陳碩謙 對 醫院管理局

CACV 189/2012

香港特別行政區

高等法院上訴法庭

民事司法管轄權

民事上訴

案件編號：民事上訴案件2012年第189號

（原本案件編號：高等法院民事訴訟編號2011年第945號）

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上訴法庭副庭長林文瀚頒發上訴法庭判案書：

Part A

1.  原告人在2011年10月12日入稟法院，控告被告人不合理羈留，及要求法院禁止被告人管轄下醫院再羈留他。

2.  被告人在2011年11月23日發出傳票要求法院撤銷原告人的申索，因為原告人沒有根據《精神健康條例》第69條在提出申索前向法庭申請許可。

3.  《精神健康條例》第69條規定:

「(1) 任何人如曾根據本條例的條文提出將某人移送或羈留的申請，或曾簽署或執行或曾作出任何作為以期簽署或執行一項看來是用以移送或羈留的命令或一份看來是根據本條例所作出的報告、申請書、建議書或證明書的報告、申請書、建議書或證明書，或曾以專業人士身分依據本條例作出任何事或提供任何意見，則不得以無司法管轄權為理由或由於其他理由而使該人須在民事或刑事法律程序中負上法律責任，除非該人曾不真誠地行事，或行事時缺乏合理程度的謹慎，則屬例外。

(2) 如無原訟法庭的許可，不得就第(1)款所述的事項在原訟法庭針對某人而提起民事或刑事法律程序，而除非原訟法庭信納有實質理由，以指稱該名在擬提起的法律程序中被針對的人曾不真誠地行事或行事時缺乏合理程度的謹慎，否則不得給予許可。 (由1998年第25號第2條修訂)

(3) 凡根據第(2)款提出申請，必須向在擬提起的法律程序中屬被針對的人發出該申請的通知，而該人有權陳詞反對該項申請。」

4.  該條例的英文版本如下：

“(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.”

5.  高等法院聆案官在2012年3月22日經聆訊後剔除原告人的申索並撤銷訴訟。

6.  原告人不服，向原訟庭法提出上訴。高等法院法官陳美蘭在2012 年4月20日展開公開聆訊，並於同日駁回原告人的上訴 。

7.  在她的判決書中，陳法官認為原告人的申索屬於《精神健康條例》第69條所涉及的範圍之內。因此原告人必須先獲得原訟法庭的許可，才可以展開這項訴訟。原告人在2012年5月31日在HCMP 1096/2012中向法庭提出第69條許可的申請。在該案件中，杜法官在2012年9月19日頒令暫時擱置，直至本上訴作出判決為止。

8.  原告人就陳法官的判決，在2012年8月28日向本庭提出上訴。原告人曾經在2012年4月30日提出上訴許可申請，但該申請在2012年5月14日被陳法官駁回。及後，他再向上訴法官提出上訴許可申請。上訴庭法官張澤祐在2012年8月22日給予上訴許可。

9.  在他2013年8月28日向本庭提交的陳述書，原告人描述他的申索內容如下：

「…院方不容許人報警及打官司以借此不合理羈留以剝奪人自由（ 今次控告事項），我之前雖指出羈留申請書內容只是要證明羈留不合理的先題和順帶一提，我請法庭以院方不容許人報警及打官司以借此而造成的不合理羈留及各種理由要醫各不能賴到所謂69條的專家報告書之上，因這只是一少部份，而其他原因造成的不合理羈留呢？怎可賴不用處理？他們多範籌作奸犯科都不一定受69條胡亂保障，我法定上有權自訂訴訟內容，法庭之前卻受對方律師誤導，強行更改我訴訟內容以賴在69條上，其實在最早一份HCA 945/2011案件陳述書上已提到不容許打官司及報警以剝奪人自由一事…

第69條是阻人去濫用司法容許醫生進行小報告，但現在報告打了上這麼久，我卻倒是有權在不針對專家，報告及不阻執行羈留的情況下控告，故一條控告無證據與69條有何關係，第69條無說過可阻止這合法控告，不可強行冤枉說我阻專家報告及執行羈留就抵賴不用告，根本分清證據我就不一定犯了第69條，大部份控告內容都不關69條怎可一拼剔除。總之，具體來說就算專家報告不用告但不容許人打官司的錯誤羈留都可繼續告。總括而言第69條旨在不阻打小報告，但精神健康條例旨明不可虛假報告，我亦可在不犯第69條時卻只是順帶提到。醫件局不是白白被召到庭上是有原因卻誤導法官這是白白從而屈訟費對方偽造而我無講大話 1.對方律師當彭官庭上指我當初申索陳述書內容只是圍繞羈留申請書，她是大話 2.對方律師兩次當陳官面前誤導法官我所提的訴訟內容為另外東西 3.醫管局故意約我出庭該鐘數出來見面 4.對方律師出信誤導有關上訴排期的方法，令本來不知方法的我更難排期 5.對方律師竟指我只會針對第69條中專家報告和職員執法，其實這是無可能，我反只會針對損失自由和院方不容許人打官司造成的任何原因形式自由損失去追究“最主要的賠償控告”」

10.  關於《精神健康條例》第69條，原告人作以下的陳詞:

「1． 無辨法證明我腦內有何病理，故此羈留條例的引用絕對不能成立，故此醫管局要立即賠償，有無病這種根據在法庭是相當嚴謹的，即使醫務人員有權說也不可將胡說當做根據法庭亦必須正視我無100%病理根據而故此“羈留”法理依據不成立，故局方應賠償；

2． 醫管局的醫生證人謊言歪理誤導連篇而局方無糾正，而更主要因為不容許人以此報警打官司而應賠償；

3． 所以對方所強指的我方訴訟原因關第69條事非事實，故此不能依據第69條；

4． 第69條無限大而任何令醫管局立於不敗之地也只是對方以自己利益無限大的一種幻想；

5． 對方造成極大人身傷害不容置疑，應賠償；

6． 要對方解釋點解羈留先，否則請即入賠償的正題；

7. **要求法庭證明及聲明精神病科斷症無確實肯定根據；

8． 每次也問及質疑醫生根據；

9． 醫生打的報告絕對無親眼見到無確切根據，正正是亂打報告偽造文書請法庭嚴正查明此事找出誰清白；

10． 既然院剝套本人法定訴訟權利更令人自由，本人追討自由及相關損失。」

11.  原告人就他的訴因總結如下:

「申索內容：本人2005年及2006年兩度被誣陷判入精神病院時間為期約9個月加一年三個月（計正式出院期的話更耐）。外國有案例曾被剝奪自由的人每小時獲賠萬多員港幣（相約價值），本人以此根據要求青山醫院（醫院管理局）每小時剝奪本人自由的時間賠償最少1萬7千員港幣並就有機會一直被剝奪法律權失去申辯而錯誤羈留賠償。被羈留青山醫院期間 1.待遇比監倉囚犯還差，莫過於最苦的生活2.可享受的人生壽命被剝奪，錯過了失去了年青及可擁有的人生時間 3.反而要過最苦的日子4.本人學業被打斷，失去學歷和事業發展機會 5.羈留期間青山醫院沒有保障本人通訊自由更故意剝奪 6.事件導致本人遭受白眼歧視 7.本人亦在被羈留期間被護士武力威嚇濫權虐待，綁手綁腳二、三小時，對方並沒有行使權力的理據，而且國際就虐待的定義包括自由身體活動的權利是受保障8.本人被誣陷自己的醫生處以不當的強制治療，身心受創9.本人兩次羈留期限為無限期，應以此計算，本人以82年壽命為準則賠償應計算為62 年，及因為羈留期間青山醫院剝奪本人司法報警，投訴等的自由，雖醫院和法律有指引但醫院並無對本人保障反而借口剝奪。證明醫院有意識使本人無限期被羈留，並以武力回應合理要求10.醫院內的衛生條件惡劣。例如：必須用作口服送藥的牛奶有廁所味等，旨因洗碗員用洗廁所的膠手套清洗杯具。11.每天受真正的精神病人威脅。12.交友及戀愛自由被故意剝奪，影響終生幸福。13. 飲食及玩樂自由被剝奪14.本人就被強制被剝奪了的自主尊嚴亦提出申索。15.亦剝奪本人就知識產權的作品發表自由，以致創作發明受阻。16.醫院當時剝奪法律申索權利，是為黑暗封閉，有意圖永久封閉於病院內，並意圖免受法律監管。17. 醫院惡意留難本人的病人身份的申辯機會，以致出院希望受極大影響。18.懲罰性賠償。本人以上述理由1.申索五百萬。2.及3.申索一千萬。4.以人生平均82年壽命假設共以人生平均82年壽命假設共申索當時剩下壽命60年乘10000員每月失去薪金及尊嚴損失各（72000000元）

5．申索500萬6.申索50萬 7.申索500萬 8.申索500萬 9.申索62年乘以1.8萬每小時（共9568368000元）10.申索100萬 11.申索100萬 12.申索200萬 13.申索50萬 14.申索50萬 15.申索50萬 16.與第9項一樣（共9568368000） 17.法官酙量決定 18.法官酙量決定另加一些心理創傷及其他賠償的追討每項200萬：a失業心理創傷，b失學心理創傷，c失自由心理創傷，d失人際心理創傷， e失家人信任及f其心理創傷，g失生活樂趣及其心理創傷，h長期受藥物影響及i期心理創傷，j失生活品味而下賤及k期心理創傷，L強逼人接受醫管局立場控制思想自由及m其心理創傷，n剝削了過平常日子的壽命時間的心理創傷，o對法律權利之剝削，p對文書及言論自由之剝削，q院方常派人探訪其實是惡意及r其心理傷害，亦就醫管局以濫權行政手段達致綁架目的索償3億元 」

12.  按照被告人呈交的證據，原告人曾經在2005年及2006年分別被羈留在青山醫院，有關情況如下:

「2005年5月- 第1次羈留

6． 根據病歷紀錄，原告人在1997年開始出現精神異常，被診斷為患上精神分裂症(schizophrenia)。原告人認為父親在其食物中下毒，覺得其他人在網上討論他，又有古怪行為如將自己的尿液儲存在瓶子裏放在床邊，原告人的學校成績變差，人際關係亦出現問題。原告人於2005年期間，由於不準時服藥，令其情況轉壞，經常自言自語，又不願吃母親為他準備的食物、曠課、打架等。原告人時常與家人發生衝突，向家人發脾氣及大罵家人，並向家人表現出侵略性的行為。

7．於2005年5月，原告人又與家人吵架，其後警察到場，原告人被勸服到青山醫院受治療。

8．原告人於2005年5月17日自願入院，於2005 年5月22日要求出院。…

9. 經青山醫院醫生（包括精神科醫生）檢查後，認為原告人有精神紊亂，而其精神紊亂的性質或程度，足以令他適宜留在醫院內接受治療。於是，為原告人的健康或安全著想及為保護他人著想，青山醫院兩位醫生於2005年5月27 日，根據《精神健康條例》第36條填寫及簽署表格7，將原告人羈留在青山醫院內繼續接受治療。該表格由區域法院暫委法官Browne於2005年5月28日加簽。…

10. 原告人其後於2006年4月1日離開青山醫院。…

2006年6月- 第2次羈留

11． 原告人在出院後不久，情況再次轉壞。根據紀錄，於2006年6月19日，原告人由於母親勸他服藥而摑打母親的臉部，其後原告人被帶到屯門醫院急症室。

12． 屯門醫院醫生（包括精神科醫生）替原告人檢查後，認為原告人的精神分裂症復發，而其精神紊亂的性質或程度，足以構成理由將他羈留在精神病院內，以接受觀察及治療。由於原告人不肯自願留院，為原告人的健康或安全著想及為保護他人著想，原告人的母親根據《精神健康條例》第35A(1)條簽署表格1及屯門醫院醫生根據《精神健康條例》第31(1A)條簽署表格2，申請將原告人移往青山醫院作羈留和觀察。該申請獲屯門法院裁判官Peter S K HUI根據《精神健康條例》第31(1B)條授權批准。…

13. 於2006年6月21日，由於原告人的情況未有改善，對自己的精神病缺乏認知，不願服藥，精神紊亂病徵持續，又對自己的暴力行為沒有悔意，對家人有的攻擊性風險，因此，青山醫院醫生根據《精神健康條例》第36條填寫及簽署表格7，將原告人羈留在青山醫院內繼續接受治療。該表格由區域法院暫委法官S T POON於2006年6月22日加簽。…

14. 原告人其後於2007年10月20日離間青山醫院。…」

13.  雖然原告人不同意醫生的結論，但是他對羈留的時間地點及羈留前的程序並沒有提出與被告人不同的證據。無可爭議的事實是:青山醫院是按照區域法院法官根據《精神健康條例》簽發的命令獲得授權羈留原告人。

14.  《精神健康條例》第31條規定:

「(1) 凡基於下述理由，可向區域法院法官或裁判官申請將某名病人羈留以作觀察的命令─

(a) 該病人患有精神紊亂，而其精神紊亂的性質或程度，足以構成理由將他羈留在精神病院內至少一段有限的期間，以接受觀察(或接受觀察後再接受治療)；及

(b) 為該病人本身的健康或安全，或是為保護他人著想，應該將該病人如此羈留。 (由1988年第46號第5條代替)

(1A) 凡申請命令將某名病人羈留以作觀察，須基於一名註冊醫生以訂明表格提供的書面意見，而該醫生在作出意見前7天內須曾經檢查該病人，而其意見須包括下述各項─

(a) 一項表示該醫生認為第(1)款所載條件已獲符合的陳述；

(b) 訂明詳情，列舉與第(1)(a)款所載條件有關的意見所基於的理由；及

(c) 一項列舉與第(1)(b)款所載條件有關的意見所基於的原因的陳述。 (由1988年第46號第5條增補)

(1B)  在接獲根據第(1)款所提出的申請後，區域法院法官或裁判官可以訂明表格作出命令，授權將病人移往精神病院，以作羈留和觀察，由作出命令之日起計(並包括該日在內)為期不超過7天。 (由1988年第46號第5條增補)

(2) 上述每項命令均具有效力，授權申請人及每名公職人員在每宗個案中按情況所需的協助下，使用合理所需的武力，將該病人移往精神病院，又不論因任何原因，如將該病人立即移往精神病院並不切實可行，則將該病人羈留在安全地方，為期不超過48小時。 (由1988年第46號第5條修訂)

(3) 凡在區域法院法官或裁判官裁定是否要根據第(1B)款作出命令之前，病人請求見該區域法院法官或裁判官，則─

(a) 該區域法院法官或裁判官在接見該病人前，不得作出該命令；及

(b) 為施行第(1A)款而曾提供意見的註冊醫生所簽發以證明該病人是否曾作上述請求的證明書，即成其所載事項的足夠證據。 (由1988年第46號第5條代替)

(4) 院長可將屬根據本條或第32條作出的命令的標的之人羈留在精神病院內，以接受觀察、調查和治療。 (由1997年第81號第23條修訂)

(由1998年第25號第2條修訂)」

15.   《精神健康條例》第36條規定:

「(1) 倘若─

(a) 某名可被羈留(但非根據本條被羈留)在精神病院或可被羈留在懲教署精神病治療中心內的病人；或

(b) 某名在精神病院內的自願入院病人，已由2名註冊醫生分別或共同檢查，而該2名註冊醫生均認為─

(i) 該病人患有精神紊亂，而其精神紊亂的性質或程度，足以令該病人適宜留在醫院內接受治療；及 (由1997年第81號第28條修訂)

(ii) 為該病人的健康或安全，或為保護他人著想，該病人有需要接受該項治療，而如非根據本條羈留該病人，即不能作出該項治療，則該2名醫生可以訂明表格填具一份證明書，並將該份證明書送交區域法院法官。 (由1988年第46號第8條代替。由1998年第25號第2條修訂)

(2) 如區域法院法官接獲一份按照第(1)款簽發的證明書後，信納該份在第(1)款中所述證明書乃屬妥當和沒有理由拒絕收取該份證明書，則該法官須在該份證明書上加簽，並須將該份證明書送交羈留該病人的精神病院的院長： (由1988年第46號第8條修訂)
但區域法院法官─

(a) 不得就自願入院病人在證明書上加簽，除非該區域法院法官信納該自願入院病人已根據第30(2)(a)條發給通知，或(如該自願入院病人在16歲以下)已有人代他發給通知，述明該自願入院病人意欲離開該精神病院，並信納如將該自願入院病人自精神病院釋放，則相當可能會對該自願入院病人或其他人有危險；或 (由1998年第25號第2條修訂)

(b) (由1988年第46號第8條廢除)

(3) 院長可將屬根據本條作出的命令的標的之人羈留在精神病院內，以接受觀察、調查和治療，又可將他轉移到任何其他精神病院。 (由1997年第81號第28條修訂)

(4) 即使病人是根據一項入院令而被羈留，或因已被判處監禁而被羈留，或因一項法院命令而被羈留，第(1)及(2)款所述的程序，仍可進行，但如該病人是根據一項入院令而被羈留，或因已判處監禁而被羈留，則─

(a) 在假若無該等程序時該病人原應獲釋放的日期前30天內，始可開始進行該等程序；及

(b) 第IV部的條文，或《刑事訴訟程序條例》(第221章)(如該條例適用於該病人)，須繼續適用於該病人，直至該日期為止，而根據本條作出的任何事項，並無改變法院命令的效力。 (由1988年第46號第8條增補)

(5) 本條─

(a) 適用於患有精神病或精神病理障礙的病人；及

(b) 適用於並非(a)段所述的病人，但該病人必須是2名第(1)款所述的醫生(除有該款所述的意見外)亦認為具異常侵略性或行為極不負責任的病人。 (由1988年第46號第8條增補)

(由1969年第35號第2條修訂)

16.   在Pounteney v Griffiths [1976] AC 314，英國上議院的法官就類似精神健康條例第69條，經詳細分析後，裁定它可以涵蓋在羈留期間院方職員執行職務時管理及控制被羈留人士的行為。雖然英國上議院考慮的法例在字句上與精神健康條例第69 條並不完全相同，但是在關鍵之處並沒有實質分別。

17.   英國的 Mental Health Act 1959 section 141 的條文如下:

“1. No person shall be liable ... to any civil ... proceedings to which he would have been liable apart from this section in respect of any act purporting to be done in pursuance of this Act ..., unless the act was done in bad faith or without reasonable care.

2. No civil ... proceedings shall be brought against any person in any court in respect of any such act without the leave of the High Court, and the High Court shall not give leave under this section unless satisfied that there is substantial ground for the contention that the person to be proceeded against has acted in bad faith or without reasonable care.

3. ...”

18.   《精神健康條例》第69(1)條涵蓋:

“Where a person has … done any act with a view to … carrying out [an order of detention]”

19.   這與該英國條例 Section 141(1) 所指 “any act purporting to be done in pursuance of this Act” 相同。

20.   Lord Edmund-Davies在Pounteney v Griffiths, supra 解釋羈留(“detention”) 必然涉及管理及控制 (“control and discipline”) 。同樣道理，原告人在被羈留期間，人身及生活上的一些自由被管制也是羈留的必然後果。青山醫院在這方面的約制措施，也是實施羈留的管制。

21.   本庭認為原告人申索的事項均涵蓋於青山醫院執行法官頒發的羈留命令之內，所以他的申索必須按照《精神健康條　　例》第69(2)條處理。他須向原訟庭申請許可才可進行訴訟。

22.   本庭接著考慮《精神健康條例》第69條是否符合原告人進行訴訟的憲法權利。終審法院在Ng Yat Chi v Max Share Ltd (2005) 8 HKCFAR 1 paras 73-76 確立以下原則：

(a) 進行訴訟的憲法權利並不是絕對的權利，而是可以受制於因正當目的而實施的適切限制，但該限制不可以徹底消除訴訟的行使權;

(b) 防止無理纏繞的訴訟人濫用司法程序可以不成正當目的;

(c) 要求訴訟人先取得法庭許可才進行訴訟的措施，並非完全疾礙公民進行訴訟，因此沒有徹底消除進行訴訟的權利。

(d) 針對無理纏繞的訴訟人要求他先取得法庭許可才進行訴訟，是防止濫用司法程序的適切限制。

23.   Lord Simon在Pounteney v Griffiths, supra at p.141指出類似《精神健康條例》第69條限制的立法目的：

“The mischief and the parliamentary objective must be similar. It must have been conceived that, unless such classes of potential litigant enjoy something less than ready and unconditional access to the courts, there is a real risk that their fellow-citizens would be, on substantial balance, unfairly harassed by litigation. …”

他同時指出:

“Patients under the Mental Health Act may generally be inherently likely to harass those concerned with them by groundless charges and litigation, and may therefore have to suffer modification of the general right of free access to the courts. But they are, on the other hand, a class of citizen which experience has shown to be peculiarly vulnerable. I therefore presume to suggest that the operation of section 141 should be kept under close scrutiny by Parliament and the Department of Health and Social Security.”  

24.   在Ashingdane v United Kingdom (1985) 7 EHRR 528 歐洲人權法庭曾考慮Section 141 是否符合公民向法院提出訴訟的權利。關於訴訟的權利，歐洲人權法庭認為:

“57. …Certainly, the right of access to the courts is not absolute but may be subject to limitations; these are permitted by implication since the right of access "by its very nature calls for regulation by the State, regulation which may vary in time and in place according to the needs and resources of the community and of individuals" (see the above-mentioned Golder judgment, p. 19, para. 38, quoting the "Belgian Linguistic" judgment of 23 July 1968, Series A no. 6, p. 32, para. 5). In laying down such regulation, the Contracting States enjoy a certain margin of appreciation. Whilst the final decision as to observance of the Convention’s requirements rests with the Court, it is no part of the Court’s function to substitute for the assessment of the national authorities any other assessment of what might be the best policy in this field (see, mutatis mutandis, the Klass and Others judgment of 6 September 1978, Series A no. 28, p. 23, para. 49).

Nonetheless, the limitations applied must not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired (see the above-mentioned Golder and "Belgian Linguistic" judgments, ibid., and also the above-mentioned Winterwerp judgment, Series A no. 33, pp. 24 and 29, paras. 60 and 75). Furthermore, a limitation will not be compatible with Article 6 para. 1 (art. 6-1) if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved.”

25.   法庭裁定在該案案情下，英國法院依據Section 141擱置Mr Ashingdane的申索並不違反他向法院提出訴訟的權利。歐洲人權法庭的分析如下:

“58. Section 141 of the 1959 Act placed a hindrance on Mr. Ashingdane’s recourse to the national courts. According to the concurring evidence before the Court, the mischief that section 141 sought to avoid was the risk of those responsible for the care of mental patients being unfairly harassed by litigation (see, for example, Pountney v. Griffiths, House of Lords, per Lord Simon of Glaisdale, [1975] 2 All England Law Reports 881 at 883).

Whilst that objective is in itself legitimate in relation to hospital staff as individuals, the protection from suit enjoyed by the Department of Health and Social Security and by the local Health Authority in the actions brought by Mr. Ashingdane calls for closer scrutiny.

59. Without losing sight of the general context of the case, the Court would recall that, in proceedings originating in an individual application, it has to confine its attention, as far as possible, to the concrete case before it (see, inter alia, the Axen judgment of 8 December 1983, Series A no. 72, p. 11, para. 24). Accordingly, the Court’s task in assessing the permissibility of the limitation imposed is not to review section 141 of the 1959 Act as such but the circumstances and manner in which that section was actually applied to Mr. Ashingdane. …”

26.   歐洲人權法庭認為按英國的法律Mr Ashingdane 必須証明 “the act was done in bad faith or without reasonable care” 才可構成合理訴因。因為他沒有提出這樣的指控，所以擱置Mr Ashingdane 的申索並不違反他向法院提出訴訟的權利。

27.   但若然原告人在針對公共機關提出這方面的指控，Section 141(2) 的程序要求是否符合公民向法院提出訴訟的權利，歐洲人權法庭沒有正面回答。

28.   在1975年後，英國政府對Mental Health Act 1959 section 141作出檢討，1978年發表的檢討文件^[1]對該條文論述如下:

“The consultative document discussed various criticisms of the section, notably that it is an unwarranted restriction on access to the courts in that it is not founded on any evidence that psychiatric patients are likely to be vexatious litigants …On the other hand, the government is aware of staff anxiety about their legal position.”

29.   經檢討後，英國在1982年修訂section 141，改為Mental Health Act 1983 section 139，其條文如下：

“(1) No person shall be liable, whether on the ground of want of jurisdiction or on any other ground, to any civil or criminal proceedings to which he would have been liable apart from this section in respect of any act purporting to be done in pursuance of this Act or any regulations or rules made under this Act ... unless the act was done in bad faith or without reasonable care.

(2) No civil proceedings shall be brought against any person in any court in respect of any such act without the leave of the High Court; and no criminal proceedings shall be brought against any person in any court in respect of any such act except by or with the consent of the Director of Public Prosecutions.

(3) This section does not apply to proceedings for an offence under this Act, being proceedings which, under any other provision of this Act, can be instituted only by or with the consent of the Director of Public Prosecutions.

(4) This section does not apply to proceedings against the Secretary of State or against a Strategic Health Authority, Local Health Board, Special Health Authority or Primary Care Trust or against a National Health Service trust established under the National Health Service Act 2006 or the National Health Service (Wales) Act 2006 or NHS foundation trust.”

30.   在Seal v Chief Constable of South Wales Police [2007] 1 WLR 1910 para 47, Baroness Hale指出該修訂在三方面放鬆了對訴訟人的限制。關於民事索償，放鬆限制的措施如下：

“… Secondly, leave could not be granted without showing substantial grounds for the contention that the defendant had acted in bad faith or without reasonable care. The test subsequently laid down by the Court of Appeal in Winch v Jones [1968] QB 296 was simply whether the case deserved further investigation by the court: the claimant was not required to prove a prima facie case. Thirdly, neither the substantive defence nor the procedural protection now applies to proceedings against the Secretary of State or the NHS authorities.”

31.   縱使這樣，Baroness Hale 在paras 57, 59 及 61 仍有以下之批評:

“To be proportionate, a restriction on fundamental rights has first to bear a rational connection with the legitimate aim pursued. To restrict the right of access to the courts of people who have previously abused that right obviously bears a rational connection with the aim of protecting defendants against vexatious claims. But it is not obviously rationale to brand every person who is or has been subject to the compulsory powers in the Mental Health Act 1983 as a potential vexatious litigant. There are some compulsory patients who suffer from paranoid delusions; there are some who suffer from psychopathic disorders who may be more inclined than others to make trouble. But the blanket restriction in section 139(2) takes no account of these subtleties. It assumes that everyone who has ever been subject to Mental Health Act compulsion is automatically suspect. … (para 57)

Even where a rational connection between the end and the means can be shown, the means still have to be proportionate to the ends. There will be cases in which the operation of section 139(2) is proportionate. There will be other cases … in which it is not. Blanket provisions, which catch a great many cases in which the restriction is not justified in order to catch the few where it may be, require particularly careful scrutiny. … (para 59)

Section 139(2) covers a great many people who are neither vexatious litigants nor, by reason of their mental disorder, more likely than the general population to launch vexatious actions. (para 61)”

32.   Lord Woolf 在 para 35 同意Baroness Hale的判詞。

33.   另一方面，Lord Bingham，Lord Carswell及Lord Brown持不同意見。他們集中考慮該案原告人被阻止申索的因由是Limitation Act而不是Mental Health Act。Lord Bingham在para 20説明:

“The European Court has accepted that the right of access to the court is not absolute, but may be subject to limitations: Ashingdane v United Kingdom (1985) 7 EHRR 528 para 57. The protection of those responsible for the care of mental patients from being harassed by litigation has been accepted as a legitimate objective: Ashingdane para 58; M v United Kingdom (1982) 52 DR 269, 270. What matters (Ashingdane, para 57) is that the limitations applied must not restrict or reduce the access left to the individual in such a way or to such an extent as to impair the very essence of the right. But the threshold for obtaining leave under section 139(2) has been set at a very unexacting level: Winch v Jones [1968] QB 296. An applicant with an arguable case will be granted leave. Mr Seal’s undoing lay not in his failure to obtain leave which he should have had but in his failure to proceed within the generous time limit allowed by the 1980 Act, which would not itself fall foul of article 6: Stubbings v United Kingdom (1996) 23 EHRR 213. …”

亦見 Lord Brown在74及75段.

34.   基於第69條是否符合憲法這議題事關重大，所以上訴法庭在2013年9月12日將本上訴押後，並指示法院登記處知會律政司司長，邀請他考慮加入為上訴中的介入方。法庭於2014年5月23日批准律政司司長介入本上訴。律政司司長並且按法庭指示存檔一些關於憲法議題的證供。

35.   此外，鑑於上訴人沒有律師代表，為令法庭在聽取憲法議題的爭辯可以有較全面的協助，法庭在2014年1月3日指示司法常務官委派一位大律師在本上訴中担當法庭之友的角色。其後，司法常務官委任杜淦堃大律師為法庭之友，在上訴中作出相關的陳詞。

36.   由於憲法議題涉及大量外國案例的援引及較為複雜的法律爭辯，法庭於2014年5月23日指示上訴中就此議題的爭辯以英語進行。

37.   因此，本庭就這議題的判決理由亦以英文撰寫，在本判決書的Part B登錄。如上訴人需翻譯的協助，本庭會為他安排約見翻譯主任，以口頭形式就Part B予以中文翻譯。

38.   本庭特別感激杜大律師在本上訴中給予本庭的協助。他提出了與答辯人和律政司司長不同的論點，使本庭能從多角度深入考慮憲法議題的相關論據，從而作出正確的判決，這正是普通法制度下發揮法治精神重要的一環。

39.   本庭也感謝代表答辯人的薛日華大律師和代表律政司司長的鄭惠心資深大律師及梁允信大律師向本庭作出全面及有建設性的陳詞。

40.   在上訴聆訊中，本庭也聽取了上訴人本人的陳詞。本庭也感謝他精簡地提出了他的論點。

41.   在考慮各方陳詞後，基於本判決書Part B內的討論及理由，本庭認為法院應以補救的方式來詮釋第69(2)條正確詮釋下，若申請許可的人（包括本案的上訴人）在開展訴訟後獲得許可，這也可以修正沒有許可便進行訴訟的錯誤。所以在現階段，上訴人的申索不應被撤銷。

42.   本庭接納薛大律師的陳詞，本庭應該將第69(2)條之許可申請交回給原訟法庭在上訴人2012年5月31日已經提出的HCMP 1096/2012案中處理。

43.   本庭因此頒令上訴得直，撤銷陳美蘭法官2012年4月20日的命令，取而代之頒令暫時擱置HCA 945/2011的訴訟，直至HCMP 1096/2012判決為止。本庭並指示上訴人在本判詞頒發後14 天內向原訟法庭於HCMP 1096/2012發出傳票，就他申請許可的事宜要求法庭作出適當指示，及早處理該申請。若法庭在HCMP 1096/2012給予許可，陳先生便可繼續HCA 945/2011的申索。若法庭在HCMP 1096/2012內不給予許可，陳先生在HCA 945/2011的申索亦須予以撤銷。所以，負責聆訊HCMP 1096/2012的法官亦應在判決是否給予許可的同時處理HCA 945/2011的進一步指示或撤銷。

44.   就訟費的處理，本庭現頒下暫准令，本上訴及在下級法院關於答辯人2011年11月23日的傳票的訟費，均須按HCMP 1096/2012的結果處理。換句話說，若上訴人將來成功在HCMP 1096/2012中獲得許可進行他的申索，他可以一併獲得本上訴及2011年11月23日傳票的訟費；若上訴人在HCMP 1096/2012中不獲許可，他則須支付答辯人在本上訴及2011年11月23日傳票的訟費。

45.   本庭不就律政司司長及法庭之友作出任何訟費的命令。

Part B

46.   In the following discussion, we shall focus on the constitutionality of Section 69 of the Mental Health Ordinance [“MHO”].  This part of our judgment is written in English for the reasons explained above.  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).  Having said that, this appeal concerns proceedings brought by an ex-patient and we shall focus on that in this judgment.  The requirement of leave in section 69(2) is a hurdle in advancing a claim in respect of the matters within the scope of that section.  By reason of the prima facie limitation placed by such hurdle on the right to litigate protected by Article 35 of the Basic Law and Article 10 of the Hong Kong Bill of Rights, we accept that the leave requirement has to be justified in accordance with the test identified by Ribeiro PJ in Ng Yat Chi v Max Share Ltd (2005) 8 HKCFAR 1 at para 73:

“Such limitations are valid if they pursue a legitimate aim, are proportionate to that aim and are not such as to impair the very essence of the right …”

48.   In respect of proportionality, the court has to be satisfied that the restriction is rationally connected with the legitimate purpose and the means used to impair the fundamental right must be no more than necessary to accomplish the legitimate purpose: Leung Kwok Hung v Secretary for Justice (2005) 8 HKCFAR 229 at para 36.  On the latter, which is also referred to as the requirement of minimal impairment, as Ms Sit reminded us, the court should not strike down a scheme simply because it is not perfect.  As McLachlin J observed in RJR-MacDonald Inc v Canada [1995] 3 SCR 199 at para 160:

“… The impairment must be ‘minimal’, that is, the law must be carefully tailored so that rights are impaired no more than necessary. The tailoring process seldom admits of perfection and the courts must accord some leeway to the legislator.  If the law falls within a range of reasonable alternatives, the courts will not find it overbroad merely because they can conceive of an alternative which might better tailor objective to infringement … On the other hand, if the government fails to explain why a significantly less intrusive and equally effective measure was not chosen, the law may fail.”   

49.   What the Chief Justice said in Mok Charles v Tam Wai Ho (2010) 13 HKCFAR 762 at paras 53 to 56 is to similar effect.  For present purposes, we would highlight what was said at para 53:

“As a matter of approach … the court has often to look at competing interests.  One must examine the nature of the constitutional provision in question against the legitimate aim that the relevant restriction seeks to address, and above all, bear in mind the public interest.  In other words, a balancing exercise may be involved.”

Then, after referring to the weight to be attached to the views of the legislature on public interest, the Chief Justice said at para 56:

“… It is important to acknowledge that while the views of the legislature are to be considered, it is the court that has the ultimate responsibility to determine whether legislation is constitutional.  This is a matter of law, only for the courts to determine.”

50.   In the present context, as acknowledged by all counsel appearing before us, there is little problem with the legitimate purpose of Section 69 and its rational connection with such purpose.

51.   The legitimate aim for Section 69 is not controversial.  As mentioned above, it was identified by the European Court of Human Rights in Ashingdane v United Kingdom (1985) 7 EHRR 528 in the context of dealing with a challenge to the English Mental Health Act.  At para 58 of that judgment, the court identified the legitimate purpose as follows:

“… the mischief that section 141 sought to avoid was the risk of those responsible for the care of mental patients being unfairly harassed by litigation.”

Reference was made to the judgment of Lord Simon in Pountney v Griffiths [1976] AC 314 at p.316 in this connection:

“It must have been conceived that, unless such classes of potential litigant enjoy something less than ready and unconditional access to the courts, there is a real risk that their fellow-citizens would be, on substantial balance, unfairly harassed by litigation.”

52.   Ms Cheng SC (appearing together with Mr Leung for the Secretary for Justice), relying on the evidence placed before us, submitted that there is another facet to the legitimate purpose served by this provision.  Those exercising the powers under the MHO are likely to be subject to complaints because of its involuntary nature as far as the patients are concerned and the nature of clinical judgments involved.  Sometimes, as in the case of exercise of powers under ss 71A or 71B, the necessary judgment has to be made by persons without medical training.  There is a strong public interest that such powers can be exercised without any fear of retribution.  There is thus a need to protect those exercising such powers from errors of judgment as well as unmeritorious claims.

53.   The evidence filed by the Secretary for Justice establishes the following:

(a) In Hong Kong, the most common form of severe mental illness is schizophrenia and such patients tend to be unaware of their illness.  There is also a tendency for such patients to develop persecutory delusion and distorted appreciation of personal experience which make some of them litigious, particularly when they are subject to detention against their will;

(b) Diagnosis of mental illness is dependent on evaluation of symptoms with no objective laboratory investigation being available.  Patients may not report their symptoms accurately and information from other observers could be limited;

(c) In some cases, those dealing with such patients may have to make decisions under the MHO within a short time in order to minimize risk to the patient or others;

(d) Apart from medical professionals, there are other public officers like police officers and social workers who may assist in the exercise of powers under the MHO, and without the protection of section 69, these public officers could be exposed to harassment by litigation brought by patients; and

(e) It is in the public interest that people involved in the process of involuntary removal or detention under the MHO should not be deterred by the cost and annoyance of unmeritorious potential court actions because otherwise those suffering from mental illness may not receive the necessary treatment which may require custody and detention.           

54.   The evidence also indicates that the number of cases where the power of involuntary removal or detention has to be exercised is not insignificant.  From 2009 to 2014, there were 2,461 to 2,712 episodes annually where detention was ordered under s 31 of the MHO; there were 616 to 868 episodes annually where detention was extended under s 32 of the MHO; there were 643 to 868 episodes annually where detention was made under s 36 of the MHO.  No statistics had been kept with regard to the exercise of powers under ss 71A or 71B.  But there are cases where judgments had to be exercised by frontline police officers or officers of the Social Welfare Department on the basis of limited (and sometimes contradictory) information which may expose them to unwarranted litigation if the leave requirement under s 69(2) is removed. 

55.   Ms Cheng also cited the observations by the judges in a number of authorities to support her submissions in this regard: Everett v Griffiths [1920] 3 KB 304 at p.197-8, per Scrutton LJ; Shackleton v Swift [1913] 2 KB 304 at p.313-4 per Vaughan Williams LJ; Winch v Jones [1986] 1 QB 296, at p.302E to G per Sir John Donaldson MR.  In Seal v United Kingdom (2012) 54 EHRR 6 at para 77, the European Court of Human Rights said the following in respect of s 139(2) of the Mental Health Act 1983:

“… [S]ection 139(2) of the 1983 Act is not directed at limiting the power of individuals to commence any court proceedings whatsoever but at restricting access to court for anyone who wishes to complain about the exercise of powers under the 1983 Act when the claim is manifestly unmeritorious.  This explanation is supported by the terms of s 139(2) itself, which make it clear that the requirement to obtain leave applied to all seeking to pursue a claim under the Act, whether of unsound mind or not.  The Court is thus satisfied that the provision is aimed at providing an additional layer of protection for those exercising sensitive powers under the 1983 Act and does not assume that all those who are, or have been, subject to the compulsory powers contained in the Mental Health Act 1983 are potential vexatious litigants.”

Then at para 78:

“…Given the sensitive nature of the s 136 power, and the difficult and urgent circumstances in which that power is likely to be exercised, the Court considers that the general aim of protecting those who exercise powers under that Act, including the police, by requiring a claimant to demonstrate a prima facie case before being permitted to commence a claim, pursued a legitimate aim.”

56.   Ms Sit (appearing in this appeal for the Defendant) also advanced submissions along similar lines.  Mr Dawes, appearing as amicus, accepted that there is a legitimate aim for our Section 69(2).

57.   We accept counsel’s submissions.  In our view, Section 69(2) does pursue the legitimate aims as identified by Ms Cheng.  We further agree with their submissions that the statutory leave requirement is rationally connected with such legitimate aims. Though Baroness Hale (in a minority judgment) cast doubt in this respect in relation to the English provision in Seal v Chief Constable of South Wales Police [2007] 1 WLR 1910 at para 57, we respectfully agree with the view of the European Court of Human Rights in Seal v United Kingdom, supra, quoted above.  The requirement is not targeted at proceedings commenced by patients or ex-patients.  Bearing in mind that one of the legitimate aims is to protect those exercising sensitive powers under the MHO, we have no doubt that the statutory leave requirement is rationally connected with such aim.

58.   The difficult question is whether Section 69(2) is proportionate in that it does not impose a restriction which is more than necessary for the pursuit of such legitimate aims.  On the submissions advanced before us, it seems that there is no dispute that a leave requirement is proportionate.  However, there are two aspects in the operation of Section 69(2) which are the subjects of debate on proportionality in the appeal:

(a) The onus of satisfying the threshold of “substantial ground for the contention that [the putative defendant] has acted in bad faith or without reasonable care”; and

(b) The effect of s69(2) on proceedings commenced without first obtaining leave.

59.   As mentioned in Part A of this judgment, there had been a revision of the law in England in 1983.  However, we have not made the corresponding amendments to the MHO in Hong Kong.  Our section 69(2) is modelled on s141(2) of the old English Mental Health Act of 1959.  Though s141(2) had been considered by the European Court of Human Rights in Ashingdane v United Kingdom (1985) 7 EHRR 528, as discussed earlier, the court in that case only examined the application of that section to Mr Ashingdane (who did not even advance a case of bad faith or lack of reasonable care).  The European Court did not examine the general operation of the statutory restriction.  It did not find it necessary to consider the Convention compatibility of the leave requirement in a case where such allegations were advanced.

60.   The threshold for granting leave has been revised in the 1983 Act, see paras 29 and 30 above. Thus in the subsequent case of Seal v Chief Constable of South Wales Police, supraand Seal v United Kingdom, supra, the courts did not have to consider the proportionality of the threshold burden under the old UK law. The new threshold, as decided in Winch v Jones, supra, is whether the case deserved further investigation.  This is a very low threshold, almost akin to our pre-Chan Po Fun standard for leave to apply for judicial review. It was in that context that Lord Bingham described it as being set at a very unexacting level.

61.   Thus, there has not been any examination in the authorities of the proportionality of the pre-1983 English threshold which is the same as the one currently set out in our Section 69(2).  In Hong Kong, another division of this court had to consider what is required under the threshold in s69(2) in N v Y, CACV 51 of 2010, 8 March 2011.  The judgment was in Chinese.  Kwan JA followed the approach of the English Court of Appeal in Carter v Commissioner of Police [1975] 1 WLR 507 at pp.512 to 513 and p.514.  Her Ladyship further observed that this is a higher threshold than the one laid down in Winch v Jones, supra under the new UK law.  According to Carter, in considering whether leave should be granted, a judge has to take into account the evidence (if any) which is adduced by the putative defendant.  He must assess the relative strength of the evidence of the two sides and the inherent probabilities of the matter and come to a provisional view for deciding whether substantial grounds for a case of bad faith or lack of reasonable care has been shown.  Citing the judgment of Denning LJ in the earlier case of Richardson v London County Council [1957] 1 WLR 751 at p.760, Lawton LJ said in Carter that there must be solid grounds for thinking that there was want of reasonable care or bad faith.  It is not enough to show that on the face of the affidavits there is a conflict of evidence.  In Richardson, supra, Denning LJ regarded substantial grounds as something more than reasonable grounds.

62.   In this state of authorities, we cannot accept Ms Cheng’s submission that this threshold is not significantly higher than a threshold of a reasonably arguable case, the standard adopted in Chan Po Fun v Winnie Cheung (2007) 10 HKCFAR 676 for leave to apply for judicial review.  The latter threshold is a relevant point for consideration in the present context because:

(a) the purpose for having a leave requirement for judicial review is similar: to filter out unmeritorious claims and to protect public process and public officers or authorities against disruption and harassment occasioned by such claims, see Right to Inherent Dignity Movement Association v HKSAR   HCAL 74 of 2008, 21 Aug 2008; and

(b) the concession by Ms Cheng and Ms Sit that s 69(2) does not apply to proceedings for habeas corpus and judicial review challenging an order for detention made under the MHO (see Ex parte Waldron [1986] 1 QB 824 at p.841 and 843).  In light of the entrenched right to challenge a detention at a court of law under Article 5(4) of the Hong Kong Bill of Rights, we accept that the concession is properly made, see also R(M) v Hackney LBC [2011] 1 WLR 2873.  In those proceedings, the applications for leave are determined by the Chan Po Fun threshold.

63.   If the Chan Po Fun threshold is sufficient to meet the challenge presented by potentially unmeritorious claims in respect of the exercise of the power of detention under the MHO, we do not see any need for setting a higher threshold under s69(2) for other civil claims.  The “substantial ground” threshold is a high threshold indeed.   In some cases, it can be a hurdle which a claimant cannot meet when he has not even had the chance to get discovery and the other side has put forward contradictory evidence from professional personnel treating him. 

64.   Whilst we accept that there should be some margin of appreciation on the legislative balance, we are nonetheless dealing with the fundamental right concerning a person’s access to court.  Though the leave requirement is not a blanket prohibition against litigation and a leave application is to be considered by a judge, we have come to the clear and firm conclusion that the “substantial ground” threshold is setting a threshold which is way beyond what is necessary for the pursuit of the legitimate aims identified above.  In our judgment, a leave threshold along the same line as the Chan Po Fun threshold is sufficient for such purposes.  Accordingly, we would adopt a remedial interpretation by reading down the “substantial ground” threshold to one of “reasonably arguable ground” in s69(2).  We have reminded ourselves on the permissible scope of this jurisdiction (as discussed recently in Ho Chun Yan Albert v Leung Chun Ying (No 1) [2012] 5 HKLRD 149 at paras 111 to 118).  We do not believe our remedial interpretation is fundamentally at odds with the intent or the underlying principle of the MHO.  The legislative objective of having a leave requirement in place as an added protection (in addition to s69(1) of the MHO) to those exercising powers under the Ordinance is preserved.

65.   The other feature we are concerned about is the effect of the failure to obtain leave.  Section 69(2) does not provide for its effect on legal proceedings commenced without leave.  In other cases where leave is required, proceedings commenced without leave have been held to be an irregularity and, once leave is obtained, the proceedings can continue: see Rendall v Blair (1890) 45 Ch D 139; Re Saunders [1997] Ch 60; Adorian v Commissioner of Police [2009] 1 WLR 1859.  However, in the context of the 1983 Mental Health Act, the House of Lords (by a majority) held in Seal v Chief Constable of South Wales Police, supra that proceedings commenced without leave under s 139 of that Act was a nullity.  Lord Woolf and Baroness Hale dissented.  They held that such defect in the proceedings could be cured by leave subsequently obtained.

66.   In Seal, the question on the effect of proceedings commenced without leave is important because the plaintiff’s claims would be barred by the limitation period if he were to start a new action.  The limitation aspects have not been argued before us.  However, in light of the relevant detentions of the Plaintiff in 2005 and 2006, it is likely that he may face the same difficulty.  Further, the answer to this question is determinative as to the outcome of this appeal as the courts below have not considered whether leave should be granted to the Plaintiff in respect of his claims in this action. Though his application for leave was only made after the action had been struck out, if the correct view is that proceedings without leave can be regularised by subsequent leave, the action should not have been struck out without considering whether leave should be granted.

67.   In Seal v Chief Constable of South Wales Police, supra, Lord Woolf observed at para 35:

“… Parliament certainly did not make it clear that civil proceedings commenced without leave contrary to section 139 were to be a nullity.  This being the case as a matter of fundamental principle, the claimant’s access to the courts cannot be denied without a judge determining whether this is the appropriate consequences in all the circumstances.”

68.   Lord Woolf also referred to Rendall v Blair, supra and Re Saunders supraat para 33 of the judgment in Seal.  In His Lordship’s view, as further explained in R v Secretary of State for the Home Department, ex p Jeyeanthan [2000] 1 WLR 354, where Parliament had not made clear what were to be the consequences of non-compliance with a statutory requirement, it would be left to the court to determine what would be the just decision to take in all the circumstances.  In Jeyeanthan, supra at p.359, Lord Woolf said:

“A far from straightforward situation is where there is a need for permission to appeal to a tribunal but this is not appreciated at the time.  The requirement is mandatory in the sense that the tribunal or the party against whom the appeal was being brought would have been entitled to object to the appeal proceeding without the permission and if they had done so the appeal would not have been accepted.  However, what is the position if because they were unaware of the existence of the requirement no objection is made and the appeal is heard and allowed? Is the appellant, when the mistake is learnt of, to be deprived of the benefits of the appeal? If the answer is yes the result could be very unjust.  This would be especially so, if in fact the tribunal in error had told the appellant that permission is not needed and he would have been in time to make the application if he had not been misinformed.  Could it have been the intention of the author of the requirement that the requirement should have the effect of depriving the appellant, of the benefit of his appeal? Clearly not.  In such a situation the non-compliance would almost inevitably be regarded as being without significance.  It must be remembered that procedural requirements are designed to further the interests of justice and any consequence which would achieve a result contrary to those interests should be treated with considerable reservation.”

69.   That was said in the context of the requirement under rule 13(3) of the Asylum Appeals (Procedure) Rules 1993.  In the context of the leave requirement in the 1983 Act, Baroness Hale made a similar point in her judgment in Seal at paras 53 and 54:

“53 If spotted in time, the failure to obtain leave for civil proceedings can readily be put right and without prejudice to the legitimate interests of the defendant.  If it is not spotted in time, and the action succeeds, no injustice will be done to the unsuccessful defendant if the judgment is allowed to stand; but a serious injustice will be done to the successful claimant if it has to be set aside, for by then it is not at all unlikely that the action will be statute barred.  The fact that leave is required at all may not emerge until a relatively late stage in the proceedings.  That a claimant who has suffered a wrong should be deprived of his remedy merely because of a procedural failure which no one noticed at the time is an affront to justice.

54 My Lords, I would not interpret section 139(2) so as to achieve such an obviously unjust result unless driven by the statutory language so to do.  The statutory language makes it clear that if anyone, including the claimant, appreciates the point, then leave must be obtained.  It does not make it clear that if no one, including the court or the defendant, does so, the proceedings are a nullity.  Halfway houses are usually to be preferred to absolute extremes.”

70.   We also find what was said by Her Ladyship at para 49 compelling:

“49 Nowhere, however, is there any discussion of the consequence if proceedings are brought without first obtaining leave.  The purpose was and remains the protection of staff.  But protection from what?  It cannot have been intended or expected that staff would be protected from all knowledge of possible claims.  The 1930 Act had expressly required that notice of an application for leave be given to the proposed defendant.  Good practice and common courtesy, then as now, would require that they be informed of what was afoot and have the opportunity if they so desired to resist the grant of leave.  What staff are protected from is having to defend a baseless action. Such protection is not undermined if an action is, whether through ignorance or inadvertence, begun without leave and the defendant takes the point or the court takes it of its own motion.  The burden is still on the claimant to establish that the case should go further.”

71.   On the other hand, though Lord Bingham acknowledged the force of the submissions based on those cases cited by Lord Woolf at para 33 (see paras 6 to 7 of his judgment in Seal), His Lordship was able to come to a different conclusion by reference to the legislative history of the mental health statutes in the UK and the decision in Ex p Griffiths [1976] AC 314, which the legislature must be presumed to have acted upon when the 1983 Act was passed.  

72.   Lord Caswell agreed with the judgment of Lord Bingham.  The other law lord who expressed views on this topic in Seal was Lord Brown.  His views were basically the same as that of Lord Bingham.  At paras 73 and 74, His Lordship said:

“73 It seems to me quite evident from the legislative history of this provision that from 1930 onwards Parliament intended to make leave a precondition of any effective proceedings.  Unlike the position prior to 1930, the prospective defendant was not to be required to take any action whatever with regard to a proposed claim unless and until it was sanctioned by a High Court judge.  Absent such leave, albeit he might be notified of a claimant's proposal to proceed against him, he was not to be troubled by such proceedings. The very inflexibility of the provision was an integral part of the protection it afforded.  If, however, the claimant's approach were to be adopted, inevitably (unless by chance the court took the point of its own motion) the defendant himself would be drawn into the litigation.

74 I cannot see the “procedural requirement” here in question as remotely akin to that under consideration by the Court of Appeal in R v Secretary of State for the Home Department, Ex p Jeyeanthan [2000] 1 WLR 354-essentially a failure to use the prescribed form of application for leave to appeal with the consequential omission of a declaration of truth.  I repeat, the requirement for leave here was to safeguard prospective defendants from being faced with proceedings (which might not be sufficiently meritorious to deserve leave) unless and until a High Court judge thought it appropriate that they be issued.  And that is not a protection that can be secured save by a clear and inflexible rule such as section 139(2) (and its legislative predecessors) have always hitherto been understood to provide.  Just such a rule applies in respect of those adjudged vexatious litigants under section 42 of the Supreme Court Act 1981 and Parliament clearly intended to achieve the same result under the Mental Health Act legislation.  Whether or not such protection is necessary or desirable is, of course, open to question and has, indeed, been extensively debated over recent years. But your Lordships' task is not to decide whether it is desirable but whether presently the legislation confers it.”

73.   The history of mental health legislation in Hong Kong is slightly complicated. It was discussed in Re LYO [2005] 3 HKC 201 at paras 33 to 36.  Between 1962 (when the MHO was enacted) and 1997, there was a dual jurisdiction because English statutes continued to have application in parallel with our MHO by reason of section 8(2) of the Supreme Court Ordinance (which subsequently became section 12(4) of the High Court Ordinance).  In 1997, section 12(4) was repealed and the English statute ceased to apply in Hong Kong.  However, for present purposes, what is important to note is that as far as section 69 is concerned, it has been in our MHO since 1962.  Irrespective of the position under the 1983 Act, there is no question of our legislature being presumed to have the same understanding as the court in Ex p Griffiths, supra (which was decided in 1975) when section 69(2) of the MHO was enacted in 1962.  The only amendment to s69(2) was the change in the Chinese version to the nomenclature of the court in 1998.

74.   The reliance placed on Ex p Griffiths, supra, is much weakened by the fact that the point that we are now concerned with was not argued, see paras 30, 31 and 50 of Seal.

75.   In respect of the other aspect of the UK mental health legislative history, with the greatest respect, we are persuaded by the compelling analysis of Baroness Hale that there is nothing in the shift of onus (from the defendant applying for the stay of vexatious claims to the plaintiff applying for leave in section 16 of the Mental Treatment Act 1930) which inevitably leads to the conclusion that proceedings commenced without leave must be a nullity.  The protection is equally effective if the failure to obtain leave simply renders the proceedings susceptible to being stayed as opposed to being a nullity.  As we observed in the course of the hearing, in that scenario, once the court is made aware of the lack of leave and the engagement of s 69(2), it should act on its own motion to stay the proceedings pending the resolution of the leave question and give a time limit for making the leave application.  The defendant may either take out a summons or simply write a letter to the court alerting it to the problem.  This would not result in the full scale involvement of a defendant in the proceedings.  The defendant may choose for himself or herself whether to make representations on whether leave should be granted.  That is a right conferred explicitly by s69(3) and obviously the legislature did not regard the notification of a leave application as harassment.

76.   Ms Sit submitted that anything short of a complete nullification of proceedings would water down the protective shield which the legislature intended to confer on a putative defendant.  That, she submitted, would also be contrary to the shifting of onus which the legislative changes in the 1930 Act intended to achieve. 

77.   Ms Cheng also submitted that a mere irregularity is not sufficient to serve the purpose.  Those advising a defendant would probably advise their client to have the action struck out instead of leaving it to the court to stay the proceedings in the meantime.  Once this course is embarked upon, the defendant will have to incur costs and time on the matter. 

78.   Counsel also referred to the scenario where a defendant chooses to do nothing about the proceedings and then the plaintiff enters default judgment.  In that event, the difference between nullity and irregularity could be important.  If it is a nullity, the defendant can continue to ignore the default judgment.  If it is an irregularity, the defendant will have to take steps to set aside the judgment, thereby incurring costs and time.

79.   We have carefully considered these submissions.  However, we are not persuaded that they lead to the conclusion that the legislature intended that proceedings commenced without leave are a nullity.  The proper starting point is the principle alluded to by both Lord Woolf and Lord Bingham in Seal, citing the famous dicta of Viscount Simonds in Pyx Granite Co Ltd v Ministry of Housing and Local Government [1960] AC 260 at 286:

“It is a principle not by any means to be whittled down that the subject’s recourse to Her Majesty’s courts for the determination of his rights is not to be excluded except by clear words.  That is ... a ‘fundamental rule’ from which I would not for my part sanction any departure.”

80.   As illustrated by cases like Rendall v Blair, supra and Re Saunders supra and Adorian v Commissioner of Police supra, the mere fact that the legislature deemed fit to impose a leave requirement for commencement of proceedings to advance certain public interests or to protect certain public officers does not necessarily lead the court to conclude that proceedings commenced without leave are a nullity.  As Lord Bingham accepted at para 7 in Seal, the variation of language as between s 139(2) (and likewise s 69(2) of MHO) and the relevant legislative provisions in Rendall v Blair, supra and Re Saunders supra is not so marked as to warrant a radically different conclusion.  The same can be said with regard to a comparison between s 69(2) of MHO and the statutory provision in question in Adorian v Commissioner of Police supra.  The relevant provision there was section 329 of the Criminal Justice Act 2003 which deals with civil proceedings for trespass to the person brought by offenders.  Subsection (2) of the section provides:

“Civil proceedings relating to the claim may be brought only with the permission of the court.”

Subsection (3) sets out requirements which must be satisfied before permission is granted by the court.  Subsections (4) and (5) create statutory defences to claims within the scope of the section as identified in subsection (8).

81.   The crucial issue in Adorian was whether the lack of prior permission to bring the proceedings was fatal or curable.  The English Court of Appeal distinguished Seal and held that it is curable.  Sedley LJ pinpointed the exceptional nature of the decision in Seal at paras 22, 33 and 34 of the judgment.  At para 34, he said:

“A need to invalidate such proceedings unless leave is first obtained is undoubtedly exceptional and may be unique. Certainly, as their Lordships were careful to stress in Seal’s case … the imposition of a jurisdictional bar on access to the courts is a drastic measure, in contrast to a requirement that proceedings, once instituted, can be struck out if they do not pass muster, whether on specified statutory criteria or because they have no realistic chance of success.”

82.   And His Lordship identified the potential problems caused by limitation if the challenge based on lack of leave is taken at a late stage, see paras 26, 28 and 41 of Adorian.  In our judgment, the same potential problems could occur in the context of proceedings commenced without leave under s 69(2) of the MHO.  This was precisely the observation of Baroness Hale in Seal at para 53.

83.   Through the diligence of Mr Dawes, we were referred to an article in the Journal of Mental Health Law: Kris Gledhill, Seal v UK: The End of the Story or Time for a Fresh Beginning? [2011] JMHL 93.  In that article, the learned commentator made a forceful point by comparing Seal with Adorian.  At p.106, this rhetorical question was asked:

“[I]n both situations, there was a claim that powers had been misused in some way.  So the question of justification has to be asked why should it be that the police who are alleged to have misused Mental Health Act powers require a mandatory leave requirement in the civil proceedings whereas police who are alleged to have misused criminal arrest or detention powers require protection only in the form of a directory leave requirement?”[2]

84.   As we have said earlier, the shift of onus in the 1930 Act does not drive us to the conclusion that the legislature intended proceedings brought without leave to be nullities.  Certainly, if that were the intention, it could easily be expressed in clear and specific language.  The language used in the 1930 Act was comparable to those used in other cases where the courts had consistently held to be not specific enough to lead to such a draconian outcome.  In this respect, we find the observation by Kris Gledhill at p.101 of his article illuminating:

“Clearly there was a change in procedure that puts the onus on the claimant rather than the defendant: but why does that have as a corollary that the failure of the claimant to obtain leave means that every step taken has been meaningless?”

85.   With respect, Ms Sit and Ms Cheng had made too much out of the potential impact on a putative defendant if the proceedings were liable to be stayed as opposed to being a nullity.  Whilst theoretically speaking, if the proceedings were a nullity, a putative defendant is entitled to ignore such proceedings altogether and perhaps even to ignore the entry of a default judgment in such proceedings, there is an air of unrealism in it.  Eventually, when the plaintiff takes steps to enforce the default judgment, the defendant would still need to come to court to ask the court to set aside the judgment as a nullity.  We accept that the defendant will be entitled to set aside the judgment as of right in such circumstances. Still he has to come to court to achieve that result.  How does that differ from a scenario where the proceedings are not a nullity and the defendant therefore needs to come to court to set aside an irregular judgment, irregular because of the non-compliance with s69(2)? Bearing in mind the requirement in s69(2) and its purpose, we have no difficulty in holding that a default judgment obtained without leave should be set aside ex debitio justitiae without going into the merits.  For this kind of irregularity, unlike the situation in Po Kwong Marble Factory Ltd v Wah Yee Decoration Co Ltd [1996] 4 HKC 157, we cannot possibly see any room for the residual discretion of the court to be exercised in such circumstances.

86.   Further, it also seems to us to be unreal to suggest that a defendant would simply leave things unattended until a default judgment has been entered.  The most likely course is to take out a summons to strike out the writ or, if a defendant wishes to save costs and trouble, he could write to the court alerting it that the proceedings were brought without leave.  As we mentioned, in the latter event, the court must on its own motion take up the question of lack of leave with the plaintiff.  As in an application for leave, the defendant has a right to be notified and he can choose for himself the extent to which he would take part in resisting leave.  Thus, the extent of involvement is up to the defendant and he can choose to take a passive role apart from writing a letter to the court about the lack of leave.  In our view, this extra effort on his part is much more economical than leaving things unattended until a default judgment has been entered when an application to set aside has to be made (irrespective of whether the judgment is a nullity or irregularity).  Though it does involve the defendant taking the trouble of writing a letter to the court, we cannot see how this can be regarded as being inconsistent with the legislative purpose behind s69(2).  After all, as a matter of reality, in our adversarial system, the court registry does not have the means to discern whether a particular case comes within the scope of s69(2) and it must depend on the defendant alerting the court about it. Characterizing a set of proceedings commenced without leave as a nullity would not change this fact.  If a plaintiff were to issue a claim falling within the scope of s69(2) without leave, a defendant has to respond sooner or later.

87.   For these reasons, as a matter of construction of s69(2), we do not agree that proceedings commenced without leave must be regarded as a nullity in order to render the protection under s69(2) effective.  With the greatest respect, we would prefer the views of Lord Woolf and Baroness Hale in Seal to those of the majority.

88.   In light of this conclusion, we do not have to consider the secondary question about the proportionality of s69(2) if the true construction were that it renders proceedings commenced without leave a nullity.  We will simply observe that given our above analysis, there is not much practical difference, in terms of achieving the legitimate aims for this restriction on access to court, between characterizing proceedings without leave as nullity or irregularity.  However, as explained by Baroness Hale, the potential consequences for a plaintiff can be immense.  Should we be incorrect in our construction as to the effect of s69(2), we would have little difficulty in holding that to the extent that s69(2) mandated us to regard proceedings commenced without leave as a nullity, it goes further than necessary in achieving the legitimate aims, as such it is disproportionate and inconsistent with Article 35 of the Basic Law.  In such case, we would have read down s69(2) accordingly.

89.   We are aware that our assessment on proportionality is different from that of the majority of the House of Lords in Seal and the European Court of Human rights in Seal v UK, supra.  As in Ashingdane, the European Court’s assessment in this respect focused on the facts of the case (see paras 79 to 82 of the judgment).  There was no discussion on the general effect of nullifying all proceedings commenced without leave.

90.   As discussed above, we take a different view from those adopted by the majority in Seal on the effectiveness of s69(2) in pursuit of the legitimate purposes even if the proceedings were not regarded as nullity.  Further, the instances in which the difference between the consequences flowing from nullity and those from irregularity are likely to be those where parties did not take note of the leave requirement until a very late stage of the proceedings (as postulated by Baroness Hale at para 53 in Seal).  In those instances, it is not difficult to see the injustice that could be occasioned to a plaintiff if the proceedings were held to be nullities whilst there would possibly be little injustice to an defendant if they were held to be irregular.  In addition, the observations of Sedley LJ at paras 26, 28 and 41 in Adorian in respect of a unmanageable shorter limitation period for a plaintiff subject to leave requirement seem to be equally applicable for a plaintiff subject to s69(2).  We do not see any necessity for impairing the right of access of such a plaintiff to that extent.  As Baroness Hale said at para 61 in Seal:

“… Defendants deserve protection from vexatious claims.  They do not deserve protection from meritorious claims.”

91.   Yet, if proceedings commenced without leave were held to be a nullity even in cases where the court would be minded to grant leave, we are in effect subjecting meritorious claims to a shorter limitation period by reason of contingencies outside the control of the plaintiff such as the state of the court’s diary.  We are not persuaded that this is necessary for the furtherance of the legitimate aims of s69(2).