吳振權 v. HKSAR

[English translation – 英譯本]

HCAL 2447/2020

[2021] HKCFI 1414

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2447 OF 2020

________________________

________________________

Before:  Hon Chow J in Court

Date of Hearing:  10 May 2021

Date of Handing down of Decision:  21 May 2021

DECISION

INTRODUCTION

1.On 15 December 2020, the Applicant applied for a writ of habeas corpus (“the Application”) in order to challenge an order dated 30 August 2019 (“the Amended Conditional Discharge Order”) for his conditional discharge made under section 42B of the Mental Health Ordinance, Cap 136 (“the Ordinance”).

2.The Amended Conditional Discharge Order requires the applicant to reside at Chun Shek Halfway House (Rooms 301-302, Shek Yuk House, Chun Shek Estate, Shatin, New Territories).

3.On 16 December 2020, the Court directed that the Application be heard on 21 December 2020.

4.On 21 December 2020, the applicant applied for an adjournment of the hearing of the Application on the ground that he wished to apply for legal aid due to the complexity of the matter. The court adjourned the hearing of Application pending the outcome of his application for legal aid and gave further directions for filing of evidence in relation to the Application.

5.On 19 March 2021, the applicant’s application for legal aid was rejected by the Director of Legal Aid. On 30 April 2021, the applicant applied to restore the hearing of the Application. On 3 May 2021, the court directed that the Application be restored for hearing on 10 May 2021.

6.At the hearing on 10 May 2021, the court heard submissions from the applicant (in person), and from Mr Patrick Siu on behalf of the Government of the Hong Kong Special Administrative Region. The applicant also submitted to the court some further documents in support of the Application, which the court has considered.

7.This is the court’s decision on the Application.

Basic facts

8.The basic facts of this case have been stated in the affirmation of Ms Chan Ho Yi (transliteration), who is a social work officer of the Social Welfare Department, and summarised in the respondent’s skeleton submission (dated 7 May 2021), which are set out below.

9.The applicant is aged 54 and single. His parents have passed away. He has an elder brother living in Macau and an elder paternal male cousin in Hong Kong. The applicant used to live alone at Room 2104, Hin Kwai House, Hing Keng Estate, which is a unit purchased by his parents under the Tenants Purchase Scheme.

10.Due to his medical condition, the applicant was admitted in Castle Peak Hospital, Shatin Hospital and Tai Po Hospital in 2015, February 2018 and October 2018 respectively for psychiatric treatment.

11.On 27 December 2018, the applicant’s attending doctor made the first discharge order pursuant to sections 42B(1) and 42B(2) of the Ordinance. According to this first discharge order, the applicant must comply with the following conditions:

(1)  to reside at Room 2104, Hin Kwai House, Hin Keng Estate;

(2)  to receive treatment at the psychiatric unit of Li Ka Shing Specialist Outpatient Clinic, Prince of Wales Hospital;

(3)  to take the medication prescribed by the treating doctors;

(4)  to receive community psychiatric services.

12.Subsequently, the applicant was sent to Tai Po Hospital between 22 March and 2 April 2019 because of his medical condition. On 2 April 2019, his attending doctor made the second discharge order pursuant to the Ordinance. Under the second discharge order, the applicant had to comply with the same conditions as those under the first discharge order.

13.The Medical Social Services Unit (Psychiatric Unit) of Prince of Wales Hospital, Social Welfare Department has followed up the applicant’s rehabilitation plan since they received the attending doctor’s referral in May 2019, including making an application for halfway house for him.

14.The applicant was assigned a place at the Chun Shek Halfway House of the Society of Rehabilitation & Crime Prevention, Hong Kong (SRACP) in July 2019. He signed a declaration on 2 August to indicate that he accepted the place and moved in on 19 August.

15.Since the applicant moved in the halfway house and no long lived at his residence in Hin Keng Estate, his attending doctor amended his discharge order on behalf of the medical superintendent of Prince of Wales Hospital on 30 August 2019, stating that the applicant had to comply with the following conditions:

(1)  to reside at the Chun Shek Halfway House of SRACP;

(2)  to receive treatment at the psychiatric unit of Li Ka Shing Specialist Outpatient Clinic, Prince of Wales Hospital;

(3)  to take the medication prescribed by the treating doctors;

(4)  to be under the supervision of the Director of Social Welfare;

(5)  to receive community psychiatric services.

16.At Chun Shek Halfway House, the applicant shares a room with five fellow inmates. He is assigned a wardrobe to keep his personal belongings, and shares facilities such as dining room, bathroom and toilet with other inmates. According to the social worker of the Chun Shek Halfway House of SRACP, the applicant has a harmonious relationship with other inmates in the halfway house, and he has taken part in programmes organised there, such as music groups and volunteering.

17.The applicant had to comply with the rule about the opening hours of the halfway house, i.e. staying there between 10:00 pm and 7:00 am on the following day, which does not affect his daytime job.

18.In September 2019, the applicant applied to the attending doctor for home leave and was approved. Therefore, the social worker of the halfway house formulated progressive arrangements for him from October 2019 onward. Since 6 February 2020, the applicant has been entitled to home leave of four days per week. At present, he may stay home between Thursday morning and Sunday evening every week.

19.In December 2019, the applicant claimed that he intended to get married with his girlfriend and requested to leave Chun Shek Halfway House. After being refused by the attending doctor, the applicant applied to the Mental Health Review Tribunal (“the Tribunal”) on 15 May 2020 for a review.

20.The Tribunal dealt with the applicant’s application for review on 3 December 2020, and issued a notice of decision on 10 December, indicating that the applicant’s application for review would be adjourned to a later date upon the applicant’s request, and the applicant had to continue to comply with the conditions specified in the discharge order during the adjourned period. As the Social Welfare Department understood, the Tribunal would resume the adjourned hearing on 10 June 2021.

Application for writ of habeas corpus

21.By this application for writ of habeas corpus, the applicant challenges the condition in the Amended Conditional Discharge Order which requires him to reside at the Chun Shek Halfway House, SRACP (“the Live-In Requirement”). Although he has been permitted to take home leave from Thursday morning to Sunday evening every week, the applicant argues that the Live-in Requirement infringes his right to personal liberty, and section 42B of the Ordinance, which empowers the medical superintendent or an assistant medical superintendent of a mental hospital to impose this requirement, is contrary to:

(1)  the Basic Law, in particular Articles 11, 25, 28, 29, 31, 32, 33, 34, 37, 38 and 39;

(2)  the Hong Kong Bill of Rights, in particular Articles 5(1), 8, 11, 13, 14, 15, 19(1) and (2) and 22;

(3)  sections 6(a) and 21 of the Disability Discrimination Ordinance, Cap 487;

(4)  section 2(1) of the Rehabilitation of Offenders Ordinance, Cap 297; and

(5)  “Part I - Patients’ Rights” of the Patients’ Charter.

Discussion

22.According to the well-settled legal principles, the court in dealing with an application for a writ of habeas corpus is only required to consider if the decision of the applicant’s detention is lawful, and not to determine if the decision is reasonable: 謝瑛明對社會福利署署長 [2019] HKCFI 3098, para 12.

23.Accordingly, the question for consideration in the present application is not whether the medical superintendent’s decision to impose the Live-In Requirement is reasonable. The only question that the court must consider is whether the Live-In Requirement is lawful or made with lawful authority.

24.Under section 42B(1) of the Ordinance, where (a) it appears to the medical superintendent that a patient has a medical history of criminal violence or a disposition to commit such violence; but (b) the medical superintendent is of the opinion that the patient may safely be discharged subject to conditions to be specified in an order for discharge, the medical superintendent may, in the exercise of his powers under section 42A, but subject to any restriction on such power imposed by any provision of Part IV, make an order for discharge subject to compliance by the patient discharged with conditions. Section 42B[(2)] further provides that without prejudice to the power of the medical superintendent in the exercise of his powers under subsection (1) to impose certain conditions as he thinks fit on an order for discharge, being conditions reasonable in the circumstances, such conditions may include requiring the conditionally discharged patient to reside at a place specified by the medical superintendent.

25.According to the report compiled on 19 October 2020 by the doctor attending the applicant, the doctor was of the opinion that the applicant had a disposition to commit criminal violence:

(1)  In 2014, the applicant splashed water towards the television set because his mother refused to give him money. He had also hit and struck his neighbour’s door gate.

(2)  In 2015, the applicant dropped objects from height, throwing stone towards a lorry at a carpark, struck his neighbour’s door gate with a hammer, and disturbed a female staff member of an integrated community centre for mental wellness.

(3)  In 2016, the applicant often went to a community centre and caused disturbance there.

(4)  In 2018, the applicant on occasion(s) yelled late at night, was twice charged with theft, and made a fire for barbeque at the entrance to the halfway house at Hin Keng, bringing a knife/knives and a fork/forks with him.

(5)  Afterwards, the applicant refused to take medication for a few times, causing instability to his medical condition.

26.The medical superintendent did have factual basis to make the Amended Conditional Discharge Order under section 42B of the Ordinance. Whether the facts were sufficient to justify an order being made under that section was a matter for the medical superintendent, not the court, to decide. In any event, the applicant has applied for a review of the Amended Conditional Discharge Order by the Tribunal pursuant to section 59B of the Ordinance. The merits of the Amended Conditional Discharge Order ought to be determined by the Tribunal in the review, instead of by the court in an application for a writ of habeas corpus.

27.In so far as the applicant seeks to argue that section 42B of the Ordinance is contrary to the Basic Law and/or the Hong Kong Bill of Rights, it seems to me that the provisions in those instruments, which are most relevant for the purpose of the present discussion would be Article 28 of the Basic Law and Article 5 of the Hong Kong Bill of Rights, both of which protect the liberty of the person. Section 42B of the Ordinance (which empowers the medical superintendent to make an order requiring a discharged mental patient to reside at a specified place) does, prima facie, restrict that person’s personal liberty. However, the right to personal liberty is not absolute, and the lawfulness of a restriction of such right may be justified by applying the four-step proportionality test. In my view, section 42B of the Ordinance can satisfy the four-step proportionality test for the following reasons:

(1)  It pursues the legitimate aim of protection of the discharged mental patient and the public, as well as their properties.

(2)  The impugned measure is rationally connected to that legitimate aim.

(3)  The impugned measure is no more than reasonably necessary to accomplish the legitimate aim, taking into account the fact that (i) an order under section 42B of the Ordinance can only be made by the medical superintendent or an assistant medical superintendent of a mental hospital based on medical grounds; (ii) the conditions which may be imposed under section 42B(2) are flexible and can be tailor-made in light of the particular facts and circumstances of the discharged mental patient in question, and (iii) a discharged mental patient who is subject to an order made under section 42B has the right to seek an independent review of that order under section 59B of the Ordinance.

(4)  A reasonable balance has been struck between the societal benefits arising from the application of section 42B of the Ordinance and the interference with the applicant’s personal liberty.  The Amended Conditional Discharge Order does not result in an unacceptably harsh burden on the applicant, taking into account the fact that he is permitted to take home leave for 4 days per week.

For essentially the same reasons, although the Amended Conditional Discharge Order restricts the applicant’s personal liberty, it also satisfies the four-step proportionality test. It follows that any restriction on the applicant’s personal liberty arising from the Amended Conditional Discharge Order is lawful.

28.Similar considerations apply to the applicant’s challenge to section 42B of the Ordinance or the Amended Conditional Discharge Order based on other provisions of the Basic Law or Hong Kong Bill of Rights.

29.The legality of section 42B of the Ordinance, being primary legislation, cannot be challenged on the ground of inconsistency with the Disability Discrimination Ordinance, the Rehabilitation of Offenders Ordinance or the Patients’ Charter.

30.The applicant has also questioned whether a medical doctor, who is not a judicial officer, has the power to make an order which restricts his personal liberty. However, such power is conferred by section 42B of the Ordinance, which is primary legislation and has the force of law unless its legality can be challenged on constitutional grounds. I do not, however, consider section 42B of the Ordinance to be unconstitutional.

31.In all, I do not consider that there is any valid ground to challenge the legality of the Amended Conditional Discharge Order.

32.In passing, I should mention that Mr Patrick Siu has also raised the point that the proper respondent to the Application ought to be the Hospital Authority or the medical superintendent of the Prince of Wales Hospital, instead of the Government of the HKSAR, because the Amended Conditional Discharge Order was made by or on behalf of the medical superintendent, not the Government or the Social Welfare Department. This is a valid point, because the respondent to an application for a writ of habeas corpus ought to be the person detaining the applicant or who has control of the applicant.

Disposition

33.The Application is dismissed.

34.Mr Patrick Siu, on behalf of the Government, applies for an order of costs against the applicant. Generally, the court should be cautious in exercising its jurisdiction to make a costs order against an applicant for a writ of habeas corpus because of the importance that our law attaches to the personal liberty of a person. The absence of merits of the application is a factor in favour of such order being made, but it is by no means conclusive. In the present case, there is also the consideration that the applicant has made the Application against the wrong party. Nevertheless, the applicant’s arguments in the present case mainly concern the constitutionality of section 42B of the Ordinance, which is a matter more appropriately to be addressed by the Government, instead of by the Hospital Authority or the medical superintendent. Overall, I am not minded to make any costs order against the applicant in the present case. I therefore make an order that there be no order as to the costs of the Application.

The Applicant, unrepresented, acting in person

Mr Patrick Siu, Counsel on fiat, instructed by the Department of Justice, for the Putative Respondent

Translated by the Judgment Translation Unit of the Judiciary and vetted by Ms. Jenny Chung, Solicitor.