Physician heal thyself!

"No responsible person would countenance the lax issuance of exemption certificates."

In recent weeks, the police arrested 39 people over alleged fake Covid exemption certificates. That includes six doctors, seven medical staff and 26 patients. One doctor, who fled overseas, is wanted by the police.

These arrests sparked a series of events, including a judicial review and a change in the law. 

It's interesting to note that among those arrested is 51-year-old Dr Amy Lam Ding-yee, accused of issuing over 1,300 medical exemption certificates fraudulently. She is the daughter of Professor Lam Shiu-kum, the former dean of the Li Ka Shing Faculty of Medicine at the University of Hong Kong between 1995 and 2001.

In 2009, he began 25 months in jail after pleading guilty to misconduct in public office after he funnelled money from patient fees into his private company.

I raise the point because when news of the arrests broke, several leading doctors took to the media to decry the police action. A few struck a tone to suggest that the medical profession is beyond reproach.

​Such arrogance is unhelpful and indicative of the attitude that led to this whole saga. Previous unlawful activity by the medical profession, including such senior figures as Professor Lam, affirms that crime occurs in all sectors. Even High Court judges can transgress. 

A debate soon erupted over the invalidation of 20,000 Covid jab exemption certificates by the Secretary of Health. His decision was subject to judicial review to decide whether he had such powers. 

Kwok Cheuk-kin, the claimant, asserted the doctors remained innocent until proven guilty, which conferred legitimacy on the certificates. Furthermore, he opined that the Secretary of Health had exceeded his powers. Kwok, 'the King of judicial reviews', has brought many such actions. 

Last Friday (21st October), the High Court ruled in favour of Kwok. High Court judge Russell Coleman granted an interim relief order blocking the government's move to invalidate the certificates. 

Instead of appealing the court's decision, the government acted with uncommon speed and amended the law. As a result, the Secretary of Health again invalidated the 20,000 suspect certificates.

A spokesman asserted, "The government has sought legal advice and taken the urgency of the anti-epidemic efforts, the duration of litigation involved in an appeal and the validity period of exemption documents in question into account. This is the most appropriate solution." 

The whole affair throws up issues that may have significant long-term impact. Plus, this saga has become intermingled with various topics, including the aftermath of civil unrest here. 

There is a suggestion that some of those involved were motivated by anti-government sentiment. As such, activists sought to politicise the issue of Covid to further political aims. We know that stories circulating on the Internet spoke of vaccines planting a tracking device in the body gained some traction. This palpable nonsense fed on existing fears. 

At the same time, did the involved doctors exploit the situation by charging excessive fees while failing to conduct proper patient examinations? For example, reports state some patient provided their identity card number to receive an exemption certificate without seeing a doctor or nurse.

One doctor allegedly issued fake exemption certificates charging HK$3000- a time. It's said he cleared around HK$14 million in weeks. If true, this is shocking. But that's a matter for the courts to decide. 

For sure, the government felt compelled to act given the Covid situation and the potential risk to public health. And no responsible person would countenance the lax issuance of exemption certificates.

Moreover, given the notoriously slow pace of our judicial process, the government could be tied up for years after Covid faded. As a former Judge of the Court of Final Appeal, Henry Litton observed courts need to be 'lean and robust' instead of an 'orgy of self-indulgence by the lawyers, acquiesced in by the judge'. Litton identified this behaviour as an issue that needs addressing in his book. 

The tendency of elements of the judiciary to wander off into esoteric legal arguments that have no practical bearing on matters may also have spurred the government to adopt the law amendment route.

Yet, in haste, has the government created grounds for further difficulties? How does the 'rule of law' principle hold up when the officials can change the law to meet a specific immediate goal? As some have pointed out, this move reverses the position to 'rule by law'; not an insignificant difference. 

This point is significant given that Hong Kong emphasises its judiciary's independence as the fulcrum for selling this place as a gateway to China. However, it would be problematic to suggest that judicial independence is sustained if the law changes every time the courts rule against the government. 

It is possible to argue this is a one-off exceptional case with justifiable grounds. But, if that is the government's position, it must enunciate that message fully. 

Also, was the initial law adequately drafted to avoid such challenges? Of course, these are valid questions if the government is to prevent further reversals. 

I don't wish to pre-judge this case, which has yet to go before the courts. Still, had the involved doctors acted with a degree of professionalism and not invited suspicion, we could have avoided this situation. After all, since Covid hit Hong Kong in 2020, thousands of people have obtained legitimate exemption certificates. 

Lastly, the legal process is far from over, and we expect more developments. Kwok is now making noises about seeking a judicial review of the Covid system. Nonetheless, we could face the situation that this law is no longer needed as Covid fades while the judicial process drags on.