HKSAR v. Chai Sau Ching

[English Translation – 英譯本]

HCMA 434/2021

[2022] HKCFI 1817

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 434 OF 2021

(ON APPEAL FROM KTFS 31 OF 2021)

__________________

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JUDGMENT

1.The appellant was charged with a count of “participating in prohibited group gathering”[1], to which he pleaded not guilty. He was convicted by a magistrate[2] after trial and fined $11,000. The appellant appeals against his conviction and sentence.

The prosecution case

2.The prosecution alleged that the appellant, together with ten-odd to twenty people, gathered at a slope further up from a road, playing poker at two folding tables or as onlookers.

3.At the trial, the prosecution called five witnesses, who were all police officers.  The prosecution evidence against the appellant mainly came from one of the police officers (PW1).  The remaining witnesses were called for cross-examination at the appellant’s request.  Three of them were police officers handling this case at the scene (PW3–5), and the other one was the police officer who later ticketed the appellant (PW2).

4.PW1’s testimony can be summarised as follows[3].

5.He and the other police officers (PW3–5) headed to the material place to handle the incident upon receiving instruction.  He reached the slope at the scene and observed at a distance of around 20 metres away.  He saw that around 20 people in total gathered at two folding tables, playing poker or as onlookers.  The two folding tables were around 1.5 metres apart.  Those who gathered were just a body’s width apart with each other.  During the period of observation, nobody left or joined in, nor were there passers-by.  There was nobody in the vicinity other than the gathered people.  In the whole course, the appellant was standing next to one of the tables[4]. After observing for around one minute, PW1 and other police officers walked up the slope and revealed their identities.  Some of the gathered people dispersed and attempted to flee, and four were intercepted.  The appellant was one of them and he was intercepted by another police officer.  At the time, the appellant was still standing next to the same table and his position remained the same all along.  At the time, he was holding a walking stick and walking very slowly.

6.The appellant cross-examined each of the prosecution witnesses.  The witnesses who were at the scene agreed that the appellant did not fall at the scene while they did not agree that there were people (including the appellant) who peed in the vicinity of the folding table.  As to PW2, the police officer who ticketed the appellant, he was not at the scene and had no idea about the facts.

The defence case

7.At the trial, the appellant testified but did not call any witness.  His testimony can be summarised as follows[5].

8.He often went to the place in question to browse his phone.  This was because he could stay out of the pandemic and conveniently spend a penny in the gutter there.  On that day, he went to the same place as usual with the intention to browse his phone. Seeing there were more than 20 people gathering and playing cards, he made his way through the crowd to the location about 7 to 8 metres away from the second table to pee.  He meant to leave after relieving himself but was stopped by the police.  He did not take part in the gathering.

9.The appellant said:

(1)  He saw that there were too many people gathering there at that time and knew that he could not stay at that location to play on his mobile phone;

(2)  He had to make his way through the crowd, saying “excuse me” to the people gathering there to get to the front to pee;

(3)  He proceeded to the slope to browse his phone because he wanted to stay out of the pandemic and the places congested with people; and

(4)  When he turned round to go to the places depicted in photographs P1(4) or (5), there were no other people.

The magistrate’s findings

10.The magistrate was of the view that all prosecution witnesses were honest and reliable and accepted their testimonies[6].

11.On the other hand, the magistrate found that the appellant was not an honest and reliable witness and rejected his testimony[7].

12.The magistrate found that[8]:

(1)  The place in question was a public place specified in the related ordinance[9];

(2)  At the material time, there were about 20 people playing cards or collecting around to watch the card games, which was a prohibited group gathering;

(3)  The appellant was one of the participants in the gathering; and

(4)  The appellant did not have lawful authority or reasonable excuse to do so.

13.Hence, the magistrate found the appellant guilty of the charge.

Grounds of appeal against conviction

14.In his appeal against the conviction, the appellant, as he was at the trial, was not legally represented.

15.His grounds of appeal can be summarised as follows:

(1)  He did mention to the magistrate that he had a medical certificate issued by a doctor and a sketch drawn by the police but was ignored by the magistrate.

(2)   The magistrate erred in accepting the prosecution witnesses’ testimonies:

(i)    The magistrate did not take into consideration the inconsistencies[10] in PW1’s and PW2’s testimonies;

(ii)   PW1’s written statement and testimony were contradictory.  For example, he stated in his statement that there were ten-odd people on the slope at the material time. However, when testifying in court, he said there were about 20 people[11];

(iii)  If what PW1 said was true, that the appellant had never left the location of gathering, PW1 would not be able to know that the appellant was slow in his movement[12]; and

(iv)  PW1 stated in his statement that the gathering group was drawn close to the folding tables. Nonetheless, he was unable to explain the meaning of “drawn close to”[13] in the trial.

(3)  The magistrate misunderstood and rejected his (the appellant’s) testimony:

(i)    He elected to give evidence when he could have remained silent, and was not evasive[14] when testifying;

(ii)   The magistrate erroneously pointed out that he was 7 to 8 metres away[15] from or “in the vicinity” of the two folding tables when he relieved himself[16], but the correct distance should be 6 to 7 metres;

(iii)  He had mobility difficulties.  If he had participated in the gathering, he would definitely have fallen down when the group of people dispersed. But the fact that he did not fall proved that he was not at the scene[17].

(iv)  The magistrate was erroneous in taking the view that going up the slope to browse the phone and pass water did not make sense.  She overlooked the fact that in Hong Kong, there is not a public lavatory or a toilet in a shopping arcade that has seats in its vicinity to allow people to browse their mobile phones[18]. Moreover, stair climbing is a form of aerobic exercise[19];

(v)   At that time, the appellant was already in a dire need to answer the call of nature[20]. Therefore, the magistrate was unreasonable and erroneous when she thought he was 7 or 8 metres away from the crowd; and

(vi)  It was also erroneous for the magistrate to infer that he knowingly went to the slope to gamble.  This was because one could go to a park if one wanted to gamble[21].  Furthermore, he did not know the people at the gathering at all, nor had he ever seen people gathering there gambling before.  (A report was made to the police on the day in question.  This proved that it was the first time people ever gathered there for gambling)[22].

(4)  The magistrate was erroneous in terms of legal principles or procedures.

Application for additional evidence

16.The appellant also made an application to adduce the following additional evidence in his appeal:

(1)  a document stating the allegation as to the inconsistencies between the testimonies given by the prosecution witnesses in court and their written statements or records;

(2)  a letter from an occupational therapist;

(3)  two medical reports from an orthopaedic surgeon;

(4)  a medical report from a physician-cum-geriatrician;

(5)  a delivery note for a wheelchair;

(6)  a report from a urologist;

(7)  an octopus card transaction record;

(8)  photographs (to depict the surroundings of the scene); and

(9)  the statement in which a police officer stated that he had taken six photographs.

17.The appellant also applied to call the occupational therapist, the orthopaedic surgeon and the physician-cum-geriatrician concerned to testify.

18.It seemed that the main purpose of adducing the additional evidence and calling the said witnesses was to prove:

(1)  his mobility difficulties;

(2)  his physical illness, especially in relation to his urological condition;

(3)  the transactions he made at the relevant time on that day; and

(4)  that the prosecution witnesses were not credible as there were more photographs.

19.In relation to the principle on additional evidence, according to section 118(1)(b) of the Magistrates Ordinance[23], if a judge who deals with a magistracy appeal:

“… thinks additional evidence to be necessary he may receive such evidence, and for that purpose shall have the like powers under subsections (1) and (6) to (17) of section 83V of the Criminal Procedure Ordinance (Cap. 221) that the Court of Appeal would have had if the appeal had been an appeal to which that section applied, and the judge may issue any process necessary for enforcing the exercise of such powers.”

20.Under subsections (1) and (2) of section 83V of the Criminal Procedure Ordinance[24]:

“(1) For the purposes of this Part, the Court of Appeal may, if it thinks it necessary or expedient in the interests of justice —

(a) order the production of any document, exhibit or other thing connected with the proceedings, the production of which appears to it necessary for the determination of the case;

(b) order any witness who would have been a compellable witness in the proceedings from which the appeal lies to attend for examination and be examined before the Court of Appeal whether or not he was called in those proceedings; and

(c) subject to subsection (3), receive the evidence, if tendered, of any witness.

(2) Without prejudice to subsection (1), where evidence is tendered to the Court of Appeal thereunder the Court of Appeal shall, unless it is satisfied that the evidence, if received, would not afford any ground for allowing the appeal, exercise its powers of receiving it if—

(a) it appears to it that the evidence is likely to be credible and would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and

(b) it is satisfied that it was not adduced in those proceedings but there is a reasonable explanation for the failure to adduce it.”

21.In Mohammad Mahabobur Rahman v HKSAR[25], the Court of Final Appeal held that the following conditions must be satisfied before receiving any fresh evidence at an appeal: 

(1)  The fresh evidence is likely to be credible;   

(2)  It would have been admissible in the courts below;

(3)  It is relevant to an issue in the appeal;

(4)  There is a reasonable explanation for the failure to adduce it in the courts below; and

(5)  The court is satisfied that it would afford a ground of appeal.

22.The above case in the Court of Final Appeal focused on how the power conferred by the Criminal Procedure Ordinance is to be exercised[26].

23.The powers conferred by the Magistrates Ordinance[27] may not necessarily be limited to the powers conferred by the Criminal Procedure Ordinance[28].  However, the above case in the Court of Final Appeal[29] is of strong guidance.  I take the view that the conditions set out in the case are generally applicable in dealing with magistracy appeals.  Such an approach has already been adopted in a number of magistracy appeal cases.

24.Document (1), which the appellant seeks to produce as additional evidence, is his own statement, and cannot be received as fresh evidence in the appeal.

25.As to items (2) to (7), they existed at the time of the trial.  The appellant did not produce them in the trial at that time.  No reasonable explanation has been provided for that.  The situation does not satisfy the conditions of receiving additional evidence.  Therefore, I am of the view that legally the appellant should not be allowed to adduce the said additional evidence in the appeal.

26.Furthermore, I take the view that all the materials concerned will not in any event affect the outcome of this case.

27.Obviously, the magistrate was satisfied that the appellant had mobility difficulties and took this on board in her consideration[30]. The appellant’s urologic condition would only strengthen the magistrate’s view that proceeding to that place for urination did not make sense[31].  As to the octopus card transaction record, the magistrate pointed out that even though there were related transactions, it was in fact not in dispute that the appellant was present at the place in question at that time[32].  The real issues were why he was there and whether he was gathering with other people.

28.The additional photographs the appellant seeks to produce capture the surroundings of the scene.  There would not be serious problems in the absence of these photographs because the magistrate had a good grasp of the surroundings of the scene.

29.The appellant’s application does not meet the requirements, nor does it reinforce or even afford a ground of appeal.  Hence, I do not allow the application in this regard.

Discussions and considerations

30.The appellant testified that he went to that place only for the purposes of browsing his phone and urination, and he did not participate in the gathering of those people.

31.If such an exculpatory explanation of his is true, or possibly true, he must be acquitted of the charge.

32.The magistrate did not accept the appellant’s exculpatory explanation.  The main reasons are as follows[33]:

(1)  At that time, the appellant already had mobility difficulties and needed the aid of a walking stick.  He went to the courtroom in a wheelchair.  Basically, there was no particular reason for him to proceed to such a remote place where he had to climb so many stairs to reach to browse his phone.

(2)  He claimed he had frequent urination, then all the more reason for finding places where toilets were easily accessible to play on and browse his mobile phone. In normal circumstances, when an adult has the physical need in question, he does not simply pee in a gutter like that.

(3)  At the material time, there were more than 20 people gathering at the scene.  Even if the appellant had the dire physical need at that time, he should have gone to a bush where there was no one around or with more seclusion to relieve himself.  His assertion that he did it at a distance of only 7 to 8 metres away from the crowd is illogical.

(4)  So long as he turned round to go to the place shown in photo P1(4) or (5), there was already no one there and he could have relieved himself at a place which was closer, more secluded and more private.  In these circumstances, if he insisted on moving ahead, having contact with so many people at a close distance and snaking through the crowd on a narrow slope with mobility difficulties as he claimed for the purpose of going to the gutter in front (instead of turning round to go to a more deserted place) to urinate, it was a defiance of logic.

33.As the magistrate mentioned, though the court did not accept the appellant’s testimony, the burden of proof still rested with the prosecution.  The magistrate was still obliged to examine the prosecution evidence with caution to determine whether the prosecution was able to prove beyond reasonable doubt that the appellant did commit the offence[34].

34.The magistrate was satisfied that all of them were honest and reliable and thus accepted their testimonies. She pointed out the following:

(1)  PW1’s testimony was clear, unequivocal, logical, unshaken under cross-examination and there was no inconsistency or inherent improbability in it. He did not try to exaggerate his testimony.  His account of the course of events was consistent and very detailed [35].

(2)  All the prosecution witnesses gave simple and direct accounts of what they saw and heard. When testifying, they spoke smoothly and naturally without dodging or evading the questions. Their testimonies were logical and in agreement with one another on the key issues with no inconsistencies found.[36]

35.It is for the trial magistrate to determine whether a certain witness is honest and reliable and whether his testimony is true and reliable. An appellate court makes its decision based solely on written records and lacks the benefit the trial magistrate enjoys, that is, the benefit of observing the demeanour of and listening to the witnesses. Therefore, an appellate court will not hastily interfere with the findings of a magistrate unless they are unreasonable, illogical or the evidence is inherently improbable, or when dealing with the key issues of the testimonies the magistrate made wrong quotations, omissions or never took them into consideration and analysis.[37] In HKSAR v Finan Boris Anthony[38] , the Court of Final Appeal pointed out that an appellate court may depart from the findings of the magistrate only when the magistrate was plainly wrong in the finding of facts and the determination of the credibility of the witnesses.[39]

36.One of the submissions made by the appellant was that in the testimonies of the prosecution witnesses and the first summary of facts prepared by the prosecution, it was pointed out that six photographs of the scene were taken. However, later there were seven photographs, which were all produced in court. I have looked at the seven photographs carefully. They all show the surroundings of the scene instead of depicting what happened at the time of the offence. Even if what the appellant said was true, taking into account that the photographs were produced with the appellant’s knowledge and that the content of the photographs only showed the surroundings of the scene of the offence, I find that the circumstances relating to the photographs would not have affected the magistrate’s assessment on the credibility of the witnesses being safe.

37.The magistrate’s explanation about her assessment on the credibility of each witness was reasonable. Taking the appellant’s submission into account, I take the view that the appellant failed to put forward any points that would make this court interfere with the magistrate’s assessment and determination on the credibility of the prosecution witnesses’ and the appellant’s testimonies.

38.Based on the prosecution witnesses’ testimonies, which the magistrate had accepted, she had the power to find the appellant guilty as charged. I agree with the magistrate that it was unreasonable for the appellant to go to such a remote place only to browse his mobile phone and urinate. The only reasonable inference was that the appellant knew full well that there were people who gathered at the offence location to play cards. He proceeded to the scene only because he wanted to join their activity.[40] I wish to point out in passing that the magistrate did not find the appellant a person who took part in gambling, but only a person who took part in that activity.

39.The appellant also criticized that the magistrate erred in the legal principles or procedures, and there was unfairness in the way she handled the case. One of the criticisms related to how the magistrate dealt with the Octopus card records and the medical records. Even if I accepted what the appellant said, as mentioned above in paragraph 27, the situation was unlikely to go so far as to affect the magistrate’s finding being safe. The appellant also criticized the magistrate for not offering him proper and sufficient assistance as he was legally unrepresented; for example, not explaining clearly to him what it meant by “dispute” and “half-way submission”.  The way the original trial proceeded appeared to be reasonable. The situation was hardly like the kind of cases without even a prima facie case. The appellant testified, and it was apparent that the magistrate had a grasp of the issues and knew what the contentions were. What was not in dispute was that the appellant was present and this was actually his case too.  When offering assistance to the accused who are legally unrepresented, magistrates usually need to understand the contentions and those areas without dispute before they can properly offer relevant assistance. The inadequacies as the appellant has pointed out in PW1’s testimony, whether those parts were cross-examined during the original trial, were unlikely to go so far as to impact on the magistrate’s assessment of PW1’s credibility as being safe.

40.In conclusion, I take the view that the appellant failed to put forward any cogent and valid ground of appeal. I have reviewed the evidence as a whole and take the view that the conviction was safe and supported by sufficient evidence. Consequently, I dismiss the appeal against conviction and the conviction is upheld.

Appeal against sentence

41.The magistrate imposed a fine of $11,000 on the appellant having taken the following matters into account:

(1)  the nature and facts of the offence;

(2)  the penalty of the relevant ordinance: a fine of level 4 (i.e. $25,000[41]) and imprisonment for 6 months;

(3)  the appellant’s conviction record: although the appellant has had some records in the past, they are not similar and were many years ago. The magistrate took the appellant as a first offender when passing sentence; [42]

(4)  mitigation, the main issues being that:

(1)  the appellant is 71 years old; and

(2)  he lives on Comprehensive Social Security Assistance (“CSSA”) of $6000 per month;

(5)  The following statutory provisions:

(1)  Section 8:

“(1) If a person commits an offence under section 6(1)(a), the person may, in accordance with Schedule 2, discharge liability for the offence by paying a fixed penalty of $5,000.”

(2)  Section 12, Part 4, Schedule 2 (“Section 12”):

“(1) This section applies if—

(a) a person has notified the Director 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 (L.N.52 of 2020)

(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). (L.N.13 of 2022)

(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).”

(6)  The summons in question also gave the following directions:

“PRE-HEARING PAYMENT OPTION: You wished to dispute liability for the contravention/offence stated in the Notice. You may, however, discharge liability for this contravention/offence by presenting this Summons at the Accounts Office of any Magistrates’ Courts, not later than 2 clear working days before the appearance day set out above and paying the Payment Amount stated below in accordance with Section 12 in Part 4 of Schedule 2 of Cap. 599G: Fixed Penalty $5,000 + Additional Penalty: $5,000 + Costs $500 = Payment Amount $10,500.”

In other words, had the Appellant opted to pay in order to discharge his liabilities before the trial, the amount he needed to pay would have been $10,500.

(7)  His grounds of defence were ridiculous, frivolous and vexatious[43].

42.As to the appeal against sentence, the appellant was represented by Mr James L. W. Wong, barrister-at-law, who put forward the following grounds of appeal on behalf of the appellant:

(1)  The magistrate erred when she pointed out that the appellant’s defence was frivolous and vexatious;

(2)  The magistrate did not give due consideration to the financial condition and personal circumstances of the appellant[44], in particular the appellant’s advanced age and lack of legal representation.  The magistrate should have shown more understanding; and

(3)  The magistrate did not properly exercise her discretion.

43.Mr Wong asked the court to consider the following circumstances:

(1)  The appellant and his spouse were divorced over twenty years ago, and he has not been in contact with his grown-up children and has been living alone for many years.

(2)  Due to the injury sustained from a fall in the past, the appellant has mobility difficulties. His physical disability has deprived him of prolonged standing. Unlike the able-bodied, he cannot stand in the kitchen for a long time to prepare and cook food, so he eats out or buys takeaway food for all three meals a day. Consequently, his monthly meal expenses are about $4,500, which take up a large portion of the disposable amount from CSSA.

(3)  Other daily expenses, such as purchasing daily necessities, clothes, transportation expenses, utilities and miscellaneous expenses, and so on, amount to $1,000 per month.

(4)  Consequently, after deducting the reasonable daily expenses, what is left for the appellant is about $500 per month.

(5)  With this as the basis, if the appellant has to pay a fine of $11,000, it equals to his spare money of 22 months ($11,000 ÷ $500) accumulated from CSSA. It was too harsh on him when a fine of this amount was imposed without giving due consideration to the appellant’s circumstances.

44.This appeal concerns one issue: whether the magistrate passed her sentence in accordance with section 12. While delivering the oral verdict, the magistrate did not say that she passed the sentence in accordance with section 12, whereas in her Statement of Findings, she mentioned section 12, and she commented that the “grounds put forward were ridiculous (frivolous, vexatious)”.

45.The magistrate’s way of expression could not be regarded as very clear.  Nevertheless, in her Statement of Findings, she stated clearly that the defence the appellant put forward was frivolous and vexatious, together with the following expressions: “totally illogical”[45], “ridiculous assertion”, “impossible to be true”, “not telling the whole truth and is incredible” and “cannot be the fact”[46] . Moreover, the calculation of the fine was based on section 12. I take the view that the magistrate passed the sentence according to section 12 (3)[47].

46.An important issue in the present case is whether the appellant’s defence was frivolous or vexatious, which are not statutorily defined. Mr Hui Man Nok, Matthew, the prosecutor representing the respondent, cited 香港特別行政區訴鄧紫芳[48] and香港特別行政區訴張伯倫[49] in his submissions, saying that the magistrate did not err in the determinations in question. He pointed out that the appellant was old and had mobility difficulties, but the latter said in his defence that he travelled a long way to the hillside in question to browse his phone and that he peed in front of so many people. This defence was absolutely ridiculous and indeed frivolous or vexatious.

47.Pursuant to section 6(2) of the Regulation, any person who contravenes the regulations[50] in relation to the present case shall be liable to a fine of level 4 (i.e. $25,000[51]) and imprisonment for 6 months.  Moreover, section 12 has the same provision as in paragraph 41 (5) (2) above.

48.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 certain offences, such as possession of a dangerous drug or possession of an offensive weapon.

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

50.The relevant provisions are set out in section 12[52] as mentioned above.

51.Section 12 is part of Schedule 2 of the Regulation. Schedule 2 relates to fixed penalty. The provision was obviously designed to encourage an alleged offender to discharge the liability by paying a fixed penalty according to section 5 of Schedule 2. However, its purpose is not that the court should pass sentences in accordance with section 12(3) 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 according to section 12 in accordance with the Regulation.

52.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 in accordance with section 12(3).

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

54.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 was convicted by the magistrate, and his appeal against conviction is also dismissed. No issue arises from this limb.

55.The other limb, which is also the core issue of the present case, is whether the appellant was convicted of the offence after having offered no defence or a defence that was frivolous or vexatious.

56.At the trial, the appellant testified and offered a defence. Therefore, what I must consider is whether the appellant was convicted of the offence after having offered a defence that was frivolous or vexatious.

57.There is no definition given to the expression of a frivolous or vexatious defence in the relevant ordinance.

58.Such penalty provisions are common in the legislation relating to fixed penalty. Examples are the Fixed Penalty (Criminal Proceedings) Ordinance[53], the various subsidiary legislations of the Prevention and Control of Disease Ordinance, and the Fixed Penalty (Public Cleanliness and Obstruction) Ordinance[54]. However, there is also no definition given to the relevant expression in those ordinances.

59.“Frivolous” and “vexatious” are well established concepts in civil procedure, which enables the court to consider exercising the power to strike out pleadings[55]. Where circumstances constitute an abuse of process, it is clearly within the scope of the above concepts.

60.In civil procedure, where the circumstances are not capable of reasoned argument, without foundation and cannot possibly succeed, it may be considered frivolous.  If a proceeding is initiated for the purpose of oppression or is not bona fide, it may be considered vexatious.[56]

61.When deciding whether the defence is “frivolous” or “vexatious”, I take the view that the ordinary literal meaning should be adopted.  A determination should be made in accordance with the facts.  The trial magistrate is the best candidate for making such a determination.

62.The definitions of the word “frivolous” in authoritative dictionaries include the following: being meaningless, having no sound basis, and being silly or funny.  The word “vexatious” may mean being lack of steadiness, causing vexation, or not being meaningful.

63.The applicable considerations in civil procedure [57] serve as a reference in criminal cases.

64.When considering the matter, the court must bear the following fundamental principles of the criminal law in mind:

(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[58].  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[59].

65.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 prosecutions against alleged offenders, but it also eliminates the risk of failure of proof.  On the other hand, quite a number of people pay fixed penalties 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.

66.Those who do not pay fixed penalties in accordance with the Regulation are not automatically deprived of the protection under the legal principles mentioned in paragraph 63 above.

67.Even if a person concerned is convicted after trial, the magistrate still has discretion in sentencing[60].  It should be noted that, under section 6 of the Regulation, the maximum penalty of the relevant offence is a fine of level 4, at $25,000 at present[61] .  Certainly, as mentioned above, sentencing discretion must be exercised in accordance with the law.  For a situation under section 12(3), the magistrate must act in accordance with the law to impose an additional fine equal to the amount of the fixed penalty, on top of any other penalty and costs.  However, the magistrate’s sentencing discretion remains when deciding on the “other penalty” and “costs”[62].

68.Under the above legal principles, I am of the view that it would not be easy to pass the threshold for saying that the appellant was “frivolous” or “vexatious”. The magistrate had to make careful consideration before reaching a decision. The appellant should not be found as “frivolous” or “vexatious” simply because of the magistrate’s refusal to accept the accused’s testimony in relation to the defence [63]. Certainly, if the appellant made extravagant claims or if the accused’s contention, even if accepted, still did not constitute lawful authority or reasonable excuse, then it could be regarded as “frivolous” or “vexatious”.

69.In HKSAR v John Edward Ball [64], the court was of the view that if a defence was based on the accused’s misunderstanding of the law, it would not necessarily be “frivolous” or “vexatious”. On the other hand, groundlessly accusing the prosecution of fabrication has been ruled as “frivolous” or “vexatious” [65], and sophistry has also been ruled as “frivolous” or “vexatious” [66].

70.I am also of the view that the court can consider matters such as whether the issues raised by the convicted person are plainly unreasonable or unfounded, whether the evidence against him is clearly indisputable or carries overwhelming probative weight, and whether the facts he puts forward are grossly nonsensical. Of course, I have just given a few examples, which are not supposed to be an exhaustive list of matters for consideration.

71.As far as the offence in this case is concerned, I note that the burden was on the accused to establish that there was lawful authority or reasonable excuse for his non-compliance with the Regulation, but it was simply an evidential burden[67] . If there was sufficient evidence to raise an issue in relation to the lawful authority or reasonable excuse, the prosecution must then prove the contrary beyond reasonable doubt. [68]

72.I agree with Mr Wong’s submission that special care should be taken when considering this issue in order not to jeopardise the accused’s fundamental right to defend.

73.After careful consideration, I have no objection to the magistrate’s findings. I also agree that the defence the appellant put forward was “frivolous” or “vexatious”.

74.Mr Hui also pointed out that the magistrate had already taken into consideration the information before her regarding the appellant’s financial means and allowed the appellant six months to pay the fine of $11,000 after having fully considered the appellant’s monthly income of approximately $6,000.  Moreover, another magistrate subsequently approved the variation of the appellant’s instalment amount to $500 a month, to be paid monthly until the fine was fully paid. [69]

75.He submitted the following:

(1)  A fine should not ruin the appellant’s financial standing, but an excessively low fine could not reflect the gravity of the case and did not serve a deterrent effect. The case took place during a severe outbreak of the coronavirus pandemic when the “social gathering restriction” in the Regulation was tightened to two people, yet the appellant gathered with almost 20 people. The case was serious and the fine was not manifestly excessive.

(2)  When sentencing, the court should refer to the fixed penalty ($5,000) and the amount the appellant could have paid to bring the proceedings to an end before the trial ($10,500). Except under very exceptional circumstances, a fine imposed on conviction after trial should not be less than the amount. Otherwise, offenders will be encouraged to ask for a lighter fine through disputing liability, rendering the fixed penalty system ineffective and placing a burden on the judicial system [70].

76.Mr. Wong submitted that magistracy appeals are conducted by way of rehearing.  The court could take the appellant’s living expenses and repayment ability into account, exercise its discretion to make a downward adjustment to the fine imposed on the appellant and consider extending the repayment period. 

77.I agree that the court should take into account what Mr Hui said in paragraph 75(1) above in sentencing.  I also take the view that this case should not be regarded as very minor. 

78.Both parties have no objection to using the amount of fixed penalty as an indicator for determining the amount of the fine.  Nevertheless, even if the amount can be taken into account, I am of the view that the court must be minded that according to the penalty structure the amount is fixed across the board, regardless of the gravity of the facts of the case.  In this connection, the amount of $5,000 should not be overly regarded as a proper indicator for the penalty.

79.In conclusion, having taken into account the submissions of both parties and the magistrate’s decision of a total fine of $11,000 on the finding that the appellant’s grounds of appeal are frivolous or vexatious, I am of the view that there is a little room for downward adjustment of the fine.  I have already ruled that the sentence of this case should be based on section 12(3).  In accordance with the provision of the section, an additional penalty of $5,000 shall be imposed plus other punishment, and costs shall be considered.  I find that given the overall circumstances of this case, while a total fine of $9,600 may be a little too lenient, it can however be regarded as reflecting the culpability and taking the appellant’s personal circumstances into account.

80.Moreover, I take the view that the appellant can be allowed a longer payment period in instalments.

81.On the basis of the above reasons, the appellant’s appeal against sentence is allowed.  The quantum of the penalty is revised to $9,600, payable over 24 instalments of $400 each by the appellant.  The first payment is due by 15 July 2022. The remaining 23 instalments are due by the 15th day of each month commencing on 15 August. 

Mr Hui Man Nok, Matthew, Public Prosecutor of the Department of Justice, for the respondent.

Appeal against Conviction: The appellant acting in person.

Appeal against Sentence: Mr James L. W. Wong, instructed by Tang, Lai & Leung, solicitors, assigned by the Legal Aid Department.

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