LILY CHEUNG v. CHEUNG WAI KWOK AND ANOTHER

HCAP 3/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 3 OF 2008

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D E C I S I O N

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1.  The 2^nd defendant applies for: (i) appointment of herself as the guardian ad litem of the 1^st defendant; and (ii) leave to serve her supplemental statement. The plaintiff opposes.

BACKGROUND

2.  Luk Kim Ying, deceased (“the Deceased”) passed away intestate on 15 March 2006.  The plaintiff claims to be the Deceased’s sole adopted daughter and thus her right to the grant of administration of the Deceased’s estate (“the Estate”).  The 2^nd defendant also claims to be the adopted daughter of the Deceased and the 1^st defendant, who were allegedly married in the Mainland in 1949.  Both the plaintiff and the 1^st defendant have applied for grant of administration of the Estate.

3.  In March 2008, the plaintiff commenced this action against the 1^st defendant, claiming for declaration of her entitlement to the grant of administration of the Estate.  She disputes the alleged marriage between the Deceased and the 1^st defendant and its validity.  The 1^st defendant counterclaims for declaration of his prior entitlement as the surviving husband to the grant.

4.  Then the 2^nd defendant was joined.  The plaintiff disputes her alleged status as the adopted daughter of the Deceased.  In her defence, the 2^nd defendant, among other things, supports the 1^st defendant’s case (that he was the Deceased’s lawful husband).

5.  In the meantime, other (but related) litigation commenced by the plaintiff against, among others, the 2^nd defendant prior to the passing of the Deceased continued into 2009 until the Court of Appeal decided and gave directions that the proceedings in this action ought to be expedited (CACV 2/2009, decision dated 29 June 2009).

6.  Leave to set down this action for trial was given in late 2011.  The trial is not due to commence on 11 February 2014, estimated to last for 9 days.

7.  Despite the initial separate legal representation, the 1^st and the 2^nd defendants have since been represented by the same legal team.

8.  By summons filed on 28 January 2014, the 2^nd defendant applies for an order for her appointment as the guardian ad litem of the 1^st defendant on the ground that the 1^st defendant has become mentally incapacitated.

9.  By summons filed on 29 January 2014, the 2^nd defendant applies for leave to file and serve her supplemental witness statement.

THE O.80 APPLICATION

10.  Pursuant to O.80, r.2(1) of the Rules of the High Court (“RHC”), a person under disability may not bring a claim in any proceedings except by his next friend and may not defend except by his guardian ad litem.  A person under disability includes a mentally incapacitated person.

11.  A mentally incapacitated person means a mentally disordered person or a mentally handicapped person (within the meaning of the Mental Health Ordinance Cap 136 (“MHO”)) who, by reason of mental disorder or mental handicap, is incapable of managing and administering property and affairs: O.80, r.1.

12.  In case a defendant becomes mentally incapacitated after an action has commenced, an application must be made to the court for the appointment of a guardian ad litem: O.80, r.3(5).

13.  Pursuant to O.80, r.3(6) and (8), the following documents have been produced in support of the present application:

(1) written consent of the intended guardian, i.e., the 2^nd defendant;

(2) certificate by the solicitors for the 1^st defendant (and the 2^nd defendant) certifying that:

(i) he believes that the 1^st defendant is mentally incapacitated on the basis of the facts and information contained in the affirmations filed in support as well as the psychiatrist report mentioned below;

(ii) no person has been authorized under Part II of the MHO before; and

(iii) the 2nd defendant, being named as the guardian, has no interest in the cause or matter in question adverse to that of the 1^st defendant.

THE DISPUTE

14.  In opposition, the plaintiff questions:

(1) whether the 1^st defendant is mentally incapacitated; and

(2) whether the 2^nd defendant should be appointed as the guardian ad litem of the 1^st defendant.

Whether the 1^st defendant is mentally incapacitated

15.  The 1^st defendant is 92 years old; and has been staying at a nursing home since 2011.  The affirmations in support set out the deterioration of the condition of the 1^st defendant in the recent 2 months noted by the health care worker of the nursing home and the 2^nd defendant.  The pre-trial conference with counsel last month also had to be cancelled as a result.

16.  All these alerted the 2^nd defendant and her legal team as to the possible need for invoking O.80 in order to enable the proper representation of the 1^st defendant in the conduct of the forthcoming trial.  For such purpose, psychiatrist was engaged to assess the condition of 1^st defendant.

17.  Dr Jenny Tsang, psychiatrist, examined the 1^st defendant on 21 January 2014 and produced her report dated 24 January 2014.  The report set out the medical and psychiatric history of the 1^st defendant as well as information obtained from the interview with the health care worker of the nursing home.  Assessment with the aid of the mental state examination was carried out.  Dr Tsang formed the opinion that the 1^st defendant has been suffering from mixed anxiety and depressive disorder since 1998, which has been under symptom control.  His dementia also responded to therapy.  But his mental incapacity started about 2 months ago.  She opined that he has been suffering from cognitive impairment and active psychotic symptoms for at least 2 months.  The cause of that was uncertain at the moment, which would be a matter of further investigation by the treating psychiatrist.  She concluded that the 1^st defendant is incapable by reason of mental incapacity as defined in the MHO of managing and administering his property and affairs.

18.  Mr Poon for the plaintiff indicated that his client would adopt a neutral stance in respect of the 1^st defendant’s mental condition.  She only could not be sure about the alleged mental incapacity; and took the view that Dr Tsang’s report does not suffices for the purpose of establishing the alleged mental incapacity.

19.  Mr Poon did not give me the impression that his client is indeed neutral in this respect.  The stance of the plaintiff is certainly not that she would leave it to the court to decide the question on the basis of the materials and would abide by the court’s decision.  Quite to the contrary, Mr Poon argued that his client should have the opportunity of examining the 1^st defendant by another psychiatrist of her choice.  She also requested for the disclosure of all the previous medical records of the 1^st defendant for the past 3 years.  That could only mean the plaintiff does not accept that the materials before the court entitle the court to conclude that the 1^st defendant is mentally incapacitated for the purpose of O.80.

20.  Mr Poon borrowed support from Moral Luck Finance Limited v Law Kin Leung, DCCJ 736/2011 & DCMP 2062/2011 (25 August 2011), specifically what the Deputy District Judge said at §29.  Mr Poon submitted that that offers various outcomes available to this court in this application.

21.  What the learned Deputy District Judge said in Moral Luck Finance Limited came directly from §63 of the judgment of the Court of Appeal in Ho Po Chu v Tung Chee Hwa & Ors, CACV 206/2005 (19 January 2006).  Yet there Lam J (as he then was) made clear (at §62) that he was going to add some observations as to what the court could do when it is faced with a litigant who is not represented by a next friend and there is suggestion that he or she might suffer from mental incapacity.  The paragraph cited by the Deputy District Judge in Moral Luck Finance Limited follows:

“63. In my view, the court has a number of options and it is a matter of discretion for the court to decide which is the most appropriate option to adopt in the circumstances of the case. The options are:

(a) Strike out the claims if it is obviously vexatious;

(b) If mental incapacity is clearly established by way of medical evidence and there is no dispute by the litigant as to his mental incapacity, and if the action is not vexatious, the court may stay the action pending either appointment of next friend under Order 80 or an inquiry and appointment of committee under Part II of MHO;

(c) If mental incapacity is disputed, the litigant must be given a fair chance to defend his or her case on that issue. The matter as to capacity can still be resolved within the context of Order 80…Alternatively, the court may stay the action pending the holding of a Part II inquiry;

(d) If the evidence as to mental incapacity is inadequate, the court may allow the action to be proceeded on the basis that the challenge based on disability is unsubstantiated.

……”

(underline added)

22.  It is obvious that the context in Ho Po Chu was a debarring order against a litigant commencing legal proceedings.  Lam J was referring to the case where a party to litigation challenges against the mental capacity of the litigant bringing about the litigation (ie the plaintiff).  Options (b) and (c) above refer to dispute by the plaintiff as to his mental incapacity alleged by his opponent.  Hence a fair chance to the plaintiff to defend his case on that issue.

23.  The above does not assist in the context of the present case.  It simply does not follow from the above that as the plaintiff in the present case disputes the alleged mental incapacity of the 1^st defendant, it would be unfair to her if she is not afforded with the chance of contradicting the alleged mental incapacity by adducing medical expert evidence.

24.  The significance of the context of Ho Po Chu, as opposed to an usual case of O.80, in terms of the evidence required was actually made abundantly clear in various parts of the judgment:

(1) Reference in O.80 to the MHO is for definitions only.  An inquiry similar to that under Part II of the MHO is not necessary before a next friend or guardian ad litem may be appointed.  O.80, r.3(8) requires a certificate from the solicitor for the person that he believes that person is a mentally incapacitated person with grounds for such belief (§§28-31; 43-44).

(2) Order 80, r.2 is of wide application.  Whilst the test of mental incapacity is identical, it does not follow that the evidence needed to pass that test must be the same in all situation.  In a situation where an act in legal proceedings is clearly for the benefit of the person in question, it is unnecessary for formal medical evidence to be adduced to show that the plaintiffs needs by reason of mental incapacity to sue by a next friend or defend by a guardian ad litem (§§45-46).

(3) The court should adopt a flexible approach to the evidence of mental incapacity under O.80. Where mental incapacity is relevant because a debarring order is sought, the court would expect clear medical evidence to prove the mental incapacity because the effect of such an order.  However where mental incapacity is relevant because an action is started by the next friend or defended by the guardian ad litem of a person said to be suffering mental incapacity and that act is obviously for the person’s benefit, the court would not initially require formal medical evidence, although it would of course be prudent for the next friend or guardian ad litem and the solicitor acting under his instructions to have medical evidence available before the event in case of challenge (§52).

25.  In approaching a situation where there is dispute between the parties as to whether the person concerned is mentally incapacitated for the purpose of O.80, I would with respect echoe what Judge Lok said in Chan Ka Yi v DBS Bank (HK) Ltd [2010] 2 HKLRD 528 (after citing the dicta of Warrington J in Richmond v Branson & Son [1914] 1 Ch 968):

“18. Based on the aforesaid dicta, it is clear that the provisions contained in O.80 are purely procedural in nature. Order 80 enables a plaintiff who is unable to give instruction to his solicitor by reason of his mental incapacity to commence legal proceedings with a next friend. With the instruction given by the next friend, it provides authority to the solicitor to conduct the proceedings in the name of the patient. In substance, it is still a claim by the mentally incapacitated person himself. It is also important for the solicitor to invoke such procedure in the case of doubt as to mental capacity of his client. As laid down in the case of Yonge v Toynbee, a a solicitor would be personally liable for the costs of the opposite party if he has no authority to conduct the proceedings in the name of a mentally incapacitated client even if he is ignorant that his client is a person of unsound mind.

…

20. As the appointment of next friend is procedural in nature and the real issue at this stage is not about the authority of the applicant’s solicitor, I am of the view that the Court is entitled to deal with this interlocutory application for the appointment of next friend in a summary manner……”

26.  The same approach was also reflected by the Court of Appeal’s discussion of the test of mental incapacity for the purpose of O.80 in Ng Hong Ki v Leung Fong Kiu [2012] 1 HKLRD 435.  Whilst the evidence needs to establish that the mentally disordered person is incapable of managing and administering his property and affairs (see §31), the Court of Appeal in Ng Hong Ki had this to say (at §34):

“For the purpose of an appointment of a guardian ad litem under O.80, the test of mental incapacity is “issue-specific” and the test that has to be applied is “whether the party to legal proceedings is capable of understanding, with the assistance of such proper explanation from legal advisers … the issues on which his consent or decision is likely to be necessary in the course of the proceedings”. The focus of the enquiry is on the litigation under consideration rather than the whole of that person’s property and affairs.  Complete incapacity is not required to be established……These features were identified in a person that would lead the Court to conclude that he was a person under disability for the purpose of O.80: “…he had no insight at all into his own mental state.  He was not capable of exercising any reasonable judgment on a possible settlement…”

27.  Applying the above to the facts of Ng Hong Ki, the Court noted that whilst the doctor stated in his report that the defendant there had limited capacity (as opposed to incapacity) of managing and administering his property and affairs, the doctor did state that the defendant was mentally not fit to give instructions in legal proceedings.  The Court took the view that the medical evidence, though scanty, sufficed for the judge below to come to the view that the defendant was incapable of understanding the problem in respect of which he needed advice, to give instructions to his legal adviser for the latter to advise him properly, and to understand and make decisions based on the advice given.

28.  This brings me to consider the evidence adduced in support of the present application.  As mentioned, besides the description of the events leading to the present application in the affirmations in support, there is indeed a medical report by Dr Tsang.  This is formal medical evidence.  Further, Dr Tsang is on the list of approved doctors for the purposes of section 2(2) of the MHO as having special experience in the diagnosis or treatment of mental disorders.  This is what would have been expected in the case of an enquiry under Part II of the MHO where at least one of the 2 medical practitioners certifying the mental incapacity of the patient must be on that list.

29.  The instances that were set out under the section ‘Assessment on Mental Capacity’ of the report, in my view, also served to address the “issue-specific” element explained in Ng Hong Ki above.  The 1^st defendant was effectively unable to even recognize his own solicitor and what the latter has been instructed to do for him.  As mentioned, the affirmations in support also explained that the recent meeting with counsel had to be cancelled in the circumstances.

30.  It was not suggested on behalf of the plaintiff that the opinion and its basis as stated in the report is doubtful.  But Mr Poon argued that Dr Tsang mentioned that the cause of the 1^st defendant’s mental incapacity at this juncture was uncertain and suggested further investigation by his treating psychiatrist.  The treating psychiatrist was however not consulted.

31.  The cause of the incapacity may be the concern of the treating psychiatrist for the purpose of treatment. Dr Tsang did not make that observation with a view to qualifying or expressing reservation about the genuineness of the 1^st defendant’s condition or the integrity of any part of her opinion and conclusion.

32.  Mr Poon queried whether the mental incapacity of the 1^st defendant would be permanent and whether it might respond to appropriate treatment.  But I am not aware of any authority suggesting that ‘mental incapacity’ for the purpose of O.80 must be permanent or fairly permanent.  If the best that could be suggested was that the 1^st defendant’s condition might improve with treatment or medication, then I do not see how it follows that the 1^st defendant should be considered as mentally capable of managing the conduct of the legal proceedings or giving instruction to those acting for him.  The 1^st defendant has to face the trial commencing in less than a week and instruction needs to be given at this very minute.

33.  Except for complaining about the lack of opportunity to subject the 1^st defendant to another examination by psychiatrist of her choice, the plaintiff was not able to suggest any reasons to suspect that the formal medical evidence produced by the 2^nd defendant in support of the application is either unreliable or insufficient for the purpose of O.80.

34.  On the materials before me, I am satisfied that the 1^st defendant is mentally incapacitated for the purpose of O.80; and that a guardian ad litem should appointed to enable the continuation of the 1^st defendant’s conduct of the proceedings.

Whether the 2^nd defendant should be appointed

35.  Mr Poon started by submitting that clearly a co-defendant could not be the guardian ad litem.  He got this from Hong Kong Civil Procedure 2014 (“HKCP”) at 80/3/8, which starts by saying that a co-defendant should not be a next friend, citing Lewis v Nobbs (1878) 8 Ch 591.

36.  It probably goes without saying that a co-defendant could not be a next friend (of the plaintiff).  But it hardly follows that a defendant could not be a guardian ad litem (of his co-defendant).  The case of Lewis cited in that paragraph of HKCP did not go so far as saying what Mr Poon submitted either.

37.  What matters is that the guardian to be appointed must have no interest in the cause or matter adverse to that of the person under disability: O.80, r.3(8)(c)(iii).  It is also desirable that he should be a relation, connection or friend of the family and not a mere volunteer.  This is also what the editor of HKCP in the rest of the paragraph (80/3/8) cited by Mr Poon states.

38.  Mr Poon also relied on SX v LW & Ors, HCMC 8/2011 (30 July 2013).  The learned judge (at §17) also stated as a starting point that a co-defendant should not be a next friend “or guardian”.  The same paragraph of HKCP (80/3/8) was cited.  As mentioned, that paragraph (and the case of Lewis v Nobbs) does not actually say more than the suitability of a co-defendant as a next friend.

39.  In SX, what actually caused the learned judge to refuse to appoint the proposed guardian of the person under disability was the appreciable and real risk that the proposed guardian might be influenced by the views of the parties who had claims to or interests in the assets of the person under disability, such that the proposed guardian might lack the necessary impartiality when making decisions on matters which concerned the benefit and interests of the person under disability (see §20).

40.  Mr Poon submitted that the 2^nd defendant is competing with the plaintiff for the Estate.  This is obvious; but it is what is between the 1^st and the 2^nd defendants that matters for the present purpose.

41.  Mr Poon submitted that the 2^nd defendant would be competing with the 1^st defendant; and it could not be said that she would have no interest adverse to that of the 1^st defendant.  I do not see how, according to the pleaded cases of the 1^st and the 2^nd defendants, as they now stand, as mentioned above.

42.  Then Mr Poon pointed out that the 2^nd defendant would be amending her pleading so as to put forward a counterclaim for declaration of her entitlement to the grant of administration.  What he referred to was the current negotiation between the plaintiff and the 2^nd defendant for applying to amend their respective pleadings by way of consent.  As at today, no such application for amendments has been filed yet.

43.  Just to properly understand Mr Poon’s argument in this respect, I have obtained copies of the intended amended pleadings of the parties.  As far as the 2^nd defendant is concerned, the intended amendments indeed consist of the addition of a counterclaim for her right to apply for the grant of administration of the Estate.  But the following should be noted:

(1) The 2^nd defendant’s such right will be asserted expressly subject to the priority of that of the 1^st defendant.

(2) The relief in respect of her such right will be sought only if the court holds that for his health reason, no letters of administration should be granted to the 1^st defendant.

44.  Mr Hung for the 2^nd defendant pointed out that the relief sought in the intended counterclaim would be based on the contingency envisaged under section 33(1)(ii) of the Non-Contentious Probate Rules, Cap 10, which provides that:

“(1) Where the Registrar is satisfied that a person entitled to a grant is by reason of mental or physical incapacity incapable of managing his affairs administration for his use and benefit limited during his incapacity or in such other way may be granted-

(i) if the person incapable is entitled as executor, to the person entitled to the residuary estate of the deceased;

(ii) if the person incapable is entitled otherwise than as an executor, to the person who would be entitled to a grant in respect of his estate if he died intestate.”

45.  I need not, and probably should not, at this stage express any view on the intended reliance on the above provision by the 2^nd defendant.  Suffice it to say that I do not see the mere intended introduction of the counterclaim by the 2^nd defendant on the basis mentioned above, which is yet to materialise, will render her interest in the cause in this action adverse to that of the 1^st defendant.

46.  But the plaintiff also produced evidence of what was said to be an instance reflecting the unsuitability of the 2^nd defendant to be the guardian ad litem.  The 2^nd defendant had been the guardian (not guardian ad litem) of the Deceased prior to her death.  In 2003, the relevant guardianship order was reviewed and the Director of Social Welfare took over the guardianship of the Deceased.  Mr Poon pointed out that according to the report then, the 2^nd defendant was requested to take legal action as the next friend of the Deceased to set aside the purported gift of some shares of the properties of the Deceased to the 2^nd defendant’s brother on the ground that the Deceased lacked the capacity to execute the deeds in question. However the 2^nd defendant declined to do so.

47.  According to the report, fully read, it was actually the 2^nd defendant who reported the transfer of interests of the Deceased’s properties once she was alerted of the same by the letters from the Inland Revenue Department.  She claimed no prior knowledge about that.  She explained her concern about the legal costs and the risk of financial crisis to the Deceased as a result of the proposed legal action.  Whether she was right or wrong about that, it was the 2^nd defendant who decided in the circumstances to resign from the role as the guardian of the Deceased.  Hence the recommendation in the report for the appointment of the Director of Social Welfare in her place.

48.  Mr Poon submitted that if the 1^st defendant succeeds in establishing his entitlement to the grant of administration of the Estate, there may be need to revisit the recovery from her brother of the interests in the properties that should belong to the Estate.  He cast doubt as to whether the 2^nd defendant would act differently from before in that respect.

49.  It should be noted that we are concerned about the appointment of the 2^nd defendant as the guardian ad litem of the 1^st defendant for the purpose of the conduct of proceedings in this action.  Counsel for both sides acknowledge in their opening submissions for the trial next week that the actual grant of letters of administration might have to be deferred, if the disputed entitlement to the grant is resolved in favour of the 1^st defendant.  An application for the appointment of a committee of the 1^st defendant under Part II of the MHO may be necessary: see Re NCS, HCAG 1036/2008 (31 July 2009).  Through Mr Hung in his opening submissions, the 2^nd defendant undertakes to take out such an application.

50.  In the circumstances, the court’s hands would not be tied in the consideration of the suitability of the 2^nd defendant to be granted the letters of administration, notwithstanding the provisions as to the persons who may be entitled to be granted the letters of administration under section 33(1)(ii) of the Non-Contentious Probate Rules (mentioned above).

51.  Mr Poon also questioned what if the 2^nd defendant, as the guardian of the 1^st defendant, abandons his case all together so as to facilitate her own claim.  Such a bold suggestion, in my view, serves no purpose than to stretch the argument to the extreme apparently for the sake of argument.  The possibility projected was not founded by any factual basis.  It is not consistent with the pleaded case of the 2^nd defendant, as it now stands and even if amended as mentioned above.  Nor is it consistent with the current attempt of the 2^nd defendant to rely on the evidence contained in the 1^st defendant’s witness statement (as discussed below).

52.  Considering all the materials and arguments, I do not find that the 2^nd defendant is an unsuitable candidate to be appointed as guardian ad litem of the 1^st defendant for the purpose of conducting the legal proceedings herein.

THE SUPPLEMENTAL WITNESS STATEMENT OF THE 2^ND DEFENDANT

53.  The supplemental statement of the 2^nd defendant essentially covers 2 aspects: (i) recent deterioration of the condition of the 1^st defendant as mentioned above; and (ii) circumstance surrounding the 1^st defendant’s signing of his 2 witness statements dated 11 January 2010 and 26 October 2013 respectively.

54.  When asked, Mr Poon accepted that the 2^nd defendant’s own statement of the above matters said to be within her knowledge is in principle not objectionable.  It is the stated intention to rely on the contents of the 2 statements of the 1^st defendant as hearsay evidence that the plaintiff opposes.

55.  Mr Poon referred to O.38, r.2A(6) of the RHC and submitted that where the party serving a statement under this rule does not call the witness to whose evidence it relates, no other party may put the statement in evidence at the trial.  He also referred to O.38, r.2A(8) which provides that nothing in the rule shall make admissible evidence which is otherwise inadmissible.

56.  O.38, r.2A(6) is easy to understand.  It is no excuse if the party does not call or ensure that the witness could be called at the trial.  Nor is it excuse that the witness does not or refuses to testify for personal reasons.  But here the situation is different in that the 1^st defendant is prevented by his post-statement mental incapacity from attending the trial to verify his statements and to testify.

57.  O.38, r.2A(6) is actually expressed to be subject to r.2A(9).  R.2A(9) provides that:

“Where any statement served is one to which the Evidence Ordinance (Cap 8) applies, paragraphs (6) and (7) shall take effect subject to the provisions of that Ordinance and Parts III and IV of this Order.”

58.  As mentioned, the 2^nd defendant put the plaintiff on notice of her intention to rely on the statements of the 1^st defendant as hearsay evidence.  Pursuant to sub-rule (9) above, Part IV of the Evidence Ordinance applies so that sub-rule (6) shall take effect subject to that. 

59.  Section 47(1) of the Evidence Ordinance (under Part IV) provides that:

“(1) In civil proceedings evidence shall not be excluded on the ground that it is hearsay unless –

(a) a party against whom the evidence is to be adduced objects to the admission of the evidence; and

(b) the court is satisfied, having regard to the circumstances of the case, that the exclusion of the evidence is not prejudicial to the interests of justice.

......”

60.  The discretion of the court in admitting witness statements intended to be relied on as hearsay evidence does exist.  See also O.38, r.2A(1):

“(1) The powers of the Court under this rule shall be exercised for the purpose of disposing fairly and expeditiously of the cause or matter before it, and saving costs, having regard to all the circumstances of the case…”

and  O.38, r.2A(17):

“(17) The Court shall have power to vary or override any of the provisions of this rule (except paragraphs (1), (8) and (12) to (16)) and to give such alternative directions as it thinks fit.”

61.  The question is whether the statement should be excluded without prejudice to the interests of justice in the circumstances of the case.  As mentioned, in the normal case where there is no excuse for the failure to call the witness or for the refusal of the witness to testify, the answer may be more readily apparent.

62.  In the present case, the 1^st defendant is apparently the one person who would be in a position to testify in respect of his history with and alleged marriage to the Deceased and thus his status as the surviving husband.  Excluding his statements could stifle much of the 1^st defendant’s case as a result of circumstances beyond his control.  I find it to be difficult to conclude that exclusion of the statements would not be prejudicial to the interests of justice.

63.  I certainly understand the other side of the matter.  Essentially the plaintiff is not going to have the opportunity of cross-examining the 1^st defendant on the contents of his statements.  However, it remains open to the plaintiff to refer to that fact in her submission on the weight, if any, to be attached to the statements of the 1^st defendant.

64.  Section 49 of the Evidence Ordinance sets out some of the relevant considerations:

“(1) In estimating the weight, if any, to be given to hearsay evidence in civil proceedings the court shall have regard to any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence.

(2) For the purpose of subsection (1), regard may be had, in particular, to the following-

(a) whether it would have been reasonable and practicable for the party by whom the evidence was adduced to have produced the maker of the original statement as a witness;

(b) whether the original statement was made contemporaneously with the occurrence or existence of the matters stated;

(c) whether the evidence involves multiple hearsay;

(d) whether any person involved had any motive to conceal or misrepresent matters;

(e) whether original statement was an edited account, or was made in collaboration with another or for a particular purpose;

(f) whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight;

(g) whether or not the evidence adduced by the party is consistent with any evidence previously adduced by the party.”

See also HKCP at 38/0/5

65.  As to O.38, r.2A(8) referred to by Mr Poon (above), what that paragraph targets is the incorporation of inadmissible evidence in the statement served; and that this shall not render the inadmissible evidence admissible: see HKCP at 38/2A/3.  An example will be opinion evidence.

66.  Considering all the circumstances, I would not exclude the statements of the 1^st defendant as hearsay evidence.  As to the weight, this will certainly be a matter to be addressed at the trial.

67.  This is of course the decision on the admissibility of the statements of the 1^st defendant in the circumstances of the present case.  Simple reliance on this decision to suggest the opening of a backdoor for admitting into evidence contents of statements of witnesses who are not called will be misplaced.

ORDER

68.  I allow the applications of the 2^nd defendant by her 2 summonses.

69.  Consequential upon the appointment of the 2^nd defendant as the guardian ad litem of the 1^st defendant, the title of the action from now on (excluding the present order) shall bear the fact that the 1^st defendant acts by the 2^nd defendant as his guardian ad litem.

70.  As to the supplemental witness statement of the 2^nd defendant, the same as per draft annexed to the summons shall be filed and served by 4 pm tomorrow.

71.  The plaintiff shall ensure that the trial bundles are duly updated with the additional documents consequential upon this order.

COSTS

[Submission on costs]

72.  Mr Hung proposed, and Mr Poon did not object, that the costs of the applications by the 2^nd defendant shall be costs in the cause of the action.  I so order.