Re Tcm

HCMH 34/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MENTAL HEALTH CASE NO. 34 OF 2008

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Before:  Hon Lam J in Chambers (Not open to public)

Dates of Hearing:  26 August 2008; 26 January and 15 July 2009

Date of Judgment: 20 July 2009

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J U D G M E N T

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1.In this Part II application, this court is satisfied that TCM is incapable by reason of his mental incapacity of managing and administering his affairs and an order is made on 15 July 2009 for the appointment of a committee.

2.There is a disturbing feature in the case.TCM was a victim of a traffic accident in 2000.As a result he sustained head injury and was comatose for more than a month.He had neurosurgery.Thereafter he suffered from cognitive impairment and lost the ability to live independently.He made a personal injuries claim against the driver of the car which hit him in a High Court action in 2003.The action was carried on without any appointment of next friend.Notwithstanding medical evidence suggesting impairment of TCM’s mental faculties the lawyers acting for TCM did not deem it necessary to proceed under Order 80.All along the daughter of TCM liaised with the lawyers.

3.The action was settled in September 2004.The defendant agreed to pay $1.3 million by way of damages.The defendant also agreed to pay the costs of the plaintiff in the action.Since the Order 80 procedure was not adopted, the settlement was not approved by the court and there was no safeguard in place as to the disposal of the settlement money.

4.Unfortunately, TCM did not get the full $1.3 million. According to the daughter, a significant part of the compensation was paid to an account designated by the counsel acting for TCM.That came about in circumstances which implicated the counsel (and possibly the solicitor as well) as being involved in a champertous arrangement.The upshot is that out of the $1.3 million, a sum of $477,500 was paid by the daughter under the belief that they were legal expenses.

5.It is also alleged that the lawyers did not tell TCM nor the daughter that the legal costs were paid by the defendant as part of the settlement.

6.If these allegations were established against the lawyers, there are serious criminal and disciplinary implications.Not only would the lawyers involved be guilty of champerty, they would probably be guilty of deception as well.Further, the omission to adopt the Order 80 mechanism may arguably constitute negligence on the part of the lawyers.

7.I need not go into the details in this judgment.Investigations were conducted by the Official Solicitor and the solicitors acting for the interim receiver under the court’s directions.It suffices for me to say from the materials available, there is enough evidence to support a prima facie case that calls for further investigations by various authorities.

8.I shall therefore refer the matter to the Secretary for Justice, the Bar Association and the Law Society for their respective investigation.I direct that together with this judgment, a copy of the report of the Official Solicitor and the report of the solicitor for the applicants (with the relevant exhibits) be released to these regulatory authorities for their actions.I also grant leave to their representatives to inspect the court file in these proceedings.

9.As far as the Committee is concerned, I have also directed them to apply for legal aid on behalf of TCM to prepare legal proceedings for recovery of the $477,500.

10.I shall release a copy of this judgment for circulation.Those acting for accident victims should be aware that the court is vigilant in safeguarding the interests of those under disabilities and arrangements that smack of champerty will be investigated.

Mr Si Ming Yee, Simon, of Messrs Simon Si & Co. (assigned by DLA), for the Applicant

Ms S Y Cheung, of Official Solicitor