The Hong Kong government does not have the power to void more than 20,000 Covid-19 vaccination exemption certificates issued by seven doctors who allegedly handed them out without conducting proper medical consultation, the High Court has ruled.
Justice Russell Coleman on Friday ruled in favour of the “king of judicial reviews” Kwok Cheuk-kin, who launched a legal challenge earlier this month arguing that it was unconstitutional and illegal for Secretary for Health Lo Chung-mau to declare the certificates in question invalid.
The government had argued that the words used in its announcement – such as “invalidate” or “invalid” – should not be interpreted in the strict legal sense. They were merely a “practical and convenient shorthand” to express Lo’s intent not to recognise what they saw as questionable exemption proof, according to evidence filed to the court.
Evidence for Lo also described the government’s decision as “no more than an administrative act.”
But such arguments were dismissed by Coleman, who said the government’s decision not to accept the vaccination exemption documents in question was announced “unequivocally,” rather than simply showing an “inclination.”
“I regret to say that these points seem to me to be an attempt to play with words and to rewrite the historical narrative,” the judge Coleman in his 68-page judgement, adding the government did not cite any powers that had allowed them to make such a decision.
The issue of legality surrounding the government’s decision was also raised by lawmaker and solicitor Doreen Kong earlier this month. Coleman said on Friday, without naming Kong, that it was “unfortunate” for the legally-qualified lawmaker to later face criticism for raising her doubts, “as though to do so were somehow an attack on the government.”
Representing Lo, Senior Council Abraham Chan argued that the law relating to the city’s Vaccine Pass gave “wide and flexible powers” to the city’s health secretary to react to “known unknowns” in the Covid-19 pandemic.
Even though there were no specific provisions outlining declaratory or invalidating powers targeting medical exemption certificates, the broad powers were ample to tackle risks posed by those documents, he said.
Kwok’s representative, Senior Counsel Hectar Pun, had argued that the health minister failed to point to any statutory provision that would have permitted the government’s decision.
Pun also told the court that Lo had “fettered” his direction, saying the official overturned all “questionable” jab exemptions without exemption, despite having admitted that some may be genuine.
No attempt was taken by Lo to verify whether any of the certificates in question should be handled differently and a blanket invalidation was imposed, the lawyer said.
But Coleman rejected such grounds for challenging the government’s decision, saying Lo did not invalidate all exemption certificates but the ones issued by the seven doctors. It was not helpful or correct to focus narrowly only on the questionable certificates, he said, adding that the government had provided measures for affected individuals to get another exemption before their original certificates were set to expire.
The health minister, on the other hand, refused to comment on the verdict at a government press conference on the healthcare measures announced in the Policy Address on Wednesday.
He said he would review the judgement with the Department of Justice before issuing a formal response.
Doctors under fire
Kwok’s legal bid came after the government announced last month that certificates for exempting people from receiving a Covid-19 jab signed by seven doctors would be nullified after they were arrested or reportedly wanted by the police. They have been named as Dr Tai Kong-shing, Dr Annie Choi, Dr Fu Yuen-lung, Dr Wong Ping-leung, Dr Charlie Yan, Dr Amy Lam and Dr Chan Hoi-yuk.
Authorities have advised anyone holding a certificate issued by one of the doctors in question to consult other doctors to see if they were suitable for vaccination.
The government originally said the exemption documents would not be recognised from October 12. But the High Court later barred the authorities from doing so until the legal challenge had been concluded.
Tai became the first doctor to be officially charged over the alleged false certificates. He was brought to court on September 23 to face three counts of “access to computer with dishonest intent,” while police laid charges against Choi on Tuesday with two counts of conspiracy to defraud. Both were granted bail.
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