Re Lhhk

HCMH 121/2019

[2020] HKCFI 2552

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MENTAL HEALTH CASE NO. 121 OF 2019

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J U D G M E N T

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1.This is a contested application for the appointment of the committee of the estate of LHHK under Part II of the Ordinance. On one hand, the Director of Social Welfare (“Director”) applies for an order that the Official Solicitor (“OS”) be appointed as the committee, and on the other, LHHK’s younger sister (“PL”) has intervened and has been allowed by this Court to join as the respondent and she seeks an order that she be appointed as the committee.

2.The Director issued the ex-parte originating summons herein on 19 December 2019.  The hearing of an enquiry under section 7 of the Ordinance was initially fixed on 11 March 2020 but due to the Covid-19 pandemic, the Director’s application was directed to be dealt with on paper. However, PL made a last minute application to intervene and the hearing of the enquiry was refixed to 1 June 2020.  On 28 May 2020, the parties consented for leave to be given to PL to intervene and that the Director’s application was to be fixed for a substantive hearing, with directions given for amongst other things filing of evidence and lodging of skeleton arguments.  Eventually, the substantive hearing took place before this Court on 24 September 2020.

3.The originating summons was accompanied by medical certificates from two doctors, namely Dr Leung Lam Ming Jess and Dr Fung Pui Man, whose medical certificates were respectively dated 14 October 2019 and 17 October 2019.  There was no dispute that LHHK is a mentally incapacitated person under Part II of the Ordinance.  This Court is in any event satisfied that based on those medical certificates, LHHK is a mentally incapacitated person who is incapable by reason of mental incapacity of managing and administering his property and affairs pursuant to section 10(1) of the Ordinance. 

4.The parties are also not in dispute that a committee should be appointed under section 11 of the Ordinance.  The only issue is whether it should be the OS as proposed by the Director, or PL.

5.Ms Christine Wong, Government Counsel, appeared for the Director, and Counsel Mr Jonathan Tsang appeared for PL.  OS adopts a neutral stance, and leave was given for his attendance to be excused.

The affirmations 

6.Miss Tsang Hiu Tung (“Miss Tsang”), Assistant Social Work Officer of the Social Welfare Department, who is also the Medical Social Worker of Medical Social Services Unit at the Kowloon Hospital Psychiatric Department and currently the case worker in relation to LHHK,  has made a total of 3 affirmations on behalf of the Director, one supporting and 2 affirmations in reply (which will be referred to her 1^st, 2^nd, and 3^rd affirmations respectively) together with filing the Certificate of Family and Property for LHHK (“Certificate”).

7.PL has filed two affirmations in these proceedings, and again they will be simply referred to as her 1^st and 2^nd affirmations respectively.  Mrs Law, who is said to be LHHK’s carer (“Mrs Law”), has made an affirmation to support PL’s application as committee.

Brief Background of LHHK

8.LHHK was born in Manila, Philippines, in July 1950.  On his birth certificate issued by the British Consulate in Manila[1], his father was described as a merchant who was born in Hong Kong in May 1912 and was stated to be a British subject (“Father”).  LHHK has a younger sister, namely PL, who was born in Hong Kong in July 1953 and is now 67 years old.  Their mother (“Mother”) was said to have come from a wealthy family, and Mother’s eldest brother (“Uncle”) was said to be a very wealthy man.  Uncle and his wife (“Aunt Rose”) and their family had emigrated to the United States, but had previously frequently travelled back to Hong Kong.

9.LHHK was brought up in Hong Kong and he is holder of a permanent Hong Kong Identity Card.  According to PL, LHHK received secondary education up to Form 5 and he had wanted to become a doctor.  He was said by PL to have “inadvertently overstressed himself in his studies at that time”, and as a result, he suffered from depression and subsequently had to drop out of school.  LHHK has never been in employment.  He never got married and has no children.  He and PL were living with their parents in a flat on Boundary Street in Kowloon which was purchased by Mother in 1957 (“Boundary Street Property”)[2]. LHHK is now 70 years old.

10.As seen from PL’s 1^st affirmation and also from medical reports, it would appear that LHHK has had psychiatric problems since about 1974, when he was in his 20s. 

11.As for PL, she received tertiary education and studied literature and had worked as a tutor for primary school students for decades before her retirement in 2016.  According to her, Father predeceased Mother.  Mother passed away in June 1991 in Hong Kong. 

12.Mother had made a will in March 1990 in which she appointed both LHHK and PL as her executors and bequeathed her estate to the two of them in equal shares.  Mother’s estate consisted of amongst other things, the Boundary Street Property which had since been vested in the names of the two beneficiaries LHHK and PL as tenants-in-common pursuant to a deed of assent dated 23 March 1993. 

13.According to a social enquiry report dated 27 July 2017 (“July 2017 Report”) prepared in the course of the Guardianship Proceedings described later in this judgment, PL herself also suffered from mental illness[3].

14.After Mother’s death, LHHK and PL continued to live in the Boundary Street Property.  According to PL, Mother had requested Aunt Rose to take care of her and her brother and to assist them in their daily affairs.  Further, according to PL, when Aunt Rose was still living in Hong Kong, she had employed a helper to take care of LHHK and PL from 1991 to 1996 and after that helper passed away in 1996, Aunt Rose then employed Mrs Law. According to the July 2017 Report, Mrs Law was hired on 18 March 1996 to take care of LHHK and PL.  Further, Aunt Rose had also instructed one of Uncle’s employees, a Mr Yu (or Yuen), to manage payment of the two siblings’ household bills, which were paid mostly by Aunt Rose before she emigrated to the United States.  

15.It was not clear when exactly Aunt Rose emigrated but PL had said she last saw Aunt Rose in 2006-2008, and that several months after their meeting, Aunt Rose and Uncle had deposited a sum of about HKD 5m into LHHK’s bank account for his future daily expenses and that Aunt Rose also made sure all bills and expenses were automatically paid form LHHK’s bank accounts every month.  However, according to the July 2017 Report, Aunt Rose seemed to have visited LHHK in Hong Kong in 2012[4].

16.PL continued to live in the Boundary Street Property with LHHK until about 31 October 2010[5] when she moved to live in a flat in Tseung Kwan O which PL said she purchased from the proceeds of sale of the shares distributed to her out of Mother’s estate (“Tseung Kwan O Flat”).  The Tseung Kwan O Flat was said to be held in the name of one Fan Ka Fai as trustee for her and eventually in 2015, by a deed of gift dated 13 May 2015, the ownership of the Tsueng Kwan O Flat was transferred to PL. 

17.PL had said after she moved out of the Boundary Street Property, she left LHHK in the care of Mrs Law and that after PL moved out, she did not have any contact with LHHK until from 2013 onwards.  However, according to the July 2017 Report, it was 2014[6].

18.According to the July 2017 Report[7], Mrs Law, her husband and their son moved to reside in the Boundary Street Property since 2013. Further, according to the July 2017 Report, Mrs Law’s husband has run a funeral service business for over 20 years, and that they have 4 adult children.  They were living in Shek Kip Mei before.  Their eldest two daughters were married and they were living apart and their son finished a degree course at university in September 2017.  Their youngest daughter had also sometimes stayed in the Boundary Street Property. 

19.Aunt Rose is 100 years old and she lives in California in USA. 

20.PL’s own evidence was that between 2010 and 2013/2014, there was no contact between her and LHHK and then thereafter, PL started to visit LHHK again once in every 2 weeks until the Covid-19 pandemic.  On the other hand, it would appear from the information provided by the care home, PL only visited LHHK under Mrs Law’s escort at around one-month interval before the Covid-19 outbreak[8].

21.According to the medical reports, LHHK is suffering from amongst other things schizophrenia, dementia and Parkinson’s disease.  According to the Certificate filed by the Director, since 1974 and until April 2016, LHHK had had 6 psychiatric admission records and 11 hospitalisation records^[9].  LHHK was admitted to the Kowloon Hospital between June to November 2015 for uncontrollable water and toilet water drinking and between December 2015 to April 2016 to the Kwai Chung Hospital for uncontrollable water drinking.  Between 2015 – 2016, there were also 5 hospitalisation records for LHHK’s other physical health problems.

22.It would appear that after LHHK’s discharge from the Kwai Chung Hospital he was arranged to be placed under the care of the La Salle Old Men and Women Rest Home since 3 May 2016 by the then case medical officer.  Later, Mrs Law tried to discharge him from that care home but her request was turned down as she was not his guardian.  Mrs Law apparently made a report to the police and eventually on 29 September 2016, she took LHHK back to the Boundary Street Property and employed an Indonesian helper to take care of LHHK.

23.Subsequently thereto, on 28 June 2017, Mrs Law issued an application for her to be appointed the guardian of LHHK under section 59M of the Ordinance (“Guardianship Proceedings”). 

The Guardianship Proceedings

24.Upon Mrs Law’s application, a Mr Si Man-ching (“Mr Si”),  the then Medical Social Worker at West Kowloon Psychiatric Centre in relation to LHHK, prepared and submitted the July 2017 Report on behalf of the Director to the Guardianship Board (“Board”)[10].  A hearing was eventually conducted on 1 November 2017 (“01.11.17 Hearing”) by the Board and the Board ordered that LHHK be received into guardianship for a period of one year commencing from that day (“Guardianship  Order ”)[11].  The Director was appointed as the guardian of LHHK (“Guardian”).

25.The Board had handed down reasons for making the Guardianship Order on 8 November 2017 (“Reasons”)[12].  

26.It would appear that PL had been contacted by Mr Si at the time but she had expressed no views to the application.  As seen in the Reasons, the witnesses who attended the 01.11.17 Hearing were LHHK himself, Mrs Law, and Mr Si.  

27.According to the July 2017 Report, LHHK apparently failed to sign his previous signature at the banks and any withdrawals of money from his bank account/s had been rejected by the banks since May 2017 and that taking into account LHHK’s deteriorating physical and mental conditions, Mrs Law viewed that it was better for her to be the guardian so as to execute accommodation, finance, medical treatment/dental treatment and welfare planning for LHHK.

28.As set out in the Reasons, when Mrs Law was explained by the Board what was reported by Mr Si to be her reason for the application was that LHHK could no longer sign to withdraw money from bank, Mrs Law agreed that this was also the reason for her application.  It appeared that later Mrs Law had tried to apply to withdraw her application for guardianship, saying she was very much frightened by Mr Si.  Amongst other things, according to Mrs Law, in July 2017, Mr Si had called her and alleged that a sum was stolen from LHHK’s bank account/s. 

29.It further appeared that during the 01.11.17 Hearing before the Board, Mrs Law had turned emotional and claimed that Mr Si had made up everything.  

30.As mentioned earlier, the Board made the Guardianship Order and appointed the Director as the Guardian at the 01.11.17 Hearing, and this was after the Board had taken evidence from LHHK, Mrs Law and Mr Si, and had considered all the documentary evidence.

31.On the same day of the Guardianship order, the Board made a recommendation that the Guardian (namely the Director) or a relative of LHHK should make an application under Part II of the Ordinance for the appointment of a committee, as LHHK had substantial amount of savings, stocks as well as possible beneficial interests in his residence and other assets which the Board did not have jurisdiction over[13].

32.Thereafter, on 20 April 2018, there was an interim report on the progress of the Part II application submitted (“Interim Report”)[14].

33.The then Medical Social Worker who prepared the Interim Report had contacted both PL and the Aunt Rose by telephone to seek their views respectively on the Part II application.  PL declined to make such an application and showed no objection to the Director’s plan of initiating such an application for LHHK.  As for Aunt Rose, due to her age and hearing problems, her views could not be obtained over the phone then and there[15]. On 6 April 2018, referral was sent to the Department of Justice for legal advice in relation to a Part II application.  The Director was informed that generally in the absence of any suitable and willing person to be appointed, the OS would be agreeable to being appointed as the committee.

34.The case worker had sent emails to PL and Aunt Rose respectively and received written confirmations from Aunt Rose and PL on 18 April 2018 and 20 April 2018 respectively.  They both agreed to the Director’s proposed appointment of the OS as the committee.

35.As seen in the Interim Report, after the Guardianship Order, on 13 November 2017, the Director had informed the banks concerned to stop any further withdrawals from LHHK’s bank accounts and to cancel Mrs Law’s name as an authorized person in dealing with LHHK’s bank accounts (which according to Mrs Law, was apparently arranged by Aunt Rose) and the Director had arranged for a monthly sum of HKD 15,300 to be transferred from LHHK’s HSB account into an account opened by the Director for LHHK and further changing the appointee for managing LHHK’s Higher Disability Allowance from Mrs Law to the Director/case worker.  Any expenses paid by Mrs Law for LHHK were reimbursed by the case worker after vetting of the receipts produced.

36.Thereafter, Mrs Law sought legal advice and instructed solicitors Messrs Stephen Lo & P Y Tse (“L&T”) in August 2018 to write to the Board and/or the Director.  Mrs Law made an application for a review of the Guardianship Order on 22 October 2018 (“Review”), for an order to substitute herself as the new private guardian of LHHK in place of the public guardian, ie the Director.

37.The hearing of the Review, together with the mandatory regular review, took place on 31 October 2018 (“Review Hearing”). Mrs Law attended the Review Hearing together with a solicitor from L&T.  LHHK also attended the hearing, and Miss Tsang had attended the hearing on behalf of the Director.  Prior to the Review Hearing, on 19 September 2018, Miss Tsang submitted a progress report (“Progress Report”)[16].

38.It was reported that after the Guardianship Order, LHHK had continued to live with Mrs Law and her family in the Boundary Street Property.  His daily living and treatment compliance had been continuously supervised by Mrs Law and her domestic helper during the review period. It was further reported that the family support for LHHK was fair only, and according to Mrs Law, PL arranged occasional tea gatherings with LHHK, but Aunt Rose was too old to visit them from USA.  Mrs Law described having close relationship with LHHK and that she had already treated him as her family.

39.The Progress Report revealed that LHHK had been under good care by Mrs Law and it was only in August 2018 that LHHK’s physical health turned worse and resulted in two hospitalizations by the time the Progress Report was submitted.

40.Just prior to the Review Hearing, at the written request of the Board, the then case worker supplied supplementary information by letter on 29 October 2018 (“29.10.18 Letter”)[17]. 

41.It can be seen in the 29.10.18 Letter, LHHK was sent to the Accident & Emergency Department of Queen Elizabeth Hospital on 2 August 2018 accompanied by Mrs Law and the responsible case worker and LHHK was admitted for in-patient treatment.  Although he was discharged on 5 August 2018, he was later admitted to the Kwong Wah Hospital on 10 August 2018 and then transferred to the Wong Tai Sin Hospital for rehabilitation on 20 August 2018.  Due to LHHK’s drastic decrease in physical condition, and the limitations of home care and also Mrs Law’s concern over LHHK’s feeding problem, residential care service was deemed necessary.

42.On 5 October 2018, when LHHK was discharged from the Wong Tai Sing Hospital, he was arranged to stay at the Yuen Yuen Nursing Hom cum Day Care Centre (“Yuen Yuen”).

43.As set out in the 29.10.18 Letter, notwithstanding Mrs Law had strong concern over LHHK’s feeding problem, she had attempted to feed LHHK with solid food even though she had been repeatedly reminded of the importance of appropriate diet for LHHK and risk of choking, and she had further reduced the dosage of medication without following to prescription to help LHHK off from medications.  It was reported that although it was believed that Mrs Law had made those attempts which she thought good to LHHK, her strong belief on her views might hinder her cooperation with different professionals to promote LHHK’s welfare.

44.Ultimately, the Board dismissed Mrs Law’s application for the Review, and the Guardianship Order was continued for a period of 3 years.

45.The Board had again set out detailed reasons for its decision (“Review Reasons”).  Such reasons included: 

(i)     The Board found that Mrs Law had not followed the speech therapist advice and by failing to do so, there could be significant risks to LHHK and accordingly the Board was not convinced that Mrs Law was able to accept professional advice for the best interests of LHHK;

(ii)     There was a clear conflict of opinion of future care plan of LHHK between the Director and Mrs Law and that the Board believed that a neutral public officer appointed as the legal guardian would suit the present situation;

(iii)     Mrs Law’s attitude had been fluctuating in that she was the one who first applied for the Guardianship Order, then she had requested to withdraw the application and then during November 2017 Hearing, adopted an open stance as to whether the Guardianship Order should be granted or whether the Director be appointed, and then she made the application for the Review for herself to be appointed;

(iv)     There was clear conflict of interests of financial nature between Mrs Law and LHHK in terms of her position as a paid carer with salaries outstanding, and that as a paid carer, she had moved into LHHK’s residence with her entire family and then hired another foreign domestic helper to give actual care to LHHK and that at Review Hearing, she then planned to hire another foreign domestic helper in giving daily care to LHHK if he were to be restored to his residence;

(v)     The Board stated that it only learnt with “stark surprises” that 2 days before the 01.11.17 Hearing that Mrs Law who had already produced for her then application for guardianship, two medical reports certifying that LHHK to be a mentally incapacitated person, had arranged the execution of a will at a solicitor’s office by LHHK and under the will she had apparently become a beneficiary entitled to half of LHHK’s estate.  The Board noted that judging from what was said by LHHK at the 01.11.17 Hearing, the Board queried why there was not a doubt cast on LHHK’s capacity in signing the will by the solicitor handling the matter.  The Board further noted that LHHK signing the will was not disclosed by Mrs Law to the case workers on behalf of the Director in the Guardianship Proceedings, and this matter only came to light when the Director corresponded with the Aunt and the Board considered the arranging of LHHK signing a will to be a “clear act of financial abuse”[18].

(vi)     The Board had stated that Mrs Law was not a relative and that LHHK plainly had no relative in Hong Kong and his only younger sister had had no involvement in the affairs of LHHK, and that in social isolation, LHHK needed the protection of the public guardian[19].

46.At the Review Hearing, the Board again made recommendation that the Guardian/Director should apply for an order for the appointment of a committee under Part II of the Ordinance, and that the Guardian/Director was required to submit an interim report on the progress of the application within 6 months.

47.Eventually on 19 December 2019, the Director issued the originating summons herein for the appointment of the committee. 

LHHK’s financial position

48.As seen in the Schedule to the Certificate filed by the Director, LHHK’s assets were:

(i)     cash at banks at various dates set out, totalling about HKD 8.78m;

(ii)     securities in the securities account at HSB as at 31.08.19 of HKD 3,245,414.50 and securities in the securities account at HSBC as at 28.08.19 of HKD 5,917,481.20, totalling HKD 9,162,895.70;

(iii)     ½ share in the Boundary Street Property, the market value of the entire property as at 08.07.19 was assessed to be HKD 14.5m.

49.According to the Certificate, LHHK was receiving Higher Disability Allowances at the rate of HKD 3,540 per month, and he also received dividends from shares from 1 November 2017 to 5 September 2019 of HKD 652,134.05.  His expenses were at that time approximately HKD 22,000 per month.

50.LHHK’s debts and liabilities were about HKD 194,420.10, of which apart from HKD 10,000 owed to the Owners’ Corporation of the building of the Boundary Street Property for LHHK’s share of contribution towards the Corporation fund, the balance of HKD 184,420.10 was said to be owed to Mrs Law, being her salaries and amounts she had paid for LHHK for his living expenses prior to the Guardianship Order.

The wills

51.As seen in the Review Reasons, Mrs Law did not disclose to the Board that two days prior to the November 2017 Hearing, she had taken LHHK to a solicitors’ office to make a will and this was only disclosed by Aunt Rose when she wrote to the Director.  The Board was referring to the 2^nd Will referred to below and not the 1^st Will which PL’s Counsel Mr Tsang said in his Skeleton Submissions.  Anyway, it later turned out that was not the first time Mrs Law had taken LHHK to make a will, and that there was an earlier will, namely the 1^st Will referred to below.  Further, Mrs Law had also taken PL to make a will.  Chronologically, the wills were:

(1)     On 5 July 2017, Mrs Law took LHHK to the solicitors’ firm Yip, Tse & Tang (“YTT”) and LHHK made a will in which Mrs Law was appointed the sole executrix of his will, and that he bequeathed all his residuary estate to Mrs Law and PL in equal shares absolutely (“1^st Will”)[20];

(2)     On 11 July 2017, Mrs Law took PL also to YTT and PL made a will in which Mrs Law was appointed the sole executrix of her will. PL bequeathed (i) the Tseung Kwan O Property and (ii) her half share in the Boundary Street Property, to Mrs Law and LHHK in equal shares.  As for her residuary estate, 50% was bequeathed to LHHK, 40% to Mrs Law and 10% to Po Leung Kuk (“PL’s Will”)[21];

(3)     Then on 30 October 2017, Mrs Law took LHHK to another  solicitors’ firm Chan, Evans, Chung & To to make another will in which he appointed Mrs Law as his sole executrix and trustee of the will, and bequeathed all his residuary estate to Mrs Law and PL in equal shares (“2^nd Will”)[22].

52.It would appear that Mrs Law realised that there was no psychiatric report on LHHK’s testamentary capacity at the time of LHHK making his 1^st Will, she then took LHHK to see a psychiatrist at the time of LHHK making his 2^nd Will.

53.This was produced by PL in her affirmation, namely a report from a Wisteria Medical Centre dated 30 October 2017 and a Dr Au Yeung Kwok Leung at the Wisteria Medical Centre certified LHHK was examined at 10:30 am on 30 October 2017 and that he was of sound mind, memory and understanding and that he was sufficiently orientated and in adequate command of his own faculties to understand the will, and further he was aware of the nature of the will and of his act[23].

The Director’s reasons for OS to be appointed as the committee

54.The Director takes the view that a neutral party, namely the OS, should be appointed as the committee for the following reasons:

(i)     PL’s age and health condition – Reason (i)

(ii)     the complexity and size of LHHK’s estate – Reason (ii)

(iii)     Matters relating to the validity of LHHK’s wills will have be to be investigated by the future Committee – Reason (iii)

(iv)     PL’s commitment to care and welfare of LHHK – Reason (iv)

(v)     PL’s previous cooperation with the Director/Guardian of LHHK – Reason (v)

Reason (i) – PL’s age and health condition

55.PL is now 67 years old.  Ms Wong submitted that PL is in frail health, referring to letter of 4 March 2020 which PL had sent to the Director (“04.03.20 Letter”)[24].

56.In the 04.03.20 Letter, PL acknowledged she had received the Part II application documents. She said she did not know much about her brother’s affairs in the recent year or so but she did not want to simply give her consent to the guardian to have wider powers to use LHHK’s assets other than cash as this would be irresponsible.  She then went on to say that she is an elderly person residing alone and she is unwell/ “身體有病” and was not able to find anyone to help her in solving transportation problems and that she was worried over the correct address of the court and whether there would be a change to the hearing date.  Further, she was concerned that she might be regarded to have given up an opportunity to raise her views, and that she had asked the Director to telephone her and to inform her how to express her views in writing if she was unable to attend the hearing.

57.Mr Tsang submitted on behalf on behalf of PL that there was no medical evidence to show that PL’s current physical condition would in any way affect her ability to carry out her duty as LHHK’s committee.

58.However, it was PL who herself had said she was unwell in the 04.03.20 Letter which in her 2^nd affirmation, she had admitted was sent by her, and yet she did not explain in her 2^nd affirmation as to why she said she was unwell.  The 04.03.20 Letter was in fact written by PL about 3 weeks after she had seen a psychiatrist Dr Leung Chi Ming (“Dr Leung”) on 11 February 2020[25].  According to Dr Leung’s report, PL was examined in the presence of Mrs Law and that collateral information was obtained from Mrs Law and that the purpose of PL’s assessment was in relation to her mental well being in general and her mental capacity to deal with affairs involving LHHK in specific.  Dr Leung had said that other than her psychiatric follow-ups, PL had enjoyed good health with no major physical illness.

59.Thus, it would appear that when PL said she was unwell in the 04.03.20 Letter, she was referring to her mental condition.  As mentioned earlier and as seen in the July 2017 Report, it was reported by Mr Si therein that PL suffered from mental illness[26]. Dr Leung had also mentioned in his report that PL had had follow up appointments at the psychiatric outpatient unit of the Kowloon Hospital for “insomnia” since 10 years ago, and the exact diagnosis was not known to her but she was never admitted as an in patent and she is currently maintained on Pregabalin 75-100mg at night and attended follow up appointments at about 4-month intervals.

60.PL had performed well with the MMSE and other tests/assessments on the day of her being assessed. Dr Leung’s conclusion was that as on assessment on 11 February 2020, PL was mentally stable in general with no significant severe psychopathology evident, and that she possessed adequate cognitive function and mental capacity to deal with her activities of daily living in general and “the affairs involving her elder brother in specific”.  Dr Leung however did not explain why PL needs to be on medication and that she needs to attend regular follow ups.

61.It is also not clear whether it was made known to Dr Leung that that PL was intending to apply to be the committee of her brother under Part II of the Ordinance, which involves managing and administering LHHK’s “property and affairs” and that “affairs” would include legal transactions and other business or financial matters[27], as opposed to merely care of LHHK over which PL showed concern, which was referred to in paragraph 9 of Dr Leung’s report.

62.In any event, there was no medical report in relation to PL from the Kowloon Hospital Psychiatric Department obtained or placed before this Court.  The diagnosis of PL’s “insomnia” was unknown.  What is also clear was that on PL’s own evidence, and as mentioned earlier, after Mother died, it was Aunt Rose who had to arrange for carers to look after both PL and LHHK and to arrange for their bills to be paid notwithstanding that at the time of Mother’s death, PL was 38 years old.  The fact is that PL is still on medication and has to attend regular follow ups.

63.I do not find Dr Leung’s report and the present evidence from PL is sufficient to alleviate this Court’s concern over her health condition and to whether she is capable of managing and administering LHHK’s property and affairs.

Reason (ii) – the complexity and size of LHHK’s estate

64.It is not disputed that LHHK has a relatively sizable estate but it was submitted on behalf of PL that she is prepared to instruct her present solicitors firm to be jointly appointed as the committee in order to assist her on managing her brother’s assets[28].

65.However, this was not PL’s own evidence.  What PL had said was that in light of her unfamiliarity with the necessary steps to be taken as a committee, she was prepared to instruct her present solicitors’ firm or any other professional as the Court would deem appropriate at the expense of LHHK in connection with or incidental to any issues arising out of LHHK’s estate[29].

66.In my view, what PL had said above and/or her evidence in her affirmations shows that there is really no sufficient evidence that PL has a  full understanding of the duties of a committee[30].

67.Further, if PL needs to rely on a solicitor to carry out her duties as the committee, this will increase the costs to LHHK and/or his estate, and in any event, no hourly rate or estimated costs have even been put forward for this Court’s consideration.

Reason (iii) – Matters relating to the validity of LHHK’s wills

68.As for LHHK’s wills, Mr Tsang referred to Banks v Goodfellow (1870) LR 5 QB and applied recently in Re The Estate of Lau Heung (Deceased) [2020] 2 HKC 19 and submitted that someone suffering from a mental illness could have the requisite testamentary capacity.

69.There is no dispute to what was submitted above.  In fact it can be seen in Re Estate of Au Kong Tim (Wills: Validity) [2018] 5 HKC 185, [2018] 2 HKLRD 864, CACV 177/2017 ( 20.04.18) that there are three limbs as to the testamentary capacity and the three relevant questions to ask are[31]:

“(1) If the [testator] was capable of understanding the nature of the act of making the 2008 Will and its effects?

(2) If the [testator] was capable of understanding the extent of the property of which he was disposing?

(3)     Was the [testator] able to comprehend and appreciate the claims to which he ought to give effect?”

70.The Court of Appeal in Re Estate of Au Kong Tim (Wills: Validity has further referred to a checklist published by the British Medical Association and the Law Society.

71.There was no sufficient evidence set out by Dr Au Yeung Kwok Leung in his report of 30 October 2017 as to the basis or information or tests upon which he found that LHHK was able to understand the 2^nd Will and/or aware of the nature of a will and of his act  and that he was of testamentary capacity[32].  In any event, whether LHHK had the testamentary capacity to make his 1^st Will and/or his 2^nd Will will be a matter for the Court if the validity of the wills is called into question by the committee.

72.Suffice to say that at this stage, Mrs Law did not disclose the fact that she had accompanied LHHK to make the two wills and in particular the 2^nd Will was made 2 days prior to the Guardianship Order, notwithstanding she was the one who initiated the Guardianship Proceedings and that she had given evidence during the 01.11.17 Hearing.  I can see the Director’s concern over the validity of the wills and the need for investigation by the committee including whether the Court should make a statutory will.

73.It seems however PL’s position is that the 1^st Will and the 2^nd Will “obviously were reasonable in the circumstances, and are in line with [LHHK’s] true wishes”[33], and that even after costly legal proceedings, the Court would ultimately be likely to make a statutory will exactly the same as the wills now.

74.It is not clear what further investigations by the committee would throw up in future, and it is premature to say at this stage as to whether the Court will make a statutory will and if so whether it will be the same as LHHK’s present wills.  On the other hand, in light of PL’s present views, it seems that if appointed as the committee, she may not think any further investigations would be necessary.  In the circumstances, I agree with the Director that there may be a potential conflict of interest between PL’s personal interest and her role as the committee.

Reasons (iv) and (v) – PL’s commitment and previous cooperation

75.So far as PL’s commitment is concerned, as seen later, I find that there is no sufficient evidence that PL has taken a personal interest in LHHK’s affairs in the past.  At present, the Director is the Guardian and having considered PL’s past lack of co-operation in not answering the telephone calls from the Director/case workers and her expressed preference for the Director/case workers to go through Mrs Law, I find that there is no sufficient evidence that in future she is going to adopt a different attitude. 

Reasons as to why PL wanted to apply to be the committee

76.According to PL, she did not know about Mrs Law’s application for guardianship and it only came to her attention that in or about 2017 when Mrs Law invited her to attend a meeting with Mr Si at the Boundary Street Property.  She said she was later told by her solicitors that the Director was appointed the Guardian instead of Mrs Law and PL had said she had no objection to the appointment although she did have a few concerns about the quality of care provided for LHHK.  

77.Mr Tsang had referred this Court to W v H (Mental Incapacity); Re THM [2011] HKFLR 1 in which it was held by the then Deputy Judge L Chan J, citing para 4-005 of Haywood and Massey Court of Protection Practice, that the general order in which candidates for an appointment as committee from the authorities would be the patient’s spouse, followed by any relative who took a personal interest in the patient’s affairs, then an independent person such as a friend or officer of the local authority[34]. Mr Tsang thus submitted that in line with the normal practice, PL should be appointed as the committee of her brother’s estate.

78.As seen in her 1^st affirmation, PL has said she has interests in these proceedings and that she is clearly an interested and affected party in that (i) she is the only remaining close relative and a potential beneficiary of his estate; (ii) she shares ownership of the Boundary Street Property with LHHK; and (iii) she intends to cooperate with the Director to improve the quality of care given to LHHK and that she will be able to do so by utilising the funds from LHHK’s estate as his committee[35].

79.Her 1^st affirmation was filed in support of her application to join as a party in these proceedings.  There was no dispute that PL has interests in these proceedings and/or she is an interested or affected party, and the Director has consented to her joinder as the respondent herein.

80.However, this does not mean that PL has taken a personal interest in LHHK’s affairs.

81.First, as seen in the factual background and the Guardianship Proceedings, and on PL’s own evidence, Aunt Rose had to hire carers to look after both LHHK and PL, and that all payment of bills for LHHK and PL was taken care of by Aunt Rose and/or Uncle’s staff.  When Mother passed away in 1991, PL was about 38 years old.  Had PL been able, willing or interested to personally take care of LHHK and his financial affairs, one would have thought that there would be no need for any carers to be hired by Aunt Rose.  In any event, on PL’s own evidence she moved out from the Boundary Street Property in 2010, and has not in fact been living with LHHK, or taken care of LHHK or his affairs at least for past 10 years, and as seen in her 04.03.20 Letter referred to earlier, PL has said that she knew little about the truth of LHHK’s affairs in the recent year or so[36].

82.Second, in response to Miss Tsang’s evidence that PL was stressed when LHHK’s welfare matters were discussed with her and that in December 2019 PL had refused to answer Miss Tsang’s repeated phone calls, PL admitted that she had informed the Director and/or the case workers through Mrs Law that she preferred them to contact Mrs Law direct for welfare matters of LHHK, and PL stated that she believed Mrs Law to be the best person to handle the welfare matters of LHHK at that material time[37].

83.Third, on PL’s own evidence, she was aware of the Guardian ship Proceedings, and yet she never applied for any review although this Court was informed at the hearing that she has now made such an application.  In any event, PL clearly knew of the Director’s intention to apply to be appointed as the committee under Part II of the Ordinance as on 18 April 2018, she had signed a letter of request to the Official Solicitor, requesting the Official Solicitor to be the committee and to deal with LHHK’s assets[38] (“18.04.18 Letter”).  Further, she had never issued any application under Part II of the Ordinance herself and only applied to join and/or to intervene in these proceedings in April this year, after the Director had issued the originating summons herein. 

84.Having considered the above and all the evidence, I do not find that there is sufficient evidence that PL has taken a personal interest in LHHK’s affairs.

The Director’s care of LHHK 

85.During the hearing, Mr Tsang submitted on behalf of PL that there had been delay in the Director providing proper care to LHHK.

86.It appears that PL instructed her present solicitors in about February 2020 and although her solicitors wrote to Ms Wong acting for the Director to inform her that PL would like to be appointed as the committee, it was only on 15 April 2020 that PL’s solicitors wrote to request for LHHK to be transferred from Yuen Yuen back to the Boundary Street Property due to the Covid-19 pandemic, claiming that LHHK would be more susceptible in contracting the virus by staying in a public home.  This was followed up by another letter dated 24 April 2020 that PL had been contacted by Mrs Law and was informed that LHHK was admitted to the United Christian Hospital on 24 April 2020 due to choking on food fed to him by a member of the staff at Yuen Yuen, and that PL was proposing to transfer LHHK from the public hospital to a private hospital, namely St Teresa’s Hospital, in order to receive higher standard of treatment and to avoid coming into contact with patients with Covid-19. 

87.Ms Wong replied on 29 April 2020, to seek further information on the “higher standard of treatment” planned by PL for LHHK.  However, on 5 May 2020, PL’s solicitors then said that in light of LHHK’s improved condition, it was no longer necessary to transfer him to a private hospital and then suggested that LHHK be transferred home.  There was then an enquiry from Ms Wong as to when PL would move back to the Boundary Street Property to live with LHHK and to supervise his care, and in her solicitors’ letter of 19 May 2020, PL had said any time so long as medical advice permits LHHK to move back and PL had further said that she intended to seek LHHK’s doctors’ advice on what further steps need be taken to ensure that LHHK receives proper home care[39]. PL had also suggested that she and the Director to write a joint letter to LHHK’s doctors at the public hospitals to enquire whether LHHK could return home to receive home care.

88.There was no response from Ms Wong to PL’s solicitors’ letter of 19 May 2020 and their reminder letter of 27 May 2020.  As it turned out, on 27 May 2020, LHHK was discharged from the hospital back to Yuen Yuen.  It was on 4 June 2020 that PL’s solicitors wrote for the first time to set out PL’s grave concerns as to whether LHHK had been properly taken care of at Yuen Yuen in light of the frequency of his hospital admissions during his stay at Yuen Yuen, and that it was suggested that if home care was considered to be not in the best interests of LHHK, he should be transferred to a different nursing home.  

89.It was clear from the above letter that PL accepted that whether it was possible for LHHK to return to the Boundary Street Property would depend on LHHK’s doctors’ advice and that the first time that PL formally voiced her concerns over the care LHHK at Yuen Yuen was on 4 June 2020.

90.Thereafter, without waiting for the Director’s reply, on 11 June 2020, PL’s solicitors wrote and informed the Director that PL had chosen another home called The Longevity Home for the Aged (“Longevity Home”) and that Mrs Law had made a deposit payment of HKD 1,000 on behalf of PL to secure a place for LHHK, and PL proposed that LHHK be transferred there instead.

91.Thereafter, the Director had arranged visitations to both the Longevity Home and another home with Mrs Law in July 2020 while PL declined to join the visits.  Upon the visits, on 21 July 2020, the Longevity Home was preferred but the total monthly fee for LHHK would be HKD 50,000 and the Director then requested a written confirmation from PL to pay an extra costs in moving LHHK.

92.Eventually, on about 11 September 2020, LHHK was moved to the Longevity Home.

93.Although PL complained of delay on the part of the Director, I do not find that there was sufficient evidence of undue delay. The fact is that the Director, being the Guardian, has the duty to make enquiries as to a suitable home and to look at other available choices and to carry out visits to the proposed home instead of simply accepting PL’s/Mrs Law’s proposal.  Further, the Director would need to resolve the question of payment, as the committee has not yet been appointment, and the Director would also need the endorsement from the Board in relation to the transfer. 

94.There was in fact no sufficient evidence that the facilities and/or services at Yuen Yuen were inadequate or that such had led to LHHK being admitted to hospital on various occasions, and there was no sufficient evidence that the proposed home care would be feasible.  

95.The transfer took some three months to effect. In my view, having considered all the circumstances, there was no undue delay on the part of the Director. 

96.In any event, the complaints about Yuen Yuen and the proposed home care/transfer concerned the care of LHHK and are matters for the Guardian to consider.  This does not mean that OS should not be appointed the committee or that PL should.

Conclusion 

97.Having considered all the above and the circumstances of this case, I am of the view that it is in the best interests of LHHK to have a neutral person to be his committee and that OS, who has indicated his consent to so act, is the appropriate committee to be appointed for LHHK.

98.I will direct Ms Wong to submit a draft final order for this Court’s approval.

99.As for costs, I am of the view that the issue of the originating summons and for costs up to 14 April 2020 should be paid out of LHHK’s estate.  Thereafter, as PL has not succeeded with her application, she should pay for the Director’s costs incurred after 14 April 2020, such costs to be summarily assessed and paid by PL within 14 days after summary assessment. The Director is to lodge a statement of costs within 14 days, and PL is to lodge a list of objections with 14 days thereafter.

100.This is an order nisi which shall be made final after 21 days.

101.I will direct a copy of this anonymised judgment to be published and uploaded to the Legal Reference website, unless written objections with reasons are received within 14 days hereof.

Ms Christine Wong, Government Counsel of Department of Justice, for the applicant

Mr Jonathan Tsang, instructed by Leung Kin & Co, of the respondent

Attendance of the Official Solicitor was excused