RE SHIAO KWOK-WAI, SUNNY

[English Translation – 英譯本]
CACV 49/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 49 OF 2015

(On appeal from HCAL 160/2014)

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JUDGMENT

Chu JA giving the judgment of the Court:

1.  The applicant, Mr Shiao Kwok-wai, Sunny, applied to the Court of First Instance for leave to apply for judicial review in respect of two decisions the Mental Health Review Tribunal (“the Tribunal”) made on 12 August 2013 (file number MHRA 96/2013) and 27 October 2014 (file number MHRA 162/2014) respectively.

2.  On 9 February 2015, after reading the relevant documents, Au J refused to grant leave to the applicant.

3.  The applicant appealed against the decision of Au J.

4.  The facts relating to the appeal are as follows: On 24 February 2012, the police sent the applicant to the Accident and Emergency Unit of a hospital following a complaint that the applicant had a dispute with a neighbour and hit an elderly person. After a doctor had made a diagnosis, arrangement was made for the applicant’s admission into Kwai Chung Hospital for observation and compulsory treatment pursuant to section 31(1) of the Mental Health Ordinance, Cap 136. It was the doctor’s diagnosis that the applicant was suffering from paranoid schizophrenia and had to receive antipsychotic depot injections to control the condition.

5.  Later, pursuant to sections 42B (1) and 42B (2) of the Mental Health Ordinance, a doctor granted the applicant conditional discharge from hospital. On 31 May 2012, the applicant understood and promised to observe the conditions of discharge. On 1 June 2012, the applicant was conditionally discharged from hospital. The conditions included that he had to attend the West Kowloon Psychiatric Centre regularly for follow-up consultation and treatment, to receive community psychiatric nursing services and counselling from a social worker of the Social Welfare Department and to attend Kwai Chung Day Hospital to receive training (“conditions of discharge”).

6.  After his discharge from hospital, the applicant did comply with the above conditions. He attended follow-up consultations regularly, met with the social worker and received training.

7.  However, the applicant had all along held the view that he was not mentally ill and needed no follow-up consultation and treatment. He therefore applied to the Tribunal for the lifting of the conditions of discharge. The Tribunal heard his application (MHRA 96/2013) on 12 August 2013. It decided that the conditions of discharge of 1 June 2012 should continue. In its written decision, the Tribunal pointed out that the applicant had poor insight into his mental illness, poor social support and propensity for violence under psychotic influence. To ensure that the applicant would receive proper treatment, uninterrupted counselling and supervision, it was necessary for the conditions of discharge to continue. The Tribunal therefore refused his application.

8.  The applicant later re-applied for the lifting of the conditions of discharge (MHRA 162/2014). The Tribunal accepted the reports prepared by the doctor-in-charge and the social worker of the applicant. It was satisfied that the conditions of his discharge from hospital must continue. His application for review was therefore refused.

9.  The applicant applied for leave to apply for judicial review on 1 December 2014 against the decisions the Tribunal above.

10.  Au J refused to grant him leave on 9 February 2015. The relevant reasons are as follows:

“The ground the applicant advanced in support of the application for the judicial review he intended to make is in fact to seek to challenge and oppose the decision of the Tribunal to accept the relevant expert reports and its findings regarding them. These are not findings that a court of law will usually interfere with in public law. The applicant failed to show that that he had a reasonably arguable case with realistic prospects of success that the said findings involved an error at law or were Wednesbury unreasonable. Therefore, there is no reasonably arguable case whatsoever in the judicial review that he intended to apply for. In the result, the court will not allow his application for leave.”

11.   On 23 February 2015, the applicant filed a notice of appeal to appeal against the decision of Au J.

12.   The applicant put forward the following points in the notice of appeal to support of his appeal:

(1) The applicant was not driven by auditory hallucinations when he hit the elderly person. He is not suffering from schizophrenia and is not a mental patient.

(2) The doctor who diagnosed the applicant and the social worker in charge of his case lied. They misdiagnosed or wrongly alleged that he suffered from mental illness.

(3) As a result, it was wrong to compel the applicant to stay in Kwai Chung Hospital to receive treatment pursuant to the Mental Health Ordinance.

(4) Kwai Chung Hospital had no reason to detain the applicant and give him injections and to forcibly recall him to hospital where he was forced to take medication.

(5) As the applicant’s case concerned an erroneous application of the law, an incorrect use of medical treatment by injections, and unreasonable decisions, it is a suitable case for judicial review.

(6) It was indeed true that the applicant would challenge the expert reports in his judicial review application. He was also aware that the court would not interfere in his case under public law, but as he indeed did not suffer from any mental illness, it was not necessary to hire any expert to prepare a document to certify this. Moreover, this application could serve as a reminder to show that the applicant was not suffering from schizophrenia.

13.   In a nutshell, the core ground in support of the applicant’s intended judicial review application was that the doctors who were responsible for diagnosing and treating him were mistaken in the medical judgments they made, and the social worker in charge of his case was also wrong in alleging that he was suffering from mental illness, and the Tribunal had twice made the mistake of accepting the reports of the doctors and the social worker and their judgment.

14.   The applicant being the party making the application has the duty at law to put forward factual evidence to prove that his case is true and credible.  In making the claim that he was not suffering from paranoid schizophrenia and was not a mental patient, the applicant must produce evidence to prove that these claims are factually substantiated. Whether someone is a mental patient is a medical judgment only to be made by an expert who possesses the relevant professional knowledge. The applicant does not possess the relevant professional knowledge, his claims are not sufficient to prove his mental health condition, nor are they sufficient to rebut the diagnosis made by the psychiatrists of Kwai Chung Hospital.

15.   Pursuant to section 31(1B) of the Mental Health Ordinance, a District Judge or magistrate can, based on the written opinion of a registered medical practitioner who opines that that a patient 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, and the patient ought to be so detained in the interests of his own health or safety or with a view to the protection of other persons, make an order authorizing the removal of the patient to a mental hospital for the detention and observation.

16.   Section 32 of the Ordinance provides that if a patient under observation in a mental hospital has been examined by 2 registered medical practitioners, separately or together, and they are of the opinion that it is necessary that the patient under observation should be detained in a mental hospital for a further period for the purpose of observation, investigation and treatment, they may complete a certificate. If a District Judge who has received the certificate is of the opinion that it is necessary for the person named in the certificate to be detained in a mental hospital for a further period of observation, investigation and treatment, he shall countersign the certificate.

17.   It can be seen from the documents the applicant submitted to the court that he was sent to Kwai Chung Hospital for observation on 24 February 2012 pursuant to sections 31 and 32 of the aforesaid Ordinance. He was detained in Kwai Chung Hospital for treatment until 1 June 2012 on the strength of a certificate dated 28 February 2012 completed by two registered medical practitioners and countersigned by a District Judge.

18.   Pursuant to section 42B of the Mental Health Ordinance, where it appears to the medical superintendent that a patient who has a medical history of violence or a disposition to commit violence may be safely discharged subject to the conditions specified in an order for discharge, he may discharge the patient, and requires that he complies with conditions such as where he should reside at, the follow-up consultations he has to attend, the taking of medication as prescribed by a medical practitioner, or being placed under the supervision of the Director of Social Welfare.

19.   It can be seen from the documents in this case that the medical superintendent of Kwai Chung Hospital made the decision to conditionally discharge the applicant on 31 May 2012[1], and the applicant agreed to observe those conditions. The applicant was then released from hospital on 1 June 2012.

20.   Thus, it can be seen that the applicant was lawfully detained in Kwai Chung Hospital for observation and treatment from 24 February 2012 to 1 June 2012 pursuant to the provisions of the Mental Health Ordinance. The hospital and the medical practitioners responsible for treating him likewise lawfully and justifiably administered medicinal injections and medicines to him for treatment.

21.   In view of the fact that the applicant was initially sent to hospital because of the dispute he had with a neighbour during which he hit an elderly person, and the medical practitioner who attended to him was of the view that he had poor insight into his illness, that is to say, he was not sufficiently aware of his own mental condition, the medical superintendent of Kwai Chung Hospital was of the opinion that to allow him conditional discharge could ensure that he continued receiving treatment and taking medication as prescribed by a medical practitioner. This decision is well-founded.

22.   In dealing with the review applications of the applicant, the Tribunal did on both occasions refer to the reports prepared by the medical practitioners and the social worker.  In Dr. Tsang’s report dated 10 July 2013, it was pointed out that the applicant had poor insight into his illness and poor social support. Therefore, Dr. Tsang recommended that the conditions imposed on the applicant’s discharge should continue. Besides, Doctor Lee, who had been seeing the applicant since January 2014, also stated in his report dated 18 September 2014 that the condition of the applicant subsided after he had continued to take psychiatric drugs. Furthermore, the social worker in charge of the applicant also stated in his/her report dated 12 September 2014 that the applicant lived alone with no contact with his family and community. The conditions imposed on him could ensure that he continued to attend follow-up consultations and take medicines to control his condition so as to enable him to live in peace in the community. The report pointed out that as the applicant did not agree with the doctor’s diagnosis, should the conditions of discharge be lifted, he might not undergo treatment again.

23.   In our view, on the basis of the information before the Tribunal during the review hearings and the expert reports and opinions, the Tribunal was entitled to decide not to vary or lift the conditions of discharge.

24.   In deciding whether or not to grant leave to apply for judicial review, the court must be satisfied that the intended application is reasonably arguable with realistic prospects of success before granting leave: see Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. The applicant has failed to show that it is unlawful or unreasonable or wrong for the Tribunal to accept the reports by the medical experts and the social worker and to decide that the applicant should continue to comply with the conditions of discharge specified. In the circumstance, Au J was correct not to grant leave to apply for judicial review.

25.   In the result, we dismiss the appeal and make no order as to costs.