Horsfield Leslie Grant and Others v. Chief Executive of the HKSAR and Others

HCAL 952/2020

[2020] HKCFI 903

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 952 OF 2020

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BETWEEN

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REASONS FOR DECISION

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INTRODUCTION

1.On 18 May 2020, the court heard the Applicants’ urgent application for an order that they be released from quarantine at JPC Permanent Activity Centre and Integrated Youth Training Camp (“the Centre”) pursuant to a writ of habeas corpus directed to be issued by Mrs Justice Barnes on 16 May 2020.  At the hearing on 18 May 2020, the evidence before the court consisted of the following:

(1) an unsworn 1^st Affidavit of the 1^st Applicant;

(2) an unsworn 2^nd Affidavit of the 1^st Applicant;

(3) the 1^st Affidavit of Karen McClellan sworn on 18 May 2020.

The court also had before it a draft Amended Form 86 dated 17 May 2020 settled by counsel.

2.The court informed the parties that it would first deal with the writ of habeas corpus, leaving the application for leave to apply for judicial review to be separately dealt with later.  At the conclusion of the hearing, the court indicated to the parties that it intended to give a decision, with brief reasons, on the writ of habeas corpus on 20 May 2020.  The court also granted leave to the Respondents to file evidence in opposition by 2:30 pm on 19 May 2020, so that the Applicants would have some time to consider the Respondents’ evidence and file such further evidence or submissions (if so advised) prior to the court’s decision on the application.  As a matter of fact, the affirmations of (i) Au Ka Wing of the Department of Health and (ii) Ho Wing Hei of the Civil Aid Service were only filed at about 4:45 pm on 19 May 2020, and were received by the Applicants’ solicitors after 5:00 pm.

3.In the morning of 20 May 2020, the court received further submissions and evidence from the Applicants’ solicitors, including:

(1) “Applicants’ Responses to the Respondent’s Evidence”;

(2) an unsworn 3^rd Affidavit of the 1^st Applicant;

(3) an unsworn 2^nd Affidavit of Karen McClellan.

4.In view of the further evidence and materials filed subsequent to the hearing, the court decided to first give a decision on the application on 20 May 2020 (which it did, namely, that the application be dismissed), with reasons for the decision to be given as soon as practicable afterwards, which I now do.

BASIC FACTS

5.The 1^st Applicant is a South African citizen and a Hong Kong resident, and has been living in Hong Kong for about 2 years.  The 2^nd Applicant is the 1^st Applicant’s wife, and the 3^rd to 5^th Applicants are the 1^st Applicant’s children (aged 22 months, 7 years and 9 years respectively).  They are Hong Kong permanent residents.  The 6^th Applicant is the 1^st Applicant’s foreign domestic helper.

6.On or about 7 February 2020, the Applicants travelled to South Africa, and stayed in a farm in Karoo for about 7 weeks as the country was in lock-down due to the COVID-19 pandemic.  On 12 May 2020, they flew from Johannesburg to Doha.  On 14 May 2020, they flew from Doha to Hong Kong.

7.Upon arrival at Hong Kong International Airport, the Applicants had their temperature checked, and submitted their health declaration forms to the Department of Health.  They were given a notice titled “Message from the Department of Health to Hong Kong residents returning from South Africa”, which stated, inter alia, the following:

“Important Message

· According to official data of South Africa, as of 13 May 2020 (Hong Kong time), the cumulative number of confirmed cases of COVID-19 in South Africa was 10 652. The majority (5 859 cases) 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 South Africa is not available to us, the risk of infection among returnees from South Africa is unknown.

· Having regard to the above, the Hong Kong SAR Government is of the view that Hong Kong residents returning from South Africa 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.”

8.The Applicants were also each 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 them to quarantine at the Centre for 14 days until 27 May 2020 at 23:59 hours.  The Applicants were then transferred to AsiaWorld-Expo, where they provided deep throat saliva specimen for the testing of COVID-19.  Afterwards, they were transferred to the Centre for quarantine.

9.The Applicants arrived at the Centre at about 6:30 pm on 14 May 2020.  The 1^st Applicant was, apparently, uncooperative at the beginning, and caused damage to, or destruction of, some government property.  Eventually, the 1^st to 5^th Applicants were persuaded to take up a room, and the 6^th Applicant was arranged to take up another room, at the Centre.  In his 1^st Affidavit (unsworn), the 1^st Applicant complains about (i) the hygienic and general conditions, as well as the bed, of his room, (ii) the food provided at the Centre, (iii) the well beings of his children, and (iv) his own medical condition (namely, high blood pressure).  Later in the evening, at around 9:02 pm, the 1^st Applicant indicated to the staff at the Centre that he and his family wished to leave the Centre.  A letter dated 14 May 2020 was also sent by Daly & Associates (the Applicants’ lawyers) to (i) the Centre and (ii) the Food and Health Bureau (with copies to, inter alia, the Secretary for Food and Health, the Chief Secretary for Administration, and the Director of Health) seeking clarification of the basis of the Applicants’ quarantine at the Centre and requesting that they be permitted to be quarantined at their home, which was said to be “a stand-alone townhouse and as such, contact with outside persons can easily be avoided”.  Daly & Associates contended that it would be prudent and appropriate to allow the Applicants to enter home quarantine given the following:

(1) Home quarantine was more appropriate taking into account the welfare and needs of the children, especially the family’s 19-month-old baby;

(2) The 1^st Applicant suffered from high blood pressure and was concerned that his condition would be aggravated by the present quarantine facilities and his worry for his family in the circumstances.

(3) The Applicants were able to home quarantine at their stand-alone property.

10.Daly & Associates also stated that the Applicants:

“will comply with any appropriate and necessary conditions imposed on them to ensure the safety of themselves and others, including undertaking not to leave the property, wearing wristband monitors (quarantine bracelet), complying with phone check-ins and/or other reporting [requirements] to your or other appropriate office”.

11.By an email sent by Dr Shu Bo Yee on behalf of the Director of Health to the 2^nd Applicant on 15 May 2020 at around 9:05 pm, Dr Shu explained to her the rationale behind the Government’s decision that returnees from (inter alia) South Africa were required to undergo quarantine at designated quarantine centres for a period of 14 days upon their return to Hong Kong.

12.There were other letters and emails exchanged between Daly & Associates/the 2^nd Applicant and the Respondents on 15 May 2020 which it is not necessary to set out in this decision.  Also on 15 May 2020, the Applicants were informed by an officer at the Centre that they had all tested negative for COVID-19.

13.On 16 May 2020, the Applicants made an urgent, ex parte, application to Mrs Justice Barnes seeking (i) a writ of habeas corpus for their release from quarantine at the Centre, and (ii) leave to apply for judicial review of:

(1) the Chief Executive’s decision to promulgate section 3 of the Regulation;

(2) the Director of Health (“the Director”)’s decision to quarantine all persons arriving in Hong Kong from South Africa under the Regulation in a Government quarantine centre rather than in their own home;

(3) the Director’s decision on 14 May 2020 to detain the Applicants at the Centre for 14 days, rather than to quarantine them at their home for the same period.

14.After hearing counsel for the Applicants, Mrs Justice Barnes:

(1) made an order for a writ of habeas corpus to issue and to be served on the Department of Justice forthwith;

(2) directed that the writ of habeas corpus and the application for leave to apply for judicial review should be heard on 18 May 2020.

GROUNDS OF CHALLENGE

15.In a recent decision handed down by this court in Syed Agha Raza Shah v The Director of Heath [2020] HKCFI 770 on 13 May 2020, the Court considered the lawfulness of a decision made under the Regulation to subject a Hong Kong permanent resident returning from Pakistan to quarantine at Chung Yeung Estate Quarantine Centre for 14 days, and came to the conclusion that the restriction on personal liberty imposed by such decision satisfied the 4-step proportionality test and was therefore lawful and constitutionally compliant.

16.In the present case, Mr Parker, on behalf of the Applicants, challenges the legality of his clients’ “detention” at the Centre on 3 principal grounds, namely:

(1) the Chief Executive in Council (“the CEIC”) has no power to make the Regulation placing the Applicants in quarantine at the Centre (the ultra vires ground);

(2) the decision to quarantine the Applicants at the Centre is arbitrary, and violates BL 28, BOR 5 and the common law right to liberty (the arbitrary detention ground);

(3) the Director failed to give individual consideration of the Applicants’ circumstances in making the Order to place them under quarantine at the Centre (“the individual circumstances ground”).

THE PREVENTION AND CONTROL OF DISEASE ORDINANCE

17.The long title to the Prevention and Control of Disease Ordinance, Cap 599 (“the Ordinance”) states as follows:

“An Ordinance to provide for the control and prevention of disease among human beings; to prevent the introduction into, the spread in and the transmission from, Hong Kong of any disease, source of disease or contamination; to apply relevant measures of the International Health Regulations promulgated by the World Health Organization; and to provide for connected purposes”.

18.Under the Ordinance, both the Secretary for Food and Health (“the Secretary”) and the CEIC are empowered to make regulations in furtherance of the objects or purposes of the Ordinance.

19.The Secretary’s powers are to be found in section 7 of the Ordinance which, so far as relevant, states as follows:

“(1) The Secretary for Food and Health may make regulations (the regulation) -

(a) for the purpose of preventing the introduction into, the spread in and the transmission from, Hong Kong of any disease, source of disease or contamination; and

(b) for the prevention of any disease.

(2) Without limiting the generality of subsection (1), the regulation may provide for any or all of the following -

(e) the prohibition or regulation of -

(i) the admission of persons into Hong Kong or their movements within or their departure from Hong Kong; and

(ii) the importation, transit, transhipment or exportation of any article;

(f) the isolation or quarantine of any person, article or place and their management or disposal while under isolation or quarantine and the occupation of any place required for isolation or quarantine;

(n) stopping, removing or detaining any person, conveyance or article;

(x) any other matter that appears to the Secretary for Food and Health to be necessary or expedient for the carrying out of the purposes specified in subsection (1).”

20.On the other hand, the CEIC’s powers are contained in section 8 of the Ordinance which, so far as relevant, states as follows:

“(1) On any occasion which the Chief Executive in Council considers to be an occasion of a public health emergency, he may make regulations (the regulation) for the purposes of preventing, combating or alleviating the effects of the public health emergency and protecting public health.

(3) Without limiting the generality of subsection (1), the regulation may provide for -

(a) requirements on a person to disclose or furnish any information that is relevant to the handling of a state of public health emergency;

(b) the disclosure to the public by a public officer of any information that is relevant to the handling of a state of public health emergency;

(c) the requisitioning of property and matters relating to compensation for such requisition;

(d) matters relating to the appointment of any person to act as a medical and health professional, the control of such appointed person, and the deeming of such appointed person to be registered under any enactment; and

(e) such incidental and supplementary matters as appear to the Chief Executive in Council to be necessary or expedient for the purposes of the regulation.

(5) In this section, public health emergency (公共衞生緊急事態) means -

(a) the occurrence of or the imminent threat of a disease, an epidemic or a pandemic;

(b) the occurrence of a novel, or highly infectious, agent or matter; or

(c) the widespread exposure or the imminent threat of widespread exposure of human beings to an infectious agent,

that has a high probability of causing a large number of deaths in the population or a large number of serious disabilities (whether or not long-term) in the population.”

THE REGULATION

21.The Regulation is made by the CEIC under section 8 of the Ordinance on 19 March 2020 in view of the current COVID-19 pandemic. The following provisions of the Regulation are relevant for the purpose of the present discussion:

(1) Section 3(1) provides that an authorized officer appointed by the Director 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.  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.

(5) Section 12(1) provides that for the purposes of section 3(1)(a), the Secretary may specify any place outside China by notice published in the Gazette.

(6) Section 12(3) provides that before exercising the power conferred by subsection (1) in relation to a place, the Secretary must have regard to -

(a) the extent of the spread of the coronavirus disease 2019 (COVID-19);

(b) the public health risk posed to Hong Kong by persons arriving from that place or who have stayed in that place.

22.By GN (E) 12 of 2020 dated 18 May 2020, the Secretary, in pursuance of the power conferred on her by section 12 of the Regulation, specified, with effect from 19 March 2020, “all places outside China” for the purposes of section 3(1)(a) of the Regulation.  Accordingly, South Africa is a specified place for such purposes.

THE ULTRA VIRES GROUND

23.Mr Parker argues that while the Secretary has power under section 7 of the Ordinance to make the sort of regulation as the Regulation to provide for the making of orders to place persons coming to Hong Kong from specified places under quarantine, including orders requiring such persons to be quarantined at designated quarantine centres (hereinafter referred to as “Compulsory Quarantine Orders”), the CEIC has no such power under section 8 of the Ordinance.  In support of this argument, Mr Parker relies upon the principle of legality, and contends that the generally worded power in section 8 is not sufficient to convey a power to restrict the right to liberty of Hong Kong residents.

24.I do not accept this argument, for the following reasons:

(1) Whether section 8 of the Ordinance empowers the CEIC to make the Regulation to provide for the making of Compulsory Quarantine Orders depends upon the true construction of the Ordinance.

(2) It is now well established that the court must apply a purposive and context-based approach when construing a statute.  As earlier mentioned, the purposes of the Ordinance, as stated in its long title is, inter alia, “to provide for the control and prevention of disease among human beings; to prevent the introduction into, the spread in and the transmission from, Hong Kong of any disease, source of disease or contamination”.

(3) In so far as context is concerned, it is significant that, as mentioned in the “Report of the Bills Committee on Prevention and Control of Disease Bill” dated 22 May 2008 (“the Bills Committee Report”), all the powers in the Bill (now the Ordinance) can be exercised both in “peacetime” and “during a state of public health emergency” for the prevention and control of disease, except for the power of the CEIC to make regulation under section 8 which is exercisable only on “an occasion of a public health emergency”.

(4) Viewed in the light of the aforesaid purposes of the Ordinance and the context of section 8 thereof, it would be extraordinary that while the Secretary has power to make regulation to place persons coming to Hong Kong from overseas under quarantine and at designated quarantine centres “for the purpose of preventing the introduction into, the spread in and the transmission from, Hong Kong of any disease, source of disease or contamination” under section 7, the CEIC, on an occasion of a public health emergency, has no similar power “for the purposes of preventing, combating or alleviating the effects of the public health emergency and protecting public health” under section 8.

(5) The general powers available to the CEIC under section 8(1), on an ordinary reading of that subsection, is clearly wide enough to confer on the CEIC power to make regulations to provide for the making of Compulsory Quarantine Orders.  The specific powers enumerated in subsection (3) are “[w]ithout limiting the generality of subsection (1)”.

(6) The principle of legality relied upon by Mr Parker is a principle of construction, not a rigid principle of law.  The rationale behind the principle of legality was explained by Lord Hoffmann in Ex p Simmons [2000] 2 AC 115 at 131E-G: “the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual”.  In the present case, the legislature has expressly provided that, for the purpose of preventing the introduction into, spread in and transmission from Hong Kong of any disease, the Secretary has power to make regulations to impose restrictions such as placing persons coming from overseas under quarantine at designated quarantine centres.  The possibility of a violation of the right to liberty and security of person was expressly considered in the Bills Committee Report, at §§55-57.  In other words, the possible violation of basic rights has been confronted squarely and explicitly, and any associated “political cost” has been accepted by the legislature.  When considering the application of the principle of legality in this case, it does not seem to me to make any difference whether the curtailment of the relevant rights is imposed by regulations made by the Secretary or by the CEIC.

(7) Furthermore, in relation to regulations to be made by the CEIC for the purposes of preventing, combating or alleviating the effects of a public health emergency and protecting public health under section 8, it must have been obvious to the legislature that they would or might include the imposition of restrictions such as placing persons coming from overseas under quarantine at designated quarantine centres.  Such quarantine measures are obvious means of prevention and control of spread or transmission of contagious diseases.  It is, I consider, unthinkable that they could have passed unnoticed by the legislature.

(8) The fact that the Secretary has power to make similar regulations under section 7 is no reason to construe the powers of the CEIC under section 8 restrictively.  As earlier noted, the occasions for the exercise of powers by the Secretary and the CEIC are different.  Also, as mentioned in §36 of the Bills Committee Report, “the reason for only empowering the CE in Council to make a public health emergency regulation on an occasion of public health emergency is because the whole Government will need to be mobilised to combat and control the emergency situation to which the Government will be held wholly accountable”.  Hence, on an occasion of a public health emergency, it is more appropriate for the necessary public health and safety measures to be provided for by regulations made by the CEIC instead of by the Secretary.

(9) Neither do I consider it to be of much significance that under the former Quarantine and Prevention of Disease Ordinance, Cap 141 (being the predecessor to the Ordinance), the power to make regulations to place persons under quarantine at designated quarantine centres was vested in the CEIC.  The former Ordinance came into force in 1936, and was replaced by the Ordinance in 2008 in the light of the International Health Regulations of the WHO made in 2005 in relation to global response to public health threats.  The Ordinance is a piece of new legislation intended to replace the Quarantine and Prevention of Disease Ordinance.  The scope and effect of the new regime under Ordinance should not, in my view, be deduced from the old regime under the former legislation.

(10) In all, as a matter of construction of Section 8, I consider it to be clear that the CEIC has the power, during a state of public health emergency, to make the Regulation to provide for the quarantine of persons coming from overseas at designated quarantine centres.  I should add that there is no suggestion that as at 19 March 2020, or at any material time since that date, Hong Kong was not, or has not been, in a state of public health emergency.

THE ARBITRARY DETENTION GROUND

25.Mr Parker’s argument under this ground has two facets.  First, he complains that the decision to place all returnees from South Africa at a designated quarantine centre is a “blanket decision” which admits of no exception.

26.The Government’s rationale for the decision made in early May 2020 requiring all returnees from South Africa to be quarantined at the Centre is explained in the Affirmation of Au Ka Wing, Principal Medical & Health Officer (Surveillance) of the Department of Health, filed on 19 May 2020:

“DH’s Risk Assessment on South Africa

[6] The COVID-19 pandemic is still evolving in different parts of the world. Despite the collective effort of governments globally to combat and trying to contain the spread or transmission of COVID-19, the situation remains serious, unabated and largely uncertain in a number of countries. Despite the accumulation gradually of more information of confirmed cases based on the laboratory testing results in individual countries, such information is not and cannot be treated as conclusive indicator of the extent of spread of COVID-19 in a particular country because the tests conducted vary in nature and sophistication, and more importantly, the number of confirmed cases as a risk assessment factor must be taken into account with reference to the testing rate in the relevant country. All in all, for the purpose of its COVID-19 risk assessment in respect of a particular country and deciding what appropriate quarantine measures ought to be adopted for the Hong Kong residents returning from that country, the Government has adopted a holistic approach. Such approach was fully explained in the email from Dr Shu Bo Yee to the 2^nd Applicant on 15 May 2020 at 9:05 pm, which is quoted in full in paragraph 15 of the Amended Form 86.

[7] Since the outbreak of COVID-19 in Hong Kong, the Government has been regularly monitoring the situation, updating risk assessment and refining measures as and when appropriate. In general, residents of Hong Kong coming back from countries with lockdown measures in place, including South Africa, are treated [as] having a higher risk of having been [infected] because they were stranded in an area outside Hong Kong for a long period and might have a higher risk of infection. Such perceived risk as a result of lockdown are not in any way arbitrarily determined, but a norm adopted by most governments as a matter of common sense and experience.

[8] Starting from 18 March 2020, the Government implemented compulsory quarantine measures and the Regulation was promulgated. Returnees have to be quarantined either in one of the quarantine centres or at their home. In assessing the risk-level of a particular country, the Government with advice from the DH takes into account three main factors, namely:

(a) the incidence (per million population) and trend of confirmed cases in the country in recent weeks;

(b) related to (a) above, the surveillance capability and extensiveness of testing of patients for case detection; and

(c) the capacity of local quarantine centres, [taking] into consideration the prevailing local situation and demand for quarantine centres arising from close contacts of confirmed cases.

[9] Those coming back from countries considered as high-risk (applying the factors (a) and (b) above) will have to be placed in the quarantine centres, subject to the question of spare capacity of such centres (factor (c) above) as at the time of consideration when the Government receives information that a large number of Hong Kong residents stranded in those countries have returned or will return to Hong Kong. As of today, all returnees from Pakistan, India, Bangladesh, Nepal and South Africa must be quarantined at a quarantine centre. Such decision was made in around early May 2020 shortly after the Government had received information from the Security Bureau that in about mid-May 2020 (and specifically for South Africa, on 14 May 2020), there would be a sufficiently sizeable number of returnees from these countries; and a decision had to be made by the Government based on the information available at that point in time and with estimation as to what would be the position in terms of local resources about a week or so later in mid-May 2020. I set out below the assessment carried out in relation to South Africa, and supplement it with information up to 17 May 2020 which confirms the correctness of the assessment in early May 2020.

(a) Incidence and Trend of Confirmed Cases

[10] The incidence in South Africa (i.e. number of confirmed cases per million capita) in the past two weeks (3 to 16 May 2020) was about 120 cases per million capita. Hypothetically and only to give the Court a more concrete idea of the seriousness of the situation in South Africa, Hong Kong needs to have as many as 888 cases within two weeks (i.e. averaging 63 daily cases) to reach the same level in South Africa. Further, the daily number of confirmed cases up to 17 May 2020 has been on a continuously rising trend in the past few weeks, as the numbers below clearly show:

Date	Daily number of confirmed cases
17/05/2020	831
16/05/2020	785
15/05/2020	665
14/05/2020	724
13/05/2020	698
12/05/2020	637
11/05/2020	595
10/05/2020	525
09/05/2020	663
08/05/2020	424
07/05/2020	369
06/05/2020	219
05/05/2020	437
04/05/2020	447
03/05/2020	385
02/05/2020	304
01/05/2020	297
30/04/2020	354
29/04/2020	203
28/04/2020	247
27/04/2020	185
26/04/2020	141

[11] Of the confirmed cases reported in South Africa so far, the majority (about 56%) were reported in the past two weeks, which shows that the COVID-19 pandemic situation in South Africa has been getting increasingly severe. Just to give the Court some ideas of the situation globally, the confirmed cases reported in the past two weeks in the United Kingdom and United States were less than 25% of their total confirmed cases as reported.

(b) Surveillance Capability and Extensiveness of Testing

[12] A country’s testing capacity and strategy directly affects the accuracy and reliability/conclusiveness of reported figures of confirmed cases for the purpose of risk assessment. In this regard, the Government looks at the number of tests per million capita. A low testing rate in a particular country means that either its government has not carried out tests extensively (and the relatively small sample size must affect the representativeness of the reported number of confirmed cases), or that many mild or asymptomatic cases are not diagnosed and reflected in the officially reported figures.

[13] As of 16 May 2020, the testing rate in South Africa was about 7,500 tests per million capita. For reference only, the testing rate in Hong Kong is about 25,000, and the rate in the United Kingdom and the United States is about 36,000.

(c) Capacity of Quarantine Facilities in Hong Kong

[14] After the upsurge of COVID-19 cases in Hong Kong from mid-March to early April 2020, the local outbreak situation has stabilised since late April 2020. In particular, the number of locally acquired infection has markedly decreased from the peak of over 30 cases in late March 2020 to a lower level of only four cases in the past four weeks.

[15] In devising combating measures, ‘close contacts’ of confirmed cases are considered to have the highest risk and such individuals are required to be quarantined in a quarantine centre. Close contacts in general are persons who (a) stayed or lived with a person confirmed to have been infected; or (b) had face to face contacts with such a person who did not wear mask. As a result of the improving situation in Hong Kong since late April 2020, demand for quarantine centres arising from close contacts has decreased. There is more spare capacity in local quarantine centres for quarantining returnees from those countries assessed as high-risk, such as South Africa, although it must be stressed that the Government considers it necessary to reserve some quarantine centres in case there is resurgence of local cases leading to increased demand for quarantine facilities for close contacts of confirmed cases; it is impossible and indeed unwise to put all Hong Kong residents returning from overseas countries to quarantine centres.”

27.The Applicants have challenged the Director’s risk assessment in respect of returnees from South Africa as compared to returnees from other countries (such as the US, UK, Russia, Mexico and Brazil)[1].  It is not with disrespect that I do not propose to examine in detail the comments raised by the Applicants’ lawyers on the Director’s risk assessments, for I am clearly of the view that such exercise will not be fruitful.  In an application under a writ of habeas corpus, the court’s focus is on the legality of the detention.  The application should not be turned into a merits review of the Director’s risk assessments in respect of returnees from different countries. The question of whether any particular country should be regarded as “high-risk” at any particular point in time is a matter of professional judgment which the Department of Health is in a much better position than the court to assess.  Unless the Department of Health’s assessment is manifestly wrong or unreasonable, which I do not consider to be case here, the court should be slow to intervene.  The same consideration applies to the question of allocation and use of limited quarantine facilities available in Hong Kong at any particular point in time.  The Government is much better placed than the court to determine such matter, and should be given a wide margin of discretion in its determination.

28.On the materials before the court, it was, I consider, open to the Director to take the view in early May 2020 that returnees from South Africa should generally be required to quarantine at the Centre, subject to a discretion to permit individual returnees to quarantine at home based on the special circumstances their case under section 6(2) of the Regulation (which I shall further discuss below).  As stated in §34 of Mr Au’s Affirmation:

“Under the Regulation, officers of the DH have a discretion to consider if the circumstances of a particular returnee are such that certain quarantine measures would not be appropriate for him or her, and there may be rare cases in which the health conditions of a returnee are such [that] he or she is unsuitable for quarantine in a quarantine centre. These are exceptional cases, and the Government has adopted a country-based [risk] assessment approach as a starting point for returnees from a particular country, which cannot be said to be arbitrary.” [emphasis added]

29.For the above reasons, I reject Mr Parker’s contention that the decision to require all returnees from South Africa to quarantine at the Centre is a blanket decision which admits of no exception.

30.Second, Mr Parker argues that the Government has failed to give any rational, evidenced-based reason for the decision to single out persons returning from South Africa for harsher treatment, compared to those returning from other countries who are permitted to quarantine at home.

31.In particular, Mr Parker argues that there are countries such as Bolivia, Brazil, Colombia, Mexico, Ethiopia, Ghana, Nigeria and Paraguay which have (i) higher number of confirmed COVID-19 cases per capita, and (ii) lower testing rate compared to South Africa, and yet returnees from those countries are subject to home quarantine only at the moment.

32.As explained by Mr Au at §§27 and 29 of his affirmation, since mid-April 2020, the Department of Health has been receiving information from the Security Bureau that a sizable number of Hong Kong residents stranded in a number of countries due to lockdown would be coming back to Hong Kong at different times and such countries include Pakistan, India, Bangladesh, Nepal and South Africa.  Hence, the Department of Health performed risk assessments in respect of those countries and came to the view that returnees from those countries should be required to quarantine at designated quarantine centres.  On the other hand, the Department of Health has not been informed that there will be any stranded Hong Kong residents returning from Bolivia, Brazil, Colombia, Mexico, Ethiopia, Ghana, Nigeria or Paraguay.  The occasion for a general risk assessment in respect of those countries has not therefore arisen.  According to Mr Au, if the Department of Health receives information about stranded Hong Kong residents returning from those countries, the Department of Health will review and conduct risk assessment as needed based on the situation at that particular point in time, adopting the same assessment criteria which have been consistently applied to Pakistan, India, Bangladesh, Nepal and South Africa.

33.Mr Parker complains that the Respondents have, despite the court’s inquiry, failed to state in the evidence filed by them whether, as a matter of fact, any people who have visited countries such as Bolivia, Brazil, etc returned to Hong Kong recently and were allowed to quarantine at home.  In the 2^nd Affidavit of Karen McClellan, it is also said that it is possible for Hong Kong residents to return home from countries which “should have been considered” as “high risk” (such as Russia, Mexico and Brazil, in addition to the US and UK), and they are permitted to quarantine at home.  It transpires from the DoJ’s letter (1^st) dated 20 May 2020 to the court that, according to the data obtained from the electronic health declaration system on 18 and 19 May 2020, 10 travellers had declared travel history to Brazil and 5 travellers had declared travel history to Mexico, while none declared having travelled to Bolivia and Columbia, in the past 14 days.  In my view, in view of the fluid situation in which the COVID-19 pandemic is evolving globally, it would be impracticable for the Department of Health to seek to carry out risk assessment in respect of all countries in the world.  The Department of Health’s practice as described by Mr Au in §§27 and 29 of his affirmation (see §32 above) is a matter of professional judgment and seems to me to be reasonable and lawful.  The reasonableness and lawfulness of the practice is not negated merely because, in some isolated cases, persons with a high risk of infection of COVID-19 returning to Hong Kong are permitted to quarantine at home.

34.In so far as Mr Parker seeks to compare the position of his clients with those returning from the US or UK, the Department of Health is entitled, in my view, to give weight to the much lower testing rate in South Africa (about 7,500 tests per million capita) compared to those in the US and UK (about 36,000 tests per million capita), and also the respective trends of confirmed cases in those countries (over 56% of total cases reported in the past two weeks for South Africa, but less than 25% for the US/UK). While the number of confirmed cases for returnees from the US/UK might have been high in March/April 2020, the position has markedly improved in May 2020 (being the relevant date for the purpose of the present discussion).  As pointed out in §20 of Mr Au’s affirmation:

“in the past two weeks (4 May 2020 to 17 May 2020), only one imported case was detected in Hong Kong amongst the 1137 persons coming back via flights from the United Kingdom (positive percentage 0.09%); and only one case was detected amongst the 987 persons coming back via flights from the United States (positive percentage 0.10%).”

35.On the other hand, as of 17 May 2020, the number of tests performed for returnees from South Africa (10 in total) is not large enough to allow an objective conclusion to be drawn on the public health risk posed to Hong Kong by them[2].

36.Finally, in so far as the Applicants rely on the rights to liberty and security of the person under BL 28, BOR 5 and at common law, including the right not to be subjected to arbitrary detention (which are not absolute rights), I am of the view that the decision to require the Applicants to quarantine at the Centre satisfies the 4-step proportionality test, in that:

(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”.  I do not consider the impugned measure to be manifestly without reasonable foundation in the light of the evidence given by Mr Au in his affirmation.  I should add that I would reach the same conclusion even if the standard of review should be the higher one of “no more than reasonably necessary”.

(4) Lastly, 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 in the current COVID-19 pandemic, and (ii) the restriction of the Applicants’ liberty.  Having regard to the very serious social (including public health) and economic consequences which may result from a general or widespread outbreak of COVID-19 in the community, I am not persuaded that the pursuit of the societal interest results in an unacceptably harsh burden on the Applicants.

37.In all, I reject the arbitrary detention ground.

THE INDIVIDUAL CIRCUMSTANCES GROUND

38.Mr Parker argues that an authorised officer is required to undertake an individualised assessment before deciding whether to impose on a given individual an order requiring him to quarantine at a designated quarantine centre (instead of at home) by reason of Section 6(b) of the Regulation, which states as follows:

“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.”

39.Mr Parker further argues that in view of the Applicants’ individual circumstances, they should have been permitted to quarantine at home, and relies on the matters stated in §59D of the draft Amended Form 86 in support of this argument, namely:

“that the Applicants live in a freestanding home with a separate entrance from other dwellings and no common area; that they would be the only persons in the dwellings for the 14-day quarantine period; that their strict compliance with the home quarantine regime, with which they are willing to comply, would be monitored by wristband /smartphone in the same way as others placed in home quarantine; that the unsanitary conditions at the [Centre] would not be suitable for a family with young children; that the children would be, and in fact have become, distressed at being confined away from their own home for reasons they cannot understand; that the 1^st Applicant has a heart condition, and the confinement at the [Centre] has caused him to suffer from serious anxiety and elevated blood pressure.”

40.It should be noted that under section 6(b) of the Regulation, the obligation on the part of an authorised officer to consider whether it is prudent and appropriate in the circumstances to place a person under quarantine in a place other than one assigned by the authorised officer is only triggered when the person subject to quarantine makes a relevant nomination.  It has not been argued that the Director is under a legal duty to advise a person subject to quarantine to consider making a nomination upon his/her arrival in Hong Kong.  It is also impracticable to expect or require health officers to make decisions under section 6(b) of the Regulation at the airport[3].  In the present case, it would appear that the Applicants first nominated their home as the place of quarantine in Daly & Associates’ letter dated 14 May 2020 (referred to in §9 above), which was after the making of the Order.  For the purpose of this judgment, I shall proceed on the assumption (without deciding, because the point has not been argued by counsel) that the Director is still under an obligation to consider the Applicants’ nomination at that stage.  Although there has not been any formal decision letter issued by the Director, it is obvious that the Applicants’ nomination has been rejected[4].  In my view, none of the matters raised by the Applicants could justify an exception being made to permit them to quarantine at home, and the Director’s decision not to accept their nomination is reasonable.

(1) In relation to the Applicants’ suggestion that home quarantine would be appropriate for them because they live in a freestanding townhouse with a separate entrance from other dwellings and no common area and it is occupied by the Applicants only, Mr Au has explained, in his Affidavit, the clear advantages of quarantine at a designated quarantine centre compared to home quarantine from the point of view of public health protection (including protection of the person under quarantine) -

“[22] Quarantine at a centre protects both the persons under quarantine and the community at large.

[23] First, all persons quarantined in a quarantine centre are being continually monitored on their health condition so that infection, if detected, could and would be managed promptly. There is 24-hour medical support provided in quarantine centres with doctors and nurses available. On-site medical support would provide immediate medical attention to those who have developed symptoms as appropriate. They would then be transferred to hospital for further management. For persons quarantined at home, if they develop symptoms, they would need to call a DH’s hotline to talk with on-call doctors only (but without the benefit of any onsite health assessment).

[24] Second, there is strict access control in quarantine centres so that persons quarantined could not leave the assigned premises without permission and likewise there is also control for persons going in. On the other hand, it is not guaranteed at all that persons under home quarantine will not leave their homes throughout the 14-day quarantine period; and there have been such cases of violation of the Regulation before as widely reported in the news. Some infected persons may remain asymptomatic or have only very mild symptoms, but they infect others. If one under home quarantine leaving one’s home against the quarantine order would still pose a risk to the community at large.

[25]      The above does not mean that the Government considers home quarantine measures unsatisfactory, or suggests that people under home quarantine are irresponsible residents who do not abide by the law.  Instead, the point is that so long as resources and capacity allow, quarantine at a quarantine centre is always a preferable option as opposed to home quarantine.”

(2) In relation to the 1^st Applicant’s complaint about the cleanliness or hygienic conditions of his room in the Centre, the 1^st Applicant was offered another room on 15 May 2020, but that offered was declined.  There is also evidence that the rooms in the Centre are cleaned regularly[5].

(3) In relation to the 1^st Applicant’s medical and health condition, the 1^st Applicant has received medical care and attention in the Centre, including medical consultation and prescription (namely, Valium to treat his anxiety symptoms).  At the medical consultation on 17 May 2020, the 1^st Application was asked whether he wished to be transferred to a hospital and the doctor offered to make arrangement for him if necessary, but that offer was rejected by him.  There is also 24-hour medical support provided in the Centre.  The assessment of CAS and staff of the Department of Health is that the Applicants, including the 1^st Applicant, are medically suitable to be quarantined at the Centre[6].

(4) In relation to the welfare of the 1^st Applicant’s children, the evidence indicates that they might have experienced some discomfort and unhappiness for being confined in the Centre and not being allowed to return to their home.  There is, however, nothing to suggest that they are suffering from any illness, or are medically not suitable to be quarantined at the Centre.

(5) In relation to the Applicants’ complaint about the food provided at the Centre, it is not in dispute that the Applicants are permitted to arrange for food to be brought to them from outside the Centre, and they have in fact been receiving supply of food, clothes and other daily essentials from their friends and relatives.

(6) Other matters going to the personal comfort of the Applicants are plainly not sufficient to justify permitting them to be quarantined at their home.

41.Section 6(2) of the Regulation empowers an authorised person to place a person under quarantine in a place nominated by that person if it is “prudent” and “appropriate” to do so.  In my view, the Director is entitled to adopt a cautious approach, and put returnees from a country assessed to be of “high risk” in a quarantine centre for close monitoring of their health conditions so as to minimise the chance of spread of COVID-19 in the local community, save in exceptional circumstances.

42.Mr Parker also complains that (i) the Respondents have not produced any contemporaneous document in connection with the “detention policy generally”, or in relation to the decision to detain the Applicants in a Government quarantine centre, and (ii) the Respondents have failed to adduce evidence to show that the Applicants’ continued detention has ever been reviewed by anyone.  My views are as follows:

(1) It is incorrect to describe the decision of the Director to quarantine returnees from South Africa (or other countries which are assessed to be of “high risk”) at designated quarantine centres as a “detention policy”, general or otherwise.

(2) There are, one can safely assume, some internal documents, notes and/or memos relating to (i) the Director’s risk assessment in respect of returnees from South Africa, and (ii) the Applicants’ request and court application to be released from quarantine at the Centre.  However, an application under a writ of habeas corpus is not an application for general discovery.  The question for consideration by the court is the legality of the detention.  The court can only determine the matter on the basis of the evidence before it.  This having been said, the burden is on the Respondents to justify the legality of the detention.  If the Respondents fail to adduce sufficient evidence, including documentary evidence, to justify the detention, the application will succeed.

(3) I do not accept, as a matter of principle, that the Director is under any general obligation to “review” the decision to place a person under quarantine at a designated quarantine centre during the 14-day quarantine period.  The position is different from, say, administrative detention under the Immigration Ordinance (Cap 115), which is open-ended in nature.  In order to comply with the Hardial Singh principles, periodic reviews of detention under the Immigration Ordinance are required to ensure that the detainee has not been detained for an unreasonable period of time.  In the case of compulsory quarantine under section 3 of the Regulation, the quarantine is for a fixed period of 14 days only.  It has not been suggested that the 14-day quarantine period is itself unreasonable.  So far as the court is aware and understands, a quarantine period of 14 days is adopted in many different countries or jurisdictions, and presumably takes into account the incubation period of COVID-19 although it is not exact and may vary from individual to individual.  Once a decision has been made that a person should be quarantined at a designated quarantine centre, I see no reason why the decision-maker is required to conduct a review, periodically or otherwise, of the decision within the 14-day period.  Should there be some material change of circumstances affecting the decision which comes to the knowledge of the Director, a review may well be required.  However, this scenario has not arisen on the facts of the present case.

43.All in all, I am of the view that the Director’s decision to quarantine the Applicants at the Centre for a period of 14 days starting from 14 May 2020 is a lawful decision, and the Applicants’ current detention at the Centre is lawful.

44.In passing, I should mention that in the DoJ’s letter (2^nd) to the court dated 20 May 2020, there is an allegation of material non-disclosure on the part of the Applicants at the ex parte hearing before Mrs Justice Barnes on 16 May 2020.  However, that allegation was raised in relation to the issue of costs, and there has not been any application to discharge the order of Mrs Justice Barnes on the ground of material non-disclosure.  It is thus not necessary to deal with the allegation at this stage.

DISPOSITION

45.In relation to the writ of habeas corpus, I make an order dismissing the Applicants’ application for their release from quarantine at the Centre.  On the issue of costs, although the Applicants have not been successful, the Respondent have failed to comply with the court order relating to the time for the filing of evidence in opposition.  In the circumstances, I make an order, on a nisi basis, that there be no order as to costs with respect to the habeas corpus application, including the costs of the hearing before Barnes J on 16 May 2020 and the hearing before this court on 18 May 2020.

46.In relation to the application for leave to apply for judicial review, I shall invite the parties to agree directions for the further conduct of that application (if the Applicants wish to pursue it), with liberty to the parties to apply in the event that directions cannot be agreed.

Mr Timothy Parker, instructed by Daly & Associates, for the 1^st to 6^th Applicants

Mr Mike Lui, instructed by Department of Justice, and Ms Karen Ngai, Government Counsel, for the 1^st to 4^th Respondents