To Lee Wah Samuel v. Yum Huin Ming and Another
Read the full judgment text of HCA 1469/2018 on BabelCite. This High Court CFI judgment was delivered on 4 June 2019.
1. In this trial, the plaintiff (“ P ”) challenges the validity of two Chinese enduring powers of attorney executed by the 1 st defendant (“ D1 ”) on 3 November 2015 (“ the 1 st EPoA ”) and 26 January 2018 (“ the 2 nd EPoA ”).
Cited by 2 cases · Cites 3 cases
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HCA 1469/2018 [2019] HKCFI 1441 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO. 1469 OF 2018 _________________
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_______________ J U D G M E N T _______________ 1.In this trial, the plaintiff (“P”) challenges the validity of two Chinese enduring powers of attorney executed by the 1st defendant (“D1”) on 3 November 2015 (“the 1st EPoA”) and 26 January 2018 (“the 2nd EPoA”). 2.D1 has three sons and two daughters. P is the eldest son and the 2nd defendant (“D2”) is the youngest son. The other children do not feature in this trial. 3.The issue is whether D1 had the mental capacity required within the meaning of section 2 of the Enduring Powers of Attorney Ordinance, Cap 501 (“EPoAO”) for the creation and execution of the 1st and/or 2nd EPoAs. THE LEGAL REQUIREMENTS OF MENTAL CAPACITY FOR EXECUTING AN ENDURING POWER OF ATTORNEY 4.The relevant parts of section 5 of the EPoAO which stipulate the necessary mental capacity and procedure for executing an EPoA are:
5.The necessary mental capacity is further defined in section 2 of the EPoAO:
6.Section 1A of the Powers of Attorney Ordinance (“PoAO”) further stipulates:
7.Mental disorder and mental handicap are in turn defined in section 2 of the Mental Health Ordinance, Cap 136 (“MHO”):
8.In order to show that the donor lacks the requisite mental capacity to execute an EPoA, it must be demonstrated that at the material time: -
9.Hence, a person is mentally incapable to execute an EPoA if he is suffering from a mental disorder or mental handicap and is either (i)unable to understand the effect of the power of attorney or (ii) by reason of his mental disorder or mental handicapunable to make a decision to grant a power of attorney. Alternatively, even if a person is not suffering from a mental disorder or mental handicap, he is also incapable to execute an EPoA if he is unable to communicate to any other person who has made a reasonable effort to understand him, any intention or wish to grant a power of attorney. THE BURDEN OF PROOF 10.Mr Tim Wong, counsel for P submitted that the burden of proof is on the Ds at the outset and remain on Ds throughout to prove that D1 had the necessary mental capacity at the material times to execute the EPoAs. He referred to Chui Kwok Ying v Chui Siu Kiu Kim & Anor [2016] 2 HKC 296 for support. The Chiu Kwok Ying case is not on the validity of the execution of an EPoA but on the validity of a deed revoking an enduring power. 11.Mr Tai and Ms Rosa Lee, counsel for Ds, disagreed with Mr Wong. They submitted that under the common law, everyone is presumed to have mental capacity unless it is shown otherwise(see Heywood & Massey, Court of Protection Practice at §4-003 and Assessment of Mental Capacity (4th Ed) at §§4.2.1 and 4.2.3). Since an adult is presumed to have mental capacity to make decisions, the burden rests on those asserting otherwise to prove that that person has no such capacity. Therefore, the burden of proof in the present case lies on P to prove on a balance of probabilities that D1 did not have the requisite mental capacity to execute the two EPoAs at the times when they were executed. Mr Tai also referred to Szozda v Szozda [2010] NSWSC 804at §26; Scott v Scott [2012] NSWSC 1541 at §§237-239; Court of Protection Practice at §4-005; and Assessment of Mental Capacity (4th Ed) at §4.2.4. 12.In Szozda v Szozda, Barrett J rejected a submission that it is for the party upholding a power to prove capacity and stated at §26: -
13.In Scott v Scott at §§237-239, Lindsay J also observed: -
14.Regarding the case of Chui Kwok Ying as relied on by Mr Wong, that is a case where the donor sought a confirmation of the validity of a deed of revocation of an EPoA. It is distinguishable from the present case. Section 13(2) of the EPoAO places the burden of proof on the donor to show that he was mentally capable at the time when he revoked the EPoA. There is no similar requirement for the execution of an EPoA. Section 13(2) of the EPoAO provides: -
15.I agree with Mr Tai’s submissions. I hold that the burden of proof of the invalidity of the two EPoAs executed by D1 rests on P. THE MEDICAL EVIDENCE OF PUBLIC HOSPITALS ON THE MENTAL CAPACITY OF D1 16.On 17 August 2011, an Occupational Therapist, Ms Law Wai Yan conducted a Mini Mental State Examination (“MMSE”) on D1 at Ruttonjee & Tang Shiu Kin Hospitals (“RTSKH”) and D1 scored 17/30 (A158-159 §§103-106, B/301, SB190 and SB213 to 215). 17.Five days later on 22 August 2011, another Occupational Therapist, Ms Wong Mei Yee conducted another MMSE on D1 at RTSKH and D1 scored 12/30 (A202-203, SB226-228). Mr Wong erroneously said in §3 of his closing submissions that this test was conducted on 16 August 2011. 18.On 28 October 2014, D1 was assessed on the MMSE again at the Violet Peel General Out-patient Clinic (“VPGOC”). She scored 17/30 (B295 and SB244). She was clinically diagnosed by VPGOC to be suffering from dementia (B270 and SA176) and was referred to the Department of Geriatrics of RTSKH (SB244). D1 was also diagnosed to be suffering from Vitamin B12 deficiency. 19.On 17 March 2015, D1 was assessed by an Occupational Therapist, Ms Au Wing Yu Hannah of RTSKH on both the MMSE and the Mattis Dementia Rating Scale (“Mattis DRS”). However, Mr Wong mistakenly regarded the MMSE as having been done by Dr Lin Ka Leung (A204-205, B348, B351, B354, B356-357, B358 and SB269 to 287). 20.D1 scored 16/30 on this MMSE (A204-205, B348, B354, B356-357 and SB269 to 272). However, Ms Au, the Occupational Therapist commented against the task of “read and obey instruction” that D1 had “poor vision”. Ms Au also commented against the task of “copy design” that D1 had “vision deficit” (A205 and SB271). Each of the two tests carried one mark. Hence, the score should be 16/28 instead of 16/30. 21.For the Mattis DRS, D1 scored 29/144 (B348, B351, B354, B358, SB269 and SB273 to 287). Ms Au remarked “[t]he score of Mattis DRS cannot correctly reflect the mental condition of the patient as she has severe vision deficit” (B358 and SB269) and “[v]ery very poor vision with ? cataract. Therefore, unable to do tasks that involves copying a looking at the patterns, numbers, and wordings in the Mattis DRS.” (B351) 22.On 14 June 2017, D1 was assessed by an Occupational Therapist, Ms Cheng Tsz Ling Samantha of Tung Wah Eastern Hospital. D1 scored 1 out of 10 in the Abbreviated Mental Test (A139 §35 and SA66). (D1 suffered a fall and had to go through a closed traumatic fracture surgery of her right hip on 13 June 2017 (SA57 and 64)) DS’ EVIDENCE 23.I gave a direction on 18 September 2018 requiring all result sheets of MMSEs conducted on D1 by all doctors who would be called by the parties at the trial of this action to be filed and served on one another on or before 9 October 2018. The result sheets are the questionnaires used in the MMSE. There is a box for filling in the marks scored alongside each and every question or group of questions. Ds filed a number of result sheets compiled by doctors who assessed D1’s mental capacity. 24.P had engaged Dr Tam Mo Shing Paul (“Dr Tam”) to assess D1 on 22 or 23 March 2017 and 9 March 2018. Dr Tam had conducted an MMSE on D1 on each occasion. But he did not produce any result sheet as made on an MMSE questionnaire though he maintained in cross-examination that he had used such questionnaire in both assessments. He instead produced a report dated 2 October 2018 as the result sheet for 2nd assessment on 9 March 2018 in purported compliance with my direction dated 18 September 2018. I will deal with this report below. Dr Shirley Ip’s evidence of execution of the 1st EPoA on 3 November 2015 25.D1 executed the 1st EPoA on 3 November 2015 after having been examined by Dr Shirley Ip, a geriatric specialist on 2 and 3 November 2015. Dr Ip examined D1 on her mental capacity to make an EPoA. Dr Ip had practised medicine for 30 years of which 25 was in geriatrics. She said she had conducted over 50,000 MMSEs on her patients. Dr Ip certified on 3 November 2015 in §9 of the 1st EPoA that:
26.Dr Ip further issued a short medical certificate dated 2 November 2015 saying that she had examined D1 at her clinic on 2 November 2015 and D1 was at that time mentally sound (A51). 27.She gave a full medically report dated 7 August 2018 on her examination of D1 on 2 and 3 November 2015 at her clinic (A118-121). The report was made for this litigation. Dr Ip said in the report that D1 had a history of anaemia starting from August 2011 and was treated at the Violet Peel Clinic in Wanchai. Dr Ip observed that:
28.Dr Ip further said in the report that when she examined D1 on 2 November, D1 was fully conscious and alert. Mentally, she was calm, stable, and oriented in place, time and person. She was also coherent in speech. She understood and obeyed instructions given during the physical and mental examinations. She scored 25/30 in the Mini-mental State Examination (“MMSE”). Dr Ip then listed her detail scores for each question in the MMSE questionnaire and opined that she had good memory and full mental capacity on that day. She exhibited no sign of confusion, hallucination, delusion, paranoid ideas or any suicidal idea. 29.Dr Ip examined D1 again on 3 November 2015 and found that she was mentally competent with no change of mental capacity. D1 retained her mental capacity to make decisions in judgment of her own finances and properties. She told Dr Ip that she wished to execute an EPoA before Dr Ip. After Dr Ip had explained to her of an EPoA in simple language, she indicated her understanding that the attorney she would appoint would deal with her money and properties when she became mentally incapable to do so in future. When asked by Dr Ip whom would she appoint, she replied that she would appoint D2 as her attorney. She further told Dr Ip that she was not under any pressure to appoint D2 as her attorney. She wanted to do so because D2 treated her well and was the one who looked after her currently. 30.Dr Ip was satisfied that D1 was able to understand the terms and effects of an EPoA and it was her decision to make one appointing D2 as her attorney to act for her in respect of her income, capital, movable and immovable property if she should be mentally incapacitated. D1 also wanted to authorize D2 to exercise all the powers that she could choose in the prescribed form of an EPoA. She then signed the EPoA before Dr Ip and authorized D2 to (a) collect any income due to her; (b) collect any capital due to her; (c) sell any of her movable assets; (d) sell, lease or surrender her home or any of her immovable property; (e) spend any of her income; and (f) spend any of her capital. 31.Dr Ip duly annexed D1’s MMSE result sheets to her medical report (227-230). 32.Dr Ip further said in oral evidence that in reporting on D1, she had read all the records of diagnosis and other examinations of D1 by the public hospitals. Dr Ip also explained the symptoms of anaemia that D1 had suffered from. Anaemia would lead to low level of oxygen in the brain. This would result in physical weakness, sleepiness, low mobility, low mood, and inability to concentrate, speak up loudly or think clearly. These symptoms can affect D1’s performance in MMSE severely. 33.Dr Ip also referred to D1’s score of 16/30 in the MMSE conducted on her on 17 March 2015 at RTSKH Ruttonjee Hospital and scored 16/30 (SB 270-272). D1 was unable to do the test of “copy design of overlapping pentagons”. The Occupational Therapist remarked that it was because of “poor vision”. Dr Ip said that D1 was then suffering from anaemia. But she was normal on 2 November 2015 when Dr Ip administered the MMSE on her. She was able to carry out this task. 34.Dr Ip also opined that for a patient suffering from reversible dementia, his/her cognitive functions could improve. Mr Lam Chi Yau’s evidence of execution of the 1st EPoA on 3 November 2015 35.Mr Lam is a practising solicitor. He witnessed D1’s signing of her 1st EPoA on 3 November 2015 at his office. He made an affirmation on 27 August 2018 for this litigation (B 394-397). 36.Mr Lam said that in late October 2015, Ms Alice Ma of Nixon Peabody CWL (then known as CWL), D1’s solicitors introduced D1 to him to witness D1’s making of an EPoA. On 3 November 2015, at around 3 pm, D1 and D2 arrived at his office with the 1st EPoA already signed by D1 before Dr Ip. He told D2 to leave the conference room so that he could talk to D1 in private. 37.D1 then told Mr Lam that she wanted to complete the 1st EPoA to authorize D2 to deal with all her asset should she one day become “insane” or “dumb”. D1 also told Mr Lam that she had three sons and D2, who accompanied her to Mr Lam’s office, was the youngest. In answer to Mr Lam’s question of why she wanted to appoint D2, she said she trusted D2 the most among her three sons. She wanted D2 to handle her assets and properties if she should lose her mental faculties. Mr Lam suggested that she could appoint more than one attorney, but she insisted on appointing D2 only. Mr Lam then went through with and explained to D1 the terms and effect of the 1st EPoA. He also asked D1 whether she wanted to alter the types of authority she would give D2, but she wanted no change. Mr Lam further advised D1 that her 1st EPoA would have effect upon her being mentally incapable and no court order would be required for it to come into effect. D1 confirmed that that was her intention. 38.Mr Lam further told D1 that she did not have to sign the 1st EPoA if she did not want to do so, but D1 maintained that it was her will to make the 1st EPoA and she was not under any pressure to do so. She also produced to Mr Lam the short medical certificate issued by Dr Ip certifying that D1 on 2 November 2015 was mentally sound. 39.Mr Lam also observed that during the meeting D1 was calm and responsive. She appeared to understand Mr Lam’s questions and could give him rational and coherent responses. Mr Lam was satisfied that D1 appeared to be mentally capable in terms of s 2 of the EPoAO and she was willing to execute the 1st EPoA. Mr Lam invited D2 back to the conference and witnessed the execution of the 1st EPoA by D1 and D2. Mr Lam also signed on each page of the 1st EPoA. The 1st EPoA was then registered with the Registrar of the High Court on 18 July 2016. 40.Mr Wong did not cross-examine Mr Lam on the basis that Mr Lam was a witness of fact and not an expert witness. Dr Gabriel Hung’s evidence of execution of the 2nd EPoA on 23 January 2018 41.Dr Hung practised medicine since 2002 and qualified as a psychiatrist in 2009. He spent two years to pursue a legal qualification and is now a qualified solicitor as well. He has administered 800 to 1,000 MMSEs on patients with more done in private then in public practice. He witnessed the execution of about 200 EPoAs. 42.Dr Hung was instructed by D1’s solicitors to assess D1’s mental capacity to manage and administer her property and affairs within the meaning of Part II of the MHO. He said in oral evidence that such mental capacity is more or less the same as that required for executing an EPoA. He examined D1 on 23 January 2018 and gave a report dated 24 January 2018 (A83 TO 90). 43.Dr Hung said in his report that D1 was 93 years old. She received limited formal education in her childhood. She suffered from cataract. She needed a headphone attached to a microphone as hearing aid to hear Dr Hung. She had visual and hearing impairments. She had been diagnosed with dementia and was prescribed with Aricept to treat this problem. 44.When examined by Dr Hung, D1 was able to answer questions about herself and her children. She gave her name, age, place of birth and address. She owned her flat which was around 700 square feet in size. She co-owned a shop let out to a wonton business. She also gave the names of her five children from the eldest to the youngest and her husband had passed away over 40 years ago. Her two daughters were living in Toronto, Canada and had come back to see her in the previous month. She had worked in the printing industry. She also gave specific answers about her assets and properties. She had accounts at three named banks and had cash and stocks. She obtained money from one of the banks to buy food in the market. D2 and Ms Alice Ma, D1’s solicitor confirmed to Dr Hung that the information D1 gave was correct. 45.In answer to Dr Hung’s question of whether she was satisfied with the way she managed her finance, she said that she was capable of managing her assets and property with the help of D2. She trusted D2 in collecting rent for her from her shop (co-owned with her sons) and in managing her bank accounts. She also told Dr Hung that several years ago, she had executed a document (her 1st EPoA) in front of her solicitor giving power to D2 to manage her flat, shop and bank accounts when she was no longer able to do so. She wanted D2 to continue to have the same power to manage her assets for her when she could not do so. Her two daughters who lived in Canada and could not assist her. She did not trust her two other sons as they did not visit her frequently and did not care about her. She did not trust P because she was told that P had withdrawn HK$4 million from her bank account without her permission. She wanted P to return the money to her. 46.D1 scored 17/30 in the MMSE conducted by Dr Hung. Dr Hung stated the details of the questions and her answers in the report. He also annexed D1’s result sheets to the report (A96). In addition, he also tested D1’s ability to do some simple additions and subtraction like “100 – 20” and D1 gave correct answers for five of the six questions. 47.Dr Hung used 18/30 as the cut off point for people who had not received formal education. He opined that D1’s score of 17/30 was still within normal limit. He took into account D1’s age and lack of formal education. Furthermore, D1 had poor eyesight and could not see the street name and floor number. Hence, she could not tell the street name and floor number of his clinic and lost 2 marks. For the same reason, D1 could not see the written command of “clap hands”. She thus could not read it out and perform it. She lost another 2 marks for this. D1 also could not do the subtraction of “100 – 7” test or the alternative of recalling a serial of five digits but in reverse order. She thus lost five marks. Dr Hung said that it was common for elderly people who had not been educated and did not have to perform mental arithmetic in daily life to have difficulty with this test. These three questions accounted for her loss of 9 marks. 48.Dr Hung further opined that screening tests like MMSE are not a substitute for the more specific and task focused assessment of capacity. D1 showed very good knowledge of and ability to manage her assets and financial affairs despite her borderline performance in the MMSE. 49.Finally, Dr Hung opined that a person’s capacity to make his financial decisions depends largely on the value and complexity of his property and affairs. Dr Hung concluded from his assessment that D1 had the ability and capacity to manage her property and affairs within the meaning of Part II of the MHO. In particular, D1 showed good understanding of the nature and extent of her assets and her income and expenditure. She also knew how to get money from the bank. She could also do forward planning as she had executed her 1st EPoA on 3 November 2015 appointing D2 as her attorney in case she loses her mental capacity in future. She could also explain why she did not want the assistance from her two daughters and two other sons. 50.Ms Alice Ma then explained the clauses in the EPoA to D1 and D1 showed her understanding of the nature and effect of the EPoA. Dr Hung also opined that D1 had the requisite capacity to execute the EPoA. D1 then executed the EPoA as her 2nd EPoA and appointed D2 as her attorney in the presence of Dr Hung and Ms Ma. She gave the same types of authority D2 as in her 1st EPoA. 51.Dr Hung explained in evidence in chief the reasons for his asking D1 a number of questions in addition to those in the MMSE. He said he knew that D1 was on medication for dementia. D1’s MMSE score was at 17/30 and was just below the cut-off point. Hence, he had suspicion on D1’s mental capacity in executing an EPoA or managing her assets. He therefore felt it necessary to ask D1 more questions regarding her reasons for executing her 2nd EPoA to ascertain if she understood the reasons for doing so. After the questioning, he was sure that D1 understood what she was doing. 52.It is P’s argument that D1’s high scores in MMSEs were the result of repeated coaching and drilling of the MMSE questions. Dr Hung disagreed. Dr Hung said in evidence in chief that for coaching or drilling to be effective, the patient had to be able to remember what he had been coached. He had to remember not only the answers, but also the corresponding questions and the paring of the questions with the appropriate answers. In other words, the patient had to be told and remember the appropriate answer for each and every question in the MMSE. Coaching also requires the working of the long-term memory function in order to be successful. The patient has to retain the information for some time. Drilling and coaching is very difficult to succeed for someone who suffers from dementia. 53.P’s psychiatric expert Dr Tam was of the view that D1 had been tested on MMSE repeatedly and was accustomed to its questions. Dr Tam therefore modified some of the questions in administering the MMSE to D1. Dr Hung however said in cross-examination that the MMSE is a standard test. There is a Chinese translation prepared by Professor Helen Chiu of the Chinese University of Hong Kong. The original questions and the translations are designed with great expertise and should not be modified. Otherwise, the test result will be unreliable. If the questions are changed, then the test is no longer the MMSE. 54.Dr Hung further said in cross-examination that a person’s score in MMSE might change from day to day. A person’s performance in MMSE requires effort and can be affected by many factors like hunger, sleepiness or an urgent call of nature. I am of the view that this explains the variance of D1’s scores in the MMSEs administered on her by the professionals in the public hospitals as referred to above particularly for MMSEs conducted within a short period. 55.In re-examination, Dr Hung confirmed that if a person has recent memory function and can be coached on the MMSE questions, then he is able to understand an EPoA and has the mental capacity to execute it. 56.Dr Hung also explained in re-examination that his knowledge that D1 was taking Aricept made him more cautious in considering her mental capacity as it showed that another doctor had diagnosed her to be suffering from dementia. Hence, he exercised more care in considering whether she was fit enough to execute the EPoA. Ms Alice Ma’s evidence of execution of the 2nd EPoA on 23 January 2018 57.Ms Ma made an affirmation on 27 August 2018 to recount how D1 made her 2nd EPoA before her and Dr Hung on 23 January 2018 at Dr Hung’s clinic. She told Dr Hung that D1 had previously made an EPoA on 3 November 2015. D2 was also present in the examination but did not interfere with the examination. The examination lasted for about 45 minutes. Dr Hung was then satisfied that D1 had the requisite mental capacity to manage her property and affairs as well as to understand and execute an EPoA. D1 then confirmed that she had already made her 1st EPoA that reflected her genuine intention. It was still her wish that D2 would manage her property and affairs in the event of her losing the mental capacity to do so. She explained that D2 was the only person in Hong Kong who was able to attend to her needs and she trusted D2. She did not trust her other children who resided in Hong Kong. 58.Ms Ma then explained the EPoA clause by clause to D1 in particular the clauses giving D2 the authority to (a) collect any income due to her; (b) collect any capital due to her; (c) sell any of her movable assets; (d) sell, lease or surrender her home or any of her immovable property; (e) spend any of her income; and (f) spend any of her capital. D1 said she did not want to change anything and her 2nd EPoA should be the same as her 1st EPoA. She also said that she wanted D2 to be her sole attorney and be able to assume control of all her income, capital, movable and immovable properties. D1 then executed her 2nd EPoA. Dr Hung, Ms Ma and D2 also signed the document in turn. Ms Ma then caused it to be registered with the Registrar of the High Court on 26 January 2018. Doctor Wong Chun Por’s assessment 59.Dr Wong Chun Po (“Dr CP Wong”), a specialist in geriatric medicine, examined D1 on 13 December 2017. He was not called to be cross-examined, but his two reports of examination of D1 dated 14 December 2017 and 17 January 2018 were included in the bundle of reports. Mr Wong for the plaintiff did not seek to exclude the reports. He instead referred to the first report and D1’s MMSE result sheets in §§13 and 14 of his closing submissions. P’s expert Dr Tam also commented upon Dr CP Wong’s two reports in his report dated 27 February 2018 which was included in the trial bundle. 60.Dr CP Wong examined D1 for an hour on 13 December 2017. He opined in his report that D1 spoke very fluent Cantonese with no problem in comprehension and expression. She recalled the names of her five children. Her husband had passed away and she lived with her domestic helper. She had poor vision, cataract and fair hearing ability. She needed a hearing aid in the examination. She had no confusion, hallucination or delusion and had a stable mood. She was fully alert and cheerful. She did not exhibit any primitive reflex that would suggest brain disorder. 61.When questioned by Dr CP Wong, she showed full understanding of her wealth and property. She was also consistent in her understanding of the possibility of profit and loss and her welfare. 62.A CT-scan of her brain in September 2015 showed only age related changes with small vessel disease. 63.Dr CP Wong also administered the MMSE on D1 and she scored 18/28 because she was not tested on two questions that required eyesight. The result sheet of this MMSE was produced together with Dr CP Wong’s reports. Dr CP Wong opined that D1’s main defects were in her arithmetic, which could be caused by her low education level. She could recognize the season and year but not the day of the week, date and month. Dr CP Wong said that this could be partially due to her not working and hence had no incentive to remember the day of the week. Her recall was only 1/3 and she had some problem in retention of memory. But Dr CP Wong opined that she had execution skills, orientation in place and her capability in speech was intact. These together with her recognition of benefit and loss indicated that her poor memory did not affect her daily living and decision-making. 64.Dr CP Wong concluded that there was only evidence of mild dementia with slight underscoring of the MMSE and a minimal change in her brain as shown in the CT-scan. She definitely had mental capacity of decision making in matters of her own benefit, properties and wealth. 65.Dr CP Wong further opined in his second report that the official CT-scan provided to him after made his first report showed that there was no obvious change in D1’s brain that would suggest severe dementia as in such case there would be atrophy or shrinkage of the brain. Doctor Li Cheuk Wing’s assessment 66.Dr Li Cheuk Wing (“Dr Li”) is a psychiatrist approved within the meaning and for the purposes of s 2(2) of the MHO by the Hospital Authority. He examined D1 on 16 December 2017 and gave a report dated 15 January 2018. He was also not called to be cross-examined. But Mr Wong for the plaintiff also did not seek to exclude the report and instead referred to it in §15 of his closing submissions. P’s expert Dr Tam also commented upon Dr Li’s report in his report dated 27 February 2018. 67.Dr Li interviewed D1 on 16 December 2017 for about 45 minutes. D1 had the use of a hearing aid. She appeared to be cooperative, alert and verbally responsive. She could hear Dr Li’s questions through the hearing aid without problems. Her speech and thought process were normal. There was no sign of hallucination or delusion. She could tell her name, age, address, the names of her five children and that her daughters had immigrated to Canada. She was aware that she had cataract, anaemia and weak legs and had to attend medical follow up at Violet Peel Clinic. She named objects correctly. She recalled that she had three bank accounts and gave the names of the banks. She also revealed that she owned her residence which was a flat of about 700 sq. ft. with two bedrooms. She could not do simple calculations or tell the date and year, but she could tell correctly that the season was winter. She said she had made a will. She had also delegated her financial matters to D2 and was satisfied with the arrangement. She also talked to D2 about recent and past events including the recent visit by her daughters from Canada without confusion. She was responsive to her surroundings. She could recall Dr Li’s surname in the middle of the interview. She shook hands with Dr Li upon introduction and thanked Dr Li at the end of the assessment. 68.Dr Li opined that D1 suffered from cognitive impairment. But she was not mentally incapacitated in managing and administering her property and affair as defined in the MHO. She had shown adequate knowledge about her property and reasonable concern about other people taking away her money. She had a routine and restricted lifestyle that did not involve challenging financial decisions. She did not have extensive assets to manage. She had delegated to D2 her main financial activities in paying her living expenses and she was satisfied with the arrangement. Her making of a will and an enduring power of attorney demonstrated her capacity to plan for the future. Her capacity to make judgment and express opinion was intact. She was in good care. 69.Dr Li did not conduct the MMSE on D1. He considered it unnecessary in this case. He opined that it was complicated in applying and interpreting the MMSE to D1 because of her low education level, poor vision and hearing, and a restricted lifestyle that did not involve much current affairs or mathematics. Moreover, the determination of the mental capacity of a person should be task specific with the person’s particular social situation being kept in mind. Such mental capacity is not bound to a specific MMSE score or diagnosis. A person with a low MMSE score does not necessarily mean that he is mentally incapable to manage his finance and affair. 70.Dr Li concluded that despite D1’s cognitive impairment, she had adequate capacity to manage her property and affair given the support that she had. Dr Li was also satisfied that D1 was free from undue influence during the assessment. D2’s evidence on drilling or coaching D1 for MMSE 71.P’s psychiatric expert Dr Tam alleged repeatedly in his reports that D1 had obtained high scores in MMSEs conducted by other doctors because she had been drilled or coached repeatedly by D2 to answer the questions of MMSE. D2 gave evidence that D1 was discharged from hospital after surgery on her right hip fracture on 13 June (SA57 and 64). D1 then lived with him until early January 2018 with a gap of about six weeks from October 2017 as his sisters had returned from overseas to visit D1. He denied that he, his sisters or D1’s domestic helper had ever coached D1 on the MMSE. He also denied that D1 had been coached before her execution of the 1st EPoA on 3 November 2015 and the 2nd EPoA on 23 January 2018. He was unshaken in cross-examination. P’S EVIDENCE Doctor Yuen Fu Lam’s assessment 72.P engaged two doctors to examine D1. They are Dr Yuen Fu Lam (“Dr Yuen”) and Dr Tam. Dr Yuen is not on the list of approved doctors for the purpose of s 2(2) of the MHO. Dr Yuen examined D1 on 27 March 2017 and produced a report of the same date. It is a pro forma report made in accordance with the practice direction for applications for enquiry under Part II of the MHO. Dr Yuen made the report originally for P’s application for an enquiry under Part II of the MHO of D1’s mental status. Dr Yuen was not called for cross-examination, but Mr Tai did not ask for his report to be excluded. 73.Regarding D1’s physical condition, Dr Yuen’s report said that D1 got a fall in 2010. She was poor in mobilization, with impaired vision and hearing. Her dementia and deteriorating physical condition made her dependent on helper’s aid in daily living, including oral feeding and simple mobilization. 74.Dr Yuen opined that D1 was incapable by reason of mental incapacity as defined in the MHO of managing and administering her property and finance. He based his opinion on the fact that D1 was a known dementia patient, could not recognize persons, and got poor memory, concentration and attention. She could not calculate properly and admitted that she could not handle her finance. Dr Yuen also reported that D1 had been in that state of mental capacity for four years. 75.Dr Yuen’s report did not say whether an MMSE had been administered on D1, but no result sheet of such examination was produced in accordance with my direction. 76.Though Dr Yuen said that D1 had impaired hearing, he did not say in the report of whether D1 had the use of any hearing aid in the assessment. As will be shown below, D1 was suffering from serious hearing impairment in March 2017 and needed a hearing aid for effective audio communication. If no hearing aid was provided to her, the effectiveness of the assessment would be open to doubt. Doctor Tam’s 1st assessment 77.Dr Tam assessed D1’s mental capacity at her home on either 22 or 23 March 2017 and 9 March 2018. For each assessment, he produced a pro forma report made for P’s application for enquiry of D1’s mental capacity under Part II of the MHO and a medical assessment report. For the March 2017 assessment, his pro forma report gave the assessment date as 23 March but his assessment report stated the date as 22 March. Both reports are dated 23 March 2017. 78.In the pro forma report for the March 2017 assessment, Dr Tam described D1’s physical conditions as follows. She could not recall her history and was very deaf. Dr Tam had to rely on P’s information. P’s information was that D1’s health had become bad six to seven years ago. Her eyes had become poor and cataract operations were not successful. She was then almost completely blind. Her memory deteriorated around seven to eight years ago. Doctors at public hospital diagnosed that she had dementia. She could not even remember her sons’ names. She had a bad fall some time ago and had difficulty in walking. 79.Dr Tam concluded that D1 was incapable, by reason of mental incapacity as defined in the MHO, of managing and administering her property and affairs. He based his conclusion on D1’s failure to give Dr Tam the simplest answer concerning her finance. She also could not tell Dr Tam whether she had any bank account. She was disoriented and could not tell Dr Tam the time and date. She could not do the simplest sums like the 100 – 7 test. Her mental incapacity had lasted for four years. 80.I note that this is the first time that D1 was found to have serious hearing problem. Previous medical reports only said that she had visual problem and cataract. Though Dr Tam reported D1’s hearing problem, he did not say whether D1 had the use of any hearing aid for this assessment. For subsequent assessments by Dr Hung, Dr CP Wong and Dr Li, D1 had the use of a hearing aid. Dr Hung, Dr CP Wong and Dr Li did not report that there was any difficulty of communication with D1 because of her hearing problem. As confirmed by Ms Ma in her oral evidence, D1 also had the use of a hearing aid in the second assessment by Dr Tam on 9 March 2018. Ms Ma said that Dr Tam did not have to shout to D1 because the hearing aid worked well. 81.Dr Tam repeated in the assessment report for this assessment the information provided by P on D1’s family history. Dr Tam further said that D1 was cooperative. She was not tense, unhappy or evasive when Dr Tam said that he was going to do an assessment on her. Her speech was not easy to follow as her hearing was poor. But her mood was congruous with her situation. Dr Tam administered an MMSE on her and she scored 7/30. She could not tell Dr Tam anything about her finance and was disoriented for time and person. She could not even remember P’s name. 82.Dr Tam said in the pro forma report and assessment report that D1 had hearing problem. She could not tell him anything about her finance. She was disoriented in time and person and could not even remember P’s name. That was in marked contrast with what D1 could tell Dr Hung, Dr CP Wong and Dr Li in their assessments of her which all took place subsequently. I have already referred to the detail information given by D1 on herself and her family to the three doctors on those occasions. 83.I have a grave suspicion that Dr Tam had conducted this assessment without providing D1 with the use of any hearing aid. If D1 had the use of a hearing aid and had no communication problem, then Dr Tam would not have said that she was very deaf so that he had to rely on information from P. If D1 had the use of a hearing aid and still communicated poorly, Dr Tam would have said that despite her use of a hearing aid, she still had hearing problem so that he had to rely on information from P. But Dr Tam did not say so in the report. Thus, it is more likely than not that D1 did not have the use of a hearing aid when she was assessed by Dr Tam on this occasion. Dr Tam thus did not communicate effectively with D1. That would explain why he had to rely on P for information on D1 and her family but the other three doctors did not have to. This alone has made the result of the assessment unreliable. 84.Dr Tam agreed in cross-examination that the MMSE involves different tests for different cognitive abilities and any score of a particular test shows the ability of a particular cognitive faculty or function. Though Dr Tam maintained in oral evidence that he had used an MMSE questionnaire when he conducting the test on D1, he never complied with my direction by producing any result sheet for this test. Without the result sheet, it is impossible to tell which of the questions did D1 fail and hence which of her cognitive faculties was not working properly. For reasons to be explained below, I also find that Dr Tam did not use the MMSE questionnaire for this assessment. Doctor Tam’s 2nd assessment 85.Dr Tam assessed D1’s mental capacity again on 9 March 2018. Since there was a dispute on whether D1 had consented to the March 2017 assessment (see §9 of Ma’s affirmation dated 8 December 2017 in HCMH 62/2017 – B387), I permitted the lawyers of the parties to attend and observe this assessment. Ms Ma of D1’s solicitors and a Ms Sun of P’s solicitors attended. 86.In the pro forma report for this assessment dated 21 March 2018, Dr Tam referred to D1’s physical condition as follows. She could not recall her history and she is very deaf. Dr Tam therefore had to rely on P’s information given to him on the previous assessment. Dr Tam then repeated what he had stated in his last pro forma assessment report for the March 2017 on D1’s physical condition. However, it is the unchallenged evidence of Ms Ma that in this assessment, D1 had the use of a hearing aid which worked well and Dr Tam could communicate properly with her. There was no reason for Dr Tam to rely on the information on D1 as given by P nearly a year ago on the purported ground that D1 was very deaf. Dr Tam could have asked D1 questions relating to such information in this assessment though he did not. 87.Dr Tam again concluded that D1 was incapable, by reason of mental incapacity as defined in the MHO, of managing her property and affairs. The basis for the conclusion was that D1 was unable to give him the simplest answer concerning her finance. She could not tell him how much money she had in her bank accounts. She was partially disoriented and could not tell him the time, year and date. She could not do the simplest sums like the 100 – 7 test. Her immediate and recent memory were such that she could not recall three objects that he told her both immediately and after five minutes. She had been in this mental state for five years. 88.In the assessment report dated 20 March 2018, Dr Tam said that D1 was polite and cooperative. Upon being told that Dr Tam was going to do an assessment on her, she was not tense, unhappy or evasive. Her speech was not easy to follow as her hearing was poor. But her mood was congruous with her situation. It was word for word the same as in the first assessment report. It appears that this part of the assessment was copied from the previous report by a copy and paste computer function. 89.Dr Tam then asked D1 to do a “draw a clock test”. This was a test for patients suffering from dementia and is a good alternative to MMSE. But D1’s eyesight was too poor for this test. Dr Tam said her eyesight was poorer than in March 2017. 90.Dr Tam then administered an MMSE on D1 and she scored 9/30. Dr Tam used a passing mark of 20/30. 91.In the MMSE, D1 said that she owned the flat she lived in. She had three bank accounts but could not say how much she had in each. She could not tell Dr Tam more about her finance. She was less disoriented than in the March 2017 assessment. She could tell her address and that she had five children. She was asked to recall three objects which were different from those used in the last assessment, but she recalled none. 92.Dr Tam was concerned that D1 could not even do the simplest sums. Her ability to recall was poor. Her improvement in the MMSE over the previous one was only marginal. Dr Tam had firmly alleged that before this assessment, D1 had been coached repeatedly on how to do the MMSE and how to tell about herself or her family. There is of course no evidence of coaching whatsoever. However, he maintained his allegation and further opined that it was difficult to imagine that D1 would make no progress since she had received coaching on the MMSE, the number of her children and number of bank accounts she had. 93.Dr Tam then concluded that D1 was incapable, by reason of mental incapacity as defined in the MHO, of managing her property and affairs. The dispute over the alleged discrepancies of the reports for the 9 March 2018 assessment 94.A copy each of the pro forma report and assessment report were sent to D1’s solicitors. They immediately complained that there were discrepancies between the contents of the reports and what happened in the assessment. 95.Ms Ma and one Ms Sun, P’s solicitor were present at the assessment at D1’s residence. Both Ms Ma and Ms Sun took notes in the course of the examination. Ds’ solicitors filed on 14 August 2018 an affirmation of Ms Ma affirmed on 9 July 2018 on how the assessment was done. She also exhibited in the affirmation the notes she took at the assessment. She said in oral evidence that her affirmation was based on her notes taken at the assessment and her report to client that she composed right after the assessment. P’s solicitors, after having had the benefit of Ms Ma’s affirmation and her exhibited notes, then filed on 2 October 2018 a report by Dr Tam on the MMSE he conducted on 9 March 2018 in accordance with my direction dated 18 September 2018. However, they did not produce Ms Sun’s notes and did not file any affirmation by her to support Dr Tam. 96.Dr Tam said in the report that he had required Ms Ma and Ms Sun to keep a distance from him and D1. He wanted them to be out of their sight and not to interfere with his assessment. He said in oral evidence that Ms Ma was sitting behind him at some 5 metres away. Ms Ma disagreed. She produced a sketch layout of D1’s flat and three photos showing part of the sitting room where the examination took place. Dr Tam thought that the sketch and photos looked like the place though he could not be sure. 97.Ms Ma said in oral evidence that D1 was sitting on a sofa towards the armrest next to the window. Dr Tam was sitting on a chair in front of D1 and with a TV set behind him. Ms Ma was sitting close to the other end of the sofa and next to Ms Sun. She was much closer to Dr Tam than 5 metres as the room was crowded. She was to make an observation of the assessment. She therefore made sure that she was within hearing distance so that she wanted to hear each and every word of Dr Tam. 98.From the sketch and photos produced by Ms Ma, there did not appear to be a 5-metre distance between Dr Tam and Ms Ma. I also find Ms Ma’s evidence on this matter more credible as she was there making an observation of the assessment in accordance with my direction. There was not much point for her to be present if she should have seated far away from Dr Tam. 99.Dr Tam said in his report that he had used the MMSE with some additional questions to test whether D1 was having background training. I now deal with the points that Dr Tam and Ms Ma differ. 100.Ms Ma produced a standard MMSE questionnaire in her affirmation for reference and said that Dr Tam did not use the questionnaire in conducting the assessment on D1. She also said in oral examination that she knew how the MMSE was conducted because she had been assessed by it when she made an enduring power of attorney previously. She also witnessed the conduct of the MMSE by Dr Gabriel Hung on D1 on 23 January 2018. 101.Dr Tam maintained in cross-examination that he had used the MMSE questionnaire in both assessments on D1. He confirmed his awareness of my direction requiring him to produce the MMSE result sheets. But he failed to comply with my direction for both assessments without any explanation. He instead produced a report dated 2 October 2018 for the 2nd assessment only. In fact, he had also failed to produce the expert’s declaration and statement of truth for his several reports filed for the trial. P’s solicitors made good this omission during the trial by filing the necessary declarations and statements made by him. Nevertheless, his omission in producing the MMSE result sheets was never made good despite Mr Tai’s challenge in his cross-examination. P’s solicitors also filed nothing from Ms Sun before or during the trial to support him and provided no explanation for not doing so. I therefore accept Ms Ma’s evidence on this. For the reason that Dr Tam had failed to produce the result sheet for the 1st Assessment on D1 without explanation, I also do not believe that he had used the MMSE questionnaire for the 1st assessment in March 2017 for the reasons given above. 102.The first question in MMSE is to ask the assessed person to give the date of the examination by asking him to tell the year, season, month, date and day of the week. It carries five marks. Dr Tam said that D1 could not tell the day of the week, but Ms Ma’s notes say that D1 had said that it was Friday. Ms Ma also confirmed this in her affirmation. 103.The next matter in dispute is on the questions relating to the location of the assessment. The examiner is supposed to ask the assessed person whether the place of assessment was in Kowloon, the New Territories or Hong Kong. The question to follow was which district of the three regions. The next would be the street or estate. Finally, it would be the name of the building and which floor. Dr Tam said that D1 could only say she was living on 26 floor of the building she named. Hence, she was given 2 out of 5 marks. Mr Tai however put it to him that he only asked D1 a general question of where she was living and did not put to her the five questions one by one. Dr Tam disagreed. Ms Ma said in her affirmation that Dr Tam only asked D1 where she was and specifically did not ask D1 the question on the district. 104.The next issue is on the ability of registration and recall. The assessed person is asked to repeat three objects and, after a few minutes, recall them again. Dr Tam said in the medical assessment report for this assessment that he had used three objects that were different from those he had used in the March 2017 assessment on D1. He found that D1’s recall ability was poor and she scored zero out of six marks for this test (A111). 105.The MMSE questionnaire suggested three objects: namely “apple”, “newspaper” and “train”. They are all double-syllabic in Chinese. Ms Ma said in her affirmation that Dr Tam had instead told D1 three monosyllabic Chinese nouns “orange”, “book” and “tree”. I note that the phonetic symbols for these three nouns in Chinese are respectively “caang2”, “syu1” and “syu6”. The sounds of the Chinese nouns for “book” and “tree” are composed of the same vowel and consonants. They only differ in tone level. D1 failed to recall these objects and Dr Tam gave her no mark for this. 106.However, Ms Ma said that Dr Tam had repeated this test with D1 by using the three suggested objects of “apple”, “newspaper” and “train” which are all double-syllabic in Chinese. D1 was able to repeat them and recall them accurately a few minutes later. 107.Dr Tam in his report of 2 October agreed with Ms Ma that he had used three monosyllabic nouns of “orange”, “book” and “tree” for which D1 did not score any mark. He did not use the three suggested objects because of his concern about “the less than satisfactory practice” of his colleagues in keep on using these same three objects. These objects were used so often that relatives of patients would get use to them and drill the patients on them frequently to achieve perfection. Hence, he used three different objects and D1 failed this test. 108.He also agreed that he had also tested D1 with “apple”, “newspaper” and “train” which D1 registered and recalled perfectly. However, he did not mention it in his assessment report. He said in his 2 October report that he did not give her any mark for this on the ground that her success was the result of rogue learning and constant practice. He further said in cross-examination that the result was inaccurate because these three nouns had been used for 100s of times before. 109.I however do not understand why Dr Tam did not use three other double-syllabic Chinese nouns which are highly distinguishable from each other than the monosyllabic “orange”, “book” and “tree” when “book” and “tree” sound so similar in Chinese. Furthermore, each Chinese word or character has a monosyllabic sound. A particular sound can stand for many different words of different meanings. However, very few double-syllabic Chinese nouns would sound similar with other double-syllabic nouns and are highly distinguishable audibly. Double-syllabic nouns are thus easier to be comprehended and identified. 110.The next issue is the “copy design of overlapping pentagons” test in question 6(f) of the MMSE that Ms Ma has mentioned in her affirmation but Dr Tam has not in his assessment report. The test requires the assessed person to do the “copy design of overlapping pentagons”. The overlapping pentagons are shown on page 2 of the MMSE questionnaire. Ms Ma said in her affirmation that Dr Tam had instead asked D1 to draw a circle with a tail that resembled the letter “Q”. D1 drew a circle but could not draw the tail. Ms Ma did not say whether Dr Tam had given D1 any mark for drawing just the circle. Dr Tam then referred to this test in his 2 October report. He said D1 had failed in this task. He gave her no mark for drawing the circle but not the tail which is the important part. 111.The last dispute relates to question 6(d). It requires the assessed person to carry out a written (not oral) instruction. The instruction is printed on page 2 of the MMSE questionnaire in the form of two Chinese characters meaning “clap hands”. The assessor is to show the printed instruction to the assessed person who should then clap his hands. 112.Ms Ma said in her affirmation that Dr Tam did not ask D1 to undergo this test. Her complaint is an omission. Hence, she should be aware at the assessment that such a test should be carried out. Dr Tam took Ms Ma’s complaint to mean that he had failed to carry out the test in a verbal fashion. He said in his 2 October report that Ms Ma did not understand how the test was carried out and was wrong in making the complaint. He said the test was not to be carried out by instructing D1 “orally” to do anything but by showing D1 the written instruction which he did. Dr Tam also made the same attack Ms Ma in another report dated 11 September 2018. Ms Ma in oral evidence clarified that when she said in her affirmation that Dr Tam had not asked D1 to clap her hands, she meant the showing of written instruction to D1 and not to give her an oral instruction. She knew how this test was carried out as she had been so assessed and witnessed the administering of the same by Dr Gabriel Wong on D1. 113.Dr Tam in the 9 March 2018 assessment suspected that D1 had gone through rogue learning or constant training on the MMSE questions and answers and particulars of her and her family like the names of her children, her property and bank accounts. Hence, he added and changed some questions for the MMSE for D1. But he had never asked D1 whether she had gone through such learning or training. It is unfair to D1 to make such allegations against her without asking her about it the assessment. 114.Ms Ma further pointed out that Dr Tam’s pro forma and assessment reports were incomplete in that some additional questions and answers other than the MMSE were omitted therefrom. D1 upon being asked about her children not only said that she had five. She also gave their names. When asked about her properties, she did not just say that said she owned her residence at Elizabeth House, she also said that she owned a wonton shop. She also said that she would like to deal with her residence and wonton shop by herself with the help of D2. She would also like to have D2’s help in managing her assets and affairs. 115.Regarding her bank accounts, she in fact named three banks in which she had accounts. She also said that her money consisted mostly of her rental income. She had about HK$10,000 in one account and not much money in the other two accounts. 116.When asked about her relationship with her sons, she said her two elder sons did not visit her anymore and D2, her youngest son had been living with her since she had a fall in June 2017. She also answered that her general health was not too good, but she did not suffer from diabetes, heart, or blood pressure problem. She could deduct 20 dollars from 100 dollars correctly. She could also tell the number of legs a horse and two horses have. 117.Dr Tam in cross-examination agreed that D1 had upon his questioning told him that she owned a wonton shop and had bank accounts at three named banks. Dr Tam also agreed that D1 had told her that she enjoyed living with D2 and that her other children did not visit her often. Dr Tam agreed that these exchanges were not in his reports. But he also disagreed that these exchanges were relevant for the court’s assessment on D1’s ability to execute the 2nd EPoA. Findings of fact on the two assessments 118.Dr Tam’s case is based on what he said. There is no corroboration from Ms Sun, P’s solicitor who was present at the assessment. Her notes were also not produced. P has also not explained the absence of these corroborating materials. 119.Regarding the questions and answers in addition to the MMSE as pointed out by Ms Ma, they are consistent with the notes taken by her at the assessment. Dr Tam agreed that some of them had taken place though he disagreed that they are relevant for the assessment. I therefore find that there were the additional exchanges as reported by Ms Ma. 120.Ms Ma complained that Dr Tam had omitted the “clap hands” test. She complained against the omission of the test, not that the test was carried out by Dr Tam in an erroneous way. If she did not know of the need of the test, she would not have complained. She therefore knew that such a test was necessary. If she knew of the need of the test, she would know how it should be carried out. It would be most curious for her to know of the need of it but had a mistaken idea on how it was carried out. There is nothing to suggest that she had witnessed and learnt of the conduct of the test in the wrong way. She had in fact witnessed how it was done by Dr Gabriel Hung on 23 January 2018. The MMSE questionnaire is also clear on how it was carried out. Dr Tam just seized upon the way she expressed the complaint in her affirmation and asserted that she had misunderstood how the test was done. This is an unreasonable assertion. I repeat that if Ms Ma should have known of the need of the omitted test, she would have known how it was done. I therefore find that her complaint was the omission of the test by showing D1 the written instruction and not by giving her an oral instruction. 121.Dr Tam in his report dated 11 September 2018 further attacked Ms Ma of being most unethical in commenting on the accuracy of his report as she was not medically trained. I think Dr Tam’s attack is inappropriate. Ms Ma only made a factual account of what she witnessed of the assessment and pointed out Dr Tam’s omissions in fact. She did not make any medical comment on Dr Tam’s report. 122.Ms Ma’s case is corroborated by her notes and Dr Tam’s case is uncorroborated and there is no explanation for the lack of corroboration. Furthermore, I note that P has made good the omission in providing Dr Tam’s expert’s declarations and statements of truth for his reports by filing the same in the course of the trial. But P never made good the omission in filing Dr Tam’s MMSE result sheets per my direction despite the same being raised in Dr Tam’s cross-examination. For these reasons, I accept Ms Ma’s evidence in so far as it is in conflict with Dr Tam’s. 123.In the premises, I find that Dr Tam had not used the MMSE questionnaire in conducting the MMSE in the assessment on 9 March 2018. That is the reason why he did not carry out the “clap hands” test as the written instruction is printed in the MMSE questionnaire that he did not have. It also explains why he did not ask D1 to do the “copy design of overlapping pentagons” test and instead asked her to drawn a circle with a tail that resembled the letter “Q”. The overlapping pentagons are shown in the MMSE questionnaire that he did not have. 124.Owing to the lack of Dr Tam’s MMSE result sheet for the March 2017 assessment, I find that he had not used the MMSE questionnaire for this assessment as well. DECISIONS ON THE VALIDITY OF THE TWO EPOAS 125.I would deal with first the reports by Dr Tam on the two assessments he conducted on D1. Dr Tam’s reports for the assessment on 9 March 2018 126.Dr Tam said that D1 had scored 9/30 points. I have accepted Ms Ma’s evidence on how Dr Tam conducted this assessment and without using the MMSE questionnaire. Based on Ms Ma’s evidence, Dr CK Wong opined that D1 should have scored 21/30. 127.For the question on orientation of time, Ms Ma said that D1 was able to state not only the season and month but also that it was a Friday. Dr Tam disagreed. Dr CK Wong on the basis of Ms Ma’s evidence gave D1 1 extra point for this. I agree. 128.Regarding orientation of place, Ms Ma and Dr Tam had a dispute on whether Dr Tam had asked D1 the district where she lived. But in any case, Dr Tam merely said in his 2 October report that he had asked D1 where she lived. This is not the way to administer this test. The MMSE questionnaire stipulated that the person assessed should be asked whether he was living in Kowloon, the New Territories or Hong Kong. The next question is which district of Kowloon (or the New Territories or Hong Kong as he might have already answered). The third question to follow is which street. The fourth is the name of the building and lastly the floor he resided on. There are thus five questions with each correct answer be given one point. Dr CK Wong opined that Dr Tam had not asked the correct questions. I agree as I have accepted Ms Ma’s evidence. Dr CK Wong further opined that if D1 should have been asked the district she was in, she should have given the correct answer. This would give her one more point. I also agree. 129.Regarding D1’s ability to repeat and recall three nouns, Dr Tam did not give her any point for her failure to repeat and recall three monosyllabic nouns. He also gave D1 no point when she was able to repeat and recall three double-syllabic nouns on the ground that she did so as a result of rogue learning and constant practice. Dr CK Wong opined that it was expected that D1 would not have been able to repeat and recall the three monosyllabic nouns because of her severe hearing impairment. Dr CK Wong further pointed out that the MMSE advises using double-syllabic nouns. D1 was able to repeat the three double-syllabic Chinese nouns of apple, newspaper and train. Dr CK Wong added in oral evidence that the purpose of this test is not for repetition of sound but objects. I also repeat my observation above that a monosyllabic sound in Chinese can stand for many words of different meanings and hence may be difficult to be distinguished as a particular noun. Furthermore, the 2nd and 3rd monosyllabic nouns used by Dr Tam had the same vowel and consonants and only differed in tone level. Hence, D1’s failure to distinguish these three monosyllabic nouns and to repeat and recall them is not a reliable indication of her ability to repeat and recall. Hence, Dr CK Wong gave D1 6 points for her ability to repeat and recall the double-syllabic nouns. I agree. 130.The next test discussed by the parties is the folding paper test. It requires the person assessed to pick up a piece of paper with the right hand and fold it at the middle with both hands and then place the folded paper on the table. It carries 3 points. Ms Ma said that D1 had done it. Dr Tam said that D1 had done it with great difficulties and with repeated reminder and coaching by him. He thus gave her 1 out of 3 points. Dr CK Wong mistakenly said that it is Ms Ma’s account that Dr Tam did not carry out this test. But he referred to the reports by Dr Hung and Dr CP Wong and assessed that D1 should have been able to do this test. He thus gave D1 3 points. Since Dr Tam had indeed carried out this test. I am not prepared to adjust the point he gave D1 for it. 131.Regarding the “clap hands” test, Dr Tam did not give D1 any point for her failure to carry it out. Ms Ma said that Dr Tam had in fact not carried out this test. Dr CK Wong said that if D1 was not suffering from severe visual impairment, she should have scored 1 point for this. I disagree with this approach. I think the better way is to reduce the base point of 30 by 1 point as this test was not carried out. 132.The last test is the “copy design of overlapping pentagons” test which allows 1 point. Dr Tam modified it to a draw a circle with a tail test. D1 only drew a circle but not the tail. Dr CK Wong again said that but for D1’s severe visual impairment, she should have scored this point. I again disagree. I would reduce the base point of 30 by 1 point as this test was not carried out. 133.To sum up, I agree with parts of Dr Tam’s opinion as stated above and would add 8 more points for D1 and reduce two 2 base points. D1’s adjusted score would thus be 17/28. However, I agree with Dr Hung that if the questions of an MMSE are changed, then the test is no longer the MMSE. In the light of the changes to the questions and the rather unsatisfactory way that Dr Tam had conducted this MMSE, I would not regard it as an MMSE. I also find the result of this assessment as set forth in his pro forma report, assessment report and 2 October report unreliable. Dr Tam’s reports for the assessment on 22 or 23 March 2017 134.Dr Tam agreed in cross-examination that a person’s mental capacity fluctuates and there are many factors that affect a person’s mental capacity at any given time. This can be shown by the two MMSEs administered on D1 by the staff of RTSKH. On 17 August 2011 Ms Law Wai Yan, Occupational Therapist conducted the MMSE on D1 and she scored 17/30 (A158-159 §§103-106, B/301, SB190 and SB213 to 215). On 22 August 2011, Ms Wong Mei-yee, Occupational Therapist conducted another MMSE on D1 and she scored only 12/30 (A202-203, SB226-228). 135.D1 executed the 1st and 2nd EPoAs on 3 November 2015 and 26 January 2018 respectively. Dr Tam’s assessment of D1 on either 22 or 23 March 2017 was not close to either date. It is thus of little value for consideration of D1’s mental capacity to execute an EPoA on 3 November 2015 or 26 January 2018. Dr Tam had not perform any diagnosis to show that D1 was suffering from any particular neurocognitive disorder (“NCD”) on either 22 or 23 March 2017 and that such NCD should have existed and affected D1 on 3 November 2015 and would continue to affect her on 26 January 2018. Not every kind of NCD is irreversible or incurable. There is no dispute amongst the doctors in this case that NCD caused by another medical condition (“MNCD”) may be reversed upon removal of that condition. An example is NCD caused by anaemia and vitamin B12 deficiency. There are also NCDs that have a predictable course of development. But Dr Tam did not testify on these NCDs vis-a-vis D1. 136.Furthermore, I have observed above that it is more likely than not that D1 did not have the use of a hearing aid when assessed by Dr Tam on 22 or 23 March 2017 and Dr Tam did not communicate effectively with D1. I have also found that it was more likely than not that he had conducted this assessment without the MMSE questionnaire. This assessment was thus not conducted properly. For these reasons, the result of this assessment as set forth in Dr Tam’s pro forma and assessment reports is unreliable. Difference between the test for a Part II of MHO enquiry and mental capacity for executing an EPoA 137.Furthermore, Dr Tam has confirmed in cross-examination that his two assessments were for the purpose of an enquiry under Part II of the MHO on whether D1 was incapable, by reason of mental incapacity, of managing and administering his property and affairs under s 10 of the MHO. The statutory criteria for deciding a person to be so incapable are however different from the criteria for determining whether a person has the mental capacity to execute an EPoA as stipulated under s 2 of EPoAO and s 1A of PoAO. 138.Sections 2 and 7 of the MHO provide that an application for an inquiry to decide whether any person is incapable, by reason of mental incapacity, of managing and administering his property and affairs has to be supported by 2 medical certificates certifying that the person is so incapable. Of the two medical certificates, at least one should be given by a medical practitioner approved for the purposes of s 2 by the Hospital Authority as having special experience in the diagnosis or treatment of mental disorder or having special experience in the assessment or determination of mental handicap, as the case may be. However, s 5 of EPoAO only requires the donor of an EPoA to sign the instrument creating the enduring power before one registered medical practitioner and one solicitor. There is no need for the medical practitioner to be approved by the Hospital Authority as having special experience in psychiatry. For these differences as provided in the statuses, 139.An enquiry under s 10 of the MHO is to find out whether the person being enquired is incapable, by reason of mental incapacity, of managing and administering his property and affairs. But the question of whether a person is mentally capable to make an EPoA is whether he is suffering from a mental disorder or mental handicap and is either (i)unable to understand the effect of the power of attorney or (ii) by reason of his mental disorder or mental handicapunable to make a decision to grant a power of attorney or alternatively, he is unable to communicate to any other person who has made a reasonable effort to understand him, any intention or wish to grant a power of attorney even though he is not suffering from a mental disorder or mental handicap. The purpose of an enquiry under s 10 of the MHO is obviously different from an enquiry on whether a person has the mental capacity to make an EPoA. For these reasons, I also disagree with Dr Hung’s view expressed in oral evidence that an assessment for the purpose of an enquiry under s 10 of the MHO is more or less the same as an assessment of the mental capacity for executing an EPoA. 140.Besides, there is a clear judicial decision saying that a person who is incapable, by reason of mental incapacity, of managing and administering his property and affairs may still be capable to execute an EPoA. Hoffmann J (as he then was) observed in Re K (Court of Protection) [1988] 1 Ch 31 at 315: -
141.For the above reasons, the results of Dr Tam’s assessments, which were for the purpose of an enquiry under s 7 of the MHO, are of no use in determining if D1 had the mental capacity to execute an EPoA on the dates of the assessments or thereabouts. The 2nd EPoA dated 26 January 2018 142.Mr Wong in his closing submissions argued emphatically that D1 had failed in her MMSEs conducted by the public hospitals and the private doctors. Hence, he submitted that D1 did not have the necessary mental capacity to execute the 1st and 2nd EPoAs. However, the law does not stipulate the passing of the MMSE as the criterion for determining mental capacity. Dr Tam also pointed out in his 2 October report that the MMSE is only one of the tools of assessment used by doctors to determine the progress and severity of a dementia patient. Therefore, a person who fails an MMSE may or may not have the necessary mental capacity to execute an EPoA. I therefore find that Mr Wong’s submissions along this line to be unhelpful and of no use in determining if D1 had the mental capacity to execute her 2 EPoAs. 143.D1 executed her 2nd EPoA right after she had been certified by Dr Hung to be mentally capable to do so. Dr Tam said in his report dated 27 February 2018 that Dr Hung had used a simplified form of MMSE questionnaire. But he clarified in oral evidence that this was not a problem. His made no criticism of Dr Hung’s assessment. He only guessed that prior to Dr Hung’s assessment, D1 had received from her son D2, her family and her domestic helper nine months of practice and coaching, concerning the extent of her property and bank accounts and had constant training and rogue learning of the MMSE questionnaire. Constant practice by and coaching of D1 is thus the only argument adopted by Dr Tam as against the assessment by Dr Hung. 144.Dr CK Wong instead opined that when D1 made her 2nd EPoA, she only had a mild degree of a mild NCD due to Alzheimer’s disease (“ANCD”). There was no evidence of other psychiatric, neurological or medical conditions that might have affected her mental capacity. People with a mild degree of ANCD retain largely intact long-term memory function. They are still able to remember events and to learn, albeit they need to make repeated efforts and may need reminders from others. Their executive function is only mildly impaired. They can set goals, make plans and execute decisions and actions. They are able to appreciate their relationship with their significant others. They can express their wish through speech and language. Hence, they are able to comprehend the terms and implications of granting an EPoA and have the mental capacity to decide whether to grant one and to decide its terms. 145.Dr CK Wong analyzed Dr CP Wong’s MMSE which showed that D1 had retained her immediate and long-term memory functions intact and she lonely suffered partial impairment of recent memory function. Dr CK Wong further opined that Dr Hung’s findings were rather similar to those of Dr CP Wong apart from some minor differences in orientation in time and place and recent memory function which are not significant. Dr Hung’s MMSE findings and opinions are highly consistent with those of Dr CP Wong. Dr CK Wong also opined that Dr Hung was fully justified in opining that D1 showed a very good knowledge and ability in managing her assets and financial affairs despite her borderline performance on the MMSE. 146.Regarding constant practice, coaching and rogue learning, Dr Hung dealt with them in his oral evidence in chief. He said that for coaching or drilling to be effective, the person assessed had to be able to remember what he had been coached. He had to remember not just the answers but also the questions for the answers and the setting of the questions and answers. He had to remember that when a doctor asked him a particular question, he should come up with a particular answer. Coaching requires the long-term memory function as the information has to be retained for some time. Drilling or coaching is very difficult to succeed for someone who suffers from dementia. In cross-examination, Dr Hung agreed that a person suffering from mild dementia is trainable. That is consistent with the observation of Hoffmann J (as he then was) in Re K (Court of Protection). 147.Dr CK Wong opined in cross-examination that in milder cases of NCD, the information retained in recent memory can still be transferred to long-term memory. However, if a patient has lost his recent memory function as in moderate and serious NCDs, then there is no chance of learning for him. It is just like the case of losing the forearms would mean the loss of the function of the hand. Loss of long-term memory is progressive from proximal to distal in the time line. When the long-term memory is gradually lost, the information transferred from the recent memory also disappears gradually. 148.Dr CK Wong also dealt with in his report Dr Tam’s allegation of drilling. He opined that in the context of Dr Tam’s MMSE findings of 7/30 and 9/30 for D1, it is against fundamentally knowledge of NCD and a seriously wrong opinion to say that D1 could be subjected to constant training and rogue learning. Based on Dr Tam’s findings of 7/30 and 9/30 in MMSE, D1 would have been in a severe degree of major ANCD. In such case, D1 would be near the end of her life. If her scores of 7/30 and 9/30 were true, there was no way that anyone could have communicated with her rationally or coherently, let alone successfully coached her to give a good performance in MMSE. 149.If D1 could only score 7/30 and 9/30 in MMSEs on 22 or 23 March 2017 and 9 March 2018 respectively, then she would have been in a poor mental state and could not have been trained. If she could have been trained, then her recent and long-term memories could still function and she could exercise her executive and speech functions. The evidence showed that she was able to communicate her wish that D2 should be her attorney in case of her losing her mental capacity to manage her own assets and affairs. 150.On the whole, I accept the evidence of Dr Hung and Dr CK Wong as their evidence is reasonable and logical. Dr Hung’s evidence is also supported by the evidence of Ms Ma. 151.Dr Tam’s case is only built on his guesswork of coaching or drilling of D1 for which there is no evidence whatsoever. If his MMSE results are correct, then it would not have been possible to train or coach D1. If his MMSE scores are unreliable, then he cannot assert that there was coaching as there is nothing to counter the high scores by D1 in the MMSEs administered by Dr Hung and Dr CP Wong and the good assessment result of Dr Li. There is then nothing left in his case. I therefore reject Dr Tam’s evidence in so far as it is in conflict with that of Dr Hung and Dr CK Wong. 152.In the premises. I find that D1’s 2nd EPoA was validly executed by her on 26 January 2018 and she had the necessary mental capacity to do so. The 1st EPoA dated 3 November 2015 153.Mr Wong attacked Dr Ip’s MMSE also by asserting drilling of D1. He further submitted that if D1 could perform the “clap hands” test before Dr Ip despite her serious visual impairment, then D1 must have been well trained so that she knew that the printed instruction required her to read out “clap hands” and act accordingly despite her inability to see what was written on the paper. I would however say that if that was the case, then D1 was very intelligent when assessed by Dr Ip. She was able to say “clap hands” and act accordingly when just shown a piece of paper and asked to read out the words on it and act accordingly despite not seeing any word. However, Mr Wong submitted that D1 was not intelligent but a mental patient who did not have the necessary mental capacity to understand and execute an EPoA. 154.Apart from asserting drilling or coaching, Mr Wong also relied on D1’s MMSEs as administered by the staff of public hospitals from 2011 to 2015. In answer to the opinion of Dr Ip and Dr CK Wong that D1 was suffering from reversible MNCD in 2001 to 2005 owing to anaemia and vitamin B12 deficiency, Mr Wong submitted that D1’s haemoglobin and MCV levels were back to normal before the MMSE on 17 March 2015. Regarding vitamin B12 deficiency, Mr Wong referred to Dr Ip’s evidence in cross-examination that it would take 2 to 3 months of treatment to recover and that D1 had received treatment since the end of October 2014. Mr Wong also referred to the prescription of Aricept for D1 by the doctor of the general clinic. 155.Regarding the prescription of Aricept, Dr Ip has already explained in her report that D1’s anaemia gave the doctors at general clinic an impression that she had a poor memory and hence she was given Aricept which did not lead to much improvement in her. 156.Dr CK Wong pointed out in his report that according to the medical reports from the public hospitals, D1 was already suffering from anaemia and vitamin B12 deficiency in August 2011. Regardless of her MMSE score at 17/30 (with visual impairment), she could then lead an independent life without even a domestic helper. She could thus manage her daily living of feeding, toileting, bathing, dressing and walking as well as her finance, transportation, shopping, cooking, housecleaning and home maintenance. 157.D1 had another MMSE done on 17 March 2015 and she scored 16/30 (with visual impairment and missed out two tests). Dr CK Wong thus opined that if D1 was suffering in 2011 from ANCD, a progressive type of NCD, her MMSE score would have deteriorated by 2 to 4 points per year. The fact that there was no such deterioration was a strong point against the diagnosis of ANCD. The fact that she could score 25/30 in the MMSE administered by Dr Ip on 3 November 2015 showed that she had recovered from her mild MNCD which was caused by anaemia and vitamin B12 deficiency. 158.Regarding Mr Wong’s arguments that D1’s haemoglobin and MCV levels were back to normal before 17 March 2015 and her vitamin B12 deficiency should have been cured in 2 to 3 months from the end of October 2014, I agree with Mr Tai’s response to P’s closing submissions that Dr Ip’s answer that vitamin B12 deficiency could be cured within 2 to 3 months of treatment was just an estimate given after much reluctance. Individuals may differ in their reaction to treatment. In any case, Dr Ip noted in her report that D1’s condition was not fully treated until mid-2015 when a blood test at the geriatric special clinic of Ruttonjee Hospital showed her to be deficient of vitamin B12. 159.I also note that both Dr Ip and Dr CK Wong have relied on matters other than the MMSE to conclude that D1 had the requisite mental capacity to execute her 1st EPoA. They are also supported by the evidence of the solicitor Mr Lam. 160.In the premises, I agree with Dr Ip and Dr CK Wong that D1’s score of 25/30 on 3 November 2015 reflected D1s’ recovery from MNCD which was caused by anaemia and vitamin deficiency. I therefore find that D1’s 1st EPoA was validly executed by her on 3 November 2015 and she had the necessary mental capacity to do so. Other points 161.I would also say that even without the reports of Dr CP Wong and Dr Li, I would have come to the same conclusion as the evidence of Dr Ip, Dr Hung and Dr CK Wong are overwhelming. 162.Mr Wong has also raised other points like the motive of D2 in arranging D1 to execute her 1st and 2nd EPoAs. If D1 had the requisite mental capacity to execute her 2 EPoAs, then D2’s notice is irrelevant. Hence, I do not consider it necessary to deal with such argument. JUDGMENT 163.In the light of my findings, I adjudge that P has failed to discharge the burden of proof that D1 did not have the requisite mental capacity to execute her 1st or 2nd EPoA or that either or both of the 2 EPoAs are invalid. I therefore dismiss P’s claim. I also dismiss HCMH 62/2017. 164.I further make a costs order nisi that P do pay Ds the costs of this action and HCMH 62/2017.
Mr Tim Wong, instructed by Huen & Partners, for the plaintiff Mr Terence Tai and Ms Rosa Lee, instructed by Nixon Peabody CWL, for the 1st and 2nd defendants | |||||||||||||||||||||||||||
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