Re Rsh

HCMP 592/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 592 OF 2006

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Before:  Hon Lam J in Chambers (NOT OPEN TO PUBLIC)

Date of Hearing:  29 August 2006

Date of Decision:  29 August 2006

Date of Reasons for Decision:  1 September 2006

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REASONS  FOR  DECISION

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1.On 29 August 2006, I dismissed two summonses taken out relating to production of documents in the context of an application under Part II of the Mental Health Ordinance for inquiry.  The following are my reasons.

2.The inquiry is due to be held on 13 September 2006.  Through the assistance of the Official Solicitor, independent medical reports regarding the mental capacity of RSH had been obtained.  Further, to facilitate the smooth operation of various accounts and to give the court a better picture of the properties and affairs of RSH, the Official Solicitor was appointed as interim receiver on 3 July 2006 and confidential report had been submitted.

3.The first summons was taken out by the solicitors acting for the RSH and his son on 16 August 2006.  It sought an order directing the daughter to give a notice pursuant to Order 24 Rule 10(2) in response to their notice under Rule 10(1) in respect of a paragraph in the 2^nd Affidavit of the daughter.

4.The daughter is not the Applicant in these proceedings.  However, it is quite obvious that the Applicant (a gardener formerly employed by RSH) was, putting it mildly and without any implication of any impropriety or ill-motive, acting together with the daughter.  Certain documents had been exhibited by the Applicant in the affidavit filed at the commencement of these proceedings to raise concerns as to possible financial abuses.  The son filed an affirmation accusing the daughter (and her sister) instructed the Applicant to act improperly in getting the documents.  He also alleged that the purpose of these proceedings was to marginalize the lady companion of RSH.

5.In response to such accusation, the daughter filed the 2^nd Affidavit in question.  Amongst other things, she explained the circumstances pertaining to such documents being photographed in Paragraph 31.  Reading the whole paragraph in context, it is quite plain to me that the daughter was referring to the documents exhibited to the Applicant’s Affidavit.  Paragraph 31 begins by saying, “As regards the photographed documents … now exhibited in the Applicant’s First Affidavit…”.  The expression “the documents” in the last sentence in that paragraph should be understood in this light.

6.Solicitors acting for RSH and the son considered that there could be other documents that were also photographed on the same occasion and ask the daughter for inspection of the same.  They sought to achieve that purpose by resorting to Order 24 Rule 10.

7.In my judgment, this application is misconceived.  It has to be clearly understood that Part II proceedings are not adversarial civil litigation.  Instead of repeating myself, I will urge those advising those involved in Part II applications to read what I had said in the past concerning the nature of these proceedings, see in particular Re CS HCMP 230 of 2005, 13 May 2005 and

(a) whether the alleged patient is incapable of managing and administering his property and affairs by reason of mental incapacity;

(b) if he is so mentally incapable, what measures the court should put in place to protect him in the exercise of its power under Part II.  In connection with this, the court will consider whether a committee should be appointed;

(c) if a committee is to be appointed, who is the most appropriate person to be appointed in the circumstances of the case;

(d)  what power should the court confer on the committee.

8.In line with what I said in Re CS, the court should on most occasions adopt a broad-brush approach and it is usually not in the interest of the MIP to conduct a minute and detail investigation into the rivalries between family members.  It would be wrong to allow Part II inquiries to become protracted and bogged down by unimportant and immaterial disputes amongst relatives.  A prompt decision on the issues outlined in Paragraph 7 is called for.  Otherwise, the person alleged to be incapacitated would be subject to all sorts of uncertainties and disruptions in his or her daily living and the management of his or her properties and affairs.  In a way, the situation is not dissimilar to family proceedings concerning children or ancillary relief applications. 

9.Against such background, it must be readily apparent that the production of the other photocopied documents (if any) has no bearing whatsoever on the relevant issues that this court will have to decide on 13 September.  Whether the daughters had obtained other photographed documents is immaterial.

10.It should be noted that neither the Applicant nor the daughters are asking for the appointment of any of them as committee.  Hence, even if they had some prejudice against the lady companion, this should not affect the view taken by the committee (if one were to be appointed) who should operate independently and subject to the monitor and supervision of this court.

11.Further, I am of the view that there was no direct allusion to other documents being photographed in that paragraph in the Second Affidavit of the daughter.  Order 24 Rule 10 is not engaged.

12.The remedy for non-compliance with Order 24 Rule 10(2) is to seek an order for production under Rule 11(1).  In the present circumstances, given the irrelevance of the documents, even if it were alluded to, this court will not exercise its discretion to make such an order.

13.Turning to the summons taken out by the solicitors for the Applicant on 22 August 2006, it seeks production of certain statements or information given to Messrs. P.C. Woo & Co. by the domestic helpers in 2005.  It is said that those statements would shed light on the mental ability of RSH.

14.An order was sought against the son because Messrs. P.C. Woo & Co was jointly instructed by the son and the two daughters.  The son refused to give his consent for such statements to be produced.

15.Again the application is made pursuant to Order 24 Rule 10.  The Applicant said the son had referred to such statements in his affirmation.

16.It is not known what precisely the helpers had told the solicitor at Messrs. P.C. Woo & Co.  Regarding the mental capacity of RSH, we already have the evidence of a number of doctors who do not find it necessary to have such information from Messrs. P.C. Woo & Co. before they feel able to express their opinions on the issue.  In particular, Dr Lai had the benefit of the report from Dr Middleton who has been attending RSH for quite some time and is also his friend.  It is not suggested that such evidence could have any significant impact on the medical evidence.  Mr Dawes informed this court that the Applicant had no disagreement with the opinion expressed by Dr Lai.  In any event, if evidence from the helpers were important, they could be called to give evidence on a first hand basis instead of resorting to the statements given by them to the solicitor in 2005.

17.I am not satisfied that the production of the statements are necessary for the fair disposal of the proceedings and bearing in mind what I had said as to the approach this court should adopt, I do not think it is appropriate to make an order under Order 24 Rule 11 regarding these statements.

18.Mr Healy also submitted that there was no direct allusion to the statements in the affirmation of the son.  Given the purpose of Order 24 Rule 10 inspection as identified in Quilter v Heatly (1883) LR 23 Ch D 42 and Eagle Star Insurance Co Ltd v Arab Bank Plc (unreported, 25 February 1991, cited in Para. 8 of Guangzhou Green-Enhan Bio-Engineering v Green Power Health Products (No.2) [2005] 1 HKLRD 50), I am of the view that the test of direct allusion in Dubai Bank Ltd v. Galadari [1990] 1 WLR 731 should not be applied too loosely.

19.Reference in the son’s affirmation was to the pressure applied to the helper to give statements instead of such statements being actually made.  Hence, Order 24 Rule 10 is again not engaged.

20.Whilst I have no doubt that in the exercise of its power under Part II, the court can order discovery in appropriate cases, I have expressed some doubts at the hearing as to the applicability of Order 24 Rule 10 to such proceedings.  On reflection, I do not want to express any conclusion on the point.

21.I propose to release this Reasons for Decision for circulation.  Written comment on such a course can be sent to this court within 5 days from the handing down of the Reasons.  

Mr Victor Dawes, instructed by Messrs Johnson Stokes & Master, for the Applicant

Mr R Healy of Messrs Oldham Li & Nie, for RSH and opposing relative

Mrs A Williams of Official Solicitor