CFW (a minor) by his next friend NF v. HONG KONG SAR GOVERNMENT

HCAL 1870/2025

[2025] HKCFI 4130

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1870 OF 2025

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R E A S O N S   F O R

D E C I S I O N

(Anonymised)

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A.  Introduction

1.  This habeas corpus application was fraught with clear procedural and apparent substantive errors, which were fatal. In the circumstances, I dismissed the application at the hearing on 5 September 2025, with reasons to be handed down later.

2.  These are my Reasons for Decision.

B.  The Application

3.  The Applicant is a 16-year-old male. He ordinarily resides in Mainland China, but returned to Hong Kong for secondary 2 education, and at least until recently was taken care of by his mother who holds a Two-Way Permit. The Applicant apparently has a history of depression, attention deficit hyperactivity disorder, and autism spectrum disorder.

4.  The Applicant is obviously a minor, and the habeas corpus application was brought on his behalf by NF, the self-described ‘boyfriend’ of the Applicant, who stated that he was bringing the application and making the necessary affirmation for the Applicant at the Applicant’s request.

5.  In the Affirmation, NF stated that the Applicant believes that he is unlawfully detained at the Tung Hoi Association for The Gifted Child (“THGC”). THGC is a licensed residential care home for persons with disabilities.

6.  It seems that from 19 June 2025 to 16 July 2025, the Applicant was involuntarily admitted to the Tai Po Hospital psychiatric ward, upon an application made by a psychiatrist and an order made by District Judge. Thereafter, the Applicant has stayed in the THGC.

7.  In the Affirmation, NF also stated the various complaints made by the Applicant. I do not think for present purposes I need to rehearse them all here, but it is relevant to note that the Applicant’s complaints include that “his simple and reasonable requests are not honoured, such as being allowed (1) to hang out with friends and live a normal adolescence; (2) to decide matters and arrangements relating to his life; and (3) a life free from intervention”.

C.  The Fatal Problems

C.1  Procedural Failure

8.  The obvious question which springs to mind on sight of the application is why the application is made with NF acting as next friend, instead of the Applicant’s mother (who would be the obvious candidate to act as his next friend). This is relevant to the potential substance of the application.

9.  But, as pointed out by Mr Alvin Hor, Senior Government Counsel (Ag), there has in any event been a failure to comply with the mandatory requirements of Order 80 of the Rules of the High Court (“RHC”).

10.  Although the habeas corpus application is itself brought under RHC Order 54, the rules under Order 80 are applicable where the Applicant is a minor.

11.  Order 80 rule 2(3) provides that unless the Official Solicitor is acting as next friend, any next friend must act by a solicitor. This is for reasons which include that the solicitor will need to certify that the requirements of appointing a next friend under Order 80 rule 3(8)(c)(i), (ii) and (iii) are met.

12.  This procedural failure is fatal to the application.

13.  I would also comment that, upon the materials available to me (limited though they may be), I do not think I would be satisfied that NF can readily establish that his acting as a next friend would be beneficial to the Applicant.

14.  I note that, during the hearing, NF suggested that the reason why the Applicant’s mother has not brought the application as next friend is because of her limited ability to read and write English (and to an extent Chinese, though she is not illiterate). But, even if that assertion were to be accepted at face value, I do not think it helps. First, there is no necessity to bring the application using the English language, and if the Applicant’s mother is not illiterate, she can write something in Chinese. In any event, one of the reasons why persons acting as next friends must act by a solicitor is to cater for the possibility that the solicitor will need to provide appropriate assistance both to the next friend and to the Court.

C.2  Substantive Problem

15.  Even leaving aside the fatal procedural failure, there seems to me to be substantive problems with the application.

16.  As Mr Hor pointed out on instructions, the Social Welfare Department (“SWD”) is not purporting to exercise any power under any legislative enactment to “detain” the Applicant at THGC. It is merely acting as a facilitator and assisting with and carrying out the Applicant’s mother’s instruction and wish that the Applicant be taken care of and placed into a place of refuge. The Applicant’s stay at THGC is apparently a temporary private residential arrangement made by the mother (in consultation with the SWD) before a long-term supervised plan and place may be secured for him.

17.  This point links in to the matters dealt with by me above. There is no suggestion that the Applicant’s mother does not have rights (and obligations) of care and control over the Applicant, or that any of her rights or powers have been abrogated.

18.  I would not be prepared to act on the substance of a habeas corpus application without the involvement of, and without hearing from, the Applicant’s mother. If it be the case, the Applicant would not be the first 16-year-old boy to think that he should decide for himself matters and arrangements relating to his own life, and be allowed to hang out with his friends as he thinks fit, and to live free from intervention from others (perhaps including his mother). But those matters would not provide any foundation for a proper application for a writ of habeas corpus.

D.  Result

19.  It was for the above reasons that I dismissed the application.

20.  I also declined NF’s invitation not to dismiss the application but to keep it alive so that consideration might be given for replacing him as next friend. It seemed to me that the procedural and substantive errors were such that the application must be dismissed.

21.  However, I also declined Mr Hor’s invitation to order costs against the Applicant. In the exercise of my discretion I made no order as to costs.