Prevention and Control of Disease (Vaccine Pass) Regulation

by Chief Executive in Council

Layout 2

L.N. 14 of 2022

Prevention and Control of Disease (Vaccine Pass) Regulation

Contents

Section

Page

Part 1 Preliminary
1.	Commencement ............................................................................................................................................................................................................................................................................................................	B109
2.	Interpretation ............................................................................................................................................................................................................................................................................................................	B109
Part 2 Vaccine Pass Direction
3.	Secretary may issue vaccine pass direction ............................................................................................................................................................................................................................................................................................................	B115
4.	What can be directed under vaccine pass direction ............................................................................................................................................................................................................................................................................................................	B119
5.	Requirement for persons entering, boarding or remaining on specified premises or specified public transport carriers ............................................................................................................................................................................................................................................................................................................	B123
6.	Secretary may designate certain persons ............................................................................................................................................................................................................................................................................................................	B129
7.	Persons in charge must comply with vaccine pass direction ............................................................................................................................................................................................................................................................................................................	B129
8.	Powers of persons in charge as regards vaccine pass direction ............................................................................................................................................................................................................................................................................................................	B131
9.	Powers to deny entry or boarding etc. by authorized officers and persons in charge ............................................................................................................................................................................................................................................................................................................	B133
10.	Requirements for responsible persons for vulnerable persons ............................................................................................................................................................................................................................................................................................................	B137
Part 3 Enforcement Powers
11.	Authorized officers ............................................................................................................................................................................................................................................................................................................	B141
12.	Power to demand information or assistance ............................................................................................................................................................................................................................................................................................................	B141
13.	Power to demand information for suspected offence ............................................................................................................................................................................................................................................................................................................	B145
14.	Powers to enter and inspect specified premises etc. ............................................................................................................................................................................................................................................................................................................	B147
15.	Power to enter and search premises with warrant ............................................................................................................................................................................................................................................................................................................	B149
16.	Obstruction of authorized officer etc. prohibited ............................................................................................................................................................................................................................................................................................................	B151
Part 4 Miscellaneous
17.	Specified medical exemption certificate ............................................................................................................................................................................................................................................................................................................	B153
18.	Fixed penalty in discharge of liability under section 5(4) ............................................................................................................................................................................................................................................................................................................	B155
19.	Defence ............................................................................................................................................................................................................................................................................................................	B155
20.	Circumstances not constituting reasonable excuse under section 5(2)(k) ............................................................................................................................................................................................................................................................................................................	B155
21.	Director may specify form of documents ............................................................................................................................................................................................................................................................................................................	B157
22.	Expiry ............................................................................................................................................................................................................................................................................................................	B159

Schedule

Fixed Penalty ............................................................................................................................................................................................................................................................................................................

B159

Prevention and Control of Disease (Vaccine Pass) Regulation

(Made by the Chief Executive in Council under section 8 of the Prevention and Control of Disease Ordinance (Cap. 599))

Part 1
Preliminary

1. Commencement

This Regulation comes into operation on 10 February 2022.

2. Interpretation

(1) In this Regulation—

authorized officer (獲授權人員) means an authorized officer appointed under section 11(1);

fixed penalty (定額罰款) means the fixed penalty under section 18(1);

function (職能) includes a power and a duty;

person in charge (掌管人)—

(a) in relation to any specified premises, means the person who is responsible for the management or is in charge or control of the premises; or

(b) in relation to a specified public transport carrier, means—

(i) its owner or charterer; or

(ii) a grantee or holder of a franchise or licence under which the carrier is operated; public transport carrier (公共交通工具) includes—

(a) a public bus, public light bus, private bus, private light bus, school private light bus, taxi, train, light rail vehicle, tramcar, cable car and ferry when in public service; and

(b) any part of a public transport carrier mentioned in paragraph (a);

Secretary (局長) means the Secretary for Food and Health;

specified disease (指明疾病) means the coronavirus disease 2019 (COVID-19), which is specified in item 8A of Schedule 1 to the Ordinance;

specified medical exemption certificate (指明醫學豁免證明書) means a medical certificate that is issued in compliance with section 17;

specified premises (指明處所) means any premises that fall within a category of premises specified in a vaccine pass direction;

specified public transport carrier (指明公共交通工具) means any public transport carrier that falls within a category of public transport carriers specified in a vaccine pass direction;

vaccine (疫苗) has the meaning given by section 2 of the Prevention and Control of Disease (Use of Vaccines) Regulation (Cap. 599 sub. leg. K), and vaccinated and vaccination are to be construed accordingly;

vaccine pass direction (疫苗通行證指示) means a direction issued under section 3(1).

(2) For the purposes of this Regulation, a person who has been administered with a type of vaccine has been vaccinated in the specified manner for the purposes of a vaccine pass direction if all the conditions specified under section 4(1)(a) in that direction in relation to that type of vaccine are met.

Part 2
Vaccine Pass Direction

3. Secretary may issue vaccine pass direction

(1) The Secretary may issue, in relation to any category of premises or public transport carriers, a direction for the purposes of this Regulation if the Secretary, having regard to the factors set out in subsection (2), is satisfied that—

(a) the specified conditions are met under subsection (3) in relation to that category of premises or carriers; and

(b) issuing the direction is necessary for preventing, protecting against, delaying or otherwise controlling the incidence or transmission of the specified disease.

(2) For the purposes of subsection (1), the factors are—

(a) the extent and pattern (whether general or specific) of the spread of the specified disease in Hong Kong or anywhere else in the world;

(b) the uses and effects of vaccination on reducing the health risks of persons contracting the specified disease; and

(c) the need to alleviate the effects of the specified disease on the social or economic activities in Hong Kong.

(3) For the purposes of subsection (1)(a), the specified conditions are met in relation to any category of premises or public transport carriers if—

(a) persons who will be present on any premises or public transport carrier falling within that category will be, or will likely be, exposed to a significant risk of contracting the specified disease, having regard to any relevant factors, including—

(i) the number of persons present on the premises or carrier;

(ii) the distance between persons present on the premises or carrier;

(iii) the duration of presence of persons on the premises or carrier;

(iv) the ventilation of the premises or carrier; and

(v) for premises—the activities to be carried out on the premises;

(b) persons who will be present on any premises or public transport carrier falling within that category will, or will likely, carry a risk of spreading the specified disease if they have contracted the disease or are carriers of the causative agent of the disease, having regard to any relevant factors including those mentioned in paragraph (a); or

(c) persons who will be present on any premises or public transport carrier falling within that category, if contracting the specified disease, will, or will likely, face considerable health risks owing to a personal factor such as age or health condition.

(4) The vaccine pass direction takes effect on a date specified in the direction.

(5) If a vaccine pass direction is issued in relation to any category of premises or public transport carriers—

(a) the Secretary must, as soon as reasonably practicable after issuing the direction, publish a copy of the direction on the website of the Food and Health Bureau; and

(b) if the direction is issued in relation to any category of premises, the person in charge of the specified premises must cause a notice in a form specified in the direction to be displayed in a prominent position at or near every entrance to the premises.

(6) A vaccine pass direction—

(a) must be published in the Gazette; and

(b) is not subsidiary legislation.

(7) The Secretary may revoke a vaccine pass direction if the Secretary, having regard to all the circumstances, is satisfied that revoking the direction serves the public interest of Hong Kong.

(8) A revocation under subsection (7) must be signified and published in a way the Secretary considers appropriate.

4. What can be directed under vaccine pass direction

(1) Without limiting the scope of a vaccine pass direction—

(a) the direction may specify what conditions must be met in relation to a particular type of vaccine before a person who has been administered with that type of vaccine is regarded for the purposes of the direction as having been vaccinated in the specified manner, by reference to any relevant factors, including—

(i) the age of the person;

(ii) the medical condition of the person;

(iii) the type, specification and number of doses of the vaccine; and

(iv) the date and place of the vaccination;

(b) the direction may require a person falling within any category of persons not to—

(i) enter or remain on any specified premises unless the person has been vaccinated in the specified manner; or

(ii) board or remain on any specified public transport carrier unless the person has been vaccinated in the specified manner; and

(c) the direction may require the person in charge of any specified premises or specified public transport carrier to do any or all of the following—

(i) adopt any measures conducive to ensuring that—

(A) any person entering or remaining on the premises has been vaccinated in the specified manner; or

(B) any person boarding or remaining on the carrier has been vaccinated in the specified manner;

(ii) for the purposes of section 5(3), collect the personal particulars, address and means of contact of any person entering, boarding or remaining on the premises or carrier (as the case may be).

(2) A vaccine pass direction may—

(a) impose different requirements on different categories of persons; and

(b) impose different requirements in relation to different specified premises or specified public transport carriers.

5. Requirement for persons entering, boarding or remaining on specified premises or specified public transport carriers

(1) A person must not—

(a) enter or remain on any specified premises unless the person has been vaccinated in the specified manner for the purposes of a vaccine pass direction in relation to the premises; or

(b) board or remain on any specified public transport carrier unless the person has been vaccinated in the specified manner for the purposes of a vaccine pass direction in relation to the carrier.

(2) Subsection (1) does not apply to a person who falls within the description of any of the following paragraphs and meets the condition prescribed in subsection (3)—

(a) the person is under the age specified for the purposes of this paragraph in the relevant vaccine pass direction;

(b) the person holds a specified medical exemption certificate;

(c) the person enters the specified premises only for—

(i) placing an order for takeaway of food or drink, or taking such food or drink, on the premises;

(ii) delivering or picking up an article on the premises; or

(iii) performing necessary repairs on the premises;

(d) the person enters the specified premises only for receiving vaccination or medical treatment, or undergoing a specified test, that is provided on the premises;

(e) the person passes through the specified premises or boards the specified public transport carrier only for receiving vaccination or medical treatment, or undergoing a specified test, that is provided in a place other than the premises or carrier;

(f) the person enters or passes through the specified premises only for receiving essential government service (including any government service that enables compliance with any legal requirement) that is provided on the specified premises or any premises in the same building as the specified premises;

(g) the person enters or passes through the specified premises only for appearing as a party, or a representative of a party, to any proceedings in any court, statutory tribunal or statutory board that are held on the specified premises or any premises in the same building as the specified premises;

(h) the person is designated, or falls within a category of persons designated, under section 6(1);

(i) it is reasonably necessary for the person to enter the specified premises or board the specified public transport carrier in order to avoid any physical harm to the person or any other person inside the premises or carrier;

(j) the person is required by a public officer (who is performing a function of the officer) to enter the specified premises or board the specified public transport carrier;

(k) subject to section 20, the person has lawful authority or reasonable excuse for—

(i) entering or remaining on the specified premises without having been vaccinated in the specified manner; or

(ii) boarding or remaining on the specified public transport carrier without having been vaccinated in the specified manner.

(3) The condition is if a person enters or remains on any specified premises, or boards or remains on any specified public transport carrier, the person has, on the request of the person in charge of the premises or carrier (or the employee or agent of the person in charge), provided the personal particulars, address and means of contact to the person in charge, employee or agent.

(4) A person who contravenes subsection (1) commits an offence and is liable on conviction to a fine at level 3.

(5) In criminal proceedings for an offence under subsection (4)—

(a) the burden of establishing the matter mentioned in subsection (2)(a), (b), (c), (d), (e), (f), (g), (h), (i), (j) or (k) lies on the person; and

(b) the person is taken to have established a matter if—

(i) there is sufficient evidence to raise an issue with respect to that matter; and

(ii) the contrary is not proved by the prosecution beyond reasonable doubt.

(6) In this section—

specified test (指明檢測) has the meaning given by section 2(1) of the Prevention and Control of Disease (Compulsory Testing for Certain Persons) Regulation (Cap. 599 sub. leg. J).

6. Secretary may designate certain persons

(1) The Secretary may, with the Chief Executive’s approval, designate any person or category of persons for the purposes of section 5(2)(h) if the Secretary is satisfied that the designation—

(a) is necessary for governmental operation; or

(b) because of the exceptional circumstances of the case,

otherwise serves the public interest of Hong Kong.

(2) The Secretary may, if considered necessary, attach conditions to a designation.

(3) The Secretary may cancel a designation or vary a condition attached to a designation.

(4) A designation, attachment of conditions, cancellation or variation under this section must be made in writing.

(5) A designation, attachment of conditions, cancellation or variation under this section is not subsidiary legislation.

7. Persons in charge must comply with vaccine pass direction

(1) The person in charge of any specified premises or specified public transport carrier must comply with any requirement made under section 4(1)(c) in a vaccine pass direction in relation to the premises or carrier.

(2) A person who contravenes subsection (1) commits an offence and is liable on conviction to a fine at level 5 and to imprisonment for 6 months.

(3) It is a defence for a person charged with an offence under subsection (2) to establish that at the time of the alleged offence, the person had taken all reasonable steps to secure compliance with subsection (1).

8. Powers of persons in charge as regards vaccine pass direction

(1) The person in charge of any specified premises or specified public transport carrier may, for securing compliance with section 5(1) or 7(1)—

(a) require a person who enters, boards or remains on the premises or carrier (as the case may be) to provide any record, document or information that is necessary for securing compliance with that section; and

(b) inspect and examine such record, document or information.

(2) Subsection (3) applies if a person in charge of any specified premises or specified public transport carrier is required under section 4(1)(c) to scan any QR code that is on or being a vaccination record or a specified medical exemption certificate of any person who—

(a) in relation to any specified premises—enters or remains on the premises; or

(b) in relation to any specified public transport carrier— boards or remains on the carrier.

(3) The person in charge of any specified premises or specified public transport carrier, or the employee or agent of the person in charge, may—

(a) for securing compliance with section 7(1), scan the QR code mentioned in subsection (2) to save the vaccination record or the specified medical exemption certificate on a mobile device by using a mobile application specified by the Secretary; and

(b) on an authorized officer’s request, for the identification and tracing of any person who may have been exposed to the risk of contracting the

specified disease, upload the vaccination record or the specified medical exemption certificate to an information system specified by the officer for storing and retrieving such record or certificate.

(4) Subsections (1) and (3) do not limit any rights of a person in charge of any specified premises or specified public transport carrier under any law or contract.

9. Powers to deny entry or boarding etc. by authorized officers and persons in charge

(1) This section applies if—

(a) a person fails to comply with a requirement made to that person under section 8(1) or contravenes section 5(1); or

(b) a person refuses or neglects to enable a person in charge of any specified premises or specified public transport carrier, or the employee or agent of the person in charge, to do an act under section 8(3).

(2) An authorized officer, the person in charge of any specified premises or specified public transport carrier or the employee or agent of the person in charge may—

(a) if the person mentioned in subsection (1) is entering the premises or boarding the carrier—deny entry to the premises, or boarding to the carrier, to that person; or

(b) if the person mentioned in subsection (1) is present on the premises or on board the carrier—require that person to leave the premises or disembark the carrier.

(3) If a person fails to comply with a requirement made under subsection (2)(b), a police officer may—

(a) remove the person from the premises or carrier; and

(b) use reasonable force in the removal.

(4) Subsection (2) does not limit any rights of a person in charge of any specified premises or specified public transport carrier under any law or contract.

(5) A person is not entitled to a refund of, or to deny the liability to pay, any entrance fee of any specified premises or any transportation fee of any specified public transport carrier only because the person is, under subsection (2)(b) or (3)—

(a) required to leave, or removed, from the premises; or

(b) required to disembark, or removed, from the carrier.

(6) The exercise of a power under subsection (2) by a taxi driver in good faith does not by itself constitute a contravention of regulation 37(a), (b) or (c) of the Road Traffic (Public Service Vehicles) Regulations (Cap. 374 sub. leg. D).

(7) In this section—

entrance fee (入場費), in relation to any specified premises, means any money paid or charged for the entry of a person to the premises;

taxi driver (的士司機) means the driver of a taxi within the meaning of the Road Traffic Ordinance (Cap. 374);

transportation fee (交通費), in relation to any specified public transport carrier, means any money paid or charged for the carriage of a person by the carrier.

10. Requirements for responsible persons for vulnerable persons

(1) A responsible person for a vulnerable person must use the responsible person’s best endeavours to ensure that the vulnerable person complies with section 5(1).

(2) A person who contravenes subsection (1) commits an offence and is liable on conviction to a fine at level 3.

(3) It is a defence for a person charged with an offence under subsection (2) to establish that—

(a) the person had lawful authority or reasonable excuse for contravening subsection (1); or

(b) without limiting paragraph (a), section 5(1) does not apply to the vulnerable person.

(4) In this section—

child (兒童) means a person who is under the age of 12;

mentally incapacitated person (精神上無行為能力的人) means a person who is mentally disordered, or mentally handicapped, within the meaning of the Mental Health Ordinance (Cap. 136);

responsible person (責任人), in relation to a vulnerable person, means—

(a) a father or mother of the person, including an adoptive father, adoptive mother, stepfather or stepmother; or

(b) the following person—

(i) for a child—a person who is assuming guardianship over the child under the Guardianship of Minors Ordinance (Cap. 13); or

(ii) for a mentally incapacitated person—a guardian of the person within the meaning of the Mental Health Ordinance (Cap. 136);

vulnerable person (需照顧者) means—

(a) a child; or

(b) a mentally incapacitated person.

Part 3
Enforcement Powers

11. Authorized officers

(1) The Secretary may, in writing, appoint a public officer to be an authorized officer for the purposes of any provisions of this Regulation.

(2) An authorized officer must, if so required, produce written proof of the officer’s appointment before performing a function under this Regulation.

(3) No personal liability is incurred by an authorized officer or a person acting under the officer’s direction in respect of any thing done or omitted to be done by the officer or person in good faith in the performance or purported performance of a function under this Regulation.

(4) Subsection (3) does not in any way affect any liability of the Government in respect of any thing done or omitted to be done by an authorized officer or a person acting under the officer’s direction.

12. Power to demand information or assistance

(1) An authorized officer may, for performing a function under this Regulation (including the ascertaining of whether or not a requirement is imposed by or under this Regulation on a particular person), require any person (inquired person) to provide any information if—

(a) the officer has reason to believe that the information is within the knowledge, in the possession or under the control of the inquired person; and

(b) it is not reasonably practicable to perform the function if the information is not obtained.

(2) An authorized officer may require a person in charge or occupier of any specified premises or specified public transport carrier to provide the officer with any assistance that the officer reasonably considers necessary to enable the officer to perform a function under this Regulation.

(3) An authorized officer may, for the identification and tracing of any person who may have been exposed to the risk of contracting the specified disease, provide the information obtained under subsection (1) to the Director or any other person as the Director considers necessary.

(4) A person who fails to comply with a requirement made under subsection (1) or (2) commits an offence and is liable on conviction to a fine at level 3.

(5) It is a defence for a person charged with an offence under subsection (4) to establish that—

(a) for a failure to comply with a requirement made under subsection (1)—

(i) the person had reasonable excuse for the failure to comply with the requirement; or

(ii) without limiting subparagraph (i), the information required to be provided was not within the knowledge, in the possession or under the control of the person, and could not reasonably have been ascertained or obtained by the person; or

(b) for a failure to comply with a requirement made under subsection (2)—the person had reasonable excuse for the failure to comply with the requirement.

(6) A person who, in purported compliance with a requirement made under subsection (1), knowingly or recklessly provides any information that is false or misleading in a material particular commits an offence and is liable on conviction to a fine at level 3.

13. Power to demand information for suspected offence

(1) If an authorized officer has reason to believe that a person is committing or has committed an offence under this Regulation, the officer may do any or all of the following—

(a) require the person to—

(i) provide the person’s name, date of birth, address and contact telephone number (if any); and

(ii) produce for inspection the person’s proof of identity;

(b) seize, remove or detain any thing that appears to the officer to be evidence of the offence.

(2) A person who fails to comply with a requirement made under subsection (1)(a) commits an offence and is liable on conviction to a fine at level 3.

(3) It is a defence for a person charged with an offence under subsection (2) to establish that the person had reasonable excuse for the failure to comply with the requirement.

(4) A person who, in purported compliance with a requirement made under subsection (1)(a), knowingly or recklessly provides any information that is false or misleading in a material particular commits an offence and is liable on conviction to a fine at level 3.

(5) In this section—

proof of identity (身分證明文件) has the meaning given by section 17B of the Immigration Ordinance (Cap. 115).

14. Powers to enter and inspect specified premises etc.

(1) An authorized officer may do any or all of the following for ascertaining whether section 5(1) or 7(1) is being or has been complied with—

(a) at any reasonable time as the officer considers necessary—

(i) enter and inspect any specified premises;

(ii) board and inspect any specified public transport carrier; or

(iii) enter and inspect any premises that are designated for any specified public transport carrier to park, berth or stop to pick up or set down passengers;

(b) require the person in charge of any specified premises

or specified public transport carrier—

(i) to produce a book, document or any other article in the person in charge’s possession that relates to the operation or management of the premises or carrier or to any other activity in respect of the premises or carrier; or

(ii) to provide any information in the person in charge’s possession that relates to the operation, management or activity;

(c) inspect, examine and copy any book, document, article or information described in paragraph (b);

(d) conduct any examination and inquiry that the officer considers necessary;

(e) require any person to provide the officer with any assistance or information in the person’s possession that the officer reasonably considers necessary to enable the officer to perform a function under this Regulation.

(2) A person who, in purported compliance with a requirement made under subsection (1)(b)(ii) or (e), knowingly or recklessly provides any information that is false or misleading in a material particular commits an offence and is liable on conviction to a fine at level 3.

15. Power to enter and search premises with warrant

(1) If satisfied by information on oath that there are reasonable grounds for suspecting that there is on any premises any thing that is relevant to ascertaining whether this Regulation has been complied with, a magistrate may issue a search warrant in respect of the premises.

(2) The search warrant may authorize an authorized officer to—

(a) break into and forcibly enter the premises and search the premises;

(b) seize, remove or detain any thing that appears to the officer to be relevant to ascertaining whether this Regulation has been complied with; and

(c) require any person present on the premises to provide the officer with any assistance or information that the officer reasonably considers necessary to enable the officer to perform a function under this Regulation.

16. Obstruction of authorized officer etc. prohibited

(1) A person must not delay, obstruct, hinder or molest an authorized officer who is performing a function under this Regulation.

(2) A person must comply with a requirement made by an authorized officer in the performance of a function under this Regulation.

(3) A person who contravenes subsection (1) or (2) commits an offence and is liable on conviction to a fine at level 3.

(4) It is a defence for a person charged with an offence under subsection (3) to establish that the person had reasonable excuse for contravening subsection (1) or (2).

Part 4
Miscellaneous

17. Specified medical exemption certificate

(1) For the purposes of this Regulation, a medical certificate is a specified medical exemption certificate only if the medical certificate—

(a) contains an opinion from a registered medical practitioner that the person to whom it is issued is clinically assessed to be unsuitable for being vaccinated with whichever type of the specified vaccines;

(b) specifies a period within which the certificate is valid;

(c) shows the date of issue of the certificate;

(d) is in a form specified by the Director; and

(e) if the certificate is in hard copy form, is signed by the registered medical practitioner issuing the certificate.

(2) To avoid doubt, the opinion under subsection (1)(a) must not be confined to any particular type of the specified vaccines.

(3) In this section—

registered medical practitioner (註冊醫生) has the meaning given by section 2(1) of the Medical Registration Ordinance (Cap. 161);

specified vaccines (指明疫苗) means the vaccines that are currently available in Hong Kong and are—

(a) authorized under section 3(1) of the Prevention and Control of Disease (Use of Vaccines) Regulation (Cap. 599 sub. leg. K); or

(b) registered under regulation 36 of the Pharmacy and Poisons Regulations (Cap. 138 sub. leg. A).

18. Fixed penalty in discharge of liability under section 5(4)

(1) If a person commits an offence under section 5(4), the person may, in accordance with the Schedule, discharge liability for the offence by paying a fixed penalty of $5,000.

(2) The Schedule provides for matters relating to the fixed penalty.

(3) The Secretary may, by notice published in the Gazette, specify a person as the Authority for the purposes of the Schedule.

(4) A notice published under subsection (3) is not subsidiary legislation.

19. Defence

A person is taken to have established a matter that needs to be established for a defence under section 7(3), 10(3), 12(5), 13(3) or 16(4) if—

(a) there is sufficient evidence to raise an issue with respect to that matter; and

(b) the contrary is not proved by the prosecution beyond reasonable doubt.

20. Circumstances not constituting reasonable excuse under section 5(2)(k)

For the purposes of section 5(2)(k), a person does not have a reasonable excuse only because—

(a) the person has to enter any specified premises that are the person’s place of work for the purposes of work; or

(b) the person has to board any specified public transport carrier that is the person’s place of work for the purposes of work.

21. Director may specify form of documents

The Director may specify the form of any notice or certificate for the purposes of this Regulation.

22. Expiry

This Regulation expires at midnight on 31 December 2022.

/Schedule