CKKK v. CKB

CACV 162/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CVIAL APPEAL NO. 162 OF 2015

(ON APPEAL FROM HCMH No. 83 OF 2013)

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JUDGMENT

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Hon Chu JA giving the judgment of the Court:

1.  On 30 September 2016, we handed down our judgment dismissing the intervener’s appeal against the order of L Chan J (“the Judge”) made on 15 June 2015, holding that MCP is a person incapable, by reason of mental incapacity, of managing and administering her property and affairs, and appointing the applicant to be the committee of her estate (“Committee”).

2.  By a Notice of Motion filed on 4 October 2016, the intervener applies for leave to appeal against our judgment to the Court of Final Appeal.  By letter dated 9 October 2016, which reached the court on 11 October 2016, the intervener further applies to put in new evidence, namely, a written declaration dated 31 October 2013 made by MCP (“the Written Declaration”). 

3.  On 5 October 2016, the Registrar for Civil Appeals gave directions on the service of the Notice of Motion, and the lodging and service of written submissions.

4.  The intervener lodged his written submission on 11 October 2016.  According to his letter dated 13 November 2016, which was received by the court on 15 November 2016, he had served his written submission on the applicant on 11 October 2016.  The applicant has not lodged any written submission.

5.  Having considered the papers and submission, we are of the view that the intervener’s application may be disposed of on paper without a hearing.  Neither the intervener nor the applicant has requested for an oral hearing of the application.

6.  In order that leave to appeal may be granted, the intervener must show that the question involved in the appeal is one, which by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal: see Section 22(1)(b) of Hong Kong Court of Final Appeal Ordinance Cap. 484.

7.  The Notice of Motion has not set out any question for the determination by the Court of Final Appeal.  It only states the following in support of the intended appeal:

(1) The applicant did not comply with section 7 of Mental Health Ordinance, Cap. 136 in that his application for inquiry was not accompanied by two medicate certificates proving MCP to be mentally incapacitated.  On the other hand, the intervener had produced three medical certificates from approved doctors certifying MCP to be mentally sound and capable between 11 October 2013 and 10 April 2014.

(2) The applicant should not be appointed the Committee.  He is a habitual gambler, not honest and his credibility is doubtful.

(3) The intervener is in possession of MCP’s last will dated 24 October 2013, under which the intervener is the sole beneficiary.

(4) The intervener is in possession of the Written Declaration gifting all of MCP’s properties to the intervener.

(5) MCP had executed a general power of attorney on 28 October 2013 appointing the intervener to be her attorney, and an Enduring Power of Attorney (EPA) on 15 January 2014, appointing the intervener to be her attorney. The Enduring Powers of Attorney Ordinance, Cap. 501, does not prohibit the person appointed as attorney to act as the donor’s interpreter in making the EPA.

(6) The Court should not have rejected the medical certificates produced by the intervener.

(7) The Judge had at an earlier hearing in January 2015 said the intervener had merits in his case, but took a different view at the 15 June 2015 hearing.     

8.  The intervener repeats these points in his written submission.  In addition, the intervener asserts that his intended appeal involves questions of great, general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision in that:

(1) While the government promotes the use of EPA, the Court of First Instance acted to the contrary by revoking MCP’s EPA.

(2) Dr Chen Chia-lu Sylvia is a psychiatric expert on the list of approved doctors for the purpose of section 2(2) of Mental Health Ordinance.  Despite that, the Judge questioned the reliability of her medical certificate and her professional judgment.

(3) The intervener has been treated unfairly as the merits of his case were not taken into account by the Judge.  

9.  The points raised by the intervener in the Notice of Motion are a repetition of the arguments advanced in the appeal before us (see paragraph 35 of the Judgment).  We had considered them and, for reasons set out in paragraphs 40 to 58 of our Judgment, concluded they have no merits.  The other points made in the intervener’s written submission (see paragraph 8 above) also do not amount to questions of great general or public importance.  As our Judgment has pointed out, the Judge was correct in his assessment of the reliability of Dr Chen’s certificate and in concluding that MCP was mentally incapacitated as defined in the Mental Health Ordinance.    

10.  As to the application to introduce and rely on the Written Declaration, the intervener had made an identical application at the hearing of the appeal before us.  For reasons we gave in paragraphs 36 to 39 of our Judgment, we had refused his application.  Both as a matter of procedure and merits, this renewed application must be refused. 

11.  The intervener has failed to demonstrate that his intended appeal to the Court of Final Appeal involves any question of great general or public importance.  The reasons he put forward in support of his leave application are also unarguable.  There is no other ground for submitting his appeal to the Court of Final Appeal for determination. The application therefore fails to meet the required threshold and should be dismissed.

12.  As the applicant has not put in submission to oppose the application, we make no order as to costs.

13.  Accordingly, we order that:

(1) The Notice of Motion is dismissed.

(2) There is no order as to the costs of the Notice of Motion.