State China Finance Ltd v. Law Kin Leung and Another

DCCJ5291/2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 5291 OF 2007

________________________

BETWEEN

________________________

Before: H H Judge H C Wong in Chambers (Open to the public)

Date of Hearing: 3 July 2009

Date of Delivery of Decision: 3 July 2009

________________________

D E C I S I O N

________________________

1.The applicant, Madam Cheung Kwai-yin applied to court to be appointed as the guardian ad litem to the defendant, Mr Law Kin-leung under Order 80, Rule 6(1)(a) of the Rules of District Court.

2.At today’s hearing, Mr Yung, the legal representative for the plaintiff opposed the application.  However, the plaintiff has filed no affidavit in opposition setting out reasons for objection.  Mr Yung’s submission was that it is for the defendant to show he was mentally incapacitated at the time he entered into the agreement with the plaintiff.  The plaintiff is a finance company. 

3.In short, the plaintiff’s main argument is: the burden is on the defendant.  Mr Yung further referred to the judgment of my brother Judge Leung D.J. in the case of Easy Fortune Property Limited v Lai Moon-wing & Tse Keung-ping, DCCJ5098/2006 and Easy Fortune Property Limited v Lai Moon-wing by his brother and guardian ad litem Lai Chan-wing, DCMP1277/2007.  It is a judgment handed down on 14 January 2008.  In that case the defendant Lai Chan-wing was made a guardian of his brother, Lai Moon-wing for one year by the guardianship board because he was suffering from mental illness which was discovered in September 2006.  In 2007, July 23rd Master Pang of the District Court granted an order appointing Lai Chan-wing as Lai Moon-wing’s guardian ad litem under Order 80. 

4.The order was made ex-parte.  Judge Leung dismissed the application to set aside the judgment and charging order entered against Mr Lai Moon-wing in those proceedings because there were other applications in the High Court under the Mental Health Ordinance. 

5.The application today is on the appointment of a guardian ad litem for the defendant Mr Law.  The applicant’s wife produced two medical reports on the mental capacity of Mr Law.  The first one from a psychiatrist, Dr Ng Fung Shing and the other from psychologist, Dr Ng Kee-on.  Both conducted tests on Mr Law to ascertain his mental capacity.  Dr Ng Fung Shing, the psychiatrist, found Mr Law’s IQ under the Weschler Tests to be 62 confirming he is a mild grade mentally handicapped person, while the psychologist, Dr Ng Kee-on, assessed Mr Law again on the Weschler Adult Intelligence Scale at 62 on the Verbal Intelligence Score, 68 on Performance Intelligence Score and 62 on Full Intelligence Score.  These scores are comparable to the IQ score obtained by Dr Ng Fung Shing, the psychiatrist, therefore both confirming Mr Law to be a mildly handicapped person since birth. 

6.They have, in fact, gone through the background and the cause of the handicap of Mr Law, confirming that he had been a mentally handicapped person since birth. There is also evidence produced from the principal of Hong Chi Morninghill School, a school for mentally handicapped students, certifying Mr Law was a student at the school up to 1986. 

7.From the evidence produced in support of the application, I am satisfied that the onset of Mr Law’s mental handicap was not a sudden one.  It has always been there since his birth.  Mr Yung queried why Mr Law was able to obtain loans from the plaintiff and three other finance company if he was a mentally handicapped person.  It is not a question for this court.  The plaintiff has chosen not to file any evidence by affidavit in opposition setting out its reasons or evidence on the background of the case.  The Court should not venture in realms of speculation without any evidence in support.  In any event, this is an application under Order 80 for a guardian ad litem to be appointed, not for the setting aside of the judgment.  Although, the applicant has made her intention clear that if she was made the guardian ad litem of her husband she would proceed to apply to set aside the judgment and the charging order, these are not the issues before the court today even though the court in an Order 80 application have to consider the proceedings and the background, merely as a background, it is not for this court to judge without supporting evidence on the merits of the plaintiff’s case or the defendant’s case.  There is a huge difference between the background and the nature and issues faced by Judge Leung in the Easy Fortune case.  In the present case, Mr Law has been a mild grade mentally handicapped person since birth while the defendant in the Easy Fortune case developed mental illness in 2006, at the time when the proceedings were issued against him.

8.In the present case, Mr Law’s IQ is below 70 under the definition section, section 2 of the Mental Health Ordinance, he is a mentally handicapped person and his handicap has been there since birth. 

9.For the aforesaid reason, I grant an order for the applicant to be made a guardian ad litem under Order 80, Rule 6(1)(a) of the Rules of District Court.

(Discussion re costs)

11.I will make the costs of this application costs in the cause.  The costs of today I will grant to the applicant to be taxed if not agreed, the reason being the plaintiff should have known, after reading the affidavit served with the summons and consented to the application without full argument in court. 

Mr Eric Yung, of Messrs Liu, Chan & Lam, for the Plaintiff

Defendant, in person, present.

Mr Hylas Chung, instructed by Gary Lau & Partners, for the Applicant