1.  Hong Kong is a Special Administrative Region of the People’s Republic of China (PRC), established under Article 31 of the PRC Constitution.¹ Hong Kong enjoys a high degree of autonomy in legislative, executive, and judicial matters under the ‘One Country, Two Systems’ framework by which it was integrated into the PRC—a unitary state—upon the transfer of sovereignty over Hong Kong from the United Kingdom to the PRC on 1 July 1997. The vast majority of national laws of the PRC do not apply in the Hong Kong Special Administrative Region (HKSAR).²

2.  Hong Kong is subject to the PRC Constitution, but is more directly regulated in constitutional terms by the Basic Law of the Hong Kong Special Administrative Region. The majority of the provisions in the PRC Constitution do not have direct effect in the HKSAR.³ The Basic Law was enacted by the National People’s Congress (NPC) of the PRC on 4 April 1990 and became the primary constitutional document governing Hong Kong on 1 July 1997. The Basic Law allocates legislative power to the Legislative Council of the HKSAR,⁴ executive power to the Government of the HKSAR,⁵ and judicial power to the courts of the HKSAR.⁶ Hong Kong is therefore governed by the separation of powers—as recognized by the Hong Kong Court of Final Appeal—⁷with the legislative,⁸ executive, and judicial acts of public bodies within Hong Kong being subject to the Basic Law as a test of their constitutional validity.⁹

3.  The Chief Executive of the HKSAR, who is the head of the HKSAR,¹⁰ is appointed by the Central People’s Government, following the selection of a candidate through an electoral process in which the franchise is limited to 1,200 electors.¹¹ Though Hong Kong has a documented population of over 7.5 million people,¹² the 1,200 members of the Chief Executive Election Committee are appointed using a combination of appointment and election methods, primarily from functional constituencies, the Legislative Council, Hong Kong deputies to the NPC, and Hong Kong members of the National Committee of the Chinese People’s Political Consultative Conference.¹³ The National People’s Congress Standing Committee (NPCSC)—the permanent (legislative) body of the NPC—has decided that the Chief Executive ‘has to be a person who loves the country and loves Hong Kong’.¹⁴ The term of office of a Chief Executive is five years, and a person may serve as Chief Executive for not more than two consecutive terms.¹⁵ The Chief Executive is accountable to the Central People’s Government and to the HKSAR.¹⁶ Hong Kong is often described as an executive-led system due to the relative dominance of the executive in the internal constitutional order of the HKSAR, with the Chief Executive enjoying relatively extensive powers therein. This includes signing bills passed by the Legislative Council and promulgating laws,¹⁷ with a restricted veto power,¹⁸ and a limited power to dissolve the Legislative Council.¹⁹ The High Court saw no conceptual or practical incompatibility between describing Hong Kong as a system governed by the separation of powers and as an executive-led system,²⁰ an inconsistency which is sometimes claimed of Hong Kong.

4.  Law-making is divided between Ordinances enacted by the Legislative Council; the common law made and administered by judges of the superior courts; and delegated legislation—known in Hong Kong as ‘subsidiary legislation’—typically made by executive officials and subject to scrutiny before the Legislative Council. Customary law is also part of the Hong Kong legal order, though it must be crystallized in the form of legislation or common law to enjoy practical legal effect.

5.  The Legislative Council comprises 70 members, 35 of whom are elected by geographical constituency and 35 of whom are elected by functional constituency—namely constituencies representing specified business, sectoral, and other interests, such as the Engineering functional constituency, the Transport functional constituency, and the Wholesale and Retail functional constituency.²¹ The written consent of the Chief Executive is required before bills relating to government policies may be introduced,²² a further example of Hong Kong’s executive-led system.

6.  The power of interpretation of the Basic Law is vested in the NPCSC and the Hong Kong courts. The NPCSC enjoys a ‘general and unqualified’ power to interpret the Basic Law.²³ The Hong Kong courts may, in adjudicating cases, interpret on their own provisions of the Basic Law that are within the limits of the autonomy of the HKSAR. If the Hong Kong courts need to interpret provisions of the Basic Law that are the responsibility of the Central People’s Government, or which concern the relationship between the Central Authorities and the HKSAR, the Court of Final Appeal of the HKSAR must seek an interpretation from the NPCSC.²⁴ It is provided that ‘judgments previously rendered shall not be affected’ by an NPCSC interpretation.²⁵ There have been five NPCSC interpretations of the Basic Law to date.²⁶ The meaning of the Basic Law may in practice also be affected by other instruments, such as Decisions of the NPCSC.²⁷ The power of amendment of the Basic Law is vested in the National People’s Congress.²⁸

7.  Emergency powers are vested in the Chief Executive in Council—ie the Chief Executive acting after consultation with the Executive Council—²⁹in situations which the Chief Executive in Council considers to be ‘an occasion of an emergency or public danger.’ The Chief Executive in Council may make regulations extending to, but not limited to, provision for censorship, arrest, detention, punishments for any offence, and forfeiture of property.³⁰ The governing Ordinance contains clauses conferring far reaching Henry VIII powers, ie executive law-making powers which can amend primary legislation).³¹ A broader emergency power is vested in the Central People’s Government, which may issue an order applying relevant national laws in the HKSAR if the NPCSC decides to declare a state of war or decides that the HKSAR is in a state of emergency ‘by reason of turmoil within the [HKSAR] which endangers national unity or security and is beyond the control of the government of the [HKSAR]’.³² However, the primary mechanism for regulating the HKSAR’s public health response to the Covid-19 pandemic has been under the Prevention and Control of Disease Ordinance.³³

8.  The pandemic has not changed the basic constitutional structure of the HKSAR.

9.  There has been no formal declaration of a state of emergency in Hong Kong in relation to the pandemic. It is provided in Article 18 of the Basic Law that the Central People’s Government may issue an order applying ‘the relevant national laws’ in Hong Kong in the event that the NPCSC decides to declare a state of war or, by reason of ‘turmoil’ within the HKSAR which endangers national unity or security and is beyond the control of the HKSAR Government, the NPCSC decides that the HKSAR is in a state of emergency.³⁴ This does not appear to envisage a pandemic scenario but, if such powers were exercised in the context of a pandemic or other outbreak of infectious disease, it is unlikely that there would be any constitutional restraint on the national laws applied in Hong Kong by the Central People’s Government. Though it may technically be possible for the HKSAR courts to purport to strike down an act of a PRC organ outside Hong Kong,³⁵ it is unlikely that this would be done in practice or that it would be tolerated by the PRC central authorities. Meanwhile, the PRC does not have a constitutional court according to the western understanding. The NPC has the power and function of supervising the enforcement of the PRC Constitution,³⁶ and the NPCSC has the power and function of interpreting the PRC Constitution and supervising its enforcement,³⁷ thus vesting the power of constitutional interpretation and enforcement in political, legislative organs.

10.  Hong Kong has a dualist legal order in relation to international legal obligations. The Hong Kong Bill of Rights Ordinance (cap 383) incorporates the provisions of the International Covenant on Civil and Political Rights (ICCPR) into Hong Kong law. The Bill of Rights binds the HKSAR Government and all public authorities and any person acting on behalf of the HKSAR Government or a public authority.³⁸ A court or tribunal may grant such remedy or relief, or make such order, in respect of a breach, violation, or threatened violation of the Bill of Rights as it has power to grant or make in relevant proceedings and as it considers appropriate and just in the circumstances.³⁹ It is provided that in a time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, measures may be taken derogating from the Bill of Rights to the extent strictly required by the exigencies of the situation. Such measures must be taken in accordance with law.⁴⁰ No such measure shall be taken that is inconsistent with any obligation under international law that applies to Hong Kong—other than an obligation under the International Covenant on Civil and Political Rights—, involves discrimination solely on the ground of race, colour, sex, language, religion, or social origin, or derogates from other specified provisions.⁴¹

11.  There has been no decision to derogate from the ICCPR.

12.  The Prevention and Control of Disease Ordinance was enacted in 2008 in order to bring Hong Kong’s legislative framework for measures to control and prevent disease into line with the International Health Regulations (2005) of the World Health Organization (WHO).⁴²

13.  The legislative framework used for dealing with Hong Kong’s public health response to the Covid-19 pandemic has primarily been under the Prevention and Control of Disease Ordinance (cap 599), and to a lesser extent the Emergency Regulations Ordinance (cap 241). These were enacted prior to the Covid-19 outbreak.

14.  The Prevention and Control of Disease Ordinance was enacted in 2008 in order to bring Hong Kong’s legislative framework for measures to control and prevent disease into line with the International Health Regulations (2005) of the WHO, repealing and replacing the Quarantine and Prevention of Disease Ordinance (cap 141) which had been in place since 1936.⁴³ On 8 January 2020, ‘[s]evere respiratory disease associated with a novel infectious agent (嚴重新型傳染性病原體 呼吸系統病‎)’ was added to Schedule 1 of the Prevention and Control of Disease Ordinance, ⁴⁴ which also includes, for example, acute poliomyelitis, food poisoning, Japanese encephalitis, meningococcal infection (invasive), and Zika Virus infection.⁴⁵ This brought Covid-19 (as it was later named) under the regulatory framework of the Ordinance.

15.  Section 7 of the Prevention and Control of Disease Ordinance empowers the Secretary for Food and Health to make regulations 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. Section 8 empowers the Chief Executive in Council to, ‘on any occasion which the Chief Executive in Council considers to be an occasion of a public health emergency’, make regulations for the purposes of preventing, combating, or alleviating the effects of the public health emergency and protecting public health. This is not a formal declaration of a public health emergency as such, but rather a state of affairs—in the opinion of the Chief Executive in Council—which is a condition precedent to making such regulations. This power to make regulations does not specifically mention WHO recommendations but could feasibly be in response to and/or implementation of WHO recommendations.⁴⁶ The Director of Health may in addition prescribe any measure to be applied in light of any temporary recommendation of the WHO pursuant to Articles 15, 17 and 18 of the International Health Regulations.⁴⁷

16.  There has been little systematic or sustained criticism of the HKSAR Government’s public health handling of the Covid-19 pandemic, nor of the nature or extent of measures used to implement its handling, from a legal or human rights perspective. This may be at least partly due to other major events currently affecting Hong Kong, in particular the enactment by the NPC of the ‘national security legislation’ for Hong Kong,⁴⁸ in the wake of around one year of persistent civil unrest. In that regard, one notable exception, relating to the suspension of elections, is discussed in Part III.D below.

17.  Various pieces of subsidiary legislation were made during the Covid-19 pandemic under section 8 of the Prevention and Control of Disease Ordinance.⁴⁹ After ‘[s]evere respiratory disease associated with a novel infectious agent (嚴重新型傳染性病原體 呼吸系統病‎)’ (referring to Covid-19)⁵⁰ was listed as a scheduled infectious disease, 42 regulations have been made as of 15 October 2020 under this section which comprise the primary public health law response to Covid-19. The nomenclature in the Hong Kong legislative framework was updated to ‘coronavirus disease 2019 (Covid-19)’ to align with the WHO’s adoption of the name ‘coronavirus disease 2019 (Covid-19)’ to refer to the disease, and ‘severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2)’ to refer to the virus causing the disease. The majority of these regulations have been amendments to regulations on such matters as the compulsory quarantine of persons arriving in Hong Kong,⁵¹ the requirement to give information to a health officer,⁵² restrictions on business activity,⁵³ prohibition on group gatherings,⁵⁴ regulation of cross-boundary travel,⁵⁵ and the wearing of face masks.⁵⁶

18.  Various amendments were subsequently made to the aforementioned pieces of subsidiary legislation. Each piece of subsidiary legislation contains a sunset clause, which have been variously updated, and at the time of writing were dated 31 December 2020 (each was subsequently amended to 31 March 2021). There is no direct limit on the number of times (or durations by which) powers may be extended beyond the period specified in the initial sunset clause. As the Prevention and Control of Disease Ordinance does not provide that any subsidiary legislation made thereunder would be effective subject to the approval of the Legislative Council (known as the ‘positive vetting procedure’)⁵⁷, the subsidiary legislation thereunder was laid on the table of the Legislative Council for scrutiny and amendment (known as the ‘negative vetting procedure’)⁵⁸—successful motions for amendment are not common—thus providing limited opportunity for control by the legislature.⁵⁹ A Legislative Council resolution on the Prevention and Control of Disease (Prohibition on Group Gathering) Regulation (cap 599G) was not dealt with for procedural reasons.⁶⁰

19.  It should be noted that some of the regulatory response exists outside the primary and secondary legislative framework. For example, it is provided in section 12(3) of the Compulsory Quarantine of Persons Arriving at Hong Kong from Foreign Places Regulation (cap 599E) that any notice by the Secretary for Food and Health specifying any place outside China as a ‘Category 1’ or ‘Category 2’ specified foreign place, relevant to the application of quarantine restrictions, is ‘not subsidiary legislation’.⁶¹ Similarly, it is provided in section 4(3) of the Prevention and Control of Disease (Prohibition on Group Gathering) Regulation (cap 599G) that any notice by the Secretary for Food and Health specifying a period during which no group gathering may take place is ‘not subsidiary legislation’.⁶² While such notices are subject to tests of legality and constitutionality just as are instances of subsidiary legislation,⁶³ such notices would escape, unlike regulations, mandatory scrutiny by the Legislative Council.

20.  The Emergency (Date of General Election) (Seventh Term of the Legislative Council) Regulation (cap 241L)⁶⁴ was subsidiary legislation made under the Emergency Regulations Ordinance (cap 241).⁶⁵ As the Emergency Regulations Ordinance also does not apply the positive vetting procedure, subsidiary legislation made thereunder is likewise subject to the negative vetting procedure.

21.  Government guidance has been gathered in a centralized website,⁶⁶ with a secondary interactive map of Hong Kong showing case, hospitalization, and death data.⁶⁷ Government information relevant to Covid-19 has also been distributed through a Telegram channel,⁶⁸ and via televised press briefings typically given by senior representatives from the Centre for Health Protection and the Health Authority. Members of the Expert Advisory Group have made regular media appearances communicating their public health views and recommendations during the Covid-19 pandemic. These have been collated on the Government’s centralized website, but all collated media appearances are in Cantonese only.⁶⁹ Non-binding guidance has been issued including the avoidance of crowded situations, hygiene advice, and sanitary recommendations.⁷⁰

22.  The Legislative Council is a relatively weak legislature for a variety of reasons, principally relating to systemically entrenched executive dominance. For example, the written consent of the Chief Executive is required before bills relating to government policies may be introduced,⁷¹ and whereas the passage of bills introduced by the government shall require a simple majority vote of the members of the Legislative Council present, the passage of motions, bills, or amendments to government bills introduced by individual members of the Legislative Council shall require a simple majority vote of each of the geographical constituency members and functional constituency members present—which is much more difficult to obtain.⁷² Not only is it significantly more difficult for individual members to introduce bills than for the government to introduce bills, it is also more difficult for bills introduced by individual members to proceed successfully through the legislative process. The Chief Executive also has a limited veto power over legislation, as the Chief Executive may, if they consider that a bill passed by the Legislative Council is not compatible with the overall interests of the HKSAR, return the bill to the Legislative Council within a period of three months for reconsideration.⁷³ If the Legislative Council again passes the original bill by not less than a two-thirds majority of all the members, the Chief Executive must sign and promulgate it within a period of one month or dissolve the Legislative Council—a power that may be exercised once only in each term of their office.⁷⁴

23.  There is a Subcommittee of the Legislative Council on Subsidiary Legislation Relating to the Prevention and Control of Disease. There was also a Subcommittee of the Legislative Council on the Emergency (Date of General Election) (Seventh Term of the Legislative Council) Regulation. The Legislative Council has oversight of subsidiary legislation through the positive vetting and negative vetting procedures. The negative vetting procedure has been used for the subsidiary legislation relating to the regulatory response to the Covid-19 pandemic, reflective of the fact that the majority of subsidiary legislation proceeds through the negative vetting, rather than the positive vetting, procedure. Scrutiny under the negative vetting procedure permits amendment ‘in any manner whatsoever consistent with the power to make … subsidiary legislation’.⁷⁵

24.  The Legislative Council may scrutinize executive action in line with its constitutional power and functions ‘to raise questions on the work of the government’⁷⁶ and ‘to debate any issue concerning public interests’.⁷⁷ The Legislative Council also has the constitutional power and function ‘to receive and debate the policy addresses of the Chief Executive’.⁷⁸ This provides for a limited form of executive accountability before the legislature. However, on 12 October 2020, the Chief Executive postponed her annual policy address in order to attend a meeting in Beijing on economic matters relevant to Hong Kong, at the request of the Central People’s Government.⁷⁹ The Chief Executive’s policy address was subsequently given on 25 November 2020, with the Chief Executive attending a question and answer session on her policy address at the Legislative Council on 26 November 2020. The motion debate had been postponed to a later date due to the increasing severity of the Covid-19 pandemic.⁸⁰ While members have been able to raise questions on the work of the HKSAR Government in response to the Covid-19 pandemic, replies to such questions are typically given by a member of the HKSAR Government other than the Chief Executive. The opportunity for the Legislative Council to secure direct accountability from the Chief Executive in relation to Hong Kong’s response to the Covid-19 pandemic has not been significant.

25.  There are 18 Legislative Council panels tasked with monitoring the performance of the government in relation to specific policy areas, including the Panel on Constitutional Affairs, the Panel on Health Services, and the Panel on Welfare Services. These panels approximately, but do not exactly, map on to the division of briefs headed by the Official Members of the Executive Council.⁸¹ Several of the panels have their own subcommittees. The specific public health response to Covid-19 falls within the remit of the Panel on Health Services,⁸² though other matters relevant to the Covid-19 pandemic may arise in the work of other panels. The Panel on Health Services makes an annual report to the Legislative Council,⁸³ with the prevention and control of Covid-19 comprising a major part of the Panel’s work in its most recent annual report to the Legislative Council, dated 8 July 2020.⁸⁴ This included, for example, passing motions urging the HKSAR Government to deny entry to Hong Kong of all non-Hong Kong residents, conduct viral tests for all inbound travellers, and investigate the use of hotels as quarantine facilities.

26.  Various changes were made to business in the Legislative Council. Meetings were sometimes adjourned after consideration of time critical items,⁸⁵ cancelled except for dealing with urgent time critical items,⁸⁶ cancelled with business carried over to a future meeting,⁸⁷ conducted with abbreviated transaction of business,⁸⁸ and conducted with restricted transaction of business.⁸⁹ The President of the Legislative Council has the power to suspend a meeting of or adjourn the Legislative Council at any time.⁹⁰ The Basic Law also provides that the President of the Legislative Council has the power to decide on the Legislative Council agenda, giving priority to government bills for inclusion on the agenda,⁹¹ and to decide on the time of meetings.⁹² There was some disruption to the legislative agenda, though the Legislative Council continued to pass legislation during the pandemic.

27.  A meeting was held on 19 February 2020 mainly to deal with urgent questions relating to the Covid-19 outbreak in Hong Kong.⁹³ Significant periods of the pandemic fell into the recess periods, with the Lunar New Year recess running from 19 January 2020 to 8 February 2020, the Easter recess running from 10 April 2020 to 18 April 2020, and the Summer recess running from 18 July 2020 to 14 October 2020.⁹⁴ No Legislative Council meetings were held between 18 July 2020 and 13 October 2020 inclusive, with the exception of a Special House Committee meeting, two special meetings of the Legislative Council Commission, a special meeting of the Panel on Welfare Services, a meeting of the House Committee, and a small number of meetings of the Finance Committee.⁹⁵ This was notwithstanding the power of the President of the Legislative Council to call special sessions during periods of recess.⁹⁶ Voluntary Covid-19 tests were offered to Legislative Council members on 1 September 2020.⁹⁷

28.  The Legislative Council Secretariat implemented a range of preventive measures in view of the Covid-19 outbreak in Hong Kong. These included all persons entering the Legislative Council Complex being required to walk on a disinfectant floor mat at the entrance before entry, being subject to body temperature screening, and that those persons attending meetings be ‘strongly advised’ to wear a surgical mask and bring their own cups and bottles. Furthermore, there was a higher frequency of cleaning and disinfection of facilities, and all persons subject to compulsory quarantine were denied access to the Legislative Council Complex. A maximum of five members of the public were admitted as observers to meetings, and various facilities in the Legislative Council Complex were closed temporarily.⁹⁸

29.  Court cases began to be adjourned on 29 January 2020, the start of what came to be known as the General Adjourned Period (‘GAP’). By 25 March 2020, almost 18 per cent of the annual caseload of courts at all levels had been affected since the beginning of the GAP,⁹⁹ though the Judiciary did not keep precise statistics on cases and proceedings affected during the GAP.¹⁰⁰ The GAP was initially scheduled to end on 22 March 2020, but was extended until 5 April 2020 and thereafter until 3 May 2020.¹⁰¹ Arrangements were made for urgent and essential court hearings and business, including the hearing of fresh remand cases, urgent bail reviews, and urgent civil matters to be handled promptly during the GAP.¹⁰² Parallel preparation was made for the backlog of cases which had accumulated during the GAP to be cleared and for an orderly resumption of judicial proceedings after the expiry of the GAP. This included proactive case management by all judges and judicial officers, and all judges and judicial officers considering or inviting the parties to consider disposing of their cases by paper as far as possible, without an oral hearing, in particular for civil cases, such as in relation to interlocutory matters.¹⁰³ In addition, preparations were made for an orderly reopening of judicial offices and registries in four phases: (i) reopening of the Registries of the Court of Final Appeal, the High Court, and the Competition Tribunal; (ii) reopening of the Registries of the Family Court and the District Court; (iii) reopening of the Registries of the Lands Tribunal, the Magistrates’ Courts, the Obscene Articles Tribunal, and the Coroner’s Court, and (iv) reopening of the Registries of the Labour Tribunal and the Small Claims Tribunal.¹⁰⁴ This was in addition to special arrangements made to regulate crowd management and an upsurge in caseload following the expiry of the GAP, such as requirements to undergo a body temperature check and wear a surgical mask while on judicial premises, social distancing measures, and procedures for persons subject to quarantine requirements or medical surveillance to apply to the court for permission for absence from the court.¹⁰⁵

30.  The Judiciary had already been developing by phases an integrated court case management system (‘iCMS’) across all levels of court to enable electronic handling of court documents and payments. The Court Proceedings (Electronic Technology) Bill was introduced to the Legislative Council on 8 January 2020 to provide a legislative basis for this, though whereas the Bill was signed and promulgated as law on 23 July 2020, as the Court Proceedings (Electronic Technology) Ordinance (cap 638),¹⁰⁶ it is not yet in operation and shall not be in operation until a date is appointed for the same by the Chief Justice by notice published in the Gazette.¹⁰⁷

31.  By March 2020, it was still not the practice to hold hearings by way of video conferencing, as there was only a legislative basis for using video conferencing to take evidence from witnesses overseas in civil and criminal proceedings. It was considered by the Judiciary that the use of video conferencing for holding the entire court hearing may be unlawful.¹⁰⁸ Nevertheless, limited expansion of the use of information technology was implemented in the administration of judicial business.¹⁰⁹ Starting from 3 April 2020, video conferencing facilities were used for remote hearings for suitable civil cases in the High Court, and from 15 June 2020, there was an expanded practice for remote hearings by the use of video conferencing facilities and telephone in civil cases in the Court of Appeal, the Court of First Instance, the Competition Tribunal, and the District Court (including the Family Court).¹¹⁰ Indeed, from 4 May 2020, all civil and criminal proceedings, including trials, had been scheduled to resume unless they were adjourned pursuant to specific court directions.¹¹¹ While the disposal of cases on paper, without an oral hearing, was encouraged, it was recognized that in some cases oral submissions were still necessary.¹¹² The Judiciary noted that:

Remote hearings would in general be conducted openly where the public and media could attend physically, though in the ‘exceptional circumstances of the threat to public health caused by the current pandemic’, remote hearings should proceed even where public or media access was impossible. The decision on whether, how, and to what extent public or media access should be permitted rested with the court.¹¹⁴

32.  The Chief Judge of the High Court issued a guidance note for remote hearings for civil business in the High Court.¹¹⁵ Included in the guidance was a statement that Practice Direction 29 on the use of the ‘Technology Court’¹¹⁶ would not apply to remote hearings conducted by video conferencing facilities or other video or electronic technology,¹¹⁷ though Practice Direction 29 would continue to apply where the only remote element of the hearing involved a witness giving evidence from outside Hong Kong.¹¹⁸ Judges would decide which of their cases might be suitable for disposal by way of a remote hearing using video conferencing facilities, with the initiative in that regard coming from the court, and judges not entertaining applications to use video conferencing facilities.¹¹⁹ Parties could nevertheless object to the holding of a remote hearing, though the final decision would rest with the court.¹²⁰

33.  It was considered that, in the Court of First Instance, all interlocutory applications, appeals, and final hearings ordinarily dealt with on written evidence (without oral evidence), such as applications for judicial review, would be considered for remote hearing. Applicants for leave to apply for judicial review would still have to observe the relevant rules on time limits.¹²¹ It was considered that, in the Court of Appeal, all civil appeals and interlocutory applications, including applications for leave to appeal, would be considered for remote hearing. The general position was that applications suitable for remote hearing by video conferencing facilities would be those in which the court considered that focused oral submissions could be concluded within two hours.¹²² Trials were not considered suitable for remote hearing in the first phase,¹²³ though in the second phase it was considered that some trials or parts of trials may be considered suitable for remote hearing.¹²⁴

34.  All court rules and practice on court etiquette continued to apply during remote hearings—with the exception of standing when making submissions and at the beginning and conclusion of hearings—including the wearing of robes by the judge, barristers, and solicitor advocates appearing in the case.¹²⁵ All short directions hearings in the Court of First Instance, the District Court, and the Family Court were suitable for consideration to be conducted remotely by way of telephone.¹²⁶ In Cyberworks Audio Video Technology Ltd (in Compulsory Liquidation) v Mei Ah (HK) Co Ltd, for example, the Court of First Instance directed the use of a telephone hearing having observed that neither the High Court Ordinance (cap 4) nor the Rules of the High Court (cap 4A) required court hearings to be held with physical attendance of parties or their representatives.¹²⁷ The first case to be conducted remotely via video link was an appeal case in the Court of Appeal on 6 April 2020, with the first Court of First Instance hearing being conducted remotely via video link on 7 April 2020.¹²⁸ Remote hearings were not used in criminal proceedings.¹²⁹

35.  Administrative tribunals are not part of the judicial branch in Hong Kong, nor are they administered by the Judiciary. Administrative tribunals are part of the executive branch—despite their quasi-judicial function—and are operated by individual government departments.¹³⁰ Administrative tribunals such as the Administrative Appeals Board¹³¹ and the Municipal Services Appeals Board¹³² resumed normal operation with effect from 15 September 2020. Normal operation was again suspended and scheduled to resume on 20 January 2021. There is an underlying lack of transparency pertaining to administrative tribunals in Hong Kong when contrasted with the transparency of the courts and judicial system, in addition to deep structural flaws.¹³³

36.  The HKSAR Government announced on 31 July 2020 that the Chief Executive in Council had decided to postpone the Legislative Council General Election from 6 September 2020 to 5 September 2021.¹³⁴ The Chief Executive in Council exercised her powers under the Emergency Regulations Ordinance to make the Emergency (Date of General Election) (Seventh Term of the Legislative Council) Regulation, effective 1 August 2020.¹³⁵ The Government cited the finding of the International Institute for Democracy and Electoral Assistance that, between 21 February 2020 and 26 July 2020, at least 68 countries and territories had decided to postpone elections due to Covid-19.¹³⁶

37.  The Legislative Council Ordinance provided that, in a situation where ‘the election is likely to be … seriously affected by … any danger to public health or safety’, then the Chief Executive may by order direct the postponement or adjournment of polling to a date not later than 14 days after the date on which the election would have taken place but for the direction.¹³⁷ However, the Henry VIII clauses in the Emergency Regulations Ordinance enable the Emergency (Date of General Election) (Seventh Term of the Legislative Council) Regulation to operate notwithstanding said provision of the Legislative Council Ordinance.¹³⁸ The Department of Justice of the HKSAR Government explained that it was ‘unrealistic to invoke section 44 of the Legislative Council Ordinance to postpone the election for 14 days repeatedly’.¹³⁹ There was a question as to the constitutionality of the Emergency (Date of General Election) (Seventh Term of the Legislative Council) Regulation, however, which must be compliant with the Basic Law. Article 69 of the Basic Law provides that the term of office of the Legislative Council shall be four years, whereas the Regulation purported to extend the term of the sixth Legislative Council to five years. However, the NPCSC issued a decision on 11 August 2020 providing for the term of the sixth Legislative Council to be extended for no less than one year until the commencement of the seventh-term Legislative Council.¹⁴⁰ The constitutional status of the NPCSC decision remains unclear in Hong Kong considering that the NPCSC did not use the interpretation mechanism provided in Article 158 of the Basic Law,¹⁴¹ and neither did the NPC use the amendment mechanism provided in Article 159 of the Basic Law.

38.  It was announced on 25 January 2020 that the Chief Executive would chair a Steering Committee cum Command Centre with a view to formulating relevant strategies and measures according to the development of Covid-19. This would include four workgroups: the Workgroup on Disease Prevention and Control led by the Secretary for Food and Health; the Workgroup on Responses and Actions led by the Chief Secretary for Administration; the Workgroup on Public Participation led by the Secretary for Home Affairs; and the Workgroup on Communications led by the Secretary for Constitutional and Mainland Affairs.¹⁴²

39.  It was also announced on 25 January 2020 that a four-person Expert Advisory Group, appointed by the Chief Executive, would be set up under the Steering Committee cum Command Centre to provide scientific advice to the Chief Executive and the HKSAR Government.¹⁴³ This comprised medical and microbiology experts.¹⁴⁴ The advice of the Expert Advisory Group has not been published and does not appear to be binding on the HKSAR Government. Members of the Expert Advisory Group have featured regularly in the media where they have frequently expressed their views and recommendations in relation to the regulatory response to the Covid-19 pandemic.¹⁴⁵ The independence of the Group’s members from the HKSAR Government is difficult to verify.

40.  Article 27 of the Basic Law provides that ‘Hong Kong residents shall have freedom of speech, of the press and of publication; freedom of association, of assembly, of procession and of demonstration; and the right and freedom to form and join trade unions; and to strike’. Further protection is found in Article 16 of the Hong Kong Bill of Rights which provides for ‘freedom of opinion and expression’, though it is provided that freedom of expression ‘carries with it special duties and responsibilities’, and that it may be restricted as provided by law and when necessary for, inter alia, the protection of public health.

41.  Nevertheless, there have been increasing concerns about restrictions on freedom of the press in Hong Kong in recent years. Hong Kong’s rating in Reporters Without Borders’ World Press Freedom Index has fallen from a rating of joint 58th of 180 territories in 2013, to 80th of 180 territories in 2020.¹⁴⁶ The Liaison Office of the Central People’s Government of the HKSAR controls two newspapers in Hong Kong, namely Ta Kung Pao and Wen Wei Po,¹⁴⁷ while the South China Morning Post—generally regarded as the most credible mainstream newspaper in Hong Kong—was acquired by the Alibaba Group—a Mainland Chinese technology corporation—in 2016. Some independent online media, which are often critical of the HKSAR Government, operate in Hong Kong.¹⁴⁸

42.  There have been numerous reports of journalists being harassed and targeted by the police in relation to the civil unrest which was sparked by the introduction of the Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill 2019, more commonly known as the ‘Hong Kong Extradition Bill’. These reports have included allegations of journalists being subjected to police tear gassing, baton attacks, and attempts by police officers to prevent protests being covered by the press.¹⁴⁹ Among several notable incidents was the shooting of a protestor by a police officer with a live bullet during the civil unrest in 2019.¹⁵⁰ The role of law enforcement during the Covid-19 pandemic should be viewed in this context. In July 2020, the Hong Kong Journalists Association accused riot police of fining 17 student reporters for violating restrictions on group gatherings while they were covering protests to mark the anniversary of a mob attack in Yuen Long.¹⁵¹ More broadly, restrictions on group gatherings have been used to suppress and prevent public protests at a time of rapid constitutional change and increasing authoritarianism in Hong Kong.¹⁵² It remains to be seen what effect the recently enacted Law of the PRC on Safeguarding National Security in the HKSAR,¹⁵³ more commonly known as the ‘Hong Kong National Security Law’, will have on press freedom during the Covid-19 pandemic and beyond.

43.  Hong Kong has a weak freedom of information framework. The primary document regulating freedom of information is the Code on Access to Information, introduced in March 1995, which has no formal, legally-binding character inasmuch as it is not enshrined in legislation.¹⁵⁴ It is therefore difficult to assess whether and to what extent the Covid-19 pandemic has impacted the freedom of information framework in Hong Kong. The only statistics available at the time of writing in relation to access to information requests during the Covid-19 pandemic are for the period January to March 2020. During this period, 2,377 requests were concluded, of which 1,924 were met in full, 131 were met in part, 67 were refused, and 255 were withdrawn or were requests for information that was not in the public agency’s possession or were requests for which the existence of information could neither be confirmed nor denied by the public agency.¹⁵⁵ The figures for the equivalent period in the preceding year, January to March 2019, show that 1,947 requests were concluded, of which 1,636 were met in full, 66 were met in part, 49 were refused, and 196 were withdrawn or were requests for information that was not in the public agency’s possession or were requests for which the existence of information could neither be confirmed nor denied.¹⁵⁶ The Ombudsman of Hong Kong has limited jurisdiction over compliance with the Code on Access to Information in relation to the Independent Commission Against Corruption, Hong Kong Auxiliary Police Force, Hong Kong Police Force, and Secretariat of the Public Service Commission.¹⁵⁷

44.  The Ombudsman of Hong Kong is the general ombudsman for Hong Kong appointed under the Ombudsman Ordinance (cap. 397).¹⁵⁸ The Ombudsman has jurisdiction over maladministration committed by a diverse range of public bodies including the Airport Authority, Department of Justice, Inland Revenue Department, Radio Television Hong Kong, and Water Supplies Department.¹⁵⁹ The Ombudsman has to date not conducted any general accountability investigation in relation to the handling of the Covid-19 pandemic, though at the time of writing the Ombudsman was conducting a direct investigation into the Government’s mechanism for monitoring vaccines provided by private healthcare facilities,¹⁶⁰ which may be relevant to the medical and public health response to Covid-19. The Ombudsman, their staff, and advisers to the Ombudsman are subject to a statutory obligation to maintain secrecy in respect of all matters that arise from any investigation or complaint made to the Ombudsman, and come to their actual knowledge in the exercise of their functions.¹⁶¹

45.  As of 23 February 2021, the HKSAR recorded 10,896 confirmed Covid-19 cases, including 197 deaths, out of a population of 7.5 million, which appeared small relative to commensurate jurisdictions, such as Switzerland’s 551,355 cases (9,919 deaths) out of 8.7 million people.¹⁶² The former British Crown colony and current Chinese Special Administrative Region offers an interesting case study about the effective containment of Covid-19 without imposing general lockdowns.¹⁶³

46.  The relatively minor impact of Covid-19 on the health of the HKSAR’s population seemed counterintuitive,¹⁶⁴ given the territory’s geographical connection with Wuhan, and many other affected parts of Mainland China, through a highspeed railway network, among other transportation options. The territory’s apparent success thus far may in part be attributed to its traumatic experience in handling the severe acute respiratory syndrome (SARS) epidemic of 2003, which prompted the local community to take early hygiene precautions in January 2020, such as frequent handwashing and social distancing before official guidelines were issued,¹⁶⁵ and wearing face masks to prevent asymptomatic transmissions, the WHO’s contrary advice notwithstanding.¹⁶⁶ Many Hong Kong residents were prepared to act in concert in anticipation of public crises, due to frequent collective mobilizations in recent memory,¹⁶⁷ and the existence of a vibrant civil society.¹⁶⁸ State-society conflicts in the months before the Covid-19 outbreak reinforced a widespread scepticism—even in the medical and healthcare community¹⁶⁹—of the early optimistic assessments of Covid-19 by the Chinese authorities.¹⁷⁰

47.  The HKSAR was one of the first jurisdictions in the world to declare a public health emergency when the Chief Executive in Council in February 2020 promulgated two public health emergency regulations through an exercise of her wide ranging’¹⁷¹ powers provided by Section 8 of the Prevention and Control of Disease Ordinance (cap 599).¹⁷² Section 8(5)(a)–(c) of the Ordinance defines the novel concept of ‘public health emergency’ as ‘the occurrence of or the imminent threat of a disease, an epidemic or a pandemic’; ‘the occurrence of a novel, or highly infectious, agent or matter’; or ‘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.’ This precise definition is an improvement on the vague notion of ‘emergency or public danger’ contained in the controversial Emergency Regulations Ordinance (cap 241),¹⁷³ enacted in 1922, which would likely be the statutory basis for public health emergency regulations had the Prevention and Control of Disease Ordinance not existed,¹⁷⁴ as the Court of Appeal recently speculated.¹⁷⁵

48.  As at 23 February 2021, there was no primary or subsidiary legislation mandating a general lockdown in the HKSAR, although this all-or-nothing containment strategy was first devised by China in Wuhan, Hubei, in January 2020, and eventually deployed by jurisdictions across the world, including liberal democracies in North America and Europe, such as England in the United Kingdom—whose legal tradition the HKSAR has inherited—to combat the pandemic.¹⁷⁶ A piece of subsidiary legislation, the Prevention and Control of Disease (Compulsory Testing for Certain Persons) Regulation (cap 599J), adopted by the Chief Executive in Council on 15 November 2020, was later deployed to legitimise dozens of highly controversial ‘ambush’ lockdowns of designated residential blocks for overnight Covid-19 testing since 23 January 2021. These lockdowns were typically preceded by no warning, and featured police officers using barricade tape to seal off residential buildings and people of all ages within them, a law enforcement procedure more associated with the isolation of crime scenes. A person who breaks a compulsory testing notice under this Regulation commits a criminal offence punishable by a fine of HK$25,000 (US$3,225) and 6 months’ imprisonment.¹⁷⁷

49.  Demands from the general public and the medical community for restrictions on international travel and cross-border travel with Mainland China remained strong since the first Covid-19 confirmed case was recorded in the HKSAR on 23 January 2020.¹⁷⁸ The Chief Executive’s refusals to completely shut down the HKSAR’s land border with the Mainland were interpreted by many as politically motivated.¹⁷⁹ The HKSAR Government did adopt measures to significantly reduce traffic with the Mainland, starting with the suspension of highspeed railway services on 30 January 2020. The Compulsory Quarantine of Certain Persons Arriving at Hong Kong Regulation (cap 599C) decreed on 8 February 2020, imposed a compulsory quarantine for 14 days on any person who arrives from Mainland China, or had been there in the previous 14 days.¹⁸⁰ A person breaking a quarantine order commits a criminal offence punishable by a fine of HK$25,000 (US$3,225) and 6 months’ imprisonment.¹⁸¹

50.  From 19 March 2020, every individual, including a Hong Kong permanent resident, arriving from places outside Mainland China, Macau, and Taiwan, was subject to compulsory quarantine for 14 days, under the Compulsory Quarantine of Persons Arriving at Hong Kong from Foreign Places Regulation (cap 599E), promulgated in light of an increase in imported COVID-19 cases from its new epicentres in Europe and North America.¹⁸² On 25 December 2020, in response to the spread of Covid-19 variants in South Africa and the United Kingdom, the HKSAR tightened its immigration control regime under the Prevention and Control of Disease (Regulation of Cross-boundary Conveyances and Travellers) Regulation (cap 599H), so that all who have stayed in South Africa, in addition to the United Kingdom, as earlier decreed, for more than two hours in the past three weeks will not be allowed to board for the HKSAR.

51.  The same Regulation imposes requirements on people who stayed in designated high-risk jurisdictions during the past 21 days to submit laboratory or healthcare test reports with negative results in nucleic acid tests for Covid-19 within the past 72 hours, ¹⁸³ and proof of hotel reservations in the HKSAR for the next 21 days. As at 23 February 2021, jurisdictions on the list included ‘extremely high-risk’ ones: Brazil, Ireland, South Africa, and the United Kingdom, and the ‘very high-risk’ countries of Bangladesh, Belgium, Canada, Ecuador, Ethiopia, France, Germany, India, Indonesia, Kazakhstan, Nepal, Pakistan, the Philippines, Romania, Russia, Switzerland, Turkey, Ukraine, the United Arab Emirates, and the United States.¹⁸⁴ Arriving travellers were required to wait for their test results following the collection of deep throat saliva samples for testing at a Temporary Specimen Collection Centre of the Department of Health, in accordance with the Prevention and Control of Disease Ordinance. Whether Hong Kong residents or not, those tested negative were permitted to complete their 21-day compulsory quarantine at hotels they reserved beforehand; those testing positive were sent to hospitals for isolated treatment.

52.  The Prevention and Control of Disease (Prohibition on Group Gathering) Regulation (cap 599G) prohibits gatherings of over two to four persons in public places, depending on the circumstances. A family consisting of any number of persons is nonetheless exempt from this prohibition insofar as they live in the same household. Examples of other exemptions under this Regulation, now repealed by amendments to this Regulation that took effect on 2 December 2020, include those that were provided on 2 October 2020 to religious gatherings at religious buildings with numbers of participants half their normal size; and on 23 October 2020 to local tours organized by licensed travel agents of no more than 30 participants and wedding ceremonies of no more than 50 participants. An offence against this Regulation is punishable by a fine of at HK$25,000 (US$3,226) and imprisonment for 6 months. In Leung Chi Hung v Hong Kong Government,¹⁸⁵ the Court of First Instance of the High Court ruled that the Regulation's restriction on the freedoms of speech, of the press, of publication, of association, of assembly, of procession, of demonstration, to form and join trade unions, to strike, and of freedom of the person guaranteed by Articles 27 and 28 of the Basic Law—which are not absolute rights—was not disproportionate, and was therefore constitutional.

53.  The law or the administrative state has, with some exceptions such as restaurants, largely left the decision of whether and how to impose actual physical distancing measures in workplaces, shopping arcades, shops, and so on into the hands of those in charge of them. There is no binding legal requirement of physical distancing that applies uniformly throughout all of Hong Kong. The Secretary for Food and Health does have administrative power under sections 4 and 6 of the Prevention and Control of Disease (Requirements and Directions) (Business and Premises) Regulation (cap 599F) to specify pandemic measures for catering businesses, including shortened business hours, but these measures are not subsidiary legislation, and thus not part of the law. In Directions G.N. (E.) 106 of 2021, issued on 17 February 2021, the Secretary inter alia demanded catering businesses ensure that there is a distance of at least 1.5 metres between one group of customers from another, and that the number of customers at any one time must not exceed 50% of the premises' seating capacity.

54.  The Chief Executive announced on 31 January 2020 that all schools would not resume until at least 2 March 2020, a date repeatedly postponed afterwards. On 21 March 2020, she declared an indefinite class suspension. In late August 2020, after the end of the territory’s ‘third wave’ of Covid-19 infections, the Government announced that schools would resume half-day face-to-face teaching in two phases. Schools were shut down again in early December 2020, in response to Hong Kong’s ‘fourth wave’ of infections, triggered more or less by super-spreading events associated with a number of dance clubs. The legal basis of the territory-wide power of the Chief Executive, presumably acting through the Secretary for Education, to close or re-open schools was not self-evident in the Prevention and Control of Disease Ordinance. It may be possible to justify, albeit with considerable stretch, the closing of schools under a pandemic on the basis of powers conferred by section 83(1)(a) of the Education Ordinance (cap 279), which authorizes the Permanent Secretary for Education, a senior civil servant position subordinate to the Secretary, to instruct school management bodies to close their premises, if ‘there is any danger or risk of danger to persons in any school premises.’

55.  Commencing on 28 March 2020, the Prevention and Control of Disease (Requirement and Directions) (Business and Premises) Regulation (cap 599F) contains a list of businesses and premises in its Schedule 2 that can be shut down in whole or in part by the Secretary for Food and Health. As of 23 February 2021, these included amusement game centres, bathhouses, fitness centres, places of amusement, places of public entertainment, party rooms, beauty parlours, club-houses, clubs or nightclubs, karaoke establishments, Mahjong-tin kau premises, massage establishments, sports premises, swimming pools, hotels, or guesthouses not exempted from the Hotel and Guesthouse Accommodation (Exclusion) Order (cap 349C).

56.  See Part IV.A.3, paragraph 53 above.

57.  In early October 2019, the Chief Executive in Council invoked the Emergency Regulations Ordinance (cap 241) (ERO) to promulgate a Prohibition on Face Covering Regulation (cap 241K) (PFCR) which controversially banned the wearing of face masks in both unlawful and lawful public assemblies, and was almost immediately defied by tens of thousands of protesters in subsequent protests and demonstrations, who were concerned with being identified by facial recognition surveillance technology.¹⁸⁶ Elements of the ERO and the PFCR were declared unconstitutional on the grounds of unconstitutional delegation of legislative power and disproportionality, respectively, by two High Court judges sitting within a divisional court of the Court of First Instance in Kwok Wing Hang v Chief Executive in Council in mid-November 2019. ¹⁸⁷ On appeal in April 2020,¹⁸⁸ the Court of Appeal partly reversed their judgment, and reaffirmed the ERO’s constitutionality. It nevertheless upheld the High Court ruling that the PFCR outlawing of the wearing of facial covering in authorized assemblies and empowerment of police to remove face masks are unconstitutional. On 21 December 2020, the Court of Final Appeal, with Lord Hoffmann sitting as the fifth judge, delivered its ultimate judgment in Kwok Wing Hang v Chief Executive in Council,¹⁸⁹ affirming the constitutionality of the PFCR and the ERO in their entirety.

58.  It was against this background that the HKSAR Government had remained equivocal about the mandatory use of protective face masks, resulting in further criticism from the press and netizens.¹⁹⁰ This ambiguity ended with the promulgation of Prevention and Control of Disease (Wearing of Mask) Regulation (cap 599I), which entered into force on 23 July 2020, obligating every person to wear face masks in public places.¹⁹¹ In Haider Ali v Social Welfare Department,¹⁹² one of the two aforementioned High Court judges rejected a challenge against the Regulation, holding that the compulsory mask-wearing rule pursued and was rationally connected with the legitimate aim of preventing or controlling the transmission of Covid-19; was not manifestly without reasonable foundation; and struck a reasonable balance between societal benefits and the restriction on the applicant’s freedom to not wear a mask in public places.¹⁹³

59.  The aforementioned Compulsory Quarantine of Certain Persons Arriving at Hong Kong Regulation (cap 599C), which took effect on 8 February 2020, required unexempted individuals who were in Mainland China for any duration during the previous 14 days to be subject to compulsory quarantine for 14 days, irrespective of their nationality and HKSAR residency. In Horsfield Leslie Grant v Chief Executive of HKSAR,¹⁹⁴ the Court of First Instance of the High Court rejected a habeas corpus challenge from applicants, five Hong Kong residents and their domestic helper returning from South Africa, to the lawfulness of their alleged detention at a quarantine centre, pursuant to this Regulation. The High Court judge determined that the quarantine’s restriction on the applicant’s rights to liberty and personal security under the Basic Law, the Bill of Rights, and the common law was constitutional, as it inter alia did not impose an unacceptably harsh burden on the applicants.

60.  On 1 September 2020, the Government introduced a two-week Universal Community Testing Programme, backed by the authorities in Beijing, that tested 1.78 million people on a voluntary basis, which ended up identifying 32 Covid-19 carriers.¹⁹⁵ By the conclusion of the Programme, the HKSAR had conducted over 3.31 million Covid-19 tests, averaging around 440,000 tests conducted per one million people, a rate higher than those of jurisdictions such as Japan, Singapore, and South Korea.¹⁹⁶ The aforementioned Prevention and Control of Disease (Compulsory Testing for Certain Persons) Regulation (cap599J), promulgated on 15 November 2020, authorizes the Secretary for Food and Health and designated medical practitioners to issue compulsory testing instructions to persons clinically suspected to have contracted Covid-19. The Prevention and Control of Disease (Use of Vaccines) Regulation (Cap. 599K), gazetted on 23 December 2020, authorizes the Secretary for Food and Health to permit the emergency use of a certain Covid-19 vaccine, in light of the expert advice. A voluntary vaccination programme, using the Sinovac Biotech (CoronaVac) Covid-19 vaccine, was set to begin in late February 2021. As of 23 February 2021, there was no Covid-19 mandatory vaccination law in the HKSAR.

61.  General contact tracing procedures in Hong Kong remain considerably traditional. There is no widespread use of any particular contact tracing mobile app. In February 2020, a month after the initial Covid-19 outbreak in the HKSAR, the Department of Health did invite the Hong Kong Police to deploy its computerized Major Incident Investigation and Disaster Support System to enhance overall contact tracing work. In January 2021, 100 police, customs, and immigration officers were co-opted into a contact-tracing team whose responsibility was to make phone calls or visit close contacts of infected persons, under the supervision of health personnel.¹⁹⁷

62.  The Prevention and Control of Disease (Disclosure of Information) Regulation (cap 599D) made it an offence for any person to knowingly giving false or misleading information to health officers or medical practitioners, punishable by a fine of at HK$10,000 (US$1,290) and imprisonment for 6 months.¹⁹⁸ As at 31 October 2020, the general population of the HKSAR had not been legally obligated to download any contact tracing app. However, wristbands connected to an app called ‘StayHomeSafe’ were mandatorily distributed to people arriving from overseas, who were required to wear them throughout their 14-day home quarantine period. There were privacy concerns about the app despite repeated reassurances from the Government.¹⁹⁹

63.  In June 2020, the HKSAR Government rolled out a proposal to create a ‘Hong Kong Health Code’ mobile app that would enable individuals wanting to enter neighbouring Guangdong Province, and potentially also Macau, to present electronic versions of their Covid-19 nucleic acid test results for health declaration purposes.²⁰⁰ Similar apps, which assigned QR codes to people, indicating their health statuses, were in use in Mainland China. It was hardly surprising, in the context of the HKSAR’s pronounced polarization and mistrust since 2019, that there were concerns that the Health Code, under the guise of an electronic health passport, would open a backdoor for sensitive genomic data of Hong Kong residents to be transferred to state security agencies in Mainland China.²⁰¹

64.  On 24 November 2020, the Secretary for Food and Health obligated persons in charge of premises covered by the Prevention and Control of Disease (Requirements & Directions) (Business & Premises) Regulation (Cap 599F) to apply for and display on their premises a location-specific ‘LeaveHomeSafe’ QR code linked to a mobile app of the same name for the general public’s use. As of 23 February 2021, it is not legally required for residents to download ‘LeaveHomeSafe’—whose primary function remains to alert its users on whether they have been in the same place with a Covid-19 infected person. Without any positioning function, LeaveHomeSafe has yet to evolve into a health passport in the sense of the aforementioned Health Code.

65.  The Centre for Health Protection, a division of the Department of Health under the Secretary for Food and Health, issued a set of Guidelines for Residential Care Homes for the Elderly or Persons with Disabilities for the Prevention of Coronavirus Disease (COVID-19) in January 2020, and Health Advice to Hostel for Staff Working in Residential Care Homes for the Elderly or Residential Care Homes for Persons with Disabilities for the Prevention of Coronavirus disease (COVID-19) in July 2020, which addressed the control of infections in residential care homes and hostels for residential care home staff, respectively. The Elderly Health Service of the Department of Health conducted on-site inspections of infection control measures undertaken by residential care facilities in the light of the above guidelines and advice, and offered customized training for staff of these institutions.²⁰²

66.  Care homes in Hong Kong turned out to be relatively well prepared to shield their residents from Covid-19. Post-SARS measure commonly taken by care homes to combat the present pandemic include pre-emptive and very strict visiting restrictions, obligating all staff to wear surgical masks, and rigorous policies with the aim of guaranteeing that new residents are virus free.²⁰³

67.  The People’s Liberation Army Hong Kong Garrison has not played any role in enforcing public health emergency regulations. The primary enforcement agents designated by Section 5(1) of the Prevention and Control of Disease Ordinance are the police, the Director of Health, the Deputy Director of Health, the Controller of the Centre for Health Protection, and medical practitioners appointed by the Director of Health as health or port health officers.

68.  On 30 March 2020, a man who provided an officer at the border with a false residential address as his place of quarantine became the first person to be convicted under the new Compulsory Quarantine of Certain Persons Arriving at Hong Kong Regulation (cap 599C); he was sentenced to three months’ imprisonment by a Magistrate.²⁰⁴ Shortly afterwards, in early April 2020, six chess players and observers became the first group to be fined HK$2,000 (US$256) each for illegal public gathering on a public housing estate in the New Territories, contrary to the Prevention and Control of Disease (Prohibition on Group Gathering) Regulation (cap 599G).²⁰⁵

69.  Anxiety about selective or politically motivated enforcement of public health measures was expressed, although they were strongly denied by the Commissioner of Police before a heated Legislative Council session on 9 April 2020, among other occasions.²⁰⁶ Riot police arrested or fined protesters, student journalists, and others in the name of enforcing social distancing,²⁰⁷ re-enacting some of the scenes of police-citizen clashes that occurred in the preceding months.

70.  On 5 February 2021, a 63-year-old Covid-19 patient, who escaped from his isolation room in Queen Elizabeth Hospital until being tracked down by police 54 hours later, became the first to be sentenced to four months’ imprisonment under the Prevention and Control of Disease Regulation (cap 599A), which forbids anyone, ‘knowing that he is a contact or is infected with a specified infectious disease, [to] expose other persons to the risk of infection.’²⁰⁸

71.  Tendencies to comply with viral containment guidance and legal requirements should be viewed in the context of Hong Kong’s experience of the SARS epidemic in 2003. The initial death rate of SARS infected patients in Hong Kong was around 15 per cent.²⁰⁹ This relatively recent experience of an outbreak of a novel infectious disease likely predisposed Hong Kong to a similar response to the Covid-19 outbreak in 2020. Indeed, a number of measures adopted in Hong Kong during the SARS epidemic were implemented in response to the Covid-19 pandemic. This included the use of isolation or quarantine centres for close contacts of infected patients, mask wearing, disinfection of affected areas, temperature screening of inbound and outbound travellers, and completion of health declaration forms.²¹⁰ Lessons were learned that may have assisted in Hong Kong’s biomedical response to the Covid-19 outbreak, including about intensive care capacity, infection control measures, professional training, manpower deployment, staff facilities, and stockpiling of drugs and personal protective equipment.²¹¹

72.  Additional major epidemic risks were faced by Hong Kong in subsequent years which may have contributed to systemic and attitudinal preparedness for the Covid-19 pandemic, such as Avian (A/H7N9) Influenza. For example, one study found that 94.4 per cent of respondents considered mask wearing to be an active personal hygiene measure for reducing the risk of influenza transmission when displaying respiratory symptoms.²¹² While actual hygiene practice for such persons fell to 39 per cent of respondents wearing a mask when displaying respiratory symptoms,²¹³ this would be significantly higher than in many territories pre-Covid-19. Indeed, the wearing of surgical masks among Hong Kong residents was a common sight prior to the Covid-19 outbreak, thus reducing the likely contentiousness of mask-wearing that has arisen in other territories during the Covid-19 pandemic. In this broader context, public health guidance regarding Covid-19 would not have been altogether novel for many Hong Kong residents; public health and infectious disease announcements were already a commonplace feature at Hong Kong International Airport prior to the outbreak of Covid-19. Hong Kong’s experience of relatively recent epidemic risks may also have increased its regulatory preparedness.²¹⁴

73.  The Hong Kong COVID-19 Health Information Survey was conducted between 9 and 23 April 2020; 1,501 adults—52.5% female and 72.3% aged 18–59 years—were sampled, randomly, for online surveys (n = 1,001) and landline telephone interviews (n = 500). Among the participants of the Survey, 74.2% reported that they avoided going out, 72.7% claimed that they avoided going to crowded places, and 59.7% reported that they avoided social gatherings of more than four people; 58.4% had stayed at home for no less than four out of the previous seven days.²¹⁵ An observational study of 10,211 pedestrians across Hong Kong from 1 to 29 February 2020 revealed that 94.8% (n = 9683) wore some sort of facial covering, including 83.7% who wore disposable surgical masks; only 13.0% wore these masks incorrectly.²¹⁶

86.  The Hong Kong Basic Law provides the HKSAR with a variety of autonomous powers to ensure the social and employment protection of persons within Hong Kong, albeit within the context of a constitutional arrangement that enshrines principles of a low tax policy, fiscal responsibility, and a balanced budget.²¹⁷ Within this context, Article 145 noted that the HKSAR is able, on the ‘basis of the previous social welfare system’, to formulate policies on the development and improvement of this system in the light of economic conditions and social needs.²¹⁸

87.  The HKSAR has adopted a number of measures to address the financial impact of the Covid-19 pandemic on the unemployed. For those seeking social assistance due to unemployment through its Comprehensive Social Security Assistance (CSSA) scheme, it provided additional funding of HK$3.5 billion.²¹⁹ It also broadened eligibility for CSSA for six months (June–November 2020) by doubling the asset ceiling to HK$66,000 for single persons, excluding any self-owned property in the calculation.²²⁰ Yet, while the unemployed population in Hong Kong increased by 107% within a year to 253,300 in January 2021, only around 10% of those unemployed for at least one month sought means-tested financial assistance under the CSSA.²²¹ The Legislative Council Secretariat noted this as having arisen, to a considerable extent, due to tight eligibility and social stigma on welfare recipients.²²² As a result, the total CSSA expenditure has remained broadly comparable both prior to the pandemic and during it, with HK$22,853 million paid out in 2020–2021 compared to HK$22,667 million in 2019–2020 and HK$22,323 million in 2018–2019.²²³

88.  Cash based assistance was also introduced to address particular needs as part of an Anti-Epidemic Fund and which also supplemented allowances under existing social security schemes. A subsidy was provided for each childcare centre calculated at the rate of HK$4,000 per full-day enrolment per month and HK$2,000 per half-day enrolment per month, for four months.²²⁴ Under the HK$120 billion relief package in the 2020–2021 budget, extra allowances were provided for CSSA, Old Age Allowance, Old Age Living Allowance, and Disability Allowance recipients, amounting to one month of these allowances.²²⁵ Each of these allowances have their own eligibility requirements which have not changed in light of Covid-19. CSSA is available to Hong Kong residents who cannot support themselves financially who pass a means test (combining income and asset tests).²²⁶ The Old Age Allowance (known as ‘fruit money’) is a monthly cash allowance of HK$1,475 per month for residents aged 70 or over and is not means tested.¹² In addition, Old Age Living Allowance supplements the living expenses of the elderly between HK$2,920–3,915 for those aged 65 and over, with the amount varying depending on age, which is means tested.²²⁷ The Disability Allowance is provided to those with disabilities to an amount ranging from HK$1,935–3,870 per month and is not means tested.²²⁸ In addition to these schemes, financial support was made available to students or their parents. A one-off student grant of HK$2,500 was provided in the 2019–2020 school year, on a non-means tested basis, for each secondary day school, primary school, and kindergarten student to alleviate parents’ financial burden in defraying education expenses.²²⁹ An additional HK$1,000 was then provided for each student under this scheme.²³⁰ Self-financing post-secondary institutions and non-profit-making international schools were entitled to one-off interest-free deferral of Government loan repayment for two years.¹⁷ Furthermore, all student loan repayees (except those on default) were automatically entitled to interest-free deferral of Government loan repayment for two years.¹⁷

89.  The Social Welfare Department (SWD) has, since 2009, commissioned nongovernmental organisations to provide short-term food assistance to provide low-income persons with basic food items on a short-term basis—generally not more than eight weeks each time.²³¹ As a result of the pandemic, the SWD relaxed the means testing eligibility for this short-term food assistance scheme.²³² Additional funding for food security measures was provided in 2021 to the amount of HK$85 million to address rising demand for these services arising from the pandemic.²³³

90.  The HKSAR Government made financial provision to alleviate the cost of housing in response to the economic downturn following the pandemic. A two-month rental waiver was provided to public housing tenants to offset the financial burden of the 9.66% rent increase imposed by the Housing Authority in the 2020 rent review.²³⁴ Those flat owners under the Housing Authority Subsidized Sale Flats Scheme were entitled to a suspension on their mortgage loan principal payments for a maximum period of 12 months.²³⁵

91.  As an additional measure to support children and their parents, examination fees for school candidates sitting the 2021 Hong Kong Diploma in Secondary Education Examination were waived.²³⁶

92.  Between 1 July 2020 and 1 January 2021, the Mass Transit Rail Corporation reduced rail fares by 20%, with the Government paying half of the foregone revenue—this contribution was estimated to amount to HK$800 million²³⁷ The Government also relaxed the monthly threshold under the Public Transport Fare Subsidy Scheme; for six months from July 2020, commuters with monthly public transport expenses exceeding HK$200 (reduced from HK$ 400) were eligible for a 25% subsidy on these expenses.²³⁸

93.  During 2021, the Government introduced the Cash Payout Scheme, to disburse HK$10,000 to each Hong Kong permanent resident aged 18 or above.²³⁹ This scheme was introduced in ‘view of the severe epidemic situation’ and had been successfully disbursed to more than 6.5 million permanent residents.²⁴⁰

94.  There is no information to report.

95.  Various forms of tax relief and concessions were made. Tax deadlines were generally deferred for a minimum period of three months.²⁴¹ Profits and salaries tax payable in 2019–2020 tax year were reduced by 100%, subject to a ceiling of HK$20,000.²⁴² Domestic property taxes for 2020–2021 were also waived, subject to a HK$1,500 ceiling per quarter.²⁴³ Similarly, non-domestic properties tax for 2020–2021 was waived, subject to a HK$5,000 ceiling per quarter in the first two quarters and HK$1,500 ceiling per quarter for the remaining two quarters.²⁴⁴

96.  To counter unemployment, monthly wage subsidies covering 50% of the monthly income of each employee (subject to a subsidy ceiling of HK$9,000) were paid to employers for six months until November 2020.²⁴⁵ To be eligible, employers had to undertake not to reduce their workforce during the subsidy period and to spend the subsidies on wage payments. For self-employed persons who had contributed to the Mandatory Provident Fund in the prior 15 months, a one-off lump sum subsidy of HK$7,500 was granted.²⁴⁶

97.  The Government also instituted a number of loan schemes. The SME Financing Guarantee Scheme was enhanced to assist eligible small and medium-sized enterprises from all sectors to secure loans from participating lenders, with the Government providing a guarantee in the event of default, to ease their cash flow difficulties.²⁴⁷ The Hong Kong Monetary Authority released HK$1 trillion worth of lending capacity, thereby increasing banking system liquidity.²⁴⁸

98.  Numerous subsidies were provided, some on a one-off basis and others over two or more rounds. They were made to a wide range of industries to offset losses arising from Covid-19, including retail, food, leisure, transport, airline, fishing, financial, insurance, education, and training.²⁴⁹ The amount of these subsidies varied considerably from up to HK$2.5 million for the largest catering outlets to HK$5,000 for licenced hawkers.²⁵⁰

99.  The HKSAR has yet to provide additional regulation on dismissal and job retention in connection with the pandemic. The current law on the termination of employment is complex but embraces a combination of statutory and common law principles, permitting termination in a variety of circumstances: performance; mutual agreement; notice; payment in lieu of notice; unfitness to continue working; by operation of law; or death or dissolution of either the employer or employee.²⁵¹ The situation of an employee refusing to be vaccinated is not generally considered to fall within an existing circumstance justifying dismissal. This is reflected in the efforts of the HKSAR executive to support an amendment to the Employment Ordinance (cap 59) which, at the time of writing (March 2022), is under consideration in the Legislative Council. The Employment (Amendment) Bill 2022 thus provides that an employee’s failure to comply with a ‘legitimate vaccination request’ made by their employee can be used to support the conclusion that the employee was incapable of performing their work, thereby justifying dismissal.²⁵² This request has to meet certain conditions and some persons are exempted, including on medical grounds.²⁵³

100.  On the other hand, the HKSAR has also sought to protect employment rights during Covid-19. The executive thus publicly advised employers of their existing labor-related legal obligations, including an interpretation of Covid-19 as a disability within the meaning of the Disability Discrimination Ordinance (cap 487) (DDO).²⁵⁴ On this basis, if employers treated their employees less favorably, eg by dismissing them, because they were infected with Covid-19, then they would be liable to possible action under the DDO.²⁵⁵ Hong Kong has a series of anti-discrimination laws that might also be relevant to Covid-19 related employment disputes.²⁵⁶ Employers were further advised to arrange for their employees, upon recovery from Covid-19, to start or resume work and maintain a cordial employment relationship with their employees.²⁵⁷ Finally, the Employment (Amendment) Bill 2022 would also provide legal protection from the dismissal of employees absent from work due to legal restrictions on their movement under the Prevention and Control of Disease Ordinance (cap 599).²⁵⁸

101.  There is no information to report.

102.  There is no information to report.

103.  There is no information to report.

104.  There is no information to report.

105.  There is no information to report.

106.  There has been, as this section shows, an incursion on civil liberties during the Covid-19 pandemic. These events must also be understood within the broader trend of civil liberties being eroded in the HKSAR prior to the pandemic, including in the context of the 2019 protests that prompted the PRC’s adoption of the Hong Kong National Security Law on 30 June 2020.

107.  The pandemic has had an impact on freedom of movement and association. Restrictions have been imposed on group gatherings in public places and business premises, pursuant to regulations adopted under the Prevention and Control of Disease Ordinance (cap 599).²⁵⁹ Any person without reasonable excuse is liable to a maximum penalty of a fine of HK$25,000 and imprisonment for six months.²⁶⁰ Persons who participate in a prohibited group gathering may discharge liability for the offence by paying a fixed penalty of HK$5,000.²⁶¹ Human rights monitors claimed that police misused these powers, leading to the suppression of political expression and assembly. A coalition of human rights groups reported that police officers had used the regulations as a basis to order the dispersal of political protestors, in some cases subjecting those protestors to search and detention.²⁶²

108.  The Compulsory Quarantine of Persons Arriving at Hong Kong from Foreign Places Regulation (cap 599E) has been subject to legal challenge on personal liberty and habeas corpus grounds.²⁶³ In Syed Agha Raza Shah v Director of Health,²⁶⁴ the Court of First Instance (CFI) rejected an application for a writ of habeas corpus from a person subjected to compulsory quarantine for a period of 14 days following her arrival from Pakistan. The CFI recognised ‘that the liberty of a person who is subject to quarantine, whether at the Centre, or his home, or a hotel’ constitutes a restriction under Article 6 of the Hong Kong Bill of Rights Ordinance (cap 383). However, in assessing the compatibility of this restrictive measure with Article 6, the CFI considered that the appropriate standard of review to apply was ‘manifestly without reasonable foundation’, instead of the more stringent standard of ‘no more than reasonably necessary’.²⁶⁵ This was because the quarantining authority (Department of Health) was 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, including the serious social and economic consequences of a general outbreak of Covid-19 in Hong Kong.²⁶⁶ The CFI further observed that, while subjecting a person to quarantine at a designated quarantine centre involved ‘a significant restriction of that person's liberty’, the gravity of the restriction was ‘somewhat ameliorated’ by the fact that it was for a short period of time and took place in a quarantine centre setting.²⁶⁷ In rejecting the contention that there were less restrictive alternatives, ie quarantine at home, the CFI held that home quarantine was not ‘equally effective’ for the purpose of minimising transmission of Covid-19 in the community, because those living with the person subject to quarantine at home—who themselves are not subject to any quarantine restriction—would come into close personal contact with that person on a daily basis.²⁶⁸

109.  There have been numerous media reports containing allegations that police have used their Covid-19 control powers, including the requirements for social distancing and limits on group gatherings, for the extraneous purpose of suppressing political dissent. These included allegations of extraneous purposes in the implementation of restrictions on protesting around Mass Transit Rail (MTR) stations,²⁶⁹ on refusals to give consent to annually-held protests on public health grounds,²⁷⁰ and in arresting protestors for violating social distancing regulations.²⁷¹ In relation to the latter, some legislators have claimed in the media that the police have been applying a double standard when it came to enforcing the ban on large gatherings, using these restrictions to prevent the return of anti-Government demonstrations, while generally allowing other groups to gather with impunity.²⁷² The HKSAR Government has, in response, denied any extraneous political purpose in the use of Covid-19 control powers, pointing to the wide range of ‘large-scale activities’ that were also affected by the same restrictions.²⁷³ Finally, there have been allegations that police powers have been used to restrict public criticism of the PRC’s handling of the pandemic, including satire blaming PRC officials for the pandemic, on the basis that such conduct was inconsistent with the Hong Kong National Security Law.²⁷⁴

74.  The decision of the HKSAR Government to postpone elections for the Legislative Council for a year (see Part III.D above) was also met with criticism as a form of political suppression. Critics characterised the postponement as a deprivation of voting rights and motivated by the improper political objective of retaining a pro-government majority in the legislature.²⁷⁵ Following the postponement, and in implementation of the Hong Kong National Security Law, numerous ‘pro-democracy’ legislators were ousted from the Legislative Council for being unpatriotic, with the remainder resigning in protest.²⁷⁶ The putative Covid-19 motive underlying the postponement of elections received international attention. A joint statement of the Foreign Ministers of Australia, Canada, New Zealand, the United Kingdom, and the United States Secretary of State, noted that ‘[t]hese moves have undermined the democratic process that has been fundamental to Hong Kong’s stability and prosperity…’.²⁷⁷ The Government responded to these criticisms, stating: the ‘decision to postpone the 2020 Legislative Council election has nothing to do with politics, has nothing to do with the likely outcome of this round of election’; ‘[i]t is purely on the basis of protecting the health and safety of the Hong Kong people.’²⁷⁸

110.  The HKSAR executive has adopted secondary legislation, the Prevention and Control of Disease (Disclosure of Information) Regulation (cap 599D), to empower authorised officers to require any person to provide or disclose information that is relevant to identification and tracing of persons who may be at risk of contracting the disease, such as travel history, places they have visited or people with whom they have come into contact.²⁷⁹ A person commits a criminal offence where they fail to comply with the requirement to provide information, or gives to an authorised officer any false or misleading information.²⁸⁰ The maximum penalty for such offence is a fine of HK$10,000 and a term of imprisonment of six months. Numerous people have been convicted and subject to a custodial sentence for providing false information to an authorised officer.²⁸¹

111.  Those inbound arrivals into Hong Kong that were subjected to compulsory home quarantine were required to wear a wristband, connected to the ‘StayHomeSafe’ mobile app, that monitored their whereabouts to ensure they remained in their designated place of quarantine.²⁸² This requirement remained in place until 18 June 2021, at which point all arrivals into Hong Kong were required to undergo quarantine at a designated quarantine centre (rather than at home).²⁸³ The large number of Covid-19 infections arising in the ‘fifth wave’, beginning in January 2022, led the executive to extend wristband monitoring to those in Hong Kong (ie not just inbound travellers) to ensure those so ordered to undergo home quarantine.²⁸⁴ The app privacy policy indicated that the personal data provided was used by the Department of Health for the purpose of preventing the occurrence or spread of an infectious disease pursuant to the Prevention and Control of Disease Ordinance (cap 599). However, numerous privacy concerns were raised, including the possibility of excessive data collection and use for extraneous purposes.²⁸⁵ Other privacy concerns include data storage and access, as the app’s privacy policy did not contain clear information regarding duration of retention and access to such data ²⁸⁶

112.  Further, the aforementioned ‘LeaveHomeSafe’ app allows users to record the date and time they visited different venues by scanning a QR code at participating venues.²⁸⁷ As the venue check-in data is encrypted and saved on users’ devices only and will not be uploaded by the Government or any other system, the Government cannot use the data, save for epidemiological investigations.²⁸⁸ All users’ visit record data are encrypted and stored locally only in their devices for a retention period (31 days).²⁸⁹ The visit records will be required to be uploaded via the Report Positive or Preliminary Positive function only if the user is tested positive on request by the Centre for Health Protection (CHP).²⁹⁰ The uploaded records can only be viewed by Admin portal users with access control.²⁹¹ According to the Government, the app adheres to personal data privacy principles.²⁹²

113.  Some commentators have noted the disproportionate impact that the Covid-19 pandemic has had on females in Hong Kong. In particular, foreign domestic helpers, obliged to live with their employers, have been particularly vulnerable to abuse; most such workers are women.²⁹³ Similarly, it was also observed that Hong Kong ‘gives universal payments only to permanent residents. This will not cover the 5% of the city’s population who are migrant domestic workers - mainly women’.²⁹⁴ Furthermore, the role of women as the primary ‘caregiver’ may have placed added stress on women during the Covid-19 pandemic.²⁹⁵ However, persons in general—regardless of gender—have been subject to significant additional pressures and stresses associated with the Covid-19 outbreak, with a recent study showing that over 10% of Hong Kong residents showed signs of Post-Traumatic Stress Disorder a year after the outbreak began.²⁹⁶

114.  There is also evidence of a high rate of sexual violence and domestic violence during Covid-19, as a major survey established.²⁹⁷ A study also showed that close to 40% of respondents (the survey size being 1,044 females aged 15–64) had been subjected to some form of sexual violence, including discussion of sexual topics that caused discomfort and non-penetrative sexual assault, as well as unwanted sexual attention.²⁹⁸ Amongst those who were subjected to sexual violence, close to 70% indicated that they knew the perpetrator.²⁹⁹ The survey also indicated that 26.37% of respondents had experienced violence from an intimate partner/spouse or former partner/spouse, with 90% of these perpetrators being men.³⁰⁰ Close to half of these respondents did not seek help after the incident, with some fearing that doing so would worsen their relationship with the perpetrator or adversely impact the perpetrator.³⁰¹

115.  The major ethnic minority groups in the HKSAR are Filipino and Indonesian, with most of these being foreign domestic helpers.³⁰² Other ethnic minority groups are South Asian, Mixed, and White.³⁰³ Officials have blamed South Asians and foreign domestic helpers for spreading Covid-19 due to their ‘cultural’ practices of gathering in groups, eating together, drinking, and smoking.³⁰⁴ These practices have been portrayed as being more likely to spread Covid-19 in Hong Kong.³⁰⁵ However, critics have noted that family gatherings, eating together, and smoking are not behaviours specific to a certain race or ethnicity, with such stereotyping amounting to racism.³⁰⁶ Similarly, some legislators called for a lockdown on foreign domestic helpers so as to prevent them from gathering in public places during their statutory rest day (see also Part VI.C above on gender discrimination as it pertains to foreign domestic helpers).³⁰⁷ However, the Government did not adopt this proposal, the Secretary of Labour noting that this would likely fall foul of anti-discrimination laws.³⁰⁸

116.  Physical or mental illness, impairment or disability, are considered ‘reasonable excuses’ for not wearing a mask in a public place.³⁰⁹ Those eligible for Disability Allowance also received an additional one-month payment (see Part V.A.1 above).³¹⁰ Beyond this, public officials have sought to advise the public of existing legal protections for those with disabilities. The Equal Opportunities Commission thus advised that discrimination against those with the virus would constitute a form of disability discrimination.³¹¹ The accessibility of official information for the visually impaired has also been flagged by civil society.³¹²

117.  The Social Welfare Department established Temporary Testing Centres for staff members of residential care homes for the elderly (‘RCHEs’), residential care homes for persons with disabilities (‘RCHDs’), and nursing homes.³¹³ Testing was generally voluntary in relation to these categories, with a participation rate of 70% or above.³¹⁴ However, the Secretary for Food and Health issued a compulsory testing notice under Section 10(1) of the Prevention and Control of Disease (Compulsory Testing for Certain Persons) Regulation (cap 599J), requiring staff members of RCHEs, RCHDs, and nursing homes to undergo polymerase chain reaction-based nucleic acid tests for Covid-19 and such staff have done so throughout 2020–2022.³¹⁵

118.  Despite these restrictive measures, there has been a large number of infections in care homes. Such elderly residents have been particularly vulnerable to Covid-19, with a large proportion of hospitalisations and fatalities coming from the unvaccinated elderly group in care homes, making up 58.9% of the more than 3,000 deaths as of March 2022.³¹⁶ As a result, the government has built and staffed quarantine facilities dedicated to the infected elderly population and also sought to ‘encourage’ higher vaccination through the introduction of vaccine passports (to access restaurants, shops and other facilities) and shortening of intervals between doses.³¹⁷

119.  Since the start of the fifth wave in January 2022 and the time of writing (March 2022), over 2,000 children have been hospitalised with three deaths of children with no underlying health conditions.³¹⁸ Healthy parents have been unable to stay with their hospitalised children due to a lack of space, drawing a good deal of public criticism.³¹⁹ The public outcry subsequently led the government to allow children testing positive with Covid-19 to remain at home, rather than being separated from their parents and hospitalised, provided that such children were in a stable condition.³²⁰

120.  The HKSAR’s adoption of a ‘zero-Covid’ strategy has had an impact on children, particularly in their being able to receive an education. Each new wave of cases has led to face-to-face classes being halted and moved online.³²¹ Between 2020–2022, face-to face classes were cancelled at least four times, with the four-month school shutdown in early 2020 amongst the longest in the world. ³²² In February 2022, a decision was suddenly made to let all students start their summer holidays in March 2022 to allow campuses to be used as testing and vaccination sites, with the term resuming in summer 2022.³²³ Critics have noted the long-term negative impact such disruptive measures will have on children, from delayed social development to depression and anxiety.³²⁴

121.  The Government arranged Covid-19 testing for all of the approximately 7,000 prisoners after two of them became infected.³²⁵ A legislator questioned whether prisoners were being forced to undergo testing, having received information that a detainee who refused to take part was sent to solitary confinement.³²⁶ The Correctional Services Department noted that five inmates refused to comply with testing, and were therefore separated for observation—without specifying the length of time they were so separated—in order to break hidden transmission chains and ensure the other inmates’ health and safety.³²⁷ As of March 2022, more than 1,000 inmates were infected with Covid-19.³²⁸ As a result of the outbreak of the Omicron variant in 2022, visits in prison (both personal and legal) and court hearings involving such prisoners were suspended (since early February until the time of writing in March 2022).³²⁹ These measures were criticised by lawyers as disproportionate.³³⁰ Similarly, the government has also taken measures to implement social distancing within prisons including the creation of dedicated quarantine facility for prisoners infected with Covid-19.³³¹ One such measure has been cell lockdowns, restricting the movement of prisoners within the prison, with them being sent to shower and exercise in batches, with meals distributed to their cells.³³² It is unclear from public records the extent to which prisoners have been subject to cell lockdowns across all prisons and for what duration; nor has this issue received much political or public attention.³³³

122.  As a general matter, the Basic Law draws a distinction between residents, who enjoy the full panoply of rights under this instrument, and non-residents, where the scope of rights applicability is narrower on a contextual interpretation.³³⁴ In turn, the Hong Kong courts have upheld as lawful social assistance policies that privilege residents over non-residents.³³⁵ The availability of constitutional rights for migrants without the right to enter and remain in the HKSAR is also curtailed under the Basic Law and Hong Kong Bill of Rights Ordinance (cap 383).³³⁶ Save for non-derogable rights, those subject to immigration control, including refugees, are unable to invoke constitutional protections to challenge decisions pertaining to their conditions of stay in Hong Kong.³³⁷ For example, they are unable to invoke the Basic Law to support an entitlement to work, though the Director of Immigration might authorise them to work in ‘exceptional circumstances’.³³⁸ Asylum seekers and mandated refugees are, in turn, not constitutionally entitled to the same social protection as residents, with the extent of social support being discretionary.³³⁹ Local NGOs have sought to pressure the Government into providing greater social assistance to the asylum seeker and refugee population during the Covid-19 pandemic, emphasising the lack of access to healthcare, food, and other supplies, in light of shoppers depleting supermarket stocks, including delayed appointments with the social services authority, leaving some of them with no balance on their food cards.³⁴⁰

123.  Foreign Domestic Helpers (‘FDH’) are another group of migrants whose constitutional and legal rights are curtailed. In particular, FDHs are required to live in the same residence as their employer, a requirement that has so far, up to the Court of Appeal, withstood constitutional challenge.³⁴¹ They are also not considered to be ‘ordinarily resident’ for the purpose of obtaining permanent residency (a status that would provide them with more social protections).³⁴² FDHs earn a statutory minimum wage of HK$4,630 per month, and a monthly food allowance of HK$1,121; these entitlements have remained frozen during the pandemic.³⁴³ Yet, a survey conducted by a group of NGOs found that 11–14% of FDHs had not received masks or sanitisers from their employers, thereby forcing them to absorb such cost from their wages.³⁴⁴ More than half of the survey also reported increased workload following the start of the outbreak, arising from the Government’s restrictions on gatherings and social distancing that in turn led to their employers remaining at home for longer periods.³⁴⁵ There is also evidence that some live-in FDHs had tested positive for Covid-19 after their employers were confirmed to have been infected.³⁴⁶ The survey results also showed that 25% of those who did not go out on their weekly rest day also carried out domestic duties in their employer’s residence during such rest day.³⁴⁷ Furthermore, there was evidence, following the rapid spread in Hong Kong of the Omicron variant in 2022, of some FDHs who tested positive for Covid-19 being fired from their employment or made temporarily homeless by their employers.³⁴⁸

124.  It has been noted that, while the Government has introduced initiatives to support economic recovery and to alleviate the social effects of the pandemic, including financial support, these measures have excluded the aforementioned migrant groups.³⁴⁹ NGOs have urged the Government to include FDHs in its financial assistance schemes, such as the HK$10,000 handout to permanent residents.³⁵⁰ They also called for a curb on price gouging and to ensure adequate supplies of affordable protective materials for all, as well as the abolition of the mandatory live-in policy.³⁵¹ It has also been suggested that there is no clear information on how migrants can safely access medical services if they develop Covid-19 symptoms.³⁵²

125.  One study notes that the Government has not appeared to have reviewed its immigration detention policies in relation to detention thresholds and duration during the Covid-19 pandemic.³⁵³ This study also notes that migrants who are released on recognizance in lieu of detention are required to regularly report to the authorities in person, this requirement placing them at risk and being contrary to public health advice to stay at home and practice social distancing.³⁵⁴

126.  There is no relevant information to be reported.

Dr. Stephen Thomson, School of Law, City University of Hong Kong

Dr. Eric C. Ip, Centre for Medical Ethics and Law, University of Hong Kong

Dr. Michael Ramsden, The Chinese University of Hong Kong