Syed Agha Raza Shah v. The Director of Health

HCMP 468/2020

[2020] HKCFI 770

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 468 OF 2020

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REASONS FOR DECISION

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INTRODUCTION

1.On 8 May 2020, the court heard an urgent application for a writ of habeas corpus by the Applicant who was subject to quarantine at Chun Yeung Estate Quarantine Centre (“the Centre”). At the conclusion of the hearing, the court announced that the application was dismissed, with reasons for the decision to be given later, which I now do.

BASIC FACTS

2.The Applicant is a Pakistani and a permanent resident of Hong Kong.  He left Pakistan on 28 April 2020 and took a Qatar Airways flight QR627 to Hammad International Airport, Doha, Qatar, arriving on 29 April 2020.  From there, he took another Qatar Airways flight QR818 arriving at Hong Kong on the same date.  Upon arrival at Hong Kong International Airport, he was given a document titled “Message from the Department of Health to Hong Kong residents returning from Pakistan”, which stated, inter alia, the following:

“Important Message

·According to the announcement of the health authority of Pakistan, as of 27 April 2020 (Hong Kong time), the cumulative number of confirmed cases of COVID-19 in Pakistan was 12 723. The majority (7 685) of them were recorded in the past 14 days, indicating that the disease is still actively transmitting in the country.

·Given that detailed information on surveillance data and the laboratory capacity of Pakistan is not available to us, the risk of infection among returnees from Pakistan is unknown.

·Having regard to the above, the Hong Kong SAR Government is of the view that Hong Kong residents on your flight should undergo health assessment and mandatory test for COVID-19 virus upon arrival in Hong Kong.  All passengers should be subject to a 14-day mandatory quarantine at designated quarantine centre under Cap 599E of the Laws of Hong Kong (Compulsory Quarantine of Persons Arriving at Hong Kong from Foreign Places Regulation) upon disembarkation when returning to Hong Kong.  The purpose of the measure is to safeguard the health of you and your family, as well as the integrity of the Hong Kong healthcare system in combating the virus.”

3.At Hong Kong International Airport, the Applicant went through temperature screening and handed in a health declaration form to the Department of Health.  After that, he was transferred to the Temporary Specimen Collection Centre of the Department of Health at AsiaWorld-Expo, where he went through a registration process and provided deep throat saliva specimen for the testing of COVID-19.

4.The Applicant was served with a “Compulsory Quarantine Order” (“the Order”) issued under the Compulsory Quarantine of Persons Arriving at Hong Kong from Foreign Places Regulation, Cap 599E (“the Regulation”), which required him to be quarantined at the Centre for 14 days.  The Order stated that the Applicant was subject to compulsory quarantine until 12 May 2020 at 23:59 hours.  Afterwards, he was transferred to the Centre for quarantine.

5.The gravamen of the Applicant’s complaint is that compulsory quarantine may take place either at home, a hotel or a designated place (such as the Centre).  He was not, however, given a choice of the place for his quarantine, but (i) passengers of other nationalities travelling on the same flight to Hong Kong were not required to be quarantined at the Centre, and (ii) other Hong Kong residents arriving from the UK or USA (or other countries having higher numbers of confirmed COVID-19 cases or transmissions than Pakistan) were not required to undergo quarantine at the Centre, but were permitted to do so at home or a hotel.  This, according to the Applicant, constitutes discrimination based purely on national origin or race rather than public health reasons contrary to Articles 1, 22 or 23 of the Hong Kong Bill of Rights.  The Applicant also relies on Article 6 of the Hong Kong Bill of Rights relating to the right to liberty.

THE REGULATION

6.The following provisions of the Regulation are relevant:

(1) Section 3(1) provides that an authorized officer must, by written order, place a person who arrives at Hong Kong under quarantine for a period of 14 days beginning on the date of arrival if -

(a) the person arrives at Hong Kong from a place specified under section 12; or

(b) the person has stayed in a specified place for any period of time during the 14 days before the date of arrival.

(2) Section 3(2) provides that a quarantine order must specify the terms of quarantine.

(3) Section 6 provides that a person placed under quarantine under section 3 must, during the quarantine period, be quarantined -

(a) in a place assigned by an authorized officer; or

(b) if an authorized officer considers it prudent and appropriate in the circumstances of the case - in a place nominated by the person when the quarantine order is made against the person.

(4) Section 8(1) provides that a person must not leave the place of quarantine in which the person is placed under quarantine under section 3 without permission given by an authorized officer, and section 8(5) provides that a person who, without reasonable excuse, contravenes subsection (1) commits an offence and is liable on conviction to a fine at level 4 and to imprisonment for 6 months.

7.Pakistan is a place specified under section 12 of the Regulation.

DISCUSSION

8.The Applicant’s complaint of discrimination on the ground of national origin or race is based on the incorrect premise that he is required to undergo quarantine at the Centre because of his national origin or race.  I have been informed by Ms Lai (for the Department of Health) that this restriction is imposed on any person who arrives at Hong Kong from Pakistan or who has stayed in Pakistan during the past 14 days before the date of arrival, regardless of his race or national origin.  In other words, a Chinese or a person of any nationality or race who arrives at Hong Kong from Pakistan or who has stayed in Pakistan during the past 14 days before the date of arrival is required to be quarantined at the Centre for a period of 14 days.  As a matter of fact, in the past few months, persons of over 30 nationalities from other places, including the Hubei Province in the PRC, 2 districts of South Korea, 3 provinces in Italy, Iran, and those who were on board the Diamond Princess, have been subject to the same requirement.  In imposing the quarantine requirement complained of by the Applicant, the nationality or race of the person is not a relevant factor or consideration by the Department of Health.

9.In so far as the Applicant’s complaint is based on BOR 6, I accept that the liberty of a person who is subject to quarantine, whether at the Centre, or his home, or a hotel, is restricted.  The question is whether the measure imposed on the Applicant (ie requiring him to be quarantined at the Centre) satisfies the 4-step proportional test.  In my view, it does, for the following reasons:

(1) The impugned measure serves the legitimate aim of protection of public health.

(2) The impugned measure is rationally connected with the advancement of that aim.

(3) The appropriate standard of review is that of “manifestly without reasonable foundation” instead of the more stringent standard of “no more than reasonably necessary”, because (i) the Department of Health is in a much better position than the court to determine the risk of an outbreak of COVID-19 in Hong Kong and how best such risk may be contained or managed, and (ii) of the serious social and economic consequences of a general outbreak of COVID-19 in Hong Kong.  In coming to this view, the court recognizes that subjecting a person to quarantine at a designated quarantine centre involves a significant restriction of that person’s liberty, but considers that the gravity of the restriction is somewhat ameliorated by the fact that it is for a short period of time only and takes place in a quarantine centre setting.  Ms Lai has informed the court that in determining whether persons coming or returning to Hong Kong from a particular country or place should be quarantined at the Centre at any particular point in time (the position being kept under review from time to time), the Department of Health takes into account a number of factors, including (i) the COVID-19 outbreak situation in that country or place (including the number of confirmed COVID-19 cases, whether it is on an upward and downward trend, and the transmission rate), (ii) the number of persons coming or returning to Hong Kong from that country or place, (iii) the overall COVID-19 outbreak situation in Hong Kong, and (iv) the quarantine facilities available in Hong Kong.  Ms Lai has further informed the court that in so far as Pakistan is concerned, according to the information available to the Department of Health: (a) only 710 COVID-19 tests were carried out per million of population (compared to 20,000 in Hong Kong, and 10,000-15,000 in the UK/USA), and (b) over 60% of the confirmed COVID-19 cases in Pakistan were recorded within the 14-day period immediately prior to 27 April 2020.  Considering the small geographical area of Hong Kong and the high population density here, I do not consider the impugned measure to be manifestly without reasonable foundation.  Even if the standard of review should be the higher one of “no more than reasonably necessary”, I consider that the impugned measure would pass that test.  Mr Chan argues that the impugned measure cannot be justified where there is a suitable alternative which is less draconian (eg, quarantine at home) and can achieve the same public health outcome, and his client should be permitted to be quarantined at home.  It is, however, obvious that quarantine at home is not equally effective for the purpose of minimizing transmission of COVID-19 in the community, because those living with the person subject to quarantine at home would almost inevitably be coming into close personal contact with that person on a daily basis but they are not themselves subject to any quarantine restriction.

(4) The impugned measure strikes a reasonable balance between (i) the societal benefits of the encroachment, namely, protection of public health in Hong Kong, which I consider to be a matter of paramount importance, and (ii) the restriction of the Applicant’s liberty.  I am not persuaded that the pursuit of the societal interest results in an unacceptably harsh burden on the Applicant.  As stated in the document titled “Message from the Department of Health to Hong Kong residents returning from Pakistan” mentioned in §2 above, the impugned measure also safeguards the health of the Applicant and his family.  The Applicant raises two particular complaints here.  First, he says that the provision of food at the Centre falls below the acceptable standards.  In particular, he is a Muslim and cannot take non-Halal ingredients such as pork.  Ms Lai informs the court, however, that upon admission into the Centre, workers there would enquire about any dietary requirements of those being admitted, and their dietary requirements (including the provision of Halal food) would be respected and catered for.  Ms Lai further informs the court that persons admitted into the Centre are permitted to arrange for food to be delivered to them from outside.  Second, the Applicant complains about security at the Centre, and relies on a newspaper article dated 5 May 2020 reporting an attack on a 43-year old man of Pakistani origin by a pair of masked men at the Centre.  Ms Lai informs the court that security at the Centre is provided by the CAS and a private security company with regular patrolling of the Centre. It would appear that the incident as reported in the said newspaper article is an isolated incident.  There is no reason to believe that there is any systemic security risk at the Centre. 

10.In all, I am of the view that the Department of Health’s decision to require the Applicant to be quarantined at the Centre for a period of 14 days starting from 29 April 2020 is a lawful exercise of its powers under the Regulation.

11.Lastly, I should mention that due to the short notice given to the Department of Health of the hearing of the Applicant’s application in view of its urgency, the information provided by Ms Lai at the hearing mentioned above was not confirmed by affidavit.  If the Applicant wishes, he may apply to the court for an order that the Department of Health shall provide an affidavit to verify the said information.

DISPOSITION

12.The Applicant’s application for a writ of habeas corpus is dismissed, with costs to the Respondent, to be taxed if not agreed.

Mr Benjamin Chan, instructed by Chaudhry Solicitors, for the Applicant

Ms Liesl Lai, Government Counsel, instructed by Department of Justice, for the Respondent