LEUNG WAI KUEN v. SECRETARY FOR JUSTICE

CACV 562/2019

[2020] HKCA 793

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 562 OF 2019

On appeal from Court of First Instance No HCAL 3479/2019

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J U D G M E N T

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Hon Lisa Wong J (giving the Judgment of the Court):

The appeal

1.  Before the court is an appeal by the abovenamed applicant, Mr Leung Wai Kuen, against the order made by Mr Justice Chow (“Judge”) on 3 December 2019 refusing him leave to commence judicial review proceedings.  The intended judicial review proceedings sought to compel the Secretary for Justice (“SJ”) to prosecute Dr Tang Yue Hin Ben (“Dr Tang”) of the Princess Margaret Hospital (“PMH”) for false imprisonment, assault, battery and other criminal offences against the applicant allegedly admitted by Dr Tang in his medical report dated 23 August 2019 in respect of the applicant (“Report”).

Background

2.  After a vacation in Australia, the applicant returned on a Qantas Airways (“Qantas”) flight, QF 97, from Brisbane to Hong Kong on 21 December 2018.  During the flight, the applicant was alleged to have behaved in a manner that caused disturbance to other passengers.  Consequently, members of the crew put the applicant under restraint on the plane.

3.  After the plane had landed in Hong Kong on 21 December 2018, the applicant was sent to the Accident & Emergency Department of the North Lantau Hospital (“NLH”), where he was assessed by the psychiatry team, with an impression of suspected psychosis with persecutory delusion, with a necessity to rule out underlying organic causes.  The psychiatry team considered compulsory admission to Kwai Chung Hospital (“KCH”) to be warranted if the organic workup should be unremarkable.

4.  On 22 December 2018, the applicant was transferred to the PMH.  On 27 December 2018, the applicant was further transferred to KCH, following an order by a District Court judge for his removal to the Psychiatric Observation Unit of the KCH for retention and observation under the Mental Health Ordinance (Cap 136) (“MHO”).  The applicant was eventually discharged from the KCH on 23 January 2019.

5.  The matter that gave rise to the applicant’s complaint was his stay at the PMH from 22 to 27 December 2018, which he said was against his wish. 

6.  In this connection, after his admission to the PMH on 22 December 2018, various workup including electrocardiogram, computer tomography of the brain (which showed an organic issue which was known to have existed since 2001), blood tests etc were arranged on the same date for the purpose of ruling out any underlying organic causes for the applicant’s condition.  According to the Report, the applicant became un-cooperative and kept asking to be discharged from 23 December 2018.  He scolded and threatened to sue and cause trouble to Dr Tang when the doctor examined him on 24 December 2018.  On 24 December 2018, the applicant was re-assessed by the psychiatry team, which recommended an application for compulsory admission to the KCH to be made.  Both Dr Tang and the psychiatry team contacted the applicant’s family (younger sister and brother-in-law).  However, the arrangement for compulsory admission to the KCH was withheld on 24 December 2018 while the neurosurgery team was brought in and consulted to assess the organic issue on 25 December 2018.  In-patient electroencephalography was also scheduled for the applicant. The neurosurgery team concluded that there was no need for any neurological intervention and recommended the applicant to be followed up at the Queen Mary Hospital.  The neurosurgical team’s recommendation as well as the plan for making a court application for compulsory admission to the KCH if the electroencephalography should be unremarkable was explained to the applicant’s younger sister at bedside on 25 December 2018.  However, on 27 December 2018, the applicant refused to undergo the electroencephalography or to sign on the refusal form.  The presumptive diagnosis, the unremarkable organic workup and the plan for compulsory admission to the KCH by the psychiatry team were explained to the applicant himself.  He requested to see the judge.  The application to the District Court was made and granted, after the judge interviewed the applicant as per his request, on 27 December 2018.

7.  On 22 January 2019, Qantas imposed a “No Fly Notification – 2 Years” on the applicant, which means that the applicant is not permitted to travel on any flight operated by any member of the Qantas Group or the Jetstar Group for 2 years expiring on 21 December 2020.

8.  On 2 July 2019, the applicant instituted proceedings (SCTC 027746/19) in the Small Claims Tribunal for damages for false imprisonment in the sum of $75,000 against the Hospital Authority, the PMH and Dr Tang which/who disclosed the Report in September 2019.  The fifth paragraph of the Report, on which the applicant placed heavy reliance, stated the following:

“Mr. Leung was noted to be un-cooperative in ward & was agitated. He refused further blood taking as well as vital signs checking by ward staff starting from 23/12/2018. He also refused to sign on the refusal-form. He kept requesting to be discharged. He kept scolding me for more than 1 hour when I assessed him on 24/12/2018. He threatened that if he was not discharged, he would sue me in the future & cause me trouble. He was subsequently restrained by security guard & ward staff.”

9.  Taking the view that this passage amounts to a confession by Dr Tang to having committed assault, battery and false imprisonment, by letters dated 3, 17 and 28 October 2019 to the SJ, the applicant demanded the SJ to prosecute Dr Tang for those offences.  In response, by letters dated 11 and 24 October and 4 November 2019 to the applicant, the Department of Justice (“DOJ”) replied that the primary function of the DOJ is to provide legal services to the Government of the HKSAR and not private parties or individuals; that they do not have any power to investigate into complaints against doctors; that they are not vested with any investigative power; that it is only upon receiving an investigation report from a law enforcement agency that the DOJ will be able to consider whether there are sufficient grounds to institute prosecution; and that if the applicant suspects that someone has committed a crime, he may contact the Police first.  Reference was further made to the Medical Council for making a complaint of professional misconduct by a doctor. 

10.  The applicant, however, takes the view, as stated in his last-mentioned letter, that with the confession contained in the Report, there was no need for any investigation and that all that the SJ had to do to perform her duty was to prosecute Dr Tang.  In the absence of action by the SJ, on 25 November 2019, the applicant applied for leave to take judicial review proceedings with a view to compelling the SJ to prosecute Dr Tang on the basis of the confession to false imprisonment, assault, battery and other criminal offences allegedly made by Dr Tang in the Report.

11.  By a decision dated 3 December 2019 (“Decision”), the Judge dismissed the application as being not reasonably arguable and as having no realistic prospect of success.

(1)  The court can interfere with the SJ’s prosecutorial decisions only when she has acted outside the constitutional limits of her power to control criminal prosecutions under article 63 of the Basic Law (“BL 63”).  No such ground exists, or arguably exists, in the present case.

(2)  There was no exceptional or special circumstance to justify a departure from the DOJ’s general practice of making prosecutorial decisions based on investigation reports from law enforcement agencies, which practice is well established and not unlawful.  Without full investigation of what actually occurred during the time when the applicant was assessed by Dr Tang on 24 December 2018 at the PMH, it is plainly not possible for the SJ to be satisfied that any prosecution of Dr Tang for the alleged offences of assault, battery or false imprisonment, or other possible offences, would be justified. 

12.  In support of the appeal, by his undated supplemental notice of appeal, the applicant advanced the following grounds of appeal (“Grounds” collectively):

(1)  The Judge “selectively and deliberately picked those materials favourable to the [SJ] and purposely omitted the facts favourable to the [a]pplicant” (“Ground 1”);

(2)  The Judge erred in law in (a) referring to BL 63 which is irrelevant; and (b) omitting to mention the content of the applicant’s letter dated 3 October 2019 to the SJ enclosing a copy of the Report and making the points (i) that in Hong Kong, a medical practitioner cannot treat a patient who does not consent to being treated; (ii) that without the patient’s consent, any treatment or procedure involving physical contact would be trespass to the person or battery even if the doctor believes that it was in the best interest of the patient and even if it was indeed in the best interest of the patient and (iii) that to detain a patient in hospital without the consent of patient is false imprisonment, unless it was done with lawful authority.  Such omission led to the wrong conclusion that it was not possible for the DOJ to justify the prosecution against Dr Tang without full investigation (“Ground 2”);

(3)  The Decision is in reality a submission made by counsel for the SJ, instead of a judgment written by an impartial judge.   The Judge assumed the role of a defence counsel instead of a judge (“Ground 3”).

13.  Dealing with the Grounds in turn, under Grounds 1 and 3 (which effectively made the same point), the matters said to have been omitted by the Judge in cherry-picking as a defence counsel would do were (1) that Qantas had not challenged the applicant’s version of events on the plane set out in his email dated 24 January 2019 to Qantas; (2) that Qantas had not informed the applicant of what wrong, if any, he had committed before imposing the ‘No Fly Notification – 2 years’ on the applicant; (3) the contents of the applicant’s letters to the SJ, especially the applicant’s letter dated 28 October 2018 that there is no need for the SJ to investigate in the present case in order to come to a decision to prosecute.

14.  We fail to see what relevance the first or second-mentioned facts have to the question whether the SJ should be compelled to prosecute Dr Tang. 

15.  Although the Judge did not set out the contents of the applicant’s letter dated 28 October 2018 to the SJ, he accurately set out the applicant’s position in the first 5 lines of [4] of the Decision.  Further, we have no doubt that the Judge had in mind the applicant’s assertion that no investigation is required in this case.  We say so because the Judge dealt with such contention by the applicant in [7] of the Decision.

16.  We now turn to Ground 2, by which the applicant essentially reiterated that the case of false imprisonment, assault and battery against Dr Tang requires no investigation by any law enforcement agency because the doctor had clearly confessed to those offences by the fifth paragraph of the Report and that the SJ does not need any investigative powers in this case.

17.  We do not understand why the applicant took issue with the Judge’s reference to BL 63, which is the constitutional basis of the SJ’s control over criminal prosecutions.  As pointed out by the Judge at [6] of the Decision, the court cannot, in an application for judicial review, interfere with the prosecutorial decisions of the SJ except on the ground that she has acted outside the constitutional limits of her power to control criminal prosecutions under BL 63.  This long-standing principle was reiterated by the Court of Appeal in Re Leung Lai Fun [2018] 1 HKLRD 523 at [10]:

“Article 63 of the Basic Law provides that “The Department of Justice shall control criminal prosecutions, free from any interference”.  As Hartmann J had pointed out in RV v The Director of Immigration (2008) 4 HKLRD 529, this provision includes the protection of the independence of the Department of Justice’s control of criminal prosecutions from judicial encroachment.  It is only if the case belongs to those extremely rare situations, such as where there is evidence proving that the Department of Justice has acted in obedience to political instruction when making the decision, or is acting in bad faith, such as to cause the Court to find that the prosecutorial decision is unconstitutional, that the Court will have jurisdiction to review the decision concerned. Otherwise the Court should not encroach on the right of the Department of Justice to control prosecutions. This is the major premise which is founded on principle.”

18.  R v Director of Public Prosecutions, ex parte C [1995] 1 Cr App R 136, on which the applicant relied, did not detract from this principle.  Roger VP, in Ma Pui Tung v Department of Justice, CACV 64/2008, unreported, succinctly highlighted at [10] the rarity of instances such as R v Director of Public Prosecutions, ex parte C:

“It is, no doubt, in extremely rare cases and only where the evidence points unquestionably to the desirability of there being a prosecution that a court should interfere with a decision of the prosecuting authority not to prosecute. There are instances where an application for judicial review in respect of a refusal to prosecute has been allowed. I would draw attention for example to R v Director of Public Prosecutions, ex parte C. [1995] 1 Cr. App. R. 136 and the note contained at pages 858-861 of the Criminal Law Review 2000 in respect of the case of R v Director of Public Prosecutions, ex parte Jones. It must be emphasised, however, that those were cases where the facts spoke for themselves.” (emphasis added)

19.  The applicant challenged the SJ’s practice of acting only on investigation reports by law enforcement agencies. We cannot agree with such criticism.  Under paragraph 7 of the Statement of Prosecution Policy and Practice issued by the DOJ in 2002, the first of two issues that the prosecutor must consider in deciding whether to prosecute or not is whether the evidence is sufficient to justify the institution or continuation of proceedings.  A bare prima facie case is, generally speaking, not enough.  There must be a reasonable prospect of securing a conviction.  Without a comprehensive investigation by a law enforcement agency equipped with the resources and powers to undertake the investigation, we do not see how the SJ could otherwise have made an informed assessment of the merits of a prosecution.

20.  The matters set out in the fifth paragraph of the Report, on which the applicant relied as proving the case against Dr Tang, have to be read in the context that the psychiatry team of each of the NLH and the PMH recommended on 21 and 22 December 2018 respectively that an application for compulsory admission to the KCH should be made if the applicant’s organic workup should turn out to be unremarkable; and that an application was indeed made to and granted by the District Court on 27 December 2018 under s 31 of the MHO[1].

21.  That being the case, it appears to us that investigation would be called for to see whether, between 23 and 27 December 2018, Dr Tang’s actions vis-a-vis the applicant was taken in pursuance of the MHO so that the doctor cannot be prosecute without leave of the court which would not be granted unless the court is satisfied that he had acted in bad faith or without reasonable case, as stipulated in s 69 of the MHO:

“Protection of persons carrying out the provisions of this Ordinance

(1) Where a person has made application for the removal or detention of any person under the provisions of this Ordinance, or signed or carried out, or done any act with a view to signing or carrying out, an order purporting to be an order for removal or detention, or any report, application, recommendation, or certificate purporting to be a report, application, recommendation, or certificate under this Ordinance, or has done anything or given any advice in a professional capacity in pursuance of this Ordinance, he shall not be liable to any civil or criminal proceedings whether on the ground of want of jurisdiction or on any other ground unless he has acted in bad faith or without reasonable care.

(2) No proceedings, civil or criminal, shall be brought against any person in any Court in respect of any such matter as is mentioned in subsection (1), without the leave of the Court, and leave shall not be given unless the Court is satisfied that there is substantial ground for the contention that the person, against whom it is sought to bring the proceedings, has acted in bad faith or without reasonable care.

(3) Notice of any application under subsection (2) shall be given to the person against whom it is sought to bring the proceedings, and that person shall be entitled to be heard against the application.” (emphasis added)

22.  The scope of matters covered under s 69 is very wide and covers acts done by the staff of hospitals in discharge of their day to day duties in control of patients.  As set out by the Court of Appeal in 陳碩謙對醫院管理局, CACV 189/2012, unreported, 16 October 2014 at [46]-[47]:

“46. … Section 69 consists of two components: first, s 69(1) confers immunity on the persons involved in the matters set out in that subsection from civil or criminal liabilities unless such persons acted in bad faith or without reasonable care. The matters covered by s 69 are:

(a) the making of an application for removal or detention of a patient (which can be an application under sections 31, 32, 36, 71A and 71B of the MHO);

(b) the signing of an order for removal or detention;

(c) the signing of any report, application, recommendation, or certificate under the Ordinance;

(d) the carrying out of an order for removal or detention;

(e) the doing of anything in pursuance of the Ordinance; and

(f) the giving of any advice in a professional capacity in pursuance of the Ordinance.”

As we have held in the earlier part of this judgment, the scope is very wide and it covers acts done by the staff of hospitals in discharging their day to day duties in the control of patients, see Pountney v Griffiths [1976] AC 314.  It should also be noted that under Section 35A of the Ordinance, other than a registered medical practitioner, the application for detention can be made by a relative of the patient or a public officer in the Social Welfare Department.  These people need protection as much as the medical practitioners in the making of an application.  In this appeal, because the court below dismissed the claim on the basis of the lack of leave instead of the immunity under s 69(1), we have not heard submissions regarding the constitutionality of s 69(1).

47.  Secondly, s 69(2) prescribes that leave must be obtained from the Court of First Instance before civil or criminal proceedings may be brought in respect of the matters mentioned in section 69(1).  The court must be satisfied that there is substantial ground for the contention the putative defendant has acted in bad faith or without reasonable care before it grants leave.  It should be noted that the leave requirement is not restricted to proceedings brought against an individual, it covers proceedings brought against institutions (as in the present case where the defendant is the Hospital Authority).  Further, the leave requirement is not confined to proceedings brought by the patients.  It also covers proceedings brought by any person. Thus, even if it is a prosecution brought by the Secretary for Justice in respect of criminal acts committed during the course of detention, so long as the act comes within the scope of section 69, leave has to be obtained from the court under section 69(2). …”

23.  For the above reasons, we agree with the Judge that this is clearly not an exceptional case where the court should interfere with the decision of the SJ’s decision not to prosecute.

24.  Accordingly, we dismiss the appeal.  As the applicant acts in person, we make no order as to costs.