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FAMC No. 50 of 2022
[2023] HKCFA 30
IN THE COURT OF FINAL APPEAL OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
MISCELLANEOUS PROCEEDINGS NO. 50 OF 2022 (CRIMINAL)
(ON APPLICATION FOR LEAVE TO APPEAL FROM
HCMA NO. 187 OF 2021)
________________________
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BETWEEN
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HKSAR
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Respondent
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and
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KWOK WING KIN (郭永健) (D1)
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1
st
Appellant
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(1
st
Applicant)
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HO STANLEY WAI HONG (何偉航) (D2)
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2
nd
Appellant
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(2
nd
Applicant)
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WONG HO MING RAPHAEL (黃浩銘) (D3)
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3
rd
Appellant
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TSANG KIN SHING (曾健成) (D4)
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4
th
Appellant
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MAK TAK CHING (麥德正) (D5)
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5
th
Appellant
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(3
rd
Applicant)
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NG MAN YUEN AVERY (吳文遠) (D6)
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6
th
Appellant
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LEE CHEUK YAN (李卓人) (D7)
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7
th
Appellant
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(4
th
Applicant)
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LEUNG KWOK HUNG (梁國雄) (D8)
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8
th
Appellant
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________________________
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Appeal Committee:
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Mr Justice Ribeiro PJ, Mr Justice Lam PJ and Mr Justice Tang NPJ
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Date of Hearing and Determination:
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4 September 2023
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Date of Reasons for Determination:
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7 September 2023
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______________________________________
REASONS FOR DETERMINATION
______________________________________
Mr Justice Ribeiro PJ:
1.
At the hearing, we dismissed this leave application for reasons which we now provide.
2.
On 1 May 2020, about three months after the first case of COVID-19 was reported in Hong Kong, eight persons decided to stage a May Day procession from Admiralty Centre to the Central Government Offices to demand unemployment benefits and to protest against COVID restrictions on public gatherings affecting freedom of demonstration.
3.
After ignoring repeated police warnings, they were charged with participating in a prohibited group gathering contrary to section 6 of the Prevention and Control of Disease (Prohibition on Gathering) Regulation (“
the Regulation
”)
[1]
which had come into operation on 29 March 2020, having been issued by the Chief Executive in Council as a public health emergency regulation pursuant to section 8 of the Prevention and Control of Disease Ordinance.
[2]
4.
The Regulation’s object was to ban “group gatherings” for the purpose of “preventing, protecting against, delaying or otherwise controlling the incidence or transmission of” the COVID-19 virus.
[3]
Section 3 provided that “No group gathering may take place in any public place during a specified period”.
[4]
“Group gathering” was defined as “a gathering of more than four per
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