Hong Kong, High Court of the Hong Kong Special Administrative Region, 12 October 2020, HCAL 2007/2020

Case overview

Country
Hong Kong (PRC)
Case ID
HCAL 2007/2020
Decision date
Deciding body (English)
High Court of the Hong Kong Special Administrative Region
Type of body
Court
Type of Court (material scope)
Civil Court
Type of jurisdiction
Single jurisdiction system
Type of Court (territorial scope)
Local Court
Instance
1st Instance
Area
Immigration and asylum
Vulnerability groups
Asylum seekers
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 is a refugee challenging the constitutionality of the HK government regulation which imposes the wearing of masks in all public places as an emergency measure against the COVID-19 pandemic. In particular, the Applicant argues that, since the Social Welfare Department and the Internal Social Services do not provide refugees with masks, and refugees are not allowed to work and thus earn wages, the said regulation is unconstitutional.

The Court rejects the claim, pointing out that the Applicant did not adequately specify the relief sought and the grounds for his argument. Nevertheless, the Court conducted a proportionality test with regard to the measure challenged, highlighting that such measure is rationally connected to the legitimate aim it pursues, is reasonable in its content and strikes a balance between the protection of public health and the restriction of individuals’ liberty.

Facts of the case

The Applicant is a refugee challenging the constitutionality of the HK government regulation which imposes the wearing of masks in all public places as an emergency measure against the COVID-19 pandemic, in force since 23 July 2020 (Prevention and Control of Disease (Wearing of Mask) Regulation). In particular, the Applicant argues that, since the Social Welfare Department and the Internal Social Services do not provide refugees with masks, and refugees are not allowed to work and thus earn wages, the said regulation is unconstitutional.

In his application, the Applicant regards the Social Welfare Department as the Respondent.

Type of measure challenged
National government measure
Measures, actions, remedies claimed
Unconstitutionality of the measure challenged
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
Ordinary procedures
Reasoning of the deciding body

The Court pointed out, in the first place, that the Applicant did not specify the relief sought.

Secondly, the Applicant named the Social Welfare Department as the Respondent but the measure challenged was not issued by this department; therefore, there is no proper basis for such Department to be made the Respondent in the case.

Thirdly, the Applicant did not raise adequate grounds to assess the constitutionality of the measure challenged. The Applicant only argued that, since the Social Welfare Department does not provide refugees with masks and refugees do not work nor earn incomes, there is no way for them to comply with the measure and buy masks. As such, refugees are also inevitably subject to the fine provided for by the challenged measure.

The Court notes that, 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”. Subsequently, the Court decided to carry out a proportionality test at its own initiative, arguing that the measure challenged: 1) pursues a legitimate aims; 2) is rationally connected to such aim; 3) is not unreasonable and requires no more than what is necessary to pursue the legitimate aim; 4) it “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”.

Conclusions of the deciding body

The Court rejects the claim.

Fundamental Right(s) involved
A general right to circulate in a public place without having to wear masks
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
Health v. individual liberty (to circulate without wearing masks)
General principle applied
  • Proportionality
  • Reasonableness
  • State of emergency or necessity
Balancing techniques and principles (proportionality, reasonableness, others)

In the first place, the Court considered the specific situation described by the Applicant, i.e., that of refugees who are unable to buy masks. The Court recognizes that refugees could be placed in a difficult situation since they do not earn incomes and cannot buy masks but such a situation does not constitute a reasonable ground to challenge the constitutionality of the measure concerned. Secondly, the Court considered the proportionality and reasonableness of the measures challenged in light of the restrictions posed to individual liberties by the obligation to wear masks. The Court noted that, considering the state of emergency in place and the necessity to ensure the health of society, the measure challenged is reasonable and proportional, since it strikes a balance between the societal benefits and the restriction on individual liberty. It does not, moreover, require more than what is necessary to ensure the protection of public health.

Impact on Legislation/Policy

The governmental measure has been upheld.

Author of the case note
Gianmatteo Sabatino, Researcher, University of Trento/Zhongnan University of Economics and Law