Hong Kong, Court of First Instance, 12 October 2020, Haider Ali v Social Welfare Department [2020] HKCFI 2611
Case overview
Country
Case ID
Decision date
Deciding body (English)
Type of body
Type of Court (material scope)
- Administrative Court
- Constitutional Court
Type of jurisdiction
Type of Court (territorial scope)
Instance
Area
Outcome of the decision
Link to the full text of the decision
General Summary
The Prevention and Control of Disease (Wearing of Mask) Regulation (Cap. 599I) (“PCDR”) imposed compulsory mask-wearing in public places in response to the outbreak of COVID-19. Offenders were fined HK$2,000 for breach.
The Applicant alleged that the Hong Kong Social Welfare Department (“HKSWD”) and International Social Services (“ISS”) did not consistently provide enough masks to the refugees. Since refugees were not allowed to work, it was difficult for them to purchase masks, causing them to be particularly susceptible to fines under the PCDR.
However, the HKCFI denied the Applicant’s application for leave to apply for judicial review.
Facts of the case
In this application for leave to apply for judicial review, the Applicant sought to challenge the mask-wearing mandate in public places provided for under the PCDR, enacted in response to the outbreak of COVID-19 globally.
The Applicant alleged that the HKSWD and ISS did not consistently provide enough masks to the refugees. The inability of refugees to work made purchasing masks difficult, causing them to be particularly susceptible to fines under the PCDR.
Type of measure challenged
Measures, actions, remedies claimed
Individual / collective enforcement
Type of procedure
Reasoning of the deciding body
The application for leave to apply for judicial review was rejected for three reasons:
- The Applicant failed to state the relief sought or the grounds on which it was sought, as required by Hong Kong’s rules of civil procedure (see [6]).
- As the mask-wearing mandate was enacted by the Chief Executive in Council rather than the Respondent (i.e. the Social Welfare Department/Director of Social Welfare), the Applicant should have initiated the present proceedings against the former. There was no proper basis for the latter to be made the putative respondent (see [7]).
- Not only did the Applicant fail to raise any arguable ground to challenge the vires or constitutionality of the PCDR, but the HKCFI was also ready to find that the mask-wearing mandate satisfied the 4-step proportionality test. (see [8] and [9]).
Conclusions of the deciding body
Application for leave to apply for judicial review was dismissed by the HKCFI (at [10] and [11]): the intended application for judicial review was not reasonably arguable, and had no realistic prospect of success.
General principle applied
Balancing techniques and principles (proportionality, reasonableness, others)
The proportionality test was applied in affirming the constitutionality of PCDR (at [9]):
- The impugned measure pursues a legitimate aim, namely, the prevention or control of the transmission of COVID-19.
- The impugned measure is rationally connected with the advancement of the legitimate aim – the prevention or control of the transmission of COVID-19.
- The impugned measure is not manifestly without a reasonable foundation and is no more than reasonably necessary for the purpose of advancing the legitimate aim.
- 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, i.e., the requirement to wear a mask in public places.
Other notes
On the type of court: Courts in Hong Kong SAR only have territorial jurisdiction over the region
