FRANCIS JACQUELINE v. HOSPITAL AUTHORITY

HCAL 235/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 235 OF 2015

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J U D G M E N T

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A.   Introduction

1. The applicant is the wife of a Mr Francis, Paul Leonard.  She claims she has the power of attorney of Mr Francis since 1999.

2. On 30 November 2015, the applicant made an ex parte application for the issue of a writ of habeas corpus against the Hospital Authority (“the HA”)[1] to bring Mr Francis before the court to justify his detention by the HA.  The application was supported by the applicant’s affidavit dated 30 November 2015.

3. In gist, it is the applicant’s position that on 9 November 2015, Mr Francis was without reasons and basis taken by the staff of HA through deception to a hospital at No 8 Chung Yan Road, Lantau Island.  She has since then been unable to find or locate Mr Francis.  She has made various visits and phone calls to the hospital without any success in seeking to see or talk to Mr Francis.  She alleges that she was blocked by the staff in the hospital and even assaulted when she sought to look for her husband.

4. The applicant emphasises in her affidavit and in court that Mr Francis suffers no medical conditions that require any detention by the HA in a hospital and, in any event, he has never trusted the HA and would not have agreed to be hospitalised in a hospital under the HA.

5. Upon receiving her application for the issue of a writ of habeas corpus, and after clarifying why she used a PO Box address in her affidavit instead of a residential address as generally required under Order 41, rule 1(4) of the Rules of High Court (Cap 4A) (“the Rules”), the court on 11 December 2015 directed that a writ of habeas corpus be issued and the applicant and the HA shall attend the court on 23 December 2015 for the return of the writ and directions.  The court further directed the applicant to file and serve the writ and the notice to make a return (“the Notice”) on the respondent, and gave leave to the applicant for the time being to use the PO Box address stated in the affidavit for the purpose of Order 41, rule 1(1).

6. Pursuant to the directions, the applicant issued the writ dated 14 December 2015 and served it on HA.  She has apparently not served the Notice.

7. This is the hearing of the return of the writ of habeas corpus.

B.   The HA’s return and evidence

8. A respondent is by the issue of a writ of habeas corpus required to produce before the court the person alleged to be detained and make a formal return to the writ: section 22A(7) of the High Court Ordinance (Cap 4) (“HCO”).

9. The return must be filed in accordance with the requirements prescribed in Order 54, rule 7 of the Rules, which is to have it “indorsed on or annexed to the writ”. See also: Hong Kong White Book 2016, paragraph 54/1/7.

10. A formal return must be filed even though the respondent is not possible to comply with the writ, specifying the reasons why it cannot be done: section 22A(8) of the HCO.  In such circumstances where the respondent does not have the person in detention as alleged, the correct practice is for the respondent to file a “Nil Return”: Re W [2006] 1 HKC 468 at paragraph 4, per Hartmann J (as the NPJ then was).  It is only when the return is filed that the court can inquire into the circumstances pertaining to the detention, if any: Re Meng Ching Hai [1990] 1 HKC 185 (CA) at 186H - 187A, per Cons VP.

11. In the present case, the HA has made a Nil Return dated 23 December 2015, which states as follows:

“RETURN TO WRIT OF HABEAS CORPUS

I, Dr. MA Hing Man, the Consultant doctor in charge of the Accident & Emergency Department and Emergency Medicine Ward of North Lantau Hospital (‘NLTH’), a hospital managed by the Hospital Authority, the Respondent in this Action, in obedience to the writ herewith do certify and return that Mr. FRANCIS, PAUL LEONARD was a patient admitted into NLTH from 9 to 18 November 2015 for medical treatment.  He was discharged from NLTH on 18 November 2015.  He has never been detained by NLTH and the Respondent and I accordingly make a Nil Return to the writ, pursuant to s 22A(7)(b) of the High Court Ordinance, Cap 4, and O. 54 r.7, Rules of the High Court (Cap. 4A).”

12. The HA has also filed an affirmation by the same Dr Ma dated 21 December 2015.  The affirmation reads as follows:

“I, Dr. MA Hing Man, of 8 Chung Yan Road, Tung Chung, Lantau, Hong Kong, do solemnly, sincerely and truly affirm and say as follows :

1. I am the Consultant doctor in charge of the Accident & Emergency Department (‘AED’) and Emergency Medicine Ward (‘EMW’) of North Lantau Hospital (‘NLTH’), a hospital managed by the Hospital Authority, the Respondent in this Action.

2. I am duly authorised by the Respondent to make this Affirmation on its behalf. The facts stated in this Affirmation are true to the best of my knowledge, information (including information derived from records and documents of the Respondent to which I have access) and belief.

3. I understand that the Applicant has made an application for a Writ of Habeas Corpus in respect of Mr. FRANCIS, PAUL LEONARD and a Writ of Habeas Corpus has been issued.

4. I have reviewed the medical records of Mr. FRANCIS, PAUL LEONARD. According to the medical records, Mr. FRANCIS, PAUL LEONARD was admitted to the EMW of NLTH, through the AED of NLTH, on 9 November 2015. At the time of the hospital admission, Mr. FRANCIS, PAUL LEONARD was accompanied by his son. Medical treatment was provided to Mr. FRANCIS, PAUL LEONARD at NLTH and Mr. FRANCIS, PAUL LEONARD was discharged, again accompanied by his son, from NLTH on 18 November 2015.

5. Mr. FRANCIS, PAUL LEONARD has never been detained by NLTH. As mentioned in paragraph 4 above, he stayed in NLTH from 9 to 18 November 2015 for medical treatment and left NLTH with his son on 18 November 2015. He did not return to NLTH after 18 November 2015.

6. I have also reviewed the electronic patient records maintained by the Respondent and I confirm that Mr. FRANCIS, PAUL LEONARD has never been detained by the Respondent and he is not staying at any hospitals of the Respondent at the moment.”

13. Thus, in substance, the HA’s position is that:

(1) Mr Francis was admitted to the Emergency Medicine Ward of the North Lantau Hospital (“the Hospital”) on 9 November 2015, accompanied by his son.

(2) He had stayed in the Hospital for medical treatments between 9 and 18 November 2015.

(3) He was discharged, again accompanied by his son, on 18 November 2015.

(4) Since then, Mr Francis has not been staying in any of the HA’s hospitals.

14. The Return has been read into record by Ms Souza for the HA at the hearing.  The HA now asks the court to discharge the writ.  See: Order 54, rule 8.

C.   This habeas corpus application

15. The question that the court has to look at on the return of a writ of habeas corpus is whether the applicant can demonstrate a prima facie case of unlawful detention, which then requires the respondent to prove to a civil standard by clear and cogent evidence that the detention is lawful or that there is no detention: Re W, supra, at paragraph 51.

16. In the present case, I am satisfied with the evidence before this court that Mr Francis is no longer in the custody of the HA at any of its hospitals and he had not been unlawfully detained during the period between 9 and 18 November 2015.  I will explain why.

17. The applicant’s position (as expressed in her affidavit and in her oral submissions in court) in summary amounts to accusing that the HA and its staff at the Hospital had for unknown reasons taken Mr Francis into detention and custody, and had denied her any access to him.  In doing so, the HA staff had resorted to “deception” and “false pretences”.

18. These are very serious allegations.

19. The HA is a statutory authority established to manage all the public hospitals in Hong Kong, and Dr Ma is a consultant of the A&E Department and the Emergency Medical Ward of the Hospital.  Further, it must be noted that the applicant has also confirmed with the court that she has made numerous reports to the police concerning the missing of Mr Francis and her allegations that the HA and the staff at the Hospital had taken him unlawfully.  There is no evidence that the police’s investigations have revealed anything that remotely supports these allegations.

20. In the circumstances, when these matters are looked at together, and with nothing but bare assertions (albeit put in an affidavit), I am not satisfied that there is even a prima facie case that the HA and its staff would in discharge of their duties have acted in concert to detain Mr Francis in the Hospital (or any other hospitals under the HA) for no or no good medical reasons as now alleged by the applicant.  This is particularly so when the HA through Dr Ma’s affirmation has confirmed the matters set out above.

21. Alternatively, even if a prima facie case had been demonstrated, for the same above reasons, I am satisfied that there is clear and cogent evidence to show that (a) Mr Francis was not in any form of unlawful detention during the period between 9 and 18 November 2015 (as he was admitted to the Hospital for medical treatments); and (b) he has not been in any of the HA’s hospitals since 18 November 2015.  In other words, I am satisfied that the HA did not at the time of this application and also does not now have the custody of Mr Francis, let alone any unlawful detention.

22. For these reasons, I would discharge the writ of habeas corpus.

D.   Conclusion

23. I will discharge the writ of habeas corpus with no order as to costs.

24. Lastly, the court would like to register its gratitude for the assistance rendered by Ms Souza through her very helpful skeleton.