Sx v. Lw and Others

HCMC 8/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MATRIMONIAL CAUSES No 8 of 2011

(TRANSFERRED FROM FCMC No 2036 of 2011

CONSOLIDATED WITH FCMC No 1180 of 2010)

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REASONS FOR DECISION

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1.On 13May 2013, I made an order (“Order”) on the application of the petitioner (“Wife”) for the appointment of the Official Solicitor as the guardian ad litem of the 1^st respondent (“Husband”) to continue these proceedings. This was pursuant to the Wife’s application made on 8 April 2013, shortly before a 15 day trial originally fixed to commence on 13 May 2013. The Wife had in January 2013 been informed by the solicitors acting for the Husband that the Husband had cerebral hemorrhage on 27 December 2012 and was in a state of coma. The Husband’s solicitors claimed that they had been unable to obtain instructions from the Husband for preparation of the pretrial review fixed on 6 March 2013 and for the trial, and sought to vacate the hearing dates. As the Wife opposed the adjournment of the trial, she applied for the Official Solicitor to act as the Husband’s guardian, after unsuccessful attempts to procure the consent of any other relative of the Husband to act in such capacity.

2.Having been satisfied, on the limited evidence available at the time of the 2 relevant hearings on the matter in April and May 2013, that the Husband was suffering mental incapacity and that it was for the Husband’s benefit and in his interests to appoint a guardian to act on his behalf in these proceedings instituted by the Wife, I made the Order on 13 May 2013, and the Official Solicitor was appointed by the Court as the Husband’s guardian.

3.Shortly after the Order was made, on 11 June 2013, an application (“Application”) was made on behalf of Mr F (“F”), by the solicitors who had been acting for the Husband at all material times, for F to be appointed as the Husband’s guardian in place of and in substitution for the Official Solicitor.  The Application was supported by the 4^th respondent (“Daughter”), daughter of the Husband and Wife.

4.The Application is opposed by the Wife, who claims that F has no basis to seek the removal of the Official Solicitor, who has been appointed by the court and who has not been shown to be acting improperly or against the interests of the Husband.  The Wife also claims that F has not been shown to be an appropriate or suitable candidate to act as guardian in place of the Official Solicitor.  It is claimed that F is not a close friend of the Husband, as he alleges, and that he lacks the necessary independence to act as the Husband’s guardian in these proceedings. 

5.It is not alleged by F that the Official Solicitor has in any way been acting improperly, or that the Official Solicitor has been or will be acting against the interests of the Husband.  It is simply claimed on F’s behalf that under section 4 of the Official Solicitor Ordinance, the Official Solicitor should only act as guardian to a person under disability of mental capacity where there is no other person fit and willing to act. Since F is willing and fit to act as the Husband’s guardian, it is claimed that he should replace the Official Solicitor.  F is said to be a good friend of the Husband who has known him since 1993, and who is familiar with the Husband’s current girlfriend on the Mainland (“Girlfriend”), the Daughter, and the son of the Husband and the Girlfriend.  He claims to be in close contact with the 3^rd respondent (“Sister”), who is the Husband’s sister, and that he is trusted by the Husband’s family.  F also claims that he has no interest in the outcome of these proceedings, that he is in a good position to communicate with the Husband and with members of his family in China, and to understand the interests of the Husband.

6.The Official Solicitor’s position is that if the court is satisfied that F can act in the best interests of the Husband and that he is an appropriate person to act as guardian, the Official Solicitor would be happy to be replaced by F.

7.Whether it is a case of a fresh appointment, or a change in the appointment, of a guardian ad litem for a patient under disability, an important if not the paramount consideration of the court in the exercise of its discretion must be the protection or safeguarding of the patient’s interests in the action.

8.Even if it is to be accepted that impropriety does not have to be established in this case, and that a distinction can be made between the removal of a guardian on the ground of impropriety, and a change in the appointment for reasons other than impropriety, the onus is on F - as the party making the application for his appointment as guardian in place of the Official Solicitor who has been appointed by the court - to establish to the satisfaction of the court that he is a fit and appropriate person to be appointed as guardian for the Husband in this case.

9.Having regard to the exceptional circumstances and the history of this case, I was not satisfied at the conclusion of the hearing on 24 July 2013 that F was an appropriate person to be appointed as the Husband’s guardian in place of the Official Solicitor, and I dismissed his Application, with costs.  The following are the reasons for my decision. 

10.The trial is for determination of the Wife’s claims for ancillary relief against the Husband in their divorce proceedings.  The Husband disputes the Wife’s claims to his assets.  The Wife claims that the Husband’s assets include shares in a Hong Kong listed company which had been transferred by the Husband to the Sister and the Daughter, both of whom have been joined as respondents in the action.  The Wife’s claims in these proceedings have an adverse impact on the Sister and the Daughter to such extent.

11.Such evidence as has been available from the parties in China in this case has, at best, been sporadic and tardy in general. According to the respondents, the Husband had been hospitalized since December 2012, and the Wife’s solicitors were informed of this on 29 January 2013.  The Husband’s solicitors claimed that they had not been able to obtain instructions from the Husband since January 2013, but they only made application to the court on 22February 2013, and that was to vacate the trial dates.  Since March 2013, the Wife had through her solicitors been seeking information on the Husband’s health and mental condition and assistance from the Husband’s solicitors and his cousin, for the purpose of appointing a guardian to represent the Husband in these proceedings. In March 2013, there was also correspondence between the Husband’s solicitors (their letter of 12 March 2013) and the Wife’s solicitors (their letter of 26 March 2013) on approaches to the Official Solicitor, and on the appointment of “an appropriate person” to be the Husband’s guardian.  It was only on 7 June 2013 that the Daughter, for the first time in these proceedings, made an affirmation for the purpose of supporting F’s application to be appointed as guardian for the Husband.  F’s application for his appointment as guardian was filed on 11 June 2013, and his affirmation in support was signed on 6 June 2013.

12.On 8 April 2013, the Wife applied to the court for appointment of the Official Solicitor to carry on these proceedings as guardian for the Husband.  At the hearing before the court on 10 April 2013, there was no agreement amongst the parties as to the mental and health condition of the Husband and I directed that the parties should jointly engage a Hong Kong registered and recognized medical practitioner to examine the Husband in China, with the consent of the Husband’s family members.  When the parties appeared before me on 13 May 2013, the court was informed that the Wife had not received the cooperation of the Husband’s family members, and that a medical examination on the Husband could not be conducted in China.  The court was also informed on 13 May 2013 that the Husband’s solicitors had still been unable to receive instructions on the application for the appointment of the Official Solicitor as guardian.

13.It would appear from the evidence and the correspondence produced to the court that the Daughter and the Girlfriend must have been aware of the development of these proceedings since January 2013, and of the hearings before the court in Hong Kong in March, April and May 2013. The Daughter had written to the Wife’s solicitors in March 2013 in relation to the Husband’s treatment and condition in the hospital, and to complain of the Wife’s conduct.

14.In his affirmation filed in support of the Application, F claims that he had visited the Husband many times since he was hospitalized, and that he had met the Sister and the Girlfriend during his visits.  F claims that the Daughter, the Sister and the Girlfriend all wanted him to be appointed as the Husband’s guardian in these proceedings, and that he had no hesitation to act as the Husband’s guardian to protect his interests. He did not explain why, despite his many visits to the hospital and his contacts with the Sister, the Daughter and the Girlfriend there, he had not come forward in April or May 2013 when the court was considering the appointment of the Official Solicitor as guardian for the Husband.  He only claims that when the Husband’s family members learnt that the court had appointed the Official Solicitor as the Husband’s guardian in these proceedings, they decided to appoint someone “to protect the Husband’s interests”.

15.According to F’s own evidence, he is close to the son of the Girlfriend, who (with his mother) have indirect interests in the outcome of this action and in the Husband’s assets.  F is also close to the Daughter, whose interests may conflict with those of the Husband and of the Wife, in that assets in her name are claimed by the Wife to be the Husband’s. 

16.The Wife disputes the fact that F is indeed the Husband’s close friend, or that he had visited the Husband at the hospital at all.  It was also argued on behalf of the Wife that as F’s appointment appears to be the choice of the Daughter, the Sister and the Girlfriend, all of whom have indirect interests in the outcome of these proceedings, there is a genuine concern that F may be influenced by these parties and would not be acting independently in these proceedings.

17.As a starting point, a co-defendant should not be a next friend or guardian (paragraph 80/3/8 Hong Kong Civil Procedure). There is no doubt that the Daughter and the Sister cannot act as the Husband’s guardian.

18.In Re CS, HCMP No 230 of 2005, unreported, 13 May 2005, the court dealt with a matter of competing applications made for appointment of the committee of the estate of a patient under Part II of the Mental Health Ordinance.  In that case, the Director of Social Welfare applied for the Official Solicitor to be appointed as the committee of the estate of the patient.  The patient’s wife opposed the application, and asked for herself to be appointed.  A similar stance was adopted by the patient’s daughter.  At paragraph 11 of his judgment, Lam J (as he then was) had this to say:

“It must be pointed out that upon finding that a patient is incapable, by reason of mental incapacity, of managing and administering his property and affairs, this court has an unfettered discretion in deciding which person to be appointed as the committee. Although this court will naturally take into account the wishes of the relatives and the patient, no person could claim any right to be appointed. Section 10 of the Mental Health Ordinance makes it clear that the paramount consideration in the excise of the court’s discretion is the requirement of the patient. In other words, the welfare of the patient must be safeguarded.”

19.W v H, HCMP No 2 of 2008 and HCMC No 16 of 2008, unreported, 22 July 2008 dealt with the competing applications of a son, a sister and a wife for appointment as the guardian ad litem of the husband in the case.  I accept that the facts in W v H may be distinguishable from the present case, in that each of the son and the sister in W v H who sought to be appointed as guardian personally had interests which were adverse to the interests of the wife in the case, whereas in the present case before me, F did not himself have interests which compete with the Wife’s.  Yet, I agree with counsel for the Wife that at this stage when the merits cannot be fully investigated, the Wife’s concerns as to F’s lack of independence cannot be simply dismissed offhand as incredible. 

20.In view of F’s own admissions of his close relationship with the Girlfriend’s son, and the fact that F is the candidate put forward by the Daughter and the Girlfriend, there is an appreciable and real risk that F may be influenced by the views of these parties who have claims to or interests in the Husband’s assets, such that he may lack the necessary impartiality when making decisions on matters which concern the benefit and interests of the Husband.

21.It was highlighted to the court that a person resident out of the jurisdiction may be appointed as guardian, although he may be required to provide security for costs.  No security has been offered by F, nor has evidence been filed as to F’s ability to offer such security.

22.It was also suggested that F can be appointed, but be warned not to communicate with the Daughter and Sister so as not to compromise his independence.  However, there is no such undertaking offered by F.  Nor is there any indication in the evidence that F has been made aware of and understands the need, and the duty of the guardian, to act independently of the wishes and intentions of the parties seeking or supporting his appointment, and who may have interests which not only compete with those of the Wife, but which may be contrary to the wishes or adverse to the interests of the Husband.

23.I also have concerns as to the enforcement of any undertaking that may be proffered by F, who is not resident in Hong Kong, and as to the court’s supervision and control over F.

24.The strongest argument that has been put forward on the choice of F as guardian is that he is trusted by the Husband and his family, and he can communicate with the Husband as to his wishes and intentions for the conduct of these proceedings.  Whilst the Husband’s family members have been seen to be reluctant to communicate with the Wife and her solicitors, they would be able and happy to communicate with F.

25.However, on my questioning, counsel for F was quick to assure the court that there is no suggestion that the respondents and the Husband’s family members would refuse to communicate with the Official Solicitor, or anyone other than F.

26.To the extent that it is claimed that it would be convenient in terms of proximity for F to communicate with and to ascertain from the Husband as to his wishes and intentions, F can continue to do so if necessary and forward such wishes and intentions to the Official Solicitor in Hong Kong.  If F is indeed willing and anxious as the Husband’s close friend to assist the Husband and his family in the conduct of these proceedings for the protection of the Husband’s interests, there is no reason why he cannot continue to offer his assistance so far as communications between the Official Solicitor in Hong Kong and the Husband’s family in China are concerned.

27.Further, as the court highlighted in W v H, the appointment of the Official Solicitor does not mean that, if necessary and appropriate, the views of the Daughter, the Sister, the Girlfriend, and even of F, cannot be ascertained by the Official Solicitor as to how the Husband’s interests might be best protected and served for his true benefit, and how these proceedings should be conducted.  The Official Solicitor, with his experience, would be in the best position to obtain the necessary information required from the Husband’s relatives, and to conduct these proceedings objectively and rationally, and in his best interests.

28.I also agree that, bearing in mind the size of the Husband’s estate, and the fact that trial will now only commence in May 2014, the question of any additional costs and time to be incurred by the Official Solicitor would not be of such significance as to tilt the balance in my overall consideration of the matter.

29.For all the above reasons, in particular the court’s preference for the appointment of a guardian in Hong Kong, who can be subject to the control and supervision of the court and who can have easy access to the court, and the desirability of the guardian being an independent and objective party, not subject to the control and influence of parties who may have interests adverse to those of the Husband in this case, I  dismissed the Application by F to replace the Official Solicitor as the guardian of the Husband, with costs to the Wife and the Official Solicitor.  The costs of the Official Solicitor are to be taxed and paid on an indemnity basis.

Ms Anita Yip & Mr Eugene Yim, instructed by Philip TF Wong & Co, for the petitioner

Mr King Wong, instructed by Amelia Cheung & Co, for the proposed Guardian ad litem of the 1^st respondent

Mr Poon Siu Wah, of Keith Lam Lau & Chan, for the 2^nd respondent

Mr Jason Chan, for Official Solicitor (Guardian ad litem of the 1^st respondent)