Re Shang Kiang Yuen
Read the full judgment text of HCMP 60/1968 on BabelCite. This High Court CFI judgment was delivered on 16 April 1968.
1. Shang Kiang Yuen, aged 73, is a very sick man; and it is most unlikely that he will ever recover. The medical evidence indicates that he is suffering from severe arteriosclerotic psychosis caused by degeneration of the blood vessels in the brain and haemorrhage of the brain substance. The result is that there is total disintegration of his personality; he has become disorientated; he is practically inaccessible and without memory; and dementia is advanced. There is no evidence that he require
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HCMP000060/1968 IN THE SUPREME COURT OF HONG KONG ORIGINAL JURISDICTION MISCELLANEOUS PROCEEDINGS NO. 60 OF 1968 -----------------
----------------- Coram: Blair-Kerr, J. Date of Judgment: 16 April 1968 ----------------- JUDGMENT ----------------- 1. Shang Kiang Yuen, aged 73, is a very sick man; and it is most unlikely that he will ever recover. The medical evidence indicates that he is suffering from severe arteriosclerotic psychosis caused by degeneration of the blood vessels in the brain and haemorrhage of the brain substance. The result is that there is total disintegration of his personality; he has become disorientated; he is practically inaccessible and without memory; and dementia is advanced. There is no evidence that he requires hospitalisation for treatment of any kind, mental or physical. He is in his own home; but he is obviously quite incapable of looking after himself or his affairs. 2. Certain members of his family (whom I shall refer to as "the first applicants") have applied to me under s. 8(2) of the Supreme Court Ordinance for the appointment of a receiver. Certain other members of the family (whom I shall refer to as "the second applicants") have applied to be joined as parties; and I have acceded to their application. However, the second applicants submit that I have no jurisdiction to appoint a receiver under s. 8(2) of the Supreme Court Ordinance and that a fresh application should be made under s. 7 of the Mental Health Ordinance. 3. The second applicants argue that the Lunacy and Mental Treatment Acts 1890-1930 (hereinafter referred to as "the Lunacy Acts") have been repealed by the Mental Health Act 1959; that, before their repeal, this Court was empowered to exercise jurisdiction under the Lunacy Acts, but that there is now no jurisdiction to exercise; that the Mental Health Act does not apply to Hong Kong because it is not included in the schedule to the Application of English Law Ordinance 1966; that the intention of the legislature was that all applications relating to the administration of the property and affairs of a person suffering from mental infirmity should be brought under the Mental Health Ordinance; that s. 8(2) of Cap. 4 has been impliedly repealed, or alternatively that any jurisdiction conferred by it is merely supplemental to the jurisdiction conferred by the Mental Health Ordinance. 4. The Supreme Court Ordinance, in its preamble, states the purpose of the Ordinance to be :-
Prior to its repeal in 1966, s. 5 declared that the statute law of England, as it stood in 1843, shall be "in force" in the Colony. The effect of this provision was that Acts which were in force in England in 1843 continued to be part of the law of Hong Kong until the local legislature declared otherwise. The repeal in England of a pre-1843 Act did not affect the law of Hong Kong; and courts frequently had occasion to apply a provision in an English Act which had long since been repealed. 5. When the Application of English Law Ordinance was enacted in 1966, s. 5 of the Supreme Court Ordinance (Cap.4) was repealed because the pre-1843 Acts which were henceforth to be in force in Hong Kong were listed in the schedule to the 1966 Ordinance. No post-1843 Acts were listed in the schedule; but under s. 4, any English Act (including post-1843 Acts) may be declared to be in force in Hong Kong; and one of the ways in which this may be done is by local ordinance. 6. Section 8(2) of the Supreme Court Ordinance reads:-
If this subsection had declared that the Lunacy Acts shall be "in force" in Hong Kong, the repeal of those Acts in England would not have effected any change as regards the law of Hong Kong, and the Acts would have continued to be in force until local legislation declared otherwise. However, this section does not declare that the Lunacy Acts shall be in force in Hong Kong. It says that this Court "shall have" "such jurisdiction as may be exercised" by the judges in England under the Acts; and the question arises as to the meaning of the words "shall have" as read with the words "as may be exercised". The Acts have been repealed; and today the judges in England may not exercise any jurisdiction under those Acts. But, did the Hong Kong legislature intend that this Court should continue to exercise jurisdiction under those Acts despite their repeal? 7. I think it is true to say that when a new edition of the Laws of Hong Kong is published, there is, technically, a re-enactment of all those laws. Therefore when the Griffin Edition was published in 1950, the Lunacy Acts were still in force in England; and the local legislature obviously intended that this Court should continue to have the jurisdiction then exercised by the judges in England under those Acts. But what was the intention when the Botelho Edition was published in 1966? Counsel for the first applicants submits that on that occasion there was no need to enact that the Supreme Court shall have such jurisdiction as was formerly exercised by the judges in England under the Lunacy Acts, because the intention was that the judges in Hong Kong should, at any given time, have the same jurisdiction as may be exercised by the judges in England; and that there was no necessity to alter the phraseology of s. 8(2) because the effect of s. 77 of the Interpretation & General Clauses Ordinance (Cap. I) is to substitute for the words "Lunacy & Mental Treatment Act 1890-1930" the words "Mental Health Act 1959". 8. Section 77 of Cap. I reads:-
The preamble to the Mental Health Act 1959 reads:-
Section 1 of the Act reads, in part:-
9. Turning to the provisions of the Lunacy Acts and the Mental Health Act 1959 relating to the appointment of a receiver, s. 116(1)(d) of the Lunacy Act 1890 reads:-
In Halsbury's Statutes (2nd Edition) Vol. 17, there is an editorial note to s. 116 which reads in part:-
In the Mental Health Act 1959 'Mental disorder' is defined in s. 4 as :-
Section 101 reads :-
Section 105 reads, in part:-
10. Clearly, the provisions of the Mental Health Act 1959 were "substituted" for the provisions of the Lunacy Acts; and s. 105 of the 1959 Act confers on English judges jurisdiction to appoint a receiver in circumstances previously envisaged by s. 116 of the Lunacy Act 1890 as read with s. 1 of the Lunacy Act 1908 and various other provisions. 11. Turning now to the Mental Health Ordinance. The preamble reads:-
The expressions 'mental disorder and 'person of unsound mind' are not defined in the Ordinance. On the other hand, 'mentally disordered person' is defined to mean a person who (for various specified reasons) "should be placed and kept under control". Under s. 7 the court may order an inquiry to determine whether a person alleged to be a mentally disordered person is a person of unsound mind and incapable of managing himself and his affairs. If the court finds that the person alleged to be a mentally disordered person is of unsound mind and incapable of managing himself and his affairs, it may appoint a committee of the person and estate of such person; and if it finds that the person alleged to be a mentally disordered person is incapable of managing his affairs but is not dangerous to himself or to others, the court may appoint a committee of his estate without appointing a committee of his person. 12. Therefore, in order to set in motion the procedure for the appointment of a committee under the Ordinance, it is necessary that there should be an allegation that the person concerned is a mentally disordered person, that is to say an allegation that the person, for one reason or another, should be placed and kept under control. The court then has jurisdiction to hold an inquiry; and if it finds that the person is not dangerous to himself or to others, but is incapable of managing his affairs, it may then appoint a committee of his estate. 13. The procedure seems to be singularly inappropriate for the case of Shang Kiang Yuen. The medical affidavit evidence (which is not challenged by the second applicants) does not suggest that his condition is such that he should be 'placed and kept under control' or that he is 'dangerous to himself or to others'. He is simply an old man; and the physical condition of his arteries has deteriorated with advancing age. He has had one stroke, that is to say the blood vessels in his head have broken and there has been haemorrhage into the brain substance. One can readily imagine the effect of all this not only on his judgment, but on his ability to perceive. Obviously he has very little idea of what is going on around him. 14. The expression ' unsound mind' is no doubt wide enough to cover a situation of this kind. But the first applicants object (and I think rightly so) to have to allege in an application under s. 7 of the Mental Health Ordinance that Shang Kiang Yuen is a person who should be placed and kept under control, and then to have to set about proving that this is not so in order to obtain a finding by this Court that he is incapable of managing his affairs, but is not dangerous to himself or to others - a state of affairs which is not disputed by any of the applicants and which seems to me to be obvious now. Apart from that, to many people, the expression 'person of unsound mind' implies that the person's brain may be healthy enough in a ...(illegible) but that his mind is ...(illegible) in some way and that he requires treatment in a mental hospital. The whole procedure as set out in ss. 7-11 seems to be quite inappropriate for the case on hand. 15. It is rather surprising that in 1960, the Hong Kong legislature should have decided to adopt the old inquisition procedure with a view to the appointment of a committee for the management of the estate of a person suffering from any and every kind of mental disability; and, if the intention was that this Court should no longer have jurisdiction under s.8(2) of the Supreme Court Ordinance, it is surprising that the Ordinance does not contain some simple form of procedure for the appointment of a receiver for the estate of an old man who has had a stroke. Furthermore, if the intention was to transfer all jurisdiction to the Ordinance, I do not understand why s. 8(2) was not expressly repealed in 1960, or at least when the Botelho Edition of the Laws was published in 1966. 16. I am unable to accept the submission that s. 8(2) has been impliedly repealed. There is no inconsistency or repugnance between that section and the Mental Health Ordinance. Indeed, there is a great deal to be said in support of the view that the two enactments are complementary to one another; and, even if there is a certain amount of 'overlapping', that does not entitle the court to hold that there is a repeal by implication. 17. It seems to me that whatever the intention of the legislature may have been in 1960, in 1966 the intention was that this Court should continue to have jurisdiction under s. 8(2). If I were to hold otherwise, it would be tantamount to saying that in 1966 the legislature went through the motions of enacting, or re-enacting, a provision which they intended to be, virtually "a dead letter". 18. The only question is: what is the nature of the jurisdiction conferred by s. 8(2) today? In particular, when it comes to the appointment of a receiver, does a judge in Hong Kong make the order under the Lunacy Acts or under the Mental Health Act 1959? 19. In my view, judges in Hong Kong today do not have any jurisdiction to appoint a receiver under the Lunacy Acts because those Acts are not in force either in England or in Hong Kong. The jurisdiction of the judges in Hong Kong is defined by reference to the jurisdiction which may be exercised by the judges in England under those Acts; and the judges in England may not exercise jurisdiction today under these Acts. On the other hand, as I have said, when s. 8(2) was re-enacted in 1966, the legislature presumably intended it to confer jurisdiction upon the judges of this Court; and, in my view, s. 8(2), if read with s. 77 of Cap. I, is apt to give effect to that intention. There is no doubt that in England the Mental Health Act 1959 was "substituted" for the Lunacy Acts; and judges in England today may exercise jurisdiction under the 1959 Act. The effect of s. 77 of Cap. I is that for the words "Lunacy & Mental Treatment Acts 1890-1930" in s. 8(2) of Cap. 4, this Court now reads "Mental Health Act 1959". 20. For the above reasons, I hold that the application has been properly made under s. 8(2) of Cap. 4 and that I have jurisdiction to appoint a receiver under s. 105 of the Mental Health Act 1959. 21. I feel I ought to say that, since reaching the above decision, I have looked at the 'Objects and Reasons' annexed to the Mental Health Bill which was placed before the legislature in 1960. Paragraph I reads:-
Paragraph 4 deals with the object of enacting Part II. It reads:-
Attached to the Objects and Reasons there is a Table of Comparison showing the legislation which the draftsman had considered in preparing the Bill. It appears that certain sections were inspired by the Mental Health Act 1959, and that others were inspired by the Singapore Mental Disorder & Treatment Ordinance 1952. Sections 7-11 are based on certain sections in the Singapore Ordinance; and in the Table of Comparison there is a note opposite to those sections which reads:-
Part VIII consists of ss. 100-121; and the above note appears to indicate that the draftsman had considered the provisions of ss. 100-121 of the English Act and had rejected them in favour of the Singapore provisions. 22. A court does not, of course, take account of anything said in the Objects and Reasons annexed to a Bill in order to assist it in deciding what the legislature intended. Nevertheless, it seems abundantly clear that the intention of the person who drafted the Mental Health Bill was that the jurisdiction hitherto exercised under s. 8(2) of Cap. 4 should be transferred to the new Ordinance. All I can say is that, if this was his intention, the legislature has not given effect to it; and it is perhaps fortunate that this is so.
16th April, 1968. Representation: -referred to as the 1st applicants. J.D.M. Donnelly (Brutton & Co.) for Shang Wai Kwang & Shang Ray Ziang-referred to as the 2nd applicants |