RICHARD SWAN v. THE MEDICAL SUPERINTENDENT OF PAMELA YOUDE NETHERSOLE EASTERN HOSPITAL

HCAL 118/2026

[2026] HKCFI 853

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 118 OF 2026

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BETWEEN

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DECISION

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A. Introduction

1.  On 9 January 2026, the Applicant applied ex parte for a writ of habeas corpus against the Medical Superintendent of the Pamela Youde Nethersole Eastern Hospital (“PYNEH”), the Respondent, to bring to court Dante Elaine Cipolla Moran (“Moran”) said to be under the Respondent’s custody or control and to justify the lawfulness of Moran’s detention (“the Application”).

2.  According to the Applicant’s Affidavit filed in support of the Application (“the Affidavit”):

(1) The Applicant is a friend and had shared accommodation for several months with Moran;

(2) Moran is not able to make an affidavit herself due to her lack of access to legal resources, she is forbidden to send letters and has no practical means to engage with the courts while detained;

(3) In November 2024, Moran was sentenced to approximately four months’ imprisonment for a minor drug possession offence and was committed to Lo Wu Correctional Institution;

(4) Due to the stress caused by being placed in segregation for disciplinary reasons, her emotional state deteriorated and she was transferred to Siu Lam Psychiatric Centre;

(5) In early February 2025, with about one week remaining in her sentence, Moran was informed that she would not be released upon completion of sentence but custody would be transferred to the Hospital Authority and she was conveyed by ambulance to PYNEH and compulsorily detained until present;

(6) In around April 2025, Moran was transferred from PYNEH to a compulsory drug rehabilitation program in the New Territories but she absconded and was recaptured and returned to PYNEH;

(7) On 7 and 23 June 2025, the Applicant wrote to Moran’s treating doctor (“Dr Tang”) requesting Moran be discharged into his care and he offered to provide accommodation and a stable home environment;

(8) On 2 July 2025, the Applicant met with Dr Tang at PYNEH but she showed little interest in the Applicant’s materials to show his ability to provide proper care. At the end of the meeting, Dr Tang announced that Moran would not be discharged due to the risk of self-harm posed by her past drug use. Following the meeting, Dr Tang provided him with a Form 10 to lodge a formal discharge request;

(9) The Applicant submitted a completed Form 10 but somedays later received a Form 11 signed by Dr Tang which indicated discharge was refused due to the Applicant’s failure to satisfy Dr Tang that he would provide proper care for Moran;

(10) By refusing his application to discharge, Dr Tang acted unlawfully contrary to s.42 of the Mental Health Ordinance, Cap. 136 (“MHO”) and in violation of the Bill of Rights Ordinance; and

(11) The justifications for the continued detention of Moran have been inconsistent, procedurally flawed and not necessary but was influenced by punitive/retaliatory factors and constitutes an unlawful deprivation of liberty contrary to Art 28 of the Basic Law.

3.  By letter dated 15 January 2026, I directed inter alia that the Respondent shall have leave to lodge and serve a response to the Application and the Affidavit on or before 23 January 2026, the Applicant do lodge and serve any reply on or before 30 January 2026 and that the Application be heard today.

4.  The Respondent subsequent sought an extension of time for the filing of its response and the Applicant’s reply which I granted.

5.  By letter from the Respondent’s solicitors dated 26 January 2026 (“JSM’s Letter”), the Respondent’s response to the Application, in summary, was as follows:

(1) Moran is a 28 year-old lady with a longstanding history of multiple psychiatric comorbidities including, bipolar affective disorder, stimulant dependence syndrome, harmful use of alcohol, borderline personality disorder and a history of stimulant-induced psychotic disorder. She was documented to have consulted a private psychiatrist since 2012 for borderline personality disorder and became known to the public psychiatrist services since 2016 when she was admitted to the psychiatric ward of Kowloon Hospital for violence towards family. She was initially diagnosed with stimulant induced psychotic disorder and borderline personality disorder and subsequently diagnosed with bipolar affective disorder;

(2) On 20 January 2025, Moran was transferred from Siu Lam Psychiatric Centre to PYNEH;

(3) Following stabilisation, she was conditionally discharged on 13 March 2025 pursuant to s.42B of MHO subject to several conditions including designated detox residence, mandatory follow-up treatment at the Psychiatric Specialist Out-patient Clinic of PYNEH, supervision by the Director of Social Welfare and compulsory Community Psychiatric Services;

(4) On 11 April 2025 when on the way by MTR to PYNEH for follow-up, Moran absconded and thereby breached her conditional discharge conditions. She was recalled under s.42B of MHO and escorted to PYNEH by the police. Upon admission, her urine toxicology was positive for methamphetamine and metabolites;

(5) On 22 April 2025, detention under s.36 of MHO (Form 7) was initiated in view of Moran’s suboptimal mental state, poor insight, continued substance use and non-compliance with medication, limited community supervision such that further in-patient treatment was necessary for the protection of herself and others;

(6) On 26 June 2025, Moran was found to be agitated with torn bedsheets and a bag of white powder in her possession. Urine toxicology detected methamphetamine;

(7) An application for discharge of Moran under s.42 of MHO (Form 10) was filed by the Applicant on 2 July 2025;

(8) Phone contact was made with Moran’s parents on 2 July 2025 and they agreed to attend a joint meeting after they returned to Hong Kong. They further expressed immense concern if Moran was discharged abruptly under the Applicant’s care. In view of Moran’s high risk of reinstatement and relapse potentially leading to Moran harming herself and others, it was suggested that she should receive care from a licensed residential care home/detoxification centre under supervision and community social support rather than be discharged under the Applicant’s care with which Moran’s parents agreed;

(9) Having review Moran’s conditions, her treatment needs, the Applicant’s representation within the 48 hours’ time limit under s.42(1) of MHO, PYNEH refused discharge by way of Form 11 on 3 July 2025, on the grounds that the treating team had significant concerns about whether the Applicant could provide the necessary care and close supervision Moran required in light of her psychiatric conditions, limited insight and potential risks;

(10) A joint meeting with the Applicant, Moran and her parents was held on 14 July 2025 to discuss Moran’s community care and discharge plan;

(11) Since April 2025, PYNEH enquired into the availability of residential detoxification centres for Moran but they declined due to the recent absconding history and language barrier;

(12) As was communicated to Moran’s parents, PYNEH started to waitlist Moran for halfway house since May 2025;

(13) Arrangements were then made for Moran to attend interviews for two halfway houses on 30 September 2025 and 23 December 2025 but Moran was dissatisfied with the environment and the staff and preferred to wait and apply for residential homes instead;

(14) As of January 2026, Moran’s mood is generally euthymic, with no active psychotic or suicidal symptom. She remains on psychiatric medications;

(15) On 20 January 2026, Moran attended interview with a supervised residential care home and was offered a placement on the same day which she accepted;

(16) On 23 January 2026, a pre-discharge Multi-Disciplinary Case Conference was held and Moran was assessed to be mentally fit for discharge to the residential care home and recommended to continue maintenance treatment and out-patient psychiatric follow-up. In view of her history of abscondence, repeatedly defaulting follow-up, high likelihood of reinstatement of illicit substances and potential risk of relapse leading to self-harm and harm to others, it was agreed that Moran should be conditionally discharged;

(17) According to the Conditional Discharge Order dated 23 January 2026 (“Conditional Discharge Order”), Moran is required to reside at a residential care home and attend follow-up treatment at the Psychiatric Specialist Out-patient Clinic of PYNEH on 6 February 2026 and any subsequent dates specified by the medical practitioner at PYNEH, take medication as prescribed, be under the supervision of the Director of Social Welfare and to receive Community Psychiatric Services; and

(18) On 24 January 2026 at around 12:54pm, Moran was discharged from PYNEH pursuant to the Conditional Discharge Order.

6.  By letter dated 3 February 2026 (“the Reply”), essentially the Applicant has responded as follows:

(1) Whist it was accepted Moran is no longer physically confined within PYNEH, it is misleading to regard Moran as having been “discharged” when she remains deprived of her liberty under another roof but under the authority of the Respondent;

(2) There is a shifting of the justification by the Respondent as it was never suggested that Moran presents a significant violence risk. During discussions with Dr Tang it was maintained that Moran was not violent but the sole concern advanced was self-harm; and

(3) Maintains that Dr Tang acted unlawfully and the continued detention of Moran constitutes unlawful deprivation of liberty contrary to Art 28 of the Basic Law.

7.  In JSM’s Letter and subsequent letter dated 4 February 2026, it was requested inter alia for the Application to be disposed of on paper. However, as the Applicant is acting in person and maintained in the Reply that the hearing today do stand and unless exceptionally directed otherwise, proceedings under s.22A of the High Court Ordinance Cap. 4 should be conducted in open court and orders and decision announced in open court, I heard the Application in open court today.

8.  This is my decision having heard the submissions of the Applicant, unrepresented, and Ms Souza, counsel, appearing on behalf of the Respondent.

B. Discussion

9.  It is well-settled that the court in dealing with an application for writ of habeas corpus is only required to consider if the decision of the applicant’s detention is lawful and not to determine if the decision is reasonable. Specifically, in an application to challenge a conditional discharge order made under s.42B of MHO, the question is not whether the decision to impose the condition is reasonable but whether it is lawful or made with lawful authority: see Ng Chun Kuen (transliteration) v HKSAR [2021] 5 HKLRD 166 per Anderson Chow J (as he then was) at §§22-23 and吳振權 v 香港特別行政區政府 [2023] HKCFI 820 at §22 per Coleman J.

10.  In the present case, in so far as the Applicant challenges Dr Tang’s refusal to discharge Moran on 3 July 2025, there is prima facie lawful authority for Dr Tang to give to the Applicant the Form 11 which states that pursuant to s.42(1) of MHO, Dr Tang as medical superintendent, refused to discharge Moran on the ground that she is not satisfied that Moran will receive proper care. See s.42(1) of MHO which provides:

Where on behalf of a patient including a voluntary patient a relative or friend of the patient makes application in writing in the prescribed form to the medical superintendent —

(a) stating the relationship or connection of the applicant with the patient;

(b) requesting that the patient may be delivered over to the applicant; and

(c) undertaking that the patient will receive proper care and will be prevented from doing injury to himself or to others and, in the case of an application by a person other than the person on whose application the patient was admitted to a mental hospital, satisfies the medical superintendent that before he made the application he served on such person notice of his intention so to do,

the medical superintendent shall within 48 hours of the receipt of the application either —

(i) discharge the patient to the applicant notwithstanding that the patient is still a mentally disordered person; or

(ii) give to the applicant a certificate in the prescribed form stating that he refuses to discharge the patient on the ground that—

(A) he is satisfied that the patient is dangerous or otherwise unfit to be at large; or

(B) he is not satisfied that the patient will receive proper care.

11.  At that time, Moran was the subject of an order under s.36 of MHO and a medical superintendent is authorised by that section to detain her at PYNEH. Contrary to Mr Swan’s suggestion, there was lawful authority for Moran’s initial detention. Section 36(3) provides:

A medical superintendent may detain in a mental hospital for observation, investigation and treatment any person who is the subject of an order under this section and may transfer the patient to any other mental hospital.

12.  Besides, any complaint against Dr Tang’s refusal to discharge Moran in July 2025 or the lawfulness of the earlier detention under s.36 of MHO is now academic given it has been superseded by subsequent events and Moran has been discharged on conditions under s.42(B) of MHO. See吳振權 at §26.

13.  As for any challenge to the subsequent decision to discharge Moran on conditions, it is clear that under the relevant provisions of MHO, the medical superintendent did have the legal authority to do so. See s.42B of MHO which provides:

(1) Where —

(a) it appears to the medical superintendent that a patient has a medical history of criminal violence or a disposition to commit such violence; but

(b) the medical superintendent is of the opinion that the patient may safely be discharged subject to conditions to be specified in an order for discharge,

the medical superintendent may, in the exercise of his powers under section 42A, but subject to any restriction on such power imposed by any provision of Part IV, make an order for discharge subject to compliance by the patient discharged (in this section and section 43 called the conditionally discharged patient) with conditions.

(2) Without prejudice to the power of the medical superintendent in the exercise of his powers under subsection (1) to impose such conditions as he thinks fit on an order for discharge, being conditions reasonable in the circumstances, such conditions may require the conditionally discharged patient —

(a) to reside at a place specified by the medical superintendent;

(b) to attend at an out-patient department of a hospital or at a clinic specified by the medical superintendent;

(c) to take medication as prescribed by a medical practitioner; or

(d) to be under the supervision of the Director of Social Welfare.

(3) In any case where —

(a) it appears to a medical superintendent that a conditionally discharged patient has failed to comply with any condition to which his order for discharge is subject; and

(b) the medical superintendent is of the opinion that it is necessary in the interests of the patient’s health or safety, or for the protection of other persons, to recall the patient to a mental hospital,

the medical superintendent may, by notice in writing in the prescribed form to the conditionally discharged patient or to the person in charge of the conditionally discharged patient, recall the patient to the mental hospital and, upon the giving of the notice to the patient, or at such subsequent time as may be stated in the notice, the patient may be detained and section 43(5) shall apply accordingly.

(4) Any conditionally discharged patient recalled to a mental hospital under subsection (3) shall, upon admission to that hospital, be deemed to have been detained therein under section 31 and, for the purposes of that section, the patient shall be deemed to have been detained in that hospital in pursuance of an order under section 31(1B) made at the time of admission.

(5) The medical superintendent may at any time by notice in writing to the conditionally discharged patient vary the conditions of his discharge.

(6) …

14.  As explained by Coleman J in吳振權 at §17, the two elements necessary for the exercise of the power under s.42B(1) of MHO are where: (1) it appears to the medical superintendent that a patient has a medical history of criminal violence or a disposition to commit such violence; but (2) the medical superintendent is of the opinion that the patient may safely be discharged subject to conditions as specified in an order for discharge.

15.  In the present case, the medical superintendent did have factual basis to opine that Moran had a disposition to commit violence but she may be safely discharged subject to conditions. As noted in the Discharge Summary and set out in JSM’s Letter, Moran was first admitted to Kowloon Hospital for violence towards family and she has a history of repeated violent threats in the past year. She has been on “Special Care” status which means a high intensity, multidisciplinary community follow-up system for patients with severe mental illness, and who have a history of violence or a suspected propensity to violence in order to provide intensive and personalized care in the community. In the Discharge Summary, it was noted that on 2 July 2025 the Applicant was explained the “concern of patient posing risks to herself and others in view of past history of deliberate self harm, reckless behaviours and serious agitation/violent threats towards others”. The conditions imposed for Moran to be discharged were considered necessary by Dr Kwok (the specialist in charge) given the history of violence with or without influence from substance abuse, history of abscondence, refusal of contact with medical staff/social workers, defaulting follow-up and treatment. I cannot accept Mr Swan’s assertion that there was no mention of violence or propensity to violence and there was a shifting justification by the Respondent.

16.  In any event, as held in Ng Chun Kuen at §26, whether the facts were sufficient to justify an order being made is a matter for the medical superintendent and not for the court to decide. The merits of the Conditional Discharge Order ought to be determined by the Tribunal under s.59B of MHO instead of by the court in an application for writ of habeas corpus. In the Discharge Summary, it was noted that the right to apply to the Mental Health Review Tribunal was explained to Moran but no such application has been made to date.

17.  Finally, in so far as the Applicant seeks to argue that s.42B of MHO is contrary to Art 28 of the Basic Law and/or the Hong Kong Bill of Rights, this same argument was rejected in Ng Chun Kuen at §27:

“In so far as the applicant seeks to argue that section 42B of [MHO] is contrary to the Basic Law and/or the Hong Kong Bill of Rights, it seems to me that the provisions in those instruments, which are most relevant for the purpose of the present discussion would be Article 28 of the Basic Law and Article 5 of the Hong Kong Bill of Rights, both of which protect the liberty of the person. Section 42B of [MHO] (which empowers the medical superintendent to make an order requiring a discharged mental patient to reside at a specified place) does, prima facie, restrict that person’s personal liberty. However, the right to personal liberty is not absolute, and the lawfulness of a restriction of such right may be justified by applying the four-step proportionality test. In my view, section 42B of [MHO] can satisfy the four-step proportionality test for the following reasons:

(1) It pursues the legitimate aim of protection of the discharged mental patient and the public, as well as their properties.

(2) The impugned measure is rationally connected to that legitimate aim.

(3) The impugned measure is no more than reasonably necessary to accomplish the legitimate aim, taking into account the fact that (i) an order under section 42B of [MHO] can only be made by the medical superintendent or an assistant medical superintendent of a mental hospital based on medical grounds; (ii) the conditions which may be imposed under section 42B(2) are flexible and can be tailor-made in light of the particular facts and circumstances of the discharged mental patient in question; and (iii) a discharged mental patient who is subject to an order made under section 42B has the right to seek an independent review of that order under section 59B of [MHO].

(4) A reasonable balance has been struck between the societal benefits arising from the application of section 42B of [MHO] and the interference with the applicant’s personal liberty. The Amended Conditional Discharge Order does not result in an unacceptably harsh burden on the applicant, taking into account the fact that he is permitted to take home leave for 4 days per week.

For essentially the same reasons, although the Amended Conditional Discharge Order restricts the applicant’s personal liberty, it also satisfies the four-step proportionality test. It follows that any restriction on the applicant’s personal liberty arising from the Amended Conditional Discharge Order is lawful.”

18.  I agree and respectfully adopt the above analysis to the present case.

19.  In all, I do not consider that there is any basis to challenge the legality of the Conditional Discharge Order whether under Art 28 of the Basic Law or under the Bill of Rights. I am satisfied that any restraints to Moran’s liberty as a result of the Conditional Discharge Order is lawful.

C. Disposition

20.  Accordingly, I will dismiss the Application with no order as to costs.