The Principle of Proportionality and the Digitalization of Epidemic Countermeasures in Hong Kong Special Administrative Regions

Abstract This chapter examines how the digitalization of two COVID-19 countermeasures in Hong Kong relates to a formalistic reading and application of the proportionality principle that enabled the use of contact tracing and proximity tracking software applications (apps) to prevent and control infectious diseases. This approach focused on personal data protection and sidestepped concerns about effectiveness and surveillance. Similarly, it legitimized the “vaccine pass” public health intervention amid controversy about whether a “dynamic zero” COVID-19 strategy would be sustainable in the territory. As a general common law requirement, public authorities in Hong Kong Special Administrative Region (SAR) must ensure rational exercise of their discretionary powers. The principle of proportionality as applied in Hong Kong SAR continues to reflect the characteristics accorded to it in the doctrinal jurisprudence of the German administrative courts to assess the relations between rights-based means and particular ends. On this doctrinal basis, the proportionality principle should be understood as limiting the powers of the state and empowering it to advance important sociopolitical values. Whether a state action that limits a specific fundamental freedom is justifiable depends on the hypothetical relationship between the intended infringement and the intended goals. As a descriptive principle, proportionality has not been devised to advance the normative evaluation of state action or the critical assessment of its outcome in the way that optimizing principles like justice do. The formalistic application of the proportionality principle in Hong Kong reflects the traditional deferential disposition of the judiciary toward the actions of the executive.