吳振權 v. 香港特別行政區政府

HCAL 990/2022

[2022] HKCFI 3159

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 990 OF 2022

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D E C I S I O N

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A.  Introduction

1.  ‘The operation was successful, but the patient died’. So runs an old ironic saying in medicine, which points up the danger in focusing too narrowly on just one aspect of overall health. Most people would not think an operation successful if the patient dies, still less if it is the way the operation is performed which causes the patient to die. There may well be room for some people to worry that the saying risks becoming an appropriate comment on the steps taken to combat Covid-19 in Hong Kong.

2.  The Applicant in this case appears to be one of those people. By a Form 86 filed on 23 September 2022, the Applicant seeks to challenge “the Government’s current regulations, policies and measures on epidemic prevention” (香港特別行政區政府現時的防疫規例，政策措施). The relief sought as set out in the supporting affirmation is an order of mandamus to “cancel all or most of such regulations, policies and measures”.

3.  The application was apparently inspired by a news report dated 19 September 2022, featuring a joint article authored by Professor Yuen Kwok Yung and three other experts calling for “back to normal”, with the lower toxicity and mortality rate shown by the Covid-19 variants prevalent since June 2022.

4.  I can deal with the application on paper.

B.  The Subject of Challenge and the Relief Sought

5.  It is central to a judicial review application to identify a clearly defined target of challenge. RHC Order 53 rule 3(2) states that an application for leave to apply for judicial review “must be made ex parte by filing a notice in Form No. 86 in Appendix A” to the rules. The relevant ‘box’ on the Form 86 requires an applicant to specify the “Judgment, order, decision or other proceeding in respect of which relief is sought”. Against that box, the Applicant in this case has written “none” (in Chinese). It is only in the ‘Relief Sought’ box that the Applicant has specified that he seeks (as translated) “Judicial review on the HKSAR Government’s current regulations, policies and measures on epidemic prevention, document P.1 to P.65”.

6.  Judicial review is not an avenue for individuals to express general complaints about the executive Government’s performance in a broadly defined area. Rather, it should be a focused and structured enquiry process holding clearly identified administrative decisions or actions to the test of public law compliance.

7.  Yet, as shown above, the target of the intended challenge here is cast in the widest possible terms. So is the relief sought. The Applicant does not seek to particularize any specific regulations, policies or measures he says are public law non-compliant or that he seeks to “cancel”.

8.  As is well-known, the Government has imposed an array of anti-epidemic regulations, policies and measures. Some of them are implemented by way of enacting subsidiary legislation – the “regulations” under section 8 of the Prevention and Control of Disease Ordinance Cap 599 (“Cap 599”). They cover social distancing measures, vaccination requirements, quarantine requirements, and most of the other measures that would amount to restrictions on individuals’ activities. Some measures are implemented by way of policies and administrative actions, such as those aiming to alleviate the negative economic impact on the HKSAR, including the distribution of consumption vouchers to individuals and anti-epidemic funds to businesses.

9.  The Applicant’s casting the target of intended challenge this wide, coupled with the equally wide relief sought, is unhelpful in directing the Court’s enquiry. The relief sought as described seems to ask the Court to pick and choose which regulations, policies or measures to retain and which to remove, unless all of them are to be removed. Tempting as it might be for someone to embark on that process, this is not the Court’s role in judicial review.

10.  These points would of themselves be fatal to the intended application.

11.  Nevertheless, whilst the broad and general nature of the target and relief sought have made them unsuitable subjects of judicial scrutiny, I shall also quickly address the Applicant’s arguments, doing them as much justice as I can.

C.  Merits of the Application

C.1  The Starting Point

12.  The Applicant acts in person and the Form 86 is homemade.

13.  The key to the Applicant’s case seems to be the assertion that the “Covid-19 epidemic” no longer exists. I gather what he means is that the variants of the virus prevalent since June 2022 are much less potent, so causing a lower mortality rate among the infected; it has been reduced to an “endemic” or “common flu” such that it could not be said that an epidemic has persisted in Hong Kong.

14.  The evidence relied upon by the Applicant comes from the news report referred to above. There, it is reported that Professor Yuen and other professors/doctors were of the opinion that the toxicity and mortality rate caused by the variants responsible for the outbreak of the so-called ‘6^th wave’ in June 2022 – Omicron BA.2.2, BA.2.12.1 and BA 4/5 – were lower than the previously prevalent virus strains. Coupled with the immunity barrier already built up by vaccination and natural infection, the experts were of the view that, with the implementation of proper measures in a multi-pronged approach, a large outbreak would not revisit Hong Kong in the coming winter.

15.  The Applicant has also exhibited to his affirmation other news reports expressing sentiments that the anti-epidemic restrictions in Hong Kong should be relaxed. He also refers to the removal or relaxation of Covid-19 restrictions in other parts of the world, supported also by news reports.

16.  From the suggested starting point – i.e. that there no longer exists in Hong Kong an epidemic, or that Covid-19 has weakened to a “common flu” – the Applicant argues that the continuation of the now applicable anti-epidemic regulations, policies or measures are both illegal and unreasonable. I shall refer to those arguments as the “Legality Ground” and the “Rationality Ground”.

C.2  The Legality Ground

17.  At first sight, and with some benevolent reading of the materials, it seems that the Applicant seeks to advance a conventional vires argument.

18.  Reference was made to section 8 of Cap 599, the first part of 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.

19.  Reading the Form 86 and supporting affirmation favourably to the Applicant, his Legality Ground may perhaps run as follows:

(1)  The Government’s powers to implement the anti-epidemic regulations come from section 8(1). Such powers are premised on the existence of a “public health emergency”. Covid-19 has ceased to be such a public health emergency since June 2022, and so has the legal basis for the exercise of such powers.

(2)  Section 8(2) imposes a duty on the Government to review the public health emergency from time to time. In view of the latest developments since June 2022, the Government in complying with its duty should have cancelled all or most of the anti-epidemic regulations.

20.  “Public health emergency” is defined in section 8(5) of the Ordinance:

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.

21.  In other words, there are two statutory conditions for something to meet the definition of a “public health emergency”: (1) there must be the occurrence/existence of one of the matters in either paragraph (a), (b) or (c); and (2) the matter which occurs/exists must be one that has a high probability of causing a large number of deaths or a large number of serious disabilities in the population.

22.  Obviously, there may come a time when the continued existence of one of the matters in paragraph (a), (b) or (c) nevertheless no longer gives rise to a high probability of causing a large number of deaths or a large number of serious disabilities in the population. At that point, a “public health emergency” has ceased to exist.

23.  The references in the supporting affirmation that Covid-19 (in the form of the now prevalent variants) is no longer “highly infectious” or “has ceased to be an epidemic” are possibly referring to section 8(5)(a) and section 8(5)(b). The reliance on the news report also tends to suggest that the Applicant may argue that the now prevalent variants no longer have “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”.

24.  Whether the latest development of the Covid-19 situation has taken it out of a “public health emergency” is a question which could only be answered with the assistance of medical opinion (preferably from specialists in public health), accurate statistics and upon the true construction of the term. I do not have that material (from either side of the potential argument).

25.  But for the fair disposal of the Legality Ground in this case, I do not think it is strictly necessary for the Court to form a firm view on whether the Covid-19 situation in Hong Kong since June 2022 or any other date has ceased to be a “public health emergency” as defined under section 8(5).

26.  The trigger for the powers under section 8(1) is not the existence of a public health emergency (as the Applicant seems to have suggested), but that there is an occasion which the Chief Executive in Council (“CEIC”) considers to be an occasion of a public health emergency.

27.  The Applicant does not argue that the CEIC, at any point since June 2022, has not been holding the view that there was or would be a public health emergency arising from Covid-19. Nor has the Applicant presented any evidence to that effect. There is simply no factual assertion supporting a vires challenge in the form alluded to by the Applicant.

28.  If it is assumed that the CEIC has indeed been holding the view necessary for triggering the powers under section 8(1), the only available conventional ground of challenge would be an assertion of irrationality as to that view. Such a challenge has not been raised. Whilst I, therefore, do not need to (and do not) express any view whether it is irrational in the public law sense for the CEIC to hold the view that such an occasion exists, it is settled law that the hurdle of showing irrationality would be high.

29.  The second strand to the Legality Ground – premised on the duty to review under section 8(2) – is also without merit. There is no basis to suggest that the Government has been not reviewing the situation. There is a gap between a review of the situation and the removal of all or most of the anti-epidemic regulations upon a review. That there has been no removal of all or most of the regulations does not mean there has been no review. Whether, upon review, there ought to have been removal of any particular regulation or other measure is a different question.

30.  The Legality Ground as apparently raised in this action is not reasonably arguable.

31.  But, before leaving this ground, I might make the following points:

(1)  As seen from its terms (see above), what section 8 of Cap 599 requires is an assessment – and a continuing assessment or review – as to how potentially to react to a perceived “public health emergency” by use of regulations.

(2)  But section 8 itself puts that assessment and any review in the context of the much broader concept of protecting the “public health”.

(3)  Part of a problem which may arise is from a failure to see that there is, and that the legislation has drawn, that distinction between (a) a “public health emergency” and (b) the “public health”.

(4)  The former arises on a particular ‘occasion’ of a particular disease or epidemic etc, whilst the latter is a far wider concept embracing all aspects of public health.

(5)  The regulations which might be issued under section 8 are for the twin purposes of (a) preventing, combating or alleviating the effects of the public health emergency and (b) protecting public health.

(6)  Whilst Cap 599 understandably requires the Government to put focus on combatting and alleviating the public health emergency, that focus should not be permitted to blind anyone to the concurrent need to protect public health in its wider sense.

(7)  As matter of construction and ordinary common sense and logic, the protection of “public health” is not limited to protecting public health only from the perceived “public health emergency”.

(8)  Measures previously effective to combat a public health emergency may lose efficacy, and may be or become counter-productive to wider public health issues.

(9)  Therefore, if a measure taken to prevent, combat or alleviate the effects of a “public health emergency” fails to protect “public health”, or if it even actually damages or harms “public health”, it can be argued that measure is not lawful.

(10)  A proper balance must be made between the two purposes of combatting one disease and protecting public health overall.

(11)  It can also be argued that the proper balance must take account of the possibility that vast public expenditure on certain public health measures arising from one disease will divert energy and resources away from far greater, wider and longer-term public health issues.

(12)  Otherwise, the operation might be successful but the patient dies.

C.3  Rationality Ground

32.  It appears that this ground primarily might rely on the point that the regulations, polices and measures were made on what is now said to be the incorrect basis that Covid-19 continues to cause an epidemic in Hong Kong. There are also references to the fact that the regulations and measures greatly restrict individuals’ fundamental rights and freedoms, as well as hampering the overall interest of Hong Kong.

33.  Though these generalities are well-known, no specific rights are identified, by referencing the legal sources where such rights are enshrined, and no elaboration is given on how the interests of Hong Kong are impacted.

34.  All anti-epidemic regulations, policies and measures are apparently within the target of this ground. The regulations, policies and measures are examples of the making of socio-economic policies where the Court is accustomed to accord to the Government a broad margin of appreciation. This is especially so when the Applicant seeks not only to challenge a single well-defined decision but a basket of different regulations, polices and measures with wide-ranging and possibly interactive effects.

35.  Some news reports featuring experts and others calling for a certain general direction in which the Government policies should go is far from sufficient to raise a reasonably arguable ground to trigger wholesale judicial scrutiny over all of the Government’s anti-pandemic regulations, policies or measures. Some general references to the freedoms and rights of individuals and adverse economic impact cannot assist the Applicant further. The Applicant’s stated desire to call certain witnesses without apparently first contacting them and obtaining in advance any real identification of what they might say in evidence also does not assist.

36.  The Rationality Ground is not reasonably arguable.

D.  Conclusion

37.  The Applicant’s leave application is, therefore, dismissed. In the exercise of my overall discretion, I make no order as to costs.