Lo Chung Hing v. Lin Kuo Ping
Read the full judgment text of HCA 1838/1977 on BabelCite. This High Court CFI judgment was delivered on 17 December 1979.
1. This is an unusual application. The plaintiff issued his writ on the 14th July 1977. In O. 14 proceedings the defendant was given unconditional leave to defend.
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HCA001838/1977
IN THE SUPREME COURT OF HONG KONG HIGH COURT -----------------
----------------- Coram: Silke, J. in chambers. Date of Judgment: 17 December 1979 ----------------- JUDGMENT ----------------- 1. This is an unusual application. The plaintiff issued his writ on the 14th July 1977. In O. 14 proceedings the defendant was given unconditional leave to defend. 2. He filed his defence on the 4th April 1978 and by paragraph 6 of that defence he pleads as follows:
3. The plaintiff filed a summons under O.18 R.19 which summons stands adjourned sine die. 4. The defendant filed a summons, without a reference to any of the Rules of the Supreme Court, seeking to test the competence of the plaintiff to retain his solicitors, asking for the appointment of a next friend and that the action be stayed or dismissed pending such appointment. That summons stands adjourned sine die. 5. On the 19th January 1979 the parties came before the Registrar on what was, in effect, an agreed form of summons. Again without a reference to any order in the Rules of the Supreme Court. 6. Upon that defendant's summons the following order was made - it is not stated to be by consent though the consent of the plaintiff is referred to in the summons -
And three other paragraphs with which I am not directly concerned. 7. I must say first that the wording of the summons upon which the order was based is unfortunate. If the phrase "At all times material to the action" is seriously meant it must include today. However the medical evidence stops short in 1978. 8. What was intended by that numbered four in the order? 9. There was argument at the outset of the hearing as to which side should start. I held that, as it was the defendant who issued the challenge, that Miss Leung, who appeared for him, should start. 10. She sought valiantly to persuade me that this was an inquiry within the terms of the Mental Health Ordinance - if so the Court would be cast in an inquisitorial role. This submission I rejected as an inquiry under that Ordinance is a statutory one and the initiating provisions contained in Section 7(3) Part II of that Ordinance had not been complied with. 11. The matter before me is in reality an attack upon the plaintiff's solicitors, however much Miss Leong may submit to the contrary, for taking instruction from a person incapable, because of unsoundness of mind, of giving them. It has resolved itself into the trial of a preliminary issue. 12. I think there is also a suggestion, though the merits of the plaintiff's claim do not concern me, that the whole action is a figment of a disordered mind. 13. Be that as it may there was another preliminary matter - that part of the order which referred to "the parties and the deponents to be available for cross examination". 14. Miss Leung desired to cross examine the plaintiff: Mr. Martin Lee, Q.C. who, with Mr. W. Chan appeared for the plaintiff opposed: The plaintiff, Mr. Lo Chung Hing otherwise known as Johnson C. Lo Jr., is not a deponent, the defendant and Miss Della Chan of his instructing solicitors both are. 15. Mr. Lee submitted that leave would have to be sought to cross examine. Miss Leung stated that both the defendant and Miss Chan were ready to be cross examined. In the event no leave was sought to place the plaintiff in the witness box and neither the defendant nor Miss Chan were examined. 16. The evidence before me therefore consists of Dr. Lo, who produced records of the visits of the plaintiff and the treatment he received at the Hong Kong Psychiatric Centre: Dr. Ng who treated the plaintiff while he was detained in Castle Peak Hospital under a J.P. order for 7 days, which period was later twice extended - at 7 days each time - to the maximum 21 days by order of Judges of the District Court on the application of Dr. Ng and another Doctor in Castle Peak,: of Mr. Hsu, the only plaintiff's witness, who gave evidence of his certification of the translation of a letter exhibited to an affidavit - of which more later - ; the affidavits of the defendant and that of Miss Chan. 17. Dr. Lo produced the records of the Centre - marked A - she herself has never seen Mr. Lo. 18. Mr. Lo first visited the Centre on the 9th April 1975 where he was seen by a Dr. Chan. He was referred to the Centre by Queen Mary Hospital on the 6th April 1975 - his wife went with him and gave the doctor certain information. 19. Mr. Lo had telephoned her from Indonesia on the 4th March 1975 saying that someone was trying to do him harm alleging a form of witch-craft. The memorandum of Reference mentions Mr. Lo's "bewitchment" for 1 1/2 years prior to this. It suggests he had "gradually developed symptoms of schizophrenia recently". 20. Mr. Lo had informed his wife that he had a radio station in his spleen. 21. Dr. Chan found Mr. Lo to be rather vague, incongruous and evasive. Mr. Lo told him that the crosses placed in his home were to protect his house as there was a witch object in the house. He was reluctant to discuss his symptoms and kept saying that he was quite well. He denied any hallucinations but the doctor noted that Mr. Lo had poor insight - or knowledge of self - and he diagnosed paranoiac schizophrenia. 22. Medication - tranquilisers - were administered in a moderate dose. 23. On the 15th of April 1975 Mr. Lo, again with his wife, came to the Centre. He was somewhat better but still spoke of witchcraft placed upon him in Indonesia. 24. The doctor felt he was gaining some insight and suggested that Mr. Lo be admitted to Kowloon Hospital. This suggestion was rejected by both Mr. Lo and by his wife. 25. Further medication was administered and prescribed - a heavier dose than on the first visit. Mr. Lo was to make a follow up visit in a week's time but he did not. 26. The next visit to the Centre was on the 10th September 1976 - about 1½ years later. Again he was brought by his wife. Mr. Lo had been in Indonesia during the interval and remained well but had come to Hong Kong to settle a court case - presumably the instant action. He was suffering from unsettled sleep and had similar symptoms to his last illness. He refused admission to hospital. 27. He was persuaded to take sleeping pills and given injections and medication. On this occasion he was attended by a Dr. Yip. 28. The next visit to the Centre was on the 21st December 1977 when again he was attended by Dr. Yip. Mr. Lo was brought there by the police. He had apparently responded to treatment but had, one week before his visit, struck his wife and Tang Shiu Kin Hospital had referred him to the Centre. 29. In the interval between the September 1976 visit and this one he had refused treatment. 30. His wife desired to divorce him so that, from now on, anything that she may say is to be viewed with some suspicion. 31. On the 19th of December 1977 a J.P. had made an order under the provisions of Section 31 of the Ordinance authorising the removal of Mr. Lo to Castle Peak. The informant was, as I understand it, the wife. 32. He was admitted to Castle Peak on the 21st December. 33. After his discharge on the 10th January 1978 Mr. Lo again attended at the Centre, this time with his mother. This on the 17th January 1978. He was injected with a long acting tranquiliser - the effectiveness of which lasts about 4 weeks and that was the last the Centre saw of him. 34. Dr. Ng who treated Mr. Lo in Castle Peak gives somewhat contradictory evidence. For he thought it necessary to detain Mr. Lo for the maximum period of 21 days for observation but at the same time he furnished a report in January of 1978 which concludes with these words: "I am of the opinion that Lo Chung Hing's mental condition as observed during his period of stay in this hospital was such that he was fit to proceed with legal action in a court of law". 35. Mr. Lo was discharged from Castle Peak on the 10th January 1978 upon his mother's signing of Form II, which is entitled "Application for discharge of a patient before recovery". Dr. Lo had said this discharge was against medical advice but it is clear from the evidence of Dr. Ng that this was not so; and he seems to treat this form as unnecessary. 36. During his sojourn in Castle Peak Mr. Lo did have some paranoiac ideas and he was maintained on a low dose of medication. He was instructed to attend the Centre in order to maintain his mental condition in a satisfactory state. He did not do so. 37. It is of moment that Dr. Ng had suggested to Mr. Lo that he continue to stay in Castle Peak as a voluntary patient at the time of his discharge but Mr. Lo declined the invitation. 38. The defendant's affidavits are, as to the first, largely inadmissible and as to the second relating to the sending of the writ of summons and other documents to the defendant's bankers and associates. 39. The first however does exhibit a letter dated 9th April 1976. Of this I have had the benefit, if it can be called that, of two translations - that numbered "one" is exhibited as "LKP5" and the other, numbered "two" was produced at the hearing. 40. In connection with this letter (LKP4) a Court Translator Mr. Hsu was called. He certified both translations. The first is some-what plain in its language, the second more flowery and containing classical allusions and quotations from romantic literature. There are material differences in phraseology between the two while the main content is the same. There are, however, significant differences in certain phrases used as between "one" and "two": for example in "one" the phrase "mentally unstable" is used: in "two" this appears as 'I became doubtful and undecided'. I note the punctuation differs considerably one from the other. Mr. Hsu agreed that the letter was a fairly rambling sort of letter. And that is really all that can be said of it: it does have the "black magic" theme and it is somewhat bizarre - but nothing more. 41. A sheaf of documents connected with the plaintiff has found its way into both the medical files and the hands of the defendant and his solicitors. 42. The plaintiff did give information to the "Star" newspaper about his claim and his condition: which information was published to the annoyance of the defendant. 43. If the plaintiff was responsible for the documents, and there is some inference that he was, that, taken with the information to the newspaper, are matters which can be considered unusual, if not reprehensible, but they do not of themselves, in my view, lead to a conclusion that he is incapable of managing his own affairs. 44. It is clear that from at the latest 1975 Mr. Lo was suffering from paranoia and schizophrenia. The course of the disease seems episodic. What his condition has been since January 1978 I know not. 45. The first question I must ask myself is does he come within the definition of "mentally disordered person" contained in Section 2 of the Ordinance? I note that the Ordinance defines "patient" as meaning a person received into a mental hospital in accordance with the provisions of the Ordinance. 0.80 R.1 of the Rules of the Supreme Court defines a "patient" as meaning "a person who by reason of mental disorder within the meaning of the Ordinance is incapable of managing and administering his own affairs." 46. "Mental Disorder", of itself, is not defined in the Mental Health Ordinance. 47. "Mentally disordered person" - and I take it that it is such a person that 0.80 R.1 has in mind - is defined as meaning a person who is so far disabled in mind or is so mentally ill or subnormal due to arrested or incomplete development of mind as to render it either necessary or expedient that he either for his own sake or in the public interest, should be placed and kept under control. The italics are mine. 48. I do not think this definition to be so narrow that it can only apply, as Dr. Ng suggests, if there is either a prospect of physical violence to himself or to others. A person suffering from mental illness may be mild and devoid of physical violence yet totally incapable of managing his own affairs. 49. Mr. Lo was undoubtedly a "patient" within the meaning of the Ordinance from 21st December 1977 to 10th January 1978. 50. He did, and may still do for all I know, suffer from a mental illness but in the light of Dr. Ng's report and of the rest of the evidence before me I cannot say that Mr. Lo is or was, apart from certain periods of short duration, so mentally ill as to render it either necessary or expedient that he, either for his own sake or the public interest, should be placed and kept under control. 51. It follows therefore, on the evidence that the defendant has failed to prove to me, on the balance, that Mr. Lo is incapable of managing and administering his property and affairs. 52. I would answer the (a) of the issue in the negative; as to (b) I would answer this by saying that he suffered from paranoia and schizophrenia from 1975, and possibly before that, to at least 10th January 1978. as to (c) I would answer this in the negative. 53. This summons is therefore dismissed.
Representation: Mr. Martin Lee, Q.C. and Mr. W. Chan (C.Y. Kwan & Co.) for plaintiff Miss Leong (Della Chan & Co.) for defendant. |