Wong Shing Tat v. Wong Mei Lin and Another

DCCJ 4489/2024

[2026] HKDC 813

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 4489 OF 2024

________________

(By Re-amended Writ and Order to carry on made by Master Vivian Lee on 5^th December 2025)

___________________

DECISION

___________________

1.There are two applications before the court:

a.  D2’s summons dated 30 December 2025 (“D2’s Summons”) for leave be granted to Wong Sing Yiu (“WSY”), the guardian ad litem of D2, to file and serve a Notice of Severance on D1 in respect of the property known as Flat A, 29^th Floor, Tower 4, Pierhead Garden, Nos. 168 – 236 Wu Chi Road, Tuen Mun, New Territories (“the Property”), and that D2 do cease to be a party of these proceedings; and

b.  D1’s summons dated 22 January 2026 (“D1’s Summons”) for WSY to be removed as the guardian ad litem of D2 and for D1 to be appointed instead, and that WSY be joined as a party for the purpose of costs only and do personally pay for the costs of D1’s summons.

2.On 26 January 2026, the court has given orders for various affirmations and written submissions to be filed and served, and for both summons to be disposed of by paper.

Background

3.D2 is the mother of P, WSY and D1 amongst others.

4.The Property was acquired in September 1996 in form of joint tenancy between D1 and D2. P commenced an action on 9 May 2023 (initially in High Court but later transferred to District Court) against D1.

5.In short, P claims that there was an oral agreement between P, D1 and D2 regarding the purchase of the Property, and he has paid close to 50% of the purchase money of the Property amongst other costs and payments and therefore seeks, amongst others, a Declaration that D1 held and holds the Property on trust for P.

6.On 19 November 2024, the Court ordered that D2, as a joint tenant of the Property, be joined as a party in the action.

7.On 31 July 2025, the issue of D2’s mental capacity was raised by D1’s solicitors. The court ordered that the parties should make appropriate applications to resolve such.

8.By way of an ex-parte application, WSY was appointed by the Court as the guardian ad litem of D2 on 5 December 2025.

D2’s Summons

9.D2’s Summons is made pursuant to, amongst others, section 10A of Mental Health Ordinance, Cap. 136 (“MHO”) (paragraph 2 of the 2^nd Affirmation of WSY, Hearing Bundle p. 40) in that P’s claim is against D1 and not D2, and, by severing the joint tenancy, this will “shield D2 from further litigation” and “preserve D2’s asset for her own benefit” given that it is “understood that the MIP is financially unable to support the proceedings” etc. (paragraphs 6 and 8 of the 2^nd Affirmation of WSY, Hearing Bundle p. 41-42).

10.Whilst section 10A of MHO confers general functions to the “Court” with respect to property and affairs of a MIP in order to secure such as necessary for maintenance or benefit of the MIP, section 2 of MHO defines the “Court” as “the Court of First Instance and any judge of the Court of First Instance”. Thus, MHO does not confer jurisdiction on the District Court for such functions.

11.WSY also sought to rely upon RDC Order 80 rule 2(2) for the summons but such rule only provides power for the guardian ad litem to do anything “which in the ordinary conduct of any proceedings is required or authorised by the provision of (RDC)”.

12.It is trite that the function of a guardian ad litem “is to guard or safeguard the interests of the infant who becomes his ward or protege for the purpose of the litigation” (Re Whittall [1973] 1 WLR 1027).

13.Thus, unlike the power of the committee appointed under MHO, the power of a guardian ad litem is not a general one to deal with MIP’s properties and interests, but only to deal with the ordinary conduct of the litigation proceedings.

14.This action does not concern one joint tenant seeking to delineate her interest against the other. It is therefore distinguishable from Chin Ling Wah v Shum Chau [2022] 3 HKLRD 372 which concerned an order for sale under the Partition Ordinance (Cap. 352).

15.It is clear from the evidence from WSY that the purpose of the application is to preserve D2’s asset for D2’s own benefit and welfare. Thus, I am of the view that such considerations go beyond the power of a guardian ad litem as for purpose of ordinary conduct of this action.

16.Therefore, I find that this court does not have jurisdiction to deal with D2’s Summons. Instead, the application should properly be made in the Court of First Instance under the MHO. Thus, D2’s Summons should be dismissed.

D1’s Summons

17.In summary, D1 objects to WSY’s appointment as guardian ad litem on the following grounds:

a.  Alleged suspicious circumstances of how D2’s solicitors were originally instructed (Notice to Act dated 10 September 2025) given that D2 was already mentally incapacitated according to a medical report dated 2 June 2021 (disclosed by D1’s solicitors to D2’s solicitors on 9 October 2025) (paragraphs 3(1) – (3) and 11 of the Affirmation of Wong Mei Lin, Hearing Bundle p. 52 and 53);

b.  D2’s Summons, initiated by WSY, is effectively abandoning D2’s right of 100% of the interest of the Property under the joint tenancy at this early stage of litigation. Even if D2 could or would not mount a defence, WSY should still wait for the court’s final judgment to determine P’s claim for beneficial interest, thus showing that he is not acting in the best interest of D2 (paragraphs 16(2) and 21 of the Affirmation of Wong Mei Lin, Hearing Bundle p. 54 and 56);

c.  In taking out the ex-parte application to appoint WSY as guardian ad litem, WSY did not provide full and frank disclosure as to the alleged suspicious circumstances of the instruction of D2’s solicitors (see paragraph 17(a) above), how D2 as an MIT claimed to have accepted WSY’s appointment as guardian ad litem, and why WSY who resides far away in USA “would suddenly be appointed as guardian ad litem” (as I translate), and thus question whether WSY would act for the best interest of D2 (paragraph 19 of the Affirmation of Wong Mei Lin, Hearing Bundle p.55);

d.  D1’s understanding that D2 did not have a Will therefore severing the joint tenancy to tenant-in-common would mean that all 8 children of D2 (including WSY) would obtain interest on the Property after D2’s passing. The joint tenancy has been on-going for almost 30 years and D2 never disputed this arrangement. (paragraph 20 of the Affirmation of Wong Mei Lin, Hearing Bundle p.55-56); and

e.  WSY is living overseas and rarely visited D2 before so there is concern whether he could give instructions to D2’s solicitors.

18.Further, D1’s grounds that she should be appointed in place of WSY as guardian ad litem are as follows (paragraph 23 of the Affirmation of Wong Mei Lin, Hearing Bundle p. 56):

a.  D1 and D2 have been joint tenant for almost 30 years and their interests are aligned;

b.  D1 could visit D2 more often than WSY; and

c.  Reduced legal costs if D1 and D2 instructed the same solicitors.

Relevant legal principles

19.Order 80, Rule 3(4) provides:

“Where a person has been or is next friends or guardian ad item of a person under disability in any proceedings, no other person shall be entitled to act as such friend or guardian, as the case may be, of the person under disability in those proceedings unless the Court makes an order appointing him such friend or guardian in substitution for the person previously acting in that capacity.”

20.In SX v LW and others (unreported) HCMC 8/2011, Mimmie Chan J stated:

“7. Whether it is a case of a fresh appointment, or a change in the appointment, of a guardian ad litem for a patient under disability, an important if not paramount consideration of the court in the exercise of its discretion must be the protection or safeguarding of the patient’s interests in the action.

8. Even if it is to be accepted that impropriety does not have to be established in this case, and that a distinction can be made between the removal of a guardian on the ground of impropriety, and a change in the appointment for reasons other than impropriety, the onus is on F- as the party making the application for his appointment as guardian in place of the Official Solicitor who has been appointed by the court - to established to the satisfaction of the court that he is a fit and appropriate person to be appointed as guardian for the Husband in this case.”

21.In Moral Luck Finance Ltd v Law Kin Leung (2015) 18 HKCFAR 343, Ribeiro PJ stated:

“21. I might add in passing that the assumption by a next friend or guardian ad lite of that role without prior inquiry by the Court may of course not be final. If, for instance, it is subsequently discovered that the person assuming the role is not acting in good faith or otherwise unsuitable, or indeed, for any other good reason, the Court may appoint someone else in substitution…”

22.In Nalder v Hawkins (1833) 2 My & K 243, Lord Chancellor Brougham stated:

“The true and just principle which should govern all such cases is this. No discouragement ought to be thrown in the way of persons bona fide suing as next friends, but no undue facility should be given to mere volunteers, who interfere rather for their own purposes than for the [infant’s] advantage. While they appear to act bona fide they will be protected; the presumption will rather be in their favour; the proof will rather be thrown upon those who impeach their motives; the leaning will be more for than against them. But no strained presumptions will be made to protect them; no forced constructions will be put on their conduct; no benefit from bare possibilities will be conjured up on their behalf. They must be content to have their motives appreciated and their acts judged like other parties. If they have involved themselves in suspicion, their proceedings must be subjected to inquiry…or if the suit be useful to the infant, but the parties instituting it be unfit to conduct it, they must give place to others in whom the court can better repose confidence.

It follows that such cases must depend upon its circumstances; nor will the Court even order an inquiry unless just cause of suspicion exists…”

23.Having considered such precedents, Mr. Recorder Pow SC in Ng Kong Yeam (by his next friend Ng Chung San) v Farlim Group (China) Limited and Ors HCA 2176/2011, stated the test (as I summarise):

a.  The burden is on the plaintiff to establish that there are good reasons for removing the existing guardian;

b.  The plaintiff has to establish the substitute is a fit and proper person as the protector of the MIT’s interest;

c.  The court should not exercise its discretion to remove and substitute the existing guardian for another unless there are good reasons to do so; and

d.  The overriding consideration is the protection or safeguarding of the MIT’s interest in the action and whether the substitute is a “more fit and proper person on which the court can better repose confidence”.

24.Some of the good reasons for removal are failure to act on good faith or otherwise unsuitable (see Moral Luck Finance Ltd case above), if he has an interest in the suit adverse to the minor, or closely connected to a party having adverse interest (paragraph 80/3/10 of Hong Kong Civil Procedures 2016).

25.As to what defines “interest adverse”, it was stated in Dr. Ricardo De Armas Davila (the personal representative of the estate of Marina Davila De Armas) v Mr. Alvaro Salvador de Armas Davila & Ors (unreported, HC - 2013 - 000537, 18 April 2016):

“27.1 The relevant inquiry regarding whether the guardian ad litem…has interest adverse to that of the protected party shall be directed towards the conduct and outcome of the litigation. It will, in most cases, not be relevant to search, outside the bound of the particular litigation, for some factor that might suggest some potential conflict between the interest of the party and the interest of the litigation friend unless it can be reasonably be said that this potential conflict may also affect the manner in which the litigation friend is likely to approach the conduct of the litigation;

27.2 It follows that the fact that person appointed as litigation friend has his own independent interest or reasons for wishing the litigation to be pursued ought not, in general, be a sufficient reason for impeaching the appointment. Such an interest, would at least in general, run in the same direction as the protected party rather than being adverse to the protected party’s interests;

27.3 The guardian ad litem shall seek the best outcome for the protected party;

27.4 The purpose of requirement that litigation friend be able “fairly and competently” seldom requires the Court…to engage a general inquiry extending far beyond the issues of skill, ability and experience and instead venturing into consideration of unproven allegations of a series of potential transgressions said to have been committed over a period of years.”

Considerations

26.Firstly, as for D1’s ground (paragraph 17(e) above) that WSY is living overseas and has seldom visited D2 over the past years, this is an objection that WSY was not able to “fairly and competently” pursue the action. D1 has not present any evidence that would raise the court’s concern regarding the skill, ability, experience of WSY in conducting the action, especially when he has instructed solicitors. Thus, this ground does not constitute a good reason to remove WSY.

27.As for the central issue (paragraphs 17(b) and (d) above) of whether WSY has interest adverse to D2, and whether WSY taking out D2’s Summons is evidence of such, the court is also of the view that there is insufficient evidence to support such.

28.D1’s allegation is that WSY took out D2’s Summons to prematurely deprive D2 of her 100% entitlement to the Property under the joint tenancy so that he could potentially take a share of the Property upon D2’s passing.

29.Such a claim, in my view, is very serious and akin to an allegation of bad faith.

30.On the other hand, WSY’s submission is that P’s claim is not directed at D2. There was no reason why she should incur costs to defend the claim especially when her funds were limited and such funds were better reserved for her own maintenance and welfare. Thus, the purpose for D2’s summons is to protect such.

31.I cannot see anything improper in such considerations, especially given the circumstances of this case: the likely immediate need of D2 (95 years old with dementia), as oppose to the need for a theoretical benefit of maintaining 100% interest of the Property upon survivorship under the joint tenancy.

32.If there are such competing needs, these may be matters to be considered as a balancing exercise by the Court of First Instance upon an application made under the MHO. At this stage, when this court is considering exercising its discretion to remove a guardian, there is insufficient evidence to suggest that the conduct of this action by WSY was in any way improper, let alone in bad faith. Indeed, I find that D1’s allegation of “bad faith” only goes as far as speculating the possible potential benefit to WSY in the future.

33.D1 also raises allegations that P and WSY has a “close connection” because WSY’s evidence on certain matters appear to “align” with P’s position. One must bear in mind that evidence may appear “aligned” if it is the truth, but the court is not in a position to conduct a “mini-trial on affidavit” to ascertain this and to decide whether this may show “close connection” or “alliance”. Further, evidence such as whether a person has visited D2 more often than another is not determinant for deciding whether one can “fairly and competently” pursue the action but the other cannot. As such, such dispute is largely irrelevant for the court’s consideration.

34.Under the circumstances, I am not convinced that there is sufficient evidence to show that WSY’s conduct of the action is adverse to the interest of D2.

35.As for the alleged suspicious circumstances of how D2‘s solicitors were instructed initially (paragraphs 17(a) and (c)), I find that this has nothing to do with the requirement of the appointment of a guardian ad litem. Indeed, there is no evidence before the court regarding the circumstances of how D2’s solicitors were initially instructed. If it is D1’s allegation that there has been any professional misconduct, it is not a matter for this court to adjudicate.

36.Having found that D1 has not discharged the burden to establish that there are good reasons for removing WSY as the guardian, I need not proceed further.

37.However, for the sake of completeness, I also have some concern on whether D1 has established herself as a “more fit and proper person on which the court can better repose confidence”.

38.It would appear from the Statement of Claim that P’s case, in gist, is that D1 has not made any financial contribution and is merely holding the Property on a resulting trust for P. P has no dispute with D2 who was joined by virtue of her registered title. It is arguable that D1’s interest may be adverse to D2’s because D2 may not have any interest in defending the claim whilst D1’s interest is clearly for defending. The fact that D1 and D2 have been joint tenants for nearly 30 years in the past does not mean that their interests must be aligned in this action, because their positions relative to each other are much dependent on P’s claim in the action.

39.As such, I am of the view that D1’s Summons should also be dismissed.

Order

40.As such, I would make the following order:

a.  Both D1’s Summons and D2’s Summons be dismissed;

b.  There be a cost order nisi that the costs of D1’s Summons be paid by D1 to P and D2. If there is no agreement, P and D2 shall lodge and serve their respective summary bill of costs within 28 days from the date hereof and D1 shall lodge and serve her summary list of objections 28 days thereafter, and costs be summarily assessed by way of paper disposal;

c.  There be a cost order nisi that the costs of D2’s Summons be paid by D2 to P and D1. If there is no agreement, P and D1 shall lodge and serve their respective summary bill of costs within 28 days from the date hereof and D2 shall lodge and serve her summary list of objections 28 days thereafter, and costs be summarily assessed by way of paper disposal; and

d.  Unless there are applications to vary the same, the above cost orders nisi be made absolute within 14 days of this Decision.

Mr Antonio Tsui, instructed by Messrs Ivan Tang & Co., for the plaintiff

Mr Kin Lau, instructed by Messrs CAN Lawyers, for the 1^st defendant

Ms Lo Lai Kam, instructed by Messrs Joseph Li & Co., for the 2^nd defendant