In FLFS 13-14/2022, Mr Gordon Chan prosecuted a case of breaching the “mask mandate” involving a woman and her maid. At trial, the issue turns to whether they have a reasonable excuse of exercising.
“Failing to Wear Mask in Specified Public Place” is an offence contained in regulations 5A and 6 of the now-expired Prevention and Control of Disease (Wearing of Mask) Regulation (Cap 599I). It was an offence to enter or be present at a specified public place without wearing a mask. However, a person may rely upon reasonable excuses for not wearing a mask. One such reasonable excuse is of exercising:
5A(3) … a person has a reasonable excuse for not wearing a mask … if the person is engaged in any physical activity (including exercise) that may reasonably be regarded as strenuous for him or her, in a place that is not indoor.
Exercising outdoors is thus only part of a successful defence. The more complicated part is whether the exercise is objectively strenuous for that person. In this case, both defendants claimed that they were having a walk while a police officer observed them to be walking slowly and stopping intermittently.
Since the word strenuous is not defined in the regulation, The term must be understood by its plain dictionary meaning, which in the Cambridge dictionary means “needing or using a lot of physical or mental effort or energy“. The dictionary also translated “strenuous exercise” as “劇烈運動” (which conveyed a meaning of vigorousness).
Viewed from this perspective, taking a stroll is not a strenuous exercise. The defendants were found guilty.
Regulatory offences may appear trivial, but it often involves a detailed analysis of legal issues.
Gordon Chan, Esq
Barrister-at-law, Archbold Hong Kong Editor on Public Health, and Member of the Bar Association's Committee on Criminal Law and Procedure. Specialised in medical, technology and criminal law.
