also showed up at the scene. Later, D6 also showed up. 4.After that, D1, D2, D5 and D7 (“Labour Party Group”) lined up horizontally and stood behind a demonstration banner of the Labour Party. D3, D4, D6 and D8 (“League of Social Democrats (LSD) Group”) also lined up horizontally and stood behind a demonstration banner of LSD. 5.When the four persons of the Labour Party Group, holding the demonstration banner, started a procession, the LSD group also followed and started a procession, chanting slogans together. The two groups talked to each other and stood at different places, and their distances from each other changed when they were moving. 6.At different stages, PW1 issued a total of four warnings relating to the No-gathering Order to the persons mentioned above and required them to disperse, but all those people just ignored and continued with the assembly and procession. 7.The appellants went along the pavement on the south side of Harcourt Road outside Admiralty Centre, moved onto the escalator, and reached the footbridge connecting with the Central Government Offices and Tamar Park. At this juncture, PW1 and some police officers stopped the appellants, stating explicitly that the police would issue fixed penalty notices. After that, the procession and assembly continued. 8.Except D5, the other seven appellants handed over their identity cards to the police on the said footbridge for the police to deal with the issuance of fixed penalty notices. Since D5 refused to hand over his identity card to the police, he was arrested by the police on the said footbridge and taken away from the scene. 9.At the trial, all appellants elected not to testify and called no witness. 10.According to the magistrate’s summary, the issues in this case are as follows:
11.The magistrate was satisfied that PW1[4] was a credible and reliable witness and accepted his objective description of what happened in the case and his identification of the appellants[5], but emphasised that no reliance would be placed on the witness’s subjective view of what happened in the case or his personal opinion[6]. 12.As for the other police witness, PW2, the magistrate was also satisfied that she was a credible and reliable witness and accepted her account of what had happened in the case[7]. 13.The magistrate took into account and analyzed the following precedents in dealing with the interpretation of prohibited group gathering[8]:
14.The magistrate was of the view that:
15.The magistrate found that the relevant provisions of the No-gathering Order were constitutional[19]. 16.The magistrate also found that the appellants formed a gathering, which was a prohibited group gathering, and that the appellants participated in such group gathering and were aware that they were participating in such group gathering[20]. 17.The magistrate also found that the excuse relied upon by the appellants was unreasonable, and that the prosecution had put forward proof to the contrary which was sufficient to remove any reasonable doubt, so that the court did believe beyond reasonable doubt that the appellants had no reasonable excuse for conducting the prohibited group gathering in the case.[21] 18.Eventually, the magistrate held that the prosecution proved the allegations against the eight appellants in the eight summonses beyond reasonable doubt, and therefore found them guilty of the respective summonses against them. 19.On appeal, D1, D2 and D5 were represented by Mr Anson YY Wong, of counsel and Mr Jason CS Kung, of counsel[22], who advanced the following grounds of appeal for these three appellants:
20.D4, D6 and D8 were represented by Mr Carter TC Chim, of counsel and Mr Geoffrey KW Yeung, of counsel[23], who advanced the following grounds of appeal for these three appellants:
21.D3 was not represented and the grounds of appeal that he advanced may be summarized as follows:
22.D7 was also unrepresented and the grounds of appeal that he advanced may be summarized as follows:
VI. Discussion and consideration 23.In respect of the grounds of appeal advanced by the appellants, I am of the view that discussion and consideration may be made on the following five main issues:
24.The present case originated from an event of demonstration, involving the constitutional rights of peaceful assembly, procession and demonstration (“the relevant constitutional rights”). The No-gathering Order constituted a restriction of these rights. In such circumstances, the interpretation of “prohibited group” is relevant to the constitutional issue, and therefore I will discuss Issue (I) and Issue (II) together. 25.The appellants’ respective submissions on the legal interpretation of “prohibited group gathering” were not really the same, but all criticized the magistrate’s interpretation for failing to strike or to properly strike a balance between the relevant constitutional rights and the legislative intent of the Regulation. The main points of their submissions may be as summarized as below. Where the same point was made in the submissions, this will not be repeated. 26.The No-gathering Order should not be construed as prohibiting all assemblies of more than four persons in a public place, but had to be viewed in the light of the actual circumstances (including regarding the assembly, its purpose, time, number of people, the distance of people from each other, etc) in order to strike a balance between the relevant constitutional rights and the legislative intent of the Regulation[30]. If an assembly of more than four persons in a public place was considered a violation of the No-gathering Order regardless of whether the distance of people from each other and their behaviour would pose any public health risk, it would be a disproportionate restriction on the relevant constitutional rights, and such interpretation had to be avoided by the court as far as possible[31]. 27.As it could be seen from section 4(1) of the Regulation, the Regulation was enacted for the purpose of “preventing, protecting against, delaying or otherwise controlling the incidence or transmission of the specified disease [namely coronavirus-2019 (COVID 2019)[32]]”.[33] In other words, the Regulation had the specific purpose of targeting at the coronavirus disease 2019 (COVID-19)(the virus referred to in the following text means the 2019 coronavirus). On this premise, having regard to the presumption against the legislature’s imposition of a statutory interference with the fundamental freedoms of the citizens without clear words[34], and the principle that provisions restricting the freedom of peaceful assembly should be given a narrow interpretation[35], the legislative intent of the Regulation should not be regarded as prohibiting all assemblies of more than four persons in a public place, regardless of whether the assembly would pose any public health risk in relation to the control of the virus[36]. 28.The Regulation sought to prohibit gatherings which posed an unacceptable public health risk during the pandemic. Therefore, a prerequisite for the formation of such gatherings was that the gatherers were physically close enough to each other so that the virus could be transmitted among them[37]. 29.The distance of people from each other was not only one of the factors for consideration but also an essential factor, and the physical distance of gatherers from each other must be less than a certain threshold for the formation of a gathering prohibited by the Regulation[38]. 30.If the people alleged to be gathering were not sufficiently close to each other physically, they should not be regarded as participating in a “prohibited group gathering”, regardless of whether they had a common purpose, because they would not pose an unacceptable public health risk. 31.In short, the distance of the allegedly gatherers from each other was not merely a factor for consideration, but a prerequisite for forming a “prohibited group gathering”; and “common purpose” was a necessary but not sufficient condition for forming a “prohibited group gathering”.[39] 32.The distance of 1.5 metres prescribed under the “dispersable gathering” reflected that 1.5 metres was a sufficient distance to satisfy the legislative intent of the Regulation[40]. Therefore, the distance of 1.5 metres was indicative of whether a gathering was a “group gathering” and “prohibited group gathering” in the consideration of the court. 33.In determining whether there was in fact a “prohibited group gathering”, the court must first consider whether there was sufficient physical proximity between the alleged gatherers. Only if there was, would the court need to consider other factors, such as whether they “had a common purpose, whether the gathering was organized in advance, the interaction of the gatherers with each other, and the duration of the gathering”[41]. Such an interpretation was the only one in conformity with the “principle against doubtful penalisation”.[42] 34.Mr Chim submitted that the court should first determine whether there was a “gathering” and at this stage consider whether the gathering was organized in advance, whether there was interaction among the participants, whether it was transient, and whether there was a common purpose. Only when it was the case then the court would have to further determine whether the gathering was “prohibited” or not. At this stage, the court only needed to consider whether the gathering took place in a public place, how many “groups” the gathering consisted of, and whether the number of people in each “group” exceeded the upper limit in law[43], and should not consider whether the people had a common purpose any more. 35.Mr Chim also pointed out that pursuant to the Prevention and Control of Disease (Requirements and Directions) (Business and Premises) Regulation, Cap 599F of the Laws of Hong Kong (“Cap 599F”), the Secretary for Food and Health (“SFH”) imposed the following social distance restrictions which were in force at the time of the offence:
Mr Chim asserted that there was a contradiction between the magistrate’s interpretation and what the SFH said, because even if a member of the public had complied with the requirements of Cap. 599F, he would contravene the Regulation, which was an absurd or unreasonable result leaving the public feeling baffled and confused[45]. 36.Mr Chim gave the example that in case eight colleagues intended to go to a restaurant together at lunchtime, when they set off from the office to the restaurant together, according to the magistrate’s interpretation of “prohibited group gathering”, even though they were separated into two groups with a distance of at least 1.5 metres apart, they formed a gathering and were in breach of the No-gathering Order because they had a “common purpose”. However, after they had gone into the restaurant, they became in compliance with the requirements of the law. The magistrate’s interpretation of “prohibited group gathering” clearly gave rise to an absurd or unreasonable result and did not conform with the reality in the community[46]. 37.Mr Chim also mentioned grave-sweeping and visits to show flats in new developments as examples of absurdity or irrationality if distance was not used as an objective criterion for determining whether a gathering was formed. 38.Mr Chim asserted that there should not be such a substantial difference between the Regulation and Cap 599F, where both regulations aimed at epidemic prevention, in particular that there was never any mention in the relevant legislative documents of such a difference between the two regulations in how the number of people was counted. In interpreting these two regulations which were common in purpose and nature, the court should be consistent in the yardstick for law enforcement, and should, in accordance with the principle of in pari materia[47], be consistent in interpretation[48], otherwise the public would be at a loss as to what to do, and it would also give rise to all sorts of unforeseeable and absurd or irrational results[49]. 39.Mr Chim pointed out that the risk of virus transmission increased in an indoor environment where airflow was ineffective and ventilation was generally poorer than the outdoors, and therefore the restrictions of the regulations under Cap 599F ought to have been more stringent than those under the Regulation which targeted at public places[50]. However, the magistrate failed to explain why the restrictions under the Regulation were broader than those under Cap 599F, and therefore the magistrate erred in having ruled that the restrictions under the Regulation were not beyond what was necessary for a legitimate aim. 40.Mr Chim further pointed out that the magistrate’s approach in interpretation not only rendered the Regulation failing to meet the requirement of rational connection, but also rendered it failing to pass the proportionality test. Therefore, if the Regulation was interpreted in this way, it would be unconstitutional. He cited the case of Bank Mellat v Her Majesty’s Treasury (No 2)[51] in support of his argument. 41.He also stated that the prosecution did not have any medical expert evidence to prove that gatherings with a “common purpose” were more likely to spread the virus than gatherings without a “common purpose”. The prosecution had never been able to demonstrate any difference between gatherings with and those without a “common purpose”, or there was a rational connection between restricting the former and “preventing and combatting the pandemic” so that it was necessary to prohibit gatherings with a “common purpose”[52]. 42.D3 submitted that there was no legislative meaning of “common purpose” in the Regulation itself, otherwise it would have been expressly provided. Such construction and relevant law enforcement action were unconstitutional under the right to demonstration conferred by the Basic Law[53]. 43.If eight persons who were divided into two groups of four with each group being separated by 1.5 metres or more (at least for most of the time) were considered to be in the same group because of having a “common purpose” and were hence prosecuted for being in a “prohibited group gathering”, then it would be particularly questionable whether such harsh restriction (or yardstick for law enforcement) which actually concerned only “common purpose”, disregarding distance or duration, was rationally connected with a legitimate aim and the pursuit of the legitimate aim, was not more than necessary to accomplish a legitimate aim, or came within the test suggested by the prosecution (“manifestly without reasonable foundation”)[54]. 44.The provision relevant to the offence in the present case was similar to the one under section 10(4) of the [R]egulation, both in terms of penalties and the requirement of a reasonable excuse, and both provisions should therefore be understood as follows: “dispersable gathering” should be a warning given by law enforcement officers as required under the circumstances at the scene (where people gathered were less than 1.5 metres from each other), whereas a “prohibited group gathering” could be understood as an obvious or intentional gathering of people who were less than 1.5 metres from each other for a prolonged period, and hence immediate prosecution could be made without the need of dispersion (or with the failure of dispersion)[55]. 45.Even if “social distancing” was not the most essential consideration, in a proportionality test, the court needed to take into account the overall factors and all relevant circumstances, including whether the gatherers had a common purpose, whether the gathering was organized in advance, the interaction of the gatherers with each other, the duration of the gathering and the proximity of the gatherers. With such considerations, one should not arrive at a conclusion like the magistrate’s[56], particularly because:
46.D3 also criticized that the inconsistent yardsticks adopted by the police in enforcing the law on different occasions gave rise to the risk of abuse of public power[57]. On that day, PW1’s only consideration was whether the people at the scene had violated the law and public health, and he paid no regard at all to the freedoms protected by the constitution. It was a misinterpretation of the No-gathering Order and disregard of the fundamental rights that the court was determined to protect. 47.D7 criticized the magistrate’s improper consideration in balancing the need for epidemic prevention against the relevant rights, which was a mistake in the assessment of proportionality[58]. 48.Pursuant to section 2 of the Regulation[59], “group gathering” （羣組聚集）means a gathering of more than four persons[60]; and “prohibited group gathering” （受禁團體聚集）means a group gathering prohibited under section 3. 49.Section 3 of the Regulation provides that[61]:
50.Pursuant to section 6(1) of the Regulation, if a prohibited group gathering takes place, a person who participates in the gathering commits an offence. 51.Merely from the relevant provisions above, the statutory definition of a group gathering is very simple, meaning a gathering of more than four persons at the time in question[62]. In addition, any group gathering taking place in a public place constituting a prohibited group gathering is prohibited by the Regulation, unless the group gathering is:
Otherwise, a person who participates in a prohibited group gathering commits an offence. 52.In the present case, the eight persons in question were not in an exempted group gathering or a group gathering permitted under section 5(1). 53.Section 19 of the Interpretation and General Clauses Ordinance[63] provides as follows:
54.In 王曉秋 訴 香港護士管理局 (Wang Xiao Qiu v The Nursing Council of Hong Kong)[64] , the Court of Appeal stated that:
55.The Court of Final Appeal in HKSAR v Lam Kwong Wai & Another[65] stated that the modern approach to statutory interpretation is based on legislative intent:
56.In the more recent case of Kwan Ka Hei[68] , the Court of Final Appeal stated that:
57.The Court of Final Appeal in Director of Immigration v Chong Fung Yuen[70] also stated that[71]:
58.In HKSAR v Cheung Kwun Yin[75], the Court of Final Appeal stated that the purposive interpretation did not disregard the ordinary meaning of words, and in interpreting a statute, unless the context or purpose points to a different meaning, words were given their natural and ordinary meaning. 59.In T v Commissioner of Police[76], the Court of Final Appeal stated that the courts should avoid producing absurd or unreasonable results in interpreting statutes[77]. 60.Article 27 of the Basic Law states that Hong Kong residents shall have freedom of speech and freedom of assembly, of procession and of demonstration. Persons in Hong Kong other than [Hong Kong residents] shall enjoy these rights and freedoms.[78] 61.Article 39 of the Basic Law states that the provisions of the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and International Labour Conventions as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region. The rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by the law, and such restrictions shall not contravene the provisions of the preceding paragraph of this Article. 62.It follows from Article 39 of the Basic Law that the relevant rights and freedoms may be restricted as prescribed by law, but such restrictions shall not contravene the provisions of the international covenants and conventions referred to in the preceding paragraph, and that they shall not be restricted unless prescribed by law. 63.Article 42 of the Basic Law also states that the persons referred to in paragraph 60 above shall have the obligation to abide by the laws. 64.Article 16(2) of the Hong Kong Bill of Rights[79] states that everyone shall have the right to freedom of expression. However, Article 16(3) also states that:
65.Article 17 of the Hong Kong Bill of Rights also states that the right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others. 66.The case law states that the nature of freedom of speech or expression covers both the content and form of expression, and includes not only the mainstream opinions or forms of expression, but also the opinions and forms of expression that are not mainstream, are deviant or offensive, or even unpopular. 67.The Supreme Court of the UK in a recent case Director of Public Prosecutions v Ziegler[80] said that arrests, prosecutions, convictions and sentences were all restrictions on fundamental rights such as freedom of expression and freedom of peaceful assembly. 68.Freedom of expression is a constitutional right protected by both the Basic Law and the Hong Kong Bill of Rights. However, both the Basic Law and the Hong Kong Bill of Rights make it clear that these rights may be restricted by law, subject to the following two requirements[81]:
69.In HKSAR v Ng Kung Siu[82], the Court of Final Appeal states that freedom of expression is a fundamental freedom in a democratic society. It lies at the heart of civil society and of Hong Kong’s system and way of life. The courts must give a generous interpretation to its constitutional guarantee. In particular, it has to be ascertained whether the matter that requires justification is a wide or limited restriction. The wider the restriction, the more difficult it would be to justify. In considering the extent of a restriction, it is well settled that any restriction on the right to freedom of expression must be narrowly interpreted. 70.In Yeung May Wan & Others v HKSAR[83], the Court of Final Appeal states that the freedom to demonstrate is a constitutional right. It is closely associated with the freedom of speech. These freedoms of course involve the freedom to express views which may be found to be disagreeable or even offensive to others or which may be critical of persons in authority. These freedoms are at the heart of Hong Kong’s system and it is well established that the courts should give a generous interpretation to the constitutional guarantees for these freedoms in order to give to Hong Kong residents their full measure.[84] 71.Au J of the Court of First Instance of the High Court[85] stated in Sham Wing Kan[86] that:
72.If, as in the present case, a restriction on freedom is imposed for reason of public health, the prosecution must prove that the restriction must be necessary and proportionate (proportionality), striving to strike a balance. 73.According to Leung Kwok Hung[88], the burden is on the Government to justify any restriction imposed. This approach to constitutional review involving fundamental rights, which has been adopted by the Court, is consistent with the approach followed in many jurisdictions. In a society governed by the rule of law, the courts must be vigilant in the protection of fundamental rights and must rigorously examine any restriction that may be placed on them. 74.The Court of Final Appeal also points out in Leung Kwok Hung[89] that the constitutional requirement of necessity involves the application of a proportionality test[90], which the CFA in Hysan Development Co Ltd v Town Planning Board[91] states that the court has to decide through a four-step proportionality analysis as follows:
75.The Regulation targets at prohibited group gathering and, according to the provisions applicable at that time[92], it set out:
76.The regulation does not provide a definition of the term “gathering”. Paragraphs 53 to 59 above have set out the main principles of statutory interpretation, and paragraphs 66 to 74 above have set out the matters to be considered in the interpretation of an ordinance where it restricts a constitutional right. 77.One of the key issues in this appeal is the interpretation of the term “gathering”, while the maximum number of people under the “No-gathering Order” is not a key issue in the present case. 78.I notice that in the Regulation, the term “gathering” is presented rather than, for example, a limitation of the maximum number of people present or the distance of people from each other. 79.In the authoritative dictionaries below, “gathering” has the following meanings:
80.It can be seen from the explanations of the above dictionaries that the ordinary meaning of the word “gathering” includes the concept of “common purpose” as mentioned by the magistrate. 81.In determining whether there was any gathering as prescribed in the Regulation, Mr Wong said that “common purpose” was a necessary but not crucial consideration. The other appellants pointed out that it would be improper to consider “common purpose” for the following reasons:
However, the distance of people from each other is much associated with the transmission of the virus. 82.As noted above, the interpretation of the word “gathering” in the Regulation must be based on the purpose for which it was enacted. The Regulation was made for preventing, protecting against, delaying and controlling the transmission of the virus and relevant cases[94]. 83.It is well known that social distancing is an anti-epidemic measure widely used around the world, including the requirement of ensuring that people keep a certain distance apart, and the number of people gathered is also a concern. The larger the number of people gathered, the higher but not lower the risk of virus transmission, and the more difficult it will be to track and control infection cases. Therefore, setting an upper limit of the number of people in a gathering as necessary and proportionate to the circumstances is a reasonable and proper measure. 84.However, it would be harsh if an upper limit is set on the number of people present at a particular location or occasion regardless of the circumstances, so that those present breach the regulation once the number of people present exceeds the limit. The Regulation operates on the basis of the number of people in the gathering, counting only the number of people in a gathering within the meaning of the Regulation, instead of all people present; this is a more lenient approach. 85.Since the number of people in a gathering is the basis for considering whether there is a breach of the Regulation, the meaning of a gathering is an important issue. I am of the view that if a number of people are present at the same place without a common purpose, it would be hard to say that they gather. If the people present at a place are simply regarded as gathering irrespective of whether they have a common purpose, then all those who walk together along busy streets would be regarded as gathering. This does not appear to be the legislative intent nor conform with the ordinary meaning of the word “gathering”. 86.Of course, it is not, as some appellants suggested, that mere proof of a common purpose among the people is sufficient to find that they were gathering, there are also other factors which must be considered. 87.In the context of the Regulation, the distance of people from each other is an important factor for the constitution of a gathering. This I do not object. 88.According to mainstream medical opinion, the virus involved in the pandemic could be transmitted by air-borne droplets, so keeping a proper distance apart was an effective preventive measure. Of course, it is not impossible for the virus to be transmitted by other means, for example, one may get infected by having contact with the virus released by a patient in the environment. 89.It would not be the legislative intent to determine whether there is a prohibited group gathering merely based on the presence of a common purpose. To give an obvious example, if four people got to a football pitch for the same purpose, each standing at one of the four corners of the pitch at about 100 metres apart, without any direct or indirect contact, it is believed that in general a reasonable person would not consider this to be a restricted gathering within the meaning of a regulation enacted for epidemic prevention. Of course, the evidence showing the overall circumstances would still be required in order to determine whether or not these people constituted a gathering. Differences in detail may lead to different conclusions. 90.Therefore, the court has to consider whether the people concerned had a common purpose. “Common purpose” is also an important factor in determining whether there was a gathering, in distinction from totally unassociated people just standing/sitting together. However, people are not found to be gathering by the sole proof of having a common purpose, other relevant factors are required to be considered as well. Distance is an important consideration, and the further apart the people are from each other, the more likely that they do not constitute a gathering. 91.The magistrate pointed out that to determine whether there was a “gathering”, the court would need to consider the overall factors and all relevant circumstances in the case, including whether the people who gathered had a common purpose, whether the gathering was organized in advance, the interaction among the people who gathered, the duration of the gathering and the distance of the people who gathered from each other.[95] I agree with this view. 92.The factors raised by the magistrate for consideration in general coincide with those set out in the HKSAR v. Ou Lihua[96]. In dealing with Ou Lihua, which was a case involving almost the same rule, I pointed out that:
93.Among the above matters, those relevant to the facts of the case are factors for the finder of facts to consider in determining whether there was a gathering, but it is important that since statutory interpretation is for ascertaining the legislative intent, it is necessary to take into account in the consideration that the purpose for enacting the Regulation was epidemic prevention. 94.In a pandemic situation, the government, when faced with an extremely serious public health situation, had to make measures based on the knowledge and information available at the time in response to the current situation. The design had to meet the anti-pandemic objectives, balance the overall interests and various rights in the community and also take into account the needs of various parties in reality. The measure of social distancing was a preventive measure that had been implemented in various places and considered to be substantially effective. The distance of 1.5 metres has been used in many places under different situations. Some places sometimes adopt longer distances and others adopt shorter distances depending on the actual situation, and the decision must involve consideration on various aspects. There is scientific evidence that a distance of 1.5 metres is effective in reducing the risk of transmission, but it does not mean that maintaining such distance could prevent getting infected with the disease. 95.One of the submissions made by the appellants was that as long as each person kept a distance of 1.5 metres from others, it would not constitute a group gathering. I disagree because, on the one hand, the ordinance did not make this distance a prerequisite for group gathering; and on the other hand, 1.5 metres was only a standard set down based on the scientific knowledge after balancing the interests of all parties in view of environmental needs. This standard was applied as a criterion for “dispersing a group gathering”[97], but not a prerequisite for constituting a group gathering. Obviously, it was the intention that this mandatory requirement is not a prerequisite for constituting a group gathering. In the view of this court, for the purposes of the Regulation, whether or not a gathering is constituted can only be decided by looking at the overall circumstances disclosed by the evidence. 96.The appellants also submitted that the Regulation involved prosecution for simply non-compliance, which was too harsh and unfair, compared to the requirements under “dispersable group gathering”. I do not agree with this argument. The term “prohibited group” targets at gathering of four or more persons who are sufficiently connected. The term “dispersable group gathering” targets the situation where there are more than one gathering combinations and the total number of people in these different gathering combinations is more than four. The people who made up these different combinations may be unrelated and unconnected. An example of a dispersable group gathering which one can imagine is the situation where foreign domestic helpers rest in public places on a holiday. Two or three of them sit together, each individual combination does not form any group gathering. The combinations are not necessarily connected, but the total number of people in the area they occupy is not insignificant. Under the regulation governing dispersable group gatherings, provided there is a distance of 1.5 metres between groups, it would be acceptable by law. If the distance is shorter, an officer would have the power to disperse the those in breach; and for exercising this power, an officer might make such orders which were reasonably necessary or expedient, including flexibly ordering the combinations to have a distance apart in compliance with the law, and it is an offence to refuse or wilfully neglect to comply with such an order. In addition, officers are entitled to use such force that is reasonably necessary to disperse that dispersable group gathering. In my view, it is hard to say that the measures against dispersable group gatherings are more lenient than those against prohibited groups. 97.Both types of groups involve the same concern, which is the gathering together of multiple people with the risk of virus transmission, but the different regulations are based on the government’s assessment, taking into account various rights and practical needs, and they do not lead to any injustice or contradiction as the appellants criticized. Dispersable groups may involve the presence of multiple unconnected gathering combinations at the same place, compared with the consideration of accommodating interconnected persons (prohibited groups), a more stringent measure is understandable for the purpose of epidemic prevention. Therefore, even if there are less than four persons in each gathering combination, once the distance of the gathering combinations is less than 1.5 metres from each other and the total number of people in the combinations is more than four, it becomes a dispersable group gathering which may be dispersable by force. A prohibited group must involve four or more interconnected people getting together, which is dealt with differently when compared with a dispersable group, and this is understandable. 98.One of Mr Chim’s submissions was that even if the court found that there was a gathering, the court should still consider how many groups (gathering combinations) it consisted of. The importance of this issue was that, under the correct legal interpretation, if the eight persons in the present case were in fact two separate gatherings of only four persons each, they were not a prohibited group. I do not think it is the correct way to deal with it. As stated above, the court should determine whether there was a group gathering, i.e. a gathering of more than four persons, according to the evidence, and the key is whether the evidence is sufficient to prove beyond reasonable doubt that these persons were gathering. If this can be proved, then it does not matter whether the people who made up this gathering came from different backgrounds or organizations, or whether technically they were artificially divided into combinations. In the circumstances of the present case, it was for the court to decide whether there were two separate gathering combinations of four persons each at the scene as described by the appellants, or there was a gathering of eight persons as alleged by the prosecution, which was a finding of fact according to the evidence. 99.The appellants submitted that the United Nations Human Rights Committee has issued the following guidelines in relation to Article 21 of the International Covenant on Civil and Political Rights (the right to peaceful assembly):
100.The relevant guidelines relate to Article 21 of the Covenant, which provides as follows:
101.This is one of the guidelines issued by the United Nation Human Rights Committee from time to time and has no legal status in Hong Kong. However, States parties will take this into account when they formulate laws and measures. As noted above, the relevant rights have been implemented in accordance with Article 39 of the Basic Law and the constitutionality of the permissible restrictions should be assessed pursuant to the established legal principles[98]. 102.With the exception of Mr Wong[99], the submissions of the other appellants all touched on the issue of the unconstitutionality of the relevant regulation, each of them suggested that the Regulation was unconstitutional as they excessively encroached the relevant constitutional rights, in particular where the distance of 1.5 metres was not used as the key consideration in interpreting what a prohibited group was. 103.In the present case, it is not disputed that the Regulation restricts some constitutional rights. 104.I consider this issue according to what is stated in paras 68 to 74 above. 105.It is beyond any doubt that the aim pursued by the relevant provisions is a legitimate one. 106.As mentioned above, the formulation of epidemic prevention measures involved considerations from various perspectives. Apart from the anti-epidemic function and constitutional rights, it was also necessary to take into account the actual impact of the measures on the overall economy, the commercial operation of particular industries and the public, such as the impacts on the public’s need to be out for meals and travel convenience, and to strike a balance. This was clear from the many documents provided by the authorities to the Legislative Council. 107.In passing, one of Mr Wong’s submissions was that the court should not take into account the kind of documents referred to in the preceding paragraph in interpreting the relevant regulation for the following reasons in general:
108.I emphasise that by referring to the above-mentioned documents which the authorities submitted to the Legislative Council, I am not suggesting that they have been used in the interpretation of the provisions. I just want to indicate, as it can be seen from these documents, in adjusting the details of the restrictive measures from time to time, the authorities have taken into account various factors including those set out in paragraph 106 above. 109.One point in Mr Chim’s submissions[102] was that even if a member of the public complied with the requirements of the Cap. 599F[103] regulation, he would still be in breach of the Regulation, which would be an absurd or unreasonable result and would leave the public in a state of bewilderment and confusion. In my view, this submission has no merit. Although restaurants are a kind of public place and both regulations were subsidiary legislations made under the same ordinance[104], interpretation must be undertaken as a whole and a public place such as a restaurant was governed by Cap. 599F. The Regulation, since the version of 20 November 2020, has stated in section 3(1)(a) that what was prohibited was “a group gathering at a public place other than Cap. 599F premises”. However, the version in force at the time of the offence did not express in such a way and the relevant wording was “no group gathering may take place in any public place during a specified period”. In my view, the different presentations adopted in regulations at different times do not necessarily indicate a change in legislative thinking. It was likely that the implied meaning was just made explicit in the later version of the Regulation. In any event, the Regulation and Cap. 599F have been co-existing, and it is clear from the provisions that Cap. 599F targets at the catering business and the related premises and other scheduled premises such as places of entertainment, fitness centres, beauty salons, etc. The legislative intent is clear: even though the premises of catering business and scheduled premises are public places, regulatory enforcement should be done pursuant to Cap. 599F, and the Regulation governed public places other than those stated in Cap. 599F. The targets of the two regulations are different and, therefore, even if the specific rules are different, they would not give rise to the undesirable consequences as described by Mr Chim. Moreover, the design of different rules within one regulation or in different regulations involve the various considerations set out above, and it would not be meaningful to insist on comparing different rules. 110.The magistrate had the following observations, with which I fully agree:
111.I agree with Mr Wong that the regulation(s) had the specific purpose of targeting at the virus. In this context, the presumption that the legislature would not interfere with the citizens’ fundamental freedoms without clear words should be taken into account[105] and a narrow interpretation should be given to the provisions restricting freedom of peaceful assembly[106]. However, I do not agree with him that the legislative intent of the regulation should not be taken as prohibiting all gatherings of more than four persons in a public place, as a gathering of four persons did not necessarily pose a public health risk in respect of virus control. The four-person requirement was set to reduce the public health risk and had been adjusted in response to change of circumstances. Moreover, what was restricted was gatherings of which the number of people was more than the statutory maximum at that time, rather than regarding the presence of people more than the maximum number at a certain place as a breach of the regulation. The physical proximity stressed by the appellants should be taken into account, but common purpose was also a factor to be considered and was indeed important. There were other relevant factors which should be considered as well. The duty of the finder of facts was to determine whether there was a prohibited group gathering based on the overall circumstances revealed by the evidence. 112.Mr Chim submitted that if common purpose was taken into account as a consideration of the existence of a gathering and physical proximity was ignored, it was not a regulation reasonably related to the maintenance of public health. I find it difficult to agree with this submission. As stated above, social distancing was a commonly used preventive measure, limiting the number of people who gathered was one of the useful regulations, there was a purpose for expressing it in terms of gathering[107], and the presence of a common purpose was a consideration in determining whether there was a gathering. 113.For the foregoing reasons, I find that the Regulation was rationally connected to the maintenance of public health, and therefore I proceed to deal with the consideration of the third step mentioned in paragraph 74 above. 114.In assessing whether the relevant restriction has gone beyond what is necessary to accomplish the relevant legitimate aim, two standards have been applied by the court: (i) whether the impugned measure was “no more than necessary to accomplish that legitimate aim” (“no more than necessary”), and (ii) whether the impugned measure is “manifestly without reasonable foundation” (“manifestly without reasonable foundation”). 115.In the present case, the magistrate has applied the test of whether it was “manifestly without reasonable foundation” and found that the measure in question was proportionate. 116.On this issue, the Court of Final Appeal in the Hysan Development[108] has elaborated with the following key points[109]:
117.I also refer to the following observations of the Court of Appeal of the UK in R (Dolan) v Secretary of State for Health and Social Care and Another[111] when it held that the UK’s “lockdown” measure did not breach human rights provisions under the European Convention on Human Rights:
118.I agree that in the context of this pandemic, the court should give the government wide discretion to deal with public health threats. The government’s policy on combating the pandemic was formulated with the professional advice given by the expert advisory panel coupled with the input of all sectors of the community, and the court was far less equipped in this regard. While not viewing the restrictions on rights lightly, I think that the court should not easily substitute its own opinion for any public health policy formulated upon taking into account expert opinion and the interests of all parties, and therefore I agree that the “manifestly without reasonable foundation” test should be applied and the issue considered in that light. 119.On the issue of whether the relevant provisions on “prohibited group gathering” is manifestly without reasonable foundation, I have taken into account the following matters, most of which were also considered by the magistrate:
120.I have also taken into account all the matters the appellants raised in their submissions, including the following:
121.In relation to (ix) in the preceding paragraph, I concur that the judgment is a very brief precedent with limited referential value. 122.Items (i) and (ii) are important factors to be taken into account in assessing whether the Regulation in question is constitutional, which is also one of the most important issues in the present case. Relevant considerations can be found in various places in this judgment, and I do not intend to write anything more about this here. 123.Item (iii) concerns the authorities’ responsibility on the measures to be taken in relation to a lawful assembly conducted in a peaceful manner. The present case did not involve the situation where the authorities had not taken measures so that the assembly could not proceed in a peaceful manner. Moreover, and more importantly, the assembly being lawful is the precondition for the authorities to bear the relevant responsibilities. 124.In relation to (iv), my analysis, considerations and conclusion can be found in paras 114 to 118 above. 125.Item (v) concerns whether the relevant Regulation has adequate certainty. The appellants allege that the provisions do not have adequate certainty for two main reasons:
126.On the issue that restrictions on constitutional rights have to be prescribed by law, the Court of Final Appeal said in Leung Kwok Hung[126] that:
127.The appellants mainly focused on the interpretation of the term gathering, and stressed the point that if 1.5 metres became a condition of a gathering, there would be no question of inadequate certainty, otherwise, certainty would be inadequate, and those various issues which the appellants set out in their submissions would arise. 128.As described in paras 76 to 98 above, whether a gathering was constituted was a judgement made after considering all relevant factors, which was a finding of facts according to the evidence. I take the view that the elements of the charge are adequately certain and not unconstitutional accordingly. 129.Regarding (vi), I take the view that the grounds put forward by the appellants are not substantiated. The reasons will be set out when the issue relating to reasonable excuse[130] is dealt with below. 130.In relation to (vii), I take into account that there is in fact no relevant application in the present case. In any event, the important thing is that the measures were designed to provide channels for applying for the permission to have a group gathering. 131.On (viii), I have done an analysis and given my considerations in paragraph 109 above. 132.In the context of the present case, when assessing whether the restrictions in question were necessary for the purpose of meeting the legislative intent, the test adopted should be close to “manifestly without reasonable foundation”. Having considered the overall relevant circumstances, including what was described in paragraph 119 above and the submissions from the parties of both sides, I take the view that the restrictions in question do meet the criteria of proportionality and satisfy the Step 3 analysis described in paragraph 74 above. 133.Following that, I consider the Step 4 analysis described in paragraph 74 above. 134.The magistrate took the view that a reasonable balance had been achieved between the social benefits brought about by the formulation of the relevant provisions on “prohibited group gathering” (i.e. maintaining public health and accordingly mitigating the economic losses incurred by this public health danger) and the restrictions on the freedom of peaceful assembly, procession and demonstration protected by the Basic Law and the Hong Kong Bill of Rights, and that no related individual would be caused to face any unacceptable harsh burden. Taking into account the various considerations in the previous paragraphs, I concur with this conclusion. 135.Based on the above reasons, I rule as follows:
VI 2. Issue (III): Whether the 8 appellants formed and participated in a gathering 136.Two of the issues in the present appeal are:
137.Both at trial and at the appeal, the appellants stressed the point that at the scene there were two gatherings of four people each, instead of one gathering consisting of eight people as described by the prosecution. 138.The magistrate’s finding was that the eight appellants formed a gathering, and because the gathering of this group took place in a public place during the period specified by the Regulation, it was a group gathering. 139.According to what the magistrate observed by watching the video footage[131], the conduct of the various appellants can be briefly described as follows[132]:
140.The appellants stressed the point that as the video footage showed, the eight appellants deliberately divided themselves into groups of four at the material time (the Labour Party Group and the LSD group respectively) and ensured a sufficient anti-epidemic distance between the two groups. Between 09:43 and 09:51 on the player it is even shown that the LSD group moved farther away from the Labour Party Group after getting on the footbridge and chose to continue their procession in another route. Therefore, it was obviously erroneous when the magistrate found that “at the material time the eight defendants formed a gathering”. 141.Mr Wong also criticized that it was erroneous or unsatisfactory when the magistrate, by his judgment or visual measurement, stated that at 01:01 [133] and/or 01:42 [134]on the player, the distance between some of the appellants was less than 1.5 metres, because it was simply impossible to assess the distance accurately based on two-dimensional images. 142.Having seen the footage personally, I have basically no objection as to the magistrate’s observations as described in paragraph 139 above. Regarding Mr Wong’s criticism of the magistrate’s observation on the distance of the appellants from each other, I do not think it is important because magistracy appeals are conducted by way of a rehearing[135], the findings of the relevant facts do not involve assessment of the credibility of the witnesses. I am in the same position as that of the magistrate without involving the latter’s advantage of being able to hear and observe the witnesses. I am entitled to make judgments based on my own observations. 143.I based my consideration of this issue on what is said in paragraphs 91 to 93 and 98 above, taking into account the submissions of the appellants as well. 144.Having considered the overall circumstances revealed by the evidence, I concur with the magistrate’s finding that at that time the appellants, a total of eight persons, gathered, having a common purpose of going on a demonstration for labour rights. They gathered together, ignored the directions from the police together and went on a procession. They brought along slogans with them, showing that they came prepared. There is no evidence in the case that they merely met accidentally, and on the contrary the evidence shows that they came on a prior arrangement. They not only had a common purpose, as to the distance they had from each other, no matter it was more than or less than 1.5 meters, they were very close from the perspective of epidemic prevention. The conduct of the appellants lasted about 10 minutes, and it was the magistrate’s view that if the police had not intervened, there would not have been any sign of stopping. On this point, I share the same view. Having said that, I have not overlooked the fact that in the end each one of them left on his own accord instead of doing so upon police order or police action. Perhaps it was the belief in each of the appellants that doing this would not constitute a gathering against the law. However, according to my interpretation of the relevant legislation and the judgment made according to the evidence, what they did constituted a gathering. 145.Both issues of whether these eight people constituted a gathering and whether each one of them did take part involve the issue of their intention. 146.However, on the issue of whether there constituted a gathering, I take the view that the test is still the one described in paragraphs 91 to 93 above, which involves an objective finding of fact. It is only that at the time of consideration, it is necessary to take into account the accused’s state of mind[136] revealed by the evidence, including whether there was a common purpose, and each person’s conduct would manifest his state of mind. What was going on in each one’s mind was not necessarily unrelated, but in the present case, obviously, it was not that they had no intention to come together, but they only subjectively thought that their conduct did not constitute a gathering in law. 147.On deciding whether an accused did take part, it is required to determine whether he had such intention, and the prosecution has to prove beyond reasonable doubt that the accused in question did have the intention to take part in the activity or act of what has been found by the court as a group gathering. On the premise that the court had found what appeared on the scene was an eight-people group gathering, the appellants’ assertion that they had intentionally formed groups of four was at most the wish of individual persons of how to take part in this group gathering. 148.From what is shown on the footage, I am certain that each of the appellants had the intention to participate in the activity or act which has been found by the court as a group gathering in the present case. 149.Based on the above reasons, I rule that:
VI 3. Issue (IV): Reasonable excuse and relevant constitutional issues 150.Since I have found that each appellant did take part in a prohibited group gathering, the next issue is: whether they can rely on the defence under section 7 of the Regulation[137]: there was a reasonable excuse for their participation. The other defence of having lawful authority is not applicable in the present case. 151.There is no elaboration on the meaning of reasonable excuse in the Regulation. On reasonable excuse, a number of Hong Kong cases[138] have cited Pascoe v The Nominal Defendant (Queensland) (No 2)[139], an Australian case, which puts forward the view that “…a reasonable excuse…means a cause which a reasonable man would regard as an excuse, a cause consistent with a reasonable standard of conduct…”. In HKSAR v Ho Loy[140], the Court of Final Appeal held that when considering the defence of “reasonable excuse”, the court had to look at three matters:
152.The magistrate pointed out that the arguments in support of a reasonable excuse which the defence put forward at trial could be summarized as:
153.The magistrate had the following observations[142]:
154.The magistrate held that: the exercise of the rights of peaceful assembly, procession and demonstration was not absolute, and the No-gathering Order was constitutional (including at the operational level); proof to the contrary that was sufficient to rule out reasonable doubt was put forward by the prosecution so that the court accepted beyond reasonable doubt that the defence did conduct the prohibited group gathering in question without any reasonable excuse. 155.At the appeal, the appellants criticized that it was erroneous for the magistrate to find that the matters described in paragraph 152 above did not constitute a reasonable excuse. 156.Section 7(2) of the Regulation provides as follows:
157.The magistrate correctly pointed out that according to the provision, the defence only had an evidential burden[143] as to the defence. He pointed out that:
158.In this regard the appellants put forward submissions on two limbs:
159.The appellants have also put forward the following matters as exceptional circumstances in support of their submission that there was a reasonable excuse for their gathering in question:
160.In his submissions, apart from referring to some of the matters above, D3 also pointed out: the prosecution’s subtext was that no demonstration, no risks. If that was the case, the authorities should have removed the Exempted Group Gatherings in Schedule 1 so as to achieve an even lower risk, otherwise the effectiveness of the Regulation would be undermined, and the right of survival of the general public jeopardized. 161.I have ruled that the restrictions in the [R]egulation imposed on the relevant constitutional rights are constitutional. However, the court would still have to assess and consider whether it was unconstitutional at the operational level of the [R]egulation. 162.Mr Chim cited the English cases Ziegler[147], R (Dolan)[148] and Leigh v Commissioner of Police of the Metropolis[149] and submitted that even though there was the No-gathering Order during the pandemic period, such prohibitions were still subject to the protection of human rights, such as the freedoms of procession, demonstration, assembly and speech, and in individual cases, the exercise of these fundamental rights might amount to a “lawful authority or reasonable excuse” for a gathering. 163.Mr Chim also submitted that the magistrate had committed a fundamental error when considering whether the appellants’ exercise of the basic rights amounted to a reasonable excuse for failing to conduct a proportionality analysis or examine the related factors and evidence within the proportionality framework, rendering the convictions unsafe and unsatisfactory. In any event, under a correct proportionality analysis, the prosecution has not been able to prove that the appellants’ exercise of the basic rights in the exceptional circumstances in the present case could not constitute a reasonable excuse. The convictions must therefore be quashed. 164.The appellants made the following criticisms:
165.The appellants[152] also submitted that according to the following findings of facts made by the magistrate or the undisputable evidence, the prosecution failed to prove that the convictions would not cause disproportionate restriction on the fundamental rights of the defendants:
166.Mr Li, Senior Public Prosecutor, said the following in his submissions:
167.Mr Li has also cited the English case of R (Dolan)[156], which indicates that the Court of Appeal of the UK, by applying the proportionality test in Ziegler[157], held that a large majority of the cases in breach of the “lockdown order” had no reasonable excuse and recognised that there were powerful public interests which lay behind the implementation of the “lockdown order”[158]. 168.It was not until June 2021 that the Supreme Court of the UK[159] gave its judgment in Ziegler[160] , and this may be the reason why it has not been considered by the superior courts in Hong Kong. 169.I agree that since the present case involves the exercise of relevant constitutional rights, in assessing and considering the issues of reasonable excuse and whether convictions should have been made, the test on proportionality should be applied. The relevant judgment is a finding of facts. 170.In any event, the Court of Appeal in Leung Kwok Hung v SJ (No 2)[161] has established the application of the proportionality analysis on two levels[162]: systemic proportionality by reference to the legislation[163] and operational proportionality by reference to the actual enforcement of law[164]. In that case, the Court of Appeal stated that in assessing the operational proportionality, the court should consider the facts and circumstances of the case. The Court of Appeal also pointed out that this involved a proper balance between the following two matters[165]:
171.Regardless of whether the magistrate had made the mistake(s) alleged by the appellants, since a magistracy appeal is a rehearing[166], the issues presently under discussion do not involve dispute of facts or witnesses’ credibility, I have full authority to determine the relevant issues according to the evidence. 172.The prosecution bears the burden to prove that proportionality is satisfied. In assessing proportionality, the purpose of imposing restrictions on the relevant rights must be taken into account, which is preventing the pandemic in the present case. In the course of consideration, it is necessary to pay regard to the relevant constitutional rights as well as the rights that other people are entitled to enjoy. 173.As to the standard of assessment, I think that the justifications stated in paragraphs 114 to 118 above are still applicable, and the standard close to “manifestly without reasonable foundation” should be adopted. 174.In Ziegler v Director of Public Prosecutions[167] of the UK, which the appellants have heavily relied on, the High Court[168] pointed out that the exercise of a constitutional right might amount to a reasonable excuse, but the Court did not hold that it must be the case. When the Supreme Court[169] dealt with that case[170], it pointed out that each case should be considered on its own facts[171], and a fair balance had to be struck between the exercise of a relevant right and the rights of others.[172] 175.The Court of Appeal of the UK in R (Dolan)[173] held the same view[174]. 176.In my assessment, I have considered proportionality by reference to the following operational aspects:
177.On that day, the police enforced the No-gathering Order pursuant to the Regulation. First, it is my ruling that they all did violate the No-gathering Order and the police were justified to enforce the law. As to proportionality, having considered that it was then the early pandemic period, based on the factor of the overall environment as mentioned in paragraph 184 below, plus the fact that the police officers could only make judgment by relying on the observation and assessment made at the scene, and summonses were issued only when repeated warnings were futile. In my view, the actions taken by the police cannot be validly criticized. 178.I move on and consider the issue of reasonable excuse, bearing in mind that the requirement of assessing proportionality. 179.I agree with Mr Li’s submissions. In Yeung May Wan[175], which the appellants have heavily relied upon, the Court of Final Appeal only held that at the stage of considering the “reasonable excuse”, the court in assessing the reasonableness should recognise and give sufficient weight to the relevant constitutional right, but did not hold that the exercise of constitutional rights could directly constitute a reasonable excuse. 180.The Court of Final Appeal pointed out in Yeung May Wan[176] that whether an excuse was reasonable was a question of fact and degree, and the court should take into account the facts and the extent, duration, time, place and purpose of the breach. Where a breach resulted from a peaceful demonstration, the court must take into account the relevant rights in assessing the reasonableness of the behaviour.[177] 181.The Queen’s Bench of the High Court of the UK[178] pointed out in R (Leigh) v Commissioner of Police of the Metropolis[179] that lawful exercise of rights in relation to human rights and freedom might constitute a reasonable excuse, and since the burden of proving that an accused had no reasonable excuse lay on the prosecution, the court had to take into account all relevant factors based on a fact-specific inquiry to assess proportionality. 182.On the operational level, the law enforcement authorities are also required to evaluate proportionality, assessing the risk caused to public health by the act involved and considering the balance in respect of the relevant rights. The relevant factors included:
183.The Supreme Court of the High Court of the UK[180] in Ziegler[181] pointed out that if the breach involved the exercise of constitutional rights, the court might in evaluating proportionality consider various factors including the following:
The Supreme Court of the UK also made it clear that the above was not an exhaustive list of all to be taken into account[182], because it was impossible to anticipate all factors for consideration. 184.In my view, in considering this issue, it is necessary to rely on the overall circumstances at the material time as the basis. For cases which happened on different days, the factors required to be taken into account may be different, and the weight accorded to each factor may also be different. As far as what happened at that time is concerned, the following matters are important:
185.The relevant constitutional rights are important undoubtedly. 186.Expressing the demands for labour interests on the Labour Day on 1 May carries special meanings. I have no doubt that they all faithfully believed in what they were expressing. However, as said by the magistrate, apart from procession, there were many other channels and means of expression which might not be less effective than the activity carried out this time. Moreover, procession might not necessarily be conducted with eight persons altogether in such way. 187.Although there had been no local confirmed cases for days before the day in question, as said above, the situation was not stable and might recur. No expert at that time advised that the outlook was optimistic. Given the extent of knowledge about the pandemic at that time, and the fact of having no vaccine or medication available, it was reasonable to err on the side of caution. 188.In fact, only eight people took part in the procession. It did not last long and the location was not a busy part of the city. However, there were helpers and reporters at the scene; the presence of reporters made it incredible that the situation was beyond the expectation of the people involved. 189.These eight persons could have acted separately if they so wished, but they just insisted on acting together. Even if they did maintain a distance of 1.5 metres from each other, it would be wishful thinking to assume no risk of transmission. Consideration in this regard must be made on the basis of the knowledge and understanding of the virus and the development of the pandemic at that time. 190.The appellants submitted that the police’s subsequent permission, allowing the procession to continue, could justify a reasonable excuse, or in any event, a factor for consideration in the proportionality analysis. In my view, the police arrangement of allowing two groups to continue the procession at a long distance apart, instead of the eight of them to continue together, was reasonable and justified under the circumstances at that time. It had accomplished a balance between the exercise of constitutional right and control of the disease. This arrangement did not constitute any reasonable excuse for the eight of them to gather or any factor in favour of the appellants in the proportionality analysis. 191.As to how the police had handled another case, as there is no evidence that the police had given any indication or undertaking, the alleged reasonable expectation is groundless. This is particularly so where the circumstances of each case are not the same. 192.The appellants mentioned some exempted group gatherings, such as gatherings for work at workplace and the number of people at a wedding, and submitted that such arrangements reflected that the authorities whilst managing to achieve a reasonable balance by the measures implemented in these different scenario, had been too harsh in dealing with the exercise of the relevant constitutional rights, and thus failed to strike the balance. In my view, it is not realistic to differentiate various rights in respect of their different importance. Moreover, as said in the precedents, the court is required to consider the case on its merits and facts, which in the present case includes the necessity and reasonableness of acting in such way at the time and place in question, and the evaluation of the balance between the exercise of the relevant rights and societal interests, in particular epidemic prevention. 193.After careful consideration, having regard to the importance of exercising the relevant constitutional rights and the submissions from both sides, I agree with the magistrate’s conclusion, namely, the appellants had no reasonable excuse in participating the prohibited group gathering in the present case. 194.As to whether the convictions are proportionate, my answer is in the affirmative, and the discussion and analysis can be seen in Part VI 5 below. 195.It is ruled as follows:
VI 4. Issue (V): Principle of de minimis non curat lex 196.Mr Chim cited Prem Singh v Director of Immigration[183] in criticizing that the relevant findings of the magistrate had ignored the principle of “de minimis non curat lex”[184]. He supported his argument with the following matters:
In the light of the above, it would be against the principle to allege that the people had gathered and prosecute them for breaching the No-gathering Order, because such breach, even if there was, was an extremely trivial matter. 197.In Prem Singh[185], since the appellant had been convicted of indecent assault and sentenced to two weeks’ imprisonment, his application for permanent residency was refused. He appealed to the Court of Final Appeal. One of his grounds was that the above term of imprisonment was de minimus and should not be considered as breaking the continuity of his stay in Hong Kong. Although his appeal was allowed on other grounds, the Court of Appeal held that the term of two weeks’ imprisonment was not de minimus to the relevant consideration, and there was no reason to ignore the prison sentence in determining the application for residency. However, the Court of Final Appeal also stated that the maxim of de minimis non curat lex was a common law principle of construction which applied unless a contrary legislative intent could be seen, and this common law principle did not appear to be denied in the Basic Law[186]. Bokhary PJ[187] stated that whether a matter was trivial was a question of fact and degree.[188] 198.Given the rampant COVID pandemic, the knowledge grasped by the medical sector was not sufficient and could be said to be limited at the time of the offence, the pandemic might cause extremely large impact to the medical system and the community as a whole. For the purpose of epidemic prevention, generally, a breach of the No-gathering Order could hardly be described as trivial. This Court has also held that the requirements in the present case are constitutional, and the assessment of systemic proportionality is satisfied. 199.In this regard Mr Chim in his submissions emphasised the distance of people from each other and the short time span involved. 200.I am of the view that Mr Chim has overstressed the above matters which although they could be related to the gravity of the facts, as mentioned above, whether there was a gathering did not solely depend on the distance between individuals. As far as the present case is concerned, it is my judgment that there was a gathering. Having regard to the scale of the gathering and the overall circumstances at the scene, including people’s persistent action despite the police warnings, it can hardly be described as a trivial matter, and the law should not be dispensed with. 201.The relevant ground of appeal fails. VI 5. Issue (VI): Whether convictions satisfy proportionality 202.I have found the following:
203.Under such circumstances, I agree with the magistrate’s ruling that the prosecution has proved all elements of the offence beyond reasonable doubt. 204.As the present case involved restrictions on constitutional rights, I further considered if the law enforcement conducted by the authority and the convictions were proportionate, and whether a balance has been accomplished between the constitutional rights and the purpose of epidemic prevention. 205.Having regard to the various factors set out in Part VI. 3 above, my conclusion is in the affirmative. VII. Conclusion on the appeal against convictions 206.I am of the view that none of the grounds of appeal has been established for the following reasons:
207.My judgment is as follows: the convictions of all appellants are supported with sufficient evidence, and the magistrate’s judgment is safe and satisfactory in fact and in law. Therefore, all appellants’ appeals against convictions are dismissed with the convictions upheld. 208.On each appellant, the magistrate imposed a term of 14 days’ imprisonment, which was suspended for 18 months. 209.The magistrate considered the following matters in sentencing:
210.The magistrate indicated his view on the submissions for mitigation as follows:
211.The magistrate had the following observations as well:
212.All appellants criticized that the sentence of 14 days’ imprisonment suspended for 18 months was manifestly excessive and/or wrong in principle. 213.Mr Wong, advanced the grounds of appeal for D1, D2 and D5 as follows:
214.D3’s ground of appeal is that the sentence is manifestly excessive. It is submitted as follows:
215.Mr Chim advanced the grounds of appeal for D4, D6 and D8 as follows:
216.D7 put forward the following grounds:
217.Mr Li submitted that the sentences passed by the magistrate were proper:
218.Section 6(2) of the Regulation provides that the charge in the present case may be subject to the sentence of a fine at level 4 (currently $25,000) and imprisonment for 6 months. Since each case has its own overall situation, nature and circumstances, the court has laid down no sentencing guideline. 219.In sentencing, the court must consider the overall circumstances of the case as well as the accused’s personal circumstances. In cases involving breach of “No-gathering Order” in exercising constitutional rights, the fact that an appellant was exercising his/her right is an important factor in considering the appropriate sentence. 220.A series of precedents has confirmed that unless an immediate custodial sentence should be imposed, no suspended sentence should be considered.[196] 221.Therefore, although the magistrate finally ordered that the sentence of imprisonment shall not take effect under certain condition(s) pursuant to section 109B of the Criminal Procedure Ordinance[197], this Court shall consider if it was proper that the magistrate had sentenced the appellants to imprisonment in the first place in view of the overall circumstances of the present case. 222.The present case involved only eight persons, took place briefly in a non-busy part of the city, and people involved did not fail to take anti-epidemic measures However, the relevant Regulation was essential in preventing the pandemic. Non-compliance by the citizens would cause significant impact to the anti-epidemic work and seriously undermine the interests of the community. Furthermore, the appellants’ persistence on committing the offence upon being informed of the breach in fact increased the risk of spreading the disease at the scene. Under the overall circumstances described above, passing a lenient sentence by the court might inevitably convey a wrong message. 223.After carefully considering the overall circumstances of the case, making reference to the case of Court of Appeal, SJ v Wade[198], and having regard to submissions from the parties, I am of the view that the magistrate’s observations, analysis and consideration are in general reasonable and sensible, and the sentences imposed by him are not wrong in sentencing principles nor manifestly excessive, and are proportionate upon considering that the appellants were exercising their constitutional rights. 224.Therefore, the appeal against sentence are also dismissed, the sentence of 14 days’ imprisonment, suspended for 18 months, imposed on each appellant is upheld.
Mr Andrew HC Li, Senior Public Prosecutor, and Mr Christopher Fung, Senior Public Prosecutor (Acting), of the Department of Justice, for the Respondent. Mr Anson YY Wong and Mr Jason CS Kung, instructed by JCC Cheung & Co, Solicitors, for the 1st, 2nd and 5th Appellants. Mr Carter TC Chim and Mr Geoffrey KW Yeung, instructed by Kenneth Lam, Solicitors, for the 4th, 6th and 8th Appellants. The 3rd Appellant, unrepresented, acting in person. The 7th Appellant, unrepresented, acting in person. Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law. [1] Contrary to section 6(1)(a) and 6(2) of the Prevention and Control of Disease (Prohibition on Gathering) Regulation, Cap 599G of the Laws of Hong Kong. [2] Mr Cheang Kei-hong. [3] The defence said that the eight defendants were divided into two groups of four persons each, i.e. D1, D2, D5 and D7 were in one group (Labour Party Group), whereas D3, D4, D6 and D8 were in another group (LSD Group). Each group had its own demands which were different and the distance between the two groups was more than 1.5 metres. The defence said that given that at the time of the incident, the eight defendants were divided into groups of four with different demands and the distance between the two groups was more than 1.5 metres, therefore, according to the defence’s interpretation of the definitions of “group gathering” and “prohibited group gathering”, the eight of them did not constitute a “group gathering” within the meaning of section 2 of Cap 599G, and accordingly they did not participate in any prohibited group gathering (or the gathering they participated in was not a prohibited group gathering). [4] See paras 3, 6 and 7 above. [5] At the trial, the identification of the appellants was not in dispute. [6] See para 25 of the Reasons for Verdict and Reasons for Sentence. [7] See para 26 of the Reasons for Verdict and Reasons for Sentence. [8] See para 34 of the Reasons for Verdict and Reasons for Sentence. [9] (2014) 17 HKCFAR 755。 [10] [2017] 5 HKLRD 589。 [11] FACC 2/2016。 [13] See para 34(v) and (vi) of the Reasons for Verdict and Reasons for Sentence. [14] See para 34(x) of the Reasons for Verdict and Reasons for Sentence. [15] See para 34(v) to (ix) of the Reasons for Verdict and Reasons for Sentence. [16] See para 34(xii) of the Reasons for Verdict and Reasons for Sentence. [17] See para 34(xiii) of the Reasons for Verdict and Reasons for Sentence. [18] See para 46 of the Reasons for Verdict and Reasons for Sentence. [19] See paras 35 to 46 of the Reasons for Verdict and Reasons for Sentence. [20] See paras 47 to 50 of the Reasons for Verdict and Reasons for Sentence. [21] See paras 51 to 52 of the Reasons for Verdict and Reasons for Sentence. [22] At trial, D1, D2 and D5 were represented by Mr Anson YY Wong, of counsel. [23] At trial, D4 and D6 were represented by Mr Carter TC Chim, of counsel, whereas D8 was unrepresented. [24] Part II, Hong Kong Bill of Rights Ordinance, Cap 383 of the Laws of Hong Kong. [25] The following grounds of appeal are relevant to this issue: ground of appeal 1 for D1, D2 and D5, ground of appeal 1 for D3, grounds of appeal 1 and 2 for D4, D6 and D8, and grounds of appeal 1 to 3 for D7. [26] The following grounds of appeal are relevant to this issue: ground of appeal 2 for D1, D2 and D5, grounds of appeal 1 and 3 for D3, and ground of appeal 3 for D4, D6 and D8. [27] The following grounds of appeal are relevant to this issue: ground of appeal 3 for D1, D2 and D5, ground of appeal 3 for D3, and ground of appeal 4 for D4, D6 and D8. [28] The following ground of appeal is relevant to this issue: ground of appeal 3 for D4, D6 and D8. [29] The following grounds of appeal are relevant to this issue: ground of appeal 4 for D1, D2 and D5, ground of appeal 2 for D3, ground of appeal 4 for D4, D6 and D8, and ground of appeal 2 for D7. [30] Page 7 of Mr Wong’s submission. [31] Page 8 of Mr Wong’s submission. [32] According to the definition in section 2 of the Regulation, “specified disease” means the “coronavirus disease 2019 (COVID-19)”. [33] See also para 23 of the Prosecution’s Closing Submissions against D1, D2, D4, D5 and D6. [34] See T v Commissioner of Police (2014) 17 HKCFAR, para 196. [35] Mr Wong cited SJ v Leung Kwok Hung, see footnote 12. [36] Pages 8 and 9 of Mr Wong’s submissions. [37] Page 9 of Mr Wong’s submissions. [38] Page 8 of Mr Wong’s submissions. [39] Page 9 of Mr Wong’s submissions. [40] Page 8 of Mr Wong’s submissions. [41] Page 9 of Mr Wong’s submissions. [42] Namely “principle against doubtful penalisation”. [43] Page 2 of the submissions for D4, D6 and D8. [44] Gazette Notice 28 of 2020 (Extraordinary). [45] Page 4 of Mr Chim’s submissions. [46] Page 5 of Mr Chim’s submissions. [47] Namely “in pari materia”. [48] See HKSAR v Kwan Ka Hei (2020) 23 HKCFAR 229, FACC 8/2019, paras 47 to 49. [49] Page 5 of Mr Chim’s submissions. [50] Page 7 of Mr Chim’s submissions. [51] [2014] AC 700, at p 774, para 25 of the Judgment: “A measure may respond to a real problem but nevertheless be irrational or disproportionate by reason of its being discriminatory in some respect that is incapable of objective justification.” [52] Page 7 of Mr Chim’s submissions. [53] D3’s submission. [54] D3’s submission. [55] D3’s submission. [56] D3’s submission. [57] See para 25 of D3’s submission. [58] D7’s submission. [59] See footnote 1. [60] According to the version applicable on the date of the incident: the version which came into effect on 29 April 2020. [61] The version that was applicable on the date of the incident was the version which came into effect on 29 April 2020. [62] See para 48 above. [63] Cap.1 of the Laws of Hong Kong. [64] CACV 234/2008. [65] (2006) 9 HKCFAR 574, para 63 of the judgment. The above is not the official Chinese translation. [66] “See Medical Council of Hong Kong v. Chow Siu Shek (2000) 3 HKCFAR 144 at p 154B-C; K & S Lake City Freighters Pty Ltd v. Gordon & Gotch Ltd (1985) 157 CLR 309 at p 315 per Mason J (dissenting, but not on this point); and CIC Insurance Ltd v. Bankstown Football Club Ltd (1997) 187 CLR 384).” [67] “See R v. A (No. 2) [2002] 1 AC 45 at pp 67G to 68H, per Lord Steyn.” [68] See footnote 48. [69] See para 8 of the judgment. The above is the official Chinese translation. [70] (2001) 4 HKCFAR 211. [71] See Part 6.3 of the judgment. [72] See Ng Ka Ling and others vs Director of Immigration (1999) 2 HKCFAR 4, pp 28 to 29. [73] As observed in Minister of Home Affairs v Fisher [1980] AC 319, 329E, a case on constitutional interpretation: “Respect must be paid to the language which has been used and to the traditions and usages which have given meaning to that language." [74] As decided by the Court of Final Appeal in Ng Ka Ling, see footnote 72, p 29A-C. [75] (2009) 12 HKCFAR 568, 574G-H. [76] See footnote 34. [77] This judgment, written originally in English, reads: "It is an interpretative presumption that the court seeks to avoid a construction that produces an absurd result, since this is unlikely to have been intended by Parliament; the more unreasonable the result, the less likely it is that Parliament intended it: Bennion on Statutory Interpretation, 6th edn, s.312 (pp 869-870)." [78] Article 41 of the Basic Law. [79] See footnote 24. [80] [2021] 3 WLR 179, para 57 of the judgment. [81] Leung Kwok Hung v HKSAR (2005) 8 HKCFAR 229, FACC 1/2005, para 17 of the judgment; and Kwok Wing Hang & Others v CE in Council and SJ (2020) 23 HKCFAR 518 paras 68 and 69. [82] (1999) 2 HKCFAR 442, FACC 4/1999. [83] (2005) 8 HKCFAR 137. [84] See para 1 of the judgment. [85] As the Hon Au JA then was. [86] See footnote 10. [87] See para 48 of the judgment. It is not the official Chinese translation. The judgment, written originally in English, reads, “It is trite that the court adopts a purposive construction of a statutory provision, which should be construed in its proper context, and insofar as possible, the court should adopt a construction which is constitutionally compliant." (emphasis added). Even though the Court of Appeal subsequently overturned the CFI's judgment in Sham Wing Kan, the principle set out in this paragraph was not affected (reported at [2020] 2 HKLRD 529). [88] See footnote 81, para 16 of the judgment. The judgment was written in English and the above is an extract of the official Chinese translation. [89] See footnote 81. [90] See para 33 of the judgment. [91] (2016) 19 HKCFAR 372. [92] The version applicable at the date of the offence was the one which came into effect on 29 April 2020. [93] See paras 48 to 49 above. [94] See section 4(1) of the Regulation. [95] See para 34 of the Statement of Findings and Reasons for Sentence. [96] HCMA 325/2020. [97] See section 10 of the Regulation. [98] See paras 60 to 74 above. [99] Counsel representing D1, D2 and D5. [100] See footnote 70. [101] See Law Report p 225. [102] See para 12 of Mr Chim's written submissions. [103] See para 35 above. [104] Section 7 of the Prevention and Control of Disease Ordinance, Cap 599 of the Laws of Hong Kong. [105] See T v Commissioner of Police, see footnote 34, para 196. [106] See Leung Kwok Hung, footnote 12, para 16. [107] See paras 84 and 87 above. [108] See footnote 91. [109] See paras 83 to 96 of the judgment. The judgment is written in English, and the Chinese version in the judgment of the present case is not the official Chinese translation, but an extract from the Chinese version of the headnote in the Law Report with slight modification. [110] See paras 114 to 116 and 120 of the judgment; Fok Chun Wa v Hospital Authority (2012) 15 HKCFAR 409, para 75. [111] [2020] EWCA Civ 1605, [2021] 1 WLR 2326. [112] The original text reads: "97. ...we consider that a wide margin of judgement must be afforded to the Government and to Parliament. This is on the well-established grounds both of democratic accountability and institutional competence. We bear in mind that the Secretary of State had access to expert advice which was particularly important in the context of a new virus and where scientific knowledge was inevitably developing at a fast pace. The fact that others may disagree with some of those expert views is neither here nor there. The Government was entitled to proceed on the basis of the advice which it was receiving and balance the public health advice with other matters." [113] See footnote 24. [114] For details, please refer to the Legislative Council Briefs on the relevant amendments of the Regulation. [115] See para 51 above. [116] See footnote 111. [117] As the Honourable Mr Justice Chow JA then was. [118] [2020] HKCFI 789, para 7. [119] See Leung Kwok Hung, a Court of Final Appeal case, see footnote 81, Headnote (2). [120] See Leung Kwok Hung (No 2), see footnote 161, para 163 of the judgment; and Cheung Tak wing v Director of Administration [2020] 1 HKLRD 906, paras 95 to101 of the judgment. [121] Hysan Development, see footnote 91, para 122 of the judgment. [122] [2020] 1 HKLRD 1188. [123] See Leung Kwok Hung, a Court of Final Appeal case, see footnote 81, Headnote (3). [124] Section 5(1)(b) of the Regulation. [125] See footnote 118 and para 119(xiv) above. [126] See footnote 81. [127] See paras 26 and 27 of the judgment. [128] See para 27 of the judgment. [129] See para 28 of the judgment and Shum Kwok Sher (2002) 5 HKCFAR 381, para 64. [130] See paras 150 to 193 below. [131] Exhibit P2. [132] See Reasons for Verdict and the Reasons for Sentence, paras 11 to 22 and 48 to 50. [133] See paras 27(v) and 48(iv) of the Reasons for Verdict and Reasons for Sentence. [134] See para 27(xii) of the Reasons for Verdict and Reasons for Sentence. [135] Meaning “rehearing”. [136] Meaning “state of mind”. [137] See para 156 below. [138] Including HKSAR v Adams Secuforce (International) Ltd [2008] 1 HKLRD 207; and HKSAR v Ching Yeung Development Co Ltd HCMA 806/2002. [139] [1964] QD 373. [140] (2016) 19 HKCFAR 110. [141] See para 159 below. [142] See para 51(v) to (vii) of the Reasons for Verdict and the Reasons for Sentence. [143] Meaning “evidential burden”. [144] See para 51(iii) of the Reasons for Verdict and Reasons for Sentence. [145] See para 74 above. [146] See para 7(b) in the Admitted Facts. [147] See footnote 80. [148] See footnote 111. [149] [2021] EWHC 661. [150] See Leung Kwok Hung, footnote 81, para 1. The judgement is written in English, and the original reads “The freedom of speech and the freedom of peaceful assembly are precious and lie at the foundation of a democratic society... of cardinal importance for the stability and progress of society.” [151] The Mayor Commonalty and Citizens of London v Samede [2012] EWCA Civ 160, para 40. [152] Mainly by Mr Chim. [153] See footnote 80. [154] See footnote 80. [155] See Ziegler, the judgment of the Divisional Court (see footnote 167), para 62; and judgment of the Supreme Court (see footnote 80) paras 57 to 60 and 94. [156] See footnote 111. [157] See footnote 80. [158] See para 103 of the judgment. [159] The Supreme Court of the UK. [160] See footnote 80. [161] [2020] 2 HKLRD 771. [162] See para 182 of the judgment. [163] Namely the “systemic proportionality by reference to the legislation or rules in question” as referred to by the Court of Appeal. [164] Namely the “operational proportionality by reference to the actual implementation or enforcement of the relevant rule on the facts and specific circumstances of a case at the operational level” as referred to by the Court of Appeal. [165] See para 184 of the judgment. [166] Meaning “re-hearing”, see Chou Shih Bin v HKSAR (2005) 8 HKCFAR 70, FACC 11/2004. [167] [2019] 2 WLR 1451。 [168] The Queen’s Bench Division of the High Court. [169] See footnote 159. [170] See footnote 80. [171] See footnote 80, and paras 70 and 108 of the judgment. [172] See para 110 of the judgment. [173] See footnote 111. [174] See para 104 of the judgment. [175] See footnote 83. [176] See footnote 83. [177] The judgment was written in English. The Chinese text in the judgment is adopted from Headnote (2) of the Chinese version in the law report. [178] See footnote 168. [179] [2022] 1 WLR 3141. [180] See footnote 159. [181] See footnote 80. [182] See para 72 of the judgment. [183] (2003) 6 HKCFAR 26. [184] Namely “de minimis non curat lex”. [185] See footnote 183. [186] See para 73 of the judgment. [187] Bokhary PJ. [188] See para 25 of the judgment. [189] Mr Wong cited R v Roberts (Richard) and others (Liberty and another intervening) [2019] 1 WLR 2577. [190] “See Submissions for Mitigation for D1, D2 & D5 [AB/13/130-133] and para 58 of the Reasons for Verdict and Reasons for Sentence [AB/15/190-191].” [191] “See para 61(ii) of the Reasons for Verdict and Reasons for Sentence [AB/15/192].” [192] “See para 64 of the Reasons for Verdict and Reasons for Sentence [AB/15/193].” [193] “See para 61(vi) of the Reasons for Verdict and Reasons for Sentence [AB/15/193].” [194] “See para 61(ii) of the Reasons for Verdict and Reasons for Sentence [AB/15/192].” [195] “See para 63 of the Reasons for Verdict and Reasons for Sentence [AB/15/193].” [196] See AG v Lau Chiu Tak [1984] HKLR 23; AG v Wu Chi-sing [1989] 2 HKC 76; and R v O’Keefe [1969] 2 QB 29. [197] Cap 221 of the Laws of Hong Kong. [198] [2016] 3 HKC 274. |
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