I committed a trivial breach of quarantine, do I have to go to prison for it? – A case study on breaches of quarantine under the COVID-19 pandemic23Feb2021
COVID-19 struck Hong Kong in early 2020. More than a year later, it is still affecting the lives of many on multiple levels.
As a way to control the spread of the virus, the Government of Hong Kong has enacted and updated legislation since March 2020. This includes the Compulsory Quarantine of Certain Persons Arriving at Hong Kong Regulation (Cap. 599C), which provides that anyone who has stayed in places outside China during the 21 days before entry into the city has to undergo compulsory quarantine in a specific list of hotels, or previously at their respective homes for 21 days.
Breaching the mandatory quarantine could see a person liable for a fine of HK$25,000 and imprisonment for 6 months. In sentencing breaches, the Courts have adopted a harsh short immediate prison sentence as a starting point to reflect the Government’s resolution in its fight against the spread of the virus.
In practice, however, the inflexibility of the rules and the attitude of the Health Authority and the Courts have led to many who committed trivial breaches to be sentenced to imprisonment.
Many of the cases we will discuss below can be differentiated from those who deliberately fled the hospital after testing positive with the virus or those who blatantly left their homes for a meal outside or to socialise simply because they were bored of quarantine life. Yet they face the same consequence in terms of a criminal record, fine and imprisonment.
Having witnessed various cases, it prompted us to ask: do these people really deserve a prison sentence, especially when they had tested negative for COVID-19 at the airport, and were allowed to travel home on public transport? As matters stand, the legislation imposes a strict liability.
A mother with two young children asked for laundry services at the hotel in which they were placed under quarantine. The hotel refused to provide the service, as some hotels are precluded from doing so. For hygienic reasons, the mother put the family’s dirty laundry into a large suitcase, which she then placed in the corridor outside her room.
CCTV footage shows her placing the suitcase outside the room and on three other occasions placing dirty laundry into the suitcase. On no occasion did she step fully into the corridor and each time she opened the door she checked up and down to see if anyone is present.
A Hong Kong resident returned to Hong Kong from her father’s funeral. When she entered her pre-booked room at the hotel she was due to quarantine in, she found many booked items missing, including an exercise bike. She tried to telephone the reception but was unable to activate the telephone. She went down to the reception area where she had been only moments before to remedy the defects with her room.
On both occasions the hotel staff reported immediately to the authorities. The women were forcibly removed from the hotel and taken to a quarantine camp. They were arrested and transferred by a number of police and Health Department officers.
Both cases are in progress, pending the determination of the Health Authority as to whether they will be charged.
A freight airline pilot had returned to Hong Kong from his holiday to resume employment in March 2020. He was tested negative at the airport and then given his monitoring wristband. He was permitted to travel on the Airport Express and to walk from Central station to his flat in Central. When he arrived home, the wristband had not yet activated.
Having been away for a while, he had an empty fridge and no food at all. Wearing a mask, he went to the supermarket downstairs of his flat to buy essentials before the wristband activated.
Someone in the supermarket had seen that he was wearing the wristband and had reported him to the Police. He was arrested, charged, and sentenced to 10 days imprisonment. If he had gone to the supermarket before he returned home he would not have committed the offence.
An appeal of the sentence has been lodged.
A father arrived in Hong Kong with his wife and two young children. He took a taxi with one child to return home from the airport, while his wife and another child took another taxi to fit all the luggage. After getting off the taxi, he took his child and luggage up to his flat and then returned to the foyer to help his wife and other child to carry the luggage.
The security guard, seeing him out of his flat, reported him to the Police. The matter was dealt with by way of a bind over but only after he had been summonsed to court for the breach and had the stress of the matter hanging over him.
A passenger airline pilot went upstairs from his flat where he was placed under quarantine to a shared roof top garden to exercise halfway through his quarantine. He was witnessed doing this on two occasions. He was fined for each breach.
How we can help
Tanner De Witt is experienced in handling criminal matters, including liaising with the Hong Kong Police, the Health Authority and the Department of Justice, for cases to be dealt with alternative to a criminal conviction. We have built up considerable experience on handling cases under the COVID-related legislation, including issues such as breaches of quarantine and separation of families at the airport.
Disclaimer: This publication is general in nature and is not intended to constitute legal advice. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.