內地人曾麗霞2005年嫁給患有智力障礙的27歲香港人霍春華，婚後一直持雙程證在香港居住，等候單程證獲批，2007年5月曾麗霞懷孕，在香港公立醫院產子時，因為內地人身份而被收取了額外費用。
香港人的內地籍妻子在港產子的收費，跟夫妻雙方都是內地人產子費用一樣為3.9萬港元，而普通香港孕婦生仔，個人只需要花三四百港元。
2007年8月，68歲的霍兆榮代表其患智力障礙的兒子霍春華正式提出司法覆核，認為制度漠視家庭在香港、正等待單程證獲批的准來港婦女的福利。
2008-5-15
【大公報訊】一名68歲的本港男子因不滿其來自內地的媳婦去年來港產子，到醫院檢查時醫院要她支付3.9萬元分娩費，認為醫管局此做法牴觸《基本法》及《人權法》，引入收費的做法亦不合理，故申請司法覆核。案件昨日在高等法院開審，控方分別在庭上讀出多條《基本法》及《人權法》的條文，指醫管局做法明顯牴觸該些條例。預計案件需審訊4日。
申請人為霍春華且由其父親霍兆榮（68歲）作代表，答辯人為醫院管理局及食物環境衛生署。原本一直沒有聘請律師的霍兆榮昨日帶同一支龐大律師團到庭，且由他們作代表陳詞。霍昨日亦帶同有中度弱智的兒子霍春華（27歲）及來自內地的媳婦曾利霞（29歲），而且更手抱剛於去年12月尾出生的孫兒霍敏權到庭。
據控方律師庭上陳詞指，拿取公援維生的港人霍兆榮的中度弱智兒子霍春華，於2005年10月結婚，媳婦去年持雙程證來港，準備在公立醫院誕下兒子。去年5月16日，媳婦因身體不適在霍兆榮陪同下到瑪嘉烈醫院求醫，但醫院卻要求她預繳3.9萬元分娩費，但霍氏認為不合理，因媳婦已嫁給其兒子，故與一般內地孕婦的情況不同，應享有醫療保障，故認為醫院的做法不公平。
控方又指霍兆榮曾寫過多封信件致醫管局、食環署、行政長官，甚至國家領導人，指特區政府做法不合理，但他們均回覆無意改變該政策。因此霍遂入稟高等法院就此項政策尋求司法覆核。另外控方又指根據資料，去年有27000名內地孕婦來港產子，當中3000人有香港丈夫，律師指，這些夫婦應該與香港夫婦享有同等的福利。
律師昨日又援引《基本法》及《人權法》多項條文指，分娩費有三個範疇違反了《基本法》及《人權法》，當中包括不應該在2007年把內地孕婦來港產子的費用由2萬元增加至3.9萬元；另外不可以用沒有香港身份證來分辨她是否內地婦人，因沒有香港身份證的孕婦有多種，有部分是港人家庭的一分子。
2008年12月，香港高等法院裁定霍兆榮敗訴。當時法官潘兆初在判詞中指出，政府於2003年起為防止非本地孕婦佔用公立醫院資源而設立該分娩套餐收費，乃履行其憲制責任控制公共醫療資源，而霍兆榮的兒媳婦當時為雙程證人士，法律上只是訪港旅客身份，即其丈夫為香港居民也不能改變其身份，故向其收取3.9萬港元並不構成歧視。判詞同時指出，霍兆榮的兒媳婦是否來港產子，純屬其個人選擇，有關選擇導致的任何財政支出，政府沒有責任代為支付。
2010-05-11
港人內地妻分娩費上訴判輸
本報訊】港人內地妻子在本港公立醫院產子，要繳交至少3.9萬元的分娩費。一對夫婦不滿有關收費制度，申請司法覆核挑戰醫管局，在高院敗訴後又提出上訴；上訴庭認同有關政策具爭議性，但裁定醫管局對非本港居民孕婦徵收較高的分娩費用並無違法，因為醫管局資源有限，分配資源時必須取得平衡，昨日駁回該對夫婦的上訴，但指出醫管局不應「一刀切」，要視乎個別情況給予豁免或減費。
上訴庭3名法官，昨一致裁定代表27歲弱智兒子霍春華夫婦提出上訴的申請人霍兆榮敗訴，在近60頁的判詞中指出，分娩收費是向產婦徵收，不是針對嬰兒，即使出生的嬰兒有本港居民身份，但產婦是訪港人士，便要支付非本地人的費用；而上訴人引用基本法37條，有關保障本港居民婚姻和成立家庭權利的條文，不是無邊際的，不可以套用於這宗案件。醫管局作為一個法定機構，在有限的資源下，有責任為本港居民提供高質素的醫療服務，保障港人享用設施權利。
司徒敬續指，收費政策有效解決內地婦湧來港產子的問題，明白政策對個別人士或是嚴酷及無情，但以居民身份劃分收費，並非不合法及不合理，故沒有違反《基本法》及《人權法》。
惟司徒敬指出，《醫院管理局條例》賦予局方權力，酌情處理是否減低、豁免及退還收費，但局方對個案一概不作考慮，做法不合法。上訴庭又提及，霍父育有兩名智障兒子，故特別擔心媳婦的產前檢查，而分娩收費確對霍家帶來困難，故頒令個案發還局方考慮。
霍兆榮有2名智障兒子，法援署2007年代霍去信醫管局指霍氏負擔不起分娩費，但醫管局卻回覆指分娩費不設豁免，上訴庭指醫管局的處理不合法，因為《醫院管理局條例》列明收費可在某些情況下「全部或局部減低、省免或退還」。故上訴庭將豁免收費事宜發還醫管局作重新考慮。
霍兆榮的兒子霍春華及其內地妻子曾利霞於2005年結婚後，曾婦等候單程證來港定居，其間經常以雙程證來港，2007年5月曾婦懷孕在本港公立醫院產子後，因其內地人身份而被徵收額外費用合共4.8萬元，霍兆榮認為醫管局做法歧視，遂代表輕度弱智的兒子申請司法覆核。
2011年8月26日
獲准向終審法院提出上訴。終院認為案件涉及重大和廣泛重要性，排期在明年二月六日及七日進行聆訊
排期在明年二月六日及七日進行聆訊。申請人的律師陳詞時，批評該項政策將港人內地妻子，與另一些和香港全無聯繫的孕婦混為一談。此外，對非本地孕婦收取高昂分娩費用，只會令她們在臨盆前才衝擊醫院急症室。
申請人要求終院考慮該項政策是否牴觸《基本法》、《人權法》和《醫院管理局條例》，以及是否有歧視成分或不合理。現時最少有七十五名港人內地妻子被醫管局追收分娩費，並等候這次最終裁決。純學術爭拗
醫管局及食衞局表示，這宗只是個別案件，沒有代表性，霍的媳婦現已成為香港居民，醫管局也按上訴庭建議豁免他們分娩費連利息共十五萬元，令案件已變成純粹學術爭拗。
況且，醫管局已在今年推出限收非本港孕婦新措施，涉案的政策已過時，終院不應受理上訴申請。
終院三名常任法官退庭考慮後決定受理上訴申請，霍兆榮對此感到高興。他批評醫管局的政策「禍國殃民」，又聲稱推翻該政策已指日可待。他透露，連他的家人也不支持他繼續打官司，但他認為案件關乎其他情況相近的港人內地妻子，故他堅持下去。另外，約有廿名「中港家庭權益會」成員到終院聲援他，其中包括多名孕婦。
2012年04月03日
據香港明報報道，香港終審法院昨日(2日)一致裁定，香港醫院管理局向非本地孕婦徵收較高的分娩費用並沒有違反公平原則，判決也為醫管局提供法理依據，向衝急症室分娩的內地孕婦增加收費。
消息指醫管局擬由現時4.8萬元(港幣，下同)加至7萬至10萬元，希望能收阻嚇作用，預料加幅將連同內地孕婦明年到港分娩限額，一並於4月底公佈。
加幅分娩限額4月底公佈
據瞭解，醫管局一直未能正式增加非本地孕婦收費，本案是其中一個障礙。案中上訴人霍兆榮質疑醫管局將港人內地妻子列為“非合資格人士”並提高收費，做法不公。終院駁回霍的上訴後，醫管局向“非合資格人士”增加收費的障礙也一並掃除，換言之可宣佈加價。
判辭強調，法院面對與社會及經濟有關的政策時，必須考慮推行有關政策有否足夠理據，法官考慮到醫管局一方提出的背景後，接納醫管局以孕婦本身的身份作分界線，是合理決定。
終院判辭由首席法官馬道立撰寫。馬道立說，特首早於2002年7月已表明，本港需要制訂長遠人口政策，以確保有限的公共資源可持續提供服務，故有需要界定誰有權分享資源。根據醫管局提供數據顯示，內地婦女佔用了本港公立醫院的相當部分產科服務，有人為了減省醫療開支，更做出半夜衝急症室等危險行為，危及母嬰健康之余，也加重了夜更急症室的工作負擔。
週一嶽﹕歡迎判決 “單非”孕婦可選私立醫院
馬指內地孕婦對本地孕婦造成負面影響，公院可負擔的嬰兒出生數目已超出負荷，政府為確保本地孕婦可優先使用公院的產科服務，先後在2002至2007年三度提高非本地孕婦的收費是合理決定。至於醫管局以本地居民身份界定哪些孕婦有優先權，亦屬合理。
食衛局長週一嶽對終院裁決表示歡迎。他說，去年本地孕婦分娩數目增至5萬多，政府須確保公營醫療優先為本地孕婦提供服務。對于港人內地妻子(俗稱“單非”)想在香港生育，周指運作上會遇到困難，因確定內地女子與香港男子結婚，審核需時。周說，“單非”孕婦若想在港分娩，可選擇使用私家醫院服務，其配額將另作安排；政府會在4月與私院探討內地孕婦來港分娩配額問題，到時會把“雙非”及“單非”孕婦分開，政府會在數字上做出限制。
FACV No. 10 of 2011
IN THE COURT OF FINAL APPEAL OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
FINAL APPEAL NO. 10 OF 2011 (CIVIL)
(ON APPEAL FROM CACV NO. 30 OF 2009)
____________________
BETWEEN
FOK CHUN WA
suing by his next friend Fok Siu Wing 1st Applicant
(1st Appellant)
Zeng Lixia 2nd
Applicant
(2nd Appellant)
And
The Hospital Authority
The Secretary for Food and Health
2nd Respondent
____________________
Before: Chief
Justice Ma, Mr Justice Chan PJ, Mr Justice Ribeiro PJ,
Mr Justice Mortimer NPJ and Lord Millett
NPJ
Date of Hearing: 8 March 2012 and 9 March
2012
Date of Judgment: 2 April 2012
________________________
J U D G M E N T
_________________________
Chief Justice Ma:
A
INTRODUCTION
A.1
The Essential Complaint
1.
The second applicant is now a resident of Hong Kong, but this was not
her status at the time the present judicial review proceedings commenced in
2007. At that time, the second applicant
was representative of a number of women from the Mainland bearing the following
similarities: she was married to a Hong Kong resident, held a Two-Way Permit
(the permit issued by the Mainland authorities enabling a Mainland resident to
visit Hong Kong up to a maximum of 90 days) and was in the course of applying
for a One-Way Permit (also a permit issued by the Mainland authorities whereby
a Mainland resident would be permitted effectively to emigrate to Hong Kong and
once here to become a Hong Kong resident, and be entitled to a Hong Kong
Identity Card). The second applicant,
prior to her becoming a Hong Kong resident, had all along maintained that she
had substantial connections with Hong Kong. In the course of this litigation, the second
applicant and those women who share the qualities just described, have for
convenience been called the A2 Group. I
will continue to use this term to describe this group of women.
2.
The second applicant had also given birth to a child in a public
hospital in Hong Kong. The subject
matter of the present proceedings is the level of fees payable by the second
applicant and others in the A2 Group.
The main complaint made by them is that they have been unlawfully
discriminated against in that the level of fees payable by them for obstetric
services in public hospitals in Hong Kong was substantially higher than those
payable by Hong Kong resident women. The
line between these two groups of women was drawn (as evidenced by the relevant
three decisions which I shall identify shortly) at residence status – in short,
Hong Kong residents (holding an ID card) as against non-Hong Kong residents, to
which group the second applicant belonged. This, they say, breaches the right
to equal treatment guaranteed under Article 25 of the Basic Law and Article 22
of the Hong Kong Bill Of Rights contained in the Hong Kong Bill Of Rights
Ordinance Cap 383. As was put in their
Case lodged with this Court, the constitutional duty imposed on the respondents
was to ensure equality among analogous groups of pregnant women.
3.
This is the principal issue for determination in this appeal and
involves the court discharging its responsibility – and this is a
constitutional duty – of subjecting government measures to the test of
lawfulness by reference to fundamental rights guaranteed under the Basic Law
and the Bill of Rights. The applicants
also rely on other arguments to support their submission that the level of fees
chargeable to the A2 Group was unlawful.
I shall identify these other arguments in due course.
A.2
The Parties
4. I
have already introduced the second applicant.
The first applicant is her husband and he was at all material times a
Hong Kong permanent resident. The second applicant is from the Mainland. After they married, the second applicant
would regularly come to Hong Kong on the strength of Two-Way Permits, returning
to the Mainland briefly after the expiry of the 90 days stay allowed under that
Permit (and correspondingly permitted by the Hong Kong Immigration Department),
but applying almost immediately (or at least very quickly) for another Two-Way
Permit. She, like many in the A2 Group,
was a regular visitor to Hong Kong but, in legal terms, only that, a visitor. She was not a Hong Kong resident.
5.
The first applicant sues by his next friend, his father, by reason of
his mental incapacity.
6.
The first respondent, the Hospital Authority, is a statutory body having
the responsibility of managing and controlling public hospitals in Hong Kong.
This responsibility is governed by and defined in the Hospital Authority
Ordinance Cap 113. Among its
responsibilities is recommending to the Secretary for Food and Health (the second
respondent in these proceedings) policies on the fees chargeable in public
hospitals. I shall in due course be
referring in greater detail to the first respondent’s responsibilities when
dealing with the issues raised by the applicants based on the Padfield
principle (see Padfield v Minister of Agriculture, Fisheries and Food [1986] AC
997). The applicants also relied on the
Wednesbury principle (see Associated Provincial Picture Houses Ltd v Wednesbury
Corporation [1948] 1KB 223). As will be
seen, the Wednesbury ground adds nothing to the other grounds raised by the
applicants.
7.
The second respondent (formerly the Secretary for Health, Welfare and
Food – for convenience I will refer to both the past and present posts as the
second respondent) is the government official responsible for the formulation
of medical and health policies (including policies on fees chargeable in public
hospitals) and the monitoring of the first respondent.
8.
It is the various decisions from 2003 to 2007 (having the effect of
raising the fees for obstetric services in public hospitals for non-residents)
made by the first and second respondents that have led to the present
proceedings. I now turn to these
decisions, and the facts and circumstances leading up to them.
B
THE DECISIONS
B.1
The General Background
9.
Three decisions are impugned by the applicants in the present
proceedings:-
(1) The classification on 1 April 2003
whereby spouses of Hong Kong residents became were classified as Non-Eligible
Persons (NEPs) for the purpose of receiving subsidized obstetric services. This included the A2 Group and resulted in
higher charges payable by them for these services. (The first Decision).
(2) The decision dated 22 August 2005 in
which a package charge for obstetric services for NEPs was introduced, to take
effect on 1 September 2005, thereby increasing even more the charges payable by
these persons. (The second Decision).
(3) The decision dated 22 January 2007
increasing yet again the package charge payable by NEPs, affecting persons like
the second applicant and the A2 Group.
(The third Decision).
10.
In the public sphere, financial resources are limited and decisions have
to be made by the Government as to how Hong Kong’s finite resources are to be
utilized. Thus, socio-economic policies
have to be devised and periodically revised in order to allocate public funds
to the various sectors of society requiring them: (to name a few) education,
housing, welfare, infrastructure and the area which provides the background to
the present case, public health. Such policies have to take into account
manifold considerations and the allocation of public funds to various sectors
are inter-related. At times, a fine
balancing exercise may have to be struck, always against the background of
limited financial resources and long-term considerations. If increased funds are given to one sector
over others, this may have the consequence of reducing the funds available to
those other sectors. Limited resources
are not confined to the question of financial resources either. Manpower resources are also finite: there is
no limitless supply of professional or skilled people. In the area of health, for example, there is
a limited supply of doctors, nurses, midwives and other medical helpers. All these factors are legitimate factors to
be taken into account in devising socio-economic policies.
11.
The medical services available to what are now known as Eligible Persons
(formerly called Entitled Persons) (EPs) in Hong Kong are heavily subsidized by
public funds. The evidence before the
court indicated a subsidy in the region of 95%.
These services included the provision of obstetric services to EPs.
12.
Prior to the establishment of the first respondent in 1990 under the
Hospital Authority Ordinance, public hospitals in Hong Kong were managed by the
Government. Subsidized health services
were made available to EPs and the categories of EPs were gazetted. These included: holders of Hong Kong ID
cards, their children under the age of 11, UK citizens and other persons approved
by the Director of Hospital Services or the Director of Health. Spouses of Hong Kong ID holders were included
in the list of eligible persons entitled to subsidized health services.
13.
After the first respondent was set up, these categories of EPs remained,
except that the last category was to be approved by the Director of Operations
of the first respondent. Spouses of Hong
Kong ID holders continued to be included in the list of approved persons
entitled to subsidized health services.
This was the position until the first Decision.
B.2
The First Decision 2003
14.
In his inaugural speech on 1 July 2002, the Chief Executive at the time
stated:-
“There is an urgent need for development
of a comprehensive population policy, and we will work on this within this
year. This population policy will be designed to fit Hong Kong’s long-term
social and economic development, will complement family requirements, and will
address the interests of different sectors in our community.”
15.
A Task Force on Population Policy was then set up under the
responsibility of the Chief Secretary for Administration. A Report was issued by the Task Force in
February 2003 in which its stated objective was to devise a population policy
and to recommend policy initiatives for the Administration to consider for the
short and medium terms. One of the
issues examined by the Task Force was eligibility for public benefits and
within this, eligibility for public healthcare.
16.
In dealing with the aspect of public benefits, the Report stated (in
para 5.56) the need to “strike a very fine balance” between different sectors
of society and giving “due regard to the long-term sustainability of our social
services within limited financial resources”.
That paragraph then referred to the fact that CSSA (Comprehensive Social
Security Assistance), and public health and hospital services accounted for 21%
of the Government’s total public expenditure for 2001/2002. Earlier in the Report, reference was made to
the need to have a rational basis on which Hong Kong’s social resources were to
be allocated, in particular seen against “our current austere fiscal situation
when available resources are increasingly limited and demand is continually
rising”.
17.
While the Report recommended that eventually, eligibility for social
benefits ought to be based on a seven year residence requirement, nevertheless
account had to be taken of the immediate impact on a large number of people
that would be caused by a change in policy.
Accordingly, as far as public health and hospital benefits were
concerned, it was recommended (in para 5.58) that any new arrangements should
initially exclude Two-Way Permit holders and other visitors to Hong Kong. These classes of persons were held out as
being distinct from residents of Hong Kong, One-Way Permit holders and migrant
workers.
18.
Before leaving the Report, I should just draw attention to the reference
therein to population flow and the growing influx of Mainland arrivals at the
time. It was stated that between 1983
and 2001, a total of 720,000 Mainland people were admitted into Hong Kong under
the One-Way Permit scheme, this accounting for 11% of the population of 6.72
million in 2001. From 1997 to 2001, new
arrivals from the Mainland under the scheme made up 93% of the population
growth. Many of these persons included
children of Hong Kong residents having the right of abode in Hong Kong and also
spouses from the Mainland who were married to Hong Kong ID card holders. The Report expressed sympathy for this latter
group and recommended the encouragement of these spouses to visit Hong Kong
under the Two-Way Permit scheme as soon as they had applied for a One-Way
Permit to enable them to “familiarize themselves with Hong Kong’s way of life
and the living conditions of their Hong Kong families, thus helping them decide
whether they wish to settle in Hong Kong”.
This group of Mainland spouses would obviously include (and probably
comprise to a significant extent) the A2 Group.
However, the Report also made the point, in relation to CSSA, that
proportionately more resources were allocated to the new Mainland arrivals than
the rest of the population. In para
3.24, it was stated, “In formulating a population policy for the HKSAR, we need
to take the opportunity to consider critically the privileges of Hong Kong’s
residents in terms of their eligibility for subsidized services”. In the second affidavit of Mr Nip Tak Kuen
(the Deputy Secretary for Food and Health) on behalf of the second respondent,
he stated that it was a “well established principle under the population policy
that these heavily subsidized services [such as the public healthcare system]
should not be diverted to non-residents and visitors at the expense of local
residents”. The Court of Appeal
criticized this phraseology (para 88 of its Judgment) but, while it could have
been better and more sensitively expressed, the deponent was here merely
dealing with principles of population policy.
19.
Following the recommendation made by the Task Force regarding public
health and hospital benefits (see para 17 above), the second respondent
distributed a memorandum dated 28 February 2003 in which it was stated that as
from 1 April 2003, non-Hong Kong residents, including the spouses of Hong Kong
residents, would be charged the same rate as NEPs. In other words, as from that date, spouses of
Hong Kong residents would become NEPs so far as subsidized health and hospital
services were concerned.
20.
On 28 March 2003, revised charges for hospital services provided by the
first respondent were gazetted to take effect as from 1 April 2003. From that date, NEPs were to be charged
$3,300 a day for inpatient services, including obstetric services, in the
public wards of public hospitals. This
is the First Decision whereby members of the A2 Group were classified as NEPs
and therefore no longer entitled to subsidized health services. The figure of $3,300 was based on a simple
arithmetical calculation of the cost of inpatient services divided by the
number of beds. It made no distinction
between different types of medical services.
21.
To complete the background in relation to the First Decision, I refer to
the Appendix annexed to this Judgment.
This Appendix consists of two statistical tables (which were exhibited
to the 3rd affirmation of Dr Cheung Wai Lun, the Director (Cluster Services) of
the first respondent.) These tables
provide statistical information on :-
(1) The number of births in Hong Kong
between 2002 and 2007.
(2) The number of such births by EPs and
NEPs.
(3) Within the group of NEPs, the number of
births by Mainland women married to Hong Kong permanent residents.
(4) The number of births where NEPs had
been admitted into the Accident and Emergency Department of public
hospitals. As we shall see, this was a
problem that needed to be tackled and is relevant to the Second and Third
Decisions.
22.
Insofar as relevant to the First Decision, it can be seen that in 2002,
the vast majority of NEP births were by Mainland women (8,506), of which a
significant percentage were women who were married to a Hong Kong permanent resident
(85.3%). Thus, it can be inferred that a
significant proportion of the births in Hong Kong related to the A2 Group.
B.3
The Second Decision 2005
23.
As the Appendix shows, the number of Mainland women giving birth in Hong
Kong (and within this class the majority being women who were married to Hong
Kong permanent residents) began to climb in the years from 2003 to 2005. This was despite the increased charges introduced
under the First Decision.
24.
In addition, there was a noticeable trend (and this can be seen in the
figures for 2004 and 2005) in the number of births among NEPs which took place
in the Accident and Emergency wards of hospitals.
25.
These two aspects were continually highlighted by the Administration
throughout 2004 and 2005. In a Paper prepared by the Health, Welfare and
Food Bureau for a meeting of the Legislative Council Panel on Health Services
on 15 December 2004, the following points were made by the Government:-
(1) The same point as that referred to in
para 18 above was made, namely that in relation to heavily subsidized public
services such as public medical services, a distinction had to be made between
Hong Kong residents and non-residents.
(2) In the months leading up to December
2004, there had been a significant increase in non-Hong Kong residents
accessing public medical services, particularly those from the Mainland. Of the NEPs, 95% were from the Mainland, of
which the majority were female, with over half of these women requiring
obstetric services.
(3) It was also noted that there was an
increasing trend of Mainland women, whose husbands were not Hong Kong Identity
card holders, giving birth. However, it is clear (as the Tables in the Appendix
show) the majority of Mainland women giving birth in Hong Kong were married to
Hong Kong residents.
(4) A serious problem that was highlighted
was the increase in NEPs giving birth in public hospitals who had not received
any antenatal care in Hong Kong or who would discharge themselves soon after
giving birth. This gave rise to
potential health problems for both mother and child. The reason for this behavior was presumably
economic (meaning that it was cheaper not to remain in a Hong Kong hospital for
any longer than necessary).
(5) A number of possible measures were
canvassed in the Paper. Among them was
to increase medical fees to beyond cost recovery, approximating to or even
higher than the private sector, in order to encourage NEPs to make use of
private hospitals, and in turn discouraging use of public hospitals. Minimum charges were also considered in order
to discourage premature discharge against medical advice.
(6) Another possible measure was one in
which the applicants placed great emphasis to support their case. In view of the importance the applicants
place on this measure, I set it out in full from the Paper : -
“Stop providing non-emergency medical
services to NEPs who are not (i) the spouses or (ii) children under 18 years of
age of holders of HKID Card? We propose to make a distinction between NEPs who
are
(i) spouses; or
(ii) children under 18 years of age
of holders of HKID Card and others who do
not belong to this group because most of them are eligible for One-way Permits
to settle in Hong Kong and would become Hong Kong residents in the near future.
It is in the community’s overall and long-term interest to provide medical
services to the former group, otherwise the healthcare expenditure on them
could be even larger when they become Hong Kong residents with poor health.
Furthermore, visiting spouses from the Mainland are able to stay in Hong Kong
virtually year-round on the strength of the multiple visit endorsement while
they are waiting for their turn for One-way Permits. Providing medical services
to those who would like to receive such services in Hong Kong would cause less
distress to their family members resident in Hong Kong, e.g. the father in the
family would not be required to stay at home to look after the children
whenever the mother has to return to the Mainland to seek medical treatment,
hence is in a better position to join the workforce. However, for NEPs without
any such close connection in Hong Kong, we doubt if there is any strong reason
for public medical services to be provided to them even if a profit can be made
from such services, bearing in mind that?
· more patients would mean a dilution of
attention doctors, nurses and other healthcare workers can devote to each
patient;
· Hong Kong has a strong private medical
sector which are ready to offer medical services to them; and
· few jurisdictions elsewhere in the world
would provide such non-emergency services to visitors.”
26.
At an Administration and Operational Meeting of the first respondent on
21 April 2005, the following point was discussed in relation to NEPs. It appeared that many NEPs were presenting
themselves at the Accident and Emergency Department of public hospitals just
after midnight to give birth and then discharging themselves (against medical
advice) within 24 hours in order to save on fees. The following problems were identified as a
result of this dangerous behaviour:-
(1) It was dangerous in that the health of
both mother and baby was put at risk through the lack of medical observation
and intervention both before and after birth.
(2) Such late admissions increased the
workload of hospital, in particular, nightshift staff.
(3) The existing fee of $3,300 a day for
inpatient medical services was insufficient to cover the cost of obstetric
services. These costs were at their
highest in the first two days of hospitalization.
27.
It was therefore proposed that a minimum obstetric package of $20,000 be
introduced to deal with these problems.
The package would cover the cost of delivery and three days (two nights)
of the stay in hospital. Any additional
period of stay would be charged at $3,300 a day. By proposing this package, it was hoped that
the dangerous behavior of NEPs would be curbed and that they would be deterred
from using public hospitals by reason of their being cheaper than private
hospitals. It was also hoped that the
charge would cover the actual costs of hospitalization, in particular the costs
of the first few days, and would also help cover the higher costs of looking
after NEPs who did not have proper or adequate antenatal care.
28.
This proposal was endorsed by the Board of the first respondent and a
letter was submitted to the second respondent on 26 April 2005 seeking
approval.
29.
These matters (as well as the points made in the December 2004 Paper)
were repeated in a Paper prepared by the Health, Welfare and Food Bureau and
the first respondent for the meeting of the Legislative Council Panel on Health
Services on 17 May 2005. At the meeting,
members were recorded as supporting the introduction of the proposed
package. The only doubt expressed by
Panel members was whether the package would in fact reduce the number of NEP
mothers giving birth in public hospitals.
30.
The new obstetric package (as described in para 27 above) was gazetted
on 22 August 2005, to take effect on 1 September 2005. This was the Second Decision.
B.4
The Third Decision 2007
31.
The introduction of the obstetric services package in September 2005
initially had the desired result of discouraging NEP mothers from giving birth
in Hong Kong public hospitals. In the
first eleven months of 2006, there was a decrease of 15.1% in the number of NEP
women giving birth, but the figure began to rise again as from about October
2006. Not only that, there was also a
corresponding increase in the number of admissions through the Accident and
Emergency Department of hospitals. In
short, the number of NEP mothers and instances of what I have called dangerous
behavior (see para 26 above) was on the increase again.
32.
This increase coincided with an increase in demand from EP mothers. All this in turn caused considerable pressure
to be placed on the obstetric neonatal services in public hospitals and their
staff. This raised public concern. On 19.11.2006, a group of 60 local mothers
organized a street protest to complain about being crowded out by the presence
of NEP mothers in public hospitals.
33.
This led to the first respondent and the Health, Welfare and Food Bureau
being tasked in December 2006 to find a solution to these problems. At an Administration and Operational Meeting
of the Board of the first respondent on 21 December 2006, a number of measures
were proposed, with the stated objective of ensuring that priority would be
given to EP mothers. These measures
included:-
(1) Implementing a centralized booking
system for antenatal and obstetric services, so that prior bookings could be
made and under which EPs would be given priority over NEPs. It was felt that such a system would also
enable the first respondent to gather the necessary information in order better
to assess the various needs for obstetric services.
(2) Increasing the obstetric package from
the minimum of $20,000 to a minimum non-refundable sum of $39,000 where a prior
booking had been made. Where no prior
booking had been made, the sum would be $48,000. It was felt that the $20,000 obstetric
package charge was still low compared with the charges for similar services
levied by private hospitals. The new
charges were calculated by reference to the charges made by private hospitals
so as further to remove the attraction of giving birth in public hospitals by
reason of the lower charges.
34.
The justification for these measures was to deal with the problems
identified in paras 31 and 32 above.
They were endorsed by the Board of the first respondent at the meeting
and a letter was accordingly sent to the second respondent on 5 January 2007
seeking approval.
35.
A Paper was prepared by the Health, Welfare and Food Bureau and the
first respondent for the meeting of the Legislative Council Panel on Health
Services on 8 January 2007. The
increasing trend of births by NEPs in public hospitals, the consequent pressure
on obstetric services (including the tight manpower situation among midwives
and neonatal intensive care nurses), the dangerous behavior of NEPs and the
other points referred to earlier were all detailed in this Paper. The policy was stated in para 10 of the
Paper, “As public hospital system is established primarily for the benefit of
Hong Kong residents, the Government and the Hospital Authority are committed to
ensuring that local expectant mothers would have priority in the use of
obstetric services in public hospitals”.
The increase in the obstetric services package was stated “To remove the
financial incentive for mainland women from accessing hospital services”.
36.
The Legislative Council Panel on Health Services met on 8 January
2007. There was no objection in
principle to these proposals.
37.
The revisions to the obstetric package resulting in the increased
charges were gazetted on 22 January 2007.
This was the Third Decision.
B.5
The Effect of The Decisions
38.
From the above, it can clearly be seen that in arriving at the three
Decisions and their policy on the level of fees chargeable for obstetric
services in public hospitals, the respondents drew the line at residence status
(as evidenced by possession of a Hong Kong ID card): this was the critical
difference between EPs and NEPs so far as subsidized obstetric services were
concerned.
C
THE ISSUES IN THIS APPEAL
39.
As stated earlier, the applicants’ essential complaint is that the A2
Group (this was the second applicant’s status at the commencement of the present
proceedings) have not been treated on an equal basis with EPs so far as the
three Decisions were concerned. In
short, the A2 Group were treated as NEPs when they ought to have been treated
in the same way as EPs. This, it is
submitted by the applicants, breaches the right to equal treatment guaranteed
under the Basic Law and the Bill of Rights.
Drawing the line merely at residence status without regard to the
similarities between women in the A2 Group and EPs, was unconstitutional.
40.
Factually, the applicants rely on the similarities they share with a
Hong Kong resident family. Much reliance
was placed on the summary of these similarities contained in the judgment of
Stock VP in the Court of Appeal:-
“The second applicant, as well as any
woman in the EP group, bore children of Hong Kong resident fathers, children
who upon birth would become Hong Kong residents themselves, where the woman and
child were part of a family unit whose centre of life was Hong Kong and where
each woman had a substantial de facto residential connection with Hong Kong.”
41.
Reliance was also placed on the alternative solution articulated in the
Paper prepared for the Legislative Council Panel on Health Services meeting on
13 December 2004 (see para 25(6) above).
42.
In addition, Mr Denis Chang SC (who represented the applicants) placed
great emphasis on the views of the members of the Legislative Council Panel on
Health Services at the meeting on 16 April 2007, in which considerable sympathy
was expressed for women in the A2 Group.
That meeting resulted in the following motion being passed (as
translated):-
“That this Panel expresses regret that the
new obstetric package charge ($39,000/$48,000) implemented by the Health,
Welfare and Food Bureau and the Hospital Authority in early February this year
for Mainland women giving birth in public hospitals has failed to take into
account its impact on Hong Kong families (i.e. father being a Hong Kong
resident and mother a Two-way Permit holder), and urges the Government to exempt
these families from the new fee charging policy.”
43.
To reinforce the argument based on discrimination, Mr Chang invited us
to draw a distinction between the A2 Group and other NEPs (he referred to the
women in this group who wished to give birth in Hong Kong as “transient
mothers”). It was clear, he submitted, that the former had close connections
with Hong Kong, unlike the latter group who had little or no connection with
Hong Kong. This was a distinction that the respondents (it is argued) had failed
to draw. As Mr Chang put it, the A2 Group women were simply “lumped together”
with other NEP women.
44.
The main issue for determination by both courts below was the question
of equality and this remains the main issue for this Court to examine.
45.
I have at the outset mentioned the applicants’ reliance on the Padfield
and Wednesbury principles. Save perhaps
for one aspect, the arguments deployed in support of the applicants’ case here
were exactly the same as those submissions advanced in support of the equality
issue. For example, it is said in
relation to the Wednesbury argument that the constitutional duty imposed on the
respondents was to “ensure equality among analogous groups of pregnant women”
(meaning pregnant women in the A2 Group and pregnant women who were EPs).
46.
The additional argument deployed in relation particularly to the
Padfield argument, relied on s 4(d) of the Hospital Authority Ordinance. This can be put in the following way: in
discharging their responsibilities, the respondents had to bear in mind and
also promote the policy and objects of the Hospital Authority Ordinance, and
this included in particular the affordability principle contained in s4(d) of
the Ordinances.
47.
Section 4(d) of the Hospital Authority Ordinance states:-
“4 Functions of the Authority
The Authority shall -
(d)
…..recommend to the Secretary for Food and Health, for the purposes of
section 18, appropriate policies on fees for the use of hospital services by
the public having regard to the principle that no person should be prevented,
through lack of means, from obtaining adequate medical treatment.”
48.
The applicants’ case proceeds along the lines that in arriving at the
three Decisions, the respondents have not taken s 4(d) into account either
sufficiently or at all. In particular,
the third Decision resulted in such an increase in charges that the respondents
could not have taken into account the affordability aspect stipulated in s
4(d). It was submitted that the rise in
the charges for the obstetric services following the Third Decision exceeded
the actual cost of those services.
49.
The Padfield point based on s 4(d) of the Hospital Authority Ordinance
becomes therefore a subsidiary point that will have to be determined in this appeal. There are no separate substantive arguments
based on the Wednesbury ground.
D
THE CERTIFIED QUESTIONS
50.
On 25 August 2011, the Appeal Committee granted leave to appeal to this
Court on four questions of great, general or public importance:-
“A. Whether the blacket exclusion from
eligibility to subsidized obstetric services in Hong Kong public hospitals of
spouses of Hong Kong permanent residents who are themselves not holders of HKID
Cards is unconstitutional as being unfairly discriminatory or otherwise
contrary to the Basic Law and the Hong Kong Bill of Rights Ordinance, at least
where such exclusion is based solely on the spouses’ said immigration status
and notwithstanding that they are holders of two-way permits and are awaiting the
grant of one-way permits and who are in the meantime residing for the greater
part of the time in Hong Kong (hereinafter called “the A2 Group”):
B. Whether the relevant Decisions of the
1st Respondent, and the relevant directions of the 2nd Respondent and/or the
underlying policy are unconstitutional or otherwise contrary to the Basic Law
and the Hong Kong Bill of Rights Ordinance to the extent they mandated or
required differential treatment of A2 Group from Hong Kong residents and
unfairly lumped the A2 Group with other groups of non-HKID Card Holders;
C. Further and/or alternatively whether
insofar as the Decision of the 22 January 2007 and/or the underlying policy
increased the pre-packaged obstetrics fees to a level way above cost recovery
the same is unfairly discriminatory and unconstitutional or alternatively
contrary to the affordability principle in s 4 of the Hospital Authority
Ordinance; and
D. Whether such Decisions, directions
and/or the underlying policy sought to be impugned by the Applicants by way of
judicial review are in any event contrary to or made without due regard to the
said affordability principle and/or all relevant considerations, are Wednesbury
unreasonable, or otherwise contrary to the Padfiled principle having regard to
the objects and purposes of the Hospital Authority Ordinance and/or the
functions, powers and duties thereunder of the relevant officials and
decision-makers.”
51.
The first and second questions relate to the main issue of equality. The
two remaining questions relate to the Padfield point as I have set out
above. (As I have stated earlier, there
is no separate argument in relation to the Wednesbury objection).
E
EQUALITY
E.1
The Legal Approach
52.
I have earlier referred to the relevant equality provisions contained in
Article 25 of the Basic law and Article 22 of the Bill of Rights:-
(1) Article 25 of the Basic Law
“All Hong Kong residents shall be equal
before the law.”
(2) Article 22 of the Bill of Rights
“Equality before and equal protection of
law
All persons are equal before the law and
are entitled without any discrimination to the equal protection of the
law. In this respect, the law shall
prohibit any discrimination and guarantee to all persons equal and effective
protection against discrimination on any ground such as race, colour, sex,
language, religion, political or other opinion, national or social origin,
property, birth or other status.”
53.
A small point arises at once in relation to Article 25 of the Basic Law
in that the reference therein is to “Hong Kong residents”. The first applicant (and others in the A2
Group) were not at the commencement of the present proceedings Hong Kong
residents. The first applicant was at
that time a visitor to Hong Kong and, as described in the applicants’ Form 86,
a resident of the Mainland. This is not a point of any great significance,
however, given the reliance on Article 22 of the Bill of Rights. The constitutional right to equality of
treatment is accordingly engaged for determination.
54.
The starting point on the legal approach to questions regarding equality
is the decision of this Court in Secretary for Justice v Yau Yuk Lung (2007) 10
HKCFAR 335. In that case, the Court
dealt with the issue of equality in relation to the offence of buggery in
public between men. The issue was
whether the constitutional right to equality was violated in circumstances
where there was different treatment as between homosexuals and heterosexuals. The difference was therefore based on sexual
orientation. The Court concluded that
the right was breached.
55.
Chief Justice Li, with whose judgment all members of the Court agreed,
stated the essence of the right to equality in the following way (at 344E-G
(paras 1-2)):-
“1. Equality before the law is a
fundamental human right (the right to equality). Equality is the antithesis of
discrimination. The constitutional right to equality is in essence the right
not to be discriminated against. It guarantees protection from discrimination.
The right to equality is enshrined in numerous international human rights
instruments and is widely embodied in the constitutions of jurisdictions around
the world. It is constitutionally protected in Hong Kong.
2. Discriminatory law is unfair and
violates the human dignity of those discriminated against. It is demeaning for
them and generates ill-will and a sense of grievance on their part. It breeds
tension and discord in society.”
56.
In what are now well-known passages dealing with the approach of the
courts when considering the constitutional right of equality, the Chief Justice
said this at 348H-349H (paras 19-22):-
“19. In general, the law should usually
accord identical treatment to comparable situations. As Lord Nicholls observed
in Ghaidan v Godin-Mendoza [2004] 2 AC 557 at p.566C:
‘Like cases should be treated alike,
unlike cases should not be treated alike.’
20. However, the guarantee of equality
before the law does not invariably require exact equality. Differences in legal
treatment may be justified for good reason. In order for differential treatment
to be justified, it must be shown that:
(1) The difference in treatment must pursue
a legitimate aim. For any aim to be legitimate, a genuine need for such
difference must be established.
(2) The difference in treatment must be
rationally connected to the legitimate aim.
(3) The difference in treatment must be no
more that is necessary to accomplish the legitimate aim.
The above test will be referred to as “the
justification test”. In the present case, the Court has had the benefit of
submissions on its appropriate formulation. There is no material difference
between the justification test and the test stated in R v Man Wai Keung (No 2)
[1992] 2 HKCLR 207 at p.217 which was used by the Court in So Wai Lun v HKSAR
(2006) 9 HKCFAR 530 at para.20.
21. The burden is on the Government to
satisfy the court that the justification test is satisfied. Where one is
concerned with differential treatment based on grounds such as race, sex or
sexual orientation, the court will scrutinize with intensity whether the
difference in treatment is justified. See Ghaidan v Godin-Mendoza [2004] 2 AC
557 at p.568G (Lord Nicholls).
22.
In requiring differential treatment to be justified, the view has been
expressed that the difference in treatment in question is an infringement of
the constitutional right to equality but that the infringement may be
constitutionally justified. See the Court of Appeal’s judgment in the present
case at p.208B-C (Ma CJHC) in Leung v Secretary for Justice [2006] 4 HKLRD 211
at p.234G-H. This approach is not appropriate. Where the difference in
treatment satisfies the justification test, the correct approach is to regard
the difference in treatment as not constituting discrimination and not
infringing the constitutional right to equality. Unlike some other constitutional rights, such
as the right of peaceful assembly, it is not a question of infringement of the
right which may be constitutionally justified.”
57.
Both Poon J and the Court of Appeal regarded this passage as specifying
a two-stage test essentially as follows:-
(1) The first stage is at the outset to
identify the comparators: in every challenge based on equality, the person
complaining is comparing his position with someone who is said to be in a comparable
position. The question is asked: are
these persons in comparable positions?
(2) The concept of persons in comparable
positions has been variably described: for example in Wandsworth London Borough
Council v Michalak [2003] 1 WLR 617, at 625 (para 20), Brooke LJ referred to
persons in “analogous situations”.
(3) The second stage assumes that the first
stage is passed; in other words, the Court regards the comparators as being in
comparable or analogous positions. In
this second stage, the differences in treatment between the comparators have to
be justified using what was described in Yau Yuk Lung as the justification
test. This test has three facets.
58.
While perhaps in some cases, this two-stage approach can neatly be
applied, it is important that it should not be regarded as if it were a statute
and treated as such. A step by step
approach is useful as far as it goes but it must not give rise to complicated
and long-drawn out (but ultimately unproductive) arguments as to whether this
step or that step has been overcome.
Such arguments will often obscure the real issues in a case. This should be borne in mind when dealing
with issues of equality where the two-stage approach is useful but must not
give rise to complex and unnecessary arguments.
I have been guided here by the remarks of Lord Walker of Gestingthorpe
in his speech in R (Carson) v Secretary of State for Works and Pensions 2006 1
AC 173, at 194B-F (para 63). For my
part, I have no objection in adopting
the two-stage approach set out in Yau Yuk Lung as long as one firmly bears in
mind the following points:-
(1) The object of the exercise (when
considering issues of equality) is ultimately to ask a simple question and
here, I would respectively adopt the way in which this was put by Lord Hoffmann
in Carson in 186H (para 31), “is there enough of a relevant difference between
X and Y [the comparators] to justify differential treatment?”
(2) In the majority of cases where equality
issues are involved, it will be necessary for the Court to look at the
materials which go to the three facets of the justification test before this
crucial question is answered. It will be
rare case, I daresay, where the court will comfortably be able to answer this
question without any recourse to the issue of justification at all. Seen in this way, it may matter not at all
whether the court’s approach is seen as a two-stage one or not.
(3) Here, I associate myself with the
approach of Lord Nicholls of Birkenhead in Carson in 179C-E (para 3):-
“3. For my part, in company with all your
Lordships, I prefer to keep formulation of the relevant issues in these cases
as simple and non-technical as possible. Article 14 [of the European Convention
on Human Rights – the equipment of Article 22 of the Bill of Rights] does not
apply unless the alleged discrimination is in connection with a Convention
right and on a ground stated in article 14. If this prerequisite is satisfied,
the essential question for the court is whether the alleged discrimination,
that is, the difference in treatment of which complaint is made, can withstand
scrutiny. Sometimes the answer to this question will be plain. There may be
such an obvious, relevant difference between the claimant and those with whom
he seeks to compare himself that their situations cannot be regarded as
analogous. Sometimes, where the position is not so clear, a different approach
is called for. Then the court’s scrutiny may best be directed at considering
whether the differentiation has a legitimate aim and whether the means chosen
to achieve the aim is appropriate and not disproportionate in its adverse
impact.”
59.
This approach, which I believe to be a principled one, recognizes that
in most questions involving the right to equality, there will be an overlap in
the application of the two-stage test set out in Yau Yuk Lung.
60.
In the present case, it will be necessary to examine the evidence
submitted by the respondents (for it is they who have the burden of justifying)
in order to determine the issue of equality.
61.
The application of the three facets of the justification test will
generally pose few problems for the court.
It is however important in this exercise to bear firmly in mind the
relevance of what is known as the aspect of the margin of appreciation,
particularly in circumstances where the court is asked to examine issues
involving socio-economic policy.
62.
The concept of margin of appreciation, or deference (as it is sometimes
referred to), derives from the jurisprudence of the European Court of Human
Rights. The modern statement of this
concept as it applies to national courts examining the constitutionality of
legislation or of executive acts, finds it roots in the speech of Lord Hope of
Craighead in R v Director of Public Prosecutions ex p Kebilene [2000] 2 AC 326,
at 380H-381D:-
“… But in the hands of the national courts
also the Convention should be seen as an expression of fundamental principles
rather than as a set of mere rules. The questions which the courts will have to
decide in the application of these principles will involve questions of balance
between competing interests and issues of proportionality.
In this area difficult choices may have to
be made by the executive or the legislature between the rights of the
individual and the needs of society. In some circumstances it will be
appropriate for the courts to recognise that there is an area of judgment
within which the judiciary will defer, on democratic grounds, to the considered
opinion of the elected body or person whose act or decision is said to be
incompatible with the Convention. This point is well made at p.74 para 3.21 of
Human Rights Law and Practice (1999), of which Lord Lester of Herne Hill and Mr
Pannick are the general editors, where the area in which these choices may
arise is conveniently and appropriately described as the “discretionary area of
judgment.” It will be easier for such an area of judgment to be recognised
where the Convention itself requires a balance to be struck, much less so where
the right is stated in terms which are unqualified. It will be easier for it to
be recognised where the issues involve questions of social or economic policy,
much less so where the rights are of high constitutional importance or are of a
kind where the courts are especially well placed to assess the need for
protection.”
63.
This concept or principle has been applied in Hong Kong: where the constitutionality of legislation
has been in issue (Lau Cheong v HKSAR (2002) 5 HKCFAR 415, at 448B-449F (paras
102-105) where reference was made to the courts giving “particular weight to
the views and policies adopted by the legislature”; HKSAR v Lam Kwong Wai
(2006) 9 HKCFAR 574, at 601D-I (para 45); Mok Charles v Tam Wai Ho (2010) 13
HKCFAR 762, at 786-7 (paras 54-56) where it was said that it was sometimes
helpful, particularly in the context of the public interest, “to have regard
and pay due respect to the views of the legislature”); or where the decisions
of a professional governing body have been challenged (Kwok Hay Kwong v Medical
Council of Hong Kong [2008] 3 HKLRD 524, at 536-539 (paras 22-25).
64.
The use of the expressions margin of appreciation or deference have
sometimes met with criticism:- see for example Mok Charles v Tam Wai Ho at 792 (para 78) per Bokhary PJ. But, in the final analysis, these expressions
are really used for convenience only in order to convey the principle expressed
in Ex p Kebilene. The principle reflects
the different constitutional roles of the judiciary on the one hand, and the
executive and legislature on the other.
The role of the judiciary was succinctly (but accurately) described by
Lord Hobhouse of Woodborough in Wilson v First County Trust Limited (No 2) 816,
at 861 (para 131): “The judiciary is the part of government which has the responsibility
for applying the law”. Where matters of
state or community policy are concerned, these are matters predominantly for
the Executive or the Legislature.
65.
A clear example of state or community policy are the socio-economic
policies of a government. Here, it is
the responsibility of the executive to devise and implement such policies. Article 48(4) of the Basic Law states that
the Chief Executive has the responsibility of deciding on government policies
(assisted of course by the Executive Council – Article 54). Article 62 of the Basic Law places the duty
on the Government to formulate and implement policies (sub-para (1)) and to
formulate budgets and final accounts (sub-para (4)). In discharging its responsibilities, the
Executive will of course take into consideration many different factors and
interests – no doubt these factors and interests often pulling in different
directions – to arrive at the chosen policy.
In the context of healthcare and the setting of fees chargeable in
public hospitals, the Hospital Authority Ordinance contains relevant provisions
that place the obligation on the respondents to recommend and devise
appropriate policies. See for example:
ss 4, 5 and 18 of the Ordinance. I have
already set out s 4(d) of that Ordinance (see para 47 above). So far as the Legislature is concerned, the
policy consideration was put in this way by Chief Justice Li (in the context of
legislation regarding serious crime, namely murder) in Lau Cheong at 449C (para
105), “the legislature has to make a difficult collective judgment taking into
account the rights of individuals as well as the interests of society”.
66.
Accordingly, it would not usually be within the province of the courts
to adjudicate on the merits or demerits of government socio-economic policies.
That said, where appropriate (and this will be elaborated on below) the court
will intervene, this being a part of its responsibility to ensure that any
measure or policy is lawful and constitutional.
This has been the consistent position of the courts.
67.
In International Transport Roth GmbH v Secretary of State for the Home
Department [2003] QB 728, at 767B-E, Laws LJ referred to decisions in the area
of macro-economic policy as being relatively remote from judicial control (this
owing to the subject matter being within the province of the authorities or
legislature rather than the courts).
68.
In Wilson v First County Trust Ltd (No 2), Lord Nicholls of Birkenhead
captured the essence of the point in the following passage at 844E-G (para
70):-
“70. In approaching this issue, as noted
in R v Johnstone [2003] 1 WLR 1736, 1750, para 51, courts should have in mind
that theirs is a reviewing role. Parliament is charged with the primary
responsibility for deciding whether the means chosen to deal with a social
problem are both necessary and appropriate. Assessment of the advantages and
disadvantages of the various legislative alternatives is primarily a matter for
Parliament. The possible existence of alternative solutions does not in itself
render the contested legislation unjustified; see the Rent Act case of
Mellacher v Austria(1989) 12 EHRR 391, 411, para 53. The court will reach a
different conclusion from the legislature only when it is apparent that the
legislature has attached insufficient importance to a person’s Convention
right. The readiness of a court to depart from the views of the legislature
depends upon the circumstances, one of which is the subject matter of the
legislation. The more the legislation concerns matters of broad social policy,
the less ready will be a court to intervene.”
69.
In Carson (in the Court of Appeal [2003] 3 All ER 577) at 608c-d (para
[73]), Laws LJ (in a passage approved by Lord Walker of Gestingthorpe in the
House of Lords: see [2006] 1AC 173 at 198H-199C (para 78)) said:-
“In the field of what may be called
macro-economic policy, certainly including the distribution of public funds
upon retirement pensions, the decision-making power of the elected arms of
government is all but at its greatest, and the constraining role of the courts,
absent a florid violation by government of established legal principles, is
correspondingly modest. I conceive this approach to be wholly in line with our
responsibilities under the Human Rights Act 1998. In general terms I think it
reflects a recurrent theme of the Strasbourg jurisprudence, the search for a
fair balance between the demands of the general interest of the community and
the protection of individual rights: see Sporrong v Sweden (1982) 5 EHRR 35.”
70.
This last passage highlights the particular facet of socio-economic
policy that is relevant to the present case, namely, the distribution of public
funds. I have earlier in this judgment
referred to allocation of public funds in Hong Kong and “limited financial
resources”: see paras 10 and 16 above.
In the area of healthcare, where resources are also limited and the
demands from many different interests heavy, the courts are not equipped (nor
is it their role) to make the “difficult and agonizing judgments” (in the words
of Sir Thomas Bingham MR in R v Cambridge Health Authority ex parte B [1995] 1
WLR 898, at 906E-F) that have to be made allocating funds to one sector or
another. As the European Court of Human
Rights emphasized in Sentges v The Netherlands, unrep, 8 July 2003, “this
margin of appreciation is even wider
when, as in the present case, the issues involved an assessment of the
priorities in the context of the allocation of limited State resources”. That case involved the decision of a health
insurance fund authority in The Netherlands rejecting a request from the
applicant for the provision of a robotic limb.
The applicant’s complaint was that there had been a breach of Article 8
of the European Convention on Human Rights (the right to respect for private
and family life) in that his right to a private life was adversely affected by
his dependence on others on account of his disability.
71.
In this area where limited public funds are involved, the courts have
recognized that lines have had to be drawn by the executive or the
legislature. On the whole, save where
the line has been drawn in contravention of core values (this will be further
discussed below) or where it is shown to be manifestly without reasonable
foundation, the courts have left it to the authorities to identify the relevant
line to be drawn: see R (Animal Defenders International) v Secretary of State
for Culture, Media and Sport [2008] 1AC 1312, at 1348C-D (para 33) where Lord
Bingham of Cornhill made the point that it was for the Legislature to decide
where the line had to be drawn, even if it meant that hard cases would arise
when persons would fall within the wrong side of the line; Mathews v Diaz
(1976) 426 US 67, at 83-84 (a decision of the US Supreme Court).
72. In the area of qualification for social
benefits or social welfare, the courts have consistently upheld legislation or
acts which have drawn the line at residence status: see for example Mathews v
Diaz at 78-80, 83, 85; R (Westminster City Council) v National Asylum Support
Service [2002] 1 WLR 2956, at 2962D-F (paras 19-20): Carson at 183C-E (para
18). The point I would make is that
where governments have at their disposal only finite resources with which to
devise an economic or social strategy, they should be left to decide (1)
whether to have any social or welfare scheme in the first place, (2) the extent
of such a scheme and (3) where such a scheme is devised, to choose who is to
benefit under it.
73.
I am also of the view that when a line is drawn between those who are
entitled to a benefit and those who are not, the court can legitimately take
into account the clarity of the line and the administrative convenience of the
implementing the policy or scheme thereunder.
Naturally, this factor must be weighed against other factors, but where,
for instance, the line is drawn so vaguely or ambiguously that the underlying
policy or scheme may effectively be undermined, if not frustrated, this is a
factor that can be considered by the courts.
In Carson, Lord Hoffmann in 188E referred to “ the need for legal
certainty and a workable rule”, and Lord Walker of Gestingthorpe (at 202D-E
(para 91)) referred to demarcation lines having to be “reasonably bright
lines”. Drawing the line at resident
status is a clear line and also convenient to administer.
74.
In this context of socio-economic policies, there may be open to the
authorities a number of solutions to any perceived problem. In the present case, for example, as we have
seen, the Government considered a number of options to deal with the problems
of Mainland women giving birth in Hong Kong public hospitals: see for example
paras 25(5) and (6) above. In such
situations, the approach of the court will not be to try to find a better
solution or alternative itself. That is
really not the role of the court at all.
As Lord Nicholls of Birkenhead said in Wilson v First County Trust Ltd
(No. 2) at 844E-F (I have provided a fuller passage in para 68 above),
“Assessment of the advantages and disadvantages of the various legislative
alternatives is primarily a matter for Parliament. The possible existence of alternative
solutions does not in itself render the contested legislation unjustified”.
Reference was made to the decision of the European Court of Human Rights in
Mellacher v Austria (1989) 12 EHRR 391, at 411 (par 53).
75.
Where a number of alternative solutions are open to the executive,
legislature or other authority in dealing with any particular problem, how far
must the court go in inquiring as to the alternative that is least intrusive
into the constitutional protected right in question? This is a question that particularly arises
when one is dealing with the third limb of the justification test, that is, the
requirement that any difference in treatment must be “no more than necessary”
to accomplish the legitimate aim. This
question at one stage caused me some concern, for this third limb seemed at
first blush to require the court, even in a socio-economic policy context, to
embark on an exercise of searching for the best alternative among different
alternative solutions. On reflection,
this concern is unfounded. In the
socio-economic context, where policy considerations are best left to the
executive, legislative and other authority, the position is as follows:-
(1) While the third limb of the
justification test does on occasion call for a comparison between the different
options that may be available, the purpose of the exercise must be borne in
mind: it is to see whether the relevant act or decision satisfies the
justification test. The justification
test is similar in nature to the test for proportionality: see Yau Yuk Lung at
349D-E (para 20) (para 56 above). To ask
whether a difference in treatment is justified is the same as asking whether what
has been done (or omitted to be done) or decided is a proportionate response to
the legitimate aim.
(2) The recognition of the respective roles
of the judiciary, the executive and the legislature (or, to use the term,
margin of appreciation) is relevant at all three stages of the justification
test.
(3) Where a number of alternative, but
reasonable, solutions to a problem exist, the court will not put itself in a
place of the executive or legislature or other authority to decide which is the
best option. That is not its role. The
court will only interfere where the option chosen is clearly beyond the
spectrum of reasonable options; in other words, the option has clearly gone too
far (or further than necessary) to deal with the problem. In this situation, the court will not have
been satisfied under the third limb of the justification test.
(4) This view is supported by
authority. In Robert Libman Equality
Party v. The Attorney General of Quebec 1997 3 RCS 569, the Supreme Court of
Canada observed at 605-606 that in the social, economic or political spheres,
where (as in that case) the legislature had to reconcile competing interests in
choosing one policy against other policies which were also acceptable, the
Court had to respect the choice made on the basis that the legislature was in
the best position to do so. Reference
was made to the judgment of McLachlin J (now McLachlin CJ) in RJR – McDonald
Inc v Attorney General of Canada [1995] 3 SCR 199, at 342 where, in the context
of legislation affecting the freedom of expression, it was observed, “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.”
(5) Further support for the view expressed
in sub-para (3) can be found in the decision of the European Court of Human
Rights in Blecic v Croatia (2005) 41 EHRR 185, at 197-8 (para 67). This was a case dealing with socio-economic
policy matters. That case was referred
to in R (Wilson) v Wychavon District Council [2007] QB 801, an equality case,
where Richards LJ emphasised (at 825 G-H (para 61)) that the existence of a
less restricted alternative did not mean that the margin of appreciation should
not be considered.
(6) As we shall presently see, however,
outside the area of socio-economic or other general policy matters, where
fundamental concepts or core-values are involved, the court will be
particularly stringent or intense in the application of the justification test.
But in the area of socio-economic or other general policy matters, attempts to
search for more and more alternatives to the solution that was adopted in any
one case, should be discouraged. This, I
reiterate, is not the role of the court.
I have already referred above to what was said by McLachlin J in RJR –
McDonald Inc. Inaddition, as Justice
Blackmun pithily observed in Illinois State Board of Elections v Socialist
Workers Party (1979) 440 US 173, at
188-189, “a judge would be unimaginative indeed if he could not come up with
something a little less ‘drastic’ or a little less ‘restrictive’ in almost any situation, and thereby enable
himself to vote to strike legislation down.”
76.
To summarise, unless the solution or alternative in question is
manifestly to beyond the spectrum of reasonableness (or manifestly without
reasonable foundation) the court will not interfere.
77.
It is, however, important to put what has just been discussed into
proper perspective. The proposition that
the courts will allow more leeway when socio-economic policies are involved,
does not lead to the consequence that they will not be vigilant when it is
appropriate to do so or that the authorities have some sort of carte blanche. After all, the courts have the ultimate
responsibility of determining whether acts are constitutional or lawful. It would be appropriate for the courts to
intervene (indeed they would be duty bound to do so) where, even in the area of
socio-economic or other government policies, there has been any disregard for
core-values. This requires a little
elaboration. Where, for example, the
reason for unequal treatment strikes at the heart of core-values relating to
personal or human characteristics (such as race, colour, gender, sexual orientation,
religion, politics, or social origin), the courts would extremely rarely (if at
all) find this acceptable. These
characteristics involve the respect and dignity that society accords to a human
being. They are fundamental societal
values. On the other hand, where other
characteristics or status which do not relate to such notions or values are
involved, and here I would include residence status, the courts will hesitate
much more before interfering; in other words, more leeway is given to the
Executive, Legislature or other authorities.
I have found useful in this context the analysis contained in the speech
of Lord Hoffmann in Carson at 182E-183B (paras 15–16). As Lord Hoffmann observed, there can of
course be borderline cases but generally there ought to be little difficulty in
differentiating between a core value and a mere question of general, social or
economic policy: at 183C (para 17). In
the present case, using residence status as the dividing line in relation to
health benefits clearly falls within the latter. This status has less to do with personal
characteristics (in the sense used above) than with social and economic
considerations.
78.
Where core values relating to personal characteristics are involved, the
court will naturally subject the relevant legislation or decision to a
particularly severe scrutiny. Lord
Pannick QC (for the respondents) used the term “inherently invidious” to
describe any decision which offended these core values. While I would, for myself, not have used this
expression, it nevertheless conveys the necessary sentiment.
79.
It is convenient here also to remind ourselves that where the subject
matter of the challenge has to do with fundamental concepts, in
contradistinction to rights associated with purely social and economic
policies, the courts will be particularly vigilant to protect the rights
associated with such concepts, and consequently much less leeway or margin of
appreciation will be accorded to the authority concerned. These fundamental concepts are those which go
to the heart of any society. They
include, for example, the right to life, the right not to be tortured, the
right not to be held in slavery, the freedom of expression and opinion, freedom
of religion (among others). Fundamental concepts
also include the right to a fair trial and the presumption of innocence. Here, the courts have been vigilant to ensure
that the proportionality or justification test is satisfied. Thus, in relation to the presumption of
innocence, the courts have read down provisions in criminal statutes (which
placed a legal or persuasive burden of proof on an accused person) to an
evidential burden: see HKSAR v Lam Kwong Wai
(para 63 above), HKSAR v Hung Chan Wa (2006) 9 HKCFAR 614.
80.
The entitlement to social welfare or to subsidized health services is
not a fundamental concept as I have used that term. It is a right that is inextricably bound with
socio-economic considerations and therefore to be considered in such
light. The subject matter of the present
case involves entitlement to subsidized obstetric services in public hospitals
in Hong Kong. While the applicants have made reference to the right to family
life and family unity, this argument has obvious limits. The three Decisions in the present case do
not prevent women in the A2 Group having children. There has been no real suggestion of
this. Afterall, no evidence has been put
before the court to the effect that women in the A2 Group could not give birth
in the Mainland if they chose to. The applicants’
case is that the A2 Group women simply desire to give birth in Hong Kong.
81.
It is sometimes said that in cases where core-rights or fundamental
concepts are concerned, the courts will adopt an ‘intense’ or ‘more intense’
level of scrutiny. These terms, like the
terms margin of appreciation or deference, are used for convenience only and
not be taken literally. They are used to
convey the principles identified earlier in this section of the Judgment. There
is of course, no question of a court taking a laxer or less vigilant approach
whenever any questions of constitutionality arise. Each case is of course approached seriously,
only that the legal approach will inevitably differ depending on the circumstances
of the case. Where core values or
fundamental concepts are involved, these are areas where the courts have (for
want of better terms) expertise and experience, and it is part of their
constitutional duty to protect these values or concepts. In policy matters not involving these
matters, the courts do not have this expertise or experience and, more
important, it is not within its constitutional remit to determine matters of
government or legislative policy, save where questions of legality arise. As Sir Anthony Mason NPJ put it in HKSAR v
Lam Kwong Wai at 601E (para 45) “the weight to be accorded to the legislative
[and I would add, the executive and other authorities’] judgment by the court
will vary from case to case depending upon the nature of the problem, whether
the executive and the legislature are better equipped than the courts to
understand its ramification and the means of dealing with it.”
E.2 Application to the Present Case
82.
Both Poon J and the Court of Appeal applied the two-stage test in Yau Yuk Lung, though with
different results. Poon J concluded that
the second applicant (and those in the A2 Group) were not similar to women who
were EPs (in other words, Hong Kong resident women). This conclusion was reached essentially by
the application of the justification test, as Stock VP observed in his
judgment. The essential difference between members of the A2 Group and EPs was
the fact of residence status. The
learned judge also, for the sake of completeness, dealt with the second stage
and found in favour of the respondents applying the justification test. The Court of Appeal was of the view that Poon
J erred in his conclusion on the first stage of the test. I have already set out the reasons given by
Stock VP (with whom the other members of the Court agreed) in taking the
opposite view to the Judge that the second applicant (and thus in the A2 Group)
were in an analogous position to Hong Kong resident women (see para 40
above). The Court of Appeal then dealt
with the justification test, applied the principles that I have set out in the
previous Section and concluded that the dividing line based on residence status
was justified.
83.
In the present case, there is a considerable overlap between the first
and second stages of the Yau Yuk Lung test.
It is one of those cases where the Court will need to look at the
evidence before it on justification in any event in order to answer the
important question identified in para 58(1) above: is there enough of a
difference between the second applicant (and the A2 Group) and women who are
EPs to justify the different treatment received under the three Decisions? Accordingly, I would approach the present
case adopting this as the fundamental question for the court to resolve in
determining the issue of equality.
84.
As Stock VP observed in his Judgment with characteristic sensitivity,
this litigation has evoked much emotion.
He refers to the slight felt by the applicants (and others in the A2
Group) that they are not treated in the same way as a Hong Kong resident family
and that as a result, this has adversely impacted on family unity.
85.
I do not disagree with these sentiments and can readily sympathize with
the position of the applicants and others like them.
86.
However, in applying the legal principles set out earlier, I am firmly
of the view that the applicants’ objections based on equality must fail when
seen against the facts.
87.
I have already set out (in Section B above) the background and relevant
circumstances surrounding each of the three impugned Decisions. The fundamental basis, that is the dividing
line, used by the respondents was that of residence status - Hong Kong
residents (holding a Hong Kong Identity Card) were to be treated as EPs while
non residents, including the A2 Group, were to be treated as NEPs.
88.
As a matter of law, this difference in status is of course sufficient to
engage the application of Article 22 of Bill of Rights. The critical question is whether there has been
a breach of the right to equality.
89.
We have seen that the courts have on a number of occasions held that
where socio-economic policies are concerned (and within this, health and the
welfare policies), drawing the line at residence status has justified
differential treatment: see para 72 above.
This line may not in every situation be justifiable but, in my judgment,
it is in the present case : -
(1) As we have seen, as far back as July
2002, the Chief Executive had already stressed the need for a comprehensive
population policy. The Task Force that
was as a result set up emphasized the need to give due regard to the long-term
sustainability of Hong Kong’s social services in the context of limited public
resources, both financial and manpower.
(2) In such circumstances, it would come as
no surprise at all that hard decisions would have had to be made regarding the
entitlement of persons to social or health benefits. What may have been affordable in the past
might no longer be the case in the modern context (cf the remarks of Lord
Hoffmann in the NASS case (see para 72 above) at 2962 D-F (paras 19-20)).
(3) In the particular area of healthcare
and within this, obstetric services in Hong Kong’s public hospitals, problems
were identified by the respondents. As
can be seen from the facts set out above in relation to all three Decisions and
from the tables in the Appendix annexed to this Judgment, many of the obstetric
services were utilized by Mainland women, of which a sizeable proportion belong
to the A2 Group (see in particular paras 16, 18, 21 – 25, 31-32 above).
(4) There was also the problem of dangerous
behaviour among Mainland women giving birth, which included the A2 Group (see
the Appendix and para 26 above). It will
be recalled the problem lay in Mainland mothers seeking admission at the
Accident and Emergency Department of public hospitals just after midnight and
then discharging themselves against medical advice within 24 hours in order to
save money.
(5) The obstetric services provided to
Mainland women (including the A2 Group) adversely affected Hong Kong resident
mothers (who even staged a street protest in November 2006: see para 32
above). In the third affirmation of Dr
Cheung Wai Lun, he referred to the pressure of providing adequate obstetric
services and beds. For example, in 2006,
the number of deliveries in public hospitals was 40,063, which exceeded the
delivery capacity of 39,347.
(6) Accordingly, in order to deal with
these problems (many of which were caused by the A2 Group) and to ensure that
preference was given to Hong Kong residents rather than non-residents, the
three Decisions came to be made.
90.
These Decisions were made as part of the Government’s socio-economic
responsibilities and represent the implementation of policies in these areas.
For my part, it is no part of the court’s role to second-guess the wisdom of
these policies and measures in the circumstances I have described above. Nor is it (as discussed in paras 74-76 above)
the court’s role in such matters of socio-economic policy to examine whether
better alternative solutions could have been devised. It is sufficient to say in the present case
that the line drawn by the respondents at residence status is entirely within
the spectrum of reasonableness. In my
view, all three aspects of the justification test are satisfied.
91.
In many ways the real complaint of the applicants is that members of the
A2 Group have been “lumped together” with other NEPs (namely the transient
mothers), who have far fewer (if any) connections with Hong Kong than they.
92.
I suppose if the respondents had drawn the line to include the A2 group
as EPs, this might well have been acceptable from a legal point of view, but in
using residence status as the criterion, the respondents’ decisions here cannot
be impugned. Residence status is
comprehensible and rational. The
respondents cannot be criticized for not choosing to differentiate between
different categories of NEPs when drawing the line where they did. Even acknowledging the links to Hong Kong
that members of the A2 Group have, they remain in law visitors with no rights
of residence in Hong Kong. In other
words, they are non-residents, even though they are close perhaps to becoming
Hong Kong residents.
93.
There is also the factor of administrative convenience to which I have
alluded in para 73 above. While this is
not a major consideration, it is nevertheless of some relevance. Residence status is clear and relatively easy
to implement.
94.
For these reasons, I am of the view that the applicants’ challenge based
on equality, fails.
F PADFIELD
95.
On analysis, this point can be dealt with shortly. Although the applicants’ arguments were based
on s 4(d) of the Hospital Authority Ordinance (see para 47 above), in reality
this was just a variation of their submissions regarding equality. The applicants object to the second applicant
and the A2 Group being treated in the same way as the transient mothers (and
other NEPs) by being charged much higher than EPs; thus, it is argued, when
discharging its duties, the first respondent had failed to take into account
the so-called affordability principle in s 4(d).
96.
For the same reasons as articulated above supporting the conclusion that
there was no breach of the right to equality, so the Padfield ground fails as
well. There are two additional matters
that ought to be raised.
97.
First, while the first respondent had to bear in mind affordability,
that was not the only factor relevant toits duty to recommend appropriate
policies on fees. As Lord Pannick QC
emphasized, the first respondent also had the responsibility to advise the
government of the needs of the public for hospital services and of the
resources required to meet those needs (ss 4(b) and s 4(c)(i)). It is clear that the responsibility of the
respondents under the Hospital Authority Ordinance in relation to fees required
an overall view to be taken of all relevant factors, of which affordability was
one. Limited resources, the need to deal
with problems which arise (such as the problem of Mainland women using
obstetric services in public hospitals) were all matters which had to be
considered. In the present case, account
was taken of the affordability factor by the first respondent. Where a material consideration has been
considered, it is up to the relevant authority to determine the weight to be
attached to it: see Tesco Stores Limited v Secretary of State for the
Environment [1995] 1WLR 759, at 780 F-G.
98.
Secondly, there was a complaint raised by the applicants in relation to
the Third Decision that the fee for the obstetric package was raised to a level
that went beyond cost recovery. I can
see how such a complaint can arise if the fee had been increased to an
unreasonably high level (this would probably in any event take the decision
beyond the reasonablespectrum of acceptable alternatives) but that is far from
the facts of the present case. As can be
seen above, the fees were raised to deal with the problems existing at that
time (to which reference has already been made) and they were raised to a level
to approximate with those charged by private hospitals (see para 33(2) above).
99.
The Padfield objection therefore also fails.
G
CONCLUSION
100.
For the above reasons, I am of the view that this appeal should be
dismissed and I would so order. As for
costs, I would make an order nisi that the respondents should have the costs of
this appeal, to be paid by the applicants, such costs to be taxed if not
agreed. The applicants’own costs should
be taxed in accordance with the Legal Aid Regulations. If any party wishes to have a different order
for costs, written submissions should be served on the other party or parties
and lodged with the court within 14 days of the handing down of this Judgment,
with liberty on the other party or parties to lodge written submissions within
14 days thereafter. In the absence of
such written submissions, the order nisi will stand absolute at the expiry of
the time limited for these submissions.
Mr Justice Chan PJ:
101.
I agree with the judgment of the Chief Justice.
Mr Justice Ribeiro PJ:
102.
I agree with the judgment of the Chief Justice.
Mr Justice Mortimer NPJ:
103.
I agree with the judgment of the Chief Justice.
Lord Millett NPJ:
104.
I agree with the judgment of the Chief Justice.
Chief Justice Ma:
105.
Accordingly, for the above reasons, this appeal is unanimously
dismissed. As for costs, the Court makes
the order set out in para 100 above.
(Geoffrey Ma)
Chief Justice (Patrick Chan)
Permanent Judge (R.A.V. Ribeiro)
Permanent Judge
(Barry Mortimer)
Non-Permanent Judge (Lord Millett)
Non-Permanent Judge
Mr Denis Chang SC, Mr Andrew SY Li & Mr
Alfred C P Cheng, instructed by Messrs Kwok, Ng & Chan, assigned by
Director of Legal Aid, for the 1st & 2nd Applicants (Appellants)
Lord Pannick QC, Mr Adrian Huggins SC &
Mr Abraham Chan instructed by Messrs Mayer Brown JSM, for the 1st Respondent
(1st respondent)
Mr Anderson Chow SC & Ms Grace Chow,
instructed by Department of Justice, for the 2nd Respondent (2nd respondent)
沒有留言:
張貼留言