Fok Chun Wa and Another v. The Hospital Authority and Another
Read the full judgment text of CACV 30/2009 on BabelCite. This Court of Appeal judgment was delivered on 10 May 2010.
1. The cost of medical services provided by public hospitals to Hong Kong residents is heavily subsided. For the purpose of charges at public hospitals, an individual who seeks medical services is classified either as an eligible person (EP) or as a non-eligible person (NEP). Whilst an NEP has access to medical services at public hospitals, he or she is subject to higher charges than those levied upon an EP.
Cites 8 cases
|
CACV 30/2009 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 30 OF 2009 (ON APPEAL FROM HCAL NO. 94 OF 2007) _______________ BETWEEN
_______________ Before: Hon Stock VP, Andrew Cheung J andBharwaney J in Court Dates of Hearing: 2-4 March 2010 Date of Handing Down Judgment: 10 May 2010 _______________ J U D G M E N T _______________ Hon Stock VP: Introduction 1.The cost of medical services provided by public hospitals to Hong Kong residents is heavily subsided. For the purpose of charges at public hospitals, an individual who seeks medical services is classified either as an eligible person (EP) or as a non-eligible person (NEP). Whilst an NEP has access to medical services at public hospitals, he or she is subject to higher charges than those levied upon an EP. 2.Prior to April 2003 those who were not residents of Hong Kong – meaning those who did not hold Hong Kong identity cards (HKID) – but who were spouses of HKID holders were categorized as EPs. But in April 2003, they were re-classified as NEPs, and have remained thus re-classified ever since. Revised charges for NEPs were gazetted. In 2005, a charging package was introduced specifically for obstetric services, by reason of which the charge for NEPs seeking to utilize such services at public hospitals was substantially increased. In 2007, the package was altered, resulting in further significant increases in the charges. The main issues 3.Under challenge in these proceedings is the decision to categorise spouses of HKID holders as NEPs, more particularly to make, and then to maintain, that classification in respect of Mainland women who were and are two-way permit holders waiting for the issue of a one-way permit. 4.At issue is whether the decisions thus challenged are discriminatory; in other words, whether they constitute as between individuals or groups in a similar position a differentiation in treatment which is not reasonably justified. 5.There is a further issue, which is whether in considering a request by the applicants to waive the fees allegedly due, the decision maker, the Hospital Authority, has misdirected itself as to the existence and scope of its discretion and, if so, whether relief should nonetheless be denied. 6.These issues were the subject of judicial review proceedings. Following leave granted by the Court of Appeal, the application was heard by Poon J but was dismissed by him on 17 December 2008. This is an appeal from that decision. The applicants 7.The appellants (applicants) are husband and wife. The first applicant, Mr Fok Chun Wa, is a permanent resident of the Hong Kong Special Administrative Region. He therefore holds a Hong Kong identity card. Because he suffers from a mental disability, his father, Mr Fok Siu Wing, has been appointed as his next friend. 8.In 2005, the first applicant married a resident of the Mainland, Mdm Zeng, who is the second applicant. At all material times she did not hold a Hong Kong identity card but has been in Hong Kong on the strength of a two-way permit. Towards the close of the appeal hearing we were informed by Mr Chang SC, for the applicants, that she has recently been granted a one-way permit. That, however, is irrelevant for the purpose of the issues raised in this appeal which affect her liability to pay the fees levied in respect of her obstetric care and which also affect others who remain in the same position as was she before the issue to her of the one-way permit. 9.A two-way permit is one that is issued by the Mainland authorities to Mainland residents to permit them to visit Hong Kong. The maximum period of stay in Hong Kong which is allowed by such a permit is, in the case of visits to relatives, 90 days. The issue of such a permit does not guarantee entry into Hong Kong; that is a matter for the Hong Kong immigration authorities. That said, a two-way permit holder who is given permission to land in Hong Kong as a visitor will not be permitted to stay for a period longer than that allowed by the two-way permit. 10.It is in these circumstances that the second applicant has stayed in Hong Kong for some years, living with her husband when here, but required periodically to return to the Mainland, coming back to Hong Kong after obtaining fresh two-way permits. 11.In 2007 she fell pregnant. On 21 December 2007 she was admitted to the Princess Margaret Hospital through its accident and emergency department and on 26 December 2007gave birth by Caesarean section to a boy. On 30 December 2007 she discharged herself from the hospital against medical advice. She was presented with charges of $48,000. The outstanding fees including interest, for which she is allegedly liable as a NEP, are now in the region of HK$150,000. The Hospital Authority 12.In 1990, the Hospital Authority (the Authority) was established by the Hospital Authority Ordinance Cap. 113 as a body corporate. Its function is to manage and control public hospitals, to advise the Government of the needs of the public for hospital services and of the resources required to meet those needs; to manage and develop the public hospitals system in ways which are conducive to the use of hospital facilities to the highest possible standard within the resources obtainable; and to ensure accountability to the public for the management and control of that system[1]. 13.The Authority provides primary care through 74 general outpatient clinics, and secondary and tertiary care through inpatient services at 41 public hospitals and 48 specialist outpatient clinics. 14.The evidence placed before the court below is that “the Government has been heavily subsidizing the standard fees and charges for hospital maintenance and outpatient consultation in public hospitals/clinics, which cover a wide range of medical services, procedures and consultations, at an average rate of around 95%.”[2] 15.Furthermore, one of its functions is “to recommend to the Secretary for Food and Health appropriate policies on fees for the use of hospital services by the public, having regard to the principle that no person should be prevented, through lack of means, from obtaining adequate medical treatment.”[3] 16.Section 18 of the Ordinance provides for the determination of fees payable for public hospital services. By virtue of s. 18(6) the Secretary for Food and Health may give directions in writing of a general or specific character to the Authority in relation to the determination of such fees and the Authority is required to comply with such directions. 17.Before the Authority was established, EPs (then called ‘entitled persons’) were defined as:
18.Amongst the third category, namely, ‘other persons approved by [one of the Directors]’, were included spouses of HKID holders even if they were not themselves HKID holders. 19.The same categorisation applied upon and after the establishment of the Authority in 1990, but in 1997 an alteration was made to reflect the change in the exercise of sovereignty: on and after 1 July 1997, the mere fact of UK citizenship no longer entitled a person to be classified as an EP. The 2002 Report 20.In July 2002, the Chief Executive announced that there was an urgent need for the development of a comprehensive population policy for Hong Kong. Pursuant to that announcement, there was established a Task Force on Population Policy the remit of which was to identify significant challenges to Hong Kong arising from its demographic trends and characteristics and to recommend a set of policy initiatives to be explored. 21.The Report issued by the Task Force highlighted the increasing flow of arrivals from the Mainland admitted under the one-way permit scheme – a scheme devised to facilitate family reunion[4] – as well as the pace of population aging. These factors, amongst others, resulted in increases in social security payments and health care expenditure. The Report remarked on the fact that many public services in Hong Kong were heavily subsidised and that “[w]hile some require prospective applicants to meet a residence requirement, others do not. For public healthcare services, the heavily subsidised services are available not only to permanent residents, but also foreign domestic helpers, migrant workers and two-way permit holders who are spouses or children under 11 years of age of Hong Kong Identity Card holders. There is considerable discrepancy in the eligibility for various privileges among residents with different lengths of residence. We need to ensure that there is a rational basis on which our social resources are allocated, in particular against our current austere fiscal situation when available resources are increasingly limited and demand is continuously rising.’[5] 22.The Report made reference to the one-way permit scheme recommending, inter alia:
23.The Report noted that access to social benefits depended upon a residency test – in the case of public housing rental, seven years residence in Hong Kong – whereas no such rule applied to access to public medical services and that users of such services were not even subject to a means test; that the implication for public finances of the increasing expenditure in providing heavily subsidized social services was becoming a matter of concern; that there had to be a rational basis for the allocation of financial resources so as to ensure the long-term sustainability of the public healthcare system and the Report suggested that there was a strong case for applying a uniform seven-year residence rule for access to all heavily subsidized social services, including public health care benefits. It was, however, recognized that immediately to impose a seven-year residence requirement would have too drastic an impact on large numbers resident in Hong Kong but not resident for as long as seven years, for which reason the initial arrangement suggested was one which excluded non-residents but benefitted both permanent and non-permanent residents. Accordingly, a new rule was proposed that would exclude visitors, including two-way permit holders, from benefits. The rationale was that heavily subsidized services should not be diverted to non-residents and visitors at the expense of local residents.[11] The 2003 decision 24.In the event, the Secretary for Health, Welfare and Food directed the Department of Health and the Authority that, as from 1 April 2003, non-Hong Kong residents who were spouses of HKID holders should be charged NEP rates for the use of public medical services and “other persons approved by the Director” was to be redefined so as to exclude such spouses. This exclusion therefore affected female spouses who were in Hong Kong on two-way permits. 25.Revised charges were gazetted. Their effect was that NEPs were to be charged $3,300 per day for inpatient, including but not limited to obstetric, services in public wards of the Authority’s general hospitals. This sum was set on the basis of the general average cost of providing inpatient services to a patient per day at an Authority hospital but was a sum which was significantly lower than the average cost of providing obstetric services. 2004 26.The evidence filed for the purposes of these proceedings is to the effect that in 2004 there was a significant increase in the number of patients from the Mainland, not resident in Hong Kong, attending public hospitals here. NEP patients were predominantly female and a significant proportion of those females presented themselves for obstetric services. In a paper presented in December 2004 to the Legislative Council Panel on Health Services (‘the Panel’), the Health, Welfare and Food Bureau said that around 70% of NEP mothers who gave birth in public hospitals did not receive any antenatal care in Hong Kong. In order to minimise the hospital fees payable, an increasing number of Mainland NEP women presented themselves at public hospitals after midnight and, against medical advice, discharged themselves within 24 hours of delivery of the child. This placed the health of mother and child in jeopardy, increased the workload for night shift staff, thereby diverting limited resources to the care of non-residents at the expense of local residents, and meant that the charging mechanism did not in fact cover the cost of the obstetric services provided. 27.Whilst the same paper stated that an increasing number of NEP women who presented themselves to give birth at public hospitals were women whose husbands were not Hong Kong residents, the figures given illustrate that both in 2004 and before that, at least three-quarters of the Mainland women giving birth in Hong Kong at such hospitals were wives of Hong Kong resident husbands.[12] There was a high default rate amongst NEPs in respect of payment of fees. 28.A number of solutions were canvassed in the paper. One of the alternatives put forward was to cease providing non-emergency medical services to NEPs who were not spouses or children of holders of HKID cards. The exclusion from this proposal of spouses and children of HKID holders was put on the basis that most were eligible for a one-way permit to settle in Hong Kong and would become Hong Kong residents in the near future. The paper pointed out that on the strength of multiple visit endorsements whilst waiting their turn for a one-way permit, visiting spouses were able to stay in Hong Kong “virtually year-round” and “providing medical services to those who would like to receive such services in Hong Kong would cause less distress to their family members resident in Hong Kong, e.g. the father in the family would not be required to stay home to look after the children whenever the mother has to return to the Mainland to seek medical treatment, hence is in a better position to join the workforce.” The Panel recommended the establishment of a working group “to address and solve expeditiously the problems brought about by non-Hong Kong residents coming to Hong Kong for child birth.” 29.What then happened was that the Bureau made a proposal for the establishment of an “obstetric package” whereby a NEP giving birth in a public hospital would be charged $20,000, a sum intended to cover the cost of delivery and a three day – two night hospital stay. The object was to curb the unhealthy and dangerous behaviour to which I have already referred, to deter the use of public medical services by NEPs, and to recover cost. The existing charges were well below the level of charges by private hospitals for obstetric services; the increasing number of Mainland women using such facilities was placing a strain on manpower; and there was a desire to ensure that local (resident) mothers were adequately served at public hospitals. The 2005 decision 30.The proposed package was discussed by the Panel in May 2005. The paper presented to the Panel by the Bureau suggested that “heavily subsidized medical services should not be diverted to non-residents and visitors at the expense of local residents” and that the introduction of a minimum package charge “would remove the financial incentive for NEP mothers to cut short their length of hospital stay deliberately.”[13] The paper did not canvass a distinction between two-way permit holders simpliciter, and two-way permit holders who were spouses of Hong Kong resident husbands and who, in addition, were awaiting a one-way permit. 31.In July 2005, the Secretary for Health Welfare and Food directed the Authority to introduce the new obstetric package as from 1 September 2005. 2006 32.In the first ten months or so of 2006, there was a decrease in the number of NEPs giving birth at public hospitals but the number remained higher than in the financial years 2002-03 and 2003-04; the ratio of EP births to NEP births was decreasing; about 80% of NEP mothers presented themselves without having had proper antenatal care so that there were increased problems in labour, and the charges for obstetric services at public hospitals continued to be more attractive than those at private hospitals. 33.However, the trend of the first ten months of 2006 was not maintained. In October 2006, there was an increase of 9% in births to NEP mothers compared with October 2005 and the figure was 28% higher than that of September 2006. It was predicted that there would be an increase in the birth rate the following year, due to the “Golden Pig Year” effect. Also, there were reports of many complaints from expectant EP mothers who said that they were receiving a lower standard of care as a result of the overloading of public hospitals by NEP mothers. 34.In a paper prepared for discussion by the Authority in December 2006, it was noted that the forecasted increase in the birth rate, both from local and Mainland women, was inevitably going to augment the pressure on obstetric services, including, in particular, on neo-natal intensive care services since all babies requiring intensive care are required, in Hong Kong, to be referred to Authority hospitals. There was a need, so the paper recorded, to guarantee such services to local mothers but that capacity was strained; wards were already congested in obstetric units; and there was a shortage of midwife and neo-natal intensive care nurses.[14] The paper canvassed a number of possible measures, including an enhanced ante-natal booking system by which priority booking would be accorded to Hong Kong mothers, meaning mothers who were Hong Kong residents. In relation to fees, the paper said:
The 2007 decision 35.A revised obstetric package was gazetted on 22 January 2007. It replaced the scheme for NEPs as follows:
36.One of the objectives was to divert NEP expectant mothers to private hospitals or to the use of the Authority’s private services. The level of fees was set having regard to obstetric service charges levied by two private hospitals known to have a high number of patients in the NEP category and to the charges of the Authority for its private services. 37.The rationale for the approach was summarized by the Principal Assistant Secretary for Health, Welfare and Food at a meeting of the Panel on 30 April 2007 as follows:
38.The scheme also embraced a difference between the charges for newborn babies of EP status and those of NEP status but the charges were and remain determined by the status of the newborn child and not by the status of the child's mother. For newborn EPs, no maintenance fee is charged for their stay in the nursery ward before their mothers are discharged but if the baby cannot be discharged as the same time as the mother, a charge will be levied at half the maintenance fee appropriate to the type of bed occupied. For newborn babies with NEP status who receive healthcare at a public hospital, the charge is the full maintenance fee from the date of birth. Newborn babies eligible for the right of abode are categorised as EPs regardless of the status of the mother. 39.In conjunction with the new fee system, there was introduced, as from 1 February 2007, a central booking system for obstetric services by which all pregnant women, whether resident in Hong Kong or on the Mainland, were required to make prior arrangements with hospitals in respect of ante-natal examination and delivery. It was decided that the Hospital Authority would reserve sufficient places for Hong Kong resident pregnant women to ensure priority over NEPs. If extra places were available, the Authority would accept bookings from Mainland women but once service capacity was reached, the Authority would stop accepting their bookings. The fee for those with bookings had to be paid in full at the time of the booking and the Authority would issue a certificate to NEPs who had booked and paid. An arrangement was made with private hospitals which offered obstetric services that they too would issue booking confirmation certificates for those who had booked and paid. 40.This booking system was supported by immigration measures by which the Immigration Department was to conduct specific clearance checks upon all non-resident pregnant women who were at an advanced stage of pregnancy, meaning those who had been pregnant for 28 weeks or more. Mainland women suspected of seeking to enter Hong Kong to give birth were to be asked by immigration officers upon entry to produce booking confirmation certificates issued by Hong Kong hospitals, failing which they might be denied entry. This booking system and the supporting immigration measures were the subject of a press release on 16 January 2007. The figures 41.The following table was produced in the Court below to illustrate the number of births in public hospitals in the years 2002 to 2007 inclusive. : Number of births in Public Hospitals
42.The table was produced to show:
43.What the figures do not show is how many of those admitted for these obstetric services, who were wives of Hong Kong resident husbands, were women waiting for one-way permits. The evidence is that the Authority did not and does not have the statistics of how many NEP women applied for and were waiting for a one-way permit.[16] 44.We were invited as well to consider the figures in the context of the Authority’s capacity to absorb Mainland pregnant women for obstetric services. The evidence in this regard is limited. The number of deliveries in public hospitals in 2006 (40,063) is said to have exceeded the delivery capacity of the Authority in that year. To seek to cope with the figures shown by 2006 deliveries, capacity was increased for the year 2007 to 41,477. Whilst this exceeded the actual number of births, the evidence is that there was a concomitant scaling down of non-urgent gynaecological work; a move of overflow gynaecological patients to other wards; the use of non-obstetric ward facilities for ante-natal and post-natal care; the diversion of resources from other non-obstetric services which in turn affected the level of such services to Hong Kong residents who required them; and a requirement for staff to take leave before and after peak birth months to ensure optimal strength of staff during those months.[17] 45.In April 2007, a further meeting was held by the Panel, for which purpose another discussion paper was produced by the Bureau. It was noted in that paper that the number of non-booked obstetric cases by NEPs in public hospitals had significantly dropped: “In the nine weeks since 1 February, a total of 371 non-local pregnant women sought emergency hospital admission through A&EDs, which was 75.5% lower on average than the same period in 2006 and 67% lower than January 2007.”[18] The point was made that the new obstetric service arrangements had been effective in establishing a control mechanism in that “the total number of births by non-local women in Hong Kong was… about 4.1% lower than the same period in 2006 and 28% lower than January 2007. More importantly, the booking systems coupled with the immigration control measures are giving hospitals the necessary means to control the total number of their obstetric patients to a capacity that they can support. In the nine weeks since 1 February, public hospitals and private hospitals handled 5,952 and 4,547 deliveries (i.e. total by local and non-local women) respectively.”[19] 46.The paper went on specifically to address the question of NEPs whose spouses were Hong Kong residents. This had been the subject of considerable agitation by members of the Panel and by representatives of various non-governmental organizations. The justification for the failure to distinguish between NEPs who did not have Hong Kong resident husbands and those who did was that the Hong Kong public hospital system was established primarily for the benefit of Hong Kong residents. The paper then stated:
The notice of application 47.What is challenged by the notice of application for leave to apply for judicial review, as amended on several occasions, is:
48.The relief sought is a declaration that the three decisions (2003; 2005 and 2007) and their underlying policy contravene certain articles of the Basic Law and of the Hong Kong Bill of Rights Ordinance, and an order to bring up and quash those decisions. The constitutional challenge 49.The primary basis of the challenge is that the measures are discriminatory in that, so it is argued:
50.This alleged discriminatory treatment is said to infringe a number of provisions of the Basic Law and of the Hong Kong Bill of Rights Ordinance:
51.The illogicality of the differentiation is manifest, says Mr Chang SC for the applicants, when one appreciates that those in the A2 group are ordinarily resident in Hong Kong, yet have been treated in the same manner as those who are not and whose only connection with Hong Kong is their intent on using obstetric services here whilst on temporary visits. The scheme, he says, is one which casts a stigma upon those within the A2 group, and upon their families, treating them as undeserving, when in truth all that separates their family and their residential conditions from those categorized as Hong Kong residents is the tenure in the latter group by one family member, the mother-to-be, of an identity card, an artificial difference for those awaiting a one-way permit. Moreover, he argues, it is not the new fees which has caused the drop in the numbers admitted to the accident and emergency units but rather the immigration policy which precludes from entry those without booking papers. The Ordinance 52.I have referred earlier to some of the functions of the Authority as prescribed by the Ordinance.[21] It is now convenient to refer to the Ordinance in further detail. 53.By section 4 of the Ordinance the Authority is required to:
54.Section 5 of the Ordinance prescribes the powers of the Authority, amongst which is the power to “establish and maintain such hospital services as the Authority considers necessary or desirable for the purposes of this Ordinance”[22], and “ subject to section 18, charge fees for the provision of hospital services.”[23] 55.Section 7 provides that the resources of the Authority shall consist of all money paid by the Government to the Authority and appropriated for that purpose by the Legislative Council or otherwise provided to the Authority by the Government as well as “all other money and property…received by the Authority.” The Secretary for Financial Services and the Treasury may give directions in writing to the Authority in relation the amount of money which may be expended in any financial year. 56.Section 18 provides as follows:
The judgment 57.In the court below, the applicants failed at the first hurdle on the discrimination ground in that the judge held that the case of the applicants was not sufficiently similar to those presently classified as EPs to trigger the equality provisions of the Basic Law and of the Bill of Rights. The cardinal difference, he found, was the fact that the second applicant was but a visitor to Hong Kong whereas those categorized as EPs were not. He held that ‘the position of the 2nd applicant, as a visitor, is materially different from that of an EP – a Hong Kong resident’.[24] Insofar as it was the applicants’ case that the true analogy was not just the individual applicant for obstetric services but rather the family, the judge answered by saying that the resident family was not the true analogue: the true analogue was the individual who sought the service. That said, the judge held that, in any event, the reasons proffered by the respondents for such differentiation as resulted satisfied the test in law for their justification thereby defeating the allegation of discrimination. Residence 58.There is one argument that requires disposal at the outset, for it muddies the waters. It is to the effect that the policy that motivated the impugned decisions erred in treating possession of a Hong Kong identity card as the sole criterion for determining who was in law a Hong Kong resident. The suggestion is that the second applicant was ordinarily resident in Hong Kong and that by reason of art. 24 of the Basic Law, she – and others in the A2 group – are to be regarded as residents. Whether this argument goes to the decision-making process or to the constitutional issue of discrimination is not clear but that matters not because in my judgment the argument is misconceived. 59.Art. 24 of the Basic Law states as follows :
60.The applicants would place emphasis on the word ‘include’ in art. 24(1) which is said to carry the implication that there are those other than permanent and non-permanent residents who are in law residents of Hong Kong. 61.So important is the question of qualification for the status of resident of the Region on and after 1 July 1997, that one can rest safe in the assumption that those who framed the Basic Law would not have left the issue to the loose interpretation which we are invited to place upon art. 24. 62.Two categories of resident are mentioned: permanent residents and non-permanent residents. As matter of common parlance, it is difficult to think of a third category. That means that we need to ascertain who, by reason of the provisions of the art. 24, are permanent residents and who are non-permanent residents. Clearly the second applicant is not a permanent resident. It is not suggested that she has ordinarily resided in the Region for the requisite period there stipulated; though in any event I would find it difficult to uphold an argument that any person permitted to remain as a visitor for only 90 days at a time could acquire the status of ordinary resident. 63.Was she then a non-permanent resident? That depends upon whether she was at the material times ‘qualified to obtain [a Hong Kong identity card] in accordance with the laws of the Region,’ for which we must look to the Registration of Persons Ordinance, Cap. 177, and regulations made thereunder. 64.Section 3 of that Ordinance requires every person in Hong Kong to be registered under the Ordinance unless exempted by regulations made under section 7 of the Ordinance. A person not exempted must apply for an identity card[25]. But a person who has been granted permission to remain in Hong Kong by the Director of Immigration for not more than 180 days and is in possession of a valid travel document bearing an appropriate visa or in possession of an identity document showing that he or she normally lives outside Hong Kong is an exempt person. A sensible reading of these provisions illustrates that a person in the second applicant’s position was not qualified to obtain an identity card. No doubt in recognition of that fact, she did not apply for one. Indeed the evidence filed on her behalf described her as a resident of the Mainland. 65.The word ‘include’ in art. 24 is to be read contextually and a purposive interpretation of it in context dictates a restrictive rather than an expansive meaning:
per Lord Watson in Dilworth v Commissioner of Stamps.[26] 66.I am satisfied that in the context of art. 24 ‘permanent residents and non-permanent residents’, as those terms are defined in the remainder of that provision, represent exhaustively the categories of residents of the Hong Kong Special Administrative Region and that the second applicant was, at all material times, neither a permanent nor a non-permanent resident. Article 145 67.Art. 145 does not confer a right to social welfare. Rather, it imposes an obligation upon the Government of the Hong Kong Special Administrative Region to develop and improve the social welfare system on the basis of that which previously existed but, obviously, only insofar as economic conditions allow. But as Andrew Cheung J said in his judgment in Kong Yun Ming v Director of Social Welfare[27] a policy formulated under art. 145 must not ignore constitutional rights; so that, to take the example he gave, it would not be lawful to promulgate a policy which results in unequal treatment amongst residents of the Region that could not be justified. Article 36 68.Neither does art. 36 of the Basic Law of itself assist the applicants’ case, for although it confers upon residents a right to social welfare, that is not an absolute right: it is, for the reasons provided by Andrew Cheung J in the same judgment, Kong Yun Ming[28], reasons with which I respectfully agree, a right that may be restricted, as long as the restrictions are themselves lawful. Article 41 69.Art. 41 provides that persons in the Special Administrative Region other than Hong Kong residents shall, in accordance with law, enjoy the rights and freedoms of Hong Kong residents prescribed in Chapter III, the section on fundamental rights and duties of residents. 70.The range of rights within Chapter III is broad and the degree to which rights of non-residents in Hong Kong at any given time may lawfully be circumscribed so as to differ from those enjoyed by residents must depend upon the context. So, for example, it is not possible to envisage circumstances in which it would be lawful to deprive a non-resident of the freedom from arbitrary detention or imprisonment. On the other hand, it would be a non-purposive construction that supposed that art. 41 intended that non-residents be accorded all the same privileges and benefits as residents, unqualified by considerations of residence status, or other connection with Hong Kong, and regardless of the impact of according such privileges and benefits on Hong Kong residents, benefits such as the freedom of occupation (art. 33) or the right to social welfare (art. 36). A point to the same effect has been made in the United States, albeit within its own constitutional and statutory framework:
Discrimination 71.There is in constitutional challenges a developing tendency to adopt a shot-gun approach by which every provision in the Basic Law, the ICCPR, and the Bill of Rights that might remotely be said to touch upon the subject matter at hand is thrown into the pot by the pleader even though only one or two clearly identifiable foundations for the argument readily present themselves. This is an addictive tendency which makes life more difficult for the Court and which ought to be resisted. 72.What this particular case comes down to, as far as it addresses constitutionality of the impugned decisions and the policy behind them, is the issue of discrimination, and the appropriate umbrella for that issue is art. 25 of the Basic Law, and art. 26 of the ICCPR (reflected in art. 22 of the Bill of Rights) to which constitutional effect is given by art. 39 of the Basic Law. 73.The term ‘discrimination’ as used in the ICCPR:
But such distinctions, exclusions, restrictions or preferences will not constitute discrimination unless:
74.It follows that differentiation in treatment does not necessarily constitute discrimination.[33] If the differential treatment is attached to circumstances or situations which are not comparable, the issue does not arise, for discrimination entails a failure to treat like cases alike[34]. The approach is “not to look for identity of position between different cases, but to ask whether the applicant and the people who are treated differently are in ‘analogous situations’ ”[35]. Even if the circumstances are comparable, the differential treatment will not constitute discrimination, as contemplated by the ICCPR and therefore by the Basic Law, if the difference in treatment is justified, the burden of showing which is on the Government. The weight of that burden will depend on the ground of differentiation: where the ground offends one’s notion of the respect due to the individual such as a ground based on race, gender, religion, or adherence to a political view, scrutiny by the court will be particularly keen, for such grounds are seldom if ever acceptable[36]; where, on the other hand, the ground is not based upon considerations that offend fundamental notions of dignity of the individual but rather on considerations of the general public interest, the margin of appreciation accorded to the legislature or other decision-maker is greater. 75.The approach thus summarized was explained in Secretary for Justice v Yau Yuk Lung[37] :
76.The two stage approach –are the cases alike and, if so, is the differential treatment justified – is technically the correct one but in practice the stages often overlap and the questions resolve themselves by addressing the single issue of justification. 77.In this particular case, the judge found against the applicants at the first suggested hurdle on the basis, he said, that the situation of the second applicant was not comparable with that of Hong Kong resident women. In that regard I think he erred, because he used the justification advanced to render the situations unlike each other. I am of the opinion that the comparators were in clearly analogous situations. The second applicant, as well as any woman in the EP group, bore children of Hong Kong resident fathers, children who upon birth would become Hong Kong residents themselves, where the woman and child were part of a family unit whose centre of life was Hong Kong and where each woman had a substantial de facto residential connection with Hong Kong. That seems to me to suffice to pass the first hurdle, a conclusion with which neither respondent takes issue. 78.It is clear also that this case falls within the second category of case referred to by Lord Hoffman in Carson, namely, a case which concerns general social policy. The basis for the differentiation is not here a ground which, as Andrew Cheung J described it in Kong Yun Ming, is intrinsic to the individual, such as race or gender or sexual orientation or religion[38] but depends upon residential qualification, which carries with it all the hallmarks of a ground founded on social and economic policy. That being so, the level of scrutiny is one that recognises that in such questions, the legislature and the policy branch are better equipped than are the courts to glean and to assess the range of competing considerations. In such circumstances, the different function of court and policy-maker is highlighted: the policy-maker makes policy, the court decides legality; and in so deciding the court does not determine which policy it would prefer and where it would draw the line – a question essentially one of judgment for the policy-maker and the legislature – but whether the policy adopted falls within a permissible range, by which I mean a range that is rationally justifiable. 79.In recognizing the parameters of its legitimate function and of its expertise, the court will bear in mind:
The constitutional point: analysis 80.Much was said by Mr Chang to the effect that the reasons put forward by the respondents for the impugned decisions smacked of ex post facto rationalization. Lord Pannick, in response, argued that when the Court addresses the question of discrimination, it is to the material placed before the Court, rather than the reasons advanced at the time of the decisions, to which it must look, for the question is whether rights have in fact been infringed and not whether the decision making process was defective: see R(SB) v Governors of Denbigh High School[41]; and Belfast City Council v Miss Behavin’ Ltd[42]. 81.I do not think that Lord Pannick’s answer necessarily resolves the point made by Mr Chang, for if Mr Chang is suggesting that the justification now provided is an afterthought in the sense that the justification advanced is a fabrication, then that suggestion is relevant to the constitutional challenge for, absent justification, the policy is, in relation to those in the A2 group, discriminatory. It is however difficult for Mr Chang to advance this argument for there was in the court below no application to cross-examine the respondents’ deponents and one cannot possibly say that any of the respondents’ affirmations or affidavits is improbable on its face. 82.The characteristic that enables women to be favoured as EPs by the respondents’ policy on the provision of obstetric services is that they are holders of Hong Kong identity cards, which in turn results from the fact that they are resident in Hong Kong, as that status is defined by art. 24 of the Basic Law. Women who do not benefit from the policy and are classified as NEPs fall into four groups:
83.It seems to me that no-one can reasonably suggest that those in the first group have any arguable basis for asserting unjustified exclusion from the benefits conferred by EP status. 84.The second and third groups are distinguished only by the place whence they hail. The second group, to which the second applicant does not belong, would embrace women other than Mainland women, who live abroad but whose husbands are HKID card holders. The third group are Mainland residents. 85.It is the fourth group (the A2 group) upon which the argument by Mr Chang has concentrated, for it is the group to which the second applicant belongs and which has the closest ties with Hong Kong, since not only are women in that group married to men who lawfully reside here but they are women who have an expectation, normally, of securing permission to live in Hong Kong permanently. 86.Mr Chang also pointed out that non-Mainland spouses of HKID card holders enjoy an advantage over their Mainland counterparts in that the overseas non-Mainland spouse who joins her husband to reside in Hong Kong may do so without first seeking and obtaining a one-way permit. The point, though, is one made in passing and the case is not pursued on the basis of an alleged discrimination between Mainland and overseas non-Mainland women. 87.What distinguishes the second applicant from women who are classified as EPs is her status as a non-resident. The suggestion that by reason of art. 24 of the Basic Law, the second applicant is, and has at all material times been, a lawful resident of Hong Kong is, for reasons I have provided, not tenable. It follows that her immigration status has at all relevant times been that of a visitor, regularly constrained by limits of stay to not more than 90 days per visit and, by reason of reg. 2(1) of the Immigration Regulations Cap. 115A, automatically subject to conditions of stay not to take any employment, not to establish a business, and not to enrol as a student at any educational institution. 88.There is much in Mr Chang’s submissions, and in the facts upon which they are based, with which most objective observers would sympathise. It is to be noted that a child born on the Mainland who by reason of decent is entitled to the right of abode in Hong Kong may not enter Hong Kong without first securing exit approval from the Mainland authorities and a one-way permit[43]. It follows that but for the fact that the fees payable by those in the A2 group may compel the child’s A2 group mother to go to the Mainland for the birth, that child would escape the one-way permit hurdle and would be enabled to reside in Hong Kong from the time of birth. In this way the policy may be said impact upon family unity. It is in any event difficult to feel at ease with some of the phraseology deployed in the evidence in respect of the A2 group; for example, the contention that heavily subsidized services ‘should not be diverted to non-residents and visitors at the expense of local residents’. The discomfort arises when one places oneself in the shoes of the second applicant and her husband who, as a pair, feel slighted by the implication that they are less deserving than local residents, for they no doubt consider themselves, as a matter of reality and as a family, to be local residents. One can understand as well the grievance which the first applicant, the husband, almost certainly nurtures at the notion that the scheme effectively told him that if he was to avoid charges which he could not afford, he had to send his wife to the Mainland to give birth to their child. To say that the birth of a child is a highlight of any family’s history, an experience that should be unifying and joyful, is to state the obvious, yet those in the applicants’ position will assess what was placed in their path by the 2007 policy as a denial of that experience on the basis of what they see to be an artificial nicety. 89.All that said, if the aim of the policy at the three stages (2003, 2005 and 2007) was legitimate and the means used to achieve that aim was rationally connected to the aim, the line had to be drawn somewhere and the question that would then remain is whether this Court is in a position to say that the line was drawn at a self-evidently unreasonable point. 90.The aim of the policy at each of the three stages was, in my judgment, legitimate. The Authority has a statutory duty to provide as high a standard of health care to the residents of Hong Kong as it is able within the resources available to it. Those resources are finite. The resources are intended to be utilized for a variety of health services, only one of which is obstetric care. A balance must be struck in the allocation of the resources available. If the demands upon obstetric services are such that meeting them unacceptably threatens to affect the quality of care provided for other categories of health service, it becomes logical to trim the demands, if that can reasonably be done. Similarly, if the nature of the demands upon obstetric services takes a form which endangers patients or the unborn or newly-born child, it becomes logical to address the cause of the problem. 91.The history behind the policies towards obstetric services has been rehearsed in this judgment in some detail precisely in order to illustrate the complexity of the problems faced by the respondents. The problems were manifold: unhealthy and dangerous practices; increasing pressure on resources available for obstetric services; a strain on capacity; the threat of having to divert resources needed for other types of medical care; and a threat to the quality of available obstetric care in public hospitals. The aim of the impugned measures was to tackle these problems and it seems to me self-evident that the measures adopted were rationally connected to those aims. 92.Did they go further than reasonably necessary? This is a judgment call and the more the argument before us descended into the fine detail of what measures might have been taken instead, the more it seemed to me that this Court was being asked to play the role of policy-maker, to guess what impact one course might have had rather than another, and to approach the case as if it were a merits-based appeal. 93.The line drawn, that of lawful residence, is not an unusual line to draw when it comes to social policy and to the conferring of publicly subsidized benefits. We see from the cases in this and other jurisdictions how often that is the line which is drawn and we see from this jurisdiction itself that with other benefits such as housing benefits, the residence bar is set even higher than in the case of the policy now impugned; and that there are other benefits to which those in A2’s group are not entitled, benefits which carry economic advantages, such as the right to engage in work. The choice of a residence bar is not illogical. It may work harshly in individual cases but that fact does not render the policy illegitimate or unjustified. It is an acceptable test or line because those who provide public funds are themselves residents, because public funds are intended to be used for the benefit of residents, and because those with the closest connection to Hong Kong and who have settled in and have themselves contributed to the community, are fairly seen as having a claim ahead of those who have not yet settled here, even if they intend to do so. 94.I accept that, in the present context, that is to isolate the second applicant from her family members who are settled here and that the benefits of which we speak, if accorded to her, would assist not only herself but also those members of her family who in reality foot the cost of her care if she chooses to give birth in Hong Kong, and who have established themselves in this community. 95.The point was made – indeed argument on the applicants’ behalf eventually focused on the point as crucial – that the line has been finely drawn, excluding from affordable obstetric services those in A2’s group whose ties to Hong Kong are effectively as strong, it is said, as that of women who are themselves HKID card holders, the only difference being that those in the A2 group have not yet been granted the one-way permit even though it has been applied for. In support of this argument, emphasis wasplaced on the suggestion that neither respondent had ascertained the numbers within that category; so how, it was asked, could it be said that their exclusion from the EP group went no further than was reasonably necessary? 96.There is an obvious advantage both to the administrators of a policy once formulated, and to those who are affected by the policy, in clarity and certainty. To draw the line at the holding of a HKID card carries that distinct advantage. In relation to a line drawn at a particular age, it was argued in Carson that the line drawn in that instance (a lower benefit for someone aged under 25 years than aged 25 years or above) was arbitrary and that there could be no relevant difference between a person the day before and the day after his birthday, as to which Lord Hoffman said:
97.To draw the line, as has been suggested, so that those who have applied for a one-way permit are categorised as EPs would be no less certain in terms of ascertaining who has and who has not applied, but it takes little imagination to see the uncertainty that would attend the consequences of such a policy. Applications would inevitably increase and include those who are not entitled to a permit as well as those who had no intention of settling in Hong Kong in the event of its grant. It is to be remembered that that the majority of NEP births in Hong Kong public hospitals since 2002 have been of babies whose fathers are Hong Kong permanent residents, that that proportion dropped dramatically in 2007 and that the evidence discloses an assessment that marriages between Mainland women and Hong Kong residents is likely to become more prevalent as time passes. 98.The policy impugned is one that is said to ignore the impact on family unity and we were taken to a passage in the minutes of a meeting of the Panel which, if accurate, suggests that the second respondent did not take that impact into account. It is however difficult to conclude that that was ignored, given the obvious ramifications of the policy, the voices raised on behalf of families, and the fact that the same minutes attribute to the second respondent’s representative the emphasis on the one-way permit as a vehicle to facilitate family reunion. It was also suggested that the policy-makers did not consider making a distinction between one-way permit applicants and others, but that is not correct: that the idea of a two-tier structure was addressed is evident from the April 2007 paper to which I have earlier referred.[45] 99.The policy under challenge has been and remains controversial, exciting bitterness and passion on the part not only of those directly affected but on the part also of those who support their cause. However, it bears repeating that it is not within this Court’s remit to substitute its views for those of the policy-makers. The Court’s remit, on the constitutional limb of the case, is to determine whether such differentiation in treatment as is represented by the policy, as that policy has in its separate stages evolved, has a legitimate aim, is rationally connected to that aim and, within the margin of appreciation accorded to the policy-maker in such socio-economic matters, is reasonably justifiable, remembering that the burden of satisfying the Court on each limb rests upon the respondents. For the reasons I have given, I am satisfied that that burden has been discharged. Articles 36 and 37 100.We were presented with no fewer than 33 grounds of appeal in response to which the Court asked those acting for the applicants more precisely to refine the issues for this Court’s determination. That was done. Under the constitutional challenge, there would appear to be a limb with which I have yet to grapple. The 2007 decision is said to fall foul of arts. 36 and 37 of the Basic Law. In this regard, the appeal focuses on the child. 101.I am not sure whether I understand the argument correctly in this regard. In the ‘issues clarification’ document with which we were presented it is put thus:
102.The suggestion in relation to art. 36 seems to be that there is unjustified differentiation in relation to charges levied in respect of a child born in Hong Kong of a non-resident Hong Kong mother (an NEP mother) but a Hong Kong resident father. The comparison is with a child born of a mother with EP status. Art. 36 is said to be breached in relation to the child because, so it is said, the charges levied under the 2007 policy include fees incurred in respect of a permanent resident child in the delivery room before the child is taken to the ward. 103.The factual premise upon which the argument appears to be based is misconceived. The evidence is that the NEP obstetric charges relate solely to the care services received by the mother. For newborn children who themselves have EP status (such as the child of the second applicant) there are no charges under the 2007 policy for their stay in the nursery before the mother is discharged, but a charge is levied if the child cannot be discharged at the same time as the mother though at half the fee appropriate to the type of bed occupied. Newborn babies who are themselves of NEP status at birth are charged nursery maintenance fees even before the mother is discharged and the full appropriate fee thereafter.[46] 104.I understand the sentiment that the impugned policy may in particular cases affect family life in that the fees may be a burden on a family and may force the family into financial hardship if they choose to have the birth in Hong Kong or to split the family at the time of birth if they decide that the mother needs to return to the Mainland to give birth. I do not however see this as a breach of art. 37. 105.It is not necessary in this case to ponder the parameters of the protection guaranteed by art. 37 and by the similar protection afforded by art. 23 of the ICCPR (art. 19 of the Bill of Rights Ordinance). These Articles underscore the prominence of the family in our social setting, a “vital nucleus” of society to be safeguarded for the welfare of the society itself so that “the state and society are obliged to guarantee, by law, the existence of the family and the opportunity to create one by natural or contractual union”[47]; an obligation that carries with it concomitant protections (for example the protection of children, protection against forced marriage, and protection of the property rights of spouses). But the rights to marriage and to raise a family are not rights without boundaries set for the benefit either of the family or of society in general. In the full context of the Basic Law and its setting, art. 37 cannot have been intended to confer on spouses a right to free obstetric services in this jurisdiction for their non-resident marriage partners. The possible ramifications of such a proposition have only to be considered briefly to appreciate why that would be a non-purposive interpretation. At the end of the argument, therefore, what remains is the question, which has already been answered, namely, whether the policy which differentiates between, on the one hand, applicants in the A2 group and, on the other,EPs is discriminatory, as that concept is in law properly understood. The ‘Padfield’ ground 106.Although, as far as I can tell, this does not feature in the list of clarified issues which we were given, there is pursued a ground of appeal to the effect that the policy adopted contravenes the legislative purpose or imperative suggested by s. 4 (d) of the Hospital Authority Ordinance, so asto offend the principle in Padfield v Minister of Agriculture, Fisheries and Food[48]. 107.Section 4, as we have seen, requires the Authority to “recommend to the Secretary for Food and Health, for the purposes of section 18, appropriate policies on fees for the use of hospital services by the public, having regard to the principle that no person shall be prevented, through lack of means, from obtaining adequate medical treatment.” (Emphasis added). 108.It is said by Mr Chang that s. 4(d) is a cornerstone of the Ordinance. The argument has been articulated thus in the skeleton argument:
109.I do not, with respect, think that this argument holds water for the purposes of this case. One has only to glance a few lines above sub-section 4(d) to note in sub-section (c) that the Ordinance imposes upon the Authority a duty efficiently to manage and develop the public hospitals system “within the resources attainable” and then to glance a few lines below sub-section 4(d) to sub-section (g) to note a duty imposed upon the Authority to “charge fees for the provision of hospital services”. Section 18 provides a mechanism for the determination of the fees and makes provision for the reduction, waiver or refund of fees either generally or specifically. Properly read, section 4(d) does not impose a duty to provide free medical treatment, unqualified by any circumstances. The principle to which reference is made in subsection (d) is aspirational, though important and consonant of course with the ethical approach one would expect of the medical profession. But it seems to me that the applicants take the matter too far in suggesting that the emphasised provision renders the policy adopted contrary to one permitted by the intention of the legislation. Wednesbury 110.I have found difficulty in pin-pointing the complaint under this head. The argument before us under this limb seemed to concentrate on the suggestion that in relation to the 2007 decision, the decision-maker(s) did not take into account the likely impact of the policy upon the family as a whole and concentrated instead exclusively on those in the position of the second applicant. 111.This was not an omission on the decision-maker’s part that was pleaded quite in that way in any of the versions of the notice of application for leave that periodically emerged and I accept Lord Pannick’s submission that this was why the respondent did not file evidence in answer to it. In the re-re-amended notice of application for leave, the Wednesbury ground is put on the basis that “the [2007] decisiondoes not consider and/or does not sufficiently consider the constitutional guarantees conferred onto the first applicant and his family. A reasonable person, equipped with the knowledge of the constitutional guarantee conferred onto the applicants, would not have arrived at the decision at all.” 112.If my conclusion upon the constitutional argument be correct, namely, that such constitutional guarantees as exist are not infringed by the decision, it follows that it cannot logically be said that a reasonable person equipped with knowledge of the constitutional guarantees conferred on the applicants or upon either of them or upon their child could not have arrived at the impugned decision. 113.Insofar as it might be implicit in the re-re-amended notice of application that the decision-makers have not shown that in coming to their decision they were conscious of such constitutional rights as were engaged, the argument is an echo of the one rejected in Belfast City Council v Miss Behavin’ Ltd[49]. There, too, it was said that the decision was “unlawful unless it was inevitable that a reasonable council which instructed itself properly about [European] Convention rights would have reached the same decision,” as to which Lord Hoffmann said:
Waiver 114.The final question put to us for determination was as follows: Were the refusals of the respondents to waive fees for the second applicant a proper exercise of the discretion under the Ordinance? 115.Poon J categorized this ground of complaint as one which contended that: “The refusal to exempt the second applicant from NEP obstetric charges is unlawful because it is no more than a blanket application of the [2007] Decision.”[50]. The learned judge held that the decision, based as it was on residence, served “to promote legal certainty and to avoid the problems of arbitrariness and inconsistency inherent in weighing on a case-by-case basis.”[51] 116.As we have seen, s. 18(3) of the Ordinance specifies that subject to any directions given to it by the Secretary for Food and Health, the Authority may specify, either generally or specifically, the circumstances in which a fee for a hospital service provided by a public hospital may be reduced, waived or refunded, in whole or in part. 117.In February 2003, the Secretary for Health, Welfare and Food,directed the Chief Executive of the Hospital Authority and the Director of Health that as from 1 April 2003, non-residents who were the spouses of HKID card holders would be charged NEP rates. In the Gazette notice in 2003 which gave notice of the list of public charges for services in public hospitals, the Chairman of the Authority stated that the Authority had determined that: “The Chief Executive of the Hospital Authority may, subject to the Hospital Authority Ordinance, in any case reduce, waive or refund in whole or in part any fee for a hospital service provided by public hospitals.” No contrary direction, depriving the Authority of its power to waive fees in individual cases, has ever been issued by the second respondent. 118.It is accepted on behalf of the first respondent that the Ordinance confers on the Authority a discretion to waive fees in individual cases. It is further accepted that in the course of 2007, a number of representations were made by or on behalf of the second applicant for waiver of the fees for the obstetric services which had been provided to her. In a letter dated 22 May 2007, the first applicant’s father wrote to the Chief Executive of the Region drawing to his attention, amongst other matters, the hardships that had befallen his particular family. He stated that he and his wife were the parents of two mentally handicapped children, one of whom is the first applicant, for which reason they were particularly anxious that births within the family were preceded by suitable pre-natal care; that the fees charged were, in the family's economic circumstances, prohibitive; and that the second applicant had fallen ill and was bedridden. 119.This letter was passed to the second respondent on whose behalf a reply was sent in June 2007 commenting that the adjusted charge for package obstetric services was applicable “to any person who is not a HKID holder and who is the non-local wife of a local resident. To confine that only to Hong Kong residents are entitled to the heavily subsidised public medical service is in line with the current population policy of the government. The new arrangements have won initial success. We have no intention to amend or withdraw the recently revised measures and arrangements including the newly implemented obstetric service package charge for ‘non-eligible persons’ ”. 120.As one sees, there is no acknowledgement there of any discretion to waive fees and no intimation of any consideration of the applicants’ individual circumstances. 121.By letter dated 13 June 2007, the Director of Legal Aid wrote on behalf of the applicants to the Authority, drawing to its attention that the charges were so prohibitive to the family that they would not be able to afford pre-natal examination and asked whether the Authority had a discretion to waive or to reduce the fees and, if so, what were the criteria for its exercise. 122.The reply to the letter, from the Hospital Authority, came months later, namely, on 5 September 2007 when a Dr Cheung on behalf of the Chief Executive of the Authority said that: “There is no waiver of the above fees for NEPs receiving obstetric services including delivery, antenatal and postnatal care.” Nothing in the remainder of the letter qualified that statement. 123.There was other correspondence before September 2007 between the second respondent and the first applicant’s father which takes the matter no further in that that correspondence contains no recognition of a duty to consider waiver. 124.It is in my judgment obvious that the approach of the Authority to the question of waiver in individual circumstances was not lawful. The power vested in the Authority to charge fees and the policies formulated in exercise of that power permitted of the exercise of a discretion; yet what happened was that the Authority shut its mind in such a way as to fetter or exclude that discretion. The result was that the policy, thus approached, was inevitably destined to dictate the outcome of any application made to the Authority. That is what happened in the instant case. 125.It follows that in so approaching its duty, the Authority’s decision in response to the applicants’ request for waiver of the fees was unlawful:
126.Lord Pannick realistically accepts that the approach adopted by the Authority in 2007 in response to requests for waiver of fees cannot be sustained. He accepts that, but for the question of the Court’s discretion, the decisions in 2007 not to waive the fees fall to be set aside. 127.The basis upon which it is argued that relief should not be granted isthat, so it is said, the issue has since properly been addressed. For this purpose, reliance is placed upon the affidavit of Mr Shane Solomon, Chief Executive of the Authority sworn on 13 May 2008. In it he says that in September 2007 and thereafter it remained “the general policy of the 1st Respondent not to waive the 1st respondent’s obstetric package charge for NEPs. However as the Chief Executive of the 1st respondent, I have a discretion to, in any case, reduce, waive or refund in whole or in part any fee for a hospital service provided by public hospitals”, in which regard he refers to paragraph 6 of the Gazette Notice 44 of 2003 to which I have earlier referred. He adds:
128.It is authoritatively said that:
129.In my judgment, this is not a case in which it would be appropriate to refuse relief. This is a case in which the applications for waiver were addressed in a manner which must have been perceived by the applicants, understandably, as entirely impersonal and without regard to their own circumstances. The affidavit of Mr Solomon makes no reference to two of the matters peculiar to this family and to the second applicant – namely, the family history of mental handicap and the length of time over which the second applicant has been a regular visitor to Hong Kong, each time for extended periods, to be with her family. The fact, as we have been given to understand, that the mental handicap occasioned to more than one child born to this family was as a result of problems with delivery, rather than genetically caused, is really not to the point. Moreover, neither applicant was informed by the Authority that the application for waiver of fees was under reconsideration or invited to make further representations for the purpose of that reconsideration. Given the history of correspondence, one can safely assume that fresh representations would have been made, drawing specific attention to factors peculiar to this family and bringing the Authority up-to-date with their circumstances. 130.In my judgment, there ought to be fresh consideration of the application for waiver or reduction of fees, enabling the applicants to make such representations as they wish. Conclusion 131.Accordingly, for the reasons I have provided, I would, as did the judge below, reject such challenges as have been made in these proceedings to the validity of the decision in 2003 to categorise those in the second applicant’s group as NEPs and to the charging policies that were promulgated in respect of NEPs in 2003, 2005 and 2007. However, I would allow the appeal on the single issue of waiver and set aside the refusals by the first respondent in 2007 to waive or reduce the fees to be levied upon the second applicant in respect of the obstetric services to be provided in relation to the birth of her child later that year. I would remit the matter to the Authority to address that issue afresh, according to law. 132.In relation to costs, the respondents have succeeded to the extent I have indicated, a success attributable to a large proportion of the argument. On the other hand, the applicants have succeeded on the waiver issue, a matter of individual significance to them. I would therefore make an order nisi that (1) the order in the court below, by which the respondents were awarded their costs against the applicants, be set aside; (2) that there be no order as to costs of the application for judicial review; and (3) that there be no order as to the costs of this appeal. Hon Andrew Cheung J: 133.I agree with the judgment of the Vice-President and the orders he proposes. I only wish to add something by way of a footnote. 134.At one stage, I was inclined to the view that the 2007 decision to raise the obstetric fees from $20,000, which represented the cost of the services, to $39,000 (or $48,000) was unjustifiable because it failed to take into account the closer connection to Hong Kong that those within the A2 group have than those non-EPs who do not fall within the A2 group. Without differentiation, all non-EPs were required to pay an inflated fee which went beyond cost recovery in order to obtain obstetric services. On the 2006 statistical figures, it would appear that some less drastic way could have been worked out to deal with the problems then faced by the respondents without lumping those within the A2 group together with the other EPs. In particular, the surplus delivery capacity of the hospitals (after taking care of all EPs) would appear to be sufficient to absorb the entire A2 group, provided that appropriate administrative measures were put in place to give those in the A2 group priority for services over all other non-EPs. 135.However, on more mature reflection, this is an over-simplification of the picture. The decision-maker was entitled to take a longer perspective of the problems he or she faced. Unused surplus capacity and resources could be re-deployed for other or better use. Possible administrative difficulties and abuse if a more complicated scheme was to be adopted should not be under-estimated. All these – and there were others – were matters that the decision-maker was entitled to take into account. Given the societal economical context, the Court should not lightly interfere with the resulting decision on the ground of discrimination. 136.One additional consideration here is the existence of a real discretion to reduce or waive fees in deserving cases. That would alleviate the hardship that might otherwise be caused to those within the A2 group who could not afford to pay the new fees. The fact that the pregnant woman belongs to the A2 group is a factor which should be given due weight in considering an application for a reduction or waiver of fees. 137.Having considered the matter in the round, I am not prepared to say that the 2007 decision failed the justification test. Hon Bharwaney J: 138.I agree with the judgments of Stock VP and Andrew Cheung J. Hon Stock VP: 139.Accordingly, the appeal is allowed to the extent only that the order declining to bring up and quash the decisions in 2007 by which the Authority refused to waive the fees payable by the second applicant is set aside, those decisions are quashed and the request for waiver is remitted to the Authority for fresh consideration. There will be a costs order nisi in the terms specified in paragraph 132 above.
Lord David Pannick, QC, Mr Adrian Huggins, SC & Mr Abraham Chan, instructed by Messrs JSM for the 1stRespondent Mr Anderson Chow, SC & Ms Grace Chow, instructed by Department of Justicefor the 2nd Respondent Mr Denis Chang, SC, Mr Andrew S Y Li & Mr Alfred C P Cheng, instructed by MessrsKwok, Ng & Chan, assigned by Director of Legal Aid for the 1st & 2nd Applicants/Appellants [1]s.4. [2]Affirmation of the Deputy Secretary for Food and Health, Nip Tak Kuen, 30 April 2008, para 9 [3]s.4(d). [4]para 22 of the Report’s Summary of Recommendations. [5]Summary of Recommendationsparas 25-26. [6]one-way permit. [7]Summary of Recommendations para 32. [8]Summary of Recommendations para 32. [9]Report para 5.56. [10]Report para 3.23. [11]Mr Nip’s affirmation, para 14. [12]Paper 13 December 2004 para 4(d). [13]Paper for discussion 17 May 2005 paras 5 and 6. [14]Hospital Authority Paper for discussion 21 December 2006, para 6. [15]Paperpara 7(f). [16]third affirmation of Dr Cheung Wai Lun of the Hospital Authority, para 5. [17]Dr Cheung’s third affirmation para 6. [18]Discussion Paperpara 8. [19]Discussion Paper para 9. [20]Discussion Paper paras 14-18. [21]paras 12-16 above. [22]s.5(e). [23]s.5(g). [24]judgment para 89. [25]Regulation 3(1). [26][1899] AC 99 at p. 105; applied in Attorney General v Ng Kwan [1987] 1 HKC 183 at p. 187. [27][2009] 4 HKLRD 382 at 400. [28]at pp. 397- 399,paras 46 – 51. [29]Mathews v Diaz 426 US 67 (1976) at pp 78-80. [30]Human Rights Committee of the United Nations, General Comment 18, para 7. [31]“The International Covenant on Civil and Political Rights” 2d ed Joseph, Schultz and Castan, pp. 693 and 694. [32]Human Rights Committee of the United Nations, General Comment 18 para 13. [33]See Secretary for Justice v Yau Yuk Lung (2007) 10 HKCFAR 335 at para 22. [34]R (Carson) v Secrtary of State for Work and Pensions [2006] 1 AC 173 at p. 182. [35]Feldman ‘Civil Liberties and Human Rights in England and Wales’(2nd ed; 2002) at p. 144. [36]Carson at para 15, p. 182. [37]at paras 19 to 22. [38]paras 78 to 81. [39]Mathews v Diaz 426 U.S. 67 (1976) at p. 83; see also R (Pretty) v DPP [2002] 1 AC 800 at p. 823, para 29. [40]R v Cambridge Health Authority ex parte B [1995] 1 WLR 898 at p. 906. | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under CACV 30/2009