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CACV 33/2020
[2021] HKCA 523
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 33 OF 2020
(ON APPEAL FROM HCAL 2643/2019)
__________________________
| BETWEEN |
|
|
| “K” |
Applicant |
| and |
| COMMISSIONER OF POLICE |
Respondent |
| and |
| HOSPITAL CHIEF EXECUTIVE, QUEEN ELIZABETH HOSPITAL |
Interested Party |
__________________________
Before: Hon Poon CJHC, Lam VP and Au JA in Court
Date of Hearing: 5 February 2021
Date of Judgment: 21 April 2021
________________________
JUDGMENT
________________________
Hon Poon CJHC:
1. I agree with the judgment of Lam VP.
2. Stripped of all the niceties of legal arguments to their core, the applicant’s complaint is that she would not be able to commence any legal action to protect her rights to privacy arising from her medical records, now in the police’s possession by virtue of the search warrant, when the police refused to provide the search warrant to her. Her access to courts to gain an effective remedy to protect any infringement of her privacy is therefore impeded.
3. The fatal flaw in the applicant’s case is this. It is not in dispute that the whole purpose of the search warrant was to enable the police to obtain her medical records when she adamantly refused to give consent to the Hospital Authority to release them. Her rights to privacy that she seeks to protect arise from her medical records, and not the search warrant itself. Even without the search warrant, she could have commenced legal proceedings to protect her privacy rights in the medical records, such as applying to the magistrate to set aside the search warrant, applying for judicial review or commencing a private action for injunction. Put bluntly, she simply does not need the search warrant at all. The decision of the police not to give her a copy of the search warrant does not constitute an impediment to her access to courts to seek an effective remedy against any infringement of her privacy rights in her medical records. It follows that her application for judicial review against the police’s decision and this appeal must fail.
Hon Lam VP:
4. This is the appeal by the Applicant (“K”) against the judgment of G Lam J (“Judge”) in HCAL 2643/2019 ([2019] HKCFI 3048) dated 17 December 2019 (“Judgment”), which concerned K’s application for judicial review in respect of the failure[1] by the Commissioner of Police (“Commissioner”) to provide a copy of the search warrant issued by a magistrate whereby the police obtained from the Queen Elizabeth Hospital (“Hospital”) medical records in relation to K.
5. The factual background has been summarized in [3] to [17] of the Judgment with considerable details. In short, a group of protesters assembled outside the Tsim Sha Tsui Police Station in the evening of 11 August 2019. The assembly evolved into a violent protest which involved some protesters hurling objects such as bricks, stones and other projectiles (including petrol bombs) at the police station and the police officers inside. This led to standoff and confrontation between the police and the protesters.
6. As the learned Judge rightly observed at [3] of the Judgment, it is unnecessary for present purposes to examine at length what actually happened that evening and, indeed, the Court is not provided with the necessary evidence to do so in these proceedings.
7. At about 7:24 pm that evening, in the midst of the said protest, K was found lying in Nathan Road near the junction with Austin Road having suffered injuries to her right eye. At that time, she was dressed in black and was equipped with a helmet, a pair of goggles and a respirator. She claimed to be hit by “a suspected bean bag round shot by the police”. She was conveyed to the Hospital for treatment and then admitted into the Hospital.
8. The police have since been investigating the unlawful activities carried out in the vicinity of the Tsim Sha Tsui police station. There was also a dispute as to whether she was hit by a beanbag round fired by police or by a projectile from a protester’s catapult.
9. The police had tried to seek her co-operation in getting the relevant details regarding her injuries and circumstances leading to the injuries. When the request from the police was to no avail, they subsequently obtained and executed two search warrants to obtain K’s personal information and medical records:
(1) The first warrant was issued by a magistrate to the police on 21 August 2019, authorizing the police to get K’s personal details from the Hospital (i.e. date of birth, HKID number, telephone number and address). This warrant was executed and the police obtained the information on 27 August 2019. And
(2) The second warrant was issued by a magistrate to the police on 29 August 2019 in respect of the medical records kept by the Hospital in relation to K’s injury sustained on 11 August 2019.
These warrants shall be referred to as the “Warrants” hereinbelow.
10. On 29 August 2019, it was disclosed by the police to the press that the police had applied for a search warrant to obtain K’s medical records from the Hospital.
11. Between 30 August and 6 September 2019, K’s solicitors exchanged correspondences with the Hospital and the Commissioner whereby, inter alia, K’s solicitors asked for a copy of the search warrant if it had already been issued, raised questions as to the validity of such a warrant, objected to the disclosure of her medical records to the police pursuant to any such warrant, and expressed K’s intention to apply for judicial review and/or to set aside the warrant.
12. In press conferences on 9 and 10 September 2019, the police disclosed that the police had applied for and obtained search warrants under Section 50(7) of the Police Force Ordinance (Cap 232) (“PFO”) and had obtained K’s medical records from the Hospital.
13. On 9 September 2019, K lodged a notice of application for leave to apply for judicial review (Form 86) regarding the Commissioner’s refusal (which was subsequently amended to “failure”) to produce the Warrants obtained from the magistrate for the entry and search of the Hospital in relation to K’s personal data and/or medical records. The substantive relief sought, as prayed for in the Amended Form 86, were:
“ 3) An order of mandamus that the [Commissioner] provide to the Applicant the warrants obtained in relation to the Applicant’s personal data and medical records; and/or
4) A declaration that the [failure to produce the warrants] is in breach of Article 35 of the Basic Law and Article 2(3) of the International Covenant on Civil and Political Rights.”
14. Following an inter partes hearing on 12 September 2019, K was granted leave to apply for judicial review. As highlighted by the Judge at [18] in the judgment of 17 December 2019, the scope of the judicial review for which leave had been granted was limited in scope:
“ 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.”
The narrow scope of the judicial review before the court
15. Thus, the application for judicial review in the Court below is limited to the narrow question of whether the Commissioner’s failure to provide copies of the Warrants to K has effectively obstructed K’s right of access to the Courts as guaranteed by Article 35 of the Basic Law (“BL 35”).
16. There was no application for judicial review of the police’s decision to apply for the Warrants, or the magistrate’s decisions to issue the Warrants, or the manner in which the Warrants were executed.
17. Nor did K bring any application for judicial review on the ground that the police’s efforts to obtain the personal data and medical records of K by the Warrants contravened K’s right of privacy under Article 14 of the Hong Kong Bill of Rights (“BOR 14”). Though there were references in the Form 86 to the right of privacy at paragraphs 19 to 23, in the overall scheme of that document these references only served to support the contention that K could mount a challenge before the magistrate to set aside the Warrants on the ground of violation of her right of privacy, see paragraphs 30 to 43 of the Form 86.
18. As far as the present application for judicial review was concerned, K focused on the failure of the Commissioner to supply copies of the Warrants to her, see paragraphs 45 to 50. In particular, her case as put before the Judge was summarized in a nutshell at paragraphs 49 and 50 of the Form 86:
“ F. Conclusion
49. The Applicant therefore seeks, inaccordance with the principles laid down so robustly by Lam VP in Keen Lloyd to seek to re-engage the proper judicial gatekeeping role of the Magistrate and challenge the lawful authority of the highly intrusive search and seizure of the Applicant's medical records. This is a fundamental right guaranteed by the Basic Law which lies at the heart of Hong Kong's One Country Two Systems principle.
50. The CP has prevented the Applicant from doing so, and is in breach of Article 35 of the Basic Law, and Article 2(3) of ICCPR.”
19. Given the limited scope of the challenge, the evidence filed by the Commissioner, apart from reciting the background facts and circumstances, focused on issues relating to the disclosure of Warrants. The evidence did not address at length the justification for seeking the medical report and personal data as it might have had there been a challenge to the legality of the application for Warrants due to the engagement of K’s right of privacy.
20. The Judge also understood the application before the court to be...
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