LAW YEE MEI v. CHIEF EXECUTIVE OF HONG KONG SAR AND OTHERS

HCAL 151/2022

[2022] HKCFI 688

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 151 OF 2022

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J U D G M E N T

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A. Introduction

1.  The Applicant is unvaccinated against Covid-19. She wishes to challenge the decisions, legislation and rules relating to the so-called ‘Vaccine Pass’, and the way it affects unvaccinated people such as herself.

2.  There may well be room for people to say that a number of decisions and announcements made by the HKSAR Government relating to the Covid-19 pandemic have seemed to be: lacking in logic or common sense; riddled with inconsistencies; short on empathy and human understanding; detached from local personal and business realities; focused on distractions, hence being reactive to what seems urgent at the expense being proactive to what is important; blind to the need for a coherent longer-term strategy and contingency planning and the clear public communication of it; and sometimes even apparently contrary to the very ‘science’ which is invoked to justify them.

3.  But the specific focus of this case is the impugned ‘Vaccine Pass’ rules, and whatever other views might be expressed on them, the only relevant question is whether those rules are in breach of any principle of public law.

4.  These proceedings were commenced by a Form 86 dated 18 February 2022.  In it, the Applicant names the Putative Respondents as (1) the Chief Executive (“CE”) of the Hong Kong Special Administrative Region (“HKSAR”), (2) the Secretary for Food and Health (“SFH”), and (3) the Secretary for Innovation and Technology (“SIT”).

5.  By her Form 86, the Applicant seeks leave to apply for judicial review to challenge decisions (together, “Decisions”) described as:

(1)     the legislation and commencement of the Prevention and Control of Disease (Vaccine Pass) Regulation Cap 599L (“VP Regulation”); and

(2)     announcements and decisions made by the CE of the HKSAR and the SFH pursuant to Cap 599F, to add venues such as markets, supermarkets, malls and restaurants, inter alia, to a Vaccine Pass.

6.  The relief sought by the Applicant includes:

(1)     an Order to set aside Vaccine Pass and delist strategic venues necessary for basic livelihoods;

(2)     an interim injunction restraining the CE, SFH and the Government of Hong Kong, or its agents, from carrying out any action, whether enforcement or otherwise, to implement the Decisions until the determination of these judicial review proceedings.

7.  The Grounds on which relief is sought, as set out in the Form 86, are as follows (sic):

A)     Requirement of Vaccines Pass and vaccination denied me my rights to apply for a property agent license exams and lost job opportunity.

B)     The Vaccines Pass ban on access to Wet Markets and Supermarkets has denied me easy access to affordable food and daily necessities.

C)     The Vaccines Pass Ban will prevent me from access to the Courts as unrepresented litigant.

D)     The Vaccines Pass ban will prevent me from taking quick lunches in nearby restaurants near my workplace forcing me to travel home or to buy takeaway and force me to hunt for public places to eat while mindful that I will encounter great difficulties to find public places to sit down and eat because I will be denied entry to all public facilities.

E)     Further and better Grounds will be provided when the application is granted.

F)     Application for Legal Aid has been made.  The grounds for the Relief will be substantially modified or revised if the Legal Aid is granted.

8.  The Applicant’s affidavit, also dated 18 February 2022, made further reference to the application for Legal Aid.  The Applicant stated (sic):

I have already applied for Legal Aid … and awaiting approval.  And as my application for Judicial Review is premised on extremely complicated legal concepts and processes and covers a wide scope of areas of great public interest to the millions of unvaccinated people of Hong Kong SAR, highly qualified lawyers will need to be engaged by me, but only upon approval by the Legal Aid Department of my application.  I therefore petition to the court for more time to file further documents, and to wait for Legal Aid approval as well as time to seek highly qualified legal counsels to act for me thereafter.

9.  In my directions dated 21 February 2022, I noted that the VP Regulation came into operation on 10 February 2022, and under the VP Regulation it had been announced that there would be an expansion of the Vaccine Pass to cover more venues from 24 February 2022 onwards.  On the basis that those dates identified some potential urgency, and noting that the Applicant was not yet actually making an application for interim relief, and instead was seeking significant time within which to file further documents, I required the Putative Respondents to provide an Initial Response to the application by 5pm on 24 February 2022.  I also gave leave to the Applicant to file a Reply to the Initial Response by 5pm on 28 February 2022.

10.  The Putative Respondents filed the Initial Response on time (drafted by Mr Newton Chan, Senior Assistant Law Officer).  However, the Applicant then sought an extension of time within which to file and serve her Reply.  The broad basis of her request for more time was that (a) she does not understand the Initial Response, (b) she does not know how to prepare her Reply, and (c) she is in the course of applying for Legal Aid, but has not yet received the application result.  The period of extension of time sought by the Applicant was “at least two months”.

11.  By my directions dated 1 March 2022: (1) I extended time for the Applicant to file and serve her Reply, if any, to the Initial Response until 5pm on 4 March 2022; (2) I stated that if the Applicant failed to provide a Reply by that deadline, I would proceed to deal with the application for leave to apply for judicial review on the materials already available; and (3) I stated that if the Applicant did file a Reply by that deadline, then I would consider what further directions to give.

12.  In giving those directions, I noted my provisional view that there appeared real force in the points already made by the Putative Respondents in their Initial Response that the Applicant had failed to articulate any specific ground of review, and that there appeared to be factual misunderstandings on the part of the Applicant.

13.  By letter dated 3 March 2022, the Applicant continued to request “at least 2 months” to prepare, file and serve the Reply to the Initial Response.  On the materials, I was not prepared to grant any further time.  Clearly, where the intended challenge now mounted is to an ongoing and operating initiative implemented to combat the Covid-19 pandemic, it is appropriate that the challenge is dealt with promptly.

14.  However, as the Applicant had in her Form 86 requested an oral hearing if leave to apply for judicial review were not granted on the papers, on 8 March 2022, I required the Applicant to confirm whether or not she continued to request an oral hearing and made contingent arrangements for such an oral hearing.

15.  The Applicant chose to pursue an oral hearing.  The hearing was fixed for 11 March 2022, but on 9 March 2022 the Applicant informed that her brother, with whom she lives, had tested positive for Covid-19 so that as a close contact she would have to isolate for 14 days.  On 9 March 2022, I vacated the date and re-fixed the hearing for today, 30 March 2022.

16.  On 25 March 2022, the Applicant filed her written submissions and her Reply to the Initial Response.  However, at the same time she also asked for the hearing to be adjourned, on the basis that her application for Legal Aid had been dismissed but she had lodged an appeal due to be heard on 30 June 2022.  Against the points already made, I did not think that justified an adjournment for several months, and in the exercise of my discretion I directed the hearing to go ahead on 30 March 2022.

17.  Therefore, the hearing took place via VCF today. The Applicant appeared in person (using VCF equipment provided for litigants in person in this building), and the Putative Respondents were represented by Ms Liesl Lai, Senior Government Counsel (Ag), of the Department of Justice.

18.  This is my Judgment.

B.     Background

19.  The existence of the Covid-19 pandemic is well known.  It has caused significant and (for recent times, at least) unprecedented public health challenges worldwide, including in the HKSAR.

20.  It is also well known that the HKSAR has pursued a policy to combat the pandemic which is in line with the policy pursued in Mainland China, but one increasingly out of step with most other countries and regions.  That policy has been called the “zero Covid” policy, later shifted to or renamed as the “dynamic zero Covid” policy – though it did not inspire confidence that the person in charge of implementing the shift in policy could not give a clear description of it, also showing that a nice slogan is not a substitute for an actual strategy.

21.  There seems to have been little argument that, at least until perhaps mid-2021, the policy pursued in the HKSAR was on balance the correct policy, focused as it was on elimination or containment, permitting or ‘buying’ time for deployment of an effective vaccination.  However, from around mid-2021, numerous qualified persons (experts in public health) as well as lay persons began to question the apparent absence of any ‘exit strategy’, not least against the apparent failure to have achieved a sufficiently high rate of vaccination amongst the elderly and vulnerable.  Compounding concerns was the emergence of the Omicron variant at various places around the world, a variant quickly recognized to be highly transmissible even if thought generally more mild in effect than previous variants.

22.  As acknowledged by the Putative Respondents, it was and is incumbent on the Government to enhance epidemic control measures to seek to reduce the toll in human lives, and to avoid overloading of the public healthcare system, whilst at the same time not depressing the local economy.

23.  Though clearly not the only necessary part of a viable longer-term strategy, vaccination is one effective tool to mitigate the spread of Covid-19, and in particular to protect against severe illness.  The Putative Respondents point out that, even following the emergence of the Omicron variant, vaccination remains effective in preventing or reducing hospitalisation and the chance of developing severe complications after being infected.

24.  On the other hand, it might also be pointed out that vaccination will remain effective in reducing hospitalisation only if persons testing positive are not automatically hospitalised, even if they are asymptomatic or however mild their symptoms.  Filling hospitals with people who are not really “patients” – because they are not undergoing treatment and do not need it – risks compromising those who actually need treatment (and not just treatment for Covid-19).  Further, when the message has been constantly transmitted that all positive cases require immediate hospitalisation, it is perhaps not surprising that there was an upsurge in fearful persons seeking immediate hospitalisation when there was an upsurge in persons testing positive – though this was apparently either unforeseen or not sufficiently appreciated.

25.  In any event, the Government had implemented a territory-wide vaccination programme from late February 2021. Notwithstanding that, the vaccination rate achieved was not satisfactory.  In part, this might ironically have been the result of the HKSAR’s relative success in keeping numbers of infections and deaths very low, and – albeit with some restrictions on social activity – permitting a relatively normal daily life for most residents.  Perhaps a focus on elimination in the present without an announced strategy for the future did not help.  Perhaps poor communication giving rise to ‘mixed messaging’ also did not help.  Perhaps a false sense of security then contributed to the failure to achieve the public health priority of vaccinating from the most vulnerable down.

26.  While the vaccination rate of those aged 12 and above reached 80% on 6 February 2022 (counting those who had received at least one dose), that meant 20% of Hong Kong’s population aged 12 and above then remained unvaccinated – that is, more than 1.3 million people.  Out of those unvaccinated individuals, over 760,000 (over 56%) were aged 60 or above – and, based on global and local expert advice, those persons are most at risk of death and severe complications if infected with Covid-19.  The vaccination rate (counting those fully vaccinated with two doses) was even lower for higher age groups: 50% for those aged 70 to 79 and just 22% for those aged 80 and over.

27.  Late December 2021 saw the arrival in the HKSAR of what has been called the “fifth wave”, largely sparked by the Omicron variant.

28.  In order to tackle the fifth wave, the Government put in place a series of measures to strengthen epidemic control capabilities.  They included tightening inbound control measures, enhancing contact tracing, stepping up sewage surveillance, imposing compulsory testing requirements, enhancing testing capacity, tightening social distancing measures, and implementation of some home quarantine and home isolation.

29.  But the dramatic increase in new cases following the Chinese New Year holiday identified the need for further steps to be taken. One chosen step was to seek to boost Hong Kong’s vaccination rate by implementation of the Vaccine Pass.

C.     The VP Regulation and Amendments to Related Regulations

30.  The long title of the Prevention and Control of Disease Ordinance Cap 599 (“PCDO”) states as follows:

An Ordinance to provide for the control and prevention of disease among human beings; to prevent the introduction into, the spread in and the transmission from, Hong Kong of any disease, source of disease or contamination; to apply relevant measures of the International Health Regulations promulgated by the World Health Organisation; and to provide for connected purposes.

31.  Sections 7 and 8 of the PCDO permit the SFH and the Chief Executive in Council (“CEIC”) to make regulations in furtherance of the objects or purposes of the PCDO.

32.  Materially for present purposes, section 8 of the PCDO permits the CEIC to make regulations on an occasion of a public health emergency for the purposes of preventing, combating or alleviating the effects of the public health emergency and for protecting public health. Without limiting the generality of the powers, the particular regulation made may provide for such incidental and supplementary matters as appear to the CEIC to be necessary or expedient for the purposes of the regulation.

33.  Against the background set out above, at a meeting of the Executive Council on 8 February 2022, it advised and the CE ordered (amongst other things) that the following regulations should be made under section 8:

(1)     the Prevention and Control of Disease (Requirements and Directions) (Business and Premises) (Amendment) Regulation 2022 (“599F Amendment Regulation”) should be made to amend the existing Cap 599F to add religious premises, barbershops or hair salons, shopping mauls and department stores, markets, and supermarkets as scheduled premises, in order to subject them to the requirements in relation to “LeaveHomeSafe” and “Vaccine Pass” to be imposed in the directions made under Cap 599F; and

(2)     the VP Regulation (Cap 599L) should be made to introduce the legal framework for the implementation of the Vaccine Pass, including liabilities for a failure to comply with vaccination requirements for entering specified premises, in order further to boost vaccination coverage in Hong Kong.

34.  The 599F Amendment Regulation and the VP Regulation were gazetted on 8 February 2022, and laid on the table of the Legislative Council by way of negative vetting on 16 February 2022.

35.  On 21 February 2022, the SFH issued the Vaccine Pass Direction GN (E) 268 of 2022 (“VP Direction”), which provides that from 24 February 2022 onwards, the VP Regulation would be applicable to the following specified premises:

(1)     catering business premises; and

(2)     all existing scheduled premises under 599F (except the hotels/guesthouses, where only staff are to be subject to vaccination requirements), as well as

(3)     religious premises, barbershops or hair salons, shopping mauls and department stores, markets, and supermarkets – added as scheduled premises by the 599F Amendment Regulation.

36.  The VP Regulation requires that every person who enters or is present at any specified premises to have been vaccinated, following a designated timetable for receipt of the first, second and third doses.  However, children aged below 12 are exempted from the VP Regulation at this stage.

37.  In considering the premises to be covered under the VP Regulation, the Government took into account a number of factors, including (a) the number of persons present, (b) the distance between persons, (c) the duration of those persons’ presence, (d) activities to be carried out, (e) the ventilation of the premises, and the like.  These factors can be seen in section 3(3) of the VP Regulation.

38.  This is also reflected, for example, in section 3(2) of the VP Regulation, which provides that the SFH may make a vaccine pass direction in relation to any category of premises having regard to (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.

39.  As is evident from the identified specified premises, they are generally considered to be enclosed, indoor environments, where patrons would reasonably be expected to stay for a considerable period of time, with likely contact with workers and/or other patrons conducting similar activities.

40.  Section 5(1) of the VP Regulation provides that a person must not 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.  But, sections 5(2) and (3) provide that – so long as the person has, on request, provided personal particulars, address and means of contact – the requirement does not apply to certain persons, including (but not limited to) those who:

(1)     hold a specified medical exemption certificate (where the Department of Health has issued guidelines listing out the medical reasons for being unsuitable for vaccination);

(2)     enter the specified premises only for (i) placing an order for takeaway 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;

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

(4)     pass through the specified premises only for receiving vaccination or medical treatment, or undergoing a specified test, that is provided in a place other than the premises;

(5)     enter or pass through the specified premises only for receiving essential government services (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;

(6)     enter or pass 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.

41.  Section 5(2)(k) also provides that, subject to section 20, an exemption exists that a person has lawful authority or reasonable excuse for entering or remaining on specified premises without having been vaccinated in the specified manner.  The policy intent behind that exception is that a person is considered to have a reasonable excuse if the purpose is for travelling to and from home or travelling to or from his or her place of work.

D.     Is There Merit in the Intended Challenge?

D.1    Overview of Intended Challenge and Response

42.  I have set out above the Grounds of intended challenge, as identified by the Applicant in her Form 86.  It is perhaps fair to describe them as a list of personal inconveniences, rather than specific allegations relating to any breach of identified public law duties. Indeed, in her affidavit, the Applicant in the main sets out the reasons why she is “personally aggrieved”.  There is, however, also the general statement that the Applicant seeks

to obtain an order of relief to stop the [Putative Respondents] from acting and continuing to act in excess of its powers to use the Vaccine Pass to ban and deny the unvaccinated their basic human rights as human beings and residents to access and utilize services and goods situated in many locations …

43.  I think it also fair to say that even in her late written submissions filed for this hearing (see below), and the oral submissions made at the hearing, there was some focus on the inconveniences she suffers from the Vaccine Pass requirements.

44.  For the Putative Respondents, Mr Chan and Ms Lai identify the three main bases upon which they say leave to apply for judicial review should be refused.  They are:

(1)     the Applicant fails to identify any specific ground of review in her Form 86;

(2)     judicial review proceedings should not be allowed to proceed on the Applicant’s factual misunderstandings; and

(3)     the purported grounds of challenged advanced (if there are any) do not have reasonably arguable prospects of success.

45.  I can consider those matters each in turn, except that the second and third points seem to me to be in part overlapping.

46.  I will also address the points raised in the Applicant’s written submissions and Reply to the Initial Response.

47.  In doing so, I will apply the settled test for the grant of leave to apply for judicial review.  An applicant for leave is required to demonstrate that the intended grounds of challenge are reasonably arguable with a realistic prospect of success.

D.2    Failure to Identify any Ground of Review

48.  It is well-settled that grounds for quashing the exercise of administrative power by the Court, if well founded, should be capable of being stated clearly and succinctly in a few numbered paragraphs: see, for example, Lau Kong Yung v Director of Immigration (1999) 2 HKCFAR 300, at 339H-340H.

49.  But, I agree that in this case the Applicant has failed to state any proper ground in support of the application for leave to apply for judicial review.  That is in breach of Rules of the High Court Order 53 rule 3(2)(a), which is in mandatory terms.  As has been frequently stated, it is not the Court’s role to identify any ground of review for an applicant.

50.  The breach is only emphasised by – and is certainly not avoided or excused by – the Applicant’s statement that she will provide further and better Grounds, only if her application for Legal Aid is granted, and that those grounds would substantially modify or revise what she has already said.  Nor is the breach excused by the ‘bootstraps’ statement in the Applicant’s affidavit that her application is premised on extremely complicated legal concepts and processes and covers a wide scope of areas of great public interest requiring highly qualified lawyers to be engaged.

51.  With respect, that statement, combined with the Applicant’s repeated requests to the Court to grant her “at least 2 months” to file further documents, simply identifies that the Applicant can only make a general complaint and – at least until later written submissions – is unable to identify any specific ground of public law challenge.

52.  This is sufficient, on its own, to lead to the refusal of the application for leave to apply for judicial review.

53.  I also take into account the practical reality that the Applicant is not able to launch, and has not yet really launched, an actual application for grant of the suggested interim relief.  The applicable legal principles governing the grant of such interim relief in the public law context are well settled: the applicant has to establish a strong prima facie case that the impugned law is invalid.  Further, it would only be in an exceptional case that interim relief might be granted where leave to apply for judicial review has yet to be obtained.  It seems to me that the Applicant in this case has not pursued the suggested interim relief, because she cannot identify proper grounds as might suggest even a prima facie case that the impugned law is invalid.

54.  Rather, subject to the late material filed by her, the Applicant is telling the Court that she wishes to complain, and hopes that in due course she will be able to identify a proper basis to make that complaint.  Judicial review does not exist for such a purpose.

D.3    Factual Misunderstanding and Individual Grounds

55.  It is perhaps convenient to deal with each of the lettered paragraphs in the ‘Grounds’ section of the Applicant’s Form 86.

56.  In paragraph A, the Applicant argues that requirements in the VP Regulation and vaccination deny her rights to apply for a property agent license exams and lost job opportunity.  This is on the basis, explained in her affidavit, that she would be prevented from taking the exam because entry to the examination venue would require vaccination –  though the ‘rules’ described as being at Exhibit 1 to her affidavit were not actually exhibited.

57.  In any event, I agree with Mr Chan and Ms Lai that the Applicant’s aspiration to qualify as a licensed property agent is not to be elevated into a basic human right under the Basic Law or the Hong Kong Bill of Rights Ordinance.  Further, it seems that the Applicant’s complaint is based upon a misunderstanding.  The Putative Respondents’ understanding is that examinations organised by the Estate Agents Authority are mostly held in schools and premises managed by the Vocational Training Council.  Those premises are not specified premises for the purposes of vaccination requirements imposed by way of the VP Regulation or Cap 599F. If there are vaccine requirements imposed by the examination premises operator, they would be administrative measures, imposed as a result of decisions outside the scope of the VP Regulation and Cap 599F, and so not amenable to judicial review in the present application.  I do not think it is reasonably arguable that administrative measures adopted by some parties are the result of the VP Regulation and/or Cap 599F “setting a bad example” (as the Applicant suggests), and in any event that does not engage any recognised right or ground of review.

58.  Paragraphs B and D complain of the denial of easy access to affordable food and daily necessities at wet markets and supermarkets, which is explained further in her affidavit as causing huge inconvenience to her daily life, and including forcing her to travel home or to buy takeaway or to find public places to eat which would cause great difficulties.  Indeed, as already noted, the Applicant’s complaint is really one of inconvenience, and I do not think that access to wet markets or supermarkets can arguably be described as basic rights.  There are also, of course, plenty of alternatives for the Applicant to obtain food, meals and daily necessities, even with the VP Regulation in place.  There is also a wide range of exemptions identified in the VP Regulation itself to cater for daily needs of those who choose to remain as unvaccinated residents.

59.  I also accept the submission that the current public health situation in Hong Kong is grave, and the VP Regulation is broadly in the societal interest, 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.

60.  The complaint at paragraph C, that the VP Regulation would prevent the Applicant from access to the Courts as a non-represented litigant, is simply misconceived – as her presence in the High Court Building for attendance at the hearing this morning makes plain. Further, I have already identified the specific exemption from the requirements of the VP Regulation applicable to persons who enter premises only for appearing as a party to court proceedings in specified premises.

61.  Paragraphs E and F, which suggest further and better Grounds will be provided, or the existing grounds would be substantially modified or revised, if Legal Aid is granted, take the intended challenge no further.

E.     Merits Generally

62.  Despite his primary submission, which I have accepted, Mr Chan and Ms Lai have properly gone on to address the merits of the intended challenge by reference to the fundamental rights potentially or conceivably relied upon by the Applicant as being engaged.  Reference is made to the liberty of movement under BOR 8 and the right to private life under BOR 14.  But, as is pointed out, those rights are not absolute.  There is no breach of the rights if the restriction of rights is prescribed by law, is not arbitrary, and can be justified under the well-known four-step proportionality test: see Hysan Development Co Ltd v Town Planning Board (2016) 19 HKCFAR 372 at §§134-135.

63.  I also accept that the appropriate standard of review is that of “manifestly without reasonable foundation”, rather than the more stringent standard of “no more than reasonably necessary”: see, for example Syed Agha Raza Shah v The Director of Health [2020] HKCFI 770 at §9(3); and Horsfield v Chief Executive of the HKSAR [2020] HKCFI 903 at §36(3).

64.  In her late written materials, the Applicant has now sought to identify the “fundamental rights” which she claims has been breached, and to suggest why the Vaccine Pass rules are manifestly without reasonable foundation.  She says that (capitals in original):

Essentially, my rights are encapsulated in the Common Laws of Hong Kong with RIGHTS TO HUMAN DIGNITY and rights under the International Convention on Economic, Social and Cultural Rights (ICESCR) as well as my rights as resident of HKS a to expect the HKS a government to exercise its powers under Cap 599, fairly, reasonably and proportionally.

65.  The Applicant submits that local case law is clear that the Hong Kong Courts will take rights encapsulated in the ICESCR as persuasive in deciding local cases, and that her human dignity has been infringed. She says she has been cast as “inferior”, as if she were an animal with a deadly infectious disease, so that she cannot step foot in wet markets and supermarkets providing basic food and necessities.  She says the Vaccine Pass regulations are discriminatory against her as an unvaccinated person, degrading and inhumane.  She also says that the Vaccine Pass rules are draconian, arbitrary and disproportionate.

66.  The Applicant’s suggestion that she has been cast as “inferior”, or as though she were an “animal with a deadly infectious disease”, though colourful, is inapt to the situation.  The Vaccine Pass does not designate any unvaccinated person as inferior or treat them as being infectious.  Rather, there are the twin purposes of (1) promoting and encouraging unvaccinated persons to take up the opportunity of being vaccinated (the main purpose identified by Government) and (2) reducing the presence of unvaccinated persons in locations reasonably understood as likely to facilitate transmission of Covid-19.  Rather than treating the Applicant as infectious, the Vaccine Pass reduces the locations where she can come into contact with infectious people, and promotes a vaccination which likely mitigates the effect of becoming infected.

67.  Mitigating the likely effects of becoming infected is good not just for the individuals concerned, but for society as a whole as it reduces the strain on limited healthcare resources.  Insofar as there is now an attempt to rely on Article 3 of the Bill of Rights, it is not arguable to suggest that the Applicant’s human dignity has been degraded, or that she has suffered from any cruel or inhumane treatment.

68.  With respect, the Applicant’s suggestion that the Vaccine Pass rules breach her basic right to adequate food is also without basis.  Her reliance upon Article 11(1) of the ICESCR, referring to unrestricted access to adequate food, is misplaced.  First, Article 11 of the ICESCR does not have the force of law in Hong Kong as it has not been domesticated as a part of Hong Kong law, so creates no right (though I accept that reference might be had to it in appropriate circumstances to recognise its aspirational aspects).  Secondly, I do not think it is reasonably arguable that the Vaccine Pass removes the Applicant’s (or other unvaccinated persons’) physical and economic access at all times to adequate food or the means for its procurement.  There is certainly nothing like a blanket ban of the unvaccinated from accessible food and daily necessities.  In a relatively small geographical area like Hong Kong, with its extensive public transport system, and numerous outdoor markets and stalls which are not subject to the Vaccine Pass requirements, it is untenable to argue that there is no access to adequate food at an affordable price.  There are also numerous online stores.

69.  I also recognise, as reminded by Ms Lai, that if reference is to be had to the ICESCR then it can be noted that Article 12(2)(c) of the ICESCR provides more contacts, stating that the steps to be taken by state parties to achieve the full realisation of the right to the enjoyment of the highest attainable standard of physical and mental health shall include those steps necessary for “the prevention, treatment and control of epidemic, endemic, occupational and other diseases”.

70.  The Applicant also submits that the Vaccine Pass (or the “ban on the unvaccinated”, to use her own phrase) cannot satisfy the proportionality test.  She says that it disregards “the latest science and litany of reports from other nations” that arrangements similar to the Vaccine Pass – and vaccines themselves – no longer work as effectively against the spread of the latest variants.  She points to other countries where similar arrangements previously in place have since been scrapped.

71.  The Applicant also points to her inability to obtain daily discounted prices of food in wet markets (not available elsewhere) and the extra costs of using food delivery services or ordering from online stores, to underscore the Applicant’s submission that there has been a failure of careful assessment of the realities at the grassroots levels of different districts and socio-economic conditions of different segments in Hong Kong.  I have already identified why I do not think the factual matters asserted are reasonably supportable.  But, the Applicant says that these points identify that the Vaccine Pass rules are manifestly unreasonable – and so cannot pass the proportionality test.

72.  On the first step in that test, the Vaccine Pass requirements are prescribed by law, found in the PCDO and the subsidiary legislation including Cap 599F and the VP Regulation.

73.  Further, as regards the second step, the requirements are in my view obviously pursuing the legitimate aim of protecting public health and are rationally connected with the advancement of that aim. If proof were needed, recent events in Hong Kong have demonstrated the real value in encouraging persons to become vaccinated, as it is the unvaccinated who have disproportionately suffered from the worst effects of being infected with Covid-19.

74.  I do not think it helps the Applicant’s argument to point to other countries which have chosen either not to impose similar Vaccine Pass rules or have chosen to withdraw them after implementation.  Each country will approach its public health situation by reference to the particular circumstances of its own situation.  Though Hong Kong could, and probably should, look abroad to learn from the experience of other countries, Hong Kong should apply any learning in the context of, and in addition to, its own particular circumstances.  I note that the LegCo Brief prepared for the consideration of the Vaccine Pass rules reviewed certain scientific literature and the situation in Hong Kong.

75.  Nor does it seem to me to help the Applicant’s argument to identify the recognition that vaccine effectiveness wanes over time.  Saying that a vaccine may become less effective over time does not mean that there is no point in vaccination at all – and it must be remembered that the Applicant retains her own choice as to whether or not to be vaccinated.

76.  Also, the rational connection of the VP Regulation with the advancement of the legitimate aim of protecting public health can be found in the VP Regulation itself, which (as already set out above) provides that the SFH may make a vaccine pass direction in relation to any category of premises having regard to (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.

77.  As to the third and fourth steps of the proportionality review, I accept that a wide margin of discretion should be accorded to the Government in assessing the legality of Covid-19 measures.  I do not consider that either the impugned VP Regulation or Cap 599F are manifestly without reasonable foundation in the light of the prevailing circumstances.

78.  Lastly, the impugned measures seem to me to strike a reasonable balance between (1) the societal benefits of the restriction or encroachment, namely the protection of public health in Hong Kong which is of paramount importance, and (2) the restricting of the Applicant’s individual rights.

79.  In reaching that conclusion, the following points seem to me to be of particular relevance:

(1)     Hong Kong is a geographically small, densely populated and highly urbanised area.

(2)     The Hong Kong population is highly mobile within the city during the course of ordinary, everyday life.

(3)     The requirements in the impugned legislation are imposed on a limited number of specified premises (even if not a small number of such specified premises), being those with considerable ‘footfall’ and flow of people, often inside and at close quarters as can reasonably be considered to give a higher risk of transmission of Covid-19.

(4)     The relevant activities and/or services involved at those specified premises are not of absolute necessity, where residents have many alternatives for conducting similar activities and/or obtaining similar services (even if not always at exactly the same cost).

(5)     The VP Regulation also embodies a range of exemptions to cater for the crucial needs of residents, and to limit some of the inconvenience otherwise caused.

(6)     The VP Regulation is not intended to be a permanent measure, and has an express expiry date of 31 December 2022.  The temporary measures are subject to regular review, and there is also the express power of revocation.

(7)     There is no legal requirement for Hong Kong residents to be vaccinated against Covid-19.  Whether or not to be vaccinated remains absolutely the choice of the resident.

80.  On that last point, the Applicant stressed several times at the oral hearing her wish to be able to choose whether or not to be vaccinated, not least where her own expressed opinion is that neither the vaccination nor a Vaccine Pass are useful to the control of the pandemic.  But, she plainly has that choice, and it can be noted that she has actually made that choice (though it is also entirely open to her to change her mind).

81.  However, it should also be obvious (and I take into account) that part of the purpose of the VP Regulation can be understood as seeking to extend health protection, including to those residents who choose not to be vaccinated – people like the Applicant herself.  Reducing the circumstances in which unvaccinated people attend places conducive to high rates of transmission, and encouraging unvaccinated people to become vaccinated, can properly be regarded as a suitable public health aim in Hong Kong.  As already mentioned, the enormously disproportionate impact on the unvaccinated (as compared to the vaccinated) – which the Applicant accepted during the hearing – has been shown by recent events.  Similarly, the impact on limited healthcare and other related resources has also been shown.  In those circumstances, it seems to me to be plain that a reasonable balance has been struck in this instance.

82.  Indeed, further, it is understandable that a number of people who feel that they have fully complied with various Government requests and restrictions over the last 24 months – including by overcoming any personal hesitancy or reluctance to seek vaccination – should feel, and have expressed, some consternation that they have faced yet more requests and greater restrictions in part to seek to protect those persons who have chosen not to protect themselves (and others) through vaccination.

83.  In any event, there are no grounds of review advanced by the Applicant which are reasonably arguable with any realistic prospect of success to impugn the Decisions.  The VP Regulation and the material amendments to Cap 599F are justifiable and proportionate in the public law sense, and there is no other basis to regard them as in breach of any principle of public law.

84.  I would add that, in so far as the SIT has been named as the 3^rd Putative Respondent, the Applicant has wholly failed to identify any relevant decision in which the SIT was involved.  That is another reason why the application lacks any merit.

F.     Result

85.  On that basis, I dismiss the Applicant’s application for leave to apply for judicial review.

G.     Costs

86.  Ms Lai seeks the Putative Respondents’ costs on the indemnity basis.  She does so on the basis that the present application was not only ill-conceived or unmeritorious, but was based upon fundamental factual misunderstandings, following a failure to seek clarifications which were readily available from open source materials.  The ill-conception and lack of merit is, he says, evident from the complete failure to specify any proper ground of challenge by way of judicial review.

87.  Notwithstanding that lack of merit, the Putative Respondents have incurred time and costs in preparing the Initial Response, to render assistance at the Court’s invitation – and I accept they have done so on an urgent basis against what seemed to me to be the necessarily tight timetable.  Ms Lai also refers to the attempt to deploy at the “11^th hour” various diffuse materials, once it was clear that the Court would not accede to the repeated applications to put off dealing with the Applicant’s own challenge pending her hope to obtain Legal Aid in the desire that a proper legal basis might be identified for her intended challenge.

88.  The Applicant asks that costs not be ordered against her.  She says she wrote a letter of demand, but received no response and so filed the current application for leave to apply for judicial review. She says she has come to court because the government did not listen to her or unvaccinated people collectively, or to the common people of Hong Kong. Further, the Applicant suggests that the proceedings seek to advance a legitimate public interest case before the court, which will contribute to the proper understanding of the law in question.

89.  In the overall exercise of my broad discretion on costs, it seems to me that the appropriate order to make is that there be no order as to costs.  Whilst perhaps not applicable in the usual circumstances, I think the three criteria of ‘public interest litigation’ are broadly satisfied here, namely: (a) the litigant has properly brought proceedings to seek guidance from the court on a point of general public importance, so that the litigation is for the benefit of the community as a whole, to warrant the costs of the litigation being borne by the public purse as costs incidental to good public administration; (b) the judicial decision has contributed to the proper understanding of the law in question; and (c) the litigant has no private gain in the outcome.

90.  I have taken into account that, even in this context, (1) a lack of merits will rarely save a party from an adverse order for costs, so that the evaluation of merits and the conduct of the parties is part of the consideration as to whether or not the litigation really concerned a matter of sufficient public importance, and (2) if an applicant cannot satisfy the minimum threshold for grant of leave to apply for judicial review, the applicant will ordinarily not be able to contend that canvassing his arguments in court is or was in furtherance of public interest.

91.  But in this case, I have decided that the lack of merits in the application does not overbalance the fact that the application has enabled focus on new legislation and rules which are intended to be for the benefit of the community as a whole.  It is helpful for good public administration for there to have been judicial decision to contribute to the proper understanding of the law in question at a relatively early date after the creation of the Vaccine Pass.  I also take into account the fact that the Applicant has incurred no costs as she acts in person, so the only costs are those incurred by the Putative Respondents in assisting the Court (and they are not being required to fund any costs for the Applicant).

92.  Therefore, as said, I make no order as to costs.