Cheng Chi Tang Margo v. Wong So Ying

HCA 1750/2021

[2026] HKCFI 3284

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1750 OF 2021

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D E C I S I O N

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1.On 27 January 2026, Master Dick Ho acceded to an application (“Appointment Application”) to appoint Ms Cheng Shuk Chun Cynthia (“Ms Cheng”) as the Defendant’s guardian ad litem in these legal proceedings.  On the same occasion, the learned Master also made no order in relation to the Plaintiff’s application (“Examination Application”) to have the Defendant examined by two psychiatrists and to give access to the Defendant for such an examination.  This is the Plaintiff’s appeal against both orders made by the learned Master. 

2.To support his appeal in relation to the Examination Application, the Plaintiff has also taken out a summons to adduce further evidence.

3.I consider that it is more convenient to first deal with the Plaintiff’s appeal against the appointment of Ms Cheng as the Defendant’s guardian ad litem.

A.      APPEAL AGAINST APPOINTMENT OF GUARDIAN AD LITEM

4.The Defendant is now 96 years old and the Plaintiff is one of her sons.  When these proceedings commenced on 18 November 2021, the Defendant was 91 years old.  Before the learned Master, there was evidence to the effect that the Defendant’s solicitor was informed by some of the Defendant’s children in late July 2025 that the Defendant mental capacity had been deteriorating rapidly.  A medical report made in September 2025 was also adduced to say that the Defendant could not understand her right to instruct a lawyer, could not recall to be involved in legal proceedings, and was incapable of giving instructions to conduct these proceedings.  It was in these circumstances that Ms Cheng, being the Defendant’s daughter, applied under RHC O.80 r.3(5) to have herself appointed as the Defendant’s guardian ad litem.   

5.O.80 r.3(5) provides “[w]here, after any proceedings have been begun, a party to the proceedings becomes a mentally incapacitated person, an application must be made to the Court for the appointment of a person to be next friend or guardian ad litem, as the case may be, of that party”.  This is one of the exceptions of the general position that no court order is necessary for the appointment of a next friend or a guardian ad litem of a minor or a mentally incapacitated person. 

6.The Plaintiff accepts the general position that an application for appointment of a guardian ad litem should not be determined by the court on the basis of opposition from the opposing party in the litigation.  This acceptance is clearly correct in the light of what was said by Anthony Chan J in Yang Foo Oi v Chen Wai Wai [2019] 3 HKLRD 162 at [7], following the CFA’s decision in Moral Luck Finance Ltd v Law Kin Leung (2015) 18 HKCFAR 343.

7.Further, the Plaintiff does not dispute that the Defendant currently has some mental incapacity.  The only ground of opposition advanced by the Plaintiff relates to Ms Cheng’s suitability as the Defendant’s guardian ad litem. 

8.It is important to bear in mind that rules as to capacity (such as those in O.80 r.3) are designed to protect the position of both parties in the litigation (and their respective legal advisers), and not to create additional litigation.  If a party seeks to interfere with an appointment application under O.80 r.3 to resolve an issue of minimal importance to the outcome of the litigation, he/she may be said to be intermeddling for no sound reason.  As Pill LJ said in Folks v Faizey [2006] EWCA Civ 381 at [19]:

“… those advising the respondent, without any plausible reason in terms of protecting the respondent’s own position, have sought to interfere in a procedure with which they were only minimally concerned. Indeed, the appointment of a litigation friend would give ... protection to them as well as to the appellant and his advisors. I should not wish to describe the opposition as an abuse of the process of the court but in my judgment it is an intermeddling, for no sound reason, which the judge, on the evidence available, ought not to have tolerated.”

See also Moral Luck Finance Ltd v Law Kin Leung (above) at [44] (Ribeiro PJ).

9.In determining an appointment application under O.80 r.3, apart from considering the position of the parties, the court also needs to take into account the underlying objectives in O.1A r.1.  In particular, the court must ensure that challenges to the appointment process does not develop into satellite litigation, or undermine the court’s ability to deal with cases expeditiously and fairly.  See Folks v Faizey (above) at [20].

10.It does not appear that there is anything in O.80 r.3 to stipulate what criteria the court should have regard to in order to decide who may be appointed as a next friend or guardian ad litem when an application is made under r.3(5).  Where a court order to appoint a next friend or guardian ad litem of a person under disability is not necessary, the requirements under r.3(6) and r.3(8) have to be satisfied.  One of these requirements include the filing in the Registry of a certificate made by a solicitor for the person under disability certifying, amongst other things, the person so named as next friend or guardian ad litem “has no interest in the cause or matter in question adverse to that of the person under disability”.  It seems to me that in an application under r.3(5), the court should also adopt the same criterion (but not requiring the filing of any certificate) in assessing whether the proposed candidate is suitable to be appointed.

11.Although evidence is required to be adduced by the applicant to support an application for appointment under O.80 r.3, it does not necessarily follow that “the other party to the litigation is then entitled to put in evidence disputing the basis for such an order”: Folks v Faizey (above) at [24] (Keene LJ).  At [25], Keene LJ referred to situations where the other party may be heard if there is a risk of him suffering any prejudice from the appointment.

12.I note it is not the Plaintiff’s case that Ms Cheng’s appointment is said to be detrimental or prejudicial to his position in context of these proceedings.  In his skeleton arguments, the Plaintiff relies on 3 matters to seek to support his opposition, namely (1) Ms Cheng had a bad relationship with the Defendant, (2) there is a conflict of interest between Ms Cheng and the Defendant and (3) Ms Cheng is not impartial.

13.In these proceedings, the underlying dispute between the Plaintiff and the Defendant relates to the ownership of shares of a property in Wanchai that was purchased by the Plaintiff’s late father and the Defendant’s late husband.  There are also disputes as to whether a so-called family fund was subsequently created over the rental income from the property.  The Plaintiff and Ms Cheng are siblings.  It is in this context that the Plaintiff sees fit to put in evidence to set out his perceptions of the relationship between Ms Cheng and the Defendant, and of Ms Cheng’s character.  Nonetheless, I do not believe it is appropriate for the Plaintiff to have adduced evidence of such nature to oppose an application for an appointment of guardian ad litem under O.80 r.3(5).  The court’s paramount consideration is the protection of both parties in the litigation (and their respective legal advisers).  As mentioned earlier, there is nothing to suggest that the Plaintiff’s position in the litigation is at risk of being prejudiced from the appointment of Ms Cheng as the Defendant’s guardian ad litem.  Further, there is no allegation from the Plaintiff that Ms Cheng is likely to act in a way to jeopardise the Defendant’s interest in the litigation.  Many matters referred to in the Plaintiff’s affirmations against Ms Cheng are matters of peripheral and highly personal nature.  The Plaintiff’s assertion that Ms Cheng has a conflict of interest with that of the Defendant is based on (1) the Plaintiff’s interpretation of the Defendant’s pleading and the evidence filed by Ms Cheng, and (2) arguments concerning Ms Cheng’s position in relation to the disputes between the Plaintiff and the Defendant.  I disagree with the Plaintiff that the matters relied upon by the Plaintiff constitute cogent evidence that there is a conflict of interest between the Defendant and Ms Cheng.  These matters do not assist the court in determining an appointment application under O.80 r.3(5).

14.On the other hand, it appears to me that the Appointment Application was made with good reason and supported by cogent evidence.  Ms Cheng has explained in her affirmation why she has no interest in the litigation between the Plaintiff and the Defendant adverse to the Defendant, and she believes she has been acting in the Defendant’s best interests.  Contrary to the Plaintiff’s suggestion, I do not agree that Ms Cheng’s evidence can be described as evasive.  Two other affirmations (from the two siblings of Ms Cheng and the Plaintiff) have also been filed to contend that Ms Cheng is the most suitable child of the Defendant to be appointed as the Defendant’s guardian ad litem.

15.The Plaintiff may not wish to have to deal with Ms Cheng as the Defendant’s guardian ad litem in the litigation because of their personal differences over family matters in the past.  Nonetheless, this is plainly an insufficient basis to oppose the Appointment Application. 

16.In my view, I consider the learned Master was plainly correct to appoint Ms Cheng as the Defendant’s guardian ad litem in these proceedings.  There is also no merit in the Plaintiff’s complaint about the absence of a proper certificate by a solicitor under O.80 r.3(8)(c).  In my view, such a certificate is only required when an appointment is made without any court order.  The appointment in the present case was not sought to be made on this basis.

17.The Plaintiff’s appeal against the learned Master’s appointment order is dismissed.

B.      APPEAL AGAINST NOT ORDERING EXAMINATION

18.I now turn to the appeal against the learned Master’s decision not to make any order on the Examination Application.  The Plaintiff’s main objectives of the Examination Application are to (1) examine the Defendant by two psychiatrists nominated by the Plaintiff and (2) have access to the Defendant for the purpose of the examination.  The Examination Application also seeks orders from the court in relation to how the examination should be conducted, the nature of the questions that must be asked by the psychiatrists in the examination, and who may attend the examination.  The Plaintiff relies on RHC O.40 r.1 as the jurisdictional basis for this application.

19.O.40 r.1 provides that “[in] any cause or matter which is to be tried without a jury and in which any question for an expert witness arises the Court may at any time, on the application of any party, appoint an independent expert or, if more than one such question arises, 2 or more such experts, to inquire and report upon any question of fact or opinion not involving questions of law or of construction”.

20.As noted in the editorial introduction of O.40 in the Hong Kong Civil Procedure 2026 at §40/0/2, the “object of the Order is presumably to enable the parties to save costs and expenses in engaging separate experts in respect of a technical or scientific question which can be resolved fully, quickly and comparatively cheaply by an independent expert appointed by the court, and also possibly to prevent the court being left without expert assistance in cases in which the experts of the parties may well be giving entirely contradictory evidence on technical or scientific questions”.  For example, in a petition seeking for an option to purchase the company’s shares from the respondent on the basis of unfair prejudicial conduct, the court may make an order to appoint an expert to render an opinion on the share price of the company: KLH Investment Ltd v Yeung Wei Sung (unreported, HCMP 1537/96, 27 December 1996) [49] (Le Pichon J).

21.It is immediately apparent that the object of O.40 is not to enable one party to have experts appointed to examine the mental capacity of another party in the litigation.  There is nothing from the plain wording of O.40 r.1 to permit the court to make such an order.

22.Further, it has been held that the court does not have inherent jurisdiction to order a party to attend a mental health examination: Au Wing Lun v Tam Mei Kam (unreported, HCA 811/2007, 13 July 2007) [25] (J Poon J).

23.The Plaintiff submits that “Hong Kong courts have previously recognised that Order 40, rule 1 can be relied on for the purpose of appointing a psychiatrist to examine an individual’s mental capacity”, citing Leung Tai Wai David v Kwan Si Shing (unreported, HCCA 4604/2014, 29 July 2016).  In that case, although one party did make an application under O.40 r.1 to ask the court to appoint an expert to inquire into the mental ability of another party, Master J Wong declined the application for the various fact-specific reasons given at [20].  Plainly, this case is not an authority for the proposition advanced by the Plaintiff.

24.This is a further reason why the Plaintiff cannot get the orders sought in the Examination Application pursuant to O.40 r.1.  There is no question in relation to the Defendant’s mental capacity that arises in the litigation in these proceedings which requires two psychiatrists to inquire and report.  The Plaintiff has failed to identify any such question by reference to the pleadings filed. 

25.In my view, the Examination Application is wholly misconceived and should never have been brought by the Plaintiff.  It must be dismissed.  The learned Master was plainly right when he refused to make any order in respect of it.  There is no merit in the complaint that the Plaintiff was deprived of a chance to file an affirmation in reply to the opposition evidence in the Examination Application.  The learned Master rightly considered that the Examination Application lacks substance.  It was well within his case management power to disallow the unmeritorious application at an early stage.

26.The Plaintiff’s appeal against the learned Master’s order in relation to the Examination Application is also dismissed.

C.      PLAINTIFF’S SUMMONS FOR NEW EVIDENCE

27.As to his summons for new evidence, the Plaintiff seeks to put before the court a further affirmation of his to respond to the affirmation evidence filed in opposition of the Examination Application.  Given that I have dismissed the Plaintiff’s appeal in relation to the Examination Application, it is unnecessary to consider any new evidence that the Plaintiff wishes to rely upon to support that application.  In any event, I have considered the contents of the new affirmation.  I do not believe that the contents would have had any bearing on the outcome of the Plaintiff’s appeal in relation to the Examination Application.

28.I dismiss the Plaintiff’s summons dated 23 April 2026.

29.I will now hear the parties on costs.

[Submissions on costs]

30.I order the following costs are to be paid by the Plaintiff to the Defendant, on an indemnity basis, to be summarily assessed:

(1)     the costs of and occasioned by the Plaintiff’s notice of appeal dated 9 February 2026;

(2)     the costs of and occasioned by the Plaintiff’s summons dated 23 April 2026;

(3)     the costs occasioned by the Plaintiff’s opposition to the Appointment Application (including all reserved costs);

(4)     the costs of and occasioned by the Examination Application. 

31.I also set aside paragraph 4 of the learned Master’s order made on 27 January 2026 where he made no order as to costs in the Examination Application.

32.On this occasion, I consider it appropriate to order the Plaintiff to pay costs on an indemnity basis because (1) the Plaintiff interfered in the Appointment Application procedure with which he was only minimally concerned, and continued to persist in that approach in his appeal in relation to the appointment of Ms Cheng, and (2) the Plaintiff raised completely unmeritorious points in his appeal in relation to the Examination Application.

[Submissions on summary assessment]

33.Taking a broad-brush approach, I summarily assess the Defendant’s costs at HK$390,000.

Mr Jonathan Ah-weng and Mr Thomas Yeon, instructed by Oldham, Li & Nie, for the Plaintiff

Mr Nicholas Oh, instructed by W K To & Co Solicitors, for the Defendant by her Guardian ad litem