Fok Chun Wa and Another v. The Hospital Authority and Another

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 and Bharwaney J in Court

Dates of Hearing: 4 May 2011

Date of Judgment: 4 May 2011

________________________

J U D G M E N T

________________________

Hon Stock VP (giving the judgment of the Court):

1.This is a notice of motion seeking leave to appeal from a judgment of this Court dated 10 May 2010 on the grounds that there are questions involved in the appeal which, by reason of their great general and public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

2.Under challenge in the proceedings to which our judgment related was a decision to categorise spouses of Hong Kong identity card holders as persons liable to higher charges for medical services at public hospitals than those who held such identity cards and, more particularly, to make and maintain that classification in respect of such spouses who were two-way permit holders waiting for the issue of one-way permit.  The main question was whether the decisions under challenge were discriminatory.  We held that they were not and in that regard the appeal was unsuccessful.

3.There was a further question which was whether in considering a request by the applicants to waive fees allegedly due, the decision-maker misdirected itself as to the existence of its discretion.  In this regard, the applicants succeeded and the decision by which the Hospital Authority refused to waive the fees payable by the second applicant was set aside and the request for waiver was remitted to the Authority for fresh consideration.  So, to that extent, the appeal succeeded.

4.Pursuant to our order in relation to the waiver decision, the obstetric service charges which had been incurred by the second applicant were in fact waived by the Authority and she has been issued with a Hong Kong identity card and is now a person eligible for subsidised medical services in the same way as any other Hong Kong identity card holder.  The result of these developments is that the issues in these proceedings have become, as between the applicants and the respondents, academic.

5.We are asked nonetheless to grant leave because there is good reason, it is argued, in the public interest for doing so since the same issues which arose in the instant case are likely to arise between the respondents and other parties, that the issues are of public importance and that a decision in this case is likely to assist in the resolution of future disputes in respect of the same issues.

6.There are five questions suggested by the Notice of Motion as constituting issues of great general importance which ought to be submitted to the Court of Final Appeal.  They are:

“(1)   Whether the blanket exclusion from eligibility to subsidized obstetric services in Hong Kong public hospitals of spouses of Hong Kong permanent residents who are themselves not holders of HKID Cards is unconstitutional as being unfairly discriminatory or otherwise contrary to the Basic Law and the Hong Kong Bill of Rights Ordinance, at least where such exclusion is based solely on the spouses’ said immigration status and notwithstanding that they are holders of two-way permits and are awaiting the grant of one-way permits and who are in the meantime residing for the greater part of the time in Hong Kong (hereinafter called “the A2 Group”).

(2)   Whether the relevant Decisions of the 1^st Respondent, and the relevant directions of the 2^nd Respondent and/or the underlying policy are unconstitutional or otherwise contrary to the Basic Law and the Hong Kong Bill of Rights Ordinance to the extent they mandated or required differential treatment of A2 Group from Hong Kong residents and unfairly lumped the A2 Group with other groups of non-HKID Card Holders;

(3)   Further and/or alternatively whether insofar as the Decision of the 22 January 2007 and/or the underlying policy increased the pre-packaged obstetrics fees to a level way above cost recovery the same is unfairly discriminatory and unconstitutional or alternatively contrary to the affordability principle in s.4 of the Hospital Authority Ordinance;

(4)   Whether such Decisions, directions and/or the underlying policy sought to be impugned by the Applicants by way of judicial review are in any event contrary to or made without due regard to the said affordability principle and/or all relevant considerations, are Wednesday reasonable, or otherwise contrary to the Padfield principle having regard to the objects and purposes of the Hospital Authority Ordinance and/or the functions, powers and duties thereunder of the relevant officials and decision-makers; and

(5)   In respect of each of the above questions, whether the Court of Appeal was right in their answers to the extent that they gave such answers expressly or implicitly.”

7.The respondents oppose the application for leave on the basis that to grant leave in this case, notwithstanding the fact that the issues arising are academic as between the parties to the appeal, is not appropriate given that in considering the issue of justification, this Court examined available data from 2002 to 2007 in relation to demands from Mainlanders and others upon obstetric services, and the Hospital Authority’s capacity to provide them and that that data is now old.  We are told that new measures have been announced in April 2011 and waiver guidelines have now been introduced and that pressures on the services have changed. 

8.It seems to us that the validity of the continued application of a policy at any given date is a matter to be examined in accordance with factual exigencies applying at that date.  Those exigencies change over time.  Were the appeal not academic as between the applicants and the respondents, we would be minded to grant leave in relation to the first question.  Given, however, the fact that the appeal is academic as between the parties and the suggestion that the factual parameters have changed, we are not inclined to grant leave and, in any event, in the unusual circumstances which present themselves, we think that the question whether a final appeal should take place lends itself more appropriately to a decision by the final appellate Court.  Accordingly, the application is refused.

[Application as to costs]

9.There will be no order as to the costs of this application.

Mr Adrian Huggins, SC instructed by Messrs Mayer Brown JSM for the 1^st Respondent

Mr Anderson Chow, SC & Ms Grace Chow, instructed by Department of Justice for the 2^nd Respondent

Mr Denis Chang, SC & Mr Alfred C P Cheng, instructed by Messrs Kwok, Ng & Chan, assigned by Director of Legal Aid for the 1^st & 2^nd Applicants /Appellants

Please refer to FACV10/2011 for the relevant appeal(s) to the Court of Final Appeal.