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HCAL 69/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO 69 OF 2016

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FRANCIS JACQUELINE

THE SUPERINTENDENT
OF KWAI CHUNG HOSPITAL

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Applicant

Respondent

Before: Hon Au J in Court

Date of Hearing: 15 March 2016
Date of Decision: 15 March 2016

R E AS O N S F O R D E C I S I O N

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INTRODUCTION
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By way of a letter dated 17 February 2016, the applicant

made an application to this court for habeas corpus. This is supported by

the applicants unsworn affidavit of the same date.

Date of Reasons for Decision: 21 July 2016

and

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The applicants case in gist is that she was seized by police

at a building in Mong Kok in January and has then subsequently been

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unlawful. She has therefore made the present application.1

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By a letter dated 4 March 2016, this court directed the

applicant to issue a writ of habeas corpus to require the respondent to

attend the court on 15 March 2016.

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The respondent was served by the applicant this application

and the writ of habeas corpus on 10 March 2016.

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The respondent filed and served an affirmation of Dr Lu

Wan Yin, Vivien, setting out the circumstances of the applicants

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After hearing the parties, I discharged the writ of habeas

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now.

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corpus. I indicated that I would give my reasons later. This is what I do

admission to and continued stay at the Hospital.

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detained in Kwai Chung Hospital (the Hospital). She says the seizure
and the detention at the Hospital are both made against her will and thus

The applicant previously also made an application for habeas corpus purportedly on
behalf of her husband under HCAL 235/2015, alleging that her husband was unlawfully
detained in North Lantau Hospital. After a hearing, I discharged the writ as the court was
satisfied that the applicants husband had not been in any form of unlawful detention and in
any event was not detained in any of the hospitals under the Hospital Authority at the time
when the application was made. See the judgment in HCAL 235/2015 dated 30 December
2015.

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B.
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THIS HABEAS CORPUS APPLICATION IS THE DETENTION

UNLAWFUL

demonstrate on a balance of probabilities that the detention is lawful: Re

W [2006] 1 HKC 468 at paragraphs 51 - 53. The standard of proof is the

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civil standard but the degree of probability is high: Hong Kong Civil
Procedure 2016 at paragraph 54/3/1, citing Khawaja v Secretary of State
for the Home Department [1984] AC 754.

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In the Return to Writ of Habeas Corpus, it is the respondents

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mental disorder of a nature or degree which makes it appropriate for her

to receive medical treatment in the Hospital, and thus justifying

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Ordinance (Cap 136) (MHO) for that purpose and for the applicants
health and safety as well as for the protection of other persons.

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B2.

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The respondents position

compulsory detention under sections 31, 32 and 36 of the Mental Health

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B1.

position that the detention is lawful, as the applicant is suffering from

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The question I have to consider in this application (where the

writ of habeas corpus has been issued) is whether the respondent can
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The relevant procedures for the issue of detention orders under the
MHO
The procedure for obtaining a detention order is provided

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under Part III of the MHO. The relevant statutory provisions provide for
the maximum period that a person can be obtained under each section,
and the formal requirement for obtaining such orders.

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An application can first be made under section 31 of the

MHO for an order that a patient be detained for a period not exceeding
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(1) An application may be made to a District Judge or

magistrate for an order for the detention of a patient for
observation on the grounds that the patient(a) is suffering from mental disorder of a nature or
degree which warrants his detention in a mental
hospital for observation (or for observation followed
by medical treatment) for at least a limited period;
and

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(b) ought to be so detained in the interests of his own

health or safety or with a view to the protection of
other persons.

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(1A) An application for an order for the detention of a patient

for observation shall be founded on the written opinion in the
prescribed form of a registered medical practitioner who has
examined the patient within the previous 7 days, which opinion
shall include(a) a statement that in the opinion of the practitioner the
conditions set out in subsection (1) are satisfied;

(b) such particulars as may be prescribed of the grounds

for that opinion so far as it relates to the conditions
set out in subsection (1)(a); and

(c) a statement of the reasons for that opinion so far as

it relates to the conditions set out in subsection (1)
(b).

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seven days for observation. Section 31 of the MHO provides, in relevant

part:

(1B) Upon receipt of an application under subsection (1) the

District Judge or magistrate may make an order in the
prescribed form authorizing the removal of the patient to a
mental hospital for the purpose of detention and observation
during the period not exceeding 7 days from and including the
date of the order.

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(4) A medical superintendent may detain in a mental

hospital for observation, investigation and treatment any person

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who is the subject of an order under this section or under

section 32.

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Section 32 also allows for an application for an extension of

the period of detention for a period not exceeding 21 days. Section 32 of

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the MHO states that:

(1) If a patient under observation in a mental hospital has
been examined by 2 registered medical practitioners, either
separately or together, and the 2 registered medical
practitioners are of the opinion that it is necessary that the
patient under observation should be detained in a mental
hospital for a further period for the purpose of observation,
investigation and treatment, they may complete a certificate in
the prescribed form and forward it to a District Judge.

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(2) If a District Judge who has received a certificate in

accordance with the provisions of subsection (1) is of the
opinion that it is necessary for the person named in the
certificate to be detained in a mental hospital for a further
period of observation, investigation and treatment, he shall
countersign the certificate and shall forward it to the medical
superintendent of the mental hospital in which the person is
detained.

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(3) Only one extension of not more than 21 days shall be

made in accordance with this section to any order made in
accordance with section 31.

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(4) Subject to section 36, no person shall be detained in a

mental hospital after the expiration of the period of any order
made in accordance with section 31 and of any extension
thereto made in accordance with this section unless he has
become a voluntary patient.

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Section 36 further provides for a detention order to be made

in respect of a patient, and states that:

(1) If-

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(a) a patient liable to be detained in a mental hospital

(otherwise than under this section) they may
complete a certificate in the prescribed form and
forward it to a District Judge.

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(2) If a District Judge who has received a certificate in

accordance with subsection (1) is satisfied that the certificate
referred to in subsection (1) is in order and there are no grounds
for rejecting it, he shall countersign the certificate and shall
forward it to the medical superintendent of the mental hospital
in which the person is detained

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(3) 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.

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(5)

(b) applies to a patient other than a patient referred to in

paragraph (a) only where the 2 medical practitioners
referred to in subsection (1) are, in addition to being
of the opinion described in that subsection, also of
the opinion that the patient is abnormally aggressive
or that his conduct is seriously irresponsible.

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The application must be made in the prescribed forms, as

provided in the Mental Health Regulations (Cap 136A).

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A patient liable to be detained in a mental hospital can make

an application to review the detention order. The review application is to

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section 59A of the MHO for the purpose of dealing with applications
and references by and in respect of patients under this Ordinance.
Section 59B(1) of the MHO provides, relevantly that, an application

be made to the Mental Health Review Tribunal, which is established by

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This section(a) applies to a patient who suffers from mental illness

or psychopathic disorder; and

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may be made to the tribunal for the review of the case of any patient
liable to be detained in a mental hospital

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The powers of the Mental Health Review Tribunal upon

review are set out in section 59E of the MHO:

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(1) Where application is made to the tribunal under section

59B(1) or (2)(a) or (b) or a case is referred to it under section
59C(1) or 59D(1), the tribunal may(a) direct that a patient be discharged, and where it does so
the patient shall be discharged in accordance with its
direction; and

(b) make such recommendations in the matter as it thinks fit

including recommendations to the Chief Executive and
to any public officer as to the exercise of their powers
under this or any other Ordinance.

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B3.
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The respondents evidence concerning the detention of the

applicant

compulsorily admitted to the Hospital via Kwong Wah Hospital on 20

January 2016, where she has since been treated. The applicant was
of aggressive behaviour.
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Upon admission to Kwong Wah Hospital, the applicant was

applicant should be admitted, compulsorily if necessary, for further

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the relevant medical practitioners, and the basis for seeking the
applications detention order, are set out in the psychiatric notes exhibited
to Dr Lus Affirmation.

assessed by various medical practitioners who came to the view that the
observation and treatment. The observations and diagnosis recorded by

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It is the respondents evidence that the applicant was

brought to Kwong Wah Hospital and was accompanied by police because

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The application for compulsory detention was made in line

with the prescribed statutory procedure under Part III of the MHO, which
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deals with the reception, detention and treatment of patients.

procedure:
(1)

On 20 January 2016, an application was made under sections

respectively, for the detention of the applicant for
observation. Section 31(1B) requires that the application be

countersigned by a magistrate or district judge, and that the

detention not exceed seven days: see Form 1 and Form 2

(2)

On 22 January 2016, Dr Lu and Dr Choi had after their

district judge, and section 32(3) requires that only one

extension of not more than 21 days: see Form 4, signed by
Dr Choi, Dr Lu and countersigned by District Judge G Lam.

(3)

On 5 February 2016, after Dr Lu and Dr Choi had reassessed the applicants condition and come to the view that
she required further observation and psychiatric treatment,
they applied to certify her as a patient with a mental disorder

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and thus applied for a detention order under section 36(2) of

the MHO. Section 36(2) of the MHO requires that the order
be countersigned by a district judge, see: Form 7 signed by

Section 32(2) requires that the order be countersigned by a

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to section 32 of the MHO to extend the period of

Ms Veronica Heung, Magistrate).

compulsory detention of the applicant for a further 21 days.

examination of the applicant, made an application pursuant

(signed by Dr Tseng and Dr Chung) and Form 3 (signed by

35A(1) and 31(1A) of the MHO by Dr Tseng and Dr Chung

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following steps were taken, in line with the prescribed statutory

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Dr Choi and Dr Lu, and countersigned by Deputy District

Judge To Ho-shing.

(4)

The applicant is currently receiving treatment in the Hospital

and has been assessed, by Dr Choi and Dr Lu, as requiring
continuous detention and treatment.

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The respondent has exhibited to Dr Lus affirmation copies

of (a) the detention orders respectively made by the Magistrate pursuant

dated 22 January 2016 and Deputy District Judge To dated 11 February

2016 (respectively pursuant to sections 32 and 36 of the MHO); and (b)

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The applicant submits that she is of sound mind and suffers

clear way she is making submissions in court (as the court could observe)
shows that she is not suffering from any psychiatric conditions. She
that the detention is unlawful. Implied in these submissions must also be
the applicants contention that the above detention orders were wrongly

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(1)

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I am unable to accept the applicants contentions because:

First, the applicants assertions are not based on or supported

by any relevant medical reports. As such, I am unable to

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Courts view

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issued.

therefore asks this court not to accept the respondents evidence and says
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the relevant supporting medical reports and admission summary.

no mental illness. In particular, she emphasises that the composed and

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to section 31(1B) of the MHO dated 20 January 2016, District Judge Lam

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prefer her mere assertions to the respondents evidence,

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which is well supported by objective documentary evidence,

including the expert medical opinions provided by

(2)

courts.

Second, and in any event, if she is dissatisfied with the

detention orders, she should make an application to review

them by the statutory specialist tribunal under section 59B(1)

of the MHO.
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In my view, the respondent has clearly satisfied me with the

above credible and objective evidence that the applicants detention at the

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Hospital is and has been a lawful one made pursuant to the relevant
provisions under the MHO and valid orders issued by the courts.

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I therefore discharged the writ of habeas corpus with no

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order as to costs.

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Lastly, I would also like to thank Ms Souza, counsel for the

respondent, who has rendered helpful assistance to this court.

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(Thomas Au)
Judge of the Court of First Instance
High Court

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The applicant appeared in person

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Ms Denise Souza, instructed by Mayer Brown JSM, for the respondent

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psychiatrists and the relevant detention orders issued by the

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