郭卓堅 v. 政府醫衛局局長盧寵茂先生

HCAL 1054/2022

[2022] HKCFI 3150

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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REASONS FOR DECISION

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A. Introduction

1.  However desirable the intended result, there is a right way and a wrong way of going about it.  In legal terms, there may be a lawful way or unlawful way of going about it.

2.  The question which arises in these proceedings is whether the impugned decision of the Secretary of Health was taken the right way, namely lawfully within his powers.

3.  These proceedings were commenced by the Applicant’s Form 86 dated 7 October 2022.  On 10 October 2022 (yesterday), I granted leave to apply for judicial review on the papers.  I also fixed a directions hearing for 11 October 2022 (today) in light of the potential urgency, namely that the impugned decision would come into effect on 12 October 2022 (tomorrow). 

4.  The relevant impugned decision is the Secretary’s decision to invalidate certain specified medical exemption certificates issued under the Prevention and Control of Disease (Vaccine Pass) Regulation Cap 599L (“599L”).  In a follow-up letter and this morning, the Applicant requested that there should be a ‘stay’ of that decision, pending the substantive hearing of his application.

5.  At the end of the hearing today, I gave various directions to bring the matter to a substantive hearing at 10am on 20 October 2022.  For reasons which I said I would deliver later, I also granted interim relief in the following terms:

Pending the determination of these judicial review proceedings or until further order, the Government of the HKSAR and the Secretary for Health shall be restrained from invalidating or putting into effect the purported invalidation of any specified medical exemption certificate issued under the Prevention and Control of Disease (Vaccine Pass) Regulation Cap 599L by those private doctors named in the Annex to the Government’s press release issued at 20.00 hours on 10 October 2022.

For the avoidance of doubt, the restraint above includes a restraint from putting into effect those ‘Directions’ gazetted as GN (E) 893, 895 and 896 of 2022.

6.  These are my Reasons for Decision.  The reasons will be reasonably brief, hopefully so as to facilitate, and so as not to prevent, the proper and full exploration of argument at the substantive hearing.

B. Brief Background

7.  On 27 September 2022, the Government issued a press release to announce follow-up arrangements for suspected abuse in the issuance of Medical Exemption Certificates.  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.

8.  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.

9.  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.  However, 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.

10.  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 Medical Exemption Certificate 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.  Again, there was no reference to any power said to have been invoked for deeming invalid the certificates already in hand.

11.  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 medical exemption certificates, and asked that there might be an explanation of the legal grounds said to be relied upon.

12.  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.  Again, there was still no reference to any power said to have been invoked.

13.  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.

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

15.  Later, at 20:00 hours (8pm) on 10 October 2022 – i.e. yesterday evening – 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.

16.  At the hearing this morning, I asked for and was provided with the Directions mentioned in the press release.  They are to be found in three Gazette Notices GN (E) 893, 895 and 896 of 2022.  The Notices identify that the Secretary states that he has exercised the powers conferred on him by sections 4, 6 and 8 of Cap 599F and section 3(1) of Cap 599L.  The Notices were gazetted yesterday.

17.  On that chronology, there may well be room for some people to consider 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, and the identification of a legal power or legal powers as might permit that decision to be made has been prompted by the commencement of these proceedings.  Nevertheless, the precise timing of the invocation of the power identified is unlikely to matter at the substantive hearing, where the question is whether that power in fact and in law provides a proper lawful basis for invalidating the relevant medical exemption certificates.

C. Grant of Interim Relief

18.  It is well settled that, on an application for interim relief in public law proceedings, the American Cyanamid principles governing the grant of interlocutory injunction, subject to necessary modifications, remain applicable: see, for example, the decision of Chow J (as he then was) in [2018] HKCFI 1869 at §§12 and 13.

19.  Those principles require the Court to consider (1) whether there is a serious issue to be tried in the action, (2) whether, if the plaintiff were to succeed at the trial, he would be adequately compensated by an award of damages for any loss caused by a refusal to grant an interlocutory injunction; (3) if damages would not be an adequate remedy to the plaintiff, whether, if the injunction were granted, the defendant would be adequately compensated under the plaintiff’s undertaking as to damages; and (4) if there is doubt as to the adequacy of the respective remedies in damages, whether the balance of convenience lies in favour of granting or refusing the interim injunction sought.

20.  In the public law context, the above principles have to be modified in, perhaps amongst others, the following aspects:

(1) Where an interim injunction is sought to restrain a government authority from enforcing what is prima facie the law of the land, the applicant has normally to go further than merely showing a serious issue to be tried.  Generally speaking, he will need to establish a “strong prima facie case” that the law is invalid, although exceptionally an applicant may suffer such serious and irreparable harm in the event of the law being enforced against him that it may be just and convenient to restrain its enforcement by an interim injunction even though he is unable to discharge such a heavy burden.

(2) In relation to the question of balance of convenience, the court takes a wider view than just the interests of the immediate parties to the application.  The court must take into account the public interest in the balancing exercise.  The degree of importance that may be attached to the element of public interest would depend on the nature of the decision under challenge, eg very different considerations may apply in a public law challenge against (i) a disciplinary process affecting the employment of an applicant or his employment benefits, and (ii) a decision by a public body to carry out large scale public works based on environmental grounds.

(3) The relevance of damages as an alternative remedy will also vary depending on the nature of the decision under challenge.

(4) Ultimately, the court should take whichever course appears to carry the lower risk of injustice if it should turn out to have been “wrong” in the sense of granting an injunction to a party who fails to establish his right at the trial (or would fail if there was a trial), or alternatively, in failing to grant an injunction to a party who succeeds (or would succeed) at trial.

21.  As already stated, it is argued on behalf of the Secretary that he was empowered to issue the Directions under sections 4, 6 and 8 of Cap 599F and section 3(1) of Cap 599L.  This morning, Mr Liu took me, appropriately briefly, to those provisions to explain why he submits the legal power exists.  In my view – and, of course, subject to the full argument on the substantive hearing – there is at least a strong argument that submission is incorrect.

22.  It is noteworthy against the test I identified above that this is in essence an argument about what is “the law of the land”, but I am in any event satisfied that the argument is strong enough to meet any enhanced test for the grant of interim relief.

23.  The key point of the argument seems to me likely to turn on the correct approach to section 3 of Cap 599L, in the context also of the scheme of Cap 599L as a whole, and sections 4, 5 and 17 in particular.  As I said during argument, the question is not about the desirability of the Secretary’s decision, but the legality of it.  There is in my view a strong argument that:

 (1) section 3 empowers the Secretary to identify 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 empowers the Secretary to direct the scope of those requirements;

 (3) 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;

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

 (5) section 17 describes what a specified medical exemption certificate is for the purposes of the Regulation, and that the relevant opinion for the making of the certificate is the opinion from a registered medical practitioner;

 (6) the chronology of the enactment of Cap 599F in March 2020 and Cap 599L in February 2022 respectively make it unlikely that at the time of enactment of Cap 599F there was envisaged the potential carve out from the exemptions to the Vaccine Pass regime under section 5 of Cap 599L;

 (7) so that – as a result – there is no power for the Secretary to overturn or invalidate a medical exemption certificate or a selection of such medical exemption certificates, as would in effect create an exception to the exception created by section 5(2)(b).

24.  In other words, I consider that there are sufficiently strong merits in the application as would justify the grant of interim relief to ‘hold the ring’ until determination of the substance of the challenge.

25.  Obviously, questions of damages and similar adequacy of remedies are of less importance in this context than in an ordinary civil claim.  But I acknowledge the force in some of Mr Liu’s arguments as to the balance of convenience.  By reference to the Applicant himself, as well as perhaps to a significant number of persons in the similar position of having a medical exemption certificate which might be invalidated as from tomorrow, there is perhaps no very great personal inconvenience in having to obtain an appointment for a consultation with a registered medical practitioner – at the person’s own choice of paying a private doctor or seeing one for free at a GOPC – for an assessment as to whether that person should hold a specified medical exemption certificate.

26.  I take into account the particular number of certificates – 20,000 – which are said to be “questionable”, thereby giving room for doubt as to the true eligibility of that number of persons to such certificates.  But the concerns about the risks run by such persons as regards their own health, as well as regards the health of other people and potential pressure on the health system, are perhaps of less weight against the current percentage of the population who have been vaccinated twice (over 90%), and those who have been vaccinated more than twice (over 75%), and those very large numbers of the population who have likely gained some immunity protection from being previously infected (of which various numbers I think I can take judicial notice).

27.  In my balancing exercise, I also took into account the following matters:

 (1) the validity of the majority of the medical exemption certificates which are said to be “questionable” will likely expire within a few weeks in any event;

 (2) it is reasonable to suppose that a potentially not insignificant number of the medical exemption certificates were properly given and are properly held;

 (3) in any event, there are at present mainly only “doubts” about the medical exemption certificates, except perhaps in those few cases where charges have already been laid;

 (4) the presence or absence of lawful authority for the powers said to have been exercised in this case may have significance on the exercise of powers potentially claimed more generally and in the imminent future (including where investigation is ongoing); and

 (5) I can and will hear the substantive application in just 10 days’ time.

28.  On the necessary discretionary balancing exercise, I therefore formed the view that the grant of interim relief in the terms identified above was appropriate.  To put it by reference to the ultimate question, this is the course which appears to me to carry the lower risk of injustice if it should turn out to have been “wrong” in the sense described above.

D. Other Directions and Costs

29.  In addition to the other case management directions given about evidence and written submissions, I reserved all questions of costs to the substantive hearing on 20 October 2022.  I also gave permission for the Respondent’s Counsel to appear remotely by VCF at that hearing.