C v. G and Others

HCMP000303/1978

Summons to strike-out as an abuse of the process an application that the Court execute a will for a patient pursuant to section 103(1)(dd) of the Mental Health Act 1959. Application of that Act and of the Court of Protection Rules 1982 (S1 No. 322(L8)) to Hong Kong considered. Rules of the Supreme Court held inapplicable. Publication of proceedings and Order, save as authorised by the Judge, prohibited pursuant to the Judicial Proceedings (Regulation of Reports) Ordinance, Cap. 287.

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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Coram: Hon. Kempster, J.

Date: 22 October 1982

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JUDGMENT

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1. The summons now falling for consideration in Chambers is made in the context of an application to make a will for a patient pursuant to the Mental Health Act 1959. As a number of points both of principle and of procedure arise I shall direct that certain passages of this judgment be treated as if given in open Court. This I shall do in due course when it has been reduced to writing and the written form of the judgment will, I trust, make it quite clear what part may be giver general currency. This course has the support of all the parties and as has been said, I think, several times before, it is important that the public should be kept informed of the principles on which the court acts in this rather arcane field.

2. Albeit the Mental Health Act 1959 as amended by section 17(1) of the Administration of Justice Act 1969 is not part of the law of Hong Kong as such, section 12(4) of the Supreme Court Ordinance Cap. 4 expressly confers on a judge of the High Court such powers as could be exercised under the statute in England and Wales by a nominated judge; normally being a judge of the Chancery Division of the High Court.

3. In applying the statute in Hong Kong it is appropriate to take into account the provisions of sections 77 and 78 of the Interpretation and General Clauses Ordinance Cap. 1. Section 77 reads -

"A reference in any law to an imperial enactment or to any provision, part or division thereof shall be construed as a reference to the same as the same may be from time to time amended and as a reference to any imperial enactment or to any provision, part or division of an imperial enactment, substituted therefor."

4. Section 78 reads-

"A reference in any law to any imperial Act shall include a reference to any order in council, rule, regulation, proclamation, order, notice, rule of court, by-law or other instrument made under or by virtue thereof and having legislative effect."

5. The paternal powers thus available for exercise by a judge of the High Court of Hong Kong include, by reference to section 103(1)(dd) of the Act, the execution for the patient of a will making any provision - which could be made by a will executed by the patient if he were not mentally disordered. "Patient" is defined in section 101 of the Act in these terms -

"The functions of the judge under this part of this act shall be exercisable where, after considering medical evidence, he is satisfied that a person is incapable, by reason of mental disorder, of managing and administering his property and affairs and a person as to whom the judge is so satisfied is in this part of this Act referred to as a patient".

6. The material part of the Act is Part VIII and for the purposes of the present application it is accepted by all parties that I should regard the gentleman whose property is in question as a patient within the parameters of that section.

7. Some guidance for a judge asked to carry out the exercise of making a will for a patient is provided by section 102 of the Act which reads-

"(1)  The Judge may with respect to the property and affairs of a patient do or secure the doing of all such things as appear necessary or expedient -

(2)      In the exercise of the powers conferred by this section regard shall be had first of all to the requirements of the patient and the rules of law which restricted the enforcement by a creditor of rights against property under the control of the Judge in lunacy shall apply to property under the control of the Judge; but subject to the foregoing provisions of this subsection the Judge shall, in administering the patient's affairs, have regard to the interests of creditors and also to the desirability of making provision for obligations of the patient notwithstanding that they may not be legally enforceable".

And then section 103, which is the material section, begins with the words-

"(1)    Without prejudice to the generality of the fore- going section, the Judge shall have power to make such orders and give such directions and authorities as he thinks fit for the purposes of that section;"

that means 102,

"and in particular may for those purposes make orders or give directions or authorities for-"

among other things, drawing up a will for the patient.

8. Further recent guidance has been provided by the Vice-Chancellor, Sir Robert Megarry, when giving judgment in open Court in Re D ⁽¹⁾ beginning at page 243 Letter C. These are his words and I shall read them without further reference leaving out certain passages-

"The first of the principles or factors which I think it is possible to discern is that it is to be assumed that the patient is having a brief lucid interval at the time when the will is made. The second is that during the lucid interval the patient has a full knowledge of the past, and a full realisation that as soon as the will is executed he or she will relapse into the actual mental state that previously existed with the prognosis as it actually is. - The third proposition is that it is the actual patient who has to be considered and not a hypothetical patient. One is not concerned with the actual patient on the Clapham omnibus. I say that because the will is being made by the court, and so by an impartial entity skilled in the law, rather than the actual patient whose views while still of a sound disposing mind might be idiosyncratic and far from impartial. - Fourth I think that during the hypothetical lucid interval the patient is to be envisaged as being advised by competent solicitors. The court will in fact be making the will, of course, and the court should not make a will on the assumption that the terms of the will are to be framed by someone who for instance knows nothing about lapse and ademption. Furthermore as the court will be surveying the past and the future, the hypothetically lucid patient should be assumed to have a skilled solicitor to draw his or her attention to matters which a testator should bear in mind. - Fifth in all normal cases the patient is to be envisaged as taking a broad brush to the claims on his bounty, rather than an accountant's pen. There will be nothing like a balance sheet or profit and loss account. There may be many to whom the patient feels morally indebted: and some of that moral indebtedness may be readily expressible in terms of money, and some of it may not. But when giving legacies or shares of residue few testators are likely to reckon up in terms of cash the value of the hospitality and gifts that he has received from his friends and relations, and then seek to make some form of testamentary repayment, even if his estate is large enough for this. Instead, there is likely to be some general recognition of outstanding kindnesses by some gift which in quantum may bear very little relation to the cost or value of those kindnesses".

And he says that these principles or factors are neither exhaustive nor very precise.

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9. Perhaps the first point which I should consider is whether Order 18 rule 19 or any other rule of the Supreme Court applies to proceedings in this jurisdiction. In England the situation is not open to doubt because Order 1 rule 2(2) of the Rules of the Supreme Court provides that such rules shall not have effect in relation to proceedings before the judge within the meaning of Part VIII of the Mental Health Act 1959. There is no equivalent provision in Order 1 rule 2(2) of the Hong Kong Rules of the Supreme Court. However, section 112 of the Mental Health Act reads in subsection (1) -

"Proceedings before the Judge with respect to persons suffering or alleged to be suffering from mental disorder (in this section referred to as 'proceedings') shall be conducted in accordance with the provisions of rules made under this Part of this Act".

And those rules are the Court of Protection Rules (1982)(S1 1982 No. 322 (L8)). I find that they constitute a complete code of procedure and, having regard to the terms of section 112 and of section 78 of the Interpretation and General Clauses Ordinance, that the Hong Kong Rules of the Supreme Court play no part save by way of analogy despite the lacuna in Order 1 rule 2(2).

10. Such finding is not fatal to the application under the first paragraph of the 2nd respondent's summons. The court retains an inherent jurisdiction to prevent abuse of its process whether or not the proceedings are brought pursuant to the standard rules to which I have alluded and I propose to consider the submissions made on that footing.

11. On behalf of the 2nd respondent Mr. Harman contends that proceedings calculated to procure a fresh will on behalf of a patient should not be used as a means of attempting prematurely to try a probate action; particularly one involving issues of testamentary capacity and undue influence. He has pointed out the relative laxity of the Court of Protection Rules within the context of evidence and compared such rules with the normal evidentiary standard that would obtain in a probate action. Rule 30 of the Court of Protection Rules reads-

"The Court may accept and act upon any evidence notwithstanding that it would not be admissible in a Court of law".

Rule 31 -

"Except where these rules otherwise provide evidence and proceedings under these Rules shall be given by affidavit".

Rule 32 -

"Notwithstanding Rule 31 the Court may accept and act upon a statement of facts or such other evidence, whether oral or written, as the Court considers sufficient, although not given on oath, and may give directions as to the manner in which the evidence in any proceedings is to be given so, however, that nothing in this rule shall enable a visitor to be required to give oral evidence or to produce a report, record or other document."

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12. As against the submission that the use of Mental Health Act procedures to pre-empt a subsequent probate action grounded on undue influence constitutes an abuse of the process I have to consider among other matters Mr. Godfrey's submission on the relative confidentiality of the one procedure as compared with the other and I propose so to do before the midday adjournment because in the course of so doing I shall have the opportunity of making a relevant direction.

13. In England and Wales the position in proceedings under the Mental Health Act is clearly covered by the terms of section 12(1)(b) of the Administration of Justice Act 1960 which reads -

"The publication of information relating to proceedings before any court sitting in private shall not of itself be contempt of court except in the following cases, that is to say -

(b) where the proceedings are brought under Part VIII of the Mental Health Act, 1959 ......."

But by subsection (2) it is provided -

"Without prejudice to the foregoing subsection, the publication of the text or a summary of the whole or part of an order made by a court sitting in private shall not of itself be contempt of court except where the court (having power to do so) expressly prohibits the publication".

14. In Hong Kong the equivalent provision is to be found in section 5 of the Judicial Proceedings (Regulation of Reports) Ordinance Cap, 287 which reads -

"(l) The publication of information relating to proceedings before any court sitting in private will not of itself be contempt of court except in the following cases, that is to say -

(a) where the proceedings relate to the wardship or adoption of an infant or wholly or mainly to guardianship, custody, maintenance or upbringing of an infant, or rights of access to an infant",

and other proceedings including proceedings pursuant to the Mental Health Ordinance but there is no express prohibition in relation to proceedings brought pursuant to the Mental Health Act.

Section 5 goes on to read -

"(e) where the court, having power to do so, expressly prohibits the publication of all information relating to the proceedings or information of the description which is published.

(2)    Without prejudice to subsection (1), the publication of the text or the summary of the whole or part of an order made by a court sitting in private shall not of itself be contempt of court except where the court, having power to do so, expressly prohibits the publication.

(3)    Nothing in this section shall be construed as implying that any publication is punishable as contempt of court which would not be so punishable apart from this section".

15. Have I power to prohibit publication of all information relating to these proceedings?

16. In order to answer the question I am thrown back on the common law position.

17. In the famous case of Scott v. Scott ⁽²⁾ Lord Shaw set out in his speech the three exceptions to the general rule of publicity, and I am not quoting directly here, that proceedings in the English courts should be conducted in public. And the three exceptions which are acknowledged "are, first in suits affecting wards; secondly, in lunacy proceedings; and thirdly, in those cases where secrecy, as, for instance, the secrecy of a process of manufacture or discovery or invention - trade secrets - is of the essence of the cause. The first two of these cases, my Lords, depend upon the familiar principle that the jurisdiction over wards and lunatics is exercised by the judges as representing His Majesty as parens patriae. The affairs are truly private affairs: the transactions are transactions truly intra familiam; and it has long been recognised that an appeal for the protection of the Court in the case of such persons does not involve the consequence of placing in the light of publicity their truly domestic affairs". And then he gives the basis for secret processes which he says, and Mr. Harman has emphasised, would involve the destruction of the subject matter.

18. In the case of In re. De Beaujeu's Application for a Writ of Attachment Against Cudlipp ⁽³⁾ Mr. Justice Wynne Parry stated: "In my judgment, in proceedings involving wards of court", and I interpolate here that I regard proceedings under the jurisdiction relating to persons under a mental disability as being in the same category, "the judge has a complete discretion to allow or forbid publication of the proceedings or any order made therein. In the absence of any special direction, I am of the opinion that, prima facie, it would be a contempt of court to publish an account of proceedings relating to an infant conducted in chambers without the express permission of the Judge who heard the case. I use the words prima facie because I do not intend to attempt to state any exhaustive rule. There may well be cases in which the permission of the Judge is not required, because, for example, of the lapse of time between the hearing and the date of the publication. Such cases must be dealt with as and when they arise and, as I see it, cannot conveniently be made the subject of any hard and fast or exhaustive rule. On the other hand, I am of the opinion that it would not be a contempt of court to publish the order, or an accurate summary of the order, made on such proceedings unless the Judge directed that neither the order nor such summary should be published".

19. That authority was considered in the case of Re R ⁽⁴⁾, to which Mr. Swaine drew to my attention where Mr. Justice Rees said at letter G -

"Accordingly, I approach the problem in the instant case on the footing that I must have regard to the old common law in relation to contempt subject to the express provisions of section 12 of the Act of 1960 and that a Judge has a discretion to give leave in a proper case to publish information relating to wardship and adoption proceedings heard in private".

20. I believe, as a direct corollary, a judge has a discretion to make an order prohibiting publication and in the instant case pursuant to section 5(1)(e) I think it proper to make an order precluding any publication of material not to be treated as given in Open Court relating either to this or to the substantive application such order to run until after judgment has been given in the substantive application. I make a like order in relation to the Order herein pursuant to section 5(2).

21. The Order which I made in relation to publication was, I should make plain, pursuant to Mr. Godfrey's somewhat imprecisely worded application. I think the sense of it was properly made and it follows from the making of the order that confidentiality can be ensured for an application pursuant to the Mental Health Act as opposed to proceedings in the Chancery Division for the revocation of a will.

22. I turn back to consider the answers or counter-submissions put on behalf of the applicant in relation to the submission that the substantive summons constitutes an abuse of the process in so far as it seeks to anticipate or pre-empt a probate action. In the fore-front of his submission Mr. Godgrey put an unreported decision heard in Chambers by Mr. Justice Nourse also called "In Re D", the judgment having been given on the 24th June of 1981. At page 4 letter 'C' of the transcript he expressed his views in this way -

"Since it is doubtful whether the patient was of testamentary capacity when she made that will it follows that if it is left to stand there is a strong possibility, if not a probability", - that a named person - "will bring a probate action after her death with a view to having the will pronounced against.

When paragraph (dd) of section 103(1) was enacted in 1969 its full implications may not have been recognised. But it does seem to me that the possibility of a probate action after the death of a patient is a factor which ought usually to predispose the court to regard it as desirable for a new will to be made. I understand that that is a view which has consistently been held by the Master", that means the Master of the Court of Protection, "in recent years. It seems to me that it is a most proper view for him to have taken.

The reason for that is this. The jurisdiction under paragraph (dd) has always been exercised with a view to doing what the patient would himself have done if competent and acting reasonably". Then I skip a bit. "In a case like the present one has to make a curious assumption of the kind to which Mr. Justice Cross referred" . - the reference there was to Re DML (1965) Ch. 1133.- "One has to assume that the patient is competent to manage his affairs, but that he is advised that his possible incapacity at the time he made his will could lead to a probate action after his death. It is obvious that a reasonable recipient of that advice would want to avoid any trouble of that sort by making a new will. Further, a successful probate action will often achieve nothing. It will merely revive an earlier will or allow the patient's estate to devolve on an intestacy, either of which eventually may be just as undesirable as the preservation of the existing will, and sometimes more so. In that event a competent person acting reasonably would see more reason still for making a new will".

That expression of opinion is germane, in my view, to the matters here under review.

23. Further, although the learned judge was there specifically considering a subsequent probate action based on lack of testamentary capacity his opinion is in much wider terms and, in the light of the view he expresses, I hesitate to find that the substantive application here is an abuse of the process.

(1)    (1982) 2 Ch. 237

(2)    (1913) A.C. 417 at p. 482

(3)    (1949) 1 Ch. 230 at p. 235

(4)    (1975) 2 W.L.R. 978 at p. 984

Representation:

G. Godfrey Q.C., A. Dicks & A. Allman-Brown (Day & Co.) for applicant

J. Swaine Q.C., K.H. Woo (Stevenson & Co.) for 1st respondent

J. Harman Q.C., C. Ching Q.C., P. Fung (J.S.M.) for 2nd respondent

D. Jackson, Miss Suaan Kwan (Charles Russell & Co.) for 3rd respondent