Hong Kong, Court of First Instance, 30 March 2022, No. HKCFI 688
Case overview
Country
Case ID
Decision date
Deciding body (English)
Type of body
Type of Court (material scope)
Type of jurisdiction
Type of Court (territorial scope)
Instance
Area
Further areas addressed
- Private and family life
- Freedom of movement of goods and capital
- Freedom of movement of people
- Vaccination
- Access to courts, denial of job opportunity
Outcome of the decision
Link to the full text of the decision
General Summary
The Applicant had commenced a judicial challenge against the HKSAR government’s then-recently imposed COVID-19 containment measures: (1) enactment of a new Vaccine Pass subsidiary legislation; and (2) designation of particular locations (e.g. markets, malls, and restaurants) as subject to restricted access via a Vaccine Pass.
The Applicant’s application was centered primarily on her alleged loss of job opportunity as a property agent, and personal inconvenience with limited access to public amenities and the courts.
The Court denied the Applicant’s application as she was unable to coherently identify appropriate grounds of challenge, had factual misunderstandings as to the content of the enacted measures, and the measures were found to be proportionate to their legitimate aim of protecting the citizens’ public health.
Facts of the case
The Applicant filed an application for judicial review against two measures adopted by the HKSAR government to contain the spread of COVID-19 (the “Measures”):
- The legislation and commencement of the Prevention and Control of Disease (Vaccine Pass) Regulation Cap 599L (“VP Regulation”); and
- Announcements and decisions made by the Chief Executive and the Secretary for Food and Health (“SFH”) pursuant to the VP Regulation, to add ‘strategic venues’ such as, inter alia, markets, supermarkets, malls and restaurants to a Vaccine Pass
The grounds of the Applicant’s application as four-folds (at [7]):
- The Vaccine Pass and vaccination requirement denied the Applicant’s “right” to apply for property agent license exams, and she claimed she lost a job opportunity as a consequence;
- Measure (2) denied the Applicant “easy access to affordable food and daily necessities”;
- Measure (2) prevented the Applicant from gaining “access to the Courts as an unrepresented litigant”; and
- Measure (2) prevented the Applicant from “taking quick lunches” in restaurants near her workplace, causing her “great difficulties to find public places to sit down and eat” like other Hong Kong residents; she was denied entry to many public facilities.
Initially, the Applicant applied for adjournment of the hearing since mid-February 2022 because she was awaiting approval of her application for legal aid. The Court eventually denied her request for time extension in early March 2022 as the intended challenge was to an “ongoing and operating initiative implemented to combat the COVID-19 pandemic” and needed to be dealt with promptly (at [13]).
Type of measure challenged
Measures, actions, remedies claimed
- Order to set aside the VP Regulation and delist strategic venues necessary for basic livelihoods.
- An interim injunction restraining the Chief Executive and other government entities from carrying out any action, whether enforcement or otherwise, to implement the Measures mentioned above until the determination of the judicial review proceedings.
Individual / collective enforcement
Nature of the parties
Claimant(s)
Private individualDefendant(s)
Public
Type of procedure
Reasoning of the deciding body
The Applicant was not be granted leave to apply for judicial review as she failed to demonstrate that her intended grounds of challenge were “reasonably arguable with a prospect of success”. This was for three reasons:
(1) The Applicant failed to identify any ground for judicial review
The Applicant failed to state any proper ground in support of her application for leave to apply for judicial review (at [49]). She was only able to make a general complaint, but was unable to identify any specific ground of public law challenge (at [51]). This was contrary to settled law that the grounds for quashing the exercise of administration power need to be “capable of being stated clearly and succinctly in a few numbered paragraphs” (at [48]).
(2) The Application was founded on a factual misunderstanding of the Measures
The grounds of challenge raised by the Applicant were either mistaken in fact or plainly unmeritorious:
- The Applicant’s aspiration to qualify as a licensed property agent could not to be elevated into a basic human right under the Basic Law or the Hong Kong Bill of Rights Ordinance. Further, the property agent examinations were not actually held in strategic venues and were not directly affected by the Measures (at [57]).
- Applicant’s complaint concerning denial of easy access to amenities was merely “one of inconvenience” and did not constitute a denial of basic rights. Further, any “inconvenience” caused was not as dire as described by the Applicant. First, there were in fact alternative locations for those amenities. Second, a wide range of exemptions were identified in the VP Regulation that catered to unvaccinated residents like the Applicant (at [58]).
- The fact that the Applicant could attend the present hearing showed that her argument of denial of access to Courts was entirely unfounded.
(3) The Measures are justifiable and proportionate under public law
Although the Applicant argued that her right to human dignity was infringed as the Measures had cast her as “inferior” (as if she were an animal with a deadly infectious disease), the Court found that the Vaccine Pass measure in fact had the opposite effect. The VP Regulation reduced the locations where she can come into contact with such people and promoted vaccination which likely mitigated the effect of becoming infected (at [66]).
Although the Applicant attempted to rely on the International Convention on Economic, Social and Cultural Rights (“ICESCR”) to argue that her “basic right to adequate food” was denied, the Court found that the ICESCR had no force of law in HKSAR, and in any case, there was no infringement of such rights on the facts. The Court noted, “[i]n 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.” (at [68]).
Finally, the Court found that the Vaccine Pass measure passed the proportionality test (see detailed explanation below).
Conclusions of the deciding body
The HKCFI dismissed the Applicant’s application for leave to apply for judicial review as it was found to be devoid of any merit (at [84]-[85]). However, no costs were ordered against the Applicant as it was deemed “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.” (at [91] – [92]).
Fundamental Right(s) involved
- Freedom of movement of people, goods and capital
- Right to private and family life
- Right to human dignity; Right to unrestricted access to adequate food
Fundamental Right(s) instruments (constitutional provisions, international conventions and treaties)
- Right to human dignity. Article 6 of the Hong Kong Bill of Rights Ordinance
- Liberty of movement. Article 8 of the Hong Kong Bill of Rights Ordinance
- Right to private life. Article 14 of the Hong Kong Bill of Rights Ordinance
- Right to unrestricted access to adequate food. Article 11 of the ICESCR
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
- Health v. freedom of movement of persons
- Health v. private life
General principle applied
Balancing techniques and principles (proportionality, reasonableness, others)
The proportionality test was applied to determine whether the Vaccine Pass constituted a disproportionate measure.
(1) Is the measure prescribed by law?
Yes. Its legal basis can be found in the Prevention and Control of Disease Ordinance Cap 599 and its subsidiary legislation (at [72]).
(2) Does the measure serve a legitimate aim?
Yes. It served the legitimate aim of protecting public health (at [73]).
(3) Is there a rational connection between the Vaccine Pass measure and its aim?
Yes. The VP Regulation itself provided 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 (at [76]). This evinces a rational connection between the Vaccine Pass measure and its aim to protect public health.
(4) Does the measure strike a reasonable balance?
The Measures struck a reasonable balance between (1) the societal benefits of protecting public health and (2) restriction of the Applicant’s individual rights, due to the following considerations (at [79]):
- HKSAR is a geographically small, densely populated and highly urbanised area.
- The HKSAR population is highly mobile within the city during the course of ordinary, everyday life.
- The requirements in the impugned legislation were 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.
- The relevant activities and / or services involved at those specified premises were 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).
- 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.
- The VP Regulation was not intended to be a permanent measure, and has an express expiry date of 31 Dec 2022. The temporary measures are subject to regular review, and there is also the express power of revocation.
- 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.
Other notes
Under type of court it specifies: Courts in HKSAR only have territorial jurisdiction over the region.
On the claimants of the action: Action brought by an individual for decisions, legislation, and rules that affect a class of persons (unvaccinated people).
