Your World of Legal Intelligence
 Hong Kong | 1-800-335-6202

My v Ft

Judgment Cited authorities 3 Cited in 2 Precedent Map Related
Vincent
JurisdictionHong Kong
Judgment Date30 June 2022
Neutral Citation[2022] HKCFI 2001
Year2022
Citation[2022] 3 HKLRD 699
Subject MatterMiscellaneous Proceedings
CourtCourt of First Instance (Hong Kong)
Judgement NumberHCMP500/2022
HCMP500A/2022 MY v. FT

HCMP 500/2022

[2022] HKCFI 2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS No 500 OF 2022

____________

IN THE MATTER of YL, a girl, born on 17 April 2020, a minor (the “Minor”)
and
IN THE MATTER of an application under sections 10 and 15 of the Child Abduction and Custody Ordinance (Cap. 512) and Order 121 of the Rules of the High Court (Cap. 4A)
and
IN THE MATTER of section 10 of the Guardianship and Minors Ordinance (Cap. 13)

____________

BETWEEN
MY Applicant
and
FT Respondent

____________

Before: Hon Au-Yeung J in Chambers (Not Open to the Public)

Date of Hearing: 30 May 2022

Closing Date for Written Submission: 8 June 2022

Date of Decision: 30 June 2022

_________________

D E C I S I O N

_________________

A. Introduction

1. The Father abducted the Minor (“YL”) and disappeared without trace since 16 April 2022. The Mother instituted proceedings under the Child Abduction and Custody Ordinance, Cap 512 (“CACO”) against the Father. She obtained location orders, which were served but not responded to by, amongst others, the Father. Out of concern that the Father would enroll YL for education and medical services in a foreign country and try to establish a “status quo” for YL, the Mother obtained, on 23 May 2022, orders against medical entities including the Commissioner for the Electronic Health Record (“Commissioner”) and the Director of Health (“Director”) directing them, amongst others:

(a) not to change the “substitute decision maker” (“SDM”, currently the Mother) as regards YL (“1st Order”); and

(b) not to release and/or disclose any health information and/or records (including vaccination records) of YL to any person except to the Mother (“2nd Order”).

2. At an inter parte hearing on 30 May 2022, Mr Chan and Mr Yeung, government counsel, confirmed that the Commissioner and the Director were in possession of the information under the 2nd Order and that the Mother was the only SDM. The Commissioner and the Director however, sought to set aside the Orders on Jurisdiction Grounds that:

(i) In respect of the 1st Order, the Electronic Health Record Sharing System Ordinance, Cap 625 (“EHRSSO”), did not give a power to “change” the SDM; and

(ii) In respect of the 2nd Order, the Court had no power to issue an injunction against the Commissioner and the Director when they were not parties to the proceedings.

3. The matter was adjourned for further written submissions, to be lodged such that the application can be disposed of on paper.

4. On 13 June 2022, YL was located in Singapore with the Father. The Singapore Court has taken up the matter under the International Child Abduction Act.

5. Having considered the submissions, I find the Jurisdiction Grounds established. I decide to set aside the Orders on 2 further grounds:

(1) Any purpose that the Orders seek to achieve has been overtaken by events (“Purpose Ground”); and

(2) Continuation of the Order is not in the best interests of YL (“Best Interests Ground”).

B. Background

6. YL was born and raised in Hong Kong.

7. The Mother and Father have commenced divorce proceedings in the Family Court. The Father exercised his access over YL on 16 April 2022 but later disappeared with YL without trace. At that time, YL was aged 2. The Father cut all contacts with the Mother, including moving out of his residence and blocking her off from all telephone messages. It appears that the Paternal Grandmother and Paternal Grandfather joined in the exercise and cut all contacts with the Mother as well.

8. It transpired from subsequent enquiries with airline companies that in fact the Father had removed YL on 16 April 2022 out of Hong Kong to Bangkok.

9. The Mother commenced the present CACO proceedings and on 5 May 2022 against, amongst others, the Father and the Grandparents, and notified them of the same, amongst others, through WhatsApp messages. The Father has blocked off the Mother’s solicitors from the WhatsApp messages such that the latter has to use a different phone card to send messages. Apparently, the WhatsApp messages containing the Location Orders had been received by the Father and the Grandparents, latest by 7 May 2022.

10. By an affirmation filed on 23 May 2022, the Mother sought the Orders. Her bases are that having served the Location Order, she came to realize that the Father had no intention of complying with it. It prompted her to realise that if it was the intention of the Father to remove YL to a foreign country for a longer period of time, YL’s educational and medical needs would come into play. If she were to enroll in a school or seek medical attention in a foreign country, then her health and vaccine records would be required. The Mother had in fact been notified by a private clinic which previously treated YL that a person claiming to be the Father had approached the clinic to request for disclosure of YL’s vaccine record, but the clinic refused to provide it.

11. Further, the Mother has been registered as the SDM of YL under the Electronic Health Record Sharing System of the Food and Health Bureau, also known as eHealth (“the System”). At 1:14 pm on 18 May 2022, she received 3 text messages from the eHealth platform at her mobile phone number, showing that a “carer” of YL was attempting to access and/or otherwise make changes to YL’s account. She was told by the System operator and the eHealth Office that so long as the person requesting for information was able to provide YL’s birth certificate or her ID card number (which the Father had), he could have access to YL’s information in the System and even change the registered SDM to another person. Unless with a court order, the eHealth system could not refuse to disclose YL’s information if her identity documents were provided.

12. Out of concerns that it would further facilitate the Father’s abduction if he could obtain the health information and vaccine records of YL and then set up a status quo for YL at an unknown foreign country, the Mother applied for and obtained the Orders on 23 May 2022 on ex parte basis.

13. The Mother obtained a further Location Order on 8 June 2022 and discovered that the Father may go to Singapore.

14. On a date unknown, the Father and YL left Bangkok and went to Singapore. With the assistance of the Singapore Central Authority, the Father and YL were intercepted and prevented from leaving Singapore.

C. Jurisdiction Ground

C1. Power to change SDM under the 1st Order

15. The Commissioner submits that he has no power to “change” an SDM. He can only “add” an SDM (sections 6 and 8 of EHRSSO) or an SDM can withdraw from being one (section 8).

16. Under section 3(2)(a) of the EHRSSO, a parent who accompanies YL can apply to be an SDM of YL. The parent can apply electronically to be an SDM. If the parent is already registered in the System (eg being a patient himself/herself), there is no need for the Commissioner to verify his/her identity. If he/she is not already registered in the System, he/she can still apply electronically to be registered as an SDM, but he/she has to appear in person at eg a hospital to have his/her identity verified.

17. Once registered as an SDM, that parent can have access to the vaccine record, appointment time and allergies of YL. The SDM can gain access electronically. Every time someone accesses YL’s data, a one-time password (“OTP”) would be sent to the SDM.

18. In respect of YL, only the Mother is the SDM. If the Father wants to access YL’s information, an OTP will be sent to the Mother. The Mother can forward the OTP to enable the Father to access the information.

19. If the Father applies to be the SDM of YL, an OTP would be sent to the Mother. If the Mother does not forward the OTP to the Father, the Father cannot be registered. He can still apply electronically but he will not be registered even if he has the identity documents of YL. He needs to go in person before the registration office for verification. Once his...

To continue reading

Request your trial
1 cases
  • Z, A Minor Suing By His Mother And Next Friend X v Y
    • Hong Kong
    • 8 December 2022
    ...or anticipated by the Act would result in a failure to safeguard and promote the welfare of the subject child…” 55. In Re YL (a Minor) [2022] 3 HKLRD 699, [2022] HKCFI 2001[18], Queeny Au Yeung J had cited and endorsed paragraphs 47 and 77 of 56. As for the difference between inherent juris......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT