Daisy Cheung and Edward Lui on Conditional Discharge, Statutory Interpretation and the Mental Health Review Tribunal (HKLJ)

"Conditional Discharge, Statutory Interpretation and the Mental Health Review Tribunal"
Daisy Cheung and Edward Lui
Hong Kong Law Journal, Vol. 55, Part 1 of 2025, pp.29 - 48

Abstract: This article examines the Hong Kong Mental Health Review Tribunal’s powers in relation to the imposition of conditional discharge orders under s 59E(2) of the Mental Health Ordinance (Cap 136). The wording of s 59E(2) refers back to s 42B of the Mental Health Ordinance, the primary legislative provision governing the conditional discharge regime. There remains ambiguity, however, regarding the scope of the Tribunal’s powers in relation to such matters as the factors that the Tribunal is to consider when deciding whether to impose a conditional discharge order. Section 59E(3) of the Mental Health Ordinance, for example, provides additional factors beyond those contained in s 42B for the Tribunal to consider. In this article, we examine this ambiguity, presenting three different options as to how the interaction between ss 42B and 59E(3) might be interpreted. We then argue that the first of these options is the correct interpretation. We also examine the role that the s 59E(3) factors play within this interpretation, and in particular the implications that the s 59E(3) factors may in turn have for s 42B.