THE STRANGLEHOLD OF BLACK LETTER LAW
The case of Kwok Cheuk Kin v Secretary for Health  HKCFI 3225 (Coleman J) shows how, in the field of public law, lack of judicial discipline squeezes common sense out of the system, resulting in a suffocating stranglehold on the administration.
The Vaccine Pass regime
When the “fifth wave” of the Covid-19 pandemic sparked by the Omicron variant hit Hong Kong, the Prevention and Control of Disease ( Vaccine Pass ) Regulations, Cap 599L, were promulgated. Section 3(1) conferred wide powers on the Secretary for Health to devise measures to deal with the situation. The Vaccine Pass regime was brought in, comprising many different components. These measures were introduced incrementally as the situation shifted.
On 21 February 2022 the Secretary, in implementation of that regime, published directions applying to a wide range of public venues including shopping malls, supermarkets, places of public entertainment, sports premises, buses, the MTR etc, which required persons entering to have been vaccinated, as evidenced by a Vaccine Pass.
At the time this scheme came into effect, many people had received their three doses of vaccines, following a prescribed time table, qualifying for a Vaccine Pass. But many others were unvaccinated, particularly amongst the elderly; and some were unvaccinated for underlying health reasons.
Hence, when the Vaccine Pass regime was set up, an exemption was introduced. If a person carried a Medical Exemption Certificate issued by a registered medical practitioner, certifying that he had been “assessed as medically unsuitable for vaccinations”, he was exempt from the Vaccine Pass requirements under the Regulations.
It was probably thought at the time that such exemption would be relatively rare.
Plainly, the government did not have the resources to police the venues and facilities to ensure that the Vaccine Pass regime was enforced. The burden was cast on the “person-in-charge” of each venue or facility to inspect the Vaccine Pass or the Exemption Certificate, to exclude those who did not qualify, to collect the information and to pass that on to the Health Department.
Each of the places was required to display a notice as follows:
“Vaccine Pass Applicable Premises
This is a premises subject to active checking of Vaccine Pass under the Vaccine Pass Direction issued by the Secretary for Health pursuant to the Prevention and Control of Disease ( Vaccine Pass ) Regulation ( Cap. 599,sub. Leg.L ). Every person who enters or remains on this premises is required under the law to have been vaccinated in the manner specified in the Direction, unless he or she is an exempted person …..The person-in-charge of this premises is required under the law to ensure that every person who enters or remains on this premises to have been vaccinated …”
Abuse of the Medical Exemption regime
Towards the end of September 2022, the Health Department became aware of abuse of the exemption regime. Suspicion was focused on seven private doctors who, collectively, had issued over 20,000 certificates.
For example, one of those doctors, on one day, had issued 382 certificates. It was utterly impossible that he could have assessed each of those patients as “medically unsuitable for vaccination” before issuing the certificate as s. 17(1)(a) of the Regulations required.
It would have needed enormous resources, which the Health Department lacked, to study each of those people to see if it was fraudulent. Yet, this was a serious health issue involving a huge number of persons who might gain entry to shopping malls, supermarkets etc, on the basis of fraudulent certificates, spreading the highly infectious Omicron variant of the disease.
A broad-brush approach had to be adopted and urgent action was required. As enforcement of the Vaccine Pass regime was left to persons in charge of the venues, they had to be alerted to this situation as soon as possible, and in the clearest possible terms. Plainly they could not have been contacted individually. The most effective way was through a press release.
Action taken by the Health Department
On 27 September 2022 the government issued this press release in Chinese and in English :
“Regarding individual private doctors suspected to have failed to provide proper medical consultations to patients in accordance with the guidelines of the Department of Health and abused the issuance of COVID-19 Vaccination Medical Exemption Certificates, the government announced today ( September 27 ) that all Medical Exemption Certificates issued by the private doctors concerned will not be accepted and will be invalidated from October 12 onwards. Members of the public who hold a Medical Exemption Certificate issued by the private doctors concerned may consult other doctors depending on their needs to determine whether they are suitable for receiving COVID-19 vaccination, or may continue to be medically exempted……… ………Having considered that the citizens concerned may need time to consult other doctors, the Medical Exemption Certificates issued by those seven private doctors will be deemed invalid from October 12 onwards”.
The private doctors concerned, seven of them, were named in the press release, their places of work identified. There was nothing more the Department could have done to deal with the situation.
Unless the Department had gone radically wrong in assessing the situation, it would seem that the doctors, or at any rate many of them, were churning out certificates as if they were operating printing machines, doubtless for substantial payment, in total disregard of their professional responsibilities, putting many people’ health at risk. It was a clear fraud on the system, though its precise extent had yet to be ascertained.
There might have been a few cases, of course, where the person named in the certificate was, say, an old patient whose medical history was well known to the doctor, in which case it would not have taken much time for the doctor to make an assessment for exemption. Hence the Department allowed about two weeks before the certificates to become “invalidated” or be “deemed invalid”. That gave time to the patient to consult other doctors or go to a government outpatient clinic for an assessment.
Wording of the press release
There is no magic in the phraseology of the press release. By the words “invalidated” or “deemed invalid”, all they meant was that the certificates were false -did not comply with the Regulations for exemption - and must be treated by all concerned as null and void. There was no other way any sensible person could have understood the press release.
“Specified medical exemption certificate
… for the purposes of this Regulation, a medical certificate is a specified medical exemption certificate only if the medical certificate ( a ) contains an opinion from a registered medical practitioner that the person to who it is issued is clinically assessed to be unsuitable for being vaccinated with whichever type of the specified vaccines …”.
A valid certificate issued in good faith expresses an opinion formed after a clinical assessment. These are actual happenings. If these conditions were absent there could be no valid certificate.
Kwok Cheuk Kin v Secretary for Health: Ex parte application for leave
On 7 October 2022, Kwok Cheuk Kin, acting in person, lodged a Form 86 in the High Court seeking leave ex parte to commence judicial review proceedings against the Secretary for Health.
The whole process is extremely odd.
Nothing is known about the contents of Mr Kwok’s Form 86. Did it raise an arguable case in public law against the Secretary? If so, what did it say? What relief was sought in the application and what were the grounds on which it was sought? ( Order 53 r. 3(2)(a)(iii) of the Rules of the High Court required these to be set out in Form 86 ).
The papers went before Coleman J.
As is now known, Mr Kwok was not one of those whose medical exemption certificate risked being “invalidated” on 12 October. What business was it of his that the certificates of others should be “invalidated”? He had no conceivable interest in the matter. Yet on 10 October Coleman J granted leave on the papers, without a hearing.
Was the judge not interested in compliance with Order 53 r.3(7) which says that the court “shall not grant leave unless it considers that the applicant has a sufficient interest in the matter to which the application relates”? Or was he misled into thinking that Mr Kwok had standing under the rules? Did it not occur to him to query the applicant’s standing to bring the proceedings?
Another odd aspect of the case is this. Having been given leave on 10 October, the applicant’s next step under the rules would have been to lodge an originating summons in Form 86A within 14 days, commencing judicial review proceedings against the Secretary. But something intervened. The judge convened a hearing on the next day ( 11 October ) because, he said, of the “potential urgency, namely that the impugned decision would come into effect on 12 October (tomorrow)”.
“Urgency” said the judge. Urgency for whom? Surely not for Mr Kwok unless, of course, the judge thought that the “invalidation” of the exemption certificates the next day concerned him personally.
But, as is now known, the applicant was not the holder of one of the questionable certificates: the judge said so in para 148 of his later judgment of 21 October, after an inter partes hearing.
Mr Kwok had no standing to bring proceedings under the rules; from the very start he should have been barred from pursuing the application.
The 11 October hearing
The hearing on 11 October was, the judge said, for the purpose of considering whether “interim relief” should be granted, pending the inter partes hearing he had scheduled for 20 October.
Did Mr Kwok ask for the interim relief or was the hearing arranged on the judge’s own motion? It must have been the latter – unless, of course, if Mr Kwok was doubling down on his deception that he was personally involved in the story, inventing an urgency which did not exist.
When the matter is seen in the round, the impression given is that the judge was conducting a one-man band, playing to a tune firmly formed in his own head: that there was a legal issue to be resolved, namely the “impugned decision of the Secretary to invalidate certain specified medical exemption certificates issued under the Prevention and Control of Disease ( Vaccine Pass ) Regulation Cap 599L” (para 4 of his Reasons for Decision of 11 October 2022).
This impression is reinforced by the opening paragraphs of the Reasons for Decision which state as follows:
“1. However desirable the intended result, there is a right way and a wrong way of going about it. In legal terms, there may be a lawful way or unlawful way of going about it.
2. The question which arises in these proceedings is whether the impugned decision of the Secretary of Health was taken the right way, namely lawfully within his powers”.
“Impugned” said the judge. Impugned by who? By Mr Kwok, acting in person? Or was this an issue raised by the judge himself?
And the “key point”, said the judge, was the legality of the “Secretary’s decision”, having regard to the scheme in Cap 599L.
Who’s “key point”? Mr Kwok’s? Was he really concerned about compliance with the elaborate statutory scheme set out in Cap 599L?
Duty of full and frank disclosure
When an applicant goes before a court on an ex parte basis, he has a duty of full and frank disclosure, for obvious reasons. He levels accusations against an authority – here the Secretary for Health – behind that authority’s back. The ex parte judge has only the applicant to rely on for accurate information, to decide whether leave should be granted to proceed.
Here the judge was led to believe that the applicant himself was among the persons whose medical exemption certificates were to be “invalidated” the next day ( 12 October ). That, of course, would have meant that the applicant had satisfied the threshold requirement in Order 53 Rule 3(7) of the Rules of the High Court which says: “The Court shall not grant leave unless it considers that the applicant has a sufficient interest in the matter to which the application relates”.
The words in Order 53 r.3(7 )“The Court shall not grant leave” are mandatory, they go to the court’s jurisdiction. It lacks jurisdiction to entertain the matter unless that requirement is met.
There was no statement from Mr Kwok that he had been clinically assessed by his doctor, or that he had indeed a health condition justifying the issue of such certificate. As the judge said later on, “I would fully endorse the sentiment that the Applicant has been less than forthcoming” (para 157 of his later judgment of 21 October 2022 ).
Was there is real legal issue?
The judge appeared uninterested in the discipline required under Order 53 of the Rules of the High Court regarding applications for judicial review. His mind was set on “the correct approach to section 3 of Cap 599L, in the context also of the scheme of Cap 599L as a whole, and sections 4, 5, and 17 in particular”. This seems to have been so at the very beginning, leading him to treat the case as a “meritorious vires challenge” which, he said, struck at “the core of the rule of law” (paras 150 -151 of his 21 October judgment).
This set the tone of his entire approach to the case, reinforced by the two opening paragraphs of his Reasons for Decision of 11 October as set out above. He was on a mission to safeguard the rule of law, holding the Secretary to strict legality.
But was there a real issue, or simply a phantom one created by either Mr Kwok or the judge himself?
The inter partes hearing
On 20 October the parties appeared before the judge represented by senior counsel on both sides.
There was no originating summons – Form 86A – before the court. The judge proceeded on an amended Form 86 ( the application for leave ). As amended the ground for review was as follows:
“Illegality: No power for the Secretary to overturn or invalidate a Medical Exemption Certificate or a selection of Medical Exemption Certificates”.
How Mr Kwok had first formulated the issue in his Form 86, which caused the judge to give him leave on paper, is not revealed.
The 36-page judgment subsequently handed down by the judge is a formidable document in terms of its weight in words. Stripped of verbiage, it was common ground that there were “strong and legitimate doubts” as to an unknown number of “questionable” medical exemption certificates, and that the Secretary faced “an unfolding public health emergency” (paras 98 & 99).
The ground for relief
The formal order made by the judge, at the end of the hearing, on the basis of the ground for relief put forward in the amended Form 86, was as follows:
“An order of certiorari quashing the Decision and those parts of the Directions which give effect and/or implement the Decision”.
The “Decision” to which the formal order referred was said to be the Secretary’s “decision to invalidate” the exemption certificates issued by the seven doctors.
In the judge’s view ( para 128 ), the Secretary had no legal power to invalidate a medical exemption certificate as defined by s.17 of Cap 599L.
That was, in one sentence, the basis of the judge’s quashing order (“certiorari”). Nothing turns separately on the “Directions” referred to in his formal order.
This brings one back to the press release of 27 September where it was announced that the questionable certificates would not be accepted and would be “invalidated from October 12 onwards”.
Exercise of power?
The judge took this as an exercise of power by the Secretary and posed the question: where is the legal power behind such act? He premised this approach in the first sentence of his judgment by saying: “A Government minister gets his or her legal powers from legislation – and not from an announcement made in a press release”.
At the hearing there was a lengthy debate as to the meaning of the English words “validity” and “invalidity”, and a query as to whether they accurately reflected the Chinese version. This was in the context of the Secretary having exercised power to “invalidate” the certificates (paras 23 -25 of the judgment). It was a sterile debate.
The short answer to the point is that, with regard to those certificates, the Secretary exercised no power of any kind. That had been done long before when he set up the Vaccine Pass scheme. In the press release of 27 September he was giving notice to the world, and in particular to the persons in charge of venues and facilities, that the certificates issued by the seven named doctors were an abuse of the system and that, as from 12 October, no one should regard those certificates as having any validity.
The Secretary did nothing to “invalidate” the certificates. That was done by the doctors themselves in issuing them without clinical assessment as s.17 of the Regulations required. Full stop.
Whether the Secretary was wise to have left the matter hanging in the air until 12 October is debatable. It was to give time to a possibly very small number of patients who might have had a genuine health problem justifying an exemption. But it also left open a window of opportunity of about two weeks for the virus to spread.
None of the seven doctors came forward to say the Secretary was mistaken. Perhaps even more telling is the fact that not one of the 20,000 certificate holders did either.
The bulk of those certificates was fraudulent; that was an established fact. There was simply no room for the judge’s intervention. He took the view that the Secretary had “invalidated” those certificates when, in fact, it was the doctors themselves who did that. The Secretary was simply dealing administratively with the consequence of such invalidity.
Put simply, there was no act of a public authority capable of being “quashed” in terms of s.21K of the High Court Ordinance. What the judge did was outside the statutory scheme controlling judicial reviews. In condemning the Secretary for acting without legal authority, it transpired that it was the judge himself who had so offended.
This unwarranted intervention by the High Court left the administration in a quandary. So long as the judge’s order stood, it had to be respected. The effect of the order was to prolong the validity of those certificates beyond 12 October. Most of them were not due to expire until November. So what to do? There was, as the judge said, “an unfolding public health emergency”. An appeal would take too long.
So the government acted by adding a provision to Cap 599L: s.17A , entitled “Invalidation of individual medical certificates”, empowering the Secretary to “declare” questionable certificates invalid.
This was adding an unnecessary cog to an already unwieldy administrative wheel.
The judicial review process is about good governance. The judge’s intervention through that process created more complications to the Vaccine Pass regime, adding more red tape.
There was, almost immediately after the amendment to Cap 599L was published, an attack on s.17A. The newspaper report about it was that the attack failed.
Thus the saga ended. Another dent to the rule of law.