Re Lym

HCMH 44/2013

[2023] HKCFI 656

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MENTAL HEALTH CASE NO 44 OF 2013

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DECISION
(Preliminary Issues)

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Introduction

1.The preliminary issues to be determined by this Court are (i)  whether the Court has power to appoint the Committee as guardian under section 59M of the Mental Health Ordinance, Cap 136 (“MHO”)  (“Issue 1”)  and if not, (ii)  whether the Court has inherent jurisdiction to grant a guardianship order to the Committee (“Issue 2”)  (collectively “Preliminary Issues”).

2.On 7 August 2013, this Court, upon being satisfied that LYM was incapable, by reason of mental incapacity as defined in MHO of managing and administering her property and affairs, made an order on 7 August 2013 appointing Mr Yaddy Cheung and Ms Christine Sau Sing Yuen, in their capacity as solicitors, jointly as the committee of the estate of LYM (“Committee”)  under Part II of the MHO.

3.On 6 September 2021, the Committee issued a summons to seek various directions and relief (“Summons”)  and in paragraph 1 thereof, the relief sought was for the Committee or alternatively the Director of Social Welfare (“Director”)  be appointed as the guardian of the mentally incapacitated person, LYM, under section 59M of MHO and be authorised to seek the opinion of any medical professional and any of LYM’s family members on the healthcare of LYM, including the decision on vaccination, undergoing surgery, or the like.

4.On 21 February 2022, this Court directed that the Director be joined as a party to the Summons in respect of the relief sought by the Committee in paragraph 1 which was then adjourned to a date to be fixed for substantive hearing.  The substantive hearing was fixed before this Court on 23 November 2022.  At the hearing, the Preliminary Issues were raised by this Court and this Court directed further written submissions be lodged in respect of the Preliminary Issues and that the matter be dealt with on paper.

5.Counsel Mr Billy NP Ma lodged written skeleton submissions on behalf of the Committee and Senior Government Counsel Ms Vienne Luk lodged written skeleton submissions on behalf of the Director.

Relevant provisions in MHO

6.Under section 2 of MHO, a “mentally incapacitated person” (“MIP”)  means –

(1)  for the purpose of Part II, a person who is incapable, by reason of mental incapacity, of managing and administering his property and affairs; or

(2)  for all other purposes, a patient or a mentally handicapped person, as the case may be

7.Further, under section 2 of MHO, “mentally incapacity” means

(1)  mental disorder; or

(2)  mental handicap,

and mentally incapacitated shall be construed accordingly

8.Also, under section 2, “patient” means a person suffering or appearing to be suffering from mental disorder, “mentally handicapped person” means a person who is or appears to be mentally handicapped, and “mental handicap” means sub-average general intellectual functioning with deficiencies in adaptive behaviour, and “mentally handicapped” shall be construed accordingly.

9.Part IVB of MHO concerns guardianship of a MIP. In particular, section 59J sets out the establishment of “Guardianship Board”, and section 59K sets out the functions and powers of the Board.  Further, section 59K(2)  sets out the matters or principles the Board shall observe and apply in the performance of its functions or the exercise of its powers.

10.Section 59M of MHO provides, amongst other things, as follows:

“59M. Application for guardianship

(1)  A mentally incapacitated person who has attained the age of 18 years may be received into guardianship in pursuance of an application made to the Guardianship Board in accordance with this section.

(2)  A guardianship application may be made in respect of a mentally incapacitated person on the grounds that—

(a)  in the case of—

(i)  a mentally incapacitated person who is mentally disordered, he is suffering from mental disorder of a nature or degree which warrants his reception into guardianship under this Part; or

(ii)  a mentally incapacitated person who is mentally handicapped, he has a mental handicap of a nature or degree which warrants his reception into guardianship under this Part; and

(b)  it is necessary in the interests of the welfare of the mentally incapacitated person or for the protection of other persons that the mentally incapacitated person should be so received.

(3)  ……

(4)  ……”

11.Section 59N provides, amongst other things, as follows:

“59N. General provisions as to guardianship applications

(1)  A guardianship application under section 59M(1)  shall be in the prescribed form and may be made by—

(a)  a relative of the mentally incapacitated person;

(b)  a social worker;

(c)  a registered medical practitioner; or

(d)  a public officer in the Social Welfare Department,

and every such application shall specify which of those persons is making the application and, if made by a relative of the mentally incapacitated person, shall state the relationship.

(2)  No guardianship application under section 59M(1)  may be made by any person in respect of the mentally incapacitated person unless the applicant has personally seen the mentally incapacitated person within the period of 14 days ending immediately prior to the date of the application.

(3)  ……

(4)  ……”

12.Section 59O then provides that:-

“59O. Board may make guardianship orders

(1)  Subject to subsection (3), if, after conducting a hearing into any guardianship application made under section 59M(1)  for the purpose of determining whether or not a mentally incapacitated person who has attained the age of 18 years should be received into guardianship and having regard to the representations (if any)  of any person present at the hearing to whom a copy of the guardianship application has been sent under section 59N(3)  and considering the social enquiry report referred to in section 59P(1) the Guardianship Board is satisfied that the mentally incapacitated person is a person in need of a guardian, it may make an order appointing a guardian in respect of that person.

(2)  Any guardianship order made under subsection (1)  shall be subject to such terms and conditions as the Guardianship Board thinks fit, including terms and conditions (if any)  as to the exercise, extent and duration of any particular powers and duties of the guardian.

(3)  In considering the merits of a guardianship application to determine whether or not to make a guardianship order under subsection (1)  in respect of a mentally incapacitated person, the Guardianship Board shall observe and apply the matters or principles referred to in section 59K(2)  and, in addition, shall apply the following criteria, namely that it is satisfied—

(a)  (i)  that a mentally incapacitated person who is mentally disordered, is suffering from mental disorder of a nature or degree which warrants his reception into guardianship; or

(ii)  that a mentally incapacitated person who is mentally handicapped, has a mental handicap of a nature or degree which warrants his reception into guardianship;

(b)  that the mental disorder or mental handicap, as the case may be, limits the mentally incapacitated person in making reasonable decisions in respect of all or a substantial proportion of the matters which relate to his personal circumstances;

(c)  that the particular needs of the mentally incapacitated person may only be met or attended to by his being received into guardianship under this Part and that no other less restrictive or intrusive means are available in the circumstances; and

(d)  that in the interests of the welfare of the mentally incapacitated person or for the protection of other persons that the mentally incapacitated person should be received into guardianship under this Part.

(emphasis added)

13.As for the social enquiry report, section 59P provides as follows:-

“59P. Report of Director of Social Welfare

(1)  For the purpose of section 59O, a report (social enquiry report)  signed by or on behalf of the Director of Social Welfare and prepared by a public officer in the Social Welfare Department shall, subject to subsection (2), be received in evidence for consideration by the Guardianship Board.

(2)  A copy of the social enquiry report (or the substance of the report)  referred to in subsection (1)  shall be given or disclosed to—

(a)  an applicant making a guardianship application under this Part;

(b)  the mentally incapacitated person the subject of the application; and

(c)  the counsel or solicitor representing any person referred to in paragraph (a)  or (b).

(3)  The social enquiry report shall contain the views and wishes of the mentally incapacitated person, in so far as they may be ascertained and include an assessment of the family background, and social and financial situation, of that person.

Statutory interpretation

14.To start, section 19 of Interpretation and General Clauses Ordinance, Cap 1 provides that:

“An Ordinance shall be deemed to be remedial and shall receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Ordinance according to its true intent, meaning and spirit.”

15.As has been explained by Li CJ in HKSAR v Cheng Kwun Yin (2009)  12 HKCFAR 568, at 574E – 575B, in interpreting a statute, the court’s task is to ascertain the intention of the legislature as expressed in the language of the statute and is an objective exercise[1].  The then Chief Justice went on to explain:

“12. The modern approach is to adopt a purposive interpretation. The statutory language is construed, having regard to its context and purpose. Words are given their natural and ordinary meaning unless the context or purpose points to a different meaning. Context and purpose are considered when interpreting the words used and not only when an ambiguity may be thought to arise……And the purposive approach (including the mischief rule)  has been reflected in Hong Kong in s 19 of the Interpretation and General Clauses Ordinance, Cap 1.

13. The context of a statutory provision should be taken in its widest sense and certainly includes the other provisions of the statute and the existing state of the law. ...”

16.Fok PJ has also emphasized in HKSAR v Fugro Geotechnical Services Ltd (2014)  17 HKCFAR 755, at paragraph 22, pg 765-766 one must always have regard to the particular words used by the legislature in expressing its will.

17.There is no dispute in relation to the above general principles.

Legislative history and intent of MHO

18.Ms Luk has helpfully set out the legislative history and intent of MHO, as follows -

“4. …… guardianship was introduced into Hong Kong by the 1988 amendments of the MHO. According to the 1988 scheme, a guardianship application was forwarded to the Director and took effect upon acceptance by the Director. The Director played various roles in relation to guardianship applications, e.g. the Director may initiate an application, was required to make an assessment and was the authority for granting approval. See: LWY v Guardianship Board & Anor [2009] 3 HKC 170 at paragraph 20 [LoA#4] and sections 33, 34 and 35A (1988 version)  [FLoA#1] before the relevant 1997 amendments took effect.

5. In January 1997, the Mental Health (Amendment)  Bill 1997 (“the Bill”)  was introduced to amend the then MHO to, amongst others, provide for a new guardianship regime in respect of non-criminal matters for MIPs under an independent Guardianship Board, rather than being under the auspices of the Director. To improve the then existing arrangements for guardianship of adult MIPs, the Government proposed to create an independent Board which would be easily accessible and would have multi-disciplinary membership. It was suggested that the Board might be set up under the Judiciary, but the Government decided against this as it would not be appropriate to involve the Judiciary in administrative functions. The Board was to take over the functions and duties of the Director as the approval authority for guardianship applications. See: Legislative Council Brief dated 15 January 1997 (Ref. HW 9/3939/94 XV)  at paragraph 6 and sub-paragraph (c)  of the Explanatory Memorandum to the Bill at page 72 of the Annex [FLoA#2].

6. Regarding the types of people eligible for making guardianship applications, it was proposed in the Bill that guardianship applications could be made by the MIP’s relatives, registered medical practitioners or public officers in SWD. Many of the deputations proposed to include the heads of non-governmental organisations or social workers as eligible persons for making guardianship applications. However, the Government only agreed to include social workers as eligible persons for making guardianship applications and rejected the inclusion of the heads of non-governmental organisations due to the difficulty in making a legally enforceable and clear definition for non-governmental organisations or its heads. The Government considered that the Bill had provided adequate flexibility for the non-governmental organisations staff with whom the MIPs had resided to act as applicants if necessary[2]. See: Hong Kong Hansard dated 17 June 1997 at 190 and 191 [FLoA#3].

7. Further, the Government had expressed that if the cases concerned were not controversial, non-governmental organisations staff could continue to adopt the approach of managing the financial affairs for the MIPs as an informal trustee. It would not be a must to make guardianship applications for the MIPs, but if the related people thought that it would be more preferable to set down formal arrangements, and an applicant eligible to make application under the Bill would be available, they could also apply to be appointed the trustee of the estates of the MIPs. See: Hong Kong Hansard dated 17 June 1997 at 192 [FLoA#3].

8.  Subsequently, the Mental Health (Amendment)  Ordinance 1997(Ord. No. 81 of 1997)  [FLoA#4] was passed in June 1997 and Part IVB took effect on 1 February 1999[3]…...”

19.With the above legislative history and intent in mind, the Court now turns to consider the Preliminary Issues.

Issue 1- whether the Committee can make an application for a guardianship order for LYM under section 59M

20.As set out earlier, section 59M(2)  of MHO provides the grounds on which a guardianship application may be made and section 59N (1)  sets out the application shall be in the prescribed form (“Prescribed Form”)  and 4 categories of persons who may make the application (“Specified Persons”), and that every application shall specify which of those Specified Persons is making the application and , if made by a relative of the MIP , shall state the relationship. 

21.According to section 3 of the Mental Health Guardianship Board Rules, Cap 136E, the Prescribed Form is Form 1 of the Schedule therein, and under Part 1 of the Prescribed Form, the applicant has to indicate under which of those 4 categories of Specified Persons he/she is making the application.  There is no other category of Specified Persons provided in the Specified Form for the applicant to choose to indicate.

22.As pointed out by Ms Luk, unlike section 59U(4)  of MHO which specifies, amongst others, “any other persons (including a relative of the MIP)  who, in the opinion of the Board , has a genuine interest in the welfare of the MIP”, section 59N(1)  has not provided for the possibility of this other type of persons who would be eligible for making guardianship applications.

23.Ms Luk has also submitted that in light of the Government’s rejection of the deputations’ proposal to include the heads of non-governmental organisations as eligible persons for making guardianship applications when the Bill was introduced and debated at the Legislative Council, section 59 N(1)  is prescriptive. 

24.Mr Ma has also set out for this Court’s reference the Chinese version of section 59M(1), namely:-

“(1)  第59M(1)條所指的監護申請須採用訂明表格，並可由下述人士提出 ——

(a)  有關的精神上無行為能力的人的親屬；

(b)  社會工作者；

(c)  註冊醫生；或

(d)  社會福利署的公職人員，

此外，每一項該等申請須指明是該等人士中的哪位正提出該項申請；如該項申請是由有關的精神上無行為能力的人的親屬提出的，則須說明關係。”

25.In the above Chinese version, the words “並可由下述人士提出” are in my view even clearer than the wording in the English version in that the application can only be made by those Specified Persons set out in (a)  to (d).

26.In any event, in Mr Ma’s Further Skeleton Submissions, he also accepts the words “may be made by” in section 59N(1)  define the potential applicants who have the locus to make the guardianship application and “may” is a word of limitation and not permission. 

27.In light of all above said, as the members of the Committee do not fall within the Specified Persons under section 59N(1)  of the MHO, the Committee has no locus to make a guardianship application to the Guardianship Board under section 59M of the MHO.

Issue 2 – whether the Court has inherent jurisdiction to grant a guardianship order under section 59M

28.It is submitted by Ms Luk on behalf of the Director that:

(1)  Under section 59I, “guardianship order” is defined as an order made under section 59O[4], ie an order of the Board appointing a guardian in respect of an MIP.

(2)  With the addition of Part IVB which has come into operation since 1 February 1999, the Board was established to take over the functions and duties of the Director as the separate approval authority for guardianship applications in respect of adult MIPs.

(3)  Section 59J provides for the multi-disciplinary composition of the Board

(4)  Section 59K(1)  sets out the functions and powers of the Board

(5)  In considering the merits of a guardianship application to determine whether or not to make a guardianship order in respect of an MIP, the Board shall observe and apply the matters or principles referred to in section 59K(2)  as well as the criteria under section 59O(3).

(6)  The appeal mechanism also sheds light on the role of the Court vis-à-vis the Board on guardianship applications.  Under section 59W, the Court of First Instance (“CFI”)  is expressly made the venue for appeal. Further, a party’s right to appeal against the Board’s decision is limited to (a)  a question of law; or (b)  with the leave of the CFI, on any other question.

29.Ms Luk has referred this Court to the case of Re C (unreported, HCMP 1327/2007, 20 September 2007)  in which the MIP’s previous guardian lodged an appeal against the Board’s decision to replace her with the Director as the new guardian after a review of the original guardianship order, arguing on the ground that the Board had failed to give any reasons for its decision.  The appeal was allowed by A Cheung J (as the Chief Justice then was)  who found that the Board had failed to provide reasons but he declined to make a decision in favour of the appellant on the substantive matter, which is to order the appellant’s appointment as guardian be continued under the renewed guardianship order.  As explained in paragraphs 50 and 51 of his judgment:-

“50. Secondly and more generally, having considered the relevant provisions in the Mental Health Ordinance, particularly those relating to the composition of the Board and those relating to appeals to the court, I take the view that generally speaking, the court’s appellate role is essentially to deal with questions of law (section 59W(1)(a))  or any other questions that may merit the special attention of the court.  In my view, the general intention is that matters like guardianship applications and reviews should primarily remain matters for the Board to decide. ….. The Board comprises three members, ie the Chairperson or a presiding lawyer member, a member belonging to the medical doctor/social worker category, and a third member who has had personal experience with mentally incapacitated persons.  That composition is uniquely suited for making decisions on the types of applications that the Board is required to make.  The combined professional learning, trainings and experiences are invaluable in ensuring that the best decision is made in the interest of the mentally incapacitated person.  Their collective views are entitled to high respect from the court.

51. In those circumstances, I would say that save in exceptional circumstances, the court should be slow to make, in effect, a first instance decision on an application that should have been dealt with by the Board (where as here, no reasons have been given for the decision below). …… If nothing else, the Court sits alone and does not have the assistance of either a medical doctor or social worker who is experienced in assessing or treating mentally incapacitated persons, or a person who has had personal experience with mentally incapacitated persons.”

30.Thus submits Ms Luk, in light of above said, not only should the Court be slow to interfere with the Board’s decision on appeal, it is also not desirable for the Court to assume the role of the uniquely composed Board in considering guardianship applications and granting guardianship orders under section 59M.

31.Ms Luk has also referred this Court to Wong Hing Cheong & Anor v Wah E Investment Ltd & Anor [2002] 2 HKLRD 175[5] where it was held that where an Ordinance created a right or a remedy which had no existence independent of the Ordinance creating it, and, at the same time, the Ordinance laid down a particular method of pursuing it in a particular court or tribunal, the courts would tend to confine a person in pursuit of that right or remedy, to that particular court or tribunal (see: paragraphs 19 and 26).  This is directly relevant to the present case in which Part IVB has created the guardianship regime in respect of non-criminal matters for adult MIPs, whereby an independent Board, being a legal quasi-judicial tribunal, was established with its central statutory role of conducting hearings in order to make guardianship orders for adult MIPs with decision-making incapacities.

32.Ms Luk also points out that before the introduction of the Bill, the Government had decided against setting up the Board under the Judiciary as it would not be appropriate to involve the Judiciary in administrative functions. In light of the context and statutory purpose of Part IVB, including but not limited to the definition of “guardianship order”, the composition and specific functions of the Board and the appeal mechanism, Ms Luk submits that it is the clear intention of the Legislature to exclusively vest in the Board the right to consider guardianship applications and grant guardianship orders to adult MIPs. 

33.I am in no doubt that the composition of the Board as constituted under Part IV of MHO is , as said by Chief Justice, as he then was, in Re C “uniquely suited for making decisions on the types of applications that the Board is required to make”, and that their collective views are entitled to high respect from the court.  However, the present issue is not in respect of any challenge to the Board’s decision, but rather the Board’s professional learning, trainings and experiences under the MHO cannot even be called into play, as there are no Specified Persons eligible to make an application to the Board under the provisions of MHO.  Although it was the intention of the legislature to vest in the Board the right to consider guardianship applications and to grant guardianship orders to adult MIPs, the present application demonstrates that there may be inadequacies in the legislation.  

34.That there are inadequacies in MHO can be seen in the following cases which Mr Ma has referred the Court to:

(1)  LWY v Guardianship Board and Another [2009] 3 HKC 170

(2)  Re CML [2020] 3 HKLRD 481

(3)  Re TBS [2019] HKCFI 2929

35.Without setting out in detail, it has been said in the above cases:-

(1)  it is precisely due to the inadequacy of the statutory guardianship regime that there are gaps to be filled by the exercise of the inherent jurisdiction of the High Court under the common law doctrine of necessity (paragraph 28, LWY)

(2)  the jurisdiction was at first said to be governed by the common law doctrine of necessity, but the subsequent cases seem to suggest that the jurisdiction is based on the wider principle of the best interests and welfare of the incompetent adults (paragraph 23, Re CML)

(3)  in addition to these parallel jurisdictions in Part II and Part IVB of MHO, there is now also the inherent jurisdiction of the CFI to deal with other welfare matters not covered in the statutes.  One has to bear in mind that medical care and access issues are often interrelated and there is also overlap between the power given to a guardian under s 59R(3)(e)  of MHO and the protective jurisdiction to make access order by the CFI.  By heaving separate inquiries conducted in different forums, the court or the tribunal cannot take a holistic approach in considering all the different and yet interrelated welfare matters of the MIP.  This is highly unsatisfactory. (paragraph 41, Re CML)

36.Further, in Re CML, Lok J stated:

“25. In Re SA (Vulnerable Adult with Capacity: Marriage), in which Munby J, in 2005, reviewed the development of the inherent jurisdiction since its “rediscovery” in In re F (Mental Patient: Sterilisation) and explained its legal basis as well as the circumstances in which it was exercised:

(i)  The inherent jurisdiction is a “protective jurisdiction” on the welfare of incompetent adults.  It is used as the safety net to fill gaps left by the mental health legislation and for all practical purposes indistinguishable from the parens patriae or wardship jurisdiction in relation to children.

(ii)  The jurisdiction was first exercised in relation to medical issues.  It has been extended to questions of residence, contact, publication of matter damaging to a vulnerable adult and marriage.  It must evolve in accordance with changing social needs and social values.  In theory, it touches on everything that conduces to the incompetent adult’s welfare and happiness.

26. In St. Helens Borough Council v PE [20], Munby J, in 2006, also traced the development of the inherent jurisdiction on incompetent adults and held that “matters had moved on” and “the jurisdiction was exercisable in relation to a wide range of other questions, including, crucially, question where the doctrine of necessity was simply not engaged at all”. Hence, it is now settled in England that the jurisdiction is not based on the doctrine of necessity but on the wider principle of the best interests and welfare of the incompetent adults.  The relief to be granted is also not limited to declaration, and the court may make different order depending on the particular circumstances of the case.”

37.In the above cases, the courts decided to exercise inherent jurisdiction in relation to access issues concerning the relevant MIP.  However, in light of Munby J’s comments that the jurisdiction must evolve in accordance with changing social needs and social values and that it is based on the wider principle of the best interests and welfare of the incompetent adults, I have come to the conclusion that in light of the inadequacies of MHO, the courts in Hong Kong have inherent jurisdiction to appoint a person, who does not fall within the Specified Persons in section 59N (1)  of the MHO, to be a guardian for a MIP.

38.In light of my conclusion, I do not find it necessary to consider the other submissions made by Mr Ma in relation to common law jurisdiction for appointment of a guardian. 

Whether it is in best interest and welfare of LYM for a guardian to be appointed to protect her interests and welfare

39.LYM has been residing in a rehabilitation centre (“Centre”)  under Caritas (“Caritas”)  for some 18 years.

40.The basis of the present application was set out in the affirmation dated 30 August 2021 of one of the members of the Committee, Ms Yuen Sau Ying Christine, and also her 2^nd affirmation dated 27 January 2022.  In short Ms Yuen had deposed to:

(1)  On or around 5 March 2021, by an enquiry made by Caritas on or around 5 March 2021, a query was raised on the Committee’s ability and/or ambit of power in deciding on healthcare for LYM;

(2)  There had been several (and indeed regular)  instances in which the Committee was asked to advise on healthcare issues of LYM, eg on 5 March 2021, the Committee was asked whether LYM should take a COVID-19 vaccine.

(3)  Notwithstanding suggestions by the Committee to Caritas to provide health supplements to LYM, it seemed that there had not been any follow up, despite reminders

(4)  There were may other occasions where LYM was admitted into hospital and the Committee was duly informed but not certain and would have no power to decide as to what advice or decision should be made regarding LYM’s health condition in the event of any further query from Caritas or any hospital is raised.

41.According to the Committee, LYM’s family members have arguments over the money and healthcare issues of LYM and are mostly not interested in the matter as most of them are not in Hong Kong, and that the family members seldom paid visits to LYM at the Centre, and presumably they could not be contacted by Caritas.

42.On the other hand, Ms Luk submitted on behalf of the Director that LYM is currently receiving proper institutional care at the Centre, where she has been staying for approximately 18 years, with no issues over her care and medical needs and that any future similar medical needs can be sufficiently and satisfactorily addressed by the present arrangement, Part IVC and/or existing guidelines and that it is unlikely that LYM could satisfy the criteria under section 59O(3).  Further, although the Committee and Centre had held different views on the purchase of health supplements, the Committee has been working smoothly with the staff of the Centre on the welfare and care issues of LYM and there is no specific need that cannot be met without a guardianship order.

43.The present case is unusual and a sad one, in that none of the family members of LYM is interested in applying to be her guardian, or to take up the responsibility of caring for her, instead of delegating such responsibilities to their solicitors.

44.Even though I find that this Court has inherent jurisdiction to appoint a guardian for LYM, in deciding whether such an appointment should be made, I am of the view the provisions of sections 59M(2), 59O and 59P (which have been set out earlier)  may offer some guidance in whether the Court should in present circumstances appoint the Committee to be guardian of LYM. 

45.In particular, I am of the view that in exercising this Court’s inherent protective jurisdiction over LYM, subject to any further submissions the Director and parties may make within 14 days hereof, this Court’s jurisdiction includes requesting and calling upon the Director to submit a social enquiry report, to contain the information set out in section 59P(3), which is to be received in evidence for consideration by this Court before the Court decides whether to appoint a guardian for LYM and if so, whether the Committee should be appointed the guardian.  Unless there is any objection thereto, the social enquiry report is to be submitted to this Court within 3 months hereof.  Upon receipt of the social enquiry report, the parties may restore paragraph 1 of the Summons for a hearing for directions (30 minutes).

Conclusion

46.To summarise, my conclusions on the Preliminary Issues are:

(1)  On Issue 1, there is no power for this Court to appoint a person not specified in section 59N(1)  of MHO to be a guardian of mentally incapacitated person.

(2)  On Issue 2, the Court does have inherent jurisdiction to appoint a person not specified in section 59N(1)  of MHO to be a guardian of mentally incapacitated person.

47.Regarding costs, the costs of the written submissions for the Preliminary Issues should be paid out of the estate of LYM. The Committee and the Director to submit within 14 days their respective statement of costs for this Court’s summary assessment.

48.Unless objections with reasons are received by the Court within 7 days hereof, this Court grants leave for this decision to be published and uploaded to the Legal Reference website of the Judiciary.

Mr Billy NP Ma, instructed by Tse Yuen Ting Wong, for the Committee

Ms Vienne Luk, Senior Government Counsel of Department of Justice, for the Director of Social Welfare