Re A

CACV 88/2011,
CACV 111/2012 and
HCMP 839/2015
(Heard together)

CACV 88/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 88 OF 2011

(ON APPEAL FROM HCAL NO. 116 OF 2010)

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CACV 111/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 111 OF 2012

(ON APPEAL FROM DCEC NO. 199 OF 2011)

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HCMP 839/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 839 OF 2015

(ON AN INTENDED APPEAL FROM HCAL NO. 141 OF 2013)

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________________________

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DECISION

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Hon Cheung JA:

1.The issue that the Court has now to determine in these three cases is whether the applicant is a person under disability and is required by Order 80 Rule 2(2) of The Rules of the High Court (Cap 4A) to be represented by a next friend or guardian ad litem who in turn must act by a solicitor under Order 80 Rule 2(3) of The Rules of the High Court.

2.Under Order 80 Rule 3(5), where, after any proceedings have been begun, a party to the proceedings becomes a mentally incapacitated person, an application must be made to the Court for the appointment of a person to be next friend or guardian ad litem, as the case may be, of that party.

3.The mental state of the applicant was disclosed by herself in her written submissions for leave to appeal to the Court of Final Appeal in CACV 88/2011 which caused the Court to raise this issue.  As the applicant has brought two other cases, namely, CACV 111/2012 (an appeal against the decision of the District Court and where the applicant has issued 17 summonses seeking various relief) and HCMP 839/2015 (an application for appeal out of time against the refusal to grant leave for judicial review) which are also pending before this Court, this Court directed these three cases are to be heard together for the issue to be determined.

4.In the medical report of Dr Poon dated 27 June 2016 the applicant was stated to have been admitted to the Shatin Hospital for treatment of depression and Dr Poon described her as a mentally incapacitated person within the meaning of the Mental Health Ordinance (‘MHO’) (Cap 136).  Dr Wong in the report of 9 August 2016 further confirmed that the applicant is a mentally handicapped person. 

5.Order 80 Rule 1 defines a ‘person under disability’ as ‘a person who is ……a mentally incapacitated person’.  It then defines ‘mentally incapacitated person’ to mean:

‘ … a mentally disordered person or a mentally handicapped person (within the meaning of the Mental Health Ordinance (Cap. 136)) who, by reason of mental disorder or mental handicap, as the case may be, is incapable of managing and administering his property and affairs.’

6.By section 2 of the MHO, ‘mentally handicapped person’ is defined as ‘a person who is or appears to be mentally handicapped’, and ‘mental handicap’ is defined to mean:

‘ …a patient or a mentally handicapped person.  Patient is defined as ‘a person suffering from or appearing to be suffering from mental disorder’.

Mental disorder is in term defined as:

‘ (a) mental illness;

(b)   a state of arrested or incomplete development of mind which amounts to a significant impairment of intelligence and social functioning which is associated with abnormally aggressive or seriously irresponsible conduct on the part of the person concerned;

(c)   psychopathic disorder; or

(d)   any other disorder or disability of mind which does not amount to mental handicap.’

7.In view of the opinions of Dr Poon and Dr Wong the applicant comes within the category of a person under disability.  The applicant disputed the two doctors’ description of her as a mentally incapacitated person and we have granted her time to adduce medical evidence to challenge Dr Poon and Dr Wong’s opinion.  However, to date she has not been able to do so.

8.As the applicant is unable to successfully challenge the medical opinions, the only course open to this Court is to stay the proceedings in these three cases until such time as she is no longer a person under disability or when she is represented by a next friend or guardian ad litem.

Hon Chu JA:

9.I agree with the reasons given by Cheung JA and the order proposed in paragraph 8 above.

Hon Poon JA:

10.I agree.

The applicant appeared in person in CACV 88/2011, CACV 111/2012 & HCMP 839/2015

Mr Victor Gidwani, instructed by Chan & Chan, for the 3^rd respondent in CACV 111/2012

Ms Evelyn Tsao GC, of Department of Justice, for the 1^st putative respondent in HCMP 839/2015