Director of Social Welfare v. Official Solicitor

HCMP 4297/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 4297 OF 2000

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BETWEEN

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Before:  Hon. Lam J in Chambers

Date of Hearing:  14 September 2005

Date of Judgment:  14 September 2005

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J U D G M E N T

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1.This afternoon I have to deal with an application by the Director of Social Welfare by summons dated 31 August 2005 seeking the discharge of the committee and, in its place, the assets of the patient be passed to the Director of Social Welfare for the maintenance and the benefit of the patient.  The main reason for the application is to facilitate the management and administration of the estate of the patient in a more economical and cost-efficient manner.   

2.Although I do not have specific medical evidence before me as to the current medical conditions of the patient, I was told by Mr Chan appearing on behalf of the Director of Social Welfare, based on instructions he gathered from the medical social worker who has been attending to the care of the patient, that, firstly, the patient remains in such a mental state that she is incapable by reason of mental incapacity of managing and administering her properties and affairs and, secondly, she is currently bed-ridden and suffers from double incontinence as well as being mentally disoriented.  The prospect does not appear to be good and she has been staying at the Wong Chuk Hang Hospital for Long-Service Infirmary Care and Services since October 2001. 

3.The committee was appointed by an order dated 15 November 2000.  Since then, the Official Solicitor acting as the committee have administered and have managed the properties and the affairs of the patient.  A flat has been sold and certain personal effects and properties were taken into custody.  Further, in respect of the estate of the deceased husband of the patient, the Official Solicitors had managed to enlist the assistance of the Official Administrator to deal with that. 

4.In the light of the fact that the husband’s estate was a small one, all the proceeds obtained by sale as well as from the husband’s estate were subsequently deposited into the committee’s account.  Therefore, Mr Chan submitted this afternoon, as far as the more complicated steps in terms of the administration of the estate of the patient is concerned, those steps have been completed and it seems that from now on, the management of the affairs of the estate may not require so much professional assistance in terms of the involvement of the Official Solicitor.  Hence, in order to save costs from the point of view of the patient, the Director of Social Welfare made the application this afternoon. 

5.At the moment, the patient is being taken care of by the medical social worker who I understand to be either under the employ or under the supervision of the Director of Social Welfare.  Bearing in mind that the daily care and needs of the patient are being dealt with by the hospital and the medical social worker, I see the merit in the Director’s application.  In other words, as far as the routine expenditure of the patient is concerned, it can be easily dealt with by withdrawals from the account maintained by the Director of Social Welfare Incorporated. 

6.I therefore consider the making of the present application is entirely consistent with the requirements of the patient as well as being in her interest. 

7.Section 27(4) of the Mental Health Ordinance provides that the court may discharge a committee at any time if the court considers it expedient to do so.  Other grounds were set out in subsection 4.  I agree with the submission of Mr Chan that the other grounds should be read disjunctively. 

8.At an early stage, it has been proposed by the Official Solicitors to have the Director be appointed as the committee in place of the Official Solicitor.  That would be an application under section 26B of the same Ordinance.  However, Mr Chan submitted that in the circumstances of the present case, having regard to the size of the estate and the steps that are required to be taken for the administration thereof, the matter can be dealt with simply by discharging the committee and an order for the transfer of the assets to the Director of Social Welfare. 

9.As I said, the court does have the power under section 27(4), in terms of discharging the committee.  As far as the transfer of the assets to the Director is concerned, I think the court does also have the power to make such an order pursuant to section 10B(1) and section 24 of the Mental Health Ordinance.  Given the fact that the patient remains incapable of managing and administering her property and affairs, the court’s power under section 10B can be evoked.  Section 24 of the Ordinance makes it clear that in dealing with the properties and affairs of a mentally incapacitated person, the court may, in appropriate circumstances, having regard to the situation and condition in light of the mentally incapacitated person and his family and the other circumstances of the case, instead of appointing a committee, direct that the property of the patient be made available for the maintenance of the patient in a direct and inexpensive manner and to order the property to be paid to such person as the court may think fit to be applied for that purpose. 

10.On the facts of the present case, I am satisfied that the Director of Social Welfare will be an appropriate person to be nominated for the property to be transferred.  I will therefore accede to the application. 

11.As this is probably one of the first applications - if not the first - of this kind, I would like to say a few words for the purpose of guidance as to how these sorts of applications should be made in the future. 

12.Since it involved the exercise of the court’s power under section 10B and section 24, the court may like to consider various options in terms of minimising the costs of the management and administration of the estate of a patient.  It is at least advisable to place before the court information as to the current conditions of the patient, information as to the assets and expenditures of the patient, information as to the relatives of the patient and their views on the matter. 

13.Further, as it involves the discharge of the committee and, by implication, the release of the Official Solicitor or the existing committee, usually it would be preferable if there is a final account provided by the existing committee as to the affairs and properties of the patient. 

14.In the present case, although no formal account has been placed before me, I am satisfied that adequate information has been given with regard to the estate of the patient in the affirmation of Miss Cheung, coupled with what she told me this afternoon during the course of the hearing.  However, in the future, it would be preferable if some sort of final account can be provided by the committee in order to wrap things up in a tidy manner. 

15.Lastly, I will deal with the question of costs.  Included in Miss Cheung’s affirmation is a summary of costs incurred by the Official Solicitor as committee.  The total amount runs up to $177,327.  The committee was appointed in November 2000 and I have already recited what the committee have done in the administration of the estate of the patient.  The total amount of the asset administered, according to information provided by Miss Cheung in her application, is slightly less than $600,000. 

16.Having regard to the circumstances of the case and bearing in mind the nature of the office of the Official Solicitor and also bearing in mind the age of the patient and her need for maintenance in the future, instead of allowing the full sum as claimed by the Official Solicitor, I would fix the cost of the committee at $120,000.  Although that is not a full indemnity of the costs of the Official Solicitor, I think that is a reasonable remuneration that is affordable by the estate. 

17.I will order accordingly.  I will insert this figure of $120,000 in paragraph 4 of the summons and subject to that, I will make an order in terms.  I also propose to circulate this judgment for publication. 

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

Ms Sherman Cheung, of Official Solicitor