Yau Ling Chee By Her Next Friend Chan Wai Ping Karina v. Chan Fai

HCMP 2737/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2737 OF 2016

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JUDGMENT

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I. INTRODUCTION

1.Yau Ling Chee (“P”) is 89 years old. In/about 1964, P married Chan Shing (or Sing) (陳成) (“Chan Sr”). P had two stepsons being Chan Sr’s sons from his previous marriage, ie the elder Chan Pun Sin (陳本善) and the younger Chan Fai (“D”). Over the years Chan Wai Ping Karina (“NF”) understood from P that she was adopted by P’s family in Mainland China when she was an infant.[1]  NF claimed P suffered from multi-type dementia and deafness, and P was/is a person under disability.

2.On 13 October 2016, P commenced the present proceedings by originating summons (“OS”) against D under section 41 of the High Court Ordinance Cap 4 (“HCO”) and Order 24 rule 7A of the Rules of the High Court (“RHC”) for pre-action discovery and inter alia the following reliefs:

(a)   within 14 days of the order to be made D do make and file an affidavit stating whether the documents specified in the schedule thereto were, or any time have been, in his possession, custody, or power; and (if the documents or any of them have been, but are not now, in his possession, custody, or power) when he parted with them and what has become of them;

(b)   within 21 days of the order to be made D do produce the said documents (insofar as they are within his possession, custody, or power) for inspection by the P’s solicitors and/or NF.

3.The 2 documents listed in the schedule to the OS (“Requested Documents”) were (a) P’s will purportedly made in 2008 (“P’s 2008 Will”) referred to in paragraph 42 of the Social Enquiry Report dated 30 August 2013 (“SE Report”)[2] prepared by the Director of Social Welfare (“DSW”) for NF’s application for guardianship over P (“Guardianship Application”) made to the Guardianship Board (“Board”), and (b) power of attorney purportedly made by P in favour of D (“P’s 2008 PA”) referred to in paragraph 42 of the SE Report.

4.On the same day, P filed NF’s affirmation in support of the Summons (“NF Aff”).  On 14 October 2016, P also filed the Notice of Appointment to Hear OS (“Notice”) that sought the same reliefs as in the OS.

5.On 18 October 2016, the Director of Legal Aid (“DLA”) filed a Memorandum of Notification of an Application for Legal Aid that gave notice D had applied for legal aid.

6.On 25 October 2016, D’s solicitors filed acknowledgement of service giving notice of intention to defend.

7.On 29 November 2016, by consent Chung J granted directions for D and P to respectively file affirmation in opposition and affirmation in reply, and for the OS to be adjourned for argument on a date to be fixed.

8.On 6 December 2016, D filed Notice to Act in Person.

9.On 12 December 2016, DLA filed a Memorandum of Notification that a Party Has Been Refused Legal Aid that gave notice he had refused D legal aid.

10.On 13 December 2016, P’s solicitors attended before the Listing Clerk (but D was absent) to fix the adjourned hearing for argument in respect of the OS. The OS was scheduled to be heard on 25 May 2017 before this court (“Hearing”).

11.D did not file/serve any affirmation in opposition pursuant to the order of Chung J, but attended the Hearing. He orally applied to adjourn the Hearing since (a) he could not afford legal representation, (b) on 18 May 2017 he appealed against the DLA’s refusal of legal aid, and (c) such legal aid appeal was pending. Mr Leung, counsel for P, opposed the application for adjournment. At the Hearing, after hearing submissions from D and Mr Leung, I refused D’s application for adjournment and the Hearing proceeded.

12.I note the 42 days’ legal aid automatic stay of proceedings pursuant to section 15 of the Legal Aid Ordinance Cap 91 and regulation 7A of the Legal Aid Regulations Cap 91A had expired, and irrespective of the outcome of D’s legal aid appeal there was no statutory bar to proceeding with the Hearing. I further note the DLA refused D legal aid in December 2016, and no explanation was forthcoming from D as to why he did not appeal against such decision until 18 May 2017 (ie a week before the Hearing). Further, D did not file any affirmation in opposition even though (a) the order for directions by Chung J were made by consent and (b) D was legally represented at the time. D must have been aware of the directions for filing/serving affidavit in opposition. Further, given the nature of the reliefs sought in the OS (ie request for documents rather than claim for substantive relief), D’s awareness of the nature and subject matter of the present proceedings (given that he was formerly legally represented) and service of Chinese translation of Mr Leung’s skeleton submissions on D shortly before the Hearing which would aid either D’s understanding or his seeking assistance to understand P’s stance, I see no sound or persuasive reason to adjourn the Hearing. For all of the above reasons, I directed the Hearing to proceed.

II.  NF AFF

13.General background  NF claimed that in/about 1963 P brought her (who was then about 7 years old) to live and study in Hong Kong. Since then NF lived with P and Chan Sr (“Parents”) as her adopted parents. Before NF’s marriage in 1998, she lived with the Parents for over 30 years (except 1991-1994 when she emigrated to Canada). She claimed her relationship with the Parents had always been good. After her marriage, NF (and sometimes her husband) visited the Parents at their home at least once a week, and this lasted until about June 2011 when the Parents moved to live with D (who, to NF’s frustration, prevented her from contacting them). 

14.2001 wills  NF claimed her close relationship with the Parents was demonstrated by the fact the Parents appointed her as alternative executrix when they made their wills in 2001:

(a)   P executed her will on 10 November 2001 (“P’s 2001 Will”) that provided inter alia (i) Chan Sr was sole executor and trustee of the will but if he predeceased P (or died without having proved the will) NF was appointed as sole executrix and trustee of the will (clause 1), (ii) if Chan Sr survived P her entire estate would be left to him (clause 2), and (iii) if Chan Shing predeceased P her entire estate would be left to Chan Pun Sin, D and NF in equal shares (clauses 3-4);

(b)   Chan Sr executed his will on the same day (“Chan Sr’s 2001 Will”) that provided inter alia (i) P was sole executrix and trustee of the will but if she predeceased Chan Sr (or died without having proved the will) NF was appointed as sole executrix and trustee of the will (clause 1), (ii) if P survived Chan Sr his entire estate would be left to P (clause 2), and (iii) if P predeceased Chan Sr his entire estate would be left to Chan Pun Sin, D and NF in equal shares (clauses 3-4).

15.On 10 November 2001, (a) P also executed a general power of attorney (“PA”) appointing NF to be her attorney in accordance with section 7 of the Powers of Attorney Ordinance Cap 31 (“PAO”), and (b) Chan Sr also executed a general PA appointing NF to be his attorney in accordance with section 7 of the PAO.

16.P’s mental condition  NF claimed the available factual/medical evidence showed P is now mentally incapacitated, and it was likely that she suffered from dementia since about 2004.

17.The relevant factual evidence was largely observations by NF and other family members:

(a)   In/about 2004, NF visited P about 2-3 times a week, so NF had clear impression of P’s mental condition even though she did not live with P. NF found P to have hearing/memory problems. P was noticed to talk irrelevantly,[3] and there were occasions when P was found talking to the air while alone in the washroom. In 2004, NF brought P to consult a geriatrician Dr Siu Kim Ying (“Dr Siu”) and was told P had a “brain degeneration condition” for which Dr Siu prescribed medication (Nootrophil) in the hope of slowing down the degeneration process.

(b)   From 2004 to 2006, P’s mental condition visibly deteriorated as she often (day and night) shouted at home, became disoriented in time, was more and more forgetful,[4] and was unable to learn new things. There was an incident when P shouted at Chan Sr and threatened to chop him to death.

(c)   In/about 2007, P started to develop urinary incontinence followed by double incontinence. She could not take bath by herself or do simple housework, and she forgot to turn off the stove when boiling water. Sharp objects were locked up to protect P from hurting herself. At about this time P started to talk about an imaginary “boy” who invited her to go out for tea, and there were 2 episodes when she left home to meet the “boy” for tea when Chan Sr was asleep.

(d)   There were 2 occasions between 2005 and 2011 when P left home on her own, could not find her way back, and was finally found wandering on the streets.

(e)   In/about 2008, P underwent an assessment by the Social Welfare Department (“SWD”). According to the SWD’s Notification of Assessment Result dated 13 March 2008, P had short-term memory and hearing/visual problems, and was considered to be in need of daytime care service at a “Care & Attention Home”.

18.The relevant medical evidence was essentially reports by various doctors:

(a)   On 13 June 2012, P was admitted to Kwong Wah Hospital (“KWH”) because of abnormal behaviour. CT brain scan showed “gross cerebral atrophy”, and P was provisionally diagnosed to suffer from senile dementia.[5]

(b)   In late September 2012, P was examined by psychiatrist Dr Chiu Siu Ning (“Dr Chiu”), and paragraph 24 of his report dated 10 October 2012 concluded that P suffered from dementia. At paragraphs 26-29 of his report, Dr Chiu further explained as follows:

“26. The dementia illness may have its onset as early as in 2004. It runs a continuous downhill course in the subsequent years. Clinically speaking, the appearance of double incontinence and the loss of self care ability signify a severe grade of dementia.

27. During the visit to [P] on 25 September 2012, it is obvious that she has disorientation in person and poor short-term memory. She forgets things that are told to her a few minutes ago and so, would keep on asking the same question again and again despite answer has been given.

28. Since dementia is an irreversible, progressive degeneration illness of the brain, any treatment offered only serves to slow down the degeneration process; thus, I consider it is nearly impossible for [P’s] mental condition to get recovered.

29. In view of [P’s] current mental condition, I consider her mentally incapable of taking care of herself and incapable of taking care of her own affairs. She is unable to communicate with other people. She is unable to give instructions. She is a person under disability.” (my emphasis)

(c) According to a medical report by Dr Li Yuen-mei Emmy of the Hong Kong Eye Hospital dated 24 January 2013, P was “noted to be [sic] have severe hearing difficulty with poor ability for communication” as early as December 2006.

(d) P was examined by Dr Chiu again on 31 July 2013 for the Guardianship Application, and his report dated 1 August 2013 stated P was suffering from (a) mixed-type dementia for 9 years which condition was progressively deteriorating (paragraphs 7-9), and (b) a mental disorder of a nature or degree which warranted her reception into guardianship (paragraph 10). Dr Chiu was also satisfied that such disability limited P’s capacity to make decision in respect of all or a substantial proportion of matters relating to her personal circumstances:

“[P] has poor memory, double incontinence, and is unable to take care of herself. CT scan brain in June 2012 showed infarcts and atrophy. An updated CT scan brain in July 2013 showed atrophy and chronic ischemic change. MMSE cannot be conducted because of bilateral deafness.”

Dr Chiu opined P’s mental disability limited her capacity or ability to manage finances, and “[it] is expected that [P] will continue run a downhill course in terms of her dementia illness” (paragraphs 13 and 14(b)).

(e) P was examined by psychiatrist Dr Ng Kong Man (“Dr Ng”) on 9 and 31 July 2013 for the Guardianship Application, and in his report dated 1 August 2013 Dr Ng concurred with Dr Chiu that P was suffering from mixed-type dementia for 9 years which condition was progressively deteriorating (paragraphs 7-9). Dr Ng was also satisfied that such disability limited P’s capacity to make decision in respect of all or a substantial proportion of matters relating to her personal circumstances (paragraph 10):

“She has memory decline for some 9 years, becoming disturbing in behaviour in recent years. Confused at night. With deteriorated self-care and her Activity of Daily Living became dependent. CT scan of brain found atrophy and chronic ischemic changes. Her bilateral deafness limited detailed mini-mental state examination. Her contact with reality is far from satisfactory”.

Dr Ng confirmed P’s prognosis was poor, and her mental disability limited her capacity or ability to manage finances (paragraphs 13 and 14(b)).

(f) On 6 September 2013, Dr Chiu prepared a supplemental report after interviewing and obtaining information from P’s niece Ms Yau Kit Hung (“Niece”): (i) P suffered bilateral deafness for more than 30 years and since 2004 her deafness had become so severe it could not be alleviated by a hearing aid and the Niece had to communicate with her through non-verbal means, (ii) since 2004 the Niece noticed that P talked irrelevantly,[6] P’s memory was impaired[7] and P confused names of her grandchildren, (iii) Chan Sr told the Niece P suffered from “brain degeneration” for which she had already consulted a doctor and Chan Sr gave her daily medication, and since 2004 Chan Sr did nearly all the housework, (iv) there was an occasion between 2004 and 2006 when P visited her friends living several blocks away and could not find her way back home so Chan Sr and the Niece had to look for her and finally found her wandering aimlessly, and (v) since 2007 P started to have urinary incontinence, and one day in 2008 when travelling with the Parents by bus the Niece observed P had faecal incontinence (paragraphs 4-8). Dr Chiu concluded the Niece’s description fit the portrait of one suffering from dementia (paragraph 9), and stated in paragraphs 14 and 18 of the supplemental report as follows:

“14. In [the Niece’s] description [P’s] mental abnormality has its onset in 2004. It follows exactly the typical deterioration pattern of a Dementia illness. Since double incontinence was present by 2008, I believe [P’s] Dementia has reached a moderate severity at that time.

……

18. Here I want to emphasize that:

i. Dementia illness is a progressive deteriorating disease. Once it sets in, the course is irreversible.

ii. A patient suffering from moderate grade of Dementia is highly likely has her memory, concentration and judgment ability jeopardized. It may be difficult for her to make rational decisions, to balance the pros and cons of a significant move and to recollect what she has decided.” (my emphasis)

19.Legal action against D’s wife  NF said that on 7 November 2012 P by NF as her next friend brought legal proceedings in the District Court (DCCJ 3910/2012, “DCt Action”) against D’s wife Ng Sui Hsin (伍瑞芯) (“Ng”) over a property known as 4^th Floor of No. 125 Parkes Street, Kowloon, Hong Kong (“Property”). According to the land search records, the Parents purchased the Property as joint tenants for $29,500 on 23 February 1970, and on 16 July 1976 Chan Sr sold his share of the Property to P for $29,500 and P became the sole owner thereof. NF claimed that by a purported Assignment dated 15 November 2010 and registered at the Land Registry by Memorial No. 10121000680352 (“Assignment”), P purportedly sold the Property to Ng for $500,000. NF complained that:

(a)   at the time of making the Assignment in late 2010 (i) P was deaf, of unsound mind and incapable of understanding the meaning or effect of the Assignment, and (ii) P’s disability would have been obvious to D/Ng (see paragraphs 17-18 above);

(b)   the Property was sold at an undervalue because its estimated market price at the time of the Assignment was about $2,300,000;

(c)   Ng failed to pay the purchase money of $500,000 to P.

20.In the DCt Action, P sought (a) rescission of the Assignment and return of the Property or (b) alternatively, payment of the purchase price of $500,000. At the time of the NF Aff, the DCt Action was still ongoing and had not yet gone to trial.

21.2008 wills and PAs  In early August 2013, NF (as P’s adopted daughter) made the Guardianship Application for her appointment as guardian over P (who had suffered from dementia for a long time) as NF was concerned that P had not been receiving adequate care (or had suffered from some maltreatment) at the elderly home where D placed her. NF claimed she wanted to safeguard P’s welfare by moving her to an elderly home with better quality and accessibility, and in light of the purported Assignment in 2010 wished to protect P’s assets from D’s exploitation.

22.The SWD interviewed both NF and D for DSW to prepare the SE Report[8] for the Guardianship Application. Upon reading the SE Report, NF discovered for the first time from paragraph 42 thereof that the Parents apparently executed new wills and PAs in 2008:

“[D] said he was responsible to take care of [P] and his late father as there was a will set in 2008 that the latters had appointed [D] to be their attorney in accordance with the [PAs]. [D] said he would continue to handle [P’s] welfare issues as his late father had delegated him to do so and he had been doing so since they moved to live with him in June 2011.” (my emphasis)

Up until then, NF thought the Parents’ valid wills were P’s and Chan Sr’s 2001 Wills (see paragraph 14 above).

23.By a decision dated 11 July 2014, the Board dismissed the Guardianship Application as it was not convinced there were serious problems with the care provided to P.

24.Chan Shing passed away on 25 May 2013. As NF had learned from the SE Report that Chan Sr had made Chan Sr’s 2008 Will, so NF wrote to the Probate Registry on 6 November 2013 to seek a copy of the grant of probate in respect of the estate of Chan Sr.[9] On 30 November 2013, the Probate Registry provided NF with a copy of such grant but not a copy of Chan Sr’s 2008 Will dated 18 March 2008. NF’s then solicitors Lee Wong & Co (“LWC”) wrote to D’s solicitors So, Lung & Associates (“SLA”) to seek a copy of Chan Sr’s 2008 Will. On 8 March 2015, SLA provided a copy thereof to NF. It appeared Chan Sr’s 2008 Will provided D was appointed as sole executor and trustee (clause 1) and his entire estate was left to D (clause 2), which provisions were in stark contrast to the terms of Chan Sr’s 2001 Will in that P, Chan Pun Sin, and NF were all completely cut out of Chan Sr’s 2008 Will leaving D as the only executor and beneficiary.

25.Given the provisions of Chan Sr’s 2008 Will, NF believed P’s 2008 Will (mentioned together with Chan Sr’s 2008 Will in the same breath in paragraph 42 of the SE Report) would be to similar effect, ie with Chan Sr, Chan Pun Sin, and NF cut out of the will and D being the only executor and beneficiary. But in light of P’s mental condition referred to in paragraphs 17-18 above, NF doubted whether P’s 2008 Will (and P’s 2008 PA also referred to in paragraph 42 of the SE report) were validly made by her, and whether P had the requisite mental capacity at the material time. If P did not, then P’s 2001 Will would be her valid will. NF claimed that given P’s mental condition referred to in paragraphs 17-18 above, P by herself could not have taken steps to (a) revoke P’s 2008 will or (b) execute a new will to replace P’s 2008 will.

26.NF was concerned that if D was the sole beneficiary of P’s 2008 Will and could also administer P’s affairs under P’s 2008 PA, then even if P succeeded in the DCt Action against Ng, it would be of little practical effect as D would be able (before P’s death) to control the Property and (after P’s death) to inherit the Property. NF therefore considered pre-action discovery of the requested documents would be directly relevant to the issues and necessary for commencement of possible legal action against D which would most likely be for declaratory relief as to the invalidity of the requested documents, and for consequent setting aside of such documents.

27.Further, NF reminded that the court has power under section 10B(1)(e) of the Mental Health Ordinance Cap 136 (“MHO”) to order execution of a statutory will for a mentally incapacitated person (“MIP”), and in deciding whether to order the execution of a statutory will and if so in what form, the court will take into account inter alia any existing wills made by theMIP. NF therefore claimed pre-action discovery of the Requested Documents would also be necessary for commencement of possible statutory will application in respect of P.

28.NF said both P and D were likely to be parties to these anticipated proceedings, and the Requested Documents were likely to be relied on as evidence in such proceedings, so they would be necessary for disposing fairly of such proceedings, increasing the probability of resolving the dispute without further proceedings, and saving costs. NF also believed D was likely to have or to have had the Requested Documents in his possession, custody, or power as paragraph 42 of the SE Report recorded that D mentioned to the SWD the contents of P’s 2008 Will/PA. NF therefore instructed her solicitors to send a letter dated 17 May 2016 to demand D to disclose the Requested Documents, but there was no reply.

29.Losing contact with P  NF lost contact with P since 18 November 2015 when D arranged to move P to another elderly home on 17 November 2015. Contrary to promises made during the Guardianship Application,[10] D refused to disclose P’s present whereabouts and disallowed other relatives and/or friends (including NF) from contacting P.

30.NF made written complaint to DSW on 25 November 2015 and followed up with SWD on this (including sending a letter to SWD dated 20 December 2015), but did not receive any reply. NF instructed her solicitors to write to SWD on 5 and 20 January 2016, and SWD replied on 18 January 2016 to say they were unable to disclose P’s residential address to any third party so as to protect the personal information of P who was a person on Comprehensive Social Security Assistance. NF felt it was unreasonable for D to prevent all relatives and/or friends to reach P. For all the above reasons, NF sought the reliefs in the OS.

III. LEGAL PRINCIPLES: PRE-ACTION DISCOVERY

31.Section 41 of the HCO provides as follows:

“(1) On the application, in accordance with rules of court, of a person who appears to the Court of First Instance to be likely to be a party to subsequent proceedings in that Court in which a claim is likely to be made, the Court of First Instance shall, in such circumstances as may be specified in the rules, have power to order a person who appears to the Court of First Instance to be likely to be a party to the proceedings and to be likely to have or to have had in his possession, custody or power any documents which are directly relevant to an issue arising or likely to arise out of that claim:

(a) to disclose whether those documents are in his possession, custody or power; and

(b) to produce such of those documents as are in his possession, custody or power to the applicant or, on such conditions as may be specified in the order:

(i) to the applicant’s legal advisers;

(ii) to the applicant’s legal advisers and any medical or other professional adviser of the applicant; or

(iii) if the applicant has no legal adviser, to any medical or other professional adviser of the applicant.

(2) For the purposes of subsection (1), a document is only to be regarded as directly relevant to an issue arising or likely to arise out of a claim in the anticipated proceedings if:

(a) the document would be likely to be relied on in evidence by any party in the proceedings; or

(b) the document supports or adversely affects any party’s case.”

32.The relevant procedure is found in Order 24 rules 7A and 8 of the RHC:

“7A (1) An application for an order under section 41 of the Ordinance for the disclosure of documents before the commencement of proceedings shall be made by originating summons (in Form No. 10 in Appendix A) and the person against whom the order is sought shall be made defendant to the summons.

……

(3) A summons under paragraph (1) or (2) shall be supported by an affidavit which must:

(a) in the case of a summons under paragraph (1), state the grounds on which it is alleged that the applicant and the person against whom the order is sought are likely to be parties to subsequent proceedings in the Court of First Instance;

(b) in any case, specify or describe the documents in respect of which the order is sought and show, if practicable by reference to any pleading served or intended to be served in the proceedings, that the documents are relevant to an issue arising or likely to arise in the proceedings and that the person against whom the order is sought is likely to have or have had them in his possession, custody or power.

(3A) In the case of a summons under paragraph (1), paragraph (3)(b) shall be construed as if for the word “relevant”, there were substituted the words “directly relevant (within the meaning of section 41 of the Ordinance)”.

……

(6) No person shall be compelled by virtue of such an order to produce any documents which he could not be compelled to produce:

(a) in the case of a summons under paragraph (1), if the subsequent proceedings had already been begun; or

(b) in the case of a summons under paragraph (2), if he had been served with a writ of subpoena duces tecum to produce the documents at the trial.

……”

“8 (2) No order for the disclosure of documents shall be made under section 41 or 42 of the [HCO], unless the Court is of opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs.”

33.In Zhang Shouen & anor v Standard Chartered Bank (Hong Kong) Ltd, G Lam J set out the 5 requirements for exercising the court’s power to order pre-action discovery:[11]

“(1) The applicant appears to be likely to be a party to subsequent proceedings in the court in which a claim is likely to be made. In order to satisfy the requirement that a claim is likely to be made, the applicant must show a claim “may” or “may well” be made if discovery is granted. [12]

(2) The respondent appears likely to be a party to such proceedings.[13]

(3) The respondent appears likely to have or to have had in his possession, custody or power the document requested.[14]

(4) The requested document is “directly relevant” to an issue arising or likely to arise out of that claim. “Direct relevance” is shown only if:

(a) the document would be likely to be relied on in evidence by any party in the proceedings; or

(b) the document supports or adversely affects any party’s case.[15]

(5) The applicant must satisfy the court that the order for pre-action discovery is necessary either for disposing fairly of the cause or matter or for saving costs.”[16]

34.For the 1^st requirement, it was said that “[having] regard to the purpose of the procedure, “likely to be parties” should be liberally construed to include the case where the bringing of the action may depend on the result of the discovery, provided that the claim has a reasonable basis and is not irresponsible or speculative.[17]

35.As regards the 4^th requirement, it must be noted that the test for relevance in the case of pre-action discovery is not on Peruvian Guano basis but on the basis that the requested document is “directly relevant to an issue arising or likely to arise out of a claim in the anticipated proceedings”, and it is only to be so regarded if it satisfies either of the 2 limbs under the 4^th requirement. On the first limb, whether the requested document would be “likely” to be relied on in evidence by any party in the proceedings had the same meaning as “may well” or “reasonable prospect”. On the second limb, the applicant has to show the requested document supports or adversely affects any party’s case, and not merely that it is likely to do so, but as the applicant has not seen the requested document, he can only be reasonably expected to prove this on a balance of probabilities.[18] Thus, the supporting

affidavit should set out “what the claim is, what issues arise or are likely to arise out of it, and how the document sought is directly relevant to such issues in the sense defined in s.41(2)”.[19]

36.As regards the 5^th requirement, Order 24 rule 8(2) of the RHC places the burden on the applicant to satisfy the court the order for pre-action discovery is not merely necessary, but that discovery before commencement of the action is necessary, eg where a key document is needed by the plaintiff before he can properly plead a potentially good claim,[20] bearing in mind the need to strike “a reasonable balance between the need to protect against harassment and fishing applications on the one hand and the need to enable a potentially  meritorious plaintiff to bring a claim which could not effectively otherwise be brought”.[21]

IV.  LEGAL PRINCIPLES: DECLARATORY JUDGMENT

37.Order 15 rule 16 of the RHC provides:

“No action or any other proceeding shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby, and the Court may make binding declarations of right whether or not any consequential relief is or could be claimed.”

38.In Dicks v Easy Finder Ltd, Cheung J (as he then was) explained this rule “is not confined to cases where the plaintiff has a cause of action; its effect is to give a general power to make a declaration, whether  there is a cause of action or not, at the instance of a party interested in the subject matter of the declaration”.[22]

39.Whilst the court’s discretion to make a declaration is wide and flexible and Order 15 rule 16 of the RHC should “receive as liberal a construction as possible”,[23] it would not be granted to a plaintiff whose claim is too indirect and insubstantial and would not give him relief in any real sense, ie relieve him from any liability or disadvantage or difficulty.[24] Further, the power to make declarations is confined to justiciable matters, ie declarations as to legal or equitable rights (and not moral, social or political matters).[25] Ultimately, the court will consider whether any useful purpose will be served by granting declaratory relief. In 曾婉玲 v 兆隆苑業主立案法團, HHJ Lam (as he then was) cited the principle summarised in Zamir & Woolf, The Declaratory Judgment, 2^nd ed para 4.087 as follows:[26]

“If it can be shown that a declaration would not serve any practical purpose, this will weigh heavily in the scales against the grant of declaratory relief. If, on the other hand the grant of declaratory relief will be likely to achieve a useful objective, the court will be favourably disposed to granting relief. The question of whether or not any useful purpose would be served by granting declaratory relief is therefore of prime importance in determining how discretion should be exercised.”

V.  LEGAL PRINCIPLES: STATUTORY WILL

40.Section 7(1) of the MHO provides that the Court of First Instance may make an order directing an inquiry whether a person who is alleged to be mentally incapacitated is incapable, by reason of mental incapacity, of managing and administering his property and affairs. Such order may also contain directions for inquiries concerning the nature of the property belonging to the person alleged to be mentally incapacitated, the persons who are his relatives or next-of-kin, the time during which he has been mentally incapacitated or such other questions as to the court shall seem proper.[27]At such an inquiry, the court shall decide whether the person who is alleged to be mentally incapacitated is incapable, by reason of mental incapacity, of managing and administering his property and affairs and shall also decide any other questions as to which an inquiry has been directed.[28]

41.I agree with Mr Leung, counsel for P, that under the mental health jurisdiction the court can consider whether or not to order the execution of a statutory will for the MIP. In section 10B(1)(e) of the MHO, the court has power to make such orders or give directions and authorities for “the execution for the [MIP] of a will making any provision (whether by way of disposing of property or exercising a power or otherwise) which could be made by a will executed by that person if he were not mentally incapacitated”. This means the court can order a new will to be made for the MIP.

42.In Re LLC (Statutory Will),[29] Poon J (as he then was) held that before the discretion in section 10B(1)(e) of the MHO is engaged, the court must have reasonable grounds on the evidence to believe the MIP lacks testamentary capacity, and then the court should consider if it should order a statutory will to be made. In deciding this question a paramount consideration is the requirements of the MIP, and in considering the proper contents of the will the court must make the will which the actual MIP, acting reasonably, would have made if notionally restored to full mental capacity, memory and foresight and with sound legal advice available, ie the “substituted judgment” approach.^[30] As Mr Leung reminded, a key factor for the Court to consider is whether, prior to becoming incapacitated, the MIP had given any indication as to how he wanted his property to be disposed of after death, eg the court will take into account whether the MIP had an existing will.[31]

VI.  INTENDED CLAIMS AGAINST D

43.From the NF Aff summarised in Part II above and in the absence of countervailing affirmation evidence from D, I find there was reasonable basis for NF (as P’s next friend) to contend that (a) P’s 2008 Will that P purportedly made was likely to contain terms that mirrored Chan Sr’s 2008 Will by shutting out Chan Sr, Chan Pun Sin and NF out of such will and D becoming the sole executor and beneficiary, and (b) at about the same time P purportedly made P’s 2008 PA in favour of D (which PA was mentioned in paragraph 42 of the SE Report). Further, given the evidence forthcoming from the NF Aff (see paragraphs 17-18 above) which showed P’s long-standing dementia condition, there was also reasonable basis to contend that P did not have the requisite mental capacity when she executed P’s 2008 Will/PA. And if that were so, then P’s 2001 Will would be her valid will.

44.At the Hearing, D submitted the available psychiatric reports and Mr Leung’s submissions were “一派糊言” because there was no basis to say P was mentally incapacitated prior to 2008, and it was only on 13 June 2012 that P was diagnosed by KWH to suffer from initial stage of “brain degeneration” (初步腦退化) (see paragraph 18(a) above). From the available medical records/report in relation to P’s hospitalisation in June 2012 at KWH, the provisional diagnosis was senile dementia. Whilst it was reported to the doctor at KWH that D had increasing memory loss for over 1 year and her abnormal behavior had been noted for more than 6 months, there was no evidence before this court that the doctors at KWH had diagnosed P was then at the “initial stage” of senile dementia. In his reports dated 10 October 2012 and 6 September 2013, Dr Chiu was well aware of P’s hospitalisation in June 2012, but from history taking from relatives, review of P’s medical records/report, his own clinical observations and his expert knowledge in relation to senile dementia, he opined that P’s dementia illness might have its onset as early as in 2004.

45.At the Hearing, D next complained Dr Chiu’s reports were irrelevant as they were prepared in 2012-2013, and the relevant person to speak to P’s mental capacity was the lawyer at SLA who attended P when she made P’s 2008 Will in 2008. I am not persuaded Dr Chiu’s reports were irrelevant merely because they were prepared in 2012-2013. Expert psychiatrists can exercise their skill and knowledge to opine on the aetiology of psychiatric illnesses. At this pre-action stage, the available medical evidence afforded a reasonable basis/prospect for potential actions as proposed by Mr Leung. D’s complaints were insufficient answer to P’s application.

46.Mr Leung further submitted that the question as to which one was P’s valid will was important because the answer would determine whether there was any point in continuing with the DCt Action. After all, if P’s 2008 Will/PA were valid, then the DCt Action would serve little purpose for D would be able to control the Property (before P’s death) and inherit the Property (after P’s death) even if P were able to rescind the Assignment of the Property to Ng, especially when P (given her progressively deteriorating dementia) would never be able to take steps to revoke P’s 2008 Will or execute a new will to revoke P’s 2008 Will. Mr Leung suggested (and I agree) there were reasonable basis/prospect and good practical consideration for P (through her next friend) to bring proceedings to challenge the validity of P’s 2008 Will/PA, which challenge could be mounted prior to P’s death by way of an action for declaratory relief or an application for statutory will.[32]

47.Normally, there is little point in seeking a declaration as to the validity of a will when the maker is still alive for the maker can simply make a new will at any time to revoke the existing will. But here, by reason of her progressively deteriorating dementia, P personally would not be able to make any new will to revoke earlier will(s). So the question boiled down to whether P’s 2001 Will or P’s 2008 Will would be her valid will. I agree that for the potential action for declaratory relief, it could reasonably be said a useful purpose would be served if the court were to declare P’s 2008 Will/PA were invalid for lack of mental capacity (if the court would so conclude on the evidence) for such declaration would be directly determinative of the question whether NF and Chan Pun Sin would have any interest in P’s estate upon her death, and whether, practically speaking, there was any point in continuing with the DCt Action. I accept there is at least reasonable basis/prospect for the intended action for a declaration as to the validity of P’s 2001 Will/PA.

48.In respect of the potential proceedings to seek execution of a statutory will, I agree that had an application been made for an inquiry under section 7 of the MHO, it would have been quite probable in light of the available factual/medical evidence for the court to conclude P was/is a MIP who was/is mentally incapable of managing and administering her property and affairs. On such basis, there was a reasonable basis/prospect that the court would give consideration to whether it would be appropriate to make a statutory will for P, and the court would need to know which was her existing will (ie P’s 2001 Will or P’s 2008 Will) in order to properly exercise its power under section 10B(1)(e) of the MHO. Indeed, as seen in Re LLC (Statutory Will), the existence of 2 conflicting wills is a relevant (though not determinative) factor in considering whether to order execution of a statutory will. Poon J (as he then was) said at p 23 as follows:

“12. Where two conflicting wills exist, and they will most likely lead to hostile, lengthy and costly probate litigation upon the patient’s death, which may deplete a sizeable portion of the estate, the court may, after having regard to all the circumstances, think that avoiding such eventuality by making a statutory will is in the patient’s interests and likely to be something that he would (if he had full mental capacity) himself wish to be done. ……

13. It should however be borne in mind that the existence of two competing wills is no more than a relevant factor. The court of protection has no jurisdiction to determine the validity of any existing will. …… So the court may well, after considering all the circumstances, decline to exercise its discretion to order a statutory will to be made and leave the validity of the will(s) to be disposed of in a probate action.

14. Here, the validity of the 2006 Will is hotly disputed.  Although I will not and cannot determine the validity of the 2006 Will, all the substantive issues on validity had already been fully canvassed in the inquiry concerning the contents of the statutory will.  It will be a huge waste of resources and time if I do not order a statutory will to be made now and leave the matters to be sorted out in a probate action, which seems inevitable, where the same evidence and submissions will be repeated.  Further, as demonstrated by the length of the present hearing, the probate action will be quite lengthy and expensive.  If LLC had full mental capacity, she would definitely wish to avoid such eventuality so as not to deplete a significant portion of her estate.  Ordering a statutory will to be made on her behalf in all the circumstances plainly serves her interests best.”

In my view, there was reasonable basis/prospect that ordering a statutory will for P might serve her best interest for it might avoid wasting time and resources in a probate action after her death.

VII. REQUIREMENTS FOR PRE-ACTION DISCOVERY

49.For the 1^st requirement, I am satisfied the 2 potential claims for declaratory relief regarding the validity or otherwise of P’s 2008 Will/PA and for making statutory will for P “may” or “may well” be made if pre-action discovery is granted. P and NF would likely be the parties for these potential claims, eg P by NF as her next friend would likely be the claimant in the action for declaratory relief (as in the case of the DCt Action), and NF[33] would likely be the applicant for an inquiry under section 7(1) of the MHO, and P being the relevant MIP and person for whom the statutory will was to be made would have to be served with such proceedings.

50.As for the 2^nd requirement, D would likely be the defendant in the potential action for declaratory relief as he was likely to be the sole executor and beneficiary of P’s 2008 Will and the donee of P’s 2008 PA. After all, his interests might be affected if such documents were declared invalid. For the potential enquiry under section 7(1) of the MHO[34] and/or application for statutory will under section 10B(1)(e) of the MHO, it would be likely that as P’s stepson, a beneficiary under P’s 2001 Will and probable sole beneficiary under P’s 2008 Will, D would be a party to such

proceedings for his interests would be directly affected by any statutory will that the court might make for P. I agree with Mr Leung that the court would likely require the relevant papers to be served on D and he would be given an opportunity to appear and be heard.[35]

51.For the 3^rd requirement, it was D himself who disclosed the existence of P’s 2008 Will/PA when interviewed by the SWD for preparation of the SE Report by the DSW, hence these documents were likely to be or had been within D’s possession, custody, or power. I bear in mind D’s former solicitors provided to NF’s solicitors a copy of Chan Sr’s 2008 Will. Indeed, D at the Hearing admitted P attended SLA to make P’s 2008 Will.

52.For the 4^th requirement, I am convinced the Requested Documents were directly relevant under the first limb in paragraph 35 above, ie they might well be or had a reasonable prospect of being “relied upon in evidence” by a party in the intended proceedings. P’s 2008 Will/PA would be the very subject matter of the potential action for declaratory relief. As the whole purpose of such potential action would be to determine the validity of the Requested Documents, they would necessarily be relied upon in evidence by the parties in the proceedings. As for the potential application for statutory will, NF as applicant would rely on the existence of 2 conflicting wills (ie P’s 2001 Will and P’s 2008 Will) as a relevant factor to argue that a statutory will should be made for P, and D would likely respond by asserting P’s 2008 Will was P’s last expression (before she became an MIP) of her testamentary wish to have D inherit her entire estate.

53.Mr Leung fairly pointed out that generally the applicant should, if practicable, explain the relevance of the documents by way of a pleading in the intended action. But as G Lam J explained at paragraph 44 in Zhang Shouen & anor, this is not an absolute requirement, and the more important question is whether the applicant has been able to sufficiently explain the relevance of the documents sought:

“44. In the present case no draft pleading in whole or in part has been produced. No explanation has been given why it was impracticable to supply it. Had the issues likely to arise been detailed in the affirmation itself, the lack of an exhibited draft pleading need not in my view be fatal. ……”

Here, I find the NF Aff was quite comprehensive in providing particulars of the intended claim/application, showing what issues are likely to arise, and how the documents sought are directly relevant to the issues.  In my view, the direct relevance of the Requested Documents was sufficiently clear even without a draft pleading.

54.For the 5^th requirement, NF had to show the Requested Documents were necessary for disposing fairly of the cause or matter or for saving costs. Mr Leung accepted that by reference to the Chan Sr’s 2008 Will NF had a fairly good idea of what the contents of P’s 2008 Will/PA were like, but it remained a matter of inference for NF who had never seen the Requested Documents since D had not responded to her requests for copies. If NF were to commence the potential action for declaratory relief or the potential application for inquiry under section 7(1) of the MHO (and for making a statutory will under section 10B(1)(e) of the MHO) upon reliance of the aforesaid inference without sight of the Requested Documents, there would be risk of wasting time/costs should it turn out that her inference was wrong and P/she had to withdraw such claim/application.[36] I therefore agree with Mr Leung that pre-action discovery of the Requested Documents would be necessary for saving costs and/or for disposing fairly of the cause or matter. Upon sight of such documents, NF would be in a position to make an informed decision as to whether to commence the intended proceedings.

VIII.  CONCLUSION

55.In the circumstances, I am satisfied that I should order pre-action discovery of the Requested Documents. There should be an order in terms of paragraphs 1-2 of the OS save and except that “Within 14 days of the order to be made” and “Within 21 days of the order to be made” shall be replaced by “Within 14 days of service of this order on the defendant” and “Within 21 days of service of this order on the defendant” respectively. P should submit draft order in English with Chinese translation attached for approval.

56.On the question of costs, by reason of section 43(1)-(2) of the HCO and Order 62 rule 3(12) of the RHC, the starting point is that the person against whom pre-action discovery is sought (eg D) is entitled to a costs order in his favour. But it had been said that “[where] the person against whom an order is sought is at fault, eg where he has been dilatory in replying to a proper request to disclose documents, the court may deny him his costs, or, in exceptional cases, order him to pay the applicant’s costs of the application”.[37]

57.Here, NF made 2 requests to D on 17 May 2016 and 10 March 2017 for the Requested Documents, but there was no reply from him. D even filed notice of intention to defend after the OS was served on him, but did not file any evidence in opposition. At the Hearing, he also raised objection to the reliefs sought in the OS. In the circumstances, I consider it appropriate to grant a costs order nisi that (a) there be no order as to costs of and occasioned by the OS (including all costs reserved if any), and (b) P’s own costs to be taxed in accordance with Legal Aid Regulations.

58.Should D require translation of this Judgment into punti language, he can contact my clerk to arrange an appointment for a court interpreter to verbally translate this Judgment to him at the High Court Building at a mutually convenient time. Hearing device shall be made available for use by D for such purpose.

Mr Wilson Leung, instructed by Y K Lau & Chu, for the plaintiff

The defendant, acting in person and present