FOK CHUN WA AND ANOTHER v. THE HOSPITAL AUTHORITY AND ANOTHER

HCAL 94/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 94 OF 2007

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J U D G M EN T

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A.  INTRODUCTION

1.  In Hong Kong, users of services provided in public hospitals are divided into two categories : Eligible Persons (“EPs”) and Non-Eligible Persons (“NEPs”).  EPs are entitled to charges that are heavily subsidized by the Government.  NEPs are not.

2.  Spouses of Hong Kong residents who themselves do not hold Hong Kong identity cards were qualified as EPs for years but no longer.  With effect from 1 April 2003, they were re-classified as NEPs pursuant to the relevant policy of the Government (“the Policy”).  Since then, they have to pay the much higher NEP charges for services in public hospitals.

3.  On 22 January 2007, the Hospital Authority (“HA”) revised the charges for obstetric services provided in public hospitals to NEPs to HK$39,000 for booked cases and HK$48,000 for non-booked cases with effect from 1 February 2007 (“the Decision”).  NEP pregnant women, including the wives of Hong Kong residents who themselves are not Hong Kong identity card holders, are charged accordingly.

4.  In this application for judicial review, the constitutionality of the Policy and the Decision is challenged for the first time since their implementation.  It raises, among other things, the important question whether the Policy and the Decision constitute discrimination.  The outcome of this application affects not only the applicants herein but also, I am told, many others whose position is similar to theirs.

5.  The proceedings arose in this way.

B.  BACKGROUND

6.  The 1^st applicant is a Hong Kong permanent resident.  He is mentally handicapped and lives with his father, another permanent resident.  Both of them rely on Comprehensive Social Security Allowance (“CSSA”).

7.  In 2005, the 1^st applicant married the 2^nd applicant, a Mainlander.  Since then, the 2^nd applicant has come to Hong Kong regularly on the strength of a Two-Way Permit (“TWP”).  Like other TWP holders, the 2^nd applicant is allowed to stay in Hong Kong for not more than 90 days upon each entry and has to return to the Mainland before the limit of stay expires.  In short, the 2^nd applicant is and was at all material times a visitor.  While in Hong Kong, she stays with and depends on the 1^st applicant financially.

8.  In 2006, the 2^nd applicant applied for a One-Way Permit (“OWP”) in order to settle in Hong Kong but approval by the Mainland authority is still pending.

9.  In May 2007, the 2^nd applicant was admitted to a public hospital because of sudden illness and was found to be pregnant.  The expected due date was sometime in December 2007.  For financial reasons, she wished to use the obstetric services provided in a public hospital but, as an NEP, had to pay a minimum fee of HK$39,000 under the Decision.  She could not afford it.  Nor could the 1^st applicant or his family.

10.  The 1^st applicant’s father sought assistance from the Social Welfare Department but to no avail.  He then applied for legal aid in May 2007.  While the legal aid application was still pending, he applied in his own name for leave for judicial review on 17 August 2007, which was refused by Lam J.  On 8 November 2007, the Court of Appeal allowed his appeal and granted leave.  The father now acts as the 1^st applicant’s next friend.

11.  While the proceedings were pending for hearing, the 2^nd applicant gave birth in a public hospital on 26 December 2007.  Up to date, she has not settled any of the charges for the hospital services she obtained, including package charges for the obstetric services, maintenance fees for the extra days she stayed in the hospital, charges for Accident & Emergence Department services and follow-up consultation.  The total amounted to HK$132,312 as at 29 May 2008.  Both the Secretary for Food and Health (“SFH”) and the HA had refused to waive the charges.

C.  GROUNDS OF CHALLENGE

12.  In the Form 86A, the applicants sought to impugn the Decision together with :

“the underlying policy and/or the relevant prior directions/decisions insofar as they purport to exclude or mandate the exclusion from the category of [EPs] … spouses of holders of Hong Kong Identity Cards who themselves are not holders of Hong Kong Identity Cards, alternatively … spouses of Hong Kong residents who are holders of [TWPs] or alternatively spouses of Hong Kong permanent residents who are holders of [TWP] waiting for their [OWPs] to be granted.”

13.  In substance, what the applicants sought to attack are the Policy and the Decision.  And they relied on the following grounds to mount their challenge :

(1)  The Policy and the Decision constitute discrimination against them under the equality provisions in the Basic Law (Arts. 25 and 39) and the Hong Kong Bill of Rights (“BOR”) contained in the Hong Kong Bill of Rights Ordinance, Cap. 383 (Arts. 1 and 22). (Ground 1)

(2)  The Policy and the Decision violate their right to social welfare under the Art. 36 of the Basic Law[1]. (Ground 2)

(3)  The Policy and the Decision violate their right to marriage and family under Art. 37 of the Basic Law and Art. 19 of the BOR. (Ground 3)

(4)  The Policy and the Decision constitute discrimination against the child and violate the child’s rights under Art. 36 of the Basic law and Art. 20 of the BOR. (Ground 4)

(5)  The Decision is inconsistent with sections 4(d) and 18 of the Hospital Authority Ordinance, Cap. 113 (“HAO”) and hence ultra vires. (Ground 5)

(6)  The Policy and the Decision are Wednesbury unreasonable. (Ground 6)

(7)  The refusal to exempt the 2^nd applicant from NEP obstetric charges is unlawful because it is no more than a blanket application of the Decision. (Ground 7)

14.  These grounds entail a closer look of the circumstances leading to the formulation and implementation of the Policy and the Decision.

D.  THE POLICY

D.1.   How charges are generally determined

15.  The SFH (formerly the Secretary for Health, Welfare and Food (“SHWF”)) is responsible for the formulation of medical and health policies in Hong Kong, including those on fees and charges for the use of hospital services by the public.  The HA is an independent statutory body established under the HAO in 1990.  It is the predominant provider of public healthcare services, managing and controlling all public hospitals in Hong Kong.  The HA is accountable to the Government through the SFH, who monitors its performance.

16.  Within the statutory framework of the HAO, the SFH and the HA work together to determine the fees for the use of hospital services by the public.  In brief, the HA recommends to the SFH appropriate policies on fees for the use of hospital services by the public[2].  The SFH gives directions in writing to the HA[3].  Subject to any such direction, the HA determines the fees[4] and charges for the provision of hospital services[5].

D.2.   Only EPs are entitled to subsidy

17.  Pursuant to its general policy to promote and improve the health of the people in Hong Kong and to provide healthcare protection for every member of the community, the Government has been heavily subsidizing the charges for services provided in public hospitals (up to 95% on average).  However, given the limited resources that can be devoted to public healthcare services, the Government has always classified users as EPs and NEPs and subsidized EPs only.  This general policy of differentiating EPs from NEPs for allocation of subsidy is never in doubt.  Nor can it be.

D.3.   Classification of EPs before 1 April 2003

18.  Before 1 July 1997, EPs were defined as :

(1)  a holder of Hong Kong identity card issued under the Registration of Persons Ordinance, Cap. 177 (“RPO”) or his/her children under 11 years of age;

(2)  United Kingdom citizens; or

(3)  other persons approved by the Director of Hospital Services or the Director of Health.

Spouses of Hong Kong residents fell within paragraph (3).

19.  After 1 July 1997, United Kingdom citizens were removed.  Otherwise, the classification of EPs remained unchanged until the introduction of the Policy on 1 April 2003.

20.  Under the above classification, Hong Kong identity card holders, their spouses and children under 11 qualified as EPs because of different criteria.

21.  For Hong Kong identity card holders, the criterion was their resident status.

22.  Under Art. 24 of the Basic Law, Hong Kong residents include permanent and non-permanent residents.  Permanent residents, who have the right of abode, are qualified to obtain permanent identity cards.  Non-permanent residents do not have the right of abode but are qualified to obtain Hong Kong identity cards.  Hong Kong identity cards, permanent or otherwise, are issued under the RPO.  The Registration of Persons Regulations (“RPR”) prescribed the procedures.  In short, no person other than a permanent or non-permanent resident can apply for an identity card.  Visitors, including holders of TWP, are exempted and cannot apply for an identity card[6].

23.  Simply put, Hong Kong identity card holders are synonymous with Hong Kong residents.  They were (and still are under the current classification) qualified as EPs plainly because of their resident status.

24.  However, the case for the spouses and children under 11 of Hong Kong residents was different.  There was no requirement that the spouses or the children must themselves be Hong Kong identity card holders (and hence Hong Kong residents) in order to be qualified as EPs.  For them, residence was not a pre-requisite for eligibility.  Inferentially, they were qualified as EPs because they were family members of Hong Kong residents.  The criterion was described as their family link to Hong Kong residents[7].

D.4.   Classification of EPs after 1 April 2003

25.  On 1 July 2002, the Chief Executive announced in his Inaugural Speech that there was an urgent need for developing a comprehensive population policy which would fit Hong Kong’s long-term social and economical development, complement family requirements and address the interests of different sectors in the community.  The Government then set up a Task Force on Population Policy (“the Task Force”) to study the matters.  The Task Force focused on identifying the major challenges to Hong Kong arising from its demographic trends and characteristics, setting the objective of a population policy and recommending a set of coherent policy initiatives which the Administration could explore in the short and medium term.

26.  One of the issues that the Task Force tackled was the eligibility for public benefits.  In its report published on 26 February 2003 (“the Task Force Report”), the Task Force had this to say :

“5.55   Chapter III highlights the anomaly that exists in the eligibility criteria of various subsidized benefits in terms of length of residence in Hong Kong.  Among the major benefits, a ‘seven-year’ residence rule is applied to public rental housing applications (except children under the age of 18).  In the case of CSSA, a ‘one-year’ residence rule is applied.  No such rule is implemented for users of public health and hospital services; they are not even subject to means tests.  As pointed out in Chapter III, because of rising public expenditure in providing various highly subsidized services, the implications for public finances have become an issue of major concern to [the Government] and the community.  Many of our interlocutors have urged that the Task Force must urgently address this mater in the context of the population policy.

5.56  In approaching this complex issue, we have to strike a very fine balance between the interests of various sectors of the community and giving due regard to the long-term sustainability of our social services within limited financial resources.  Given the complexity of the issue and our tight time-table, we have focused our deliberation on CSSA and public health and hospital services for this exercise, since together they account for some 21% of our total public expenditure in 2001/02.  After careful consideration, the Task Force considers that there is a strong case for removing the anomaly that exists in the eligibility criteria for major subsidized benefits, and for applying a uniform seven-year residence rule for providing all heavily subsidized social services including CSSA and the public healthcare benefits.  Eligibility based on a seven-year residence requirement reflects the contribution a resident has made towards our economy over a sustained period of time in Hong Kong.  A seven-year residence is also normally required for the grant of permanent resident status in Hong Kong, for which additional rights are prescribed in the law of Hong Kong.

…

5.58  We further proposed that, in principle, the same [i.e. seven-year] residence requirement should apply to users of subsidized public health and hospital benefits.  We appreciate, however, the considerable impact on a very large number of people in Hong Kong, including residents with less than seven years of stay in Hong Kong, [OWP] holders and migrant workers.  The new arrangement should apply initially to TWP holders and other visitors.  [The SHWF] would need more time to consider how this policy could apply and be implemented for the rest of the population …”

27.  The Task Force then recommended, among other things, that for the eligibility for public benefits, the principle of “seven-year” residence requirement be adopted and that the same be applied in respect of public healthcare services to TWP holders and other visitors.

28.  Following up on the Task Force’s recommendations, the SHWF gave direction to the HA by memo dated 28 February 2003 thus :

“2.  At present, visitors, including non-Hong Kong residents without family links in Hong Kong, are required to pay [the NEP] rate for use of public health care services.  This arrangement would continue.  As for non-Hong Kong residents who are the spouses and children under 11 years of age of Hong Kong Identity Card holders, they currently enjoy subsidized public health care services.  As from 1 April 2003, they will be charged [the NEP] rate for the use of public health care services.  As such, the definition of [EPs] in the Gazette Notices issued by the Chief Executive of [the HA] or the Director of Health needs to be modified for the purpose of implementing the first phase of the seven-year residence requirement.  Likewise, the administrative definition of ‘other persons’ as approved by the Chief Executive of HA or the Director of Health has to be amended to reflect such change …” [Emphasis supplied]

29.  Three points arising from the direction are worth noting :

(1)  The direction referred to “family links in Hong Kong” as the factor which differentiated mere visitors from those non-Hong Kong residents who were the spouses or children under 11 of Hong Kong residents.  The former were charged the NEP rates.  The latter were accorded the EP status because of their family link to Hong Kong residents, although they were strictly non-Hong Kong residents.

(2)  The direction was the very first step of implementing the seven-year residence requirement for all public subsidized benefits.  Plainly, the Government considered that if the residence requirement were to be applied with full force immediately, the impact would be too drastic.

(3)  The decision was not targeted at obstetric services specifically.  It applied across the board to all services provided in public hospitals.

30.  The HA duly complied with the direction and effected the change by Gazette Notice dated 28 March 2003 (G.N.(S.) 44 of 2003).  Since then, spouses of Hong Kong identity card holders, who themselves do not hold a Hong Kong identity card, are re-classified as NEPs and have to pay the higher NEP rates for using medical services in public hospitals.  The Policy was now put in place.  And for children, only those who are Hong Kong residents and under 11 years of age8 are qualified as EPs.

31.  Residence is now the only criterion for eligibility for the heavily subsidized charges in public hospitals.  For spouses and children under 11 who are non-Hong Kong residents, family link to Hong Kong residents will no longer entitle them to EP status.

E.  THE DECISION

32.  The matter took a further turn in 2004 when obstetric services in public hospitals were put under extreme stress.

E.1.   The increase of NEP women giving birth in public hospitals in 2004 and the ensuing problems

33.  In 2004, the number of NEP pregnant women from the Mainland giving birth in public hospitals in Hong Kong was rising.  In 2003, the number of babies born of those NEP women was 8,793.  In 2004, it was increased by 25% to 10,992.  It made up some 29% of all the babies (37,667[8]) born in the same year.  Of those 10,992 babies, 8,257, that is, 75% were fathered by Hong Kong permanent residents.

34.  Various problems arose.

35.  Around 70% of the NEP mothers from the Mainland who gave birth in public hospitals did not receive any antenatal care, which imposed significant risks to all parties concerned.  Mothers might have to go through difficult labour.  Babies might suffer congenital defects which might otherwise have been detected.  Frontline staff might be exposed to undetected venereal diseases and even HIV.

36.  Further, in order to minimize the hospital fees payable, those NEP mothers from the Mainland tended to present themselves at public hospitals after midnight at the Accidental & Emergency Department to seek admission to the hospitals via the emergency service and discharged themselves against medical advice within 24 hours of delivery.  Medically, such behaviour was undesirable.  Little time was available for optimal observation and appropriate intervention for the newborn and the mother, hence putting both at jeopardy.  Early discharge against medical advice increased risk of complications for both mothers and their newborn.  Such behaviour also impacted on resource allocation badly.  Late admissions after midnight increased workload for the nightshift staff and diverted limited public resources to non-residents at the expense of local residents.

37.  Finally, the then existing charging mechanism, that is, HK$3,300 per day for inpatient services for NEPs, did not cover the costs of the obstetric charges which were highest in the first 2 days of hospitalization when most deliveries took place.

E.2.   \Introducing the obstetric service package charges

38.  The Government brought the problems to the attention of the Legislative Council Panel on Health Services (“the Health Panel”) at a meeting held on 13 December 2004.  In the Legco Paper tabled for discussion (“the 2004 Legco Paper”), the Government set out the guiding principle that public subsidy should be targeted at local residents only and put forward six possible measures then under consideration for the Health Panel’s comments.  One of the proposals was to increase the NEP charges.  Another, which the applicants heavily relied on, is this :

“(f)  Stop providing non-emergency medical services to NEPs who are not (i) the spouses or (ii) children under 18 years of age of holders of HKID Card

We propose to make a distinction between NEPs who are

(i)    spouses; or

(ii)   children under 18 years of age

of holders of HKID Card and others who do not belong to this group because most of them are eligible for [OWP] to settle in Hong Kong and would become Hong Kong residents in the near future.  It is in the community overall and long-term interest to provide medical services to the former group, otherwise the healthcare expenditure on them could be even larger when they become Hong Kong residents with poor health.  Furthermore, visiting spouses from the Mainland are able to stay in Hong Kong virtually year-round on the strength of the multiple visit endorsement while they are waiting for their turn for [OWPs].  Providing medical services to those who would like to receive such services in Hong Kong would cause less distress to their family members resident in Hong Kong…  However, for NEPs without any such close connection in Hong Kong, we doubt if there is any strong reason for public medical services to be provided to them even if a profit can be made from such services …”

39.  During discussion, one of the Health Panel members referred to the practice adopted by some private hospitals of charging HK$20,000 as a package fee for obstetric services.  At the conclusion of the meeting, the Health Panel unanimously passed a motion to urge the Government to set up an inter-bureau working group to address and solve expeditiously the problems brought about by non-Hong Kong residents coming to Hong Kong for childbirth.

40.  On 21 April 2005, the board of the HA held an Administrative & Operational Meeting where the proposal for an obstetric package at HK$20,000 for NEPs giving birth in public hospitals was considered.  The objectives of the obstetric package were :

(1)  to curb unhealthy and dangerous behaviour such as admission via the A&E Department after midnight and early discharge against medical advice;

(2)  to deter use of public medical services by NEPs by removing the financial incentive for NEP mothers to deliver babies in public hospitals; and

(3)  to recover as much as possible costs, which were mostly incurred in the first three days of hospitalization.

The board endorsed the proposal for submission to the Government.

41.  The Government found the proposal attractive and tabled it before the Health Panel at the meeting held on 17 May 2005.  In the discussion paper, the Government re-iterated the need for a rational basis for the allocation of social resources and the well-established principle that heavily subsidized medical services should not be diverted to non-residents and visitors at the expense of local residents.  The Government went on to identify the deficiencies in the then mechanism of charging NEP women inpatient fees for obstetric services.  The Government then proposed to introduce a new minimum package fee of HK$20,000 for obstetric services at public hospitals.  The charge would cover delivery and maintenance fees in a public ward for the first three days of hospitalization.

42.  Members of the Health Panel supported the Government’s proposal although some of them queried (prophetically) if the package would be effective in reducing the number of NEP women giving birth in public hospitals.

43.  On 19 July 2005, the SHWF gave direction to HA to introduce the obstetric service package charge of HK$20,000 for NEPs with effect from 1 September 2005, which the HA did by gazetting the same on 22 August 2005 (G.N. 4094 of 2005).

E.3.  The situation deteriorated

44.  The implementation of the obstetric package was able to reduce the number of NEP women giving birth in public hospitals to a limited extent initially.  There was a 20% drop for January to September 2006 as compared to the same period in 2005.  But the downward trend did not sustain.  The figure went up again in or about October 2006 by 28% as compared with the previous month and 9% as compared with October 2005.  At the same time, the demand from local expectant mothers had also increased.  Obstetric services and neonatal services in public hospitals were put under tremendous pressure.

45.  The position is perhaps best underscored by the year-end figures showing births by NEP women (mostly Mainlanders holding TWPs) giving birth in public hospitals.  For 2005, the number of such births increased to 13,911 from 10,992 in 2004.  Of those 13,911 babies, 7,663 were fathered by Hong Kong permanent residents.  In 2006, the number dropped slightly to 12,047, of which 5,196 babies were fathered by Hong Kong permanent residents.

46.  Understandably, public concern was aroused.  In particular, it was widely reported in the media that many local pregnant women were worried about denial of access to obstetric and neonatal services in public hospitals because of the rising number of non-local mothers giving birth there.  Their worries cumulated in a street protest staged by some 60 local pregnant women on 19 November 2006.  The Government immediately responded by issuing a press release on the following day stressing its commitment to provide quality obstetric services for local expectant mothers in local hospitals.

47.  The obstetric package was also unable to curb the undesirable behaviour of NEP women seeking admission to public hospitals through the A&E Departments.  For 2006, about 80% of them (that is, 9,839 out of 12,047) continued to do so with little antenatal care, imposing all the associated risks to their babies, themselves and the frontline staff and problems as identified above.

48.  Urgent and effective responses from the SHWF and the HA to deal with the situation were necessary.

E.4.   Increasing the charges by the Decision in January 2007

49.  The SHWF and the HA had a joint meeting to discuss the matters in October 2006.

50.  In December 2006, the HA prepared a paper entitled “Initiatives to Enhance Obstetric Services and Associated Neonatal Intensive Care Services of the Hospital Authority” for its board’s consideration.  The paper pointed out that the HA had to take action to deal with the problems in order to guarantee access for local mothers but the HA was constrained by capacity limitation in terms of facilities, shortage of midwives and neonatal intensive care nurses and financial limitation.  The paper then proposed various measures to deal with the problems, which included increasing the obstetric package service charges for NEPs.  In this connection, the paper noted the proposed increase aimed at ensuring that NEP expectant mothers would not use the public obstetric services because of financial incentives.  The different rates for booked and non-booked cases would also encourage NEP expectant mothers to seek antenatal care during the course of the pregnancy.

51.  At the Administrative and Operational Meeting held on 21 December 2006, the board of the HA agreed to increase the obstetric package service charges to HK$39,000 for booked cases and HK$48,000 for non-booked cases.  In doing so, the HA took into account the following considerations :

(1)  to ensure that priority service would be given to local expectant mothers;

(2)  to ensure that NEP expectant mothers would not be attracted to use public obstetric services because of financial incentives;

(3)  to encourage NEP expectant mothers to seek antenatal care during the course of pregnancy;

(4)  the continuing objective of curbing the unhealthy and dangerous behaviour of pregnant NEPs seeking late admission and premature discharge to minimize charges;

(5)  the continuing objective of recovering obstetric costs as much as possible while still having regard to the principle that no person should be prevented, through lack of means, from obtaining adequate medical treatment;

(6)  the need to maintain public confidence in the healthcare system, having regard to the worries of local pregnant women that they might be denied access to public obstetric services;

(7)  charges by private hospitals; and

(8)  charges of the HA for private services.

52.  On 5 January 2007, the Chief Executive of the HA wrote to the SHWF seeking directions in respect of the proposal.

53.  On 9 January 2007, the SHWF gave written direction to the HA that the charges for obstetric service charges be adjusted accordingly.  Then the HA gazetted the revised charges on 22 January 2007 (G.N. 626 of 2007).  The Decision was now implemented.

54.  The Decision sparked criticism by some members of the Legislative Council and concern groups.  At the meeting of the Health Panel on 16 April 2007, the matters were debated.  The representative of one of the concern groups reminded the Government that in the 2004 Legco Paper it was proposed to make a distinction between NEPs whose spouses are Hong Kong residents and those whose spouses are not[9].  One Legco member asked if the Administration had considered not treating NEPs whose spouses were Hong Kong residents as NEPs in the provision of public medical services during the formulation of the population policy.  The Principal Assistant Secretary for Welfare, Health and Food responded that the Administration had so considered but concluded in the final analysis that there was no need to make such a distinction.  Another member asked if the new charging policy had taken into account its impact on family unit and the long-term development of Hong Kong.  The Principal Assistant Secretary replied in the negative as the charging policy was based on whether the patients concerned were holders of Hong Kong identity cards.

55.  Eventually, the Health Panel passed a motion expressing regret that the new obstetric services package charges failed to take into account the impact on Hong Kong families of which the father was a Hong Kong resident and the mother was a TWP holder and urging the Government to exempt those families from the Decision.

F.  EFFECT OF THE REVISED OBSTETRIC SERVICE PACKAGE CHARGES

56.  Figures showed that the revised obstetric service package charges implemented since 1 February 2007 had been successful in diverting the NEP mothers to the private sector thus allowing the HA to devote its capacity to cope with the increase in demand by local mothers.  The number of NEP women giving birth in public hospitals dropped to 8,776, of which 3,859 were fathered by Hong Kong permanent residents.  There was also a significant reduction of NEP mothers seeking emergency admission to public hospitals without prior antenatal care (1,753 out of 8,776), indicating that the measures had also been effective in deterring that dangerous behaviour.

G.  GROUND 1 – DISCRIMINATION

57.  I now proceed to discuss the constitutional challenges raised by the applicant in turn.  To recap, the grounds are[10] :

(1)  Ground 1 – the Policy and the Decision constitute discrimination against them.

(2)  Ground 2 – the Policy and the Decision violate their constitutional right to social welfare.

(3)  Ground 3 – the Policy and the Decision violate their constitutional right to marriage and family.

(4)  Ground 4 – the Policy and the Decision constitute discrimination against the child and violate the child’s other constitutional rights.

58.  The first and foremost complaint is Ground 1.  In fact, it underlies all the other constitutional challenges.

G.1.   The equality provisions

59.  The right to equality is entrenched in our constitution.  Art. 25 of the Basic Law provides that :

“All Hong Kong residents shall be equal before the law.”

60.  The right to equality is not confined to Hong Kong residents alone.  For Art. 41 of the Basic Law extends the right to all persons in Hong Kong even if they are not Hong Kong residents.

61.  The right to equality is also guaranteed by the BOR.  Art. 1(1) of the BOR provides that all rights recognized therein “shall be enjoyed without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”.

62.  It should be noted that Art. 1 refers to discrimination in respect of the enjoyment of the guaranteed rights and freedoms in the BOR.  But its application does not presuppose a breach of any of the other articles in the Bill.  It is sufficient if the facts of a case fall within the ambit of one or more of the substantive articles.

63.  Art. 22 of the BOR adds :

“All persons are equal before the law and are entitled without any discrimination to the equal protection of the law.  In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”

64.  Simply put, the equality provisions in the BOR cover all persons in Hong Kong, residents or not.

65.  The 1^st applicant (a Hong Kong permanent resident) and the 2^nd applicant (a non-Hong Kong resident) are both entitled to the protection of the equality provisions in the Basic Law and the BOR.

G.2.   The equality provisions apply to the Policy and the Decision

66.  As discrimination may be perpetuated through means other than legislation, to render the fundamental right to equality before the law and to equal protection of the law meaningful and effective, “law” for the purposes of the equality principles is given a very liberal interpretation.  It is not confined to legislative activity but covers policies and practices as well : see . Douglas/Kwantlen Faculty Association v. Douglas College [1990] 3 SCR. 570 at pp. 613-614 (Supreme Court of Canada).

67.  Accordingly, both the Policy and the Decision must be compatible with the equality provisions.

G.3.   The general principles

68.  There is no doubt that because of the Policy and the Decision the 2^nd applicant, a visitor, is being treated differently from a Hong Kong resident pregnant woman when it comes to charges of obstetric services in public hospitals.  The question is : does the differential treatment based on residence constitute discrimination against the 2^nd applicant, her husband and even her child as contended?  In determining this question, I have in mind the following general principles.

69.  Differential treatment alone does not necessarily amount to discrimination.  Discrimination means a failure to treat like cases alike : Ghaidan v. Godin-Mendoza [2004] 2 AC 557, per Lord Nicholls at p. 566C; Secretary for Justice v. Yau Yuk Lung [2007] 3 HKLRD 903, per Li CJ at para. 19 at p. 913D.  It follows that there is obviously no discrimination when the cases are relevant different.  There is discrimination only if the cases are not sufficiently different to justify the difference in treatment.  The Strasbourg court has sometimes expressed this by saying that the two cases must be in an “analogous situation” : Regina (Carson) v. Secretary of State for Work and Pensions [2006] 1 AC 173, per Lord Hoffmann at para. 14 at p. 182D-E.

70.  However, the law does not invariably require exact equality in like cases.  Differences in legal treatment may be justified for good reason if they meet “the justification test” as propounded by the Chief Justice in Yau Yuk Lung at para. 20 at p. 913E-G :

(1)  The difference in treatment must pursue a legitimate aim.  For any aim to be legitimate, a genuine need for such difference must be established.

(2)  The difference in treatment must be rationally connected to the legitimate aim.

(3)  The difference in treatment must be no more than is necessary to accomplish the legitimate aim.

71.  The burden is on the decision-maker to satisfy the court that the justification test is satisfied : Yau Yuk Lung, per Li CJ at para. 21 at p. 913I.  In doing so, it is incumbent on the decision-maker to come up with all relevant materials in support : Dr Kwok-Hay Kwong v. The Medical Council of Hong Kong, CACV373/2006, unreported, 24 January 2008, per Ma CJHC, at para. 24.

72.  The court readily recognizes that the decision-maker enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment.  But while giving due deference to decision-maker’s views, the court still has the ultimate responsibility to determine whether constitutional guaranteed rights have been infringed.  The court will not abdicate its constitutional duty in this regard : see Dr Kwok-Hay Kwong, para. 25.

73.  The scope of the margin of appreciation enjoyed by the decision-maker varies according to the circumstances, the subject matter and the background : Stec v. United Kingdom (2006) 43 EHRR 47 (European Court of Human Rights Grand Chamber), paras. 51 and 52 at p. 1029.  The readiness of the court to depart from the views of the decision-maker depend on the circumstances : Wilson v. First County Trust Ltd (No.2) [2004] 1 AC 816, per Lord Nicholls, at para. 70 at p. 844F-G.  In this regard, the human rights context is important.  The more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is supportable : see R. v. Ministry of Defence, Ex p. Smith [1996] QB 517, at p. 554E-G.

74.  Thus, if one is concerned with differential treatment based on grounds which prima facie appear to offend notions of the respect due to the individual widely recognized in modern civilized societies, such as race or sex, the court will scrutinize with intensity whether the difference in treatment is justified, see Ghaidan v. Godin-Mendoza [2004] 2 AC 557 per Lord Nicholls at p. 568G; Carson, per Lord Hoffmann at paras. 15 and 16 at pp. 182E-183A; Yau Yuk Lung, per Li CJ at para. 21 at p. 913I-J.  Very weighty reasons would have to be put forward to justify the difference : Stec, para. 52.

75.  On the other hand, if the differences in treatment depend upon consideration of the general public interest such as general economic or social policy, a wide margin of appreciation is usually allowed to the decision-maker.  The more the subject matter concerns broad social policy, the less ready will a court intervene : Wilson, per Lord Nicholls at para. 70; see also Carson, at para. 16.  The court will generally respect the decision-maker’s policy choice unless it is manifestly without reasonable foundation : Stec, at para. 52.

76.  There are two main reasons why a wide margin of appreciation is given to the decision maker on matters concerning economic or social policies.  Constitutionally, those matters are entrusted to the executive and the legislature and not the court.  Institutionally, the court is not equipped to deal with them.  The executive and the legislature, because of its direct knowledge of the society and its needs, is in principle much better equipped than the court to appreciate what is in the public interest on economic or social grounds : Stec, at para. 52.

77.  In particular, the court will be exceptionally slow to intervene in cases which concern the allocation of limited financial resources in the context of public healthcare.  As explained by Sir Thomas Bingham MR in R. v. Cambridge Health Authority ex parte B [1995] 1 WLR 898, at p. 906D-F :

“… it is common knowledge that health authorities of all kinds are constantly pressed to make ends meet.  They cannot pay their nurses as much as they would like; they cannot provide all the treatments they would like; they cannot purchase all the extremely expensive medical equipment they would like; they cannot carry out all the research they would like; they cannot build all the hospitals and specialist units they would like.  Difficult and agonising judgments have to be made as to how a limited budget is best allocated to the maximum advantage of the maximum number of patients.  This is not a judgment which the court can make. …”

78.  See also Re Clarken 52 CRR (2d) 74, where the Ontario Divisional Court observed that where the context of the case is the distribution of social benefits, and where there are competing demands on scarce resources, the courts must afford the legislature deference when considering the justifiability of government measures under the equality principles.  (Emphasis supplied.)

G.4.   Two main issues

79.  Applying the above general principles, two main issues arise :

(1)  Is the applicants’ case similar to that of other EPs so as to trigger the equality provisions in the Basic Law and the BOR?

(2)  If yes, is the justification test satisfied?

G.5.   Issue 1 – Is the applicants’ case similar?

80.  As can be seen from the history leading to the Policy and the Decision, the Government, with limited resources, adopts a general policy of giving priority to Hong Kong residents for subsidized public healthcare services and in furtherance of that policy, use residence as the sole criterion for eligibility.  The applicants do not challenge the adoption of residence as the criterion for eligibility.  Nor, as will be seen in a moment, can they.  What Mr Chang, SC contended on their behalf is in effect that their position is similar to that of an EP, thus entitling the 2^nd applicant to similar treatment on obstetric services in public hospitals.

81.  At the heart of Mr Chang’s submissions is the contention that because of the 2^nd applicant’s close connection with Hong Kong, she should be accorded rights similar to a Hong Kong resident pregnant woman.  Mr Chang submitted that the mere fact that a person who is a non-holder of a Hong Kong identity card does not mean that the person has no connection with Hong Kong.  In the 2^nd applicant’s case, she has very much integrated into a Hong Kong family : she married into a Hong Kong family whose core members including her husband are all permanent residents; the child when born is a Hong Kong permanent resident; she comes to Hong Kong regularly on the strength of a TWP; she spends practically all her time living in Hong Kong subject to the limit of stay imposed on each entry; she financially relies on the 1^st applicant’s family; and she is waiting for the OWP in order to settle here.  Given her close connection with Hong Kong, Mr Chang submitted, it is wrong to lump her together with other NEPs who may be mere transient visitors when the only common characteristics is the lack of a Hong Kong identity card.  To speak of NEPs as if they were all similar and should be similarly treated is factually and legally manifestly wrong.  It creates an illusion of equality but is in fact at bottom, fundamentally unfair and discriminatory.

82.  Mr Chang then argued that differential treatment affects not only the 2^nd applicant but also the applicants’ family as a fundamental unit of the community of Hong Kong.  The 1^st applicant is being discriminated in his role as the husband and the father of the child who became a Hong Kong permanent resident upon birth.  Once it is recognized that the true analogue is not just any non-holder of a Hong Kong identity card but a Hong Kong family, the HA and the SFH had not even begun to satisfy the burden of justifying the unequal treatment and have failed to do so.

83.  Mr Chang’s submission boiled down to two propositions :

(1)  Because of the 2^nd applicant’s close connection with Hong Kong, she should be accorded rights similar to Hong Kong resident women.

(2)  The applicants’ family should be considered as an integral unit, which is analogous to an ordinary Hong Kong resident family.  What follow are :

(a)   The 2^nd applicant, as a member of the family, should be accorded similar rights as enjoyed by Hong Kong resident women married into a Hong Long resident family.

(b)  The 1^st applicant as the husband and the father of the child, should enjoy rights similar to other resident husbands and fathers, which include subsidized obstetric charges given to their resident wives.

84.  With respect, I disagree.

85.  On Proposition (1), however one views and whatever weight one attaches to the 2^nd applicant’s circumstances, she remains a visitor in law.  The alleged close connection that she has with Hong Kong or her de facto residence here, as Mr Chang described it, does not elevate her status to a Hong Kong resident in law.  Nor does her wish or expectation to settle in Hong Kong soon.

86.  If the 2^nd applicant wishes to give birth in Hong Kong, which is entirely a matter of her choice alone, she as a visitor cannot possibly expect to enjoy the same treatment as Hong Kong resident women.  The Government has no obligation to confer on her, a visitor, the same social benefits as are provided to Hong Kong residents, including subsidized obstetric services.  As explained by Lord Hoffmann in Carson at para. 18 at p. 183D-E, social security benefits are :

“an expression of what has been called social solidarity or fraternitè; the duty of any community to help those of its members who are in need.  But that duty is generally recognised to be national in character.  It does not extend to the inhabitants of foreign countries.”

87.  In Westminster City Council v. NASS [2002] 1 WLR 2956, Lord Hoffmann made a similar observation at para. 20 at p. 2962F that citizens of a society acknowledged a social duty to fellow citizens in need but not a duty on the same scale to the world at large.

88.  The same must also be true in Hong Kong.  It follows that in the present context, only Hong Kong residents can enjoy subsidized public healthcare services including obstetric services in public hospitals.

89.  For the above reasons, I hold that the position of the 2^nd applicant, as a visitor, is materially and relevantly different from that of an EP – a Hong Kong resident.

90.  To complete the discussion on Proposition (1), I need to deal with the submission that the 2^nd applicant has been unfairly lumped together with other NEPs.  While I fully accept that the circumstances of NEPs may vary from case to case, the single determining factor of denying them eligibility is their non-resident status.  Nothing more and nothing less.  Since all NEPs including the 2^nd applicant share that common characteristic that disqualifies them as EPs, I can see no substance in the complaint that she has been unfairly “lumped” together with other NEPs.

91.  I turn to Proposition (2), which is premised on the contention that the true analogue is a Hong Kong resident family.

92.  I fully accept that a family is an integral and fundamental unit of our community.  See Art. 19(1) of the BOR.  But subsidized public healthcare services are not conferred on a family as a whole.  They never were.  Eligibility has always been determined by reference to the status of the individual concerned.  Under the pre-Policy classification, of all the family members of a Hong Kong resident, only his spouse and children under 11 qualified as EPs.  It is so plainly because of their status in terms of their personal relationship with the Hong Kong resident.  In the case of the children under 11, age was an additional factor.  Other non-resident family members including his children who were over 11, his parents or grandchildren, were not qualified.  Similarly, it is so because their status was different.  For children who were over 11, their age was the disqualifying factor.  For other members, their personal relationship with the Hong Kong resident was different.  Under the post-Policy classification, it is the legal status of the individual in the family as a resident or a non-resident that counts.  So I am unable to accept the contention that the true analogue is a Hong Kong resident family.

93.  Stripped of that basic contention, Proposition 2(a) and (b) must fall.

94.  In any event, Proposition 2(a) must fail because as I have demonstrated, the 2^nd applicant’s position is materially different from that of a Hong Kong resident.  Her position does not change merely because she has married into a Hong Kong family.  Proposition 2(b) must also fail.  For the 1^st applicant is materially different from a Hong Kong resident who has married another Hong Kong resident; and he is not treated differently from other husbands who have married non-Hong Kong residents.

95.  For the above reasons, I find that the applicants’ position is materially and relevantly different from that of the EPs.  The equality provisions in the Basic Law and the BOR are not engaged.

G.6.   Issue 2 – Is the justification test satisfied?

96.  In case that I am wrong and the equality provisions are engaged, I next consider if the justification test is satisfied.

97.  To preface the discussion, I would like to mention a preliminary yet essential point, which is this.

98.  The Government has a constitutional duty to maintain an effective public healthcare system which responds timely and efficiently to the changing social, economic conditions and public needs with appropriate and effectual policies.  This duty derives from Arts. 145 and 138 of the Basic Law.

99.  Art. 145 of the Basic Law, which governs social welfare system of which public healthcare services form an important part, provides :

“On the basis of the previous social welfare system, the Government of the Hong Kong Special Administrative Region, shall, on its own, formulate policies on the development and improvement of this system in the light of the economic conditions and social needs.”

100.  Under Art. 145, the Government must formulate the policies based on the previous social welfare system, which is to ensure that the pre-handover system, as is consistent with the main theme of the Basic Law, will continue.  But it does not mean that the system should remain static.  Indeed, it cannot possibly be.

101.  An effective social welfare system must evolve with the times.  As far as resources permit, the system must be able to react to the changing social, economic conditions and public needs and meet adequately the challenges and pressures exerted on the system.  The system must be developed and improved accordingly.  Art. 145 plainly anticipates changes and hence mandates the Government to formulate the policies on the development and improvement of the system in light of the economic conditions and social needs.

102.  More specifically on medial and health services, Art. 138 of the Basic Law provides :

“The Government of the Hong Kong Special Administrative Region shall, on its own, formulate policies to develop Western and traditional Chinese medicine and to improve medical and health services. …”

103.  Like Art. 145, Art. 138 plainly anticipates changes because it requires the Government to formulate policies for improvement, which in the normal course of event includes enhancing of the existing services and adopting responsive measures to meet the changing or growing demands.  All of these, of course, must be considered in light of the social, economic conditions and public needs.

104.  These articles in the Basic Law require the Government to develop and maintain an effective public healthcare system, to make improvement to it as and when required and to mete out responses addressing the changing social, economic conditions and public needs by formulating and implementing appropriate policies.  Failure to act when necessary would be tantamount to allowing old policies in this regard to be “locked in a reliquary” : see Catholic Diocese of Hong Kong v. Secretary for Justice [2007] 4 HKLRD 483 at para. 119 at p. 515, applying Lau Kwok Fai v. Secretary for Justice, HCAL177/2002 (unreported), 10 June 2003, at para. 68.

105.  In discharging its constitutional and continual duty under Arts. 145 and 138, the Government is entitled to formulate and implement responsive polices for the allocation of public resources to public healthcare services that meet the prevailing social, economic conditions and public needs and competing interests of different sectors.  In particular, the Government is entitled to :

(a)  define who are EPs and who are NEPs; and

(b)  prescribe the appropriate charges for EPs and NEPs for various services in public hospitals, having regard to all relevant factors including costs, market rates, priority and access to the relevant services by residents.

106.  There can be no doubt that when the history leading to the formulation and implementation of both the Policy and the Decision is viewed objectively, that was exactly what the Government did at the time.

107.  I now look more specifically to see if the Policy and the Decision are justified.

108.  As noted, the justification test requires :

(1)  The difference in treatment must pursue a legitimate aim.  For any aim to be legitimate, a genuine need for such difference must be established.

(2)  The difference in treatment must be rationally connected to the legitimate aim.

(3)  The difference in treatment must be no more than is necessary to accomplish the legitimate aim.

109.  I first deal with the Policy.

110.  The objectives of the Policy were :

(1)  to bring the eligibility for subsidized public healthcare services in line with other subsidized social benefits;

(2)  to meet the problems of rising public expenditure in providing the heavily subsidized public healthcare services; and

(3)  to ensure the long-term sustainability of the public healthcare system based on a rational allocation of public resources.

To achieve these objectives, the Policy set residence as the sole criterion for eligibility for subsidized public healthcare services.  Non-residents have since been treated differently from residents.

111.  In my view, all the three requirements of the justification test are satisfied.  As can bee seen from the objectives, there is indeed a genuine need to differentiate residents from non-residents for subsidized public healthcare services.  The aim pursued by the difference in treatment accorded to them is legitimate.  Plainly, using residence as the sole criterion for eligibility is rationally connected to the aim and no more than necessary to accomplish the aim.

112.  The Policy is justified.

113.  I next consider the Decision.

114.  The obstetric package service fees were first introduced in 2005 to deal with the surge of NEPs women (most of them were, like the 2^nd applicant, TWP holders with Hong Kong resident husbands) giving birth in public hospitals and the ensuing problems.  The objectives were :

(1)  to curb unhealthy and dangerous behaviour of the NEPs such as admission via the A&E Department after midnight and early discharge against medical advice;

(2)  to deter use of public medical services by NEPs by removing the financial incentive for NEP mothers to deliver babies in public hospitals; and

(3)  to recover as much as possible costs, which were mostly incurred in the first three days of hospitalization.

115.  When the problems continued which exerted considerable stress on the system and stirred up widespread public concerns especially from local expectant mothers, the Decision was introduced to increase the package fees so as :

(1)  to ensure that priority service would be given to local expectant mothers;

(2)  to ensure that NEP expectant mothers would not be attracted to use public obstetric services because of financial incentives;

(3)  to encourage NEP expectant mothers to seek antenatal care during the course of pregnancy;

(4)  to continue the objective of curbing the unhealthy and dangerous behaviour of pregnant NEPs seeking late admission and premature discharge to minimize charges;

(5)  to continue the objective of recovering obstetric costs as much as possible while still having regard to the principle that no person should be prevented, through lack of means, from obtaining adequate medical treatment; and

(6)  to maintain public confidence in the healthcare system, having regard to the worries of local pregnant women that they might be denied access to public obstetric services.

116.  I am satisfied that all the three requirements of the justification test are satisfied.  There was clearly a genuine and urgent need to adopt a package for obstetric services for NEPs in 2005 and to set the package fees at the levels in 2005 and 2007.  The aim, which is to address the various mischiefs caused by the surge of NEPs giving birth in public hospitals, is plainly legitimate.  The measures adopted are rationally connected to the aim and are no more than necessary to accomplish the aim.

117.  The Decision is justified.

G.7.   Other submissions

118.  Mr Chang took two further points.  He first submitted that the Government failed to act on the proposal in the 2004 Legco Paper to make a distinction between NEPs who are spouses or children under 18 years of age of Hong Kong identity card holders and others who do not belong to this group[11].

119.  But the proposal was only one of the six options that the Government was then considering.  Given the wide margin of appreciation that Government enjoyed in allocation of limited public resources to social welfare benefits, and in the absence of any evidence demonstrating that the Policy and the Decision were made manifestly without reasonable foundation, I can see no ground to intervene.

120.  Mr Chang next submitted that the higher obstetric service charges could have been applied to NEPs having no close connection with Hong Kong only.  That would have been as effective to achieve the aim of the Government without depriving the 2^nd applicant the benefit of subsidized obstetric service charges.

121.  With respect, I disagree.  This close connection formula suffers from the obvious defect of uncertainty.  It will be extremely difficult if not impossible to define “close connection”.  How close is a connection sufficient?  Mr Chang submitted that the Government should look into the circumstances of each case.  But as will be seen below when I deal with Ground 7, the Government is quite entitled to adopt a general policy with sufficient certainty based on residence.  Further, the evidence shows that most of the NEPs giving birth in public hospitals were, like the 2^nd applicant, TWP holders with Hong Kong resident husbands.  It would defeat the whole purpose of the Policy and the Decision if they were to be excluded from their application.  In any event, the mere existence of possible alternative solutions does not render the Policy or the Decision unjustified : Wilson, per Lord Nicholls at paras. 69-70.

G.8.   Conclusion

122.  For the forgoing reasons, I hold that Ground 1 fails.

H.  GROUND 2 – RIGHT TO SOCIAL WELFARE AND GROUND 3 – RIGHT TO MARRIAGE AND FAMILY

123.  I now come to Grounds 2 and 3.  They can be conveniently dealt with together.

124.  The general approach to constitutional challenges based on substantive rights is :

(1)  Has a right protected by the Basic Law of the BOR been infringed?

(2)  If so, can such infringement be justified?

See Dr Kwok-Hay Kwong, para. 20.

125.  The burden rests on the decision-maker to justify the infringement and the burden is a heavy one.  The court applies the proportionality test to see if the infringement is justified.  Briefly stated, the encroachment on the rights may be justified if it has a rational connection with the pursuit of a legitimate aim and if it is no more than necessary for the achievement of that aim, see HKSAR v. Leung Kwok Hung & Others [2005] 8 HKCFAR 229, para. 36 at p. 235; HKSAR v. Lam Kwong Wai & Another [2006] 9 HKCFAR 574, para. 21 at p. 593B-C; Dr Kwok-Hay Kwong, para. 21.

126.  Mr Chang essentially took two points.

127.  The first is the common theme that within the context of Art. 36 of the Basic Law on Ground 2 and Art. 37 of the Basic Law and Art. 19 of the BOR on Ground 3, the applicants have been discriminated.  This common theme based on discrimination must now go in light of my conclusion on Ground 1.

128.  The second point is that the disparity of obstetric service charges as applied to the 2^nd applicant violate the applicants’ right to social welfare under Art. 36 of the Basic Law and their freedom of marriage and their right to raise a family under Art. 37 of the Basic Law and Art. 19 of the BOR.  This point does not bear a closer scrutiny.

129.  Art. 36 of the Basic Law provides :

“Hong Kong residents have the right to social welfare in accordance with law. …”

130.  I do not think the 1^st applicant can invoke Art. 36 for the simple reason that it does not confer on him any right to receive subsidized obstetric service charges, which are applicable to women only.  The 2^nd applicant, as a non-resident, cannot avail herself of Art. 36 either : see Santosh Thewe & Another v. Director of Immigration [2000] 1 HKLRD 717, per Stock J (as he then was) at p. 721C.  Art. 36 is therefore not engaged.

131.  Even if Art. 36 is engaged and assuming that there is an infringement of the applicants’ right, the disparity in charging the 2^nd applicant higher NEP fees is justified under the proportionality test because the Policy and the Decision, as I have demonstrated above, are well justified.

132.  Art. 37 of the Basic Law provides :

“The freedom of marriage of Hong Kong residents and their right to raise a family freely shall be protected by law. …”

Art. 19 of the BOR stipulates :

“(1)  The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

(2)  The right of men and women of marriageable age to marry and to found a family shall be recognized.

…

(4)  Spouses shall have the equal rights and responsibilities as to marriage, during marriage and at its dissolution. …”

133.  The right conferred under Art. 37 is to raise a family freely.  Art. 19 recognizes the right to found a family.  But they confer no right on the applicants to subsidized public healthcare services.  Indeed, as Lord Pannick, QC, for the HA and Mr Chow, SC for the SFH rightly pointed out, a decision by the applicants to raise a family involves many financial expenses against which Art. 37 and Art. 19 provide no protection.  A responsibility to pay for obstetric fees is no more an infringement of those articles than a responsibility of parents to pay for food and clothing.  It is really incumbent upon the applicants to make suitable arrangements to cope with meet the needs including obstetric services in light of the family’s social and financial circumstances.

134.  Neither Art. 37 nor Art. 19 is engaged.

135.  Even if Art. 37 or Art. 19 is engaged and the applicants’ rights are infringed, the disparity in the obstetric fees applicable to the 2^nd applicant is justified under the proportionality test for the same reason that the Policy and the Decision are justified.

136.  Both Grounds 2 and 3 must fail.

I.    GROUND 4 – THE RIGHTS OF THE CHILD

137.  I now turn to Ground 4 which concerns the child.  The applicants complained that the Policy and the Decision discriminate their child and violate his constitutional rights.  The applicants’ reliance on the child’s interests is entirely misconceived for the simple reason that the obstetric charges apply to the 2^nd applicant only.  They do not concern the child, whether before or after birth, at all.  Two additional reasons explain why the child’s interests are irrelevant.

138.  First, before birth, a foetus does not have any interests of its own that are capable of being taken into account until it is born and has a separate existence from its mother : Hospital Authority v. C [2003] 1 HKLRD 507, per Hartmann J (as he then was) at para. 17 at p. 512D-E, applying Re MB (Caesarean Section) (1997) 38 BMLR 175 at p. 193.  The courts do not treat a foetus as simply an integral part of the mother and recognize the foetus is a unique organism, albeit living symbiotically with the mother.  In the area of medical law, as the authorities demonstrate, it is the mother’s interest alone that the courts will have regard to.  In my view, it must be the same in the present context.  So the child, before birth, did not have any interests of his own that were capable of being taken into account.

139.  Secondly, after birth, newborn babies are charged for the services provided to them according to their own status.  Since the child is a permanent resident and thus qualifies as an EP, the EP rates apply to him.

140.  Ground 4 also fails.

J.    GROUND 5 – INCONSISTENT WITH THE HAO

141.  Having disposed of all the constitutional challenges, I now come to Ground 5, the complaint based on ultra vires.

142.  It is well established that when a statue confers discretion on a decision-maker, the legislature must have conferred the discretion with the intention that it should be used to promote the policy and objects of the statue.  The policy and objects or the statute must be determined by construing the statute as a whole and construction is always a matter of law for the court, see Padfield v. Minister of Agriculture, Fisheries and Food [1968] AC 997, at p. 1030B-C; Reg. v. Tower Hamlets L.B.C., Ex p. Chetnik Development Ltd [1988] AC 858, at pp. 872A-873B; R. v. Environment Secretary, Transport and the Regions, Ex p. Spath Holme Ltd [2001] 2 AC 349, at p. 381B-F.

143.  Mr Chang’s submission is in substance this.  The HA and the SFH failed to have proper regard to “the lack of means principle” enshrined in section 4(d) of the HAO when they made the Decision.  Further, section 5(g) confers a discretion on the HA to exempt persons from paying NEP fees.  Under section 18(6), the SFH may give directions to the HA on the fees which may be charged and the HA shall comply with the directions.  Both the HA and the SFH knew that the 2^nd applicant could not afford the NEP obstetric charges but refused to exempt her.  This is a total disregard of “the lack of means principle” which renders the decision not to exempt her an unlawful exercise of discretion.  I disagree.

144.  Section 4 of the HAO sets out the functions of the HA in these terms :

“The Authority shall –

(a)  in accordance with the provisions of this Ordinance … manage and control public hospitals;

(b)  advise the Government of the needs of the public for hospital services and of the resources required to meet those needs;

(c)  manage and develop the public hospitals system in ways which are conducive to achieving the following objectives-

(i)  to use hospital beds, staff, equipment and other resources efficiently to provide hospital services of the highest possible standard within the resources obtainable;

…

(d)  recommend to the [SHWF] for the purposes of section 18, appropriate policies on fees for the use of hospital services by the public, having regard to the principle that no person should be prevented, through lack of means, from obtaining adequate medical treatment; …”

145.  Section 5(g) empowers the HA to do all such things as are necessary for, or incidental or conducive to, the better performance of its functions and in particular and may subject to section 18, charge fees for the provision of hospital services.

146.  Section 7 defines the resources of the HA to include money provided by the Government, and all other money and property including fees received by the HA.

147.  Section 18(1) enables the HA to determine the fees payable for hospital services provided by public hospitals, subject to directions given by the SFH under sub-section (6).  Under sub-section (3), the HA may, subject to directions by the SFH, waive fees in whole or in part.  Under sub-section (6), the SFH may give directions to HA in writing of a general or specific character in relation to charging or waiver of fees.

148.  Under section 4(d), the HA must take into account “the lack of means principle” when recommending policies on fees to the SFH.  But it does not make the principle the only relevant or the overriding factor in the HA’s recommendation.  It cannot possibly be the intention of the section 4(d) to oblige the HA to make medical treatment universally available irrespective of means when the HA itself operates with limited resources.  It follows that while due regard must be given to “the lack of means principle” when it makes recommendation on fees policy to the SFH, the HA is entitled and indeed obliged to take into account all factors which are relevant to its recommendation.  Factors such as the prevailing social, economic conditions and public needs are plainly relevant.  So are, in the case of the Decision, the problems caused by the increase of NEPs (who are mostly TWP holders with Hong Kong resident husbands) giving birth in public hospitals.

149.  Likewise, when the SFH gives directions to the HA under section 18(6), he can take broad issues of public interest into account in setting the level of fees.  His consideration is not limited to “the lack of means principle” but must also include social, economic conditions and public needs.  He is quite entitled, in the case of the Decision, to give substantial weight to the pressing need to address the serious problems exerted on the public healthcare system by the heavy influx of TWP holders with Hong Kong resident husbands into Hong Kong to give birth in public hospitals.

150.  The making and implementation of the Decision is plainly in the furtherance of the policy and objects of the HAO.  Any complaint that the Decision is ultra vires the HAO cannot possibly stand.  Further, all the factors that justified the Decision likewise justify the decision not to exempt the 2^nd applicant from the higher NEP obstetric charges.  As I have already noted, most of the NEPs covered by the Decision are, like the 2^nd applicant, TWP holders with Hong Kong resident husbands.  If she were to be exempted, it would defeat the whole purpose of the Decision.  In the circumstances, neither the HA nor the SFH had unlawfully exercised the discretion not to exempt the 2^nd applicant.

151.  Ground 5 fails.

K.  GROUND 6 – WEDNESBURY UNREASONABLENESS

152.  Ground 6 does not take the applicants’ case any further.  For Mr Chang’s submissions based on the Wednesbury grounds are mere repetitions of his submissions on Grounds 1 to 5, which I have already rejected.  It follows that Ground 6 must fail as well.

L.  GROUND 7 – WAIVER

153.  Finally, I come to Ground 7.  Mr Chang in essence repeated his submission that when applying the Decision, the HA and the SFH must look into the circumstances of each and every individual case but had failed to waive the NEP obstetric fees applicable to the 2^nd applicant which amounted to a blanket and unlawful application of the Decision.

154.  I have already explained in Part J why the HA and the SFH had acted lawfully in refusing to exempt the 2^nd applicant.  Further, as rightly pointed out by Lord Pannick, there is a need for legal certainty and a workable rule : Carson, para. 41 at p. 188E.  The Decision based on residence serves to promote legal certainty and to avoid the problems of arbitrariness and inconsistency inherent in weighing on a case by case basis : see Evans v. United Kingdom (2007) 46 EHRR 728, at para. 89 at p. 755.  The HA and SFH are entitled to apply the Decision with vigour and adhere to the decision not to exempt the 2^nd applicant.

155.  Ground 7 also fails.

M.  ORDERS

156.  All the grounds raised by the applicants to impugn the Policy and the Decision fail.  This application for judicial review is dismissed accordingly.

157.  Costs should follow the event.  I will make an order nisi that the SFH and the HA shall have costs against the applicants, to be taxed if not agreed.  The applicants’ own costs are to be taxed in accordance with legal aid regulations.

[1]  In the Form 86A, the applicants contended that the Decision violated their and their child’s right to social welfare under Art. 145 of the Basic Law.  At the hearing, Mr Chang, SC for the applicants conceded that there was no breach of Art. 145 as such.

[2]  Section 4(d).

[3]  Section 18(6).

[4]  See section 18(1)–(5).

[5]  Section 5(g).

[6]  See Regulation 25(d) of the RPR.

[7]  See para. 2 of the direction given to the HA by the SHWF preceding the Policy, quoted in para. 28 below.

8  Under Regulation 25(g) of the RPR, children under 11 are exempted from applying for Hong Kong identity cards.  Children who are residents and under 11 are thus attached to their resident parents for EP classification.  Children who are residents and above 11 have to apply for and hold Hong Kong identity cards.  They are qualified as EPs in their own right without attaching to their resident parents.

[8]  26,675 babies by EPs and 10,992 by NEPs totalled 37,667.

[9]  See para. 38 above.

[10]  See para. 13 above.

[11]  See para. 38 above.