Y on behalf of G (A Minor) v. Superintendent of Tuen Mun Children and Juvenile Home

HCAL 2655/2019

[2019] HKCFI 2300

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2655 OF 2019

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D E C I S I O N

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1.In view of the urgency of this matter, I do not propose to set out in detail the background facts of this case in these brief reasons, save to mention that G was another minor who was arrested by the Police during the clearance operation in the late evening of 29 August 2019 in the vicinity of Sham Shui Po Police Station (“the Police Station”) mentioned in the court’s recent decision given in F on behalf of S (a minor) v Superintendent of Tuen Mun Children and Juvenile Home [2019] HKCFI 2235. As in the case of S, on 31 August 2019, the Magistrate made an order (“the Order”) on his own motion to detain G for a period of 28 days (up to 27 September 2019) in Tuen Mun Children and Juvenile Home (“the Juvenile Home”) under Section 34E of the Protection of Children and Juvenile Ordinance, Cap 213 (“the Ordinance”) pending a social welfare report about G which the Magistrate ordered should be obtained for the purpose of considering the Police’s application for a care and protection order against G under Section 34(2)(d) of the Ordinance.

2.G’s father, Y, has lodged a set of draft papers with the court for the purpose of applying for (i) a writ of habeas corpus in respect of G’s detention, and (ii) leave to apply for judicial review of the Order.  The matter which now requires determination is whether the court should grant interim relief for G’s release from the Juvenile Home pending the court’s consideration of those applications.

3.On the face of the materials before this court, there is, I consider, much stronger evidence that G actually took part in the unlawful assembly which occurred on Yen Chow Street opposite the Police Station in the evening of 29 August 2019, or was at least providing aids to those protesters who took part in the unlawful assembly.  In particular, it is not in dispute that, at the time of her arrest, she was found to be in possession, in her backpack, of a respirator, a surgical mask, bandages, protective guards and muscle pain relief cream.  This is, I believe, a stronger case for the Magistrate to make an interim order under Section 34E of the Ordinance for the protection of G pending further inquiries to be undertaken. Although it was not the function of the Magistrate, in the exercise of the care and protection jurisdiction over children and juveniles, to determine whether G had committed any criminal offence, the question of whether G took part in an unlawful assembly, or was providing aids to the protesters involved in the unlawful assembly, was relevant to his assessment of whether a care and protection order ought to be made under Section 34 of the Ordinance.

4.Nevertheless, Mr William Liu, Senior Assistant Law Officer (Ag) of the Department of Justice, has informed me that both the Secretary for Justice and the Police have no objection to the immediate release of G and an order to that effect being made by this court by way of interim relief.  Indeed, the Secretary for Justice and the Police both consent to the order now sought by Y for G’s immediate release.

5.Mr Liu fairly accepts that the court can, in exceptional circumstances, grant interim relief even before leave to apply for judicial review has been granted, and submitted that there are exceptional circumstances in the present case to justify the court granting interim relief, namely:

(1) A child’s welfare is involved.

(2) The Police did not in fact ask the Magistrate to make an interim order under Section 34E.  The order was made by the Magistrate on his own motion.

(3) As earlier mentioned, both the Secretary for Justice and the Police consent to G being released immediately from the Juvenile Home.

(4) There were some factual errors in the Police’s application to the Magistrate, in particular:

(i) At the time of her arrest, G was not wearing a respirator.  She was in fact wearing a mask but had a respirator in her backpack.  This error was, I understand, clarified before the Magistrate at the hearing.

(ii) G did not have a laser gun in her possession. What she had instead was a small torch.  This matter is clarified by Mr Liu at the hearing today, but the Magistrate did not have this clarification at the hearing on 31 August 2019.

6.I have to say that I have some considerable reservations on whether the materials before the court would justify interim relief being granted prior to the application for leave to apply for judicial review being considered.  For the record, I should mention that Mr Liu has indicated that he would reserve his position on whether leave to apply for judicial review ought to be granted.  I am ultimately persuaded that I should grant interim relief notwithstanding my reservations in the matter, because of (i) the indication on behalf of both the Secretary for Justice and the Police that they consent to G being released immediately, (ii) the importance that G should be able to attend school at the beginning of the academic year, (iii) the fact that G’s mother is a full-time housewife and has stated that she could devote all her attention to care for G, (iv) the favourable letters from G’s teachers and staff of G’s school, and lastly (v) G’s apparent good performance at the Juvenile Home.

7.In all, I make an order in terms of the draft Consent Order handed up by Mr Kwan (as amended).  I do not propose to give any further directions at this stage regarding the proposed applications for a writ of habeas corpus and for leave to apply for judicial review.  I shall leave those matters to counsel to decide how best to proceed with the intended applications, with liberty to apply for further directions if required. Lastly, the costs of today shall be reserved.

Mr Steven Kwan & Ms Charlotte O T Chan, instructed by Cheng & Co, for the Applicant

Mr William Liu, Senior Assistant Law Officer (Ag) & Mr Louie Chan, Government Counsel, of Department of Justice, for the Putative Respondent