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

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D E C I S I O N

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1.As I explained this morning, I think, in the light of the circumstances, it is in the interest of RSH to have the matter resolved one way or another, if possible, on 13 September which is scheduled for the inquiry and also for the court’s consideration as to what steps to take as a result of the inquiry.  I therefore consider that, as a matter of case management, it would be better for everybody involved to have a clear understanding as to what is going to happen on the 13th. 

2.One matter that we need to consider is whether, apart from the medical evidence, we need to hear viva voce evidence from other deponents.  In this connection, Mr Healy made an application pursuant to Order 38 rule 2(3) to cross-examine the deponents who filed affirmations on behalf of the Applicant.  Although it has not been quite specified which particular deponents he has in mind, I take it that it would include the daughter as well as others. 

3.In the skeleton arguments filed for today’s purposes, albeit in the context of the summons instead of this question of cross-examination, Mr Dawes has helpfully identified the issues that this Court will need to consider on the 13th.  Firstly, whether RSH is incapable of managing his property and affairs as defined in the Mental Health Ordinance; secondly, if he is incapable, whether there should be an appointment of a committee; and thirdly, if there should be an appointment, who should be appointed.

4.The first question will largely be considered in the light of the medical evidence.  In this particular case, we already have the evidence of a number of doctors including a doctor engaged by the Official Solicitor.  I do not think cross-examination of the other deponents would provide too much assistance to the resolution of this issue. 

5.In regard to the appointment of a committee, as I see it, it is largely a matter for submissions rather than evidence in the context of this case.  As far as the properties and affairs of RSH are concerned, the Official Solicitor has already furnished this Court as interim receiver a report on a confidential basis.  For the purpose of the inquiry and relating to whether there should be an appointment of a committee again.  I do not see much need for cross-examination of the deponents.  The same can be said with regard to the identity of the persons who should be appointed as the committee. 

6.I reiterate what I have said in the case of Re: CS, HCMP 230/2005, judgment handed down on 13 May 2005.  It has also been said in a number of cases that it is not the purpose, in the context of mental health proceedings, to resolve some difficult and complicated problems with regard to some disputes between the relatives.  I think it is fair to say at this stage of the mental health proceedings, under Part II of the Mental Health Ordinance, the primary objective of the court is to see what steps should be taken to safeguard the interests of a person who is alleged to be a patient.  Hence, broadly speaking, at this stage - and I emphasize the proceedings is still at a stage where the Court is considering whether RSH is mentally incapable and a committee should be appointed - the Court should not be too involved in looking into the future as to how the affairs of the person who is found to be mentally incapacitated are to be administered and managed in great details.  Much would depend on what happens after a committee takes over the position as a committee and the Court will expect the committee to exercise its discretion with the best interest of the patient in mind. 

7.As I have said, in another case, Re: M, HCMP 25/2005, reasons handed down on 1 November 2005, a committee will have to operate independently and not subject to the dictates of any particular relatives.  Further, the committee will be subject to the supervision of the court and, if necessary, directions can be sought from this Court as to how the affairs are to be managed.  But that would be for the future.  At the present stage of the proceedings, I do not think it is right to order cross-examination.  I think I can even say that, as a general rule, at this stage of an application under Part II of the Mental Health Ordinance, cross-examination should be an exception rather than the rule.  The court should adopt a broad-brush approach without trying to become embroiled in some factual disputes which may not have too much significance in terms of the three issues that have been identified in Mr Dawes’ submissions.

8.I understand Mr Healy has expressed a major concern with regard to the form of the order if a committee is to be appointed, particularly in the possible disruption that may cause to RSH’s daily living if a committee were directed to embark on an investigation into the allegation of misappropriation stealing by Miss Chiu with regard to his financial affairs.  On the other hand, Mr Dawes has indicated to this Court that, as far as the Applicant is concerned, they are not going to seek any specific direction in that regard at this stage.  I have trust and confidence in whoever is to be appointed to be the committee that the committee will bear in mind the relationship between Miss Chiu and RSH and would not embark on such investigation only because some gifts had been bestowed upon Miss Chiu in the past which was in line with the general living standard of this gentleman.

9.On the whole, I am not persuaded that it is of much assistance if I were to order cross-examination of the deponents and I will, therefore, turn down such a request on the part of Mr Healy.

(Submissions by counsel)

10.I will direct that no further evidence be filed without leave of the court after 5 September 2006.  Mr Healy’s firm will inform the Official Solicitor and the Applicant by 4 pm on 1 September whether doctors are required to attend the inquiry on 13 September.  Costs of today be reserved.

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

Mr R Healy, instructed by Messrs Oldham, Li & Nie, for the Related Party

Mrs A Williams, of the Official Solicitor