HAIDER ALI v. SOCIAL WELFARE DEPARTMENT

HCAL 2007/2020

[2020] HKCFI 2611

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2007 OF 2020

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D E C I S I O N

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1.  In this application for leave to apply for judicial review, the Applicant seeks to challenge the regulation which has been in force in Hong Kong since 23 July 2020 imposing compulsory mask wearing in public places in response to the outbreak of COVID-19 globally, including Hong Kong.

2.   The relevant regulation is found in the Prevention and Control of Disease (Wearing of Mask) Regulation (Cap. 599I) (“the Regulation”), the relevant provisions of which state as follows:

“3   Specification by Secretary for Food and Health

(1)  For preventing, protecting against, delaying or otherwise controlling the incidence or transmission of [COVID-19], the Secretary for Food and Health may, by notice published in the Gazette -

(a)  specify any or all public places, or a category or description of public places, for the purposes of this Regulation;

…

(c)  specify a period for the purposes of section 5A(1).

(2)  Any period specified under subsection (1)(b) or (c) must not exceed 14 days.

(3)  Any notice published under subsection (1) is not subsidiary legislation.

5A.Requirement to wear mask in specified public place during specified period

(1)  During a specified period, a person must wear a mask at all times when the person is entering or present in a specified public place.

(2)  However, subsection (1) does not apply to -

(a)  a person who is under the age of 2;

(b)  a person who has lawful authority or reasonable excuse for not wearing a mask; and

(c)  a person participating in proceedings in any court, statutory tribunal or statutory board who is directed or permitted by the court, tribunal or board not to wear a mask.”

3.  For the purpose of the Regulation:

(1)  “public place” means “(a) any place to which for the time being the public or a section of the public may or are permitted to have access, whether on payment or otherwise; but (b) does not include a public transport carrier or an MTR paid area”;

(2)  “specified period” means, “in section 5A(1) - a period specified under section 3(1)(c)”; and

(3)  “specified public place” means “a public place, or a public place that is of a category or description, specified under section 3(1)(a)”.

4.  By G.N. (E.) 88 of 2020 dated 22 July 2020, the Secretary for Food and Health specified, under s 3(1)(c) for the purpose of s 5A(1) of the Regulation in relation to the requirement to wear masks in specified public places, the period of 14 days from 23 July 2020 to 5 August 2020.  The “specified period” has since been extended from time to time.  By G.N. (E.) 150 of 2020 dated 29 September 2020, the specified period was extended to 8 October 2020.

5.  The application for leave to apply for judicial review is refused, for the following reasons.

6.  First, the Applicant has failed to state the relief sought or the grounds on which it is sought, as required by Order 53, r 3(2)(a)(iii) of the Rules of the High Court (Cap 4A).  As has been stated by this court on many occasions, these requirements are mandatory, not optional.

7.  Second, the Applicant has named the “Social Welfare Department” as the Putative Respondent in this application.  However, the Regulation was not made by the Social Welfare Department, or the Director of Social Welfare.  It was made by the Chief Executive in Council under s 8 of the Prevention and Control of Disease Ordinance (Cap 599).  There is no proper basis for the Social Welfare Department, or the Director of Social Welfare, to be made the Putative Respondent in the present case.

8.  Third, the Applicant has not raised any arguable ground to challenge the vires or constitutionality of the Regulation. In his Affirmation dated 6 October 2020, the Applicant merely stated the following:

“against … the Regulation commenced on 23^rd July 2020 that everyone has to wear masks in the public areas, because Social Welfare Department and International Social Services (ISS) do not consistently provide enough masks to the refugees. Since refugees cannot and [are] not allow[ed] to work, therefore it is very difficult for us to buy mask and prevent us from the $2,000 fine in not wearing masks.”

9.  While the difficult situation faced by the Applicant is understood, it does not provide any arguable basis for contending that the Regulation is ultra vires or unconstitutional.  If necessary, I would find that the requirement to wear masks in public places satisfies the 4-step proportionality test, in that:

(1)  The impugned measure pursues a legitimate aim, namely, the prevention or control of transmission of COVID-19.

(2)  The impugned measure is rationally connected with the advancement of the legitimate aim.

(3)  The impugned measure is not manifestly without reasonable foundation, and is no more than reasonably necessary for the purpose of advancing the legitimate aim.

(4)  Having regard to the importance of the protection of public health, the impugned measure strikes a reasonable balance between (i) the societal benefits of the encroachment, and (ii) the restriction of the Applicant’s liberty, ie, the requirement to wear a mask in public places.

10.  The intended application for judicial review is not reasonably arguable, and has no realistic prospect of success.

11.  Accordingly, the application for leave to apply for judicial review is dismissed, with no order as to costs.