Szeto Kwok Hung Roque v. Szeto Kwok Kwong Bernard and Others

HCMP 2596/2017

[2020] HKCFI 3048

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2596 OF 2017

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BETWEEN

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Before:  Hon K Yeung J in Chambers

Date of Hearing:  2 December 2020

Date of Decision:  2 December 2020

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D E C I S I O N

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1.I refer to my Decision of 7 September 2020 (“7/9/2020 Decision”) for the background of the matter. This is the substantive hearing of the plaintiff’s application to vary the Injunction Order.

2.Pursuant to my directions previously given, the defendants have filed one affirmation in opposition, namely that of the 2^nd defendant of 21 September 2020.  The plaintiff has filed none in reply.

3.This morning, the defendants continue to be represented by Mr Remedios. The plaintiff does not turn up.  In his letter of 27 November 2020 to this Court, the plaintiff points to certain changes in circumstances resulting in the defendants consenting to the transfer of TLW to the HKSH.  He says that the application for variation has been adequately dealt with save on costs.  He says he is reluctant to attend court.

4.There are in fact 2 changes in circumstances:

(a)  The issue by Canossa of its letter of 2 November 2020 through its solicitors that:

“ Transfer is required to a hospital with intensive care support and continuous renal replacement therapy. Unless this is done urgently, it may not be possible to transfer [TLW].”

(b)  As a result of that letter, the defendants have indicated their consent to the transfer;

(c)  However, it appears that no place at the HKSH could be secured for TLW. Parties have then developed another dispute as to whether TLW should be transferred to Gleneagles Hospital instead, and whether there should be a change of her medical teams;

(d)  TLW is now still in Canossa;

(e)  The 2^nd change is that the hearing before the Guardianship Board has taken place.  It did so on 27 November 2020.  The Board has notified parties that it will hand down its decision within 7 days of the hearing, ie by 4 December 2020;

(f)  Once the Board has handed down its decision and a guardian appointed, the plaintiff’s application for variation will become entirely academic.

5.I repeat my observations made in my 7/9/2020 Decision.  Allowing the application would allow the plaintiff powers not just to override the views of his siblings but also that of the Guardianship Board.  I repeat further my observations on the quality of the evidence filed by the plaintiff in support. He has filed no further evidence to supplement his case.  The letter from Canossa, whilst it supports a transfer of TLW to a hospital with the specified facilities, does not support the width of the variation sought by the plaintiff.  I have considered varying the Injunction to allowing TLW to be transferred to HKSH.  But given the practical difficulty in securing a space there for TLW, and the imminence of the Board’s decision, I do not find it appropriate to pre-empt the Board’s decision or the decision of the guardian to be appointed.  In all the circumstances, in the light of the evidence before me and the width of the application, I dismiss the application.

6.I will hear parties on costs.

The Plaintiff was not represented and did not appear

Mr Leo Remedios and Ms Alice Lau, instructed by Bernard Wong & Co, for the 1^st to 3^rd Defendants

Mr Philip Cheng, of the Official Solicitor