Arriving on the back of seven months of mass demonstrations (which started in June 2019), Hong Kong reported its first Covid-19 case on 23 January 2020. The demonstrations in 2019 were an outpouring of profound dissatisfaction with the Government of the Hong Kong Special Administrative Region (HKSARG), which many considered to have tolerated or even encouraged perceived interference in Hong Kong’s affairs by the Central People’s Government of China. Until recently, Covid-19 infection rates in Hong Kong have been modest compared to other places in the world.  At the time of writing (6 December), infections have been running at about 100 new cases a day, making a total number of 6800 infections to date.

Mina Heung of Whitestone Chambers and member of the Bar Council International Committee, recently interviewed the Chairman of the Council of the Hong Kong Bar Association, Mr. Philip Dykes SC, for his views on the key regulations in place in Hong Kong to assist with preventing the spread of Covid-19. They also discussed the key measures that the Hong Kong government rolled out to minimise the impact on access to justice during this particularly challenging time.

The Hong Kong Government first took action with respect to Covid-19 in January 2020 after it had first come to light in Wuhan in Mainland China.  The Government immediately included “Severe Respiratory Disease associated with a Novel Infectious Agent” as a scheduled infectious disease under the Prevention and Control of Disease Ordinance (the Infectious Diseases Ordinance, 2008). In addition, Covid-19 was added as a statutorily notifiable infectious disease under its main subsidiary legislation, the Prevention and Control of Disease Regulation (Cap.599A).  The Infectious Diseases Ordinance empowers the Chief Executive in Council to make public health emergency regulations for the purpose of preventing, combating or alleviating the effects of a public health emergency and protecting public health. This power was used in early February to introduce the Prevention and Control of Disease (Disclosure of Information) Regulation (Cap.599D) (the Disclosure of Disease Information Regulation) which remains in force.

Covid-19 restrictions in Hong Kong are like those in other countries. There are restrictions on entry for some non-residents and quarantine requirements for residents and non-residents alike. Restrictions on public gatherings exist as well as on private places such as restaurants, clubs and bars.

Despite these restrictions Hong Kong experienced a rise in Covid-19 cases in which the number of Covid-19 related deaths went from 8 cases on 13 July 2020 to 89 deaths in total by the end of August. The Hong Kong government decided to invoke emergency powers under a different ordinance (‘The Emergency Regulations Ordinance, Cap. 241’) - dating back to 1922 - to postpone the Legislative Council election in September for another year in order ostensibly to prevent further spread of this deadly virus, which resulted in condemnation around the Western World. On 2 August 2020, the Hong Kong Bar Association released a statement in which the Government’s decision was heavily criticised. 

“The Government has sought to justify the postponement on the ground of public health risks, due to the resurgence in Covid-19 cases.  We note in this regard that international human rights experts have repeatedly warned that governments must not use Covid-19 as a pretext to suppress human rights.”

Mina Heung: What can you tell us about the impact of the Coronavirus measures on the rule of law in Hong Kong?

Philip Dykes SC: Covid-19 came to the Hong Kong Special Administrative Region (HKSAR) when protests were still taking place. The disease allowed the Hong Kong Government to impose restrictions on gatherings, including allowing the police to impose on the spot penalty notices on persons ignoring social-distancing measures. The complaint is that the police have been quick to use this new power to break up small gatherings of people who have tried to maintain social distancing when protesting against the Government.

Larger gatherings - more than 10 people - fall to be regulated under a law which requires notification to the Commissioner of Police. The Commissioner can object to a proposed meeting or procession. Simple defiance of  police orders to leave an unauthorised meeting or procession can result in a prison sentence of 12 months for the offence of unauthorised assembly, even though the meeting or procession is entirely peaceful: see section 17A(1) Public Order Ordinance, Cap. 245. Joshua Wong and his two co-accused, Agnes Chow and Ivan Lam, were convicted and sentenced for the related offences of organising/participating in an unauthorised assembly, contrary to section 17A(3) of the same ordinance, which carries a maximum sentence of five years imprisonment.

When Covid-19 infections were very low - there were only about 500 cases in the period from April to June 2020 - the Commissioner of Police refused to give the go-ahead for large-scale processions and meetings using Covid-19 as an excuse. The annual ceremony held on June 4 to commemorate the Tiananmen massacre, which is invariably peaceful and well-attended, could not take place because of police objections based on Covid-19.

Elections for the Legislative Council were due to take place in September 2020. Because public sentiment was largely anti-Beijing, it was expected that the pro-democracy candidates would do very well as they had done in local elections in November 2019.

Although the law governing Legislative Council elections made provisions for postponing a general election in the event of a public health emergency for 14 days (section 44(1), (4) Legislative Council Ordinance, Cap. 542), on 31 July 2020 the Chief Executive used a colonial law dating from 1922, the Emergency Regulations Ordinance, Cap. 241, to postpone the election for a year without recourse to the Legislative Council.

There is scepticism about the claimed need to postpone the election on public health grounds. Although infections were at a peak in July 2020 (2166) when the decision to postpone was made, they were declining (1425 in August; 275 in September) and elections went ahead in other countries with worse infection rates. Some lawyers doubt the legality of using emergency legislation enacted at a time when there were no elections at all (1922) when an alternative was to convene the Legislative Council and ask it to amend section 44 of the Legislative Council Ordinance to provide for a longer period to postpone elections, say three months, but make it reviewable at the end of that time in case of a need to further postpone. 

Mina Heung: What has the impact been on operation of the courts in Hong Kong?

Philip Dykes: Covid-19 initially had the effect of closing the courts except for “urgent and essential” applications. The Judiciary organised remote hearings for some civil cases but adjourned other cases generally. After a couple of months, the general adjournment gave way to the resumption of court hearings with public health and social distancing measures being deployed. Access to court rooms is now limited, with about 50% of seating being closed off.

Compared to England & Wales, the Hong Kong Judiciary has escaped lightly. This is largely due to the low infection rates which have meant there has not been a complete lockdown for weeks on end. The Hong Kong Judiciary has not been troubled by the complications that arise from jury trials. Trial by jury occurs only in the High Court but it is reserved for offences where the sentence is fixed by law, e.g. murder punishable with life imprisonment, or the prosecution requires it because it seeks a heavy prison sentence (more than sevrn years) which the lower courts (District Court and Magistrates’ Courts) cannot impose. 

Mina Heung: What has the impact been on access to legal advice?

Philip Dykes SC: Covid-19 has not had much of an effect on access to lawyers for advice. There has not been a general lockdown so solicitors and barristers have been able to meet with clients. Public health measures taken inside prisons and other custodial institutions have not seriously affected legal visits.

Mina Heung: In your view, has the Government been subject to appropriate legal scrutiny?

Philip Dykes SC: At the outset of the Covid-19 epidemic, there was a partial lockdown. Public servants were encouraged to work from home. The work of the Legislative Council was affected because of this as the Council and its committees sometimes did not meet because of public health concerns. 

When the Council was in session, legislators were able to debate Government proposals on how to deal with Covid-19. Some debates concerned the adequacy of limited financial aid given to some employers and ordinary members of the public. Other debates concerned the policy not to close its border with the Mainland entirely.

Before the term of Legislative Council ended on 30 September, the Central Authorities imposed the National Security Law (NSL) on the HKSAR on June 30. In November, the Mainland Standing Committee of the National People’s Congress made a decision concerning the responsibilities of Legislative Council members. The Chief Executive then decreed that four sitting pro-democracy legislators were disqualified from office on the grounds that they had been ‘unpatriotic’ and false to their oaths as lawmakers.

The Chief Executive’s decree bypassed provisions in the Basic Law which dealt with the disqualification of sitting Legislative Council members. The 15 remaining pro-democracy members resigned their positions in a show of protest and unity with their disqualified colleagues. Almost all of the remaining 43 Council members are from pro-Beijing factions. Some of them may wish to be seen to challenge some HKSARG legislative proposals as a show of token scrutiny, but the consensus is that the Legislative Council will not now seriously oppose the will of the HKSARG.

With the double whammy of the above new “laws” in place, and the strict quarantine requirements, Covid-19 seems relatively under control compared to many countries in the world (6,803 cases and 112 deaths as of 6 December 2020).  The new laws have also ended the year of protests over the introduction of the Extradition Bill.