HKSAR v. Cheng Kin Fai

[English Translation – 英譯本]

HCMA 109/2022

[2022] HKCFI 1885

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL CASE NO. 109 OF 2022

(ON APPEAL FROM KTFS 5 OF 2022)

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JUDGMENT

1.The appellant pleaded guilty to one count of “participating in a prohibited group gathering”²[1]before a deputy magistrate¹[2] (“the magistrate”) and was fined $10,500. He appeals against the sentence.

Facts[3]

2.On 4 August 2021, police officers conducted an anti-gambling patrol in Tak Tin Estate. Six men and one woman including the appellant, each with a distance of less than 1.5 metres apart, were seen gathering in the vicinity of a park off Tak Lai House. Pursuant to sections 2, 3 and 4 of the Prevention and Control of Disease (Prohibition on Group Gathering) Regulation (“the Regulation”)[4] and Government Notice (Extraordinary) No. 450 of 2021 published in the Gazette on 21 July 2021, group gatherings of more than four persons at any public place as listed in Cap. 599F, Laws of Hong Kong were prohibited; hence, the police officers issued a fixed penalty notice to each of them in accordance with the Regulation.

3.The appellant did not pay the fixed penalty after receiving the fixed penalty notice, but only submitted mitigation on the liability of the offence in question. As the appellant did not put forward any lawful authority or reasonable excuse for participating in the above prohibited group gathering, the police applied to prosecute the appellant by way of a summons.

The Magistrate’s reasons for sentence

4.The magistrate took the following matters into account when considering the sentence:

(1)  The nature and the facts of the case;

(2)  The personal background of the appellant: he is now 68 years old, living on Comprehensive Social Security Assistance (“CSSA”) of about $4,000 per month;

(3)  The appellant’s mitigation:

(1)  He needed to take care of his mother, who suffered from a fall which resulted in a pelvic fracture last year, and he also needed to undergo surgery for colorectal cancer; thus, he requested to pay the fine by instalments;

(2)  He did not pay the fine concerned but just submitted a letter of mitigation to the police upon receipt of the fixed penalty notice. It was not his intention to default the payment of the fine. He just did not have money to pay;

(4)  The penalties under the Regulation;

(5)  The appellant’s guilty plea;

(6)  The pandemic situation of Covid-19 in Hong Kong at the material time: according to the news announcements of the Hong Kong Government, there were a total of 46 confirmed cases reported, including a local case of unknown sources, during the period from 2 to 15 August. The magistrate took the view that the epidemic situation at the material time was not very serious, but the situation still caused concern. A deterrent fine would be appropriate.

5.The magistrate pointed out in particular that on the summons there was a direction that one might pay the following sums by presenting the summons at the Accounts Office of a Magistrates’ Court two working days before the appearance day set out in the summons to discharge liability for the contravention / offence in accordance with Section 12 in Part 4 of Schedule 2 of the Regulation: a fixed penalty of $5,000, an additional penalty of $5,000 plus costs $500, totalling $10,500. In other words, if the appellant had opted to pay the fine to discharge his liability before the hearing, the amount that he needed to pay would have been $10,500.

6.The appellant opted to plead guilty before the magistrate, who ruled that he did not put forward any defence[5].

7.Based on the above, the magistrate adopted a fine of $15,750 as the sentencing tariff. Because of the appellant’s guilty plea a one-third discount was given to him and he was fined $10,500.

Grounds of appeal

8.At the appeal, the appellant was not legally represented. The main point of his submissions was that, with no intent to dispute the criminal liability of the offence in question, he was just asking the authority for indulgence and flexibility in payment if he was not able to pay the fixed penalty in a lump sum, and he was told that he might make his submission to court. Those were the circumstances under which he attended the trial.

Discussions and considerations

9.The fine imposed by the magistrate was coincidentally equivalent to the amount[6] which an accused would be required to pay for a fixed penalty notice according to the Regulation before appearing in court.

10.According to section 6(2) of the Regulation, anyone who contravenes the provision[7] concerned in this case is liable to a level 4 fine (i.e. $25,000[8]) and to imprisonment for 6 months. In addition, section 12 sets out the following provisions:

“(1) This section applies if —

(a) a person has notified the Authority in accordance with a demand notice that the person wishes to dispute liability for an offence under section 6(1)(a) or 8E(1)(a); or

(b) a person has been given leave under section 11(2) of this Schedule to dispute liability for an offence under section 6(1)(a) or 8E(1)(a).

(2) A summons issued in any proceedings against the person for the offence may be served on the person in accordance with section 8 of the Magistrates Ordinance (Cap. 227).

(3) If —

(a) in consequence of the notification or leave, the person appears in any proceedings in answer to a summons; and

(b) the person is convicted of the offence after having offered no defence or a defence that is frivolous or vexatious,

the magistrate before whom the proceedings are heard must, in addition to any other penalty and costs, impose an additional penalty equal to the amount of the fixed penalty.

(4) Any proceedings commenced against a person falling within subsection (1)(a) must terminate if the person pays in accordance with subsection (5)—

(a) the fixed penalty;

(b) an additional penalty equal to the amount of the fixed penalty; and

(c) $500 by way of costs.

(5) Payment under subsection (4) must be made at any magistrates’ court not less than 2 days before the day specified in the summons for the person’s appearance, and the summons must be produced at the time of the payment.

(6) Neither a Saturday nor a public holiday may be included in the computation of the 2 days’ period mentioned in subsection (5).

11.Sentencing is within the power of the court. When exercising the power of sentencing, statutory provisions, legal principles and case law must be taken into account. The power of sentencing is confined by legislation which stipulates, for example, the maximum penalty or sentencing of those who are convicted of certain offences, such as possession of a dangerous drug or possession of an offensive weapon.

12.As to the offence in the present case, there are also provisions in the Regulation. In case of the circumstances as provided, magistrates must exercise the power of sentencing in accordance with the statutory provisions.

13.Apart from the maximum penalty, there are also provisions contained in Section 12[9] as mentioned above.

14.Schedule 2 of the Regulation relates to fixed penalty. The Regulation was obviously designed to encourage an alleged offender to discharge the liability by paying the fixed penalty according to section 5. However, the purpose is not that the court should pass sentences in accordance with section 12 when the law enforcement agency issues a fixed penalty ticket to an alleged offender and the latter chooses not to pay and is eventually convicted. The court should do so only under the special circumstances as set out in section 12(3), and the sentence shall be imposed pursuant to section 12(3) in accordance with the statutory provisions.

15.The above provisions that apply to magistrates come into effect under the following conditions:

(1)  In consequence of the notification or leave, the person appears in any proceedings in answer to a summons; and

(2)  the person is convicted of the offence after having offered no defence or a defence that is frivolous or vexatious.

If the above conditions are met, the magistrate before whom the proceedings are heard must, in addition to any other penalty and costs, impose an additional penalty equal to the amount of the fixed penalty.

16.In the present case, the appellant appeared at the trial of the present case in answer to the summons. Condition (1) above was met.

17.Condition (2), namely “the person is convicted of the offence after having offered no defence or a defence that is frivolous or vexatious”, has two limbs, one of which is “convicted of the offence”. The appellant pleaded guilty before the magistrate and was convicted of the offence by the magistrate. No issue arises from this limb.

18.The other limb, which is also the core issue of the present case, is whether the appellant “offered no defence” as stated by the magistrate.

19.Mr Lee Sze Yin, Charles, the prosecutor representing the respondent, supports the magistrate’s decision, namely that the appellant appeared at the proceedings in answer to the summons and he offered no defence.

20.I accept that by simply taking the Regulation literally, the appellant did offer no defence.

21.However, I have reservation about such a construction of the Regulation as it would have given rise to the following unreasonable situations:

(1)  A person who pleaded guilty would be sentenced in accordance with section 12(3), and an additional penalty would be imposed if the sentence was a fine;

(2)  If a person pleaded not guilty and was convicted of the offence after trial, but the magistrate did not find the defence frivolous or vexatious, the magistrate would not need to impose a sentence under section 12(3).

22.Therefore, in my view, it is not the legislative intent that pleading guilty is “having offered no defence” as specified in the Regulation.

23.However, Mr Lee also submitted that the magistrate remarked that the appellant “offered no defence”, but it can be seen from the overall explanation and context of the Reasons for Sentence that the magistrate did consider the whole circumstances, including, as stated by her:

(1)  that the appellant could have discharged the liabilities by paying the fixed penalty;

(2)  the reference she made to the provisions of section 12;

(3)  the relevant direction on the summons as stated in paragraph 5 above; and

(4)  the matters in paragraph 4 above,

before she passed the sentence.

24.Upon my perusal of the Statement of Findings, I also agree that it may not be impossible for the above to be the magistrate’s train of thought.

25.Under such circumstances, I have taken into account whether the magistrate’s sentence was appropriate or manifestly excessive in regard to the overall circumstances of the present case.

26.For my consideration, I took the following fundamental principles of the criminal law into account:

(1)  The accused has the right to plead not guilty to defend the case based on the principle of “presumption of innocence”. The burden of proof lies with the prosecution[10]. The accused has the right to request the prosecution for strict proof.

(2)  The accused has the right to silence, and still has the same at trial.

(3)  Although the accused may lose the opportunity of being dealt with leniently by the court by entering a plea of not guilty, the court should not aggravate the sentence for the plea of not guilty entered by the accused.

(4)  Generally, an order for the convicted to pay costs will be considered only if the conduct of the accused led to unnecessary and extraordinary expenses for the prosecution.[11]

27.The measure of fixed penalty serves to deal with offenders expeditiously by administrative means, which is a formulation to dispense with the appearance in court of the person concerned. The payment of a fine does not represent a plea of guilty. According to section 5(2), Schedule 2 of the Regulation, if the fixed penalty is duly paid as provided in the Regulation, the person is not liable to be prosecuted or convicted for the subject offence. Not only does this design spare the authorities’ and society’s resources on lodging criminal prosecution against alleged offenders, but it also eliminates the risk of failure of proof. On the other hand, quite a number of people pay fixed penalty to avoid prosecution, court appearance and the risk of conviction. I am of the view that the legislative intent is not that the alleged offender must necessarily be sentenced in accordance with section 12(3) if the fixed penalty is not paid.

28.Those who do not pay fixed penalties in accordance with the Regulation are not automatically deprived of the protection under the legal principle mentioned in paragraph 26 above.

29.Even if a person concerned is convicted after trial, the magistrate still has discretion in sentencing[12]. Under section 6 of the Regulation, the maximum penalty of the relevant offence is a fine at level 4[13] and a 6-month term of imprisonment. Certainly, as mentioned above, sentencing discretion must be exercised in accordance with the law. If the situation of section 12(3) arises, the magistrate must impose a sentence in compliance with the law. However, even if that is the case, the magistrate’s sentencing discretion remains when deciding “other penalty” and “costs”[14].

30.Mr Lee stressed that the case was considerably serious in nature on the basis of the following circumstances:

(1)  The incident took place on 4 August 2021. As a result of the Covid-19 pandemic, the government prohibited group gatherings of more than four people at public places. The regulation was publicised extensively by the media.

(2)  The appellant knowingly committed the offence by attending a group gathering of more than four people.

(3)  The appellant and two other men sat around a table. There was a conversation and hands were put on the table. Moreover, three men and a woman stood behind them very closely and they talked to and looked at one another.

(4)  The seven-people gathering had gone on for a period of time.

(5)  Although the Covid-19 pandemic was not particularly serious at the material time, the situation still caused concern.

(6)  The magistrate had the right to pass a deterrent sentence so as to get the correct message across the public.

31.I agree that what Mr Lee submitted[15] should be considered when imposing a sentence.

32.I have also noticed something special about this case. The appellant said that he had all along been asking for indulgence as to the way of paying the fixed penalty and he did not intend to dispute the criminal liability. The contents of the appellant’s notice given to the police were consistent with what he said. I accept the appellant’s assertion.

33.Based on all of the above, I allow the appellant’s appeal against sentence after serious consideration. Taken into account the nature and the facts of the case, the amount of the fine should be changed to $5,000, which is the amount of the fixed penalty the appellant had all along been planning to pay as he indicated. To show sympathy to the appellant’s financial status, I order that the fine be paid in 11 instalments of $500 each. The amount of the first instalment is $500, payable by 1 August 2022, whereas each of the remaining 10 instalments of $450 be paid by the first day of each following month.

Remarks

34.The appellant indicated that he had never intended to dispute his criminal liability. He was willing to pay the fixed penalty. However, he just had financial difficulty in making a one-off full payment. The one-off payment of the fixed penalty of $5,000 poses a heavy financial burden to quite a few grassroots, especially the elderly, who rely on CSSA of several thousand dollars per month, like the appellant of this case. As far as I can see, there is currently no mechanism for the administrative department to handle such matters with discretion, such as to allow people with genuine difficulty to pay the fine by instalments. To show sympathy to those with genuine difficulty, I sincerely ask the authority to consider some feasible relief measures, for example, granting the law enforcement agency discretionary power, or allowing those with a genuine need a way to indicate expressly to the authority or the court that the criminal liability is not in dispute (for example, plea of guilty by letter) but an application for a discretionary treatment of the penalty payment is all that is wanted.

Mr Lee Sze Yin, Charles, Acting Senior Public Prosecutor of the Department of Justice, for the respondent.

The appellant acting in person.

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