BRIAN KING v. DIRECTOR OF HOUSING

HCAL 1794/2020

[2020] HKCFI 2416

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1794 OF 2020

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D E C I S I O N

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1.  This is the Applicant’s application for a writ of habeas corpus in respect of a person referred to by the Applicant as “Ms Nutit Lo” (“Ms Lo”).

2.  In a document entitled “Affidavit/Affirmation” attached to the Applicant’s affirmation dated 8 September 2020, the Applicant states as follows:

“[1] I am seeking the issue of Writ of Habeas Corpus pursuant to order 54 rule 1 of the Rules of the High Court.

[2] Ms Nutit Lo is the person whose liberty is being sought.

[3] Ms Lo is not literate in Chinese or English and incapable of making an application herself or otherwise instructing a legal representative to do so.

[4] I am making this application on her behalf as a third party.

[5] I allege that Hong Kong Housing Authority/Housing Department (‘HKHA/HD’) is holding Ms Lo incommunicado.

[6] HKHA/HD has refused to disclose Ms Lo’s current address to me in response to three Access to Information (‘ATI’) requests I made between April and May 2020 without lawful justification.

[7] HKHA/HD is restraining Ms Lo’s liberty in at least two ways.

[8] First, by refusing to disclose essential contact information to me (as her intending spouse), it is restraining Ms Lo’s liberty by preventing her from exercising her right to marry under BL 37 and HKBOR 19(3).

[9] BL 37 stipulates

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

[10] HKBOR 19(3) stipulates

‘No marriage shall be entered into without the free and full consent of the intending spouses.’

[11] Second, HKHA/HD is restraining Ms Lo’s liberty by prohibiting her from exercising her right to seek and receive information under HKBOR 16(2).

[12] HKBOR 16(2) stipulates

‘Everyone may hold any opinion he wishes.  He has the freedom to express himself, and to give and receive ideas and information of all kinds through any medium.  This freedom may be subject to legal restrictions that are necessary for respect of the rights or reputations of others, or for the protection of national security, public order, or for public health or morals.’”

3.  The Applicant made it clear at the hearing on 11 September 2020 that he was not alleging that Ms Lo was subject to physical detention by the Hong Kong Housing Authority or Housing Department, and what he was seeking by the present application was contact information concerning Ms Lo.

4.  Ms Kao on behalf of the Housing Department confirmed at the hearing that Ms Lo was not being kept or detained by the Hong Kong Housing Authority or Housing Department in any shape or form.  However, due to privacy concerns and in the absence of legal justifications, neither the Hong Kong Housing Authority nor the Housing Department was prepared to release any contact information relating to Ms Lo to the Applicant.

5.  In my view, the present application for a writ of habeas corpus is misconceived, because the remedy of habeas corpus can only be used to address the situation where a person has been detained without lawful justification (see section 22A of the High Court Ordinance, Cap 4).

6.  Further, an application for a writ of habeas corpus “must be supported by an affidavit by the person restrained showing that it is made at his instance and setting out the nature of the restraint”, except that “[w]here the person restrained is unable for any reason to make the affidavit …, the affidavit may be made by some other person on his behalf and that affidavit must state that the person restrained is unable to make the affidavit himself and for what reason” (see Order 54, r 1(2) and (3) of the Rules of the High Court, Cap 4A).  The Applicant’s allegation that Ms Lo is not literate in Chinese or English is not a sufficient ground to show that she is unable to make the required affidavit.  It has not been shown that the present application is made at Ms Lo’s instance.  There is also no proper basis for the Applicant to make the present application on behalf of Ms Lo (in his words, “as a third party”).

7.  For the above reasons, the present application for a writ of habeas corpus is dismissed.  Since Ms Kao does not seek costs against the Applicant, I make no order as to costs.