Hong Kong, Court of First Instance, 8 May 2020, Syed Agha Raza Shah v The Director of Health [2020]HKCFI 770

Case overview

Country
Hong Kong (PRC)
Case ID
Syed Agha Raza Shah v The Director of Health [2020]HKCFI 770
Decision date
Deciding body (English)
Court of First Instance
Type of body
Court
Type of Court (material scope)
Civil Court
Type of jurisdiction
Single jurisdiction system
Type of Court (territorial scope)
State Court
Instance
1st Instance
Area
Freedom of movement of people
Outcome of the decision
Claim inadmissible or rejected
Link to the full text of the decision
Decision_EN available on legalref.judiciary.hk
General Summary

The Applicant was a Hong Kong resident who returned from Qatar / Pakistan and was subject to a quarantine order imposed under the Compulsory Quarantine of Persons Arriving at Hong Kong from Foreign Places Regulation (Cap 599E) (“CQPR”).

The Applicant, a Pakistani national, argued that he was not given a choice of place for his quarantine, unlike other passengers that returned from different regions. He alleged that this constituted discrimination based on his “national origin or race” (at [8]). The application was dismissed as the impugned measure satisfied the 4-step proportionality test.

Facts of the case

The Applicant was a Pakistani and a permanent resident of Hong Kong who returned from Pakistan to Hong Kong. Upon arrival at Hong Kong International Airport, the Applicant was issued a notice containing a compulsory quarantine order under the CQPR, which required him to be subjected to a 14-day mandatory quarantine at a designated quarantine centre (at [2] and [4]).

The Applicant requested to be released from the quarantine centre and to be allowed to quarantine at another more comfortable place such as home or a hotel. He argued that he was not given a choice of the place for his quarantine, but (i) passengers of other nationalities travelling on the same flight were not required to be quarantined at the quarantine centre, and (ii) other Hong Kong residents arriving from the UK or USA (or other countries having higher numbers of confirmed COVID-19 cases or transmissions than Pakistan) were not required to undergo quarantine at the quarantine centre; Instead, they were permitted to quarantine at home or a hotel. The Applicant argued that this constituted discrimination based purely on national origin or race rather than public health reasons, contrary to the Hong Kong Bill of Rights Ordinance (“HKBORO”) (at [5]).

Type of measure challenged
City government measure
Measures, actions, remedies claimed
Writ of habeas corpus (release from quarantine centre)
Individual / collective enforcement
Individual action brought by one or more individuals or legal persons exclusively in their own interest.
Nature of the parties
  • Claimant(s)
    Private individual
  • Defendant(s)
    Public
Type of procedure
Expedited procedures
Reasoning of the deciding body

First, the HKCFI pointed out that the Applicant’s complaint of discrimination on the ground of national origin or race was based on the incorrect premise that he is required to undergo quarantine at the Centre because of his national origin or race:

“In imposing the quarantine requirement complained of by the Applicant, the nationality or race of the person is not a relevant factor or consideration by the Department of Health.” (at [8])

Although the HKCFI accepted that the Applicant’s right to liberty was restricted by the quarantine measure, it held that it was a lawful exercise of power for satisfying the 4-step proportionality test.

Conclusions of the deciding body

The Applicant’s application was dismissed.

Fundamental Right(s) involved
Right to liberty
Fundamental Right(s) instruments (constitutional provisions, international conventions and treaties)
Right to liberty, Art 6, HKBORO
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
Health v right to liberty
General principle applied
Proportionality
Balancing techniques and principles (proportionality, reasonableness, others)

The proportionality test was applied to determine the validity of the measure imposed on the Applicant (i.e. requiring him to be quarantined at the Centre). The measure satisfies the 4-step test for the following reasons (at [9]):

  1. The impugned measure served the legitimate aim of protection of public health.
     
  2. The impugned measure was rationally connected with the advancement of that aim. 
     
  3. Proportionality: The appropriate standard of review is that of “manifestly without reasonable foundation” instead of the more stringent standard of “no more than reasonably necessary”, because:
    (i) the Department of Health is in a much better position than the court to determine the risk of an outbreak of COVID-19 in Hong Kong and how best such risk may be contained or managed; and

    (ii) of the serious social and economic consequences of a general outbreak of COVID-19 in Hong Kong. Even if the standard of review should be the higher one of “no more than reasonably necessary”, the impugned measure would pass that test. It is obvious that quarantining at home was not equally effective for the purpose of minimising transmission of COVID-19 in the community because those living with the person subject to quarantine at home would almost inevitably be coming into close personal contact with that person on a daily basis but they are not themselves subject to any quarantine restriction.
     
  4. The impugned measure strikes a reasonable balance between (i) the societal benefits of the encroachment (namely, the protection of public health in Hong Kong) and (ii) the restriction of the Applicant’s liberty.
Other notes

On the type of court: Courts in Hong Kong SAR only have territorial jurisdiction over the region.

Additional resources
Link_EN to www.elegislation.gov.hk
Link_EN to www.elegislation.gov.hk
Authors of the case note
  • Song Yihang, Student Researcher, National University of Singapore, Faculty of Law
  • Hoang Thi Khanh Hien, Student Researcher, National University of Singapore, Faculty of Law