吳振權 v. 香港特別行政區政府

HCAL 394/2023

[2023] HKCFI 820

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 394 OF 2023

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D E C I S I O N

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A.  Introduction

1.  By a handwritten Form 86 application filed on 15 March 2023, the Applicant applied for a writ of habeas corpus. However, from the Applicant’s supporting affirmation, it appeared that the Applicant had misunderstood the purpose of a habeas corpus application or had acted under mistaken facts, or both.

2.  That was a point also made in the Initial Response filed on 30 March 2023 by Mr Alvin Hor, Government Counsel, in accordance with directions made by me on 29 March 2023 (when I also lifted the legal aid stay triggered by the Applicant’s making an application for legal aid on 20 March 2023).

3.  The Applicant subsequently filed two further affirmations dated 6 April 2023 and 13 April 2023.

4.  In my directions, I indicated that, depending on the contents of the Initial Response and any reply, I would decide whether to deal with the application for leave to apply for judicial review on paper, and that if I were to do so I would do so without further notice to the parties.

5.  Having considered the materials, I think this case can appropriately be dealt with on the papers.

6.  This is my Decision.

B.  The Applicant’s Complaint

7.  It seems that the Applicant is age 56 and single.  His parents and eldest brother have passed away.  His second elder brother lives in Macau.  According to medical records, the Applicant has been suffering from mental illness for many years, and has been using the psychiatric services provided by public hospital since 2011.  It seems that the most recent diagnosis of his condition is one of schizoaffective disorder.

8.  The Applicant’s main complaint seems to be about a conditional discharge order made against him under section 42B of the Mental Health Ordinance, Cap 136 (“MHO”).  From the materials available to me, I think that the relevant conditional discharge order was made in around February 2022, with the condition that the Applicant live in Chun Shek Halfway House.  But, the Applicant also complains about an earlier period of detention which he says was unlawful, as well as being forced to undergo treatment and received supervision.

9.  The Applicant says, amongst other things (and in my summary of them):

(1)  He has never displayed any symptoms of schizoaffective disorder, despite being diagnosed – nor any symptoms of mental illness.

(2)  He has no medical history of criminal violence, nor disposition to commit criminal violence.

(3)  The doctors who have “accused” him of that disposition have done so without factual basis.

(4)  The conditional discharge order has been extended improperly.

(5)  Making conditional discharge orders by doctors is the exercise of a substantive judicial function, without judicial proceedings and procedural justice.

(6)  Such orders are arbitrary, and that is a violation of human rights and freedoms of the individual.

(7)  Forcing a person who has no mental illness, and who has shown no symptoms of any mental illness, to have treatment is a waste of scarce medical resources and taxpayers’ money.

(8)  To reiterate unfounded events alleged to have happened years before, and to make an order for discharge based on unrelated tribunals stories is unreasonable, and goes against the legislative spirit of the rehabilitation legislation.

(9)  There are numerous persons who could be called as witnesses to prove his mental state, and that he did not have symptoms of any mental illness.

10.  The Applicant also said he had been unlawfully recalled to and then detained in the Psychiatry Department of the Tai Po Hospital for 28 days, running from a point in January 2022 to 14 February 2022, when he was discharged.

11.  In his affirmation dated 6 April 2023, the Applicant also offered a lengthy response to the various matters relating to himself as recorded in the Decision dated made by Chow J (as Chow JA then was) in HCAL 2447/2020, [2021] HKCFI 1414.

12.  Essentially, the Applicant challenges – or seeks to explain, or provide a different version of – the various factual matters recited in that Decision.  He has focused in particular on paragraphs 25 and 27 of the Decision: see below.  It is helpful to look at that Decision in a little more detail.

C.  Provisions of the MHO

13.  But it is first helpful to set out the material provisions of the MHO.

14.  Section 42B of the MHO enables the medical superintendent to order the conditional discharge of a patient from a mental hospital or the Psychiatry Centre of Correctional Services Department.  It provides:

42B.  Conditional discharge of patients with propensity to violence

(1)  Where—

(a)  it appears to the medical superintendent that a patient has a medical history of criminal violence or a disposition to commit such violence; but

(b)  the medical superintendent is of the opinion that the patient may safely be discharged subject to conditions to be specified in an order for discharge,

the medical superintendent may, in the exercise of his powers under section 42A, but subject to any restriction on such power imposed by any provision of Part IV, make an order for discharge subject to compliance by the patient discharged (in this section and section 43 called the conditionally discharged patient) with conditions.

(2)  Without prejudice to the power of the medical superintendent in the exercise of his powers under subsection (1) to impose such conditions as he thinks fit on an order for discharge, being conditions reasonable in the circumstances, such conditions may require the conditionally discharged patient—

(a)  to reside at a place specified by the medical superintendent;

(b)  to attend at an out-patient department of a hospital or at a clinic specified by the medical superintendent;

(c)  to take medication as prescribed by a medical practitioner; or

(d)  to be under the supervision of the Director of Social Welfare.

(3)  In any case where—

(a)  it appears to a medical superintendent that a conditionally discharged patient has failed to comply with any condition to which his order for discharge is subject; and

(b)  the medical superintendent is of the opinion that it is necessary in the interests of the patient’s health or safety, or for the protection of other persons, to recall the patient to a mental hospital,

the medical superintendent may, by notice in writing in the prescribed form to the conditionally discharged patient or to the person in charge of the conditionally discharged patient, recall the patient to the mental hospital and, upon the giving of the notice to the patient, or at such subsequent time as may be stated in the notice, the patient may be detained and section 43(5) shall apply accordingly.

(4)  Any conditionally discharged patient recalled to a mental hospital under subsection (3) shall, upon admission to that hospital, be deemed to have been detained therein under section 31 and, for the purposes of that section, the patient shall be deemed to have been detained in that hospital in pursuance of an order under section 31(1B) made at the time of admission.

(5)  The medical superintendent may at any time by notice in writing to the conditionally discharged patient vary the conditions of his discharge.

15.  The referenced section 31 provides as follows:

31.  Detention of a patient under observation

(1)  An application may be made to a District Judge or magistrate for an order for the detention of a patient for observation on the grounds that the patient—

(a)  is suffering from mental disorder of a nature or degree which warrants his detention in a mental hospital for observation (or for observation followed by medical treatment) for at least a limited period; and

(b)  ought to be so detained in the interests of his own health or safety or with a view to the protection of other persons.

(1A)  An application for an order for the detention of a patient for observation shall be founded on the written opinion in the prescribed form of a registered medical practitioner who has examined the patient within the previous 7 days, which opinion shall include—

(a)  a statement that in the opinion of the practitioner the conditions set out in subsection (1) are satisfied;

(b)  such particulars as may be prescribed of the grounds for that opinion so far as it relates to the conditions set out in subsection (1)(a); and

(c)  a statement of the reasons for that opinion so far as it relates to the conditions set out in subsection (1)(b).

(1B)  Upon receipt of an application under subsection (1) the District Judge or magistrate may make an order in the prescribed form authorizing the removal of the patient to a mental hospital for the purpose of detention and observation during the period not exceeding 7 days from and including the date of the order.

(2)  Every such order shall have the effect of authorizing the applicant and every public officer with such assistance in each case as may be necessary, to use such reasonable force as may be necessary in order to remove to a mental hospital the patient and if for any reason it is not practicable forthwith to remove him to a mental hospital to detain him in a place of safety for a period not exceeding 48 hours.

(3)  Where the patient has requested to see the District Judge or magistrate before such Judge or magistrate determines whether or not to make an order under subsection (1B)—

(a)  the District Judge or magistrate shall not make the order until he has seen the patient; and

(b)  a certificate by the registered medical practitioner who furnished the opinion for the purposes of subsection (1A) as to whether or not the patient has made such a request shall be sufficient evidence of the fact thereof.

(4)  A medical superintendent may detain in a mental hospital for observation, investigation and treatment any person who is the subject of an order under this section or under section 32.

16.  Therefore, amongst the conditions which might be imposed under section 42B is that the conditionally discharged patient reside at a place specified by the medical superintendent.

17.  Further, the two elements necessary for the exercise of power under section 42B(1) of the Ordinance are where (a) it appears to the medical superintendent that a patient has a medical history of criminal violence or a disposition to commit such violence; but (b) the medical superintendent is of the opinion that the patient may safely be discharged subject to conditions to be specified in an order for discharge.

D.  HCAL 2447/2020

18.  In those proceedings, the Applicant had also applied for a writ of habeas corpus in order to challenge an order dated 30 August 2019, for his conditional discharge made under section 42B of the MHO.  That order also required the Applicant to reside at Chun Shek Halfway House (Rooms 301-302, Shek Yuk House, Chun Shek Estate, Shatin, New Territories).

19.  It can be noted that the same address is used by the Applicant for the purpose of the present proceedings.  I have noted above that the Applicant appears now to be subject to a conditional discharge order, the condition being one as to his residence at that address.  Chun Shek Halfway House is apparently operated by the Society of Rehabilitation & Crime Prevention, Hong Kong (“SRACP”), a government recognised charitable organisation.

20.  Chow J set out the background facts – at §§8-20 – before turning to a consideration of the application.  He noted that the Applicant sought to challenge the condition in the amended conditional discharge order which required him to reside at the Chun Shek Halfway House, SRACP (“Live-In Requirement”).  Although he had been permitted to take home leave from Thursday morning to Sunday evening every week, the Applicant argued that the Live-in Requirement infringed his right to personal liberty, and section 42B of the Ordinance, which empowers the medical superintendent or an assistant medical superintendent of a mental hospital to impose this requirement, is contrary to: (1) the Basic Law, in particular Articles 11, 25, 28, 29, 31, 32, 33, 34, 37, 38 and 39; (2) the Hong Kong Bill of Rights, in particular Articles 5(1), 8, 11, 13, 14, 15, 19(1) and (2) and 22; (3) sections 6(a) and 21 of the Disability Discrimination Ordinance, Cap 487; (4) section 2(1) of the Rehabilitation of Offenders Ordinance, Cap 297; and (5) “Part I - Patients’ Rights” of the Patients’ Charter.

21.  It can be noted that similar arguments are sought to be raised by the Applicant in the present proceedings.

22.  Chow J identified the question for consideration in the then application.  The relevant question was not whether the medical superintendent’s decision to impose the Live-In Requirement was reasonable.  The only question that the court had to consider was whether the Live-In Requirement was lawful or made with lawful authority.

23.  Having provided a summary of section 42B of the MHO, Chow J then stated:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

24.  In conclusion, Chow J did not consider that there was any valid ground to challenge the legality of the amended conditional discharge order.  Therefore, he dismissed the application, with no order as to costs.

25.  As far as I know, no appeal was made from the decision of Chow J.

E.  Present Consideration

26.  In so far as the Applicant has complained in these proceedings about the earlier period of alleged “detention” in January/February 2022 – even assuming it was or could amount to unlawful detention by public authority – that has clearly ended.  Thus, at least as regards that period, the relief offered by a habeas corpus application is of no relevance or use to the Applicant.

27.  But it seems that it is really the making of the conditional discharge order about which the Applicant now complains.  However, I respectfully agree with the analysis of Chow J, and I agree that the orders made as authorised under the MHO did not give rise to any detention or condition which is unlawful.

28.  Insofar as the Applicant might be alleging unlawfulness because the two elements necessary for the exercise of powers under section 42B are not present.  But those two elements are plainly to be considered by the relevant decision-maker under section 42B, namely by the medical superintendent (and not by the Court, which is in no position to do the necessary assessment).

29.  I note that the Applicant continues to challenge the assessment, as he continues to challenge the facts recited by Chow J. However, and that does not change the above analysis.

30.  In conclusion, I do not think the Applicant is currently unlawfully detained, nor subject to any requirement which amounts to unlawful detention.

F.  Result

31.  The application is therefore dismissed.

32.  I make no order as to costs.