KWOK CHEUK KIN v. MS IP LAU SUK YEE, EXCO CONVENOR AND EXCO MEMBERS

HCAL 1155/2022

[2022] HKCFI 3341

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1155 OF 2022

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D E C I S I O N

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A.  Introduction

1.  In my Judgment dated 21 October 2022 [2022] HKCFI 3225 – the definitions and abbreviations from which I shall continue to use – I held that the Secretary for Health did not have the power under Cap 599L to invalidate the approximately 20,000 Questionable MECs issued by the 7 Doctors.

2.  The Secretary and the HKSAR Government chose not to appeal from my Judgment, and so must be taken to have accepted it.  As has been said elsewhere, and as I also indicated in the Judgment by reference to the Government’s acceptance of my interim ruling, that acceptance might be seen as an example of the rule of law in action in Hong Kong.

3.  Instead, a decision was made to amend Cap 599L (“Amendments”), in an exercise that has been described by some as “closing the loophole”.  Though that phrase may have been used loosely, it is not really apt. Implicit in the idea of a “loophole” is possibly the idea that the legislature had intended to grant the Secretary power to invalidate MECs, but had somehow failed to achieve that.   Whereas implicit in my Judgment was the opposite finding that the legislature had not intended to grant the Secretary the power to invalidate MECs issued by the registered medical practitioners to whom the legislature had given the relevant powers of certifying exemption, and where the MECs’ validity was required to be limited to the period of certified exemption and would expire through effluxion of time.

4.  Of course, in what might be seen as unforeseen changed circumstances, it may be that the Government has simply changed its mind – hence the Amendments.  The changed circumstances would include the understandable wish to penalise those who can be shown in fact to have abused the MEC system – though amending Cap 599L would not be necessary to achieve that, as demonstrated by the already issued criminal charges and potential professional misconduct charges.

5.  However, there may well be room for some people to ask whether it was necessary to make such amendments, when the vast majority of the Questionable MECs would expire anyway within a few weeks or so, and the number of persons holding the Questionable MECs – roughly the number of people on just five or six MTR trains during rush hour on any given weekday morning – might be of marginal statistical relevance to a main stated purpose of Cap 599L to encourage vaccination, against the facts that over 92% of the population has received at least 2 Covid-19 vaccinations, over 77% of the population has received at least 3 Covid-19 vaccinations, and probably millions have achieved some natural immunity from being previously infected.  The point may seem even more obvious when it is recognized that the amendments allow the Secretary to invalidate even one single MEC.

6.  There may well also be room for some people to wonder – in light of those vaccination and immunity figures, the apparent broad attainment of the stated purpose of Cap 599L, and the consequential general movement to relax restrictions – why the simultaneous amendment was made to extend the entirety of the various elements of control authorized by Cap 599L to as late as 30 June 2023, a date more than 8 months away from the date the amendment was made.

7.  In any event, the Applicant (who succeeded in the last challenge) has now sought to challenge the Amendments in these new judicial review proceedings.  He seeks leave to apply for judicial review on paper.  Having considered the papers, I am satisfied that this is an application suitable to be disposed of in that way.

8.  This is my Decision.

B.  The Intended Grounds of Review

9.  Though in his application, the Applicant has referred to and sought to challenge “599E”, I think it is clear that he means to challenge Cap 599L, and I read his intended challenge in that light.

10.  In his Form 86, the Applicant said that he is seeking the Court to make an order that Cap 599L is invalid legislation, because the ExCo members and the Convenor have amended it, but it has no appeal mechanism.  As Mr Kwok puts it, whilst the legislation authorizes the Secretary to act, if those affected are dissatisfied they have no way to appeal.  If the 20,000 people are to appeal, they can only turn to the Court to initiate actions, but the Court would be unable to handle that, and the opportunity for them to lodge appeals will be affected.

11.  In his supporting affirmation, the Applicant stated (in translation, and correcting the references to Cap 599L):

Kwok Cheuk Kin, the Applicant, is a permanent resident of Hong Kong and protected by Article 35 of the Basic Law which reads: Hong Kong residents shall have the right to institute legal proceedings in the courts against the acts of the executive authorities and their personnel.  Now, Ms. Ip Lau Suk-yee, Convenor of the Executive Council, together with other members of the Executive Council have amended Cap. 599L to empower the Secretary for Health to put into effect the invalidation of the Medical Exemption Certificates, thereby stripping the certificate holders of their eligibility to the right to exemption from Covid-19 Vaccinations.  However, as the relevant provisions are to be enforced by Secretary for Health Mr. Lo Chung-mau, even if the people affected do have legitimate reasons for exemption, there would be no way for them to find a proper channel to lodge an appeal.  The incumbent Secretary is a medical practitioner who is professionally qualified to decide whether an application to lodge an appeal should be accepted.  But what if the successor to the Secretary is not a medical practitioner?  He would then be in no position to accept any application for an appeal.  That is where the amendment to Cap. 599L is unreasonable.  The enactment of any bill to improve an existing legislation has to be reasonable and lawful, and the absence of an appeal mechanism is a violation of the Basic Law and the Basic Law (sic).  According to Mr. Wu Liangyou, Deputy Head of the National Health Commission's Disease Control and Prevention Division, measures like Hong Kong’s Leave Home Save system, which is a tool to boost vaccination rate by allowing only properly vaccinated people to enter any scheduled premises, are irregular practices that are unlawful.  The relevant article is attached as page two of the appendix.

In view of the urgency of the matter, I pray that Your Lordship will grant me paper leave and an order that the implementation of 599L following its enactment be stayed, pending the substantive hearing of the application

12.  In a second affirmation, the Applicant stated (in translation):

When the government amended the provisions in relation to the medical exemption certificates and gazetted the amendment, they have missed out the fact that the relevant provisions were want of an appeal mechanism.  In the circumstances when the people affected are not provided with an appeal mechanism, the relevant provisions will bring about procedural injustice.  The absence of an appeal mechanism can be likened to an uncontrolled flow of a river which turns into flooding.  With the help of an appeal mechanism, it is like small drops of water splashed on the ground which can be wiped up.

13.  In essence, from these materials, I think there are perhaps three intended grounds of review, namely that the amendments are unlawful and/or unreasonable because:

(1)  there is no appeal mechanism for those holding an invalidated MEC;

(2)  whilst the incumbent Secretary is a doctor himself and is professionally qualified to determine the appeal, the next Secretary may not be a doctor and would thus be in no position to decide the outcome of an appeal;

(3)  because of a Mainland news report, it is illegal or unreasonable to condition access to certain premises upon vaccination.

14.  I can deal with each in turn.

C.  Merits

15.  As to the first intended ground:

(1)  This reflects a misunderstanding of the amended Cap 599L if the Applicant means that the affected MEC holders cannot regain exemption from the Vaccine Pass requirements.

(2)  It is correct that there are no express provisions in the amended Cap 599L allowing the affected holders to “appeal” or “overturn” a decision to invalidate MECs – whilst such right is expressly provided for the doctors who are the issuers of the invalidated MECs by making written represention to the Secretary: section 17A(5).  Though the power to revoke a declaration of invalidation under section 17E is not expressly tied to section 17A(5), that appears to be the sentiment  – e.g. the requirement to serve written notice on the affected medical practitioners under section 17E(3).

(3)  However, there are means for affected MEC holders to regain exemption.

(4)  Section 17C mandates the Secretary to make arrangement to enable an affected MEC holder to undergo a clinical assessment to determine whether he/she is unsuitable for vaccination before the invalidation comes into effect (i.e. 14 days from declaration).

(5)  Section 4(1A) enables the Secretary to make transitional arrangements in Vaccine Pass directions for affected holders, including the issuance of a transitional certificate.

(6)  Section 5A specifically enables the Secretary to issue a transitional certificate, where such a transitional certificate would serve as a functional equivalent to a specified MEC: see sections 5(2)(ba), 8(2), and 8(3).

(7)  There is no absolute bar prohibiting the affected MEC holders from regaining exemption from the Vaccine Pass requirement.

(8)  Nor do I think the arrangement provided under the amended Cap 599L is unreasonable.

(9)  Though, at one point, the Applicant seems to suggest that there would be administrative difficulties because the only way for the 20,000 affected holders to “appeal” against the invalidation decision is to come to courts, this stems from his misreading of the amended Cap 599L (or, perhaps, my previous Judgment).

16.  As to the second intended ground:

(1)  The Applicant seems to refer to the mechanism for doctors who are the issuers of invalidated MECs to make representation to the Secretary, and his power to revoke the invalidation declaration if he is no longer of the view that the necessary grounds for an invalidation declaration still exist: see sections 17A(5) and 17E.

(2)  If what the Applicant means is that there is a principled or inherent objection to allowing someone who is not qualified as a doctor the power to invalidate a MEC and then to revoke such invalidation, I do not agree.  The Applicant does not put forward any other grounds why such power should not be given to the Secretary (who can, of course, be properly advised).

17.  As to the third intended ground, this appears to be a wholesale attack on Cap 599L and the Vaccine Pass, but without any real direction or particularization.  Whilst I accept that time has moved on since my Decision in Law Yee Mei v Chief Executive of Hong Kong SAR [2022] HKCFI 688, I did there traverse some of the ground in holding 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.  Any challenge now would have at least to be brought with some particularity, as it is not for the Court to try to identify grounds for review from a general complaint.  As to this point, see also my Decision in HCAL 990/2022, [2022] HKCFI 3159, handed down at the same time as this decision.

18.  None of the three grounds apparently advanced by the Applicant are arguable with any realistic prospect of success.

D.  Disposition

19.  The Applicant’s application for leave to apply for judicial review is dismissed.

20.  I make no order as to costs.