Non-dispersable gatherings
28 April 2020
This will hopefully soon become an academic point regarding a lapsed Regulation (see yesterday's article), but it is worth pushing back against the ludicrous interpretation by the Police and the Secretary for Justice of Regulation 599G (R599G, Prevention and Control of Disease (Prohibition on Group Gathering) Regulation), currently due to expire at the end of 7-May-2020.
In an announcement on Sunday (26-Apr-2020), the Police stated:
"Rumours suggest that there is no violation of the regulation under Cap.599G as long as a person participates in a public event in a group of no more than four persons and such group distances itself 1.5m from other persons participating in the same event. Police sternly clarify that as long as the persons gather for a common purpose in public place, it is irrelevant whether the participants have kept a distance of 1.5m from each other or between each small group of four; such public event consisting of more than four persons is still a prohibited group gathering and all the participants will commit the offence under Cap.599G." (our bold)
And at a media briefing yesterday, Teresa Cheng Yeuk Wah, the Secretary for Justice (SJ) answered (video here):
"you were talking about the Cap. 599G regulation. Generally, insofar as the public gathering idea is concerned, it means that people gather together for a common purpose and whether that is met will depend on a number of circumstances of a particular case. For example, whether they were so organised; whether they were discussing and proceeding in an interactive and connected way..." (our bold)
Allow us to "sternly clarify" that in our view, the Police and SJ are talking utter rubbish and are conflating two separate and unrelated laws.
Section 2 of R599G defines "group gathering" as "a gathering of more than 4 persons", but does not contain a definition of a "gathering". However, a definition can be inferred from Section 10, which allows an authorized officer to disperse a gathering if it is a "dispersable gathering" which it defines as follows:
"For subsection (1)(b), if the distance between any participant of a gathering in a public place and any participant of another gathering in the place is less than 1.5 m, and the total number of participants of the gatherings is more than 4, then each of the gatherings is a dispersable gathering." (our bold)
This clearly implies that there can be multiple gatherings (each of 4 or less) in the same place, but they are not dispersable unless they are less than 1.5 metres apart. It refers to "gatherings" in the plural. It logically follows from this that a "gathering" must involve people who are each less than 1.5 metres from at least 1 other member - even if they are stretched out in a line.
This is also consistent with the directions issued by the Secretary for Food and Health under Regulation 599F, which requires restaurant tables to be spaced by at least 1.5 metres or to have "some form of partition which could serve as an effective buffer".
We must "sternly clarify" that neither of these Regulations contains any reference to a "common purpose" as the Police and the SJ fancifully imagine. The virus doesn't care what your purpose of being somewhere is, nor does it care whether people at two neighbouring tables, or at two neighbouring gatherings, know each other, or have agreed to be nearby at the same time. What matters is the separation between groups of 4 or less, in a restaurant or in a space, to reduce the risk of virus transmission. These emergency Regulations are made under Section 8 of the Prevention and Control of Disease Ordinance (PCDO), and they can only be made:
"for the purposes of preventing, combating or alleviating the effects of the public health emergency and protecting public health."
Obviously, the intent or purpose of people in gatherings is irrelevant to the question of whether their activity endangers public health. If the Police want to investigate other offences, such as "unauthorized assembly" under Section 17A of the Public Order Ordinance (POO), then they can do so. Under the POO, the existence of a "purpose" or "common purpose" is relevant to the determination of whether a "meeting" or "public gathering" is taking place, but it is entirely irrelevant to R599G, and to suggest otherwise is to mislead the public. Both the Police and SJ should retract their statements.
We note that both the SJ and the Chief Executive in her briefing today raised the issue of strangers queueing for a bus or boarding an elevator as an example of lacking a common purpose. In fact, R599G does envisage that to be a group gathering, because it was deemed necessary to exempt "group gathering for the purposes of or related to transportation" in Schedule 1.
People in gatherings should be in compliance with, and non-dispersable under, R599G if no gathering exceeds 4 and if each gathering is at least 1.5 metres from another gathering. Interestingly, Israel has introduced similar regulations, and a protest against their Government was held in Tel Aviv in compliance, with everyone standing 2 metres apart on a square grid.
A square grid isn't optimal, by the way: you can pack in an extra roughly 15% (2/SQRT(3)) if you stand on a triangular grid, so that each person (or gathering), apart from the edge-cases, is equidistant to 6 other people. Just pick 2 other people and stand on the corner of an equilateral triangle with them, and your grid will self-assemble. And yes, if you stare at it hard, you should see something recognisable to most Israelis.
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