The Director of Social Welfare v. The Official Solicitor

HCMP000424/2004

HCMP 424/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 424 OF 2004

____________

____________

____________

Coram: Hon Lam J in Chambers

Date of Hearing: 24 May 2004

Date of Handing Down Judgment in Open Court: 7 July 2004

_______________

J U D G M E N T

_______________

1.This is an application under Part II of the Mental Health Ordinance ["MHO"]. At the hearing of 24 May 2004, I reserved my decision pending the filing of proper medical report in accordance with Section 7(6) of the ordinance. That subsection requires the medical certificate to certify that the mentally incapacitated person is incapable, by reason of mental incapacity, of managing and administering his property and affairs. This is a mandatory requirement under Section 7(5), hence its compliance is essential.

2.The reports filed by the Plaintiff did not contain this statement and for this reason, the matter was adjourned. Occasionally, there are applicants who used medical reports in support of an application for guardianship under Part IVB of the MHO for the purposes of Part II applications. I take this opportunity to remind practitioners of the different requirements under Section 59M(3) of the ordinance and Section 7(5). One must not assume that the reports provided under the former would satisfy the requirement under the latter. The definition for "mentally incapacitated person" under Part II is different from that for other Parts of the MHO, see Section 2(1).

3.The necessary certificates were filed by the Plaintiff on 28 June 2004. I am now satisfied that the proper evidence is before the court. On such evidence, I am satisfied that Madam C, the alleged MIP, is incapable, by reason of her mental incapacity, of managing and administering her property and affairs.

4.The application sought the appointment of the Official Solicitor as the committee. I have no difficulty with that. However, as indicated at the hearing on 24 May 2004, in view of the proviso to Section12 of the MHO, I do not think I should authorize the sale of the land property at this stage without any valuation evidence and proposal as to the mode of sale. As stated in my decision in Re S HCMP 1287 of 2004, I am of the view that specific direction for sale of any immovable property should be obtained from the court pursuant to Section 10B(1)(b). Therefore at this stage I will not grant the power as set out in sub-paragraph 3 (vi) in the Originating Summons.

5.As regards the shares in Asean Resources Holdings Limited, according to the definitions for "movable property" and "immovable property" in the Interpretation and General Clauses Ordinance, Cap.1, they are not immovable property and therefore regarded as movable property. Hence, the proviso in Section 12 of the MHO is not applicable.

6.At the hearing I was told that there had not been any thorough investigation as to the assets of the MIP. I think the Official Solicitor should do some investigation in that regard. Hence, I shall direct the Official Solicitor to file a report within 4 months concerning the assets of the MIP together with a proposal as to how they are to be dealt with. The Official Solicitor can of course seek further directions from the court.

7.As the matter stands, I do not see the need for legal proceedings to be commenced in the name of the MIP. I will therefore also take out Paragraph 3(ix) of the Originating Summons from the order I make.

8.Subject to the above, I make an order in terms of Paragraphs 3 and 4 of the Originating Summons. There shall also be liberty to apply.

9.I shall hand down this judgment in open court with the name of the person involved edited to preserve anonymity.

Representation:

Mr Mark Chan, GC of Department of Justice, for the Plaintiff