Re An Alleged Mentally Incapacitated Person Eca

HCMH 26/2015

[2019] HKCFI 49

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MENTAL HEALTH CASE NO. 26 OF 2015

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Before: Hon Lok J in Chambers (Not open to the public)

Dates of Hearing: 2 & 6 August 2018

Date of Decision: 3 January 2019

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DECISION

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1.This is an unusual application under the mental health jurisdiction of the court. The Applicant asks the court to make an order to appoint her and another person as the committee to manage the financial affairs of an alleged mentally incapacitated person (“MIP”), ECA, without a formal inquiry or following the procedures laid down in Practice Direction 30.1 (“PD 30.1 Procedures”).

2.ECA is a Filipino now residing in the Philippines.

3.ECA was the plaintiff (sued by his wife as the next friend) of a personal injury claim, in which he sued the defendant (“the Defendant”) for damages for assault and battery which occurred in a basketball court in Hong Kong.  Default judgment was obtained against the Defendant and the court eventually assessed the damages suffered by ECA in the amount of about $5.5 million.

4.In order to satisfy the judgment, the Defendant’s residential property was sold pursuant to an order of the court. The net proceeds of sale were in the region of $3.8 million.  After the deduction of the Director of Legal Aid’s first charge for costs, the net proceeds in the region of $3.28 million were paid into court.   After the making of some payment-outs, I am given to understand that the fund remaining in court is now in the region of $2.9 million.

5.On 30 April 2015, ECA’s wife made an application, by way of ex parte originating summons, under s 11 of the Mental Health Ordinance, Cap 136 (“MHO”) for the appointment of her and another person to be the committee for ECA.  When the application was first made, the Defendant’s property had yet been sold.  The Applicant therefore decided not to proceed with the application pending the recovery process.

6.After the completion of the sale of the Defendant’s property, the Applicant decided to proceed with the Part II application.  She also revised the application naming her as the sole committee.

7.In making the Part II application, the Applicant has not followed the PD 30.1 Procedures.   In particular, the Applicant has not produced the 2 medical certificates required by s 7 of the MHO and the Applicant asks the court to appoint the committee on paper without conducting a formal inquiry.  Despite the requisitions raised by the court and the Official Solicitor (“OS”), the Applicant’s solicitors insisted to proceed with the application in their own way.  I therefore decided to conduct an oral hearing to hear their arguments, and this is the decision I make after hearing those arguments.

8.PD 30.1 refers to 6 judgments by Lam J (as he then was) on the practice for applications under Part II of the MHO, including Re Madam A[1], Re S[2], Re C[3], Re L[4], Re LWO[5], Director of Social Welfare v Official Solicitor[6].  It was held in Re Madam A that an inquiry under Part II of the MHO involves a two-stage process: (a) the initial stage in which directions are sought from the court (the Direction Stage); and (b) the stage where the actual inquiry takes place (the Inquiry Stage).

9.Pursuant to these judgments, PD 30.1 was issued to provide more guidance on the procedures for making such kind of applications.  Part II applications have been made pursuant to PD 30.1 Practices ever since, whether the relevant MIP was a victim in a personal injury claim or not.  Mr Brettell, solicitor for the Applicant, now asks the court to depart from these established practices.

10.According to Mr Brettell, PD 30.1 Procedures only apply if the court orders an inquiry to be held to investigate whether the subject person is a MIP.  However, the use of the word “may” in s 7 of the MHO means that the court has a discretion whether to order an inquiry.  In the present case, it is clear from the evidence presented in the related personal injury action that ECA is a MIP, and so the court should proceed to appoint a committee for him without going through the procedures laid down in the authorities mentioned above and the PD 30.1 Procedures.

11.Mr Brettell also relies on the case of Ho Po Chu v Tung Chee Hwa & Ors[7] and argues that a person can be adjudicated to be a MIP without an inquiry.

12.I cannot accept these arguments.  It is clear from the facts in Ho Po Chu that the court was dealing with a different matter in that case, which was whether the plaintiff had the mental capacity to conduct the legal proceedings and whether the court should apply O 80 of RHC to make an order to debar the plaintiff from bringing legal proceedings without a next friend.

13.In fact, the Court of Appeal in Ho Po Chu had not queried the necessity of conducting an inquiry for Part II application.  The court only held that, for the purpose of considering whether a person is a MIP under O 80, the court does not need the result of a Part II inquiry.  According to the judgment, O 80 r 1 does not define a MIP as a person who has been found to be so after a Part II inquiry, and the reference to the MHO in O 80 is only for the definition of a MIP for the purpose of the said order.

14.Though the word “may” is used in s 7, it is now considered settled law, after the 6 judgments of Lam J as referred to in PD 30.1, that the court will always conduct an inquiry in any Part II application for the appointment of committee, and so it is not open to the Applicant’s solicitors to suggest a new way for conducting such kind of applications.

15.There are also very good reasons for the court to follow the PD 30.1 Procedures.  In Re Madam A[8], Lam J, who is unquestionably the leading judge in formulating the framework for Part II applications, has set out the detailed reasons as to why the court should adopt a two-stage process in a Part II inquiry.  In §5 of the judgment, the learned judge has listed out the matters that should be considered by the court at the direction stage including, inter alia, the determination of the proper scope of the inquiry, whether the doctors are required to attend the inquiry and who should be notified about the inquiry.  Further, the court has to consider the consequential order following the appointment of the committee.  All these matters cannot be properly dealt with if the court just adopts the simplified procedures suggested by Mr Brettell.

16.There may be cases that the court may, on good reasons being shown, modify the PD 30.1 Procedures so as to do justice in a particular case.  However, I do not find that there are special circumstances in the present case to justify the court to depart from the established practices.  I appreciate that, as ECA is now residing in the Philippines, there may be difficulty for the Applicant to arrange medical examinations for him for the purpose of preparing the 2 medical certificates, but that is not a sufficient reason for the court to ignore the statutory requirements under s 7.

17.From my limited experience as the judge in charge of the Mental Health list, I understand that all the Part II applications have been made in accordance with the PD 30.1 Procedures.  I cannot quite understand why the Applicant’s solicitors insist to proceed with the application in their own way against the weight of the authorities and the practice direction.  For these reasons, I refuse to entertain the Part II application unless and until the PD 30.1 Procedures are complied with.

18.To ensure that there is sufficient maintenance for ECA pending the appointment of committee, in the hearing, I exercised the power under s 10D of the MHO to order payment out of a monthly sum of $4,000 from the fund in court for the interim maintenance of ECA.

Mr David Brettell, of Munros, for the Applicant

The Official Solicitor, attendance excused