Judge queries health chief's power on vax certs

Eunice Lam

A High Court judge yesterday said Secretary for Health Lo Chung-mau has no power to invalidate a Covid-19 vaccination exemption certificate after granting an interim injunction to put on hold the government's invalidation of some 20,000 certificates issued by seven doctors arrested last month.

The certificates were supposed to become invalid today but Justice Russell Coleman issued an interim relief order until a judicial review hearing next Thursday.

In a written judgment released last night, Coleman said: "There is no power for the [health] secretary to overturn or invalidate a medical exemption certificate or a selection of such medical exemption certificates.

"The question is not about the desirability of the secretary's decision, but the legality of it.

"The question which arises in these proceedings is whether the impugned decision of the secretary of health was taken the right way, namely lawfully within his powers."

Coleman also said - having considered that more than 90 percent of the population had been vaccinated twice and that a very large number of the population who had likely gained some immunity protection from being previously infected - the 20,000 "questionable" certificate holders brought a low risk to the city's public health.

The legal challenge was raised by retired civil servant Kwok Cheuk-kin - the "king of judicial reviews" - who said the Health Bureau does not have the power to invalidate the certificates and asked the court to rule that Secretary for Health Lo Chung-mau exceeded his authority.

In a case management hearing in the High Court yesterday, Lo's government lawyer, William Liu Kwun-wah, said those affected by the move could consult another doctor to obtain a new exemption certificate and could even see a government doctor free.

"For those who genuinely consulted the seven doctors, they should not have much difficulty getting a new medical exemption certificate if their situation warrants that," Liu said.

Coleman also questioned the legal basis for Lo to revoke exemption certificates that have already been issued. He also asked whether it was legitimate for the government to announce that the certificates would be expiring today, in a statement issued on September 27.

Liu said the authorities had not made an official decision until Monday, when the government issued directions not to accept the certificates from today in accordance with the Prevention and Control of Disease (Vaccine Pass) Regulation. Coleman said the upcoming hearing will focus on the authority's legality rather than its desirability.

"The central question is whether the regulations that you rely on in fact, as a matter of law, create a power for what has been done," Coleman said.

The judge said he decided to grant the interim injunction as the judicial review hearing would take place next Thursday.

Government lawyers will be attending the hearing through video conferencing.

Speaking outside court, Kwok welcomed the interim injunction. "We should not say those [medical exemption] certificates are invalid before the judgment is out. What if the seven doctors are not guilty?"

A government spokesman said yesterday that the government will postpone the invalidation of the 20,000 certificates until the court makes further directions on the interim injunction.

But he reaffirmed that the investigation over the seven arrested doctors continues and advised citizens involved to consult doctors as soon as possible.

Meanwhile, patients' rights advocate Tim Pang Hung-cheong said some patients still have concerns about getting Covid jabs.

Speaking on a radio program yesterday, Pang suggested health authorities issue a temporary vaccine pass to patients who have not fulfilled the vaccine pass requirements. He added that for patients who have received inoculation after their certificates expired, it would still take months for them to take all three doses of the vaccine.

"The government should have considered those people would have trouble from entering those premises by the time they announced to invalidate those certificates," Pang said.

He also called on the government to provide more consultations for patients to ease their concerns when receiving a vaccination.

Speaking in a radio interview yesterday, Doreen Kong Yuk-foon, election committee lawmaker, said the government may have had a procedural error in revoking the 20,000 certificates before examining them one by one.

"Did the authorities check all the 20,000 certificates before invalidating them for one reason?" she said.

Kong said on Facebook earlier that Lo had no legal power to invalidate the certificates based on "reasonable doubt."