LEUNG WAI KUEN v. HOSPITAL AUTHORITY AND ANOTHER

HCSA 37/2019

[2020] HKCFI 3096

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

SMALL CLAIMS TRIBUNAL APPEAL NO 37 OF 2019

(ON APPEAL FROM SMALL CLAIMS TRIBUNAL

CLAIM NO 27746 OF 2019)

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JUDGMENT

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1.  This is the defendants (“Ds”) appeal against the decision made by an adjudicator[1] (“the Adjudicator”) of the Small Claims Tribunal (“SCT”) on 20 September 2019. By that decision, the Adjudicator dismissed Ds’ application (“the Stay Application”) for an order to stay the proceedings in the SCT (“the SCT proceedings”) lodged by the claimant (“Leung”) until leave is granted to Leung to pursue those proceedings by the Court of First Instance under s.69 of the Mental Health Ordinance (“MHO”).

2.  After considering the papers, I granted leave to appeal to Ds on 5 May 2020.  On 1 December 2020, I directed that the appeal be determined on paper without an oral hearing.  The parties have provided me their respective written submissions, and I have considered the same.

Background

3.  Apart from the SCT proceedings against Ds, Leung also commenced judicial review proceedings against the Secretary for Justice (“SJ”) for an order to compel the SJ to prosecute a doctor of the Princess Margaret Hospital (“PMH”).  The judicial review proceedings and the SCT proceedings are related to each other.  Leung failed in his judicial review application, both in the Court of First Instance and in the Court of Appeal.  In the Court of Appeal’s judgment (“the CA Judgment”)[2] given by Lisa Wong J, there is a helpful summary of the background facts.  I respectfully adopt that summary as a starting point.  In the CA Judgment, Lisa Wong J said:

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

3. After the plane had landed in Hong Kong on 21 December 2018, [Leung] 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, [Leung] was transferred to the PMH.  On 27 December 2018, [Leung] 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”).  [Leung] was eventually discharged from the KCH on 23 January 2019.

5. The matter that gave rise to [Leung]’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 [Leung]’s condition.  According to [a medical report made by Dr Tang Yue Hin Ben of PMH dated 23 August 2019], [Leung] 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, [Leung] 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 [Leung]’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 [Leung].  The neurosurgery team concluded that there was no need for any neurological intervention and recommended [Leung] 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 [Leung]’s younger sister at bedside on 25 December 2018.  However, on 27 December 2018, [Leung] 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 [Leung] himself. He requested to see the judge.  The application to the District Court was made and granted, after the judge interviewed [Leung] as per his request, on 27 December 2018.”

4.  On 4 July 2019, Leung commenced the SCT proceedings against Ds.  On 31 July 2019, relying upon s.69 of MHO, Ds made the Stay Application to the SCT.  In the call-over hearing in the SCT on 14 August 2019, Leung clarified that his claim in the SCT proceedings only concerned his hospitalization from 22 December 2018 to 27 December 2018 (“the Relevant Period”).

5.  On 20 September 2019, the Adjudicator made an order dismissing the Stay Application.  In that hearing, the Adjudicator gave an oral reason for the decision (“the Oral Reason”).  The Adjudicator was of the view that the Relevant Period came before the signing of the relevant forms approving the compulsory detention of Leung on 27 December 2018, and hence s.69 of MHO was inapplicable.

6.  Subsequently, the Adjudicator handed down written reasons for his decision (“the Written Reasons”).  In the Written Reasons, the Adjudicator said that since the Relevant Period preceded the making of the compulsory detention order, the applicability of s.69 MHO would depend on certain factual disputes which the Tribunal was unable to resolve without hearing evidence.

7.  Ds submit that there are two questions of law requiring determination of this court:

(1)  Upon a proper construction of s.69 of MHO, whether the section covers acts done prior to and leading up to the making of a compulsory detention order (“Question 1”); and

(2)  Whether the Adjudicator was correct in holding that it would have to hear evidence before deciding on the applicability of s.69 MHO (“Question 2”).

8.  The Adjudicator has expanded his reasoning the Written Reasons.  However, Ds do not take issue on this point.  Accordingly, I would consider both the Oral Reason and the Written Reasons given by the Adjudicator in determining whether the Adjudicator erred on any question of law in making the decision on 20 September 2019.

Analysis

9.  In my view, the answers to Question 1 and Question 2 are plain and obvious.

10.  S.69 of MHO is as follows:

“(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.”

11.  The scope of s.69 of MHO is very wide.  As said by Lisa Wong J in the CA Judgment:

“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). …’ ”

12.  It is clear that s.69 of MHO would cover acts done prior to and leading up to the making of a compulsory detention order.

(1)  It is plain that the act of making an application for a compulsory detention order is covered by that section.  At the time of the application, there is not yet any compulsory detention order. However, the act of making the application is covered by the section.  Clearly, the section covers acts done prior to and leading up to the making of a compulsory detention order.

(2)  S.31(1A) of the MHO requires that an application for a compulsory detention order must 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.  The examination conducted for the purpose of s.31(1A) would be an act in pursuance of the MHO and would be covered by s.69.  Clearly, the examination would be done before the compulsory detention order is made.

13.  The Relevant Period in Leung’s case in fact is within the 7-day period specified in s.31(1A) of the MHO.  There must be medical examination of Leung during the Relevant Period to see whether there would be any ground in support of an application for a compulsory detention order.  In my judgment, it is plain that the acts done in the Relevant Period are covered by s.69 of MHO.  There cannot be any factual dispute on this point.

14.  In my judgment, the answer to Question 1 is “Yes”, and the answer to Question 2 is “No”.

15.  Leung argues that he was mentally normal during the Relevant Period, and the doctors told lies.  Leung is of the view that the compulsory detention order made against him on 27 December 2018 was obtained by fraud.

16.  In my view, no matter these allegations are true or not true, that would not affect the answers to Question 1 and Question 2.  I am of the view that the SCT proceedings are covered by s.69 of MHO, and the Stay Application should be allowed.  If Leung intends to pursue his claim in the SCT proceedings, he has to seek leave from the Court of First Instance pursuant to that section, and can only continue the SCT proceedings after obtaining the said leave.

17.  With respect to the Adjudicator, for the reasons above, I am of the view that he erred in making the decision on 20 September 2019.

18.  For avoidance of doubt, I make no comment on the merit of Leung’s allegations.  Further, I also make no comment on whether leave should be granted to Leung under s.69 of MHO, if there be an application by Leung for such leave.  There is no comment on all these in this judgment.

Disposition

19.  I allow Ds’ appeal.  I order that the order made by the Adjudicator on 20 September 2019 be set aside, and the SCT proceedings be stayed until Leung obtaining leave from the Court of First Instance under s.69 of the MHO allowing him to continue to pursue the SCT proceedings.

20.  Costs should follow the event.  There be an order that costs here and below concerning the Stay Application (including the costs of the application for leave to appeal) be paid by Leung to Ds, and those costs be summarily assessed.  There be leave to Ds to file and serve a bill of costs for summary assessment within 7 days, and leave to Leung to file and serve a written reply to the said bill within 7 days thereafter.