The Court of Final Appeal yesterday upheld the Hospital Authority's right to charge mainland mothers married to Hong Kong men higher fees for obstetric services in public hospitals than those charged to local women.
In its unanimous ruling, the court dismissed a challenge launched by permanent resident Fok Siu-wing, 71, on behalf of his mainland daughter-in-law, Zeng Lixia, who was unable to pay her bill after giving birth here in 2007.
At issue was the Hospital Authority's decision in 2003 to raise fees for non- resident women to HK$3,300 and then to HK$20,000 in 2005. In 2007, the fees were raised to HK$39,000 for pre- booked obstetric services, and to HK$48,000 with no booking. Zeng was billed HK$48,000 after she gave birth in December 2007 at Princess Margaret Hospital.
The panel of five Court of Final Appeal judges, led by Chief Justice Geoffrey Ma Tao-li, ruled that the authority is justified in imposing the higher maternity fees for non-residents.
They include the so-called A2 Group of mainland women, who - despite being married to Hong Kong men - are still classified by law as visitors.
Zeng is the wife of Fok's mentally handicapped son, Fok Chun-wa.
The elder Fok filed the case after the Court of Appeal threw out his suit in May 2010. It was also dismissed earlier by lower courts. Arguing on Fok's behalf, senior counsel Denis Chang Kin-lei said that the policy of higher fees breaches the right to equal treatment guaranteed under the Basic Law and Hong Kong Bill of Rights.
Fok had argued that the A2 Group had been lumped together with so-called "transient mothers," or mainland women with mainland spouses who give birth in Hong Kong.
But in the ruling handed down yesterday, the panel wrote that the courts on several occasions held that "where socio-economic policies are concerned [and within this, health and welfare policies], drawing the line at residence status has justified differential treatment."
In arriving at the policy on the level of fees for obstetric services in public hospitals, both the authority and government drew the line at residence status.
"This was the critical difference between EPs [eligible persons] and NEPs [non-eligible persons] so far as subsidized obstetric services were concerned," the court said.
Drawing the line at residence status is "justifiable, comprehensible and rational," the court added.
"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," the court said.
Secretary for Food and Health York Chow Yat-ngok welcomed the ruling, saying the government will study if there should be a separate quota for mainland wives of local men at private hospitals.
The Hospital Authority reiterated "that the current obstetric fees package and booking system of public hospitals for non-locals is to ensure priority is given to local pregnant women.