The Court of First Instance handed down its judgment on the judicial review application in respect of COVID-19 Vaccination Medical Exemption Certificates (Exemption Certificates) on October 21, 2022. Having carefully considered the legal advice, the exigency of the fight against the epidemic and the interest of the relevant stakeholders and the public at large, the Government has decided not to appeal against the decision of the Court. The Government would amend the relevant regulations, in order to provide clear legal basis for the relevant directions.

     As always, the Government acts in accordance with the law, and strives to ensure that any policy or act of the Government has clear legal authority. The Prevention and Control of Disease Ordinance (Cap. 599) and its regulations empower the Government to make regulations for the purposes of preventing, combating or alleviating the effects of the public health emergency and protecting public health. The relevant regulations concern different areas, affect different sectors of the community, and target the ever-changing epidemic situation as well as variants of the virus. Hence, the regulations are formulated in broad terms in order to best achieve the objectives. This also serves the overall public interest and protects the health of the citizens.

     It is incumbent on the Government to promptly react, when it was revealed that certain private doctors were suspected to have failed to provide proper medical consultation to patients in accordance with the guidelines of the Department of Health (DH) and abused the issuance of Exemption Certificates. This is because if relevant individuals continue to delay vaccination according to the recommendations made by the relevant doctors on the Exemption Certificates, they may put their health at risk of severe illness or even death in case of COVID-19 infection, and also place an unnecessary burden on the public healthcare system. Thus the Government issued the relevant directions under the Prevention and Control of Disease (Vaccine Pass) Regulation, Cap. 599L and the Prevention and Control of Disease (Requirements and Directions) (Business and Premises) Regulation, Cap. 599F. In parallel, the Government has made facilitation arrangements to enable affected individuals to consult a doctor from the public healthcare system as early as possible for free by visiting general out-patient clinics under the Hospital Authority such that the doctors may ascertain whether they can continue to be medically exempted according to their clinical conditions.

     Having considered the evidence and legal submissions of the parties, the Court ruled that relevant legal provisions did not authorise the Government not to accept any person’s Exemption Certificates as the Vaccine Pass. Having considered the legal advice, the exigency of combating the epidemic, the time it may take for the appeal and the remaining validity period of the relevant Exemption Certificates, the Government has taken the view that the best course of action is to amend the relevant regulations instead of lodging an appeal. Such course is considered to be in the best interest of Hong Kong.

     The Government published in the Gazette today (October 25) the Prevention and Control of Disease (Vaccine Pass) (Amendment) Regulation 2022 (Amendment Regulation) to provide a clear legal basis for handling the Exemption Certificates issued by individual doctors suspected to have failed to conduct clinical assessment for patients in accordance with the guidelines issued by the DH, in order to uphold the integrity and robustness of the Vaccine Pass system. The Amendment Regulation will be tabled at the Legislative Council tomorrow (October 26) for negative vetting, and the Amendment Regulation will be effective on the same day.

     Specifically, the Amendment Regulation empowers the Secretary for Health to declare specified Exemption Certificates as invalidated when there are reasonable grounds for suspecting that a registered medical practitioner had issued the Exemption Certificates without conducting clinical assessment. Moreover, the Secretary for Health may also, on the ground of public interest, declare all the specified Exemption Certificates issued by a registered medical practitioner as invalidated. Before the Secretary for Health declares the specified Exemption Certificates issued by a certain registered medical practitioner as invalidated, he must have regard to all relevant factors, including (but not limited to) the possible adverse consequences of the integrity and robustness of the Vaccine Pass system; whether the registered medical practitioner had issued any Exemption Certificate without conducting clinical assessment, as well as the number, pattern and mode of issuance of Exemption Certificates by the said medical practitioner within a particular span of time; and the advice of the Director of Health.

     In addition, the Amendment Regulation also extends the expiry date of the Prevention and Control of Disease (Vaccine Pass) Regulation (Cap. 599L) by six months from midnight on December 31, 2022 to midnight on June 30, 2023.

     A Government spokesman stressed that the Vaccine Pass is an important tool to fight against the epidemic and safeguard public health. In order to uphold the integrity and robustness of the Vaccine Pass system, and taking into account the court’s judgement on the judicial review case, the Government has the responsibility to plug the relevant loophole, in order to provide a clear legal basis in preventing those who may not meet the original intent of the exemption from continuing to use the relevant Exemption Certificate. The objective of the relevant measure is to protect individuals who have not yet completed the COVID-19 vaccination course and to reduce the risks borne when they enter high-risk premises, and at the same time avoid placing unnecessary burden on the public healthcare system. The Government calls upon members of the public to fight the epidemic together and support the Government’s anti-epidemic measures. The healthcare sector should also vigilantly uphold professionalism for the continued trust by the public.