Judgment Update

Fok Chun Wa & Anor v Hospital Authority

& Anor
FACV No. 10 of 2011 (2 April 2012)1
CFA

Background

The first applicant was the husband of the

second applicant. He was at all material time a
Hong Kong permanent resident. The second
applicant was from the Mainland and is married
to the first applicant. She was not a Hong Kong
resident at the material time. The
second applicant was representative
of a number of women from the
Mainland in a similar situation called for
convenience the “A2 Group”.
in public hospitals for non-residents. Their
main complaint was that the A2 Group had
The first respondent was the Hospital Authority,
been subjected to unlawful discrimination since
a statutory body with responsibility for
the level of fees payable by them for obstetric
managing and controlling public hospitals in
Hong Kong. The second respondent (formerly services in public hospitals in Hong Kong was

the Secretary for Health, Welfare and Food) substantially higher than those payable by Hong

was the government official responsible for Kong resident women. The two groups of women

the formulation of medical and health policies were distinguished by their residence status,

(including policies on fees chargeable in
public hospitals) and the monitoring of the first
respondent.
Main Issue
The applicants sought to impugn three decisions
made by the first and second respondents
between 2003 and 2007, which together had the
effect of raising the fees for obstetric services
namely, Hong Kong residents (holding a Hong
Kong ID card) and non-Hong Kong residents,
to which group the second applicant and the
A2 Group belonged. The applicants contended
that this distinction breached the right to equal
treatment guaranteed under BL 25 and Article 22
of the BoR. They argued that the constitutional
duty imposed on the respondents was to ensure
equality among analogous groups of pregnant
women.

1
Reported at [2012] 2 HKC 413.

Basic Law Bulletin Issue 14 - December 2012 29

 Judgment
The Focus
Update
Counsel for the applicants submitted that the
main issue was the question of equality. The
applicants relied on the similarities their family
share with a Hong Kong resident family. For
example, the women in the A2 Group had close
connection with Hong Kong, unlike other Non-
Eligible Persons (“NEPs”) who wish to obtain
subsidised obstetric services, but have little or
no connection with Hong Kong. The applicants
argued that the respondents failed to draw this
distinction between the A2 Group and other
NEPs.
The Legal Approach
The relevant equality provisions are contained in
BL 25 and Article 22 of the BoR: -
(1) BL 25
“All Hong Kong residents shall be equal
before the law.”
(2) Article 22 of the BoR
“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.”
The CFA considered that the starting point on the
30 Basic Law Bulletin Issue 14 - December 2012
legal approach to questions regarding equality
was the decision of the CFA in Secretary for
Justice v Yau Yuk Lung (2007) 10 HKCFAR 335.
In that case, the Chief Justice stated that the
law, in general, should usually accord identical
treatment to comparable situations. 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,
a justification test has to be passed. It must be
shown that the difference in treatment pursues
a legitimate aim. For any aim to be legitimate,
a genuine need for such difference must be
established. The difference in treatment must
be rationally connected to the legitimate aim.
The difference in treatment must be no more
than is necessary to accomplish the legitimate
aim. 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.
The CFA commented on the approach by the
lower courts to rely on a two-stage test to first
identify the comparators (that is, the claimant and
someone said to be in a comparable or analogous
position) and then to determine whether a
differentiation between the comparators could
be justified. The CFA considered that it was
important that the two-stage approach should not
be regarded as if it were a statute and treated
as such. The two stages often overlapped,
leading to complicated and unproductive
argument. Where the two-stage approach was
unhelpful, the CFA preferred the approach in
the case of R (Carson) v Secretary of State of

Works and Pensions [2006] 1 AC 173 and asked
the question, “is there enough of a relevant
difference between X and Y [the comparators]
to justify differential treatment?” Where there
is not such an obvious and relevant difference
between the claimant and those with whom he
seeks to compare himself that their situations
cannot be regarded as analogous, 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.
Furthermore, the CFA emphasized the relevance
of what was known as the aspect of margin of
appreciation, particularly in circumstances where
the court was asked to examine issues involving
socio-economic policy. The concept of margin of
appreciation is derived from the jurisprudence
of the European Court of Human Rights and
has been applied in a number of Hong Kong
cases such as Lau Cheong v HKSAR (2002) 5
HKCFAR 415 and Mok Charles v Tam Wai Ho
(2010) 13 HKCFAR 762. The CFA referred to the
judgment of R v Director of Public Prosecutions
ex p Kebilene [2000] 2 AC 326 where it was
said that “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
Judgment Update
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.”
It is the responsibility of the executive to devise
and implement socio-economic policies of a
government, as stated in BL 48(4) and BL 62.
In the context of healthcare and the setting of
fees chargeable in public hospitals, the Hospital
Authority Ordinance (Cap.113) sets out the
obligation of the respondents to recommend
and devise appropriate policies, for example in
ss. 4, 5 and 18 of the Ordinance. Accordingly, it
would not usually be within the province of the
courts to adjudicate on the merits or demerits
of such government socio-economic policies.
However, it has been the consistent position
of the courts that, where appropriate, the court
would intervene as part of its responsibility to
ensure that any measure or policy was lawful
and constitutional.
The CFA also quoted the judgment of Wilson v
First County Trust Ltd (No 2) [2004] 1 AC 816, at
844E-G, where it was pointed out that “…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
Basic Law Bulletin Issue 14 - December 2012 31
 Judgment
The Focus
Update
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… The more the legislation
concerns matters of broad social policy, the less
ready will be a court to intervene.”
The CFA held that the particular facet of socio-
economic policy this case is concerned with was
the distribution of public funds. In the area of
healthcare, where resources are limited and the
demands from many different interests heavy,
the margin of appreciation would be even wider.
It was held that where governments had at their
disposal only finite resources with which to devise
an economic or social strategy, they should be
left to decide (i) whether to have any social or
welfare scheme in the first place, (ii) the extent
of such a scheme and (iii) where such a scheme
is devised, to choose who is to benefit under it.
The CFA also held that when a line was drawn
between those who were entitled to a benefit and
those who were not, the court could legitimately
take into account the clarity of the line and the
administrative convenience of the implementing
of the policy or scheme thereunder. The CFA
considered that this factor must be weighed
against other factors, but where, for instance, the
line was drawn so vaguely or ambiguously that
the underlying policy or scheme might effectively
be undermined, this was a factor that could be
considered by the courts.
Where there were a number of alternative
solutions to deal with a social problem, the CFA
explained the position as to how far must the
court go in inquiring as to the alternative that is
32 Basic Law Bulletin Issue 14 - December 2012
least intrusive into the constitutional protected
right in question. When comparing between
the different options that may be available, the
purpose is to see whether what has been done
or decided is a proportionate response to the
legitimate aim. When applying the justification
test, the margin of appreciation is relevant at
all three stages of the test. Where the option
chosen is clearly further than necessary to deal
with the problem, it fails the third limb of the
justification test. It is only then that the court will
interfere. Attempts to search for more and more
alternatives to the solution that was adopted in
any one case are not the role of the court and
should be discouraged.
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. Fundamental
concepts are those that relate to personal or
human characteristics such as race, colour,
gender, sexual orientation, religion, politics, or
social origin. Examples are 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, the right to a fair trial and
the presumption of innocence. The entitlement
to social welfare or to subsidised health services
was not a fundamental concept. It was a right
that was inextricably bound with socio-economic
considerations and therefore to be considered
in such light. The subject matter of the present
case involved entitlement to subsidized obstetric
services in public hospitals in Hong Kong. While
the applicants had made reference to the right
to family life and family unity, this argument

had obvious limits. The three decisions did not
prevent women in the A2 Group having children.
There had been no real suggestion of this. After
all, no evidence had been put forward to the
effect that women in the A2 Group could not
give birth in the Mainland if they chose to. The
applicants’ case was that the A2 Group women
simply desired to give birth in Hong Kong.
Application to the Present Case
The CFA considered that the fundamental basis,
the dividing line, used by the respondents was
that of residence status - Hong Kong residents
(holding a Hong Kong ID card) were to be treated
as eligible persons while non-residents, including
the A2 Group, were to be treated as NEPs. The
CFA held that, as a matter of law, this difference
in status was of course sufficient to engage the
application of Article 22 of the BoR. The critical
question was whether there had been a breach
of the right to equality. The CFA held that drawing
the line at residence status was justifiable in the
present case.
The CFA considered that there were a number of
reasons why such a line had to be drawn:
(1) the need to give due regard to the
long-term sustainability of Hong Kong’s
social services in the context of limited
public resources;
Judgment Update
(2) hard decisions had to be made
regarding the entitlement of persons to
social or health benefits;
(3) many of the obstetric services in Hong
Kong were utilised by Mainland women,
of which a sizeable proportion belong to
the A2 Group;
(4) there was also the problem of
dangerous behaviour among Mainland
women giving birth;
(5) the obstetric services provided to
Mainland women (including the A2
Group) adversely affected Hong Kong
resident mothers; and
(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.
The CFA considered that the decisions were
made as part of the Government’s socio-
economic responsibilities and represented the
implementation of policies in those areas. The
CFA considered it no part of the court’s role to
second-guess the wisdom of the policies and
measures in the circumstances. It was also not
the court’s role in such matters of socio-economic
policy to examine whether better alternative
solutions could have been devised. The CFA
held that in the present case the line drawn by
the respondents at residence status was entirely
within the spectrum of reasonableness; hence
the challenge based on equality failed.
Basic Law Bulletin Issue 14 - December 2012 33