KWOK CHEUK KIN v. SECRETARY FOR HEALTH

HCAL 1054/2022

[2022] HKCFI 3225

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1054 OF 2022

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J U D G M E N T

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A.   Introduction

1.  A Government minister gets his or her legal powers from legislation – and not from an announcement made in a press release.

2.  The question which arises in these judicial review proceedings is whether the impugned decision of the Secretary for Health announced in a press release (“Decision”) was lawfully within his powers as granted by legislation.

3.  The Secretary now says that the Decision announced in the press release was only an “administrative decision”.  If that is intended to support an argument that the Secretary does not need a legal power to do what he has decided to do because it was only an “administrative decision”, it would not be my instinctive reaction to think that is the answer to the challenge.  This can be properly explored below.

4.  But, to be fair, the Secretary accepts that the focus of the present inquiry should be on the subsequent Directions (as defined below), which he says put into effect the Decision announced in the press release and invoked specific powers to do so.  When he does so, I accept that the Secretary fairly acknowledges that it is appropriate for the Court to review the question of legality which has arisen, and that he is not seeking to avoid that review.  That focus still requires consideration as to whether it was within the Secretary’s lawful powers to issue those Directions, and so to have made the Decision.

5.  I gave leave to apply for judicial review on 10 October 2022, and the matter came before the Court on 11 October 2022.  At that hearing, I gave directions to bring this matter to the substantive hearing, and I granted interim injunctive relief pending the determination of the substantive application.

6.  I explained my reasons for doing so in my Reasons for Decision dated 11 October 2022, [2022] HKCFI 3150.  Necessarily, I identified what I thought to be a strong argument as would justify the grant of interim relief.  However, I did so of course so as to facilitate, but without prejudice to, the argument on the substantive application.  This is not an appeal from my previous decision, and I approach the substantive hearing afresh with the benefit of full argument.

7.  That argument was conducted on behalf of the Applicant by Mr Hectar Pun SC, leading Mr Anson Wong Yu Tat and Mr Jonathan Ip of Counsel.  Mr Pun and Mr Wong act with the benefit of a legal aid certificate issued to the Applicant, and Mr Ip acts pro bono (with my permission, if that is required).  The argument on behalf of the Secretary has been conducted by Mr Abraham Chan SC (appearing remotely by VCF), leading Mr John Cheung of Counsel (who was present in Court).

8.  At the end of the hearing, I reserved my decision for one day.  This is my Judgment.

B.    Background

9.  In my previous Reasons for Decision, I set out some of the background leading to the present challenge.  I think it would be helpful in this Judgment broadly to repeat that background, with certain additions coming from further evidence since filed.

10.  I do not think it necessary to rehearse the background to the making of the various COVID-19 related regulations.  But it is well known that one of the regulations relates to the legal framework and implementation of the “Vaccine Pass”.  In my Decision in Law Yee Mei v Chief Executive of Hong Kong SAR [2022] HKCFI 688, I acknowledged that the Vaccine Pass regime pursues the legitimate aim of protecting public health, which includes a proper desire to boost vaccination rates so as to reduce cases of death or severe illness, and in turn to safeguard the public health system.

11.  The present proceedings relate to certain Medical Exemption Certificates (“MECs”), of the kind which can be issued by doctors in the context of the Vaccine Pass regime.  The Secretary’s evidence states that, according to overseas and local experience and research, the vast majority of Hong Kong residents are suitable to receive the two COVID-19 vaccines which are currently available in Hong Kong.  The Interim Guidance Notes issued to doctors identifies that MECs should be issued following a proper and genuine clinical assessment, and doctors should also follow their professional Code of Conduct.

12.  In September 2022, the Secretary became aware that seven private doctors (“7 Doctors”) were suspected of issuing around 20,000 ‘questionable’ MECs (“Questionable MECs”).  This led to an internal risk assessment conducted by the Health Bureau and the Department of Health, involving primarily: (1) to determine whether there was actually any reasonable basis to suspect that the MECs were improperly issued by the 7 Doctors, i.e. without proper clinical assessment; and (2) if so, to determine whether any act and what act should be taken regarding the Questionable MECs for the purposes of public health protection.

13.  Investigation revealed that the 7 Doctors had issued a disproportionately high amount of all of the MECs issued, and even a high number each day.  For example, the maximum daily count of MECs issued by one of the 7 Doctors was 382, implying an average 48 MECs issued per hour (on an assumed 8-hour working day), though another of the 7 Doctors issued only a maximum 8 MECs per hour (again assuming an 8-hour working day).  Of the 20,000 MECs issued by the 7 Doctors between April and September 2022, some of them are still within the validity period.  On updated information, I am told that almost 16,000 of the Questionable MECs would expire by the end of November 2022.

14.  In any event, in the circumstances, it was felt that there was a reasonable basis for the Secretary to form the view that the Questionable MECs were “dubious” and that action should be taken.  At the same time, the Secretary fully understood that some of the MECs may be genuine and the holders may have valid reasons for exemption.  The view was also taken that time was of the essence, and that prompt action should be taken to address the questionable MECs.

15.  On 27 September 2022, the Government issued a press release to announce follow-up arrangements for suspected abuse in the issuance of MECs.  The first paragraph of the press release said in terms:

Regarding individual private doctors suspected to have failed to provide proper medical consultation to patients in accordance with the guidelines of the Department of Health (DH) and abused the issuance of COVID-19 Vaccination Medical Exemption Certificates, the Government announced today (September 27) that all Medical Exemption Certificates issued by the private doctors concerned will not be accepted and will be invalidated from October 12 onwards.  Members of the public who hold a Medical Exemption Certificate issued by the private doctors concerned may consult other doctors depending on their needs to determine whether they are suitable for receiving COVID-19 vaccination, or may continue to be medically exempted.

16.  Further, the press release also stated in terms:

Having considered that the citizens concerned may need time to consult other doctors, the Medical Exemption Certificates issued by those seven private doctors will be deemed invalid from October 12 onwards.

17.  On its face, the press release states that a decision has already been taken that the relevant medical exemption certificates “will be invalidated”, and “will be deemed invalid”, as from 12 October 2022.  The press release does not identify any legal power under which it is suggested that such a decision might have been taken or how the deeming of invalidity might take effect.

18.  In the evidence filed for the Secretary, emphasis is sought to be placed on the words in the press release that the MECs “will not be accepted”, and it is suggested that:

The choice of words, including “invalidate” or “invalid” should not be understood in the strict legal sense.  It is merely a practical and convenient shorthand, to express the Secretary’s intent of not recognising the Questionable MECs under the Vaccine Pass regime.

19.  It is also suggested in the evidence that the Decision notified in the press release was “no more than an administrative act to inform the general public of the Government’s intention to not recognise the Questionable MECs from 12 October 2022 onwards”, and that it reflected the Secretary’s “inclination not to allow the Questionable MECs to be used as an effective means to gain entry to specified premises”.  Elsewhere in the evidence, it was said that the press release:

was an administrative decision to announce broadly the Government’s concern and position, and to forewarn the relevant MECs holders pursuant to the Secretary’s powers set out [in the affirmation] above, allowing them sufficient time to obtain a fresh MEC.

20.  I regret to say that these points seem to me to be an attempt to play with words and to rewrite the historical narrative.  Whilst I have accepted that the Secretary has not sought to avoid judicial scrutiny of the relevant decisions, the presentation of evidence seems to me to be ‘slanted’ for a particular line of intended legal argument.  In short, contrary to the impression in the evidence:

(1)  The press release identifies that the Secretary did not merely have an “inclination”.  He had decided, and it was announced unequivocally, that the MECs “will not be accepted and will be invalidated” and that they “will be deemed invalid”.

(2)  There is also no need to worry about any strict legal sense of words; the clear ordinary sense of the words is obvious.

(3)  Indeed, the reason why the MECs “will not be accepted” or will not be recognised under the Vaccine Pass regime is – as the press release says expressly – because they “will be invalidated” or “deemed invalid”.  If they were to remain valid, there would be no reason to refuse to accept or recognise them.

(4)  Further, as already stated, there was also no reference whatsoever to any powers pursuant to which the decision (“administrative” or otherwise) had been made.

21.  At the hearing, and apparently in a further attempt to put some distance between the Secretary and the use of references to “invalidity”, Mr Chan sought to draw some support from the Chinese version of the press release.  With respect, I do not think that helps him.

22.  I can set out in a table the corresponding parts of the English and Chinese version of the press release (with the relevant words or Chinese characters in bold and underlined):

…the Government announced today (September 27) that all Medical Exemption Certificates issued by the private doctors concerned will not be accepted and will be invalidated from October 12 onwards.	政府今日（九月二十七日）公布，所有由相關私家醫生簽發的醫學豁免證明書將不獲接納，並會由十月十二日起失效。
According to the eHealth records, the seven private doctors aforementioned have issued in total over 20 000 Medical Exemption Certificates which are still within the validity period, accounting for more than half of the Medical Exemption Certificates that are still valid.	根據「醫健通」紀錄，上述七名私家醫生合共發出二萬多張仍在有效期內的醫學豁免證明書，佔所有仍然有效的醫學豁免證明書超過一半。
the Medical Exemption Certificates issued by those seven private doctors will be deemed invalid from October 12 onwards	由該七位私家醫生簽發的醫學豁免證明書將由十月十二日起被視為無效。
If a member of the public is found to have used an invalid or fraudulent Medical Exemption Certificate upon verification, the relevant information will be passed to enforcement departments for follow-up.	如經查核後，有市民被發現使用無效或虛假的醫學豁免證明書，有關資料會被轉交執法部門跟進。明知而使用虛假文書可能觸犯《刑事罪行條例》。

23.  Mr Chan seemed to suggest that the words “validity” or “invalidity” did not best reflect the Government’s intention (and, he said, may have caused unnecessary confusion).  The Government’s intention, as he suggested, was better reflected in the Chinese text.  He said “失效” means “to lose effect” and, as he would submit, other phrases with the character “效” should similarly be understood by reference to “effect”.

24.  First, as I indicated in the hearing, it is not entirely clear to me how moving away from the word “validity” or “invalidity” could assist the Government. Regardless of the exact words used – for example, “to be of no effect” rather than “be deemed invalid” – the substance of the press release remains the same.  The Government decided and announced that certain MECs which would otherwise have the effect conferred on them by sections 5 and 17 of Cap 599L will be of no such effect.   It would still fall to the Government to satisfy the Court that a power permitting that could be found in Cap 599L or the other subsidiary legislation, as they now stand.

25.  It may not require particular cynicism to think that the attempt to move away from the word “invalidity” is an attempt to minimize the Decision’s potential conflict with section 17. If that is the aim, that surely cannot be achieved by relying on the Chinese text of the press release.  Indeed, insofar as “validity” is concerned, the bilingual texts of the press release mirror the bilingual texts of section 17. In fact, “valid” and “有效” as used in the press release might have been directly taken from section 17: and see further, below.  This tends to identify the wording used described precisely what the Secretary announced he had decided to achieve, namely making invalid some MECs which would otherwise be valid – and to do so earlier than their validity would otherwise expire.  Indeed, the press release tends to identify the Secretary’s understanding that the MECs are still valid as being within the validity period, but he nevertheless wants to deem them invalid before the end of that period.

26.  I do accept that the Government was mindful of the fact that holders of Questionable MECs might be concerned (or would be uncertain) as to how they could obtain replacement certificates.  On 29 September 2022, the Health Bureau issued a press release in response to media enquiries on how individuals who hold a COVID-19 Vaccination MEC issued by a doctor suspected to have abused the issuance of such certificates can continue to obtain the relevant exemption. The advice was for those individuals to consult other private doctors, or to visit any general out-patient clinic (“GOPC”) under the Hospital Authority, to ascertain whether the individual concerned can continue to obtain medical exemption according to their clinical condition.  The advice was helpful on a practical level.  But, again, there was no reference to any power said to have been invoked for deeming invalid the certificates already in hand.

27.  It is public knowledge that on 3 to 5 October 2022, a legally-qualified legislator raised the question whether the Secretary had legal authority to invalidate the MECs, and asked that there might be an explanation of the legal grounds said to be relied upon.

28.  It is unfortunate that the legislator subsequently faced criticism for raising the question, as though to do so were somehow an attack on the Government.  First, the question has now been held to be at least strongly arguable and so might be thought to be one properly raised and addressed. Secondly, the question does not identify a choice between being ‘pro-Government’ or ‘anti-Government’; it identifies a distinction between what is lawful and what is unlawful.  Indeed, it might well be thought that responsible legislators (and others in positions of power and influence, even if not elected to those positions) should wish to ensure that the Government acts at all times in accordance with its lawful powers, and thereby promotes and maintains the rule of law.

29.  On 6 October 2022, the Government issued a further press release identifying the announcement of further facilitation measures to assist individuals to obtain appropriate clinical assessment on whether they are suitable for receiving vaccination depending on their needs.  Amongst the measures was the waiving of the usual GOPC fees.  These measures were also helpful on a practical level. But, again, there was still no reference to any power said to have been invoked.

30.  On 7 October 2022, the Applicant commenced these proceedings asserting that the Secretary had no power which could be invoked to deem the relevant medical exemption certificates as invalid.

31.  In the morning of 10 October 2022, I granted the Applicant leave to apply for judicial review, and fixed the hearing for 11 October.

32.  At 20:00 hours (8pm) on 10 October 2022, the Government issued a further press release entitled ‘Medical Exemption Certificates suspected of abuse in issuance not to be accepted for purpose of Vaccine Pass starting October 12’.  The first two paragraphs of the press release read as follows:

According to an earlier announcement, seven private doctors are suspected to have failed to provide proper medical consultation to patients in accordance with the guidelines of the Department of Health (DH) and abused the issuance of COVID-19 Vaccination Medical Exemption Certificates (Medical Exemption Certificates).  The Government reminded members of the public today (October 10) that the use of the Medical Exemption Certificates concerned for the purpose of the Vaccine Pass will not be accepted starting from October 12. In other words, from that day onwards, no person is allowed to use the QR codes on the Medical Exemption Certificates concerned for entering premises subject to the Vaccine Pass.

To put the above arrangement in effect, the Government has issued directions in accordance with the Prevention and Control of Disease (Vaccine Pass) Regulation (Cap. 599L), specifying that Medical Extension Certificates issued by the seven private doctors involved (see Annex) will not be accepted for the purpose of the Vaccine Pass.  At the same time, the Government has issued directions in accordance with the Prevention and Control of Disease (Requirements and Directions) (Business and Premises) Regulation (Cap. 599F) restricting holders of invalid QR codes from entering catering premises and schedule premises, and requiring persons responsible for catering premises and schedule premises to restrict any persons presenting an invalid QR code from entering the relevant premises in accordance with the directions concerned.

33.  The directions mentioned in the press release (“Directions”) are to be found in three Gazette Notices GN (E) 893 of 2022, GN (E) 895 of 2022 and GN (E) 896 of 2022, gazetted at some point on 10 October 2022.  The Gazette Notices identified that the Secretary stated that he had exercised the powers conferred on him by sections 4, 6 and 8 of Cap 599F and section 3(1) of Cap 599L (as defined below).

34.  No explanation has been offered as to why the Directions – which the Secretary says were to put into effect the Decision previously announced – were not made, or could not have been made, much earlier than only one clear day’s notice from the date on which they were to take effect.

35.  Indeed, as I hinted in my previous Reasons for Decision, and upon further consideration, the chronology seems to me to identify with tolerable clarity that, at the time of the Secretary’s Decision announced on 27 September 2022, no specific legal power had yet been identified as permitting that Decision to be made.  It may well be that the existence of a power was simply assumed, until the identification of a legal power or legal powers as might actually permit that Decision to be made came into necessary focus as a result of the commencement of these proceedings and my grant of leave to apply for judicial review.

36.  As I also previously stated, the precise timing of the invocation of the power identified is unlikely to matter, where the question is whether that power in fact and in law provides a proper lawful basis for invalidating (or not accepting or recognizing) the relevant MECs.  That is why the proper focus is on the substance of the Decision as was announced and later also contained or carried into effect in the Directions, and the powers said to be those exercised in making that Decision and/or those Directions.

37.  Incidentally, for that reason, I shall not enter into any sterile debate as to whether it is the Decision announced in the press release or the content of the Directions which is the true subject-matter of the challenge.  It is common ground that the legality of both stands or falls together.

38.  But, as I say, the picture painted by the chronology is of a minister seeking, after the event, to identify a legal power as might justify a decision already taken and publicly announced – rather than of a minister who has, in advance, identified a legal power which might permit the decision he would like to take.  Such a ‘back-to-front’ approach may not engender a confident starting point.

39.  But, ultimately, the relevant question is a binary one: either the legal power exists, or it does not.

C.    The ‘Directions’

40.  As stated, the Directions are to be found set out in the Gazette Notices.

41.  As regards the Directions, Mr Chan submits that:

(1)  GN (E) 893 of 2022 was passed under Cap 599L, and is the “vaccine pass direction” regulating catering business premises and scheduled premises (as set out in Cap 599F).  Note 4 of the direction provides that the Questionable MECs will not be accepted for the purpose of the Vaccine Pass requirement.

(2)  GN (E) 895 of 2022 and GN (E) 896 of 2022 were passed under Cap 599F, and regulate catering businesses and scheduled premises respectively.  Notes 11 and 12 respectively provide that the Questionable MECs will not be accepted for the purpose of the Vaccine Pass requirement.

(3)  The combined effect is that the Directions ensure that in all premises for which an MEC might be used to gain access, that is no longer possible for a person holding a Questionable MEC.

42.  But it is helpful to look in a little more detail at GN (E) 893 of 2022.  Insofar as is material, the body of the Direction – or what might be regarded as the actual direction – is in the following terms (underline and bold in original):

Part (1):    Premises Subject to Active Checking of Vaccine Pass

I hereby exercise the power conferred on me by section 3(1) of the Prevention and Control of Disease (Vaccine Pass) Regulation (Chapter 599, sub. leg. L) (“the Regulation”) to issue, in relation to these premises subject to active checking of Vaccine Pass: -

[listed]

as defined in the Prevention and Control of Disease (Requirements and Directions) (Business and Premises) Regulation (Cap. 599, sub. leg. F), the following direction for the purposes of the Regulation to: -

(a)  require that every person who enters or remains on the premises to have received vaccine(s) for the coronavirus disease 2019 (COVID-19 vaccine) (the (Vaccine Pass requirements”) in the manner specified in Annex 1 ^{[Note 1]}, unless he/she is exempted from the Vaccine Pass requirements ^{[Note 2]}, to carry at all times his/her COVID-19 Vaccination Record (“Vaccination Record”) ^{[Note 3]} or COVID-19 Vaccination Medical Exemption Certificate (“Exemption Certificate”) ^{[Note 4]} (as applicable), and to show it for inspection by the person-in-charge of the premises (“person-in-charge”) and on the request of an authorised officer;

(b)  require the person-in-charge ^{[Note 6]} to inspect the relevant Vaccination Record or Exemption Certificate (as applicable) of any person entering or remaining on the premises to ensure that the person meets the Vaccine Pass requirements or is exempted from the Vaccine Pass requirements; …

43.  When looking at the relevant legislation in Cap 599L – see below – it will be seen that paragraph (a) corresponds to sections 5(1) and 5(2), and paragraph (b) corresponds to section 7(1) and section 8(1).

44.  Note 4 to paragraph (a) – relating directly to section 5(2) and section 17 – reads as follows:

Note 4:

COVID-19 Vaccination Medical Exemption Certificate refers to the certificate issued by a registered medical practitioner to a person who was assessed as medically unsuitable for vaccination by the practitioner, pursuant to the arrangements for issuing such a certificate as specified by the Department of Health.  For the purpose of Vaccine Pass, only Exemption Certificate with a QR code issued by registered medical practitioners other than the following [i.e. the 7 Doctors] is accepted.

45.  Notes 11 and 12 respectively of the other two Directions are in similar terms, that for the purpose of Vaccine Pass only a MEC with a QR code issued by registered medical practitioners other than the 7 Doctors is accepted.

46.  In his submissions, Mr Chan emphasises that in terms of substantial and legal effect the Directions operate as administrative measures dealing specifically with the status of the Questionable MECs in the context of the vaccine exemption system.  He says they literally operate as directions to those in charge of regulated premises to not recognise/accept the Questionable MECs as being valid exemptions made in accordance with the existing statutory regime.

47.  But, I do not think that is either full or correct.  First, it is obvious that the effect of the Notes in the Directions is, as was announced in the press release, to invalidate all of the Questionable MECs.  Secondly, the fact is that it is only by Note 4 – a footnote to the actual direction which corresponds to the legislation – that there is the creation of an exception to what is otherwise the requirement specified in the body of the Direction.

48.  The relevant requirement is that a person should carry his or her MEC and show it for inspection to the person-in-charge or any authorised officer.  The obvious reason for that requirement is that holding a MEC is an alternative to, and indeed an “exemption” from, the requirement otherwise for a person to carry his or her Vaccination Certificate.  That is in accordance with the provision in section 5(2) of Cap 599L.

49.  Note 4 seeks to place a limit on that requirement, in the sense that it creates an exception relating to those MECs issued by the 7 Doctors (and only to the MECs, and all of them, issued by those doctors).  As will be seen below, I think that is tantamount to seeking to amend section 5(2) by way of a footnote.

D.    The Approach to Statutory Interpretation

50.  There are probably few pieces of legislation in the Laws of Hong Kong where the general population would know of or use the Chapter Number.  But, anecdotally, it seems that enormous numbers of people know about “Cap 599”.

51.  This is not surprising.  There must be extremely few laws that have ever had such a significant, long-term and wide-ranging impact on almost every aspect of a citizen’s ordinary and everyday life.  Cap 599 and its subsidiary legislation has affected – and has often severely hindered or restricted, and sometimes entirely curtailed – shopping; eating; drinking; education; travel; public entertainment; trade; sport and sporting events; religious practice; medical care; fitness and exercise; personal care and grooming; where you can go; when you can go there; who you can meet; when you can meet; how many you can meet; how many can gather, even outside; what you must do before you go to certain places; what you must do when you arrive; what you must do after you leave; and more.  Cap 599 has extended even into the privacy of your own home.

52.  Hence, it seems to me that an instinctive starting point when construing such legislation to see what powers it grants (and implicitly what powers it has not granted) is to assume that – whilst wishing to address the public health emergency with vigour – the legislature intended the minimum possible interference with the ordinary citizen’s daily life, and only where clearly identified by the creation of a power permitting that interference.

53.  As it happens, though not as a ‘starting point’ as such, that instinctive view is entirely in accord with, and forms a part of, the ordinary principles as to construing legislation.  Those principles of statutory construction are well-settled and can be summarised as follows (omitting references to authority):

(1)  Statutory construction is an iterative process.

(2)  Statutory words are construed in their context and purpose.

(3)  The words are given their natural and ordinary meaning with context and purpose to be considered alongside the express wording, from the start and not merely at some later stage when an ambiguity is thought to arise.

(4)  Context includes not only the documentary context, but also wider matters, including purpose, practicalities, common sense, the existing state of the law, any Explanatory Memorandum, and any authoritative statement to the Legislative Council.

(5)  Part of the context also includes that interference with established rights and principles recognised by the common law should be expressed in clear terms.

(6)  It is important that a purposive and contextual interpretation does not mean that the actual words of the statute can be disregarded.  In other words, it is not possible to give a provision meaning which the language of the statute, understood in light of its context and purpose, cannot bear.

(7)  Hence, when construing an Ordinance, the Court is an interpreter not a legislator.

(8)  In particular, Courts should not allow distortion or ignoring of the plain meaning of the text so as to construe the statute in whatever manner achieves a result which is considered desirable.

(9)  Where there is a conflict between general and specific provisions, the specific provisions prevail.  This is one aspect of the more general principle that legislative instruments must be read as a coherent whole.  This is why a power conferred in very general terms cannot be relied on to defeat the intention of clear and particular statutory provisions.

54.  It may, in the context of this case, be worth expanding slightly on the last point.  The point is sometimes looked at from different ends: “special provisions override general ones” or the converse “general provisions do not override special ones”.   But because statutory interpretation is an iterative process, it may not matter from which end the analysis starts.  The key point is that where there is a conflict between general and specific provisions, the specific provisions prevail.   The specific provision must be operative, and the general provision must be taken to affect only the other parts of the statute not covered by the specific provision.  This is not a technical rule of statutory construction, but merely represents simple common sense and ordinary usage.  It reflects the sentiment that if the legislature has enacted specific provisions to govern a particular subject matter, then it is to be taken that the legislature intended that the same subject matter will not be governed by other more general provisions.

55.  Another point worth expanding is that interference with established rights and principles recognized by the common law should be expressed in clear terms.  Regulations made under section 8(1) of Cap 599 give rise to substantial intrusion into personal rights and freedom, as traversed above.  Those rights and freedoms are deeply rooted in our common law system.  Legislature is – and should be – taken not to intend to remove those rights and freedoms, unless expressed in clear terms.

E.    The Legislation

56.  “Cap 599” is the Prevention and Control of Disease Ordinance Cap 599. For present purposes, reference can be made to section 8, which provides as follows:

8.  Public health emergency regulation

(1)   On any occasion which the Chief Executive in Council considers to be an occasion of a public health emergency, he may make regulations (the regulation) for the purposes of preventing, combating or alleviating the effects of the public health emergency and protecting public health.

(2)   The Chief Executive in Council shall review from time to time, or cause to be reviewed from time to time, the public health emergency in respect of which the regulation is made.

(3)   Without limiting the generality of subsection (1), the regulation may provide for—

(a)  requirements on a person to disclose or furnish any information that is relevant to the handling of a state of public health emergency;

(b)  the disclosure to the public by a public officer of any information that is relevant to the handling of a state of public health emergency;

(c)  the requisitioning of property and matters relating to compensation for such requisition;

(d)  matters relating to the appointment of any person to act as a medical and health professional, the control of such appointed person, and the deeming of such appointed person to be registered under any enactment; and

(e)  such incidental and supplementary matters as appear to the Chief Executive in Council to be necessary or expedient for the purposes of the regulation.

(4)   The regulation may provide that a contravention of any provision of the regulation is an offence punishable with a fine not exceeding level 5 and a term of imprisonment not exceeding 6 months.

(5)   In this section, public health emergency (公共衞生緊急事態) means—

(a)  the occurrence of or the imminent threat of a disease, an epidemic or a pandemic;

(b)  the occurrence of a novel, or highly infectious, agent or matter; or

(c)  the widespread exposure or the imminent threat of widespread exposure of human beings to an infectious agent,

that has a high probability of causing a large number of deaths in the population or a large number of serious disabilities (whether or not long-term) in the population.

(6)  For the purposes of a regulation made under subsection (3)(c), property may be requisitioned—

(a)  by requiring a person to place it either temporarily or permanently at the disposal of the public officer requisitioning it; or

(b)  by the public officer requisitioning it taking possession of it either temporarily or permanently.

57.  Though perhaps not central to the material consideration in this case, it can be noted that what is a “public health emergency” is defined in section 8(5), and that section 8(2) requires the Chief Executive in Council to review the public health emergency from time to time.  It would seem obvious that is at least in part to see if a public health emergency falling within the definition continues to exist and/or if any given regulation should be amended or withdrawn.  One reason is that it can be anticipated – and, certainly, it would be hoped – that, even if the relevant occurrence continued, the “probability of [that occurrence] causing a large number of deaths … or a large number of serious disabilities … in the population” would cease to be “high”.

58.  This seems to me to recognise two features:

(1)  a “public health emergency” is a very serious threat to public health, and it would be expected that the regulations do their utmost to allow the Government to prevent or alleviate the consequences;

(2)  but, at the same time, it is only such a serious threat to public health that might justify the likely content of regulations, and only to the minimum extent (in terms of time and impact) reasonably sufficient to achieve the aim.

59.  For present purposes, the two relevant Regulations as have been made under section 8 of Cap 599 are:

(1)  the Prevention and Control of Disease (Requirements and Directions) (Business and Premises) Regulation Cap 599F (“599F”); and

(2)  the Prevention and Control of Disease (Vaccine Pass) Regulation Cap 599L (“599L”).

60.  The material provisions in sections 6 and 8 of Cap 599F are as follows:

6.   Directions of Secretary in relation to catering business

(1)  For preventing, protecting against, delaying or otherwise controlling the incidence or transmission of the specified disease, the Secretary may issue a direction imposing requirements or restrictions, for a period specified in the direction, in relation to any or all of the following—

(a)  any catering business that sells or supplies food or drink for consumption on its premises or any activity carried out by any person on any catering business premises, including the mode of operation of the business or activity;

(b)  the closing of any catering business premises;

(c)  the opening hours of the business on a day.

(1A)  A direction issued under subsection (1) does not apply to—

(a)  a catering business designated under section 7A(1); or

(b)  a catering business falling within a category of catering businesses designated under section 7A(1).

(2)  A period specified in any direction issued under subsection (1) must not exceed 14 days.

(3)  The Secretary may impose different requirements or restrictions under subsection (1) for—

(a)  different categories or descriptions of catering businesses; and

(b)  different categories or descriptions of persons entering or present on any catering business premises.

(4)  Any direction issued under subsection (1)—

(a)  must be published in the Gazette; and

(b)  is not subsidiary legislation.

8.   Directions of Secretary in relation to scheduled premises

(1)  For preventing, protecting against, delaying or otherwise controlling the incidence or transmission of the specified disease, the Secretary may issue a direction imposing requirements or restrictions, for a period specified in the direction, in relation to any or all of the following—

(a)  any business carried on, or any activity carried out, by any person on any scheduled premises, including the mode of operation of the business or activity;

(b)  the closing of any scheduled premises;

(c)  the opening hours of any scheduled premises on a day.

(1A)   A direction issued under subsection (1) does not apply to—

(a)  any scheduled premises designated under section 9A(1); or

(b)  any scheduled premises falling within a category of scheduled premises designated under section 9A(1).

(2)  A period specified in any direction issued under subsection (1) must not exceed 14 days.

(3)  The Secretary may impose different requirements or restrictions under subsection (1) for— (L.N. 52 of 2021)

(a)  different categories or descriptions of scheduled premises; and

(b)  different categories or descriptions of persons entering or present on any scheduled premises. (L.N. 52 of 2021)

(4)  Any direction issued under subsection (1)—

(a)  must be published in the Gazette^*; and

(b)  is not subsidiary legislation.

61.  It cannot be gainsaid that the Secretary’s powers to make directions are cast in those sections in very wide terms.

62.  Schedule 2, Part 1 to 599F identifies the ‘Scheduled Premises’ referred to in section 2 as follows:

Premises

Column 1				Column 2
Item				Type of premises
1.				Amusement game centre
2.				Bathhouse
3.				Fitness centre
4.				Place of amusement
5.				Place of public entertainment
6.				Premises (commonly known as party room) that are maintained or intended to be maintained for hire for holding social gatherings
7.				Beauty parlour
8.				Club-house
9.				Establishment (commonly known as club or nightclub) that is open late into the night, usually for drinking, and dancing or other entertainment
10.				Karaoke establishment
11.				Mahjong-tin kau premises
12.				Massage establishment
13.				Sports premises
14.				Swimming pool
15.				Hotel or guesthouse (except the premises specified in the Schedule to the Hotel and Guesthouse Accommodation (Exclusion) Order (Cap. 349 sub. leg. C))
16.				Cruise ship
17.				Premises that—
		(a)	are not—
			(i)		private premises; or
			(ii)		a place of public entertainment; and
		(b)	are for the time being used, with the consent of the owner, manager or tenant of the premises, for holding a specified event
18.	Premises other than a beauty parlour (commonly known as barber shop or hair salon) where a person may have his or her hair on the face or on the head shaved, trimmed, cut or washed, or have other treatments done to the hair
19.	Religious premises
20.	Shopping mall
21.	Premises (commonly known as department store) where a wide variety of goods (for example, men’s and women’s clothing, furniture, electrical appliances and hardware) are sold in separate departments
22.	Market
23.	Self-service shop (commonly known as supermarket) where fresh produce, food other than fresh produce, beverages and household goods are sold

63.  As the evidence filed for the Secretary says, and as is apparent from its own terms, Cap 599L is a piece of legislation specifically to govern the legal framework for the implementation of the Vaccine Pass, including liabilities for a failure to comply with vaccination requirements for entering specified premises.  The material provisions of Cap 599L for present purposes are as follows:

3.   Secretary may issue vaccine pass direction

(1)  The Secretary may issue, in relation to any category of premises or public transport carriers, a direction for the purposes of this Regulation if the Secretary, having regard to the factors set out in subsection (2), is satisfied that—

(a)  the specified conditions are met under subsection (3) in relation to that category of premises or carriers; and

(b)  issuing the direction is necessary for preventing, protecting against, delaying or otherwise controlling the incidence or transmission of the specified disease.

(2)  For the purposes of subsection (1), the factors are—

(a)  the extent and pattern (whether general or specific) of the spread of the specified disease in Hong Kong or anywhere else in the world;

(b)  the uses and effects of vaccination on reducing the health risks of persons contracting the specified disease; and

(c)  the need to alleviate the effects of the specified disease on the social or economic activities in Hong Kong.

(3)  For the purposes of subsection (1)(a), the specified conditions are met in relation to any category of premises or public transport carriers if—

(a)  persons who will be present on any premises or public transport carrier falling within that category will be, or will likely be, exposed to a significant risk of contracting the specified disease, having regard to any relevant factors, including—

(i)  the number of persons present on the premises or carrier;

(ii)  the distance between persons present on the premises or carrier;

(iii)  the duration of presence of persons on the premises or carrier;

(iv)  the ventilation of the premises or carrier; and

(v)  for premises—the activities to be carried out on the premises;

(b)  persons who will be present on any premises or public transport carrier falling within that category will, or will likely, carry a risk of spreading the specified disease if they have contracted the disease or are carriers of the causative agent of the disease, having regard to any relevant factors including those mentioned in paragraph (a); or

(c)  persons who will be present on any premises or public transport carrier falling within that category, if contracting the specified disease, will, or will likely, face considerable health risks owing to a personal factor such as age or health condition.

(4)  The vaccine pass direction takes effect on a date specified in the direction.

(5)  If a vaccine pass direction is issued in relation to any category of premises or public transport carriers—

(a)  the Secretary must, as soon as reasonably practicable after issuing the direction, publish a copy of the direction on the website of the Health Bureau; and (L.N. 144 of 2022)

(b)  if the direction is issued in relation to any category of premises, the person in charge of the specified premises must cause a notice in a form specified in the direction to be displayed in a prominent position at or near every entrance to the premises.

(6)  A vaccine pass direction—

(a)  must be published in the Gazette*; and

(b)  is not subsidiary legislation.

(7)  The Secretary may revoke a vaccine pass direction if the Secretary, having regard to all the circumstances, is satisfied that revoking the direction serves the public interest of Hong Kong.

(8)   A revocation under subsection (7) must be signified and published in a way the Secretary considers appropriate.

4.   What can be directed under vaccine pass direction

(1)   Without limiting the scope of a vaccine pass direction—

(a)  the direction may specify what conditions must be met in relation to a particular type of vaccine before a person who has been administered with that type of vaccine is regarded for the purposes of the direction as having been vaccinated in the specified manner, by reference to any relevant factors, including—

(i)  the age of the person;

(ii)  the medical condition of the person;

(iii)  the type, specification and number of doses of the vaccine; and

(iv)   the date and place of the vaccination;

(b)  the direction may require a person falling within any category of persons not to—

(i)  enter or remain on any specified premises unless the person has been vaccinated in the specified manner; or

(ii)  board or remain on any specified public transport carrier unless the person has been vaccinated in the specified manner; and

(c)  the direction may require the person in charge of any specified premises or specified public transport carrier to do any or all of the following—

(i)  adopt any measures conducive to ensuring that—

(A)  any person entering or remaining on the premises has been vaccinated in the specified manner; or

(B)  any person boarding or remaining on the carrier has been vaccinated in the specified manner;

(ii)  for the purposes of section 5(3), collect the personal particulars, address and means of contact of any person entering, boarding or remaining on the premises or carrier (as the case may be).

(2)  A vaccine pass direction may—

(a)  impose different requirements on different categories of persons; and

(b)  impose different requirements in relation to different specified premises or specified public transport carriers.

5.   Requirement for persons entering, boarding or remaining on specified premises or specified public transport carriers

(1)   A person must not—

(a)  enter or remain on any specified premises unless the person has been vaccinated in the specified manner for the purposes of a vaccine pass direction in relation to the premises; or

(b)  board or remain on any specified public transport carrier unless the person has been vaccinated in the specified manner for the purposes of a vaccine pass direction in relation to the carrier.

(2)  Subsection (1) does not apply to a person who falls within the description of any of the following paragraphs and meets the condition prescribed in subsection (3)—

(a)  the person is under the age specified for the purposes of this paragraph in the relevant vaccine pass direction;

(b)  the person holds a specified medical exemption certificate;

(c)  the person enters the specified premises only for—

(i)  placing an order for takeaway of food or drink, or taking such food or drink, on the premises;

(ii)  delivering or picking up an article on the premises; or

(iii)  performing necessary repairs on the premises;

(d)  the person enters the specified premises only for receiving vaccination or medical treatment, or undergoing a specified test, that is provided on the premises;

(e)  the person passes through the specified premises or boards the specified public transport carrier only for receiving vaccination or medical treatment, or undergoing a specified test, that is provided in a place other than the premises or carrier;

(f)  the person enters or passes through the specified premises only for receiving essential government service (including any government service that enables compliance with any legal requirement) that is provided on the specified premises or any premises in the same building as the specified premises;

(g)  the person enters or passes through the specified premises only for appearing as a party, or a representative of a party, to any proceedings in any court, statutory tribunal or statutory board that are held on the specified premises or any premises in the same building as the specified premises;

(h)  the person is designated, or falls within a category of persons designated, under section 6(1);

(i)  it is reasonably necessary for the person to enter the specified premises or board the specified public transport carrier in order to avoid any physical harm to the person or any other person inside the premises or carrier;

(j)  the person is required by a public officer (who is performing a function of the officer) to enter the specified premises or board the specified public transport carrier;

(k)  subject to section 20, the person has lawful authority or reasonable excuse for—

(i)  entering or remaining on the specified premises without having been vaccinated in the specified manner; or

(ii)  boarding or remaining on the specified public transport carrier without having been vaccinated in the specified manner.

(3)   The condition is if a person enters or remains on any specified premises, or boards or remains on any specified public transport carrier, the person has, on the request of the person in charge of the premises or carrier (or the employee or agent of the person in charge), provided the personal particulars, address and means of contact to the person in charge, employee or agent.

(4)   A person who contravenes subsection (1) commits an offence and is liable on conviction to a fine at level 3.

(5)   In criminal proceedings for an offence under subsection (4)—

(a)  the burden of establishing the matter mentioned in subsection (2)(a), (b), (c), (d), (e), (f), (g), (h), (i), (j) or (k) lies on the person; and

(b)  the person is taken to have established a matter if—

(i)  there is sufficient evidence to raise an issue with respect to that matter; and

(ii)  the contrary is not proved by the prosecution beyond reasonable doubt.

(6)   In this section—

     specified test (指明檢測) has the meaning given by section 2(1) of the Prevention and Control of Disease (Compulsory Testing for Certain Persons) Regulation (Cap. 599 sub. leg. J).

64.  I agree with that part of the Secretary’s evidence filed for these proceedings which states that the purpose of the Vaccine Pass Requirement is simple.  It requires every person who enters or is present at any specified premises to have been vaccinated following a designated timetable for administration of the first, second and third doses. Section 5 stipulates that persons entering or remaining on any specified premises must comply with the Vaccine Pass Requirement, but also provides for exemptions from the Vaccine Pass Requirement for categories of persons, including those holding a MEC (the evidence says “valid MEC”, but I think the reference to validity jumps ahead in the argument).

65.  Section 6 permits the Secretary to designate certain persons for the purpose of section 5(2)(h).  By implication, section 6 does not grant the Secretary any powers in relation to the other paragraphs of section 5(2).

66.  Section 7 provides that the persons in charge of any specified premises or specified public transport carrier must comply with any requirement made under the relevant vaccine pass direction.

67.  Section 17 identifies what constitutes a specified MEC for the purposes of section 5(2)(b).  It provides as follows:

17.   Specified medical exemption certificate

(1)   For the purposes of this Regulation, a medical certificate is a specified medical exemption certificate only if the medical certificate—

(a)  contains an opinion from a registered medical practitioner that the person to whom it is issued is clinically assessed to be unsuitable for being vaccinated with whichever type of the specified vaccines;

(b)  specifies a period within which the certificate is valid;

(c)  shows the date of issue of the certificate;

(d)  is in a form specified by the Director; and

(e)  if the certificate is in hard copy form, is signed by the registered medical practitioner issuing the certificate.

(2)   To avoid doubt, the opinion under subsection (1)(a) must not be confined to any particular type of the specified vaccines.

(3)   In this section—

registered medical practitioner (註冊醫生) has the meaning given by section 2(1) of the Medical Registration Ordinance (Cap. 161);

specified vaccines (指明疫苗) means the vaccines that are currently available in Hong Kong and are—

(a)  authorized under section 3(1) of the Prevention and Control of Disease (Use of Vaccines) Regulation (Cap. 599 sub. leg. K); or

(b)  registered under regulation 36 of the Pharmacy and Poisons Regulations (Cap. 138 sub. leg. A).

68.  To me, the language of section 17 seems plain.  Under the section, a MEC is a “specified” MEC if and only if (amongst other things) it contains an opinion from a registered medical practitioner that the person to whom it is issued is clinically assessed to be unsuitable for being vaccinated with whichever type of the specified vaccines. What is required is that the MEC contain an opinion that a person has been clinically assessed as being unsuitable.

69.  There is good administrative reason behind the statutory design.  For example, a person-in-charge of premises cannot be expected to know what is a clinical assessment or to decide whether a MEC has been issued only after a clinical assessment has been performed.

70.  Secondly, to that end, the certificate must be a specified form.  Though not in the evidence, the form is publicly available and a copy was provided to me at the hearing.  It is a bilingual form but I shall refer only to the English.  The requisite certification is that the person named and identified in the MEC:

is considered not suitable to receive any one of the currently available COVID-19 vaccines (CoronaVac/Sinovac and Comirnity/BioNTech) in Hong Kong Special Administrative Region due to the medical reason(s) as listed in Annex.

This certification remains valid until ____________ [Date]

71.  The reasons given in the Annex are either ‘Part I: Contraindications to Comirnity (BioNTech) and CoronaVac (Sinovac)’ or ‘Part II: Pre-existing condition/ Adverse event following COVID-19 immunisation’.

72.  Thirdly, and perhaps most importantly for present purposes, because the exemption is based upon a certified medical opinion, it would seem an obvious choice that the relevant person to express the certified opinion is a “registered medical practitioner”, within the meaning of the Medical Registration Ordinance.

73.  Importantly, section 17(1) also requires – at section 17(1)(b) – that a MEC specifies a period within which it is “valid”.  I put the word in quotes because it is of some importance in the ensuing argument.  This requirement identifies three features:

(1)  the period of validity is specified to be determined by the registered medical practitioner providing the opinion set out in the MEC;

(2)  before or at the end of any validity period, the person holding the MEC would need to obtain another MEC (where appropriate) in order to continue to have the exemption from the Vaccine Pass Requirement; and

(3)  there is no other means or mechanism identified as might end or overturn the validity of the MEC encompassed by the opinion of the registered medical practitioner.

74.  Indeed, as expressly acknowledged on behalf of the Secretary, there are no declaratory or invalidating powers (within section 17 or otherwise) targeting medical exemption certificates specifically.

75.  As to any argument about the meaning of “valid”, the requirement in section 17(1)(b) that the MEC should specify a period within which the certificate is valid is in the following terms in the Chinese version: “指明該證明書的有效期間” (emphasis added).

76.  As indicated above, the bilingual texts of the 27 September 2022 press release – “valid” and “有效” – might have been taken directly from section 17.  Where the English language text and the Chinese language text of an ordinance shall be equally authentic, it cannot be suggested that “有效” is supposed to carry a different meaning from “valid”.

77.  Therefore, to “deem invalid” a MEC otherwise within its validity period under section 17(1)(b) would appear to be an attempt to contradict section 17.

78.  Before leaving the detail of the legislative provisions, something can be said about the structure of Cap 599L in particular, because this is relevant to the process of statutory interpretation.  The provisions need to be construed, amongst other things, in their structural context of the scheme of Cap 599L as a whole, and sections 3, 4, 5 and 17 in particular:

(1)  Section 3 empowers the Secretary to issue Vaccine Pass directions in relation to identified particular places – “any category of premises or public transport carriers” – where the Vaccine Pass Requirements will be required to be in force;

(2)  Section 4 identifies what can be directed by the Secretary and deals with the scope of it;

(3)  Sections 5 states when and on whom the Vaccine Pass Requirements are imposed;

(4)  Section 5(1) identifies what a person must not do – i.e. the person must not enter or remain at the premises or public transport carriers – unless the person has been vaccinated in the manner specified for the purposes of a vaccine pass direction in relation to the particular place;

(5)  but section 5(2) makes section 5(1) inapplicable to persons meeting certain descriptions, including – under section 5(2)(b) – where “the person holds a specified medical exemption certificate”;

(6)  section 17 describes what a “specified medical exemption certificate” is for the purposes of the Regulation;

(7)  it identifies that the relevant opinion for the making of the certificate as to unsuitability for vaccination, and the period of validity of that opinion, is the opinion of a registered medical practitioner.

F.     Grounds of Review

79.  By Notice of Amendment, said to be pursuant to RHC Order 53 rule 3(6), dated 17 October 2022, the Applicant gave notice that he intends to ask to be allowed to amend his Form 86.  The draft Amended Form 86 was attached.

80.  At the hearing, I said I would deal with the argument on the Amended Form 86 on a de bene esse basis, and resolve the question of amendment in the context of my Judgment overall.

81.  The Amended Form 86 identifies two grounds of review, the second of which was not in the original Form 86 (and, therefore, was not the subject of my grant of leave to apply for judicial review).  The two grounds are as follows (by reference to the headings given):

(1)  Ground 1: Illegality: No power for the Secretary to overturn or invalidate a MEC or a selection of MECs.

(2)  Ground 2: Illegality and/or Procedural impropriety: Fettering of Discretion

82.  They can be addressed each in turn, but I think it can be said that it is Ground 1 which has very much been the focus of argument.

G.     Ground 1: Is there a legal power?

83.  The Amended Form 86 (and the Applicant’s original skeleton submissions, which largely mirror it) do not set out in any detail the legal analysis in support of the argument that there is no power for the Secretary to overturn or invalidate a MEC or selection of MECs.  Instead, reference is made to the summary of what I saw as a strong argument justifying the interim relief, as set out in §23 of my Reasons for Decision.

84.  Mr Pun enlarged on the argument a little during the hearing.  First, as to the target of the challenge in these proceedings, he pointed to those parts of the Secretary’s own evidence which stated that the Secretary’s Decision as contained in the press release of 27 September 2022 announced that from 12 October 2022 onwards, the Questionable MECs would “not be accepted” and would be treated as “invalidated”, and that the Decision was later given effect and implemented by way of the Secretary’s exercise of his delegated statutory powers by the Directions.  Reference can also be made to the evidence where it was stated that the focus should be on the legal basis of the Secretary’s “subsequent decision to issue the Directions to refuse to recognise the validity of the Questionable MECs”.

85.  Mr Pun then relied on the fact that the Secretary has failed to point to any statutory provision which confers any relevant power as would have permitted the Decision or Direction.  He also emphasised that the purposive approach to construction cannot be taken too far, where the intention of the legislature must be ascertained by a proper application of the interpretive process, and that adopting a construction that advances a desirable public policy is not the function of the Court in statutory construction.  Hence, Mr Pun concluded that it is impermissible for the Secretary to purport to confer upon himself (under the guise of a purposive construction of Cap 599L and/or Cap 599F) a power that he does not have.

86.  As already indicated, Mr Chan submits that in terms of substantial legal effect the Directions operate as administrative measures dealing specifically with the status of the MECs in the context of the vaccine exemption system; they literally operate as directions to those in charge of regulated premises to not recognise/accept the MECs as being valid exemptions made in accordance with the existing statutory regime.  Mr Chan submits that the Directions do not alter the structure or substance of the statutory scheme itself, but serve to properly implement and protect its requirements and objectives.  So, Mr Chan submits, this is a case where the relevant text (very broad), the context and purpose (the imperatives of public protection in respect of disease control and public health emergencies), and considerations of practical sense, workability and efficacy all align in strong support of the Secretary’s position.

87.  In broad terms, Mr Chan’s argument proceeded as follows (in my summary, but not forgetting the detail which I do not think needs to be rehearsed in this Judgment):

(1)  Both Cap 599L and Cap 599F were made under section 8 of Cap 599.  They are part of a range of weapons available to the Secretary in combatting the COVID-19 pandemic.

(2)  The regulations should not be seen in isolation as they form part of a number of measures introduced to reduce the impact of the virus.  Therefore, the various subsidiary provisions within the overall Cap 599 should be viewed holistically.

(3)  Absent clear contrary indicators, the relevant provisions of Cap 599F and Cap 599L should be read in tandem and consistently with each other, on the basis that they have a unified purpose to prevent or combat or alleviate the effects of the public health emergency and to protect public health.

(4)  Section 3 of Cap 599L provides an express power to the Secretary to issue such directions in relation to specified premises or public transport carriers, which is by its terms a very wide and flexible power to allow regulation through the use of the Leave Home Safe Vaccine Pass system, in any way he sees fit.

(5)  The reasons for such a wide discretion are easy to understand against the highly contagious, unpredictable and potentially deadly effects of COVID-19.

(6)  At the time of enactment, there would be many “known unknowns” that could not necessarily be anticipated in their particulars, hence justifying wide and flexible powers.

(7)  Similarly, sections 6 and 8 of Cap 599F empower the Secretary in terms which are deliberately wide.  The legislative intention is to ensure that the Secretary is amply equipped to adjust to and address changing circumstances and emergency situations, of a kind which might not have been earlier predicted or directly anticipated.

(8)  Therefore, the legislative terms should be read in light of the imperative of maximising the chances of meeting the overarching statutory objectives.

(9)  The way in which delegated powers under primary legislation tend to cater for unforeseen and uncertain situations is well-recognised, and that rationale should apply to a direction given under Cap 599F or Cap 599L, even though such a direction is not subsidiary legislation.

(10)  Therefore, despite there being no declaratory or invalidating powers targeting MECs specifically, the broad and flexible powers to regulate premises are ample to cover the risks posed by the MECs (where such certificates are but one aspect of the Government’s ongoing efforts towards effective pandemic control).

88.  From this approach, it can be seen that Mr Chan approached the analysis by looking first at the ‘big picture’ as might be shown by looking only at sections 3 and 4 of Cap 599L, before looking at all at the actual operative provisions relating to why a MEC has a purpose, and how it is obtained and constituted.  With respect, I do not think that is the correct approach to the assessment of context, precisely because it risks looking to see what might be desirable.  Rather, it is necessary to look at the whole structure of the various provisions and to view them in that full context.

89.  Indeed, much of Mr Chan’s ‘first line’ of oral submissions seemed to me to be identifying what was thought to be, and why it might be thought reasonably to be, desirable:

(1)  Early in his oral submissions, having set out the factual background, Mr Chan suggested the relevant question would be what was the appropriate response from the Secretary to those facts.  In my view, that is not the relevant question for present purposes.  The relevant question is whether what is thought to be the appropriate response can be taken within the powers granted to the Secretary.

(2)  A little later in his oral submissions, Mr Chan suggested that where the Secretary exercised his broad judgment as to how to contain the risk which appeared to have arisen, the range of the safety margin was a matter to be determined by the Secretary, and against that the question to ask on a narrow question of vires (powers) is why the Secretary should not be able to do what he has decided.  In my view, that is also not the relevant question for present purposes.  The relevant question is not “why not?”, but “why does he have power to do so, and where is that power?”.

(3)  Similarly, another question posed by Mr Chan – namely, whether it is the intention of the legislature to leave the Secretary without power to do what he thinks is necessary for meeting the risk – is not the right question.  The relevant question is simply whether the legislature has given the power to do what he thinks is necessary.

90.  That right question cannot properly be asked by seeking to draw attention away from the actual words of the relevant sections dealing with MECs.

91.  This must be so because, however the point is dressed up, the Secretary proposes to treat or deem as invalid (or unacceptable) some MECs which presently otherwise remain valid (or acceptable).

92.  As set out above, the specific provisions dealing with MECs are in sections 5 and 17 of Cap 599L:

(1)  Section 5(1) identifies that a person must not enter or remain on any specified premises / public transport carrier without having been vaccinated in the specified manner for the purposes of the Vaccine Pass direction in relation to the premises / carrier.

(2)  Incidentally, that requirement is one required on pain of enforcement through conviction under sections 11 and 12.

(3)  But section 5(2) identifies that the requirement in section 5(1) does not apply to a person who falls within the description in any of the sub-paragraphs 2(a) to (k) – (and so long as the person also complies with the condition to provide personal particulars, address and means of contact on request).

(4)  One description of the person to whom section 5(1) does not apply is a person fitting the description in section 5(2)(b), namely a person who holds a “specified medical exemption certificate”.

(5)  The words “specified medical exemption certificate” in section 5(2)(b) have a particular meaning within Cap 599L, as shown by section 17.

(6)  Therefore, because there is a particular meaning given by Cap 599L itself, I do not think there is any need to read the exception provision (as Mr Chan submitted) in section 5(2) narrowly and strictly, rather than widely and liberally.  The exception has a clear and precise meaning, and it simply requires neither narrow nor wide reading.

(7)  If a person fits the description in section 5(2)(b), he is exempted from the requirements of section 5(1).

(8)  As stated, he will fit that description if he is a person who has a “specified medical exemption certificate”, and what that is can be found in section 17.

(9)  Section 17 identifies exactly how and when a medical certificate is a “specified medical exemption certificate” for the purposes of Cap 599L.

(10)  Section 17(1)(a) provides that one requirement for a medical certificate to be a “specified medical exemption certificate” is that it contains an opinion from a registered medical practitioner that the person to whom it is issued is clinically assessed to be unsuitable for being vaccinated with whichever type of the specified vaccines.

(11)  Section 17(2) incidentally makes it clear that the relevant opinion must not be confined to any particular type of the specified vaccines.  In other words, the clinical assessment of unsuitability for being vaccinated must be as to unsuitability for receiving any specified vaccine.

(12)  Section 17(1)(b) provides that another requirement for a medical certificate to be a “specified medical exemption certificate” is that it specifies a period within which it is valid.

(13)  Section 17(1)(a) and (b) together provide that the opinion from a registered medical practitioner should be that the person to whom the MEC is issued is clinically assessed to be unsuitable for being vaccinated until the end of the validity period of the MEC.

(14)  After that date, the MEC ceases to have any effect as regards the ability to be regarded as a person falling within the description in section 5(2)(b).

(15)  Therefore, absent that person obtaining a further MEC with a period of validity beyond that date – and assuming that the person does not fall within the description of any other paragraph in section 5(2) – that person will have to meet the requirement in section 5(1).

93.  It seems to me to be absolutely clear from the provisions in section 5(2) and section 17 that the legislation gives to registered medical practitioners the task of considering whether a person is clinically assessed to be unsuitable for being vaccinated, and if so for how long.  As I have already indicated, tasking a registered medical practitioner with providing and certifying that opinion – or deciding not give such a certificate – makes obvious and practical sense.  Indeed, it might be thought that it does not make practical sense to task forming and certifying the relevant medical opinion to anyone else, including even medically qualified ministers or civil servants acting in those roles.

94.  Given the significance of section 17, it might be thought somewhat surprising that, at the oral hearing, Mr Chan did not draw my attention to section 17 at all so as to offer his preferred interpretation.  Perhaps this reflects a recognition that section 17 is unhelpful for the Secretary, not least because of its reference to “validity”, which seems to be something the Secretary’s argument prefers to keep out of focus because the intended effect of the Decision and Directions is to deem invalidity which is clearly in conflict with plain words of the provision.

95.  But in his written submissions, Mr Chan did attempt to construe section 17.  He said section 17(1)(a) cannot possibly mean that “any purported opinion” – his words – so long as it emanates from a registered medical practitioner (no matter how obviously dubious or questionable), must be regarded as conclusive or determinative.  He said section 17(1)(a) must be read as requiring an “actual opinion”, because the reference to “clinically assessed to be unsuitable” contemplates an “objective dimension” in terms of bona fides and the qualitative nature of the assessment.  That may or may not be correct, but it does not seem to me to be at the core of the present consideration.  This is because (1) Cap 599L tasks a registered medical practitioner to form and certify the relevant opinion, and (2) the Secretary does not argue that the Questionable MECs are all not MECs issued under section 17, and he does not invite the Court to say so.

96.  There is also some confusion in the Secretary’s argument as to whether the Questionable MECs do or do not qualify as “specified medical exemption certificates” within the meaning of section 17, as can be used under section 5(2) to obtain exemption from what would otherwise be the requirements under section 5(1).  To be fair, the confusion probably arises because of the simple uncertainty about the Questionable MECs – i.e. they are merely “questionable” or “dubious”.  But, if a MEC is not a “specified” MEC within the meaning of section 17, there is no need to invalidate it, whilst on the other hand if a MEC is a “specified” MEC within the meaning of section 17, there would need to be a power given to the Secretary if he is to invalidate it.

97.  Nor do I think the hypothetical scenario put forward by Mr Chan in his written submissions helps with the analysis.  He posited the situation where a registered medical practitioner is caught “red-handed” issuing a MEC to a patient without having examined him beforehand and the doctor then admits to the police that 20 MECs previously issued by him were also done that way.  But, it seems to me that in such a case the doctor either thereby establishes the fact that the MEC does not contain his opinion, or that the expression of opinion is withdrawn.  That presents no difficulty.  Anyway, concerns about an “absurd” result based upon a suggested inability of the Secretary to do what he would wish, focuses more on desirability than legality.

98.  In any event, the factual challenge faced by the Secretary is far from the hypothetical scenario suggested by Mr Chan.  Here, the situation is that the Secretary’s assessment is that there are strong and legitimate doubts as to a number, but an unknown number, of the Questionable MECs.

99.  Though perhaps there might have been one, there is no statutory mechanism built into Cap 599L to determine if a MEC could function as a specified MEC if there is such a dispute. There is simply the statutory definition.  Ordinarily, absent any statutory mechanism, the Court would be the arbiter should such a dispute arise.  Of course, it is correct to recognise that in the context of an unfolding public health emergency, it might be highly impracticable to wait until Court resolution.  But, again, that is a point on desirability, not legality.  It does not seem to me to be correct to leap from the desirability of enabling the Secretary to “do something” when some MECs are called into question to the conclusion that Cap 599L must be read as conferring such a power.  What one might wish the legislature has enacted and what the legislature has actually enacted are two different things.

100.  As regards how to construe legislation which relates to situations of public emergency, Mr Chan’s places reliance on Kwok Wing Hang v Chief Executive in Council (2020) 23 HKCFAR 518 and R (Dolan) v Secretary of State for Health and Social Care [2020] EWCA Civ 1605.  These two cases do not assist him.

101.  In Kwok Wing Hang, at issue was the Emergency Regulation Ordinance (“ERO”), which provides that on any occasion which the CEIC may consider to be an occasion of emergency or public danger he may make any regulations whatsoever which he may consider desirable in the public interest.   The CEIC exercised such power, and enacted the Prohibition on Face Covering Regulation (“PFCR”).  Mr Chan drew my attention to §§41-45 of CFA’s judgment.  Those paragraphs canvassed the issue as to whether, given the very wide scope of subsidiary legislation which the CEIC is empowered to make, the ERO is in truth a piece of legislation seeking to delegate to the CEIC a general legislative power to make primary legislation and, thus, falling foul of the institutional role given to the LegCo by the Basic Law.

102.  At §42, the CFA stated that it was important to remember that there are different reasons why a legislature may find it necessary or desirable to delegate legislative power.  Reference was made to ‘Bennion on Statutory Interpretation’ as to what those reasons might include.  One was that if a sudden emergency arises it may be essential to give the executive wide and flexible legislative powers to deal with it whether or not Parliament (here, LegCo) is sitting.  That explains why the enactment power delegated to the CEIC, despite its wide scope, is still only a power to enact subsidiary legislation rather than a general legislative power.

103.  But a warning was also sounded at §43.  Firstly, the CFA noted that the power to make subordinate legislation is almost by definition expected to be controlled and limited.  Secondly, it was pointed out that there would be neither necessity no justification to delegate to the executive power to enact which is “virtually unfettered and unrestricted”.  It was also stated that there is no reason to expect that the subordinate legislation so made is anything other than to fill in the details of the principal legislation.

104.  Dolan concerned the English Government’s Covid-19 responses.  There, the Public Health (Control of Disease) Act 1984 empowered the Secretary of State to make regulations for the purpose of preventing, protecting against, controlling or providing a public health response to the incidence or spread of infection or contamination.  The Secretary thus made the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 to impose a range of restriction, including what was colloquially known as the “lockdown”. One of the grounds of challenge was that the regulations, as subsidiary legislation, were ultra vires the primary legislation.   The English Court of Appeal concluded that the power conferred by the primary legislation is wide enough to enable the making of the subsidiary legislation.

105.  If what Mr Chan sought to derive from Kwok Wing Hang and Dolan is that primary legislation dealing with an emergency could delegate to the Government wide and flexible powers to enact subsidiary legislation, I do not think that is or should be controversial.  I would also agree that there is no principled objection to the CEIC, under section 8(1) of Cap 599, enacting subsidiary legislation giving the Government wide powers or imposing a wide range of restrictions on individual citizens on an occasion of a public health emergency.

106.  But that does not answer the question raised in this case – namely, is there any subsidiary legislation enacted under Cap 599 which has given the Secretary the power permitting the making of the Decision and the Direction, the effect of which is to overturn or invalidate MECs or a selection of MECs?  The fact that the CEIC has wide power to enact subsidiary legislation under Cap 599 does not mean that, as a matter of fact, a piece of subsidiary legislation permitting the making of the Decision and the Directions has indeed been enacted.   What could have been or is permissible to be enacted is not the same as what has actually been enacted.

107.  The challenge raised by the Applicant here is very different from that in either Kwok Wing Hang or Dolan.  The challenge is not that the CEIC has given the Secretary powers so great and wide in Cap 599L (or other subsidiary legislation) to the extent that it is ultra vires the primary legislation.  The challenge is that there is no legislative provision, either in Cap 599L or otherwise, which has granted the Secretary the power which would be necessary for the making of the Decision or the Directions.

108.  Therefore, to answer the challenge raised by the Applicant, Mr Chan must point to the one or more specific provisions, the proper construction of which could be said to provide the power permitting the making of the Decision and the Directions.  As I have already identified, the key provisions for present purposes are sections 3, 4, 5 and 17 of Cap 599L (although reference can also be made to sections 6 and 8 of Cap 599F).  As stated above, Mr Chan’s focus was almost solely on sections 3 and 4 (with some emphasis also on sections 6 and 8 of Cap 599F).

109.  Mr Pun’s focus was on sections 5 and 17, but his submission was that none of the provisions relied upon by Mr Chan could be construed to provide powers so wide.  In his written reply submissions, Mr Pun placed reliance on the operation of the maxim that specific provisions should prevail over general provisions.  As I will explain below, whilst I agree that this maxim will operate to prevent the Secretary from finding a power in the general provisions either under Cap 599F or Cap 599L when there are more specific provisions governing Vaccine Pass and MECs, this maxim is only part of the answer.  The other, perhaps even more important part of the answer, is provided in the design and structure of Cap 599L itself.

110.  As I understand it, on the first point, Mr Pun’s submissions is that this maxim operates on two different levels with the effect of excluding the provisions which, on the submissions of Mr Chan, confer the necessary powers permitting the making of the Decision or Directions:

(1)  On the level of subsidiary legislation, Cap 599L is the specific statue dealing with the Vaccine Pass regime, including the liabilities for a failure to comply with vaccination requirements for entering specified premises.

(2)  Cap 599F is a general statute governing general restrictions to be imposed on specified premises.

(3)  It follows that any power said to permit the Government to regulate the Vaccine Pass regime, including the power to make exemption or delineate the scope of such exemption, must be found in Cap 599L.  The Government cannot seek to find such power in Cap 599F.

(4)  On the level on the specific provisions within Cap 599L, sections 5 and 17 of this regulation are the specific provisions governing the particular subject matter of “specified medical exemption certificate” (though from the point of view of the person-in-charge of premises, reference can also be made to sections 7 and 8).

(5)  Whilst not quite put this way by Mr Pun, I think the argument is that it follows that Mr Chan cannot seek to find a power to overturn or invalidate a specified MEC by pointing to section 3 and section 4 which are general provisions on the scope of Vaccine Pass directions rather than specific provisions concerning and delineating the concept of the “specific medical exemption certificate”.

111.  Mr Chan did not dispute the settled maxim that specific provisions should prevail over general ones.  But he said: (1) invoking the maxim is inherently to accept that the general provisions do grant the power, but trigger comparison with the specific provisions; (2) this maxim only comes into play when there is a conflict between the specific provision and the general provision.  He said there is no such conflict and the maxim is simply inapplicable in the present circumstances.

112.  As to the first point, I am not sure that is correct.  The maxim comes into play when the general provision might be interpreted to grant the power, but where it is said that the specific provision does grant the power.  The maxim operates precisely to identify that the general provision does not grant the power, because the specific provision covers that ground.

113.  As to the second point, Mr Chan submitted that there is no conflict because the directions which might be given under sections 3 and 4 are in support of, and therefore consistent with, the provisions in sections 5 and 17.  But it is not clear to me how the general provisions (as construed by and relied upon by Mr Chan) and the specific provisions (relied upon by Mr Pun) could sit comfortably.

114.  Mr Chan’s position is that sections 6 and 8 of Cap 599F, as well as sections 3 and 4 of Cap 599L, read alone or in combination, could empower the Secretary to suspend the legal effect of a MEC which would otherwise function as a specified MEC under section 17 to exempt its holder from the legal obligation imposed by section 5(1) of Cap 599L.  The general power said to be derivable from sections 6 and 8 of Cap 599F, and sections 3 and 4 of Cap 599L are plainly in contradiction to the more specific provisions of sections 5 and 17 of Cap 599L.

115.  Since Mr Chan’s reading of sections 6 and 8 of Cap 599F; and sections 3 and 4 of Cap 599L would lead to a conflict, the maxim of specific provisions over general provisions operates to the following effect:

(1)  Sections 6 and 8 of Cap 599F cover directions imposing requirements or restrictions on specified premises except when those requirements or restrictions could properly be the subject of a vaccine pass direction issued under Cap 599L.

(2)  Sections 3 and 4 of Cap 599L covers restrictions or requirements related to vaccination, except when such restrictions or requirements concern the meaning and effects of specified medical exemption certificate as defined under section 17.

116.  I acknowledge that section 4 of Cap 599L, which identifies the scope of what can be directed under a Vaccine Pass direction begins with the phrase “Without limiting the scope of a vaccine pass direction – …”, identifying that those matters dealt with in the section may not be exhaustive of what may be directed.  But that would still require looking to see if there is some reason, for example in a different and express separate provision, which would therefore limit the scope of what might be directed.

117.  Nor does Mr Chan’s reference to section 4(1)(b) assist.  He placed emphasis on the phrase “any category of persons” – I think in support of a suggestion that the holders of the Questionable MECs are a “category of persons”.  But the relevant subsection goes on, and actually reads:

(b)  the direction may require a person falling within any category of persons not to –

(i)  enter or remain on any specified premises unless the person has been vaccinated in the specified manner; or

(ii)  board or remain on any specified public transport carrier unless the person has been vaccinated in the specified manner;

118.  Therefore, any relevant direction given under that paragraph would simply lead back to section 5(1), and the inapplicability of section 5(1) to those persons falling within any of the descriptions in section 5(2).  Reliance on sections 4(1)(c) and 4(2) fails for similar reasons.

119.  Neither does Mr Chan’s intended reliance on the combination of section 5(2)(h) and section 6 assist him.  As touched on above, section 6 reserves to the Secretary the power to designate any person or category of persons who might therefore fall into the description of an exempted person in section 5(2)(h). Far from suggesting that the Secretary might also have power to invalidate a “specified medical certificate” so as to take a person outside the description in section 5(2)(b), section 6 identifies to me that where the legislature thinks that the task of populating any group of persons who will be exempted under section 5(2) should be determined by the Secretary, it will expressly make that provision.

120.  As said, the second part of the answer is in the design and structure of Cap 599L itself.  At the oral hearing (and in the written submissions), Mr Chan always carefully framed the question as whether the Secretary for Health has powers to issue the Directions.  With the question framed as such, he said the answer is to be found in section 3 and 4 which governs the scope of the Vaccine Pass directions.  He said if there is a “carve out” from the broad scope provided in sections 3 and 4, such “carve out” would have to be found within sections 3 and 4 themselves, and it is not permissible for Mr Pun to seek to cut down the powers in sections 3 and 4 by referring to sections 5 and 17.

121.  But the point at issue is not simply whether the Secretary could issue directions. The point is whether he could impose restrictions in the way he sought to impose via the Directions, as announced in the Decision, namely to exclude the holders of MECs issued by the 7 Doctors from persons who would otherwise fall within the description under section 5(2)(b).  The issue concerns when and who the Secretary can require compliance with the restrictions by way of a Vaccine Pass direction.  Looking at the question this way, the provisions most directly on point are obviously sections 5 and 17.

122.  I have already set out, above, my view of those sections and where they sit in the context and structure of the subsidiary legislation as and Cap 599 as a whole.

123.  Though the Secretary, in Mr Chan’s written submissions, expresses the lack of intention to carve out a statutory exception to the section 5 Cap 599L exemption, that seems to me to be precisely the true intended effect of the Decision and the Directions.  The introductory part to section 5(2) and section 5(2)(b) together provide that a person who is the holder of a specified medical exemption certificate is a person to whom the provisions of section 5(1) are inapplicable.  The intended effect of the Secretary’s Decision and Directions is to say that, whilst that would generally be correct, that is not correct in respect of the holders of certain specified medical exemption certificates.  That is fairly described as creating an exception to the exemption.

124.  Nor is it correct to suggest that the Directions do not involve creating an exception to the exemption because they operate as “administrative measures”.  Even ignoring the fact that there has not been presented a coherent argument as to why the characterisation of the Decision or the Directions as “administrative” somehow changes the analysis, it is no answer to the lack of a legal power to do something to suggest that it might be done through some “administrative” step.  I disagree with the submission made by Mr Chan that the Directions were a faithful and warranted application of, and not departure from, the section 5 regime. They were a departure as I have explained,

125.  For the reasons I have given, that is not permissible under the legal powers which the Secretary has, properly construed.  It seems to me to be even less permissible to attempt to do it in effect through a footnote to a direction which otherwise acts in accordance with and repeats the provisions in sections 5(1) and (2).

126.  Ground 1 succeeds.

H.     Ground 2: Is the Decision irrational?

127.  As indicated, Ground 1 – the existence or not of a legal power – is really parties’ focus at the oral hearing.

128.  Given my answer to Ground 1, the importance of Ground 2 subsides.  Indeed, the fettering of discretion argument must presuppose that there is such a discretionary power for the Secretary to exercise in the first place.  I have concluded that the Secretary has no legal power to invalidate a MEC as defined in section 17 of Cap 599L.  On that basis, Ground 2 falls away.

129.  Having said that, I would proceed on the hypothetical basis that there is such a discretion, and deal with this argument with reasonable economy below.

130.  However, it is first necessary to deal with the amendment application, because Ground 2 was raised only in the proposed amendment, and after I granted leave to apply for judicial review in respect of Ground 1.

131.  The relevant principles for deciding whether to grant leave to amend a Form 86 after leave to apply for judicial review has been granted can be summarised in brief. Ultimately, whether or not to grant leave depends on what is fair and appropriate in all the circumstances, so that the real dispute between the parties can be determined.  Nevertheless, the reason for the lateness is a relevant factor.  Also relevant are the nature and substance of the amendment (including whether it is a pure point of law or a mixed point of fact and law, or if you are factual point), the merit of the amendment, the relevance or significance of the amendment to the key issue of the judicial review, and the existence of an alternative procedure to deal with the matter.

132.  Mr Pun submitted that Ground 2 is highly relevant to the “real dispute” now before the Court, namely the legality of the Decision or Directions.  As to lateness, he submitted that the timing of the proposed amendment is understandable given the peculiar procedural history of these proceedings, and that the Secretary has not identified any prejudice he would suffer as a result of the addition of Ground 2. Nor, apparently, does the Secretary dispute the relevance or significance of the amendment to the key issue of the judicial review upon which leave was granted.

133.  Mr Chan pointed out that the Applicant prosperous given sole reason for the proposed amendment is that a “concession” was made in the Secretary’s evidence where it was stated that some of the MEC’s may be genuine and their holders may have valid reasons for exemption.  As to the “concession”, Mr Chan stated that the point is misguided.  The evidence was simply recognised the reality that (1) the Secretary did not premise his decision on an assumption that every one of the MECs was necessarily or conclusively fraudulent or false, but (2) the Secretary had nonetheless to balance and weight different competing considerations, and to make a wrist assessment, where no conclusive position was available on each individual MEC even though there was significant doubt about them in general.  That the Secretary was alive to the need to cater for the individual circumstances of MEC holders was shown particularly by the 2-week ‘grace period’ which afforded an opportunity to obtain replacements.

134.  Whether or not what was said in the Secretary’s evidence amounts to a “concession”, the fact is that the statement was made in terms in the evidence.  On the other hand, there is force in Mr Chan’s point that the Secretary had not proceeded on the basis that there were no potentially ‘untainted’ (to use a neutral word) MECs amongst the Questionable MECs.  On that basis, had the Applicant been represented at the time of his commencement of these proceedings, those representing might have picked up on and added this point as a ground on which to seek leave to apply for judicial review.

135.  Had they done so, I would have granted leave on the basis that it would have been appropriate to deal with any other alternate form of challenge to the Decision and Directions, if the primary line of attack on legality were to fail.  As Ground 2 is advanced on the assumption that Ground 1 must by then have failed, it seems to me appropriate to ensure that the challenge to the Decision and Directions is dealt with fully.

136.  For those reasons, and in the exercise of my case management discretion, I would give leave to make the amendment to the Form 86.

137.  Turning to the merits of Ground 2, Mr Pun said in the oral hearing that the Decision and Directions represent a classic example of a minister fettering his direction.  The public law wrong lies, he said, in overturning or invalidating all the Questionable MECs with no exceptions, even though the Secretary admits in evidence that some of the Questionable MECs may be genuine and their holders may have valid reasons for exemption.

138.  The argument goes that the Secretary has made no attempt to verify whether any of the Questionable MECs should be treated differently one from another, and has sought instead to impose a blanket invalidation of all the Questionable MECs, even where it is nevertheless recognised that they may be different in character, then that must have been a fettering of the sort which is unlawful.

139.  Mr Chan said there is no fettering of discretion.   I think there are two main arguments.  First, Mr Chan said a decision to invalidate (or not to recognize) all the Questionable MECs is not the sort of target at which the ‘no fettering principle’ is directed.  Citing ‘De Smith’s Judicial Review, 8^th ed’ at §9-07, he submitted that the no fettering principle is directed at discretions that are intended to be exercised on an individualized basis, such as the granting of applications or licenses to individuals.  This principle is inapplicable to decisions which are “categorical” in nature, aiming at a large group or category of people – for example the Vaccine Pass requirements and associated rules which concern all catering business premises and scheduled premises.

140.  I do not think it can be said that the Decision or Directions cannot be the proper target of a fettering challenge.  The Decision or Directions of course concern a large group of people, namely all holders of the 20,000 Questionable MECs.  But the Decision or Directions are also applied to each of the 20,000 MECs, and the Secretary has sought to exercise his power to affect each of the individual holders of such Questionable MECs.

141.  Second, Mr Chan said, in any event, the Secretary did not adopt a policy which would preclude him from departing from the Decision and Directions.  It remains open – subject to fulfilment of the statutory criteria for issuing directions – for the Secretary to issue further directions in response to future changes and development.  Mr Chan said it is baffling for the Applicant to argue a fettering of discretion when he has not even identified the relevant rules or policies which have restrained the Secretary from exercising his discretion properly.

142.  I suppose what Mr Chan said is that the Secretary could, in the future, make a more flexible rule such that some of the MECs might indeed be recognized again.  That might be.  But this is not the current rule adopted in the Decision or Directions.  That said, I do agree with Mr Chan that the Secretary has not unlawfully fettered his discretion, albeit upon different reasoning.

143.  Sometimes, fettering of discretion is framed as the duty not to adopt an overly-rigid policy.  In the exercise of discretionary power, a minister often has to balance two competing imperatives: consistency and non-rigidity.  Adopting a policy, a rule or criteria in the decision-making process is a means to secure a consistent approach to individual cases.  But at the same time, a policy must not be applied with a rigidity which excludes consideration of possible departures in an individual case.  Each case must be considered in the light of the policy, but not so that the policy automatically determines the outcome.

144.  The Secretary did not invalidate all the MECs. He invalidated some of the MECs.  The criterion adopted to determine whether a MEC should be invalidated was whether the issuer is one of the 7 Doctors.  Whilst it may be said that there is a blanket application to all the Questionable MECs without distinction between, and with no regards to, the individual circumstances of how each of the Questionable MECs came into existence, I do not believe it is helpful or correct to focus narrowly only on the Questionable MECs.

145.  MECs are only part of the Vaccine Pass regime, which in turn is only part of the Secretary’s Covid-19 response.  The focus of the assessment is on the effects of the Decision and Directions imposed on individual holders of MECs, not the MECs itself.   The Decision and Directions may be a rigid application against the MECs, but they do not operate to produce rigidity in terms of their effects on the individual holders.  Those Questionable MECs are not the only means by which individuals could gain exemption from a Vaccine Pass direction.  Measures were provided by the Secretary for affected individuals to re-gain exemption before the Decision or Directions was to take effect.

146.  If the Secretary has a discretion to overrule the validity of MECs, I am inclined to agree with Mr Chan that the Decision and Directions – supplemented by measures catering for the needs of affected MECs holders – reflect an acceptable risk assessment by the Secretary in weighing and balancing different competing considerations and choosing the best course to take as a matter of public health, and that the Secretary did not thereby unlawfully fetter the discretion.

147.  Ground 2 fails.

I.   Standing

148.  At the interim hearing on 11 October 2022, Mr Liu (then acting for the Secretary) expressly proceeded on the assumption that the Applicant is a holder of one of the Questionable MEC. However, it has now become clear that the Applicant is not a holder of one of the Questionable MECs.

149.  Mr Chan submits that Applicant thus lacks standing.  Mr Pun submits that the Applicant does have standing under the now holistic approach towards standing.  I agree with Mr Pun.

150.  The applicable principles have been helpfully summarized by Chow J (as he then was) in Kwok Cheuk Kin v Commissioner of Police & Anor [2017] 6 HKC 93 at §34.  In short, whilst having a personal right or interest over and above that of the general public would normally be sufficient to establish standing, the absence of such a personal right or interest is not fatal.  In these circumstances, the Court adopts a holistic (or more liberal) approach by taking into account a host of relevant considerations including the merits of the application, the importance of vindicating the rule of law, the importance of the issue raised, the existence and absence of any other challengers who have a greater interest in the matter, and the nature of the breach of duty against which relief is sought.

151.  Relevant to the nature of the breach is that a vires challenge is traditionally viewed by the Court as directed at the core of rule of law.  If a meritorious vires challenge is brought, the Court is unlikely to shrink from protecting the rule of law by insisting that the applicant must prove standing by showing a particular personal interest.  The present challenge is no doubt the type of challenge which strikes at the core of the rule of law.  As an aside, that the Government openly stated that it would obey my grant of interim relief might be thought to be an example of the rule of law in action in Hong Kong.

152.  Also, as I indicated in my Reasons for Decision, there is indeed general importance and urgency for this vires challenge to be resolved as soon as possible.  The ongoing and continuing development of the Covid-19 situation in Hong Kong may prompt or necessitate the Secretary potentially to further exercise his claimed powers in the future.

153.  Mr Chan does not dispute that the Court’s approach towards standing has been liberalized.  But he said there are clearly better-placed challengers, being any one of the holders of the 20,000 Questionable MECs.  But, I agree with Mr Pun that this is only one of the factors which the Court is entitled to take into account in weighing all the considerations holistically.

154.  I would also repeat what I said at the hearing that, when granting leave to apply for judicial review, I took into account that it was not yet clear that the Applicant was himself the holder of a Questionable MEC.  My view then remains my view now, namely that this is an appropriate case where any argument about standing should not prevent the resolution of the subject matter now brought to the Court.

155.  That is, however, not everything to be said in this context.

156.  Mr Chan has understandably invited me to make note of the Applicant’s conduct in failing to disclose to the Court that he was not one of the Questionable MEC holders, even when the issue was broached during the directions hearings on 11 October 2022.  Mr Chan said that the Applicant has breached his duty of full and frank disclosure in his leave application.

157.  There was no mention in his Form 86 and supporting affirmation of whether he is a MEC holder, so at least the Applicant did not say that he was when in fact he was not.  Anyway, without needing to decide whether there was a strict breach of the ordinary requirement, I would certainly fully endorse the sentiment that the Applicant has been less than forthcoming.

158.  At the hearing on 11 October 2022, references were made to whether the Applicant is a holder of the Questionable MECs or not several times, by me and by Mr Liu.  Whilst he was not expressly requested to confirm his position, it might be thought that that would have been the occasion to provide the Court with information which might be relevant to its deliberation.  At least by the time of the hearing, it was far less understandable or reasonable for the Applicant to rely on being self-represented.

159.  Future applicants and applications should firmly in mind bear the principles relating to full and frank disclosure.

J.   Relief

160.  In the circumstances of my findings on Ground 1, I grant the following relief:

(1)  a declaration that there is no power for the Secretary to overturn or invalidate a specified medical exemption certificate or a selection of such specified medical exemption certificates; and

(2)  an order of certiorari quashing the Decision and those parts of the Directions which give effect to and/or implement the Decision.

161.  I do not think there is any need to give any further specific orders or directions to put into effect my Judgment and the above granted relief.

K.   Costs

162.  I am conscious that the Applicant has succeeded on only Ground 1, and he has failed on Ground 2.  However, I do not think that fact should significantly or at all affect the relevant costs order.  Essentially, Ground 2 gave rise to relatively minimal argument in the scheme of things, and arose after the costs of filing evidence had all been incurred.

163.  Therefore, the starting point would be for costs to follow the event.

164.  I have thought carefully about whether the Applicant’s being less than forthcoming about not actually being the holder of a Questionable MEC should count against him on costs.  On balance, I do not think it should.

165.  Therefore, I order the Secretary to pay the costs of the Applicant, to be taxed if not agreed.  The Applicant’s own costs will be taxed in accordance with the legal aid regulations.