Fake Covid jab exemptions? Hong Kong government has no power to invalidate over 20,000 certificates linked to arrested doctors, court rules
- High Court rules more than 20,000 vaccination exemption certificates linked to doctors over suspected malpractice cannot be invalidated by health authorities
- High-profile legal challenge mounted earlier this month followed authorities’ announcement in late September that such documents will be nullified
Mr Justice Russell Coleman said the health secretary could not identify the source of his authority to invalidate the documents as there was no statutory mechanism to overturn a medical practitioner’s opinion on unsuitability for vaccination.
“A government minister gets his or her legal powers from legislation – and not from an announcement made in a press release,” Coleman wrote in the opening paragraph of his 68-page judgment, in a reference to a statement officials issued on September 27 to announce the decision to revoke the certificates.
“It does not seem to me to be correct to leap from the desirability of enabling the secretary to ‘do something’ when some [medical exemption certificates] are called into question to the conclusion that [the law] must be read as conferring such a power,” he wrote.
Coleman granted an application from serial litigant Kwok Cheuk-kin to restrain the authorities from invalidating the certificates a day before the 20,000 exemptions were to be rescinded on October 12.
Kwok said on Friday the ruling was a “miserable loss” for the government and a “disgrace” to city leader John Lee Ka-chiu.
“The citizens of Hong Kong are the biggest winners of the present judicial challenge,” he said.
Kwok warned he would continue to take the authorities to court over matters of public interest.
Government counsel earlier argued the invalidation of certificates was more accurately described as an “administrative direction” to operators of private premises to refuse recognition of the documents which had been questioned.
But the court dismissed the contention as an attempt to “play with words” and “rewrite the historical narrative”.
Coleman also expressed regret about attacks made on a “legally qualified” lawmaker, who cast doubt on the legal basis for the health secretary to rescind the 20,000 exemptions, a reference to Beijing loyalist Doreen Kong Yuk-foon, who also questioned the legality of the invalidation.
He said “responsible legislators” and others in positions of power should strive to ensure the government always acted in line with the law.
“The question does not identify a choice between being ‘pro-government’ or ‘anti-government’; it identifies a distinction between what is lawful and what is unlawful,” the judge added.
The court ordered the government to pay the costs of the proceedings.
The Department of Justice has 14 days to lodge an appeal against the ruling.
Secretary for Health Lo Chung-mau said the government would release a statement after officials had studied the judgment, but emphasised the Health Bureau had a duty to safeguard public health.
The high-profile judicial challenge mounted earlier this month followed the government’s announcement in late September that the certificates would be invalidated over suspicions they were not properly issued.
The decision would have barred affected holders from visiting premises such as shopping centres, supermarkets and restaurants under the vaccine pass scheme.
Anne Chee, a principal medical and health officer at the Department of Health, acknowledged in a court statement that “some of these [certificates] may be genuine and their holders may have valid reasons for exemption”.
Police arrested six doctors last month for allegedly issuing vaccination exemption letters without conducting proper consultations. Two of the six doctors have been charged, and a seventh practitioner is still wanted by the force.
At least 26 patients, including five government employees, who were alleged to have bought the documents, have also been arrested on suspicion of conspiracy to defraud.
Executive councillor and barrister Ronny Tong Ka-wah said the government might consider whether to appeal or not, adding that regulations related to the vaccine pass should be amended to “close the legal loophole” to protect the public’s health.
“Amending the laws is not moving the goalposts. The goalposts are in the wrong position so, of course, we have to put them in the right place,” he said.
“It is not evading the ruling, but respecting the ruling and accepting that the current laws do not empower the health secretary to invalidate the certificates.
“But the original intent of the regulations is to empower the secretary, meaning that it has a legal loophole.”
Tong stressed that it was normal practice for the government to amend legislation after it lost a judicial review, which was in line with the rule of law spirit.
Kong said she “respected” and was “thankful” for the court’s decision.
“As the judge said in paragraph 28 of the ruling, the issue itself is solely about whether the government’s decision is legal, and it does not involve any intent of pro-government or anti-government,” she wrote on her social media page.
But Alex Lam Chi-yau, chairman of the pressure group Patients’ Voices, said he did not consider the ruling as a win for the people holding the documents, which mostly lasted for three months, as they might be about to, or had already, expired.
“The biggest issue is that it is extremely difficult for the patients to find another doctor who is willing to issue such letters,” he explained.
Respiratory medicine expert Dr Leung Chi-chiu, a former chairman of the Hong Kong Medical Association’s advisory committee on communicable diseases, said the government should take the opportunity to dispel the patients’ worries over the vaccine.
He suggested that if the certificate holders decided to get the jabs, temporary vaccine pass exemptions could be issued to them before they met the three-dose requirement to encourage more people to come forward.