Case study

VII. Case study

The COVID-19 pandemic in Hong Kong has generated several cases that are worthy of discussion.

The first involves a challenge against the Secretary of Health in respect of the government’s measure to invalidate Medical Exemption Certificates (“MEC”) suspected of abuse in issuance for purpose of Vaccine Pass starting 12 October 2022. This was announced by the government on 27 September 2022 and the applicant lodged an application for leave to apply for judicial review on 7 October 2022, which was granted on 10 October 2022. The applicant also obtained interim relief restraining the government to implement the said measures.    In so granting, the Court applied the usual principles adopted in application for civil injunctions.  The Court further directed that the substantive hearing be held on 20 October 2022 ([2022] HKCFI 3150)

It is useful to note that (1) the Court quashed the relevant measures on ground of ultra vires under Prevention and Control of Disease (Vaccine Pass) Regulation (Cap.599L); (2) the Court also held that the Applicant had standing to challenge the measure notwithstanding that he was not a holder of the suspected MEC.  The Applicant also failed to disclose that matter.  Thus, whilst not denying standing to the Applicant, the Court also reminded applicants once again of the importance of the duty of full and frank disclosure ([2022] 5 HKLRD 348)

Subsequently, the government amended the Prevention and Control of Disease (Vaccine Pass) Regulation (Cap.599L), granting the Secretary of Health the power to invalidate MECs in certain circumstances.  The applicant once again applied for leave to apply for judicial review.  This round, the application was refused on paper ([2022] 5 HKLRD 485).

Another application sought to challenge “the Government's current regulations, policies and measures on epidemic prevention” and asked for “an order of mandamus to cancel all or most of such regulations, policies and measures.  The court refused leave on paper.  Usefully, the Court reminded that “Judicial review is not an avenue for individuals to express general complaints about the executive Government's performance in a broadly defined area. Rather, it should be a focused and structured enquiry process holding clearly identified administrative decisions or actions to the test of public law compliance.”.  It was also said that “The [relevant anti-epidemic] regulations, policies and measures are examples of the making of socio-economic policies where the Court is accustomed to accord to the Government a broad margin of appreciation. This is especially so when the Applicant seeks not only to challenge a single well-defined decision but a basket of different regulations, polices and measures with wide-ranging and possibly interactive effects.”: 吳振權 v 香港特別行政區 [2022] HKCFI 3159.