Hong Kong, High Court of the Hong Kong Special Administrative Region Court of 1st Instance, 8 May 2020, Syed Agha Raza Shah c. the Director of Health HCMP
Case overview
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Deciding body (English)
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Type of Court (material scope)
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Type of Court (territorial scope)
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Outcome of the decision
Link to the full text of the decision
General Summary
A Pakistani permanent resident of Hong Kong (the applicant) was required to stay in quarantine for 14 days after flying back from Pakistan. The applicant argued that other passengers on the same flight were not requested to do the same, in particular people returning to Hong Kong from the UK and the US. Moreover, he was not offered any options as to where to stay for the mandatory quarantine. Therefore, he claimed the requirement on him constituted discrimination based on the country of origin and race.
The court pointed out that Pakistan was on a list of countries subject to specific regulations under which people returning to Hong Kong from one of the listed countries, or who had visited one of those countries in the 14 days prior to their arrival in Hong Kong, were subject to mandatory quarantine. The court applied a 4- step proportionality test to assess whether the quarantine requirement was reasonable. The court also assessed the balance between the protection of public health and the burden on the individual of being quarantined in the Center. The Court concluded that the decision made by the department of health is reasonable and confirmed the decision.
Facts of the case
The applicant is a Pakistani national and permanent resident of Hong Kong. On the 29 April. he arrived Hong Kong from Pakistan after transferring from a flight in Doha, Qatar. Upon arrival, he received a document from the Department of Health of Hong Kong, informing all passengers from Pakistan that they were subject to a mandatory 14-day quarantine at the quarantine center. Before being transferred to the temporary center, he went through the temperature screening and handed in a health declaration form. At the center, he did a specimen test for COVID-19.
Type of measure challenged
Measures, actions, remedies claimed
Individual / collective enforcement
Nature of the parties
Claimant(s)
Private individualDefendant(s)
Public
Type of procedure
Reasoning of the deciding body
An authorized officer can place a person under quarantine for 14 days under the Hong Kong Regulation when: 1. a person arrives from a specific place or stays in a specific place during the 14 days before arriving in HK 2. The terms of quarantine must be specified. 3. The person placed under quarantine must be quarantined in a place assigned by an authorized officer or in a place nominated by the person when it is appropriate in the circumstances and at the officer’s discretion. Pakistan is one of the specific places subject to this regulation.
The quarantine requirement is not based on race or country of origin. Any person who has visited Pakistan during the 14 days before arriving in Hong Kong will be placed under quarantine at the Center. In fact, people with more than over 30 different nationalities were subject to the same requirement.
Whether the applicant can serve the quarantine period at the center, at home or in a hotel at his own liberty is up to the Department to define in accordance with specific criteria. There is a 4-step proportionality test to check whether the measure is reasonable; this test is aimed at assessing: 1. whether the measure serves the legitimate aim of protecting public health; 2. whether the measure is rationally connected with the aim; 3. whether the measure follows the appropriate standard “no more than reasonably necessary” as applied by the Department of health, because the Department is in a better position than the court to determine the risk of COVID-19 and of the social and economic consequences of a general outbreak.
The Department of Health takes several factors into account: i. the COVID-19 situation in the country of origin, ii. the number of persons coming from that country to Hong Kong iii. the COVID-19 situation in Hong Kong and iv. the availability of quarantine facilities in Hong Kong. These factors have been applied to the Applicant’s situation: i. in Pakistan, only 710 tests per million inhabitants were carried out, whereas in Hong Kong the number was 20,000 and in the UK/US 10,000-15,000. ii. over 60% of COVID-19 cases in Pakistan were recorded within the 14 days prior to 27 April 2020. Considering the high population density, the standard of review is higher than “no more than reasonably necessary”. The measure would pass the test. When quarantine is carried out at home, the person who lives with the applicant will be a close contact, but is not subject to quarantine restriction.
4.The measure strikes a reasonable balance between i. the societal benefits for public health in HK and ii. the restriction on the applicant’s liberty.
The burden on the applicant is i. the specific diet requested for religious reasons. The center is taking the dietary requirements into consideration and will cater accordingly. ii. the security of the center. The applicant relied on a journal article reporting an attack against a man of Pakistani origin by masked men at the center. The center is staffed with private security guards who patrol regularly. The attack is an isolated incident.
Conclusions of the deciding body
Upheld
Fundamental Right(s) involved
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
General principle applied
Impact on Legislation/Policy
The governmental measure has been upheld.
