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HCAL 2643/2019
[2019] HKCFI 3048
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO 2643 OF 2019
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IN THE MATTER of an application for leave to apply for judicial review under Order 53, Rule 3(2) of the Rules of High Court (Cap 4A) |
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| BETWEEN |
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“K” |
Applicant |
and |
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Commissioner of Police |
Respondent |
| and |
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Hospital Chief Executive, |
Interested Party |
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Queen Elizabeth Hospital |
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| Before: |
Hon G Lam J in Court |
| Date of Hearing: |
4 November 2019 |
| Date of Judgment: |
17 December 2019 |
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J U D G M E N T
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Introduction
1. The police have pursuant to a search warrant issued by a magistrate obtained from a hospital certain medical records relating to the applicant. This application for judicial review raises the narrow question of whether the fact that the search warrant has not been produced to the applicant has effectively obstructed her right of access to the courts.
2. It is appropriate to make clear at the outset that the present application is not about whether the police should have applied for the warrant, or whether the magistrate should have granted the warrant, or whether the warrant should be set aside.
Factual background
3. On the evening of 11 August 2019, there were, according to the evidence filed, hundreds of violent masked protesters assembled outside the Tsim Sha Tsui Police Station, who were hurling bricks, stones, slingshots and other unknown objects at the police station and the police officers inside. It is unnecessary for the purposes of the present application to examine what actually happened that evening and, indeed, the court is not equipped with the evidence to do so in these proceedings.
4. In the midst of it all, at 7:24pm, the applicant, dressed in black and equipped with a helmet, a pair of goggles and a respirator — the typical outfit of some of the participants in similar assemblies, was found in Nathan Road near the junction with Austin Road having suffered injuries to her right eye. According to her, she was “hit by a suspected bean bag round shot by anti‑riot police”. She was conveyed to Queen Elizabeth Hospital (“Hospital”) for treatment and then admitted into the Hospital.
5. On 13 August, a Superintendent wrote on behalf of the Commissioner to the Hospital, stating that having regard to the serious nature of the injury, the police was obliged to look into the circumstances of the incident and would like to approach the applicant with a view to ascertaining the facts. (The police did not know the identity of the applicant at that time and simply referred to “a Chinese female” in relation to that incident.) The letter stated that with a view to minimising any disruption to her medical treatment, the police would not approach her at that moment, but sought the Hospital’s assistance in forwarding an enclosed letter to her. That letter, written in Chinese and addressed to whom it might concern, stated that the police wished to understand the personal injury incident in greater detail and asked the addressee to call the specified telephone numbers if she could assist. The applicant did not contact the police whether via those numbers or otherwise.
6. On 21 August, the police obtained a search warrant from a magistrate to get the applicant’s personal details from the Hospital (ie date of birth, HKID number, telephone number and address). This warrant was executed, and the police obtained the information on 27 August. On 29 August, the police obtained a second search warrant from a magistrate in respect of the medical records in the Hospital in relation to the applicant’s injury sustained on 11 August. Although there are two warrants thus issued, the present application for judicial review concerns the second one, and references to the warrant below should be understood as referring to that warrant.
7. Also on 29 August, at a police press conference, a Chief Superintendent mentioned that the police had applied or were applying for a search warrant to obtain the applicant’s medical records in question.
8. On 30 August, the applicant’s solicitors wrote to the Hospital stating that she would not consent to the disclosure of her medical records to any third party including the police, and that the Hospital owed her a duty of confidentiality. She asked to be provided with, among other things, particulars of any disclosed information and the recipients.
9. On 2 September, the applicant’s solicitors wrote to the Commissioner (copied to the Hospital), demanding: (1) if the police intended to apply for a warrant, that the applicant be notified of any such application; (2) if the police had obtained the warrant but not yet executed it, that the applicant be informed of the process by which it was obtained and be given a copy of the warrant and that the police refrain from executing the warrant until the applicant had instituted legal proceedings to review the granting of the warrant; and (3) if the police had already obtained and executed the warrant, that the applicant be informed of the manner in which the warrant was obtained and executed and the scope of the medical records obtained, and that the police seal up the records and refrain from further communicating the contents of the records until the resolution of further legal proceedings.
10. On 2 September, the Hospital replied to the applicant’s letter of 30 August, stating that it had provided to the police her personal details and was also required pursuant to a warrant served by the police to provide the medical records which were pending release as at that date. The Hospital stated that a search warrant empowered police officers to enter and search for and take possession of the documents covered and that it was obliged to cooperate and comply and did not wish to resist or obstruct police officers in the due execution of their duties. The Hospital asked the applicant to take up the matter directly with the police and expected to hear from her within the next 7 days.
11. On 3 September, the applicant’s solicitors wrote again to the Hospital asking it to provide her with a copy of the warrants and the records handed over to the police, and that the Hospital refrain from doing anything beyond lawful compulsion that would be in breach of the applicant’s privacy rights. The evidence does not show whether there was any response from the Hospital to this letter.
12. Also on 3 September, the Commissioner issued an interim reply to the applicant’s solicitors, acknowledging receipt of the letter of 2 September and stating that the police were considering the matters raised and seeking legal advice as appropriate and would reply as soon as possible.
13. The Commissioner’s letter was apparently missed by the applicant’s solicitors, who wrote again on 3 September to the Commissioner, asking for a copy of all the warrants obtained in relation to the personal data of the applicant, stating that the applicant intended to apply to set aside the warrants, and asking the police to refrain from further executing any warrants.
14. Apparently, as I was told by the Commissioner’s counsel at an earlier hearing on 12 September, the medical records covered by the second warrant were obtained by the police on 4 September, though this was not known to the applicant at the time.
15. On 6 September, the applicant’s solicitors wrote to the Commissioner, complaining that he had not responded to their previous letters (which is factually incorrect but is, I assume, an honest mistake by the solicitors) and stating that unless the information previously requested be provided, they were instructed to seek relief from the High Court.
16. In press conferences on 9 and 10 September, in response to questions from the press, a Senior Superintendent disclosed that the police had applied under s 50(7) of the Police Force Ordinance (Cap 232)[1] for search warrants and had obtained the applicant’s medical records from the Hospital.
17. On 9 September, the applicant lodged a Notice of application for leave to apply for judicial review (Form 86). An anonymity order was granted by this court.[2] Following an inter partes hearing on 12 September, the applicant was granted leave to apply for judicial review based on her Form 86.[3] Meanwhile, the Commissioner has voluntarily offered an undertaking to seal up the medical records obtained until the resolution of this judicial review in this court. The respondent’s evidence in response was filed on 4 October.
Proposed amendment of the application for judicial review
18. The application for judicial review, for which leave has been given based on the Form 86, seeks to impugn the refusal of the Commissioner to produce to the applicant the warrant. It is said that this infringes the applicant’s right of access to the courts under Art 35 of the Basic Law.
19. By summons dated 21 October 2019 and returnable before this court on 4 November 2019 (ie the date of the substantive hearing of the judicial review), the applicant sought leave to amend her Form 86. One of the amendments proposed was to describe the decision attacked as the Commissioner’s “failure” rather than “refusal” to produce the warrant — to reflect the fact that there had been no actual refusal before proceedings were begun. This and a few other minor amendments were uncontentious and permitted at the hearing.
20. More controversially, however, the applicant also proposed to add a second decision to be reviewed, namely, the Commissioner’s “decision to fully execute the purported warrant to obtain the medical records of the Applicant”, on the...
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