Ckkk v. Ckb
Read the full judgment text of CACV 162/2015 on BabelCite. This Court of Appeal judgment was delivered on 30 September 2016.
1. I agree with the judgment of Chu JA and the order at paragraph 62 below.
Cites 2 cases
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CACV 162/2015 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CVIAL APPEAL NO. 162 OF 2015 (ON APPEAL FROM HCMH No. 83 OF 2013) ____________
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_______________ JUDGMENT _______________ Hon Yuen JA: 1.I agree with the judgment of Chu JA and the order at paragraph 62 below. Hon Kwan JA: 2.I agree with the judgment of Chu JA Hon Chu JA: 3.This is the appeal of the intervener against the decision of L Chan J (“the Judge”) made on 15 June 2015, holding that MCP is a person incapable, by reason of mental incapacity, of managing and administering her property and affairs, and his order appointing the applicant to be the committee of the estate of MCP (“Committee”). The intervener seeks to set aside the Judge’s order and to have the applicant’s originating summons dismissed. The facts 4.MCP was born on 11 May 1920. She is now 96 years of age. Her husband (“Father”) passed away on 12 February 2013. MCP is a Shanghainese. She has minimal command of Cantonese and English, and understands very little Mandarin. She can read Chinese, but very minimal English. 5.The applicant, the intervener and Madam CKM (“Mui”) are the children of MCP and Father. Until February 2013, the intervener had for a long time been living in Shanghai. Mui, on the other hand, has emigrated to Canada. The applicant, who lives in Hong Kong, was the main person responsible for taking care of MCP and Father. 6.MCP and Father used to reside in a property in Mei Foo Sun Chuen (“Mei Foo Property”). It was held by them as co-owners in joint tenancy. Upon Father’s death, the property became solely owned by MCP. Apart from the Mei Foo Property, MCP has another landed property in Shanghai, some cash in bank and some listed shares. 7.In October 2012, MCP had a fall and was admitted to Princess Margaret Hospital. Shortly afterwards, Father was also hospitalized. Upon their discharge, the applicant arranged for the two of them to move into an elderly care home (“Yan Yan”). In April 2013, the intervener moved MCP from the elderly care home back to Mei Foo Property. Between 4 and 9 May 2013, MCP was again hospitalized in Princess Margaret Hospital. It is the applicant’s case that since her discharge from hospital, he has encountered difficulties in contacting or accessing MCP. The intervener’s case, on the other hand, is that MCP did not want to see the applicant. Subsequently, the intervener arranged for MCP to stay in a nursing home, the address of which was not disclosed to the applicant. 8.Earlier on 26 February 2013, which was two weeks after Father’s death, Mui commenced an action against the applicant (“HCA361/2013”) for misappropriation of their parents’ properties. She also made a complaint against the applicant to the police. On 31 August 2013, the claim was ordered to be struck out and the action was dismissed with costs to the applicant against Mui. 9.On 10 December 2013, the applicant came to learn that the Mei Foo Property was put up for sale in the market. This led him to issue the proceedings below (“HCMH 83/2013”). 10.Previously on 22 November 2010, MCP and Father had respectively executed a will in Chinese in the presence of a solicitor. The applicant is the executor under both wills. All the three children are beneficiaries under MCP’s will. 11.Subsequent to the commencement of HCMH 83/2013, the intervener disclosed that MCP had made two other wills. The first was dated 20 March 2013 (“2nd Will”), which is in English and the content is said to have been interpreted to her in Cantonese. It revokes the 2010 will. Only the intervener and Mui are beneficiaries under it. The other will made by MCP is in Chinese and dated 24 October 2013 (“3rd Will”). Under this will, the intervener is the executor and sole beneficiary of MCP’s estate. 12.The intervener also disclosed that MCP had applied for, and on 1 November 2013 was granted, Letters of Administration in respect of Father’s estate. 13.It was further disclosed by the intervener that MCP had executed two powers of attorney. The first is an English general power of attorney dated 28 October 2013 (“POA”) appointing the intervener as her attorney to deal with all her properties. The interpretation clause on the POA did not indicate in what dialect was the content interpreted to MCP. The second is an English enduring power of attorney dated 15 January 2014 (“EPA”) authorizing the intervener to deal with only the Mei Foo Property and one bank account. It did not contain an interpretation clause. 14.On the strength of the powers of attorney, the intervener signed, on MCP’s behalf, a provisional sale and purchase agreement dated 14 March 2015, and a formal sale and purchase agreement dated 27 March 2015 to sell the Mei Foo Property, with completion set for 28 May 2015. The applicant has registered the originating summons in HCMH 83/2013, and the 15 June 2015 order of the Judge in the Lands Office against the Mei Foo Property. The sale of the Mei Foo Property has not been completed. 15.The applicant questions MCP’s mental capacity to make the 2nd Will and 3rd Will, the POA and the EPA and also the validity of these documents. He also challenges the validity and legality of the Letters of Administration granted to MCP in respect of Father’s estate as well as the validity of the agreements to sell the Mei Foo Property. HCMH 83/2013 16.HCMH 83/2013 was commenced on 31 December 2013 by way of ex parte originating summons, in which the applicant applied for: (1) an inquiry into the mental capacity of MCP to manage and administer her properties and affairs, pursuant to section 7 of the Mental Health Ordinance, Cap. 136 (“MHO”); (2) the appointment of a Committee; and (3) an order appointing him as the Committee. 17.On 29 May 2014, the intervener applied by summons to join in the proceedings, and for an order dismissing the applicant’s originating summons. Alternatively, he applied to be appointed as the Committee, in the event that MCP was held to be a person who, by reason of mental incapacity, is incapable of managing and administering her property and affairs. 18.At the hearing on 10 June 2014, Deputy High Court Judge Leung ordered that MCP be examined by two registered medical practitioners (to be agreed between the applicant and the intervener) in accordance with Part II of the MHO, and that each of them was to provide to the court a medical report on the mental capacity of MCP in line with Annex C of Practice Direction 30.1. 19.Subsequently, Dr Wong Yi Him John and Dr Wong Chung Kwong were appointed to conduct the medical examination of MCP. Both doctors are experts in psychiatry and are on the list of approved doctors for the purpose of section 2(2) of the MHO. They produced their reports on 21 and 28 July 2014 respectively. 20.On 18 May 2015, having considered their medical reports, the Judge ordered that an inquiry be held on 26 May 2015, and that notice of the inquiry hearing together with all relevant papers be served on MCP by substituted service on the superintendent of Yan Yan where she was residing, and also on the intervener and Mui. 21.At the inquiry hearing on 26 May 2015, the intervener, who was previously legally represented, appeared in person. The Judge granted his application to be added as a party to the proceedings. The Judge further adjourned the applicant’s application and the rest of the intervener’s application to 15 June 2015 for argument. 22.The main issues in HCMH 83/2103 are: (1) whether MCP is a person incapable, by reason of mental incapacity as defined in the MHO, of managing and administering her property and affairs; and (2) if so, who should be appointed as the Committee. 23.The intervener’s case was that MCP was mentally sound and mentally capable. He relied on two medical certificates. The first was issued on 15 January 2014 by Dr Shirley PS Ip, a specialist in geriatric medicine. It reads:
24.The certification that Dr Ip referred to was contained in a pro forma memo from Princess Margaret Hospital in reply to a request from the Social Welfare Department to assess whether MCP was fit to make a statement for her application to the Social Welfare Department for disability allowance. The memo was signed by a medical officer of the department of medicine and geriatrics in Princess Margaret Hospital.[1] The intervener also relied on this document to contend that MCP was mentally sound and capable. 25.The second medical certificate that the intervener relies upon was issued by Dr Chen Chia Lu Sylvia on 10 April 2014. Dr Chen is a specialist in psychiatry. Her certificate only contained a short statement saying:
26.The applicant, on the other hand, referred to the medical reports of Dr John Wong and Dr CK Wong. Both doctors have concluded that MCP is incapable, by reason of mental incapacity as defined in the MHO, of managing and administering her property and affairs. 27.In his report, Dr John Wong reported that MCP scored 7 out of 30 in the MMSE, noting that a score of below 20 (depending on the individual’s education level) is often cited as cut-off for suspected dementia. He is of the opinion that MCP displays clinical features of dementia, and that she is unable to communicate, has Expressive Dysphasia (which is the loss of ability to produce language) and is disoriented in time, date and place. On the question of the history of MCP’s mental incapacity, Dr Wong said:
28.Dr CK Wong in his report reported that MCP scored 8 out of 30 in MMSE, which indicates she has severe dementia. He is of the opinion that MCP’s long term memory function is severely impaired and she suffers from aphasia. In view of her severe state of dementia, he considered MCP’s mental incapacity should have a history of at least five years, probably even longer. 29.Pursuant to the Judge’s direction given on 15 April 2015, the Official Solicitor had provided a report to the court on 18 May 2015. Among other matters, the Official Solicitor is of the view that:
The Judge’s decision 30.At the adjourned hearing on 15 June 2015, the intervener appeared in person. Being satisfied that MCP is a person who, by reason of her mental incapacity, is incapable of managing and administering her property and affairs, the Judge made an order appointing the applicant as the Committee. He dismissed the intervener’s application to dismiss the originating summons and, alternatively, to have him appointed as the Committee. The Judge also made an order nisi that the costs of the proceedings be paid out of MCP’s estate, save and except those costs caused by the intervener’s intervention shall be paid by the intervener to the applicant. On 18 June 2015, the Judge made further directions on the powers and authorities of the Committee. 31.Principally, the Judge considered that[2], in light of the 2nd and 3rd Wills, the POA and the EPA, the intervener was in a position of conflict of interest and it was inappropriate for him to act as the interpreter when MCP was examined by Dr Ip and Dr Chen. The fact that he was the interpreter affected the reliability of the two doctors’ medical certificates. The Judge was further of the view that their medical certificates could not colour the conclusions of Dr John Wong and Dr CK Wong who examined MCP on a later date. The Judge accepted Dr John Wong’s and Dr CK Wong’s reports, and found that MCP is incapable, by reason of mental incapacity, of managing and administering her property and affairs. The Judge pointed out that this finding has the effect of revoking the POA.[3] 32.Having regard to the assets owned by MCP, the Judge was further of the view that it is necessary to appoint a Committee to take care of her estate and to manage her expenses. He did not accept the intervener’s argument that with the EPA, there was no need to appoint a Committee. He pointed out that, the EPA, even if valid, only covered the Mei Foo Property and one bank account, but not all of MCP’s properties.[4] 33.As to who should be appointed as the Committee, the Judge agreed with the views of the Official Solicitor (see paragraph 29(3) above).[5] 34.The Judge further rejected the intervener’s arguments that there were various irregularities in the proceedings, including there was no consent from MCP to the commencement of the proceedings, the originating summons was not accompanied by any medical certificate, and it was wrong to commence the proceedings by way of ex parte originating summons. He pointed out that the consent of MCP was not a prerequisite to the commencement of the proceedings and that it was understandable and excusable that no medical certificate was filed together with the originating summons because the applicant did not have MCP’s address and could not have arranged for MCP to be medically examined.[6] The Judge further noted that as the applicant did not know MCP’s address, he could not have served the originating summons on her, and that subsequently the papers were served on her by substituted service (see paragraph 20 above). Accordingly, any irregularity that may arise from the use of ex parte originating summons has been cured by the service of the papers on all the relevant parties.[7] Grounds of appeal 35.In his notice of appeal, the intervener raises the following grounds of appeal:
Discussions 36.I will deal with Ground (5) first. The written declaration referred to was annexed to the notice of appeal as Attachment A. The intervener accepts that this document has all along been in his possession, and that it was not in evidence before the Judge. He asks for permission to use the document in this appeal. Quite apart from the fact that the intervener has not made a proper application by taking out a summons, his application to adduce this document as new evidence in the appeal is bound to fail. 37.The law on adducing new evidence on appeal is trite. The applying party must satisfy three conditions, namely, (1) the evidence could not have been obtained with reasonable diligence for use at the trial; (2) the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; and (3) the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible: Ladd v. Marshall [1954] 1 WLR 1489. 38.The intervener admitted that the written declaration has all along been in his possession, and he chose not to put it in evidence before the Judge. Clearly, the first condition is not met. The fact that the written declaration purported to give all of MCP’s properties to the intervener to the exclusion of the applicant and Mui will not prevent the court from appointing a committee to manage and administer MCP’s properties and affairs, and/or appointing the applicant as the Committee. The written declaration would not have assisted the intervener’s appeal. The second condition is also not met. Moreover, in the light of the evidence of Dr John Wong and Dr CK Wong on MCP’s mental capacity, which the Judge accepted, the validity and reliability of this declaration is very much in doubt. 39.For these reasons, the intervener should not be allowed to introduce and rely on the written declaration in this appeal. In any event, there is no merit in Ground (5). 40.I now turn to the other grounds of appeal. Under Ground (1), the intervener complained that the hearing of 15 June 2015 took place on short notice. However, this hearing date was fixed and announced at the hearing on 26 May 2015 in his presence (see paragraph 21 above). It is also irrelevant that all the family members were not present at the hearing as there is no requirement that the appointment of committee must take place in the presence of all the family members. Ground (1) therefore fails. 41.Ground (2) is a complaint that the proceedings below were irregular for three reasons. The first is the use of ex parte originating summons as the originating process. It is argued that the applicant should have used the form of originating summons prescribed as Form No 8 in Appendix A of the Rules of the High Court, Cap. 4A. 42.Section 7(4) of MHO provides that an application or an inquiry under section 7 shall be made by an originating summons within the meaning of the Rules of the High Court and the Rules shall apply accordingly. Under Order 7 rule 2(1) of the Rules of the High Court, originating summons may either be in the form of Form No. 8, Form No. 10 (expedited form) or Form No. 11 (ex parte originating summons) in Appendix A. Rule 2(1C) further provides that an ex parte originating summons is to be used if there is no party on whom the summons is to be served. The intervener argued that service on MCP is required by section 8(1) of the MHO; hence the use of ex parte originating summons is irregular. 43.The intervener’s argument has overlooked Practice Direction 30.1 on Applications under Part II of the MHO (“PD 30.1”). §§2.04 and 2.05 of PD 30.1 provide that at the initial stage of the application for an inquiry, it would be appropriate to apply ex parte for directions, and the application should adopt the format of Annex A, which is an ex parte originating summons. The ex parte originating summons issued by the applicant has adopted the format in Annex A to the Practice Direction. There is no irregularity in this regard. 44.In his oral submission, the intervener insisted that the use of ex parte originating summons was wrong, contending that the present case is different from the case of In Re Madam A (unreported) HCMP 44/2004 referred to in PD 30.1, and that MCP should have been named as a respondent. I do not accept the argument. The application of PD 30.1 does not depend on whether a case is factually similar to or different from In Re Madam A. There is also no good reason why MCP has to be named as a respondent in the proceedings. 45.The intervener’s second reason for contending there were irregularities in the proceedings is that the originating summons was not accompanied by any medical certificate on MCP’s mental condition and capacity. He relies on section 7(5) of the MHO, which provides that an application or inquiry shall be accompanied by two medical certificates. 46.In my view, the Judge was correct, when dealing with this argument, to note that because the applicant had difficulties accessing MCP and was not informed of the address of the nursing home of MCP, he would not have been able to arrange medical examination of MCP. The intervener argued that the applicant knew that MCP was living at the Mei Foo Property. However, it is clear from the evidence before the Judge that the applicant was prevented by Mui and the intervener from visiting or contacting MCP. It does not matter whether this was because MCP did not want to see the applicant, as the intervener said, or because of intervention by Mui or the intervener, as the applicant suggested. Further, the correspondence exchanged between the applicant’s solicitors and the intervener’s former solicitors also shows that the applicant had been asking the intervener for the address of the nursing home where MCP was staying, but to no avail. 47.Although the requirement in section 7(5) of the MHO has not been observed, this does not render the proceedings a nullity. It will not lead automatically to the dismissal of the application for inquiry, as the intervener seems to suggest. The court may, in appropriate cases, waive the non-compliance. In this instance, the Judge considered the non-compliance to be excusable, having regard to the difficulties the applicant had in arranging medical examination of MCP. This is a view that the Judge was entitled to take on the evidence before him. In any event, medical reports on MCP’s mental capacity were subsequently ordered and obtained. I am not persuaded that the Judge erred in his decision to proceed with an inquiry of MCP’s mental capacity or to appoint the Committee. 48.The third irregularity that the intervener complained of relates to the validity of the ex parte originating summons. The intervener argued that the ex parte originating summons only had a duration of 12 months, that it expired on 31 December 2014 and had not been extended or renewed. Accordingly, he said, the originating summons should have been dismissed. 49.Order 6 rule 8 of the Rules of the High Court provides that a writ is valid for 12 months, and the court may extend its validity for up to 12 months. Order 7 rule 6 provides that Order 6 rule 8 shall apply to an originating summons as it applies in relation to a writ. Order 7 rule 7, however, provides only for the application of Order 7 rules 2(1) and (1C), 3(1), and 5(1) to an ex parte originating summons. It expressly excludes the application of the other rules of Order 7, which include rule 6, to an ex parte originating summons. The provision on validity of a writ under Order 6 rule 8 therefore has no application to an ex parte originating summons. The intervener’s complaint that the validity of the ex parte originating summons in HCMH 83/2013 expired on 31 December 2014 and should be dismissed is misplaced. 50.In short, Ground (2) fails. 51.Ground (3) concerns the suitability of the applicant to be appointed as the Committee. The intervener’s arguments are a mere repetition of the criticisms he made against the applicant in the proceedings below. They had been looked into by the Official Solicitor, who advised that the intervener had provided no concrete evidence supporting his allegation of misappropriations by the applicant. The Judge had also considered the intervener’s complaints against the applicant, and came to the same view as the Official Solicitor. In my view, on the evidence before him, including the Official Solicitor’s report, it is open to the Judge to conclude that the applicant is a suitable person to be appointed as the Committee. The intervener has failed to demonstrate that the Judge was plainly wrong in his conclusion, which is a high threshold. There is no merit in Ground (3). 52.I turn finally to Ground (4). Under this ground, the intervener is effectively challenging the Judge’s decision not to rely on the medical certificates of Dr Ip and Dr Chen, and to accept and rely on the opinions of Dr John Wong and Dr CK Wong, and his finding that MCP suffers from mental incapacity. It is trite that assessment of evidence and making finding of facts is a matter for the trial judge. The appellate court will not interfere unless it can be demonstrated that the judge is plainly wrong. The intervener therefore faces a high hurdle under this ground of appeal. 53.The intervener’s primary argument is that Dr Ip and Dr Chen had certified MCP to be mentally sound and capable. However, it is the Judge’s considered view that the reliability of the medical certificates of Dr Ip and Dr Chen is adversely affected by the fact that the intervener acted as the interpreter when MCP was examined by the two doctors. This is because the intervener has a conflict of interest by reason of the 2nd and 3rd Will, the POA and the EPA. This is a view open to the Judge to take on the evidence before him. The intervener asserted that he only interpreted the doctors’ questions and MCP gave her answers by hand signs, in writing or orally, and that the doctors did not object to him acting as the interpreter. Even if this is the case, it does not show that the Judge erred in his assessment of the reliability of the medical certificates of Dr Ip and Dr Chen, and in not acting on them. 54.In my view, on the totality of the evidence in the case, the Judge was correct to prefer the opinions of Dr John Wong and Dr CK Wong to those of Dr Ip and Dr Chen. In the first place, Dr Ip’s certificate is very brief. Apart from stating MCP’s score in the MMSE, it did not state what other examination or test had been conducted on MCP. Nor did it set out Dr Ip’s clinical findings and her own opinion on MCP’s mental state. Instead, it referred to Princess Margaret Hospital’s assessment that MCP was mentally fit to make a statement for her application for disability allowance. Importantly, too, despite the score of 18/30 in the MMSE, which Dr John Wong pointed out is indicative of the onset of dementia, Dr Ip suggested that it was an underscore because of the language barrier. As the Judge rightly observed, she has given no basis for that suggestion. It is also noteworthy that despite the score of 18/30, Dr Ip proceeded to certify in the EPA on the same day that MCP was mentally capable to make the EPA. 55.As for Dr Chen’s certificate, it is even shorter. It did not indicate what examination had been carried out, the doctor’s clinical findings and the basis upon which she was satisfied that MCP was mentally sound and capable. 56.By contrast, the reports of Dr John Wong and Dr CK Wong are detailed. They explained the doctors’ opinions by reference to examinations carried out and clinical findings. 57.Furthermore, both Dr John Wong and Dr CK Wong found MCP to be in severe state of dementia. It is Dr CK Wong’s opinion that MCP suffered from mental incapacity for at least five years. Dr John Wong also said that in the normal course, dementia took years to develop, and that it is unusual to have the kind of rapid deterioration that seemed to have happened to MCP. Implicit in his comment is his surprise that MCP was said to have been mentally sound and capable when examined by Dr Ip six months ago, and when examined by Dr Chen three months ago. These are powerful observations which put in doubt the reliability of the medical certificates of Dr Ip and Dr Chen. 58.In short, the Judge was not wrong, let alone plainly wrong, in accepting the opinions of Dr John Wong and Dr CK Wong, and in his finding that MCP has been suffering from mental incapacity. Ground (4) has no merit. 59.For the reasons stated above, I would dismiss the intervener’s appeal. Costs 60.The usual rule is for costs to follow the event. The intervener however argued that, even if he fails in the appeal, he should not be ordered to pay the costs because on the basis of the EPA, he was entitled to contest the applicant’s application. I do not accept the argument. First, in the light of the Judge’s acceptance of Dr John Wong’s and Dr CK Wong’s medical opinions and his conclusion on MCP’s mental capacity, it is simply not open to the intervener to rely on the EPA as justifying the pursuit of this appeal. Second, and more importantly, in bringing this appeal, the intervener is obviously seeking to advance his own interest, rather than protecting MCP’s interest. There is thus no reason to depart from the usual costs order. I would order the intervener to pay the applicant the costs of this appeal. 61.The applicant’s solicitors have provided a statement of costs for summary assessment. The total amount of costs claimed is $109,540. The intervener says that the amount is excessive. This is not a complex appeal. The documents and the argument are substantially the same as those in the hearing below. I am of the view that the time incurred by the solicitor on perusal of documents and counsel brief fee should be adjusted downwards. Taking a broad brush approach, I would summarily assess the applicant’s costs of this appeal at $85,000. Disposition 62.For the reasons set out above, I would order that:
Miss Yanky Lam, instructed by Charles Yeung Clement Lam Liu & Yip for the applicant. The intervener, unrepresented, appeared in person. [1] It would appear from the dates stamped on the document (Appeal Bundle p.151) that the Social Welfare Department’s request for assessment was received by the hospital on 11 December 2013, and the department received the hospital’s reply memo on 16 December 2013. This together with the date of the department’s requesting memo (i.e. 15 November 2013) suggest that the date put down on the hospital’s reply memo (i.e. 11 October 2013, Appeal Bundle p.152) is a mistake. Further, although Dr Ip stated in her certificate that the doctor who signed the memo is Dr CF Lo, it would appear from the document that it should be Dr CF Ko. [2] Judgment §31. [3] Judgment §33. [4] Judgment §§34 and 35. [5] Judgment §37. [6] Judgment §§39 and 40. [7] Judgment §41. | ||||||||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under CACV 162/2015