Former District Councilor Accused of Breaching Social Distancing Measures Dismissed on Appeal

Judge: Analysis of trial magistrate 'rather puzzling'

Lance Yan Pui-lam, former member of Tuen Mun District Council Siu Chui constituency, was convicted earlier of violating the "social distancing measures" and was sentenced to 80 hours of community service. On appeal, the High Court ruled on Dec. 16, 2022, to revoke Yan’s conviction and sentence. Yan Pui-lam IG

A former Hong Kong district councilor, Lance Yan Pui-lam, was convicted of violating the “social distancing measures” earlier and was sentenced to 80 hours of community service. He appealed to the High Court against his conviction. The High Court ruled on Dec. 16 in favor of Yan and overturned the earlier sentence and penalty on him.

During the past three years of the COVID-19 pandemic in Hong Kong, “social distancing measures” were often used to restrict people’s freedom of movement and were also used by the Hong Kong government to suppress dissidents that the CCP dislikes.

Why Target Yan?

In the 2019 district council elections, candidates from the anti-extradition movement and the pan-democratic parties won 86 percent of the publically elected seats in the Hong Kong district council elections. This landslide victory by the democratic camp upended the traditional balance of power in the district councils, being manipulated until then by the CCP after the transfer of sovereignty.

But in the ensuing year or two, most of the pan-democratic district councilors were either disqualified by the government or suppressed with various crimes.

Lance Yan Pui-lam was one of them.

In the 2019 election, he defeated a prominent pro-communist lawmaker running for re-election. He was injured by pro-communist elements when setting up a street stand in November of the same year and was once; a riot policeman pointed a long-barrelled gun at his head.

Accused of Violating the ‘Social Distancing Measures’

On July 20, 2020, he was accused of confronting the management company in the elevator lobby of a residential building in his constituency during the outbreak of the 3rd wave of the pandemic about the confirmed cases of COVID-19 in the building and its follow-up arrangements. Other accusations include questioning residents without first posting notices and causing disturbance and annoyance on site.

He was later charged with one count of “breaching a government ban on gathering in public” and was convicted by Tuen Mun Court Magistrate Henry Fung Nim-wai on Nov. 1, 2021.

High Court Judge: Original Trial Verdict ‘Puzzling’

Yan’s side challenged the magistrate court judge during the appeal that he wrongly ruled the lobby to be a public area. The judge of the original trial believed that the use of passwords to enter the lobby was just a security measure, and the public could still freely enter the lobby area on foot.

On appeal, Mr. Justice Joseph Yau Chi-lap of the High Court believed that the decision from the trial court magistrate was “rather puzzling” and that there was no reason to interpret the elevator lobby of the building involved as a public place.

“Obviously, it [a password] is just to prevent ineligible people from entering the lobby,” he said. He cannot understand the basis on which the trial judge believed that even with these security measures, the public can still enter the lobby without the approval of the security guards.

In addition, the magistrate of the original trial cited two types of public personnel, food delivery people and postal workers, as being allowed to enter the elevator lobby.

The High Court judge considered that turning the lobby into a public place simply by allowing the delivery staff to enter “would have very dangerous consequences.”

Judge Accuses the DoJ View ‘A Little Bit Unfounded’

The trial magistrate and the Department of Justice (DoJ) pointed out that if the elevator lobby is not interpreted as a public place, people can gather without wearing masks, which greatly increases the risk of spreading the pandemic.

Justice Yau thinks that this view is “a little bit unfounded” and believes that apart from the residents of the building and their visitors, there are really very few people who have access to the lobby. “Experience tells us that the situation of residents gathering in the elevator lobby is extremely rare. Even when waiting for the elevator, you seldom find people not wearing a mask.”

After considering all the circumstances, Justice Yau allowed Yan Pui-lam’s appeal, and his conviction and sentence were revoked.