CHU KWOK KEE KOOKIE the committee of the estate of Ming Chor Pao, a mentally incapaciatated person v. CHU KWOK BING AND ANOTHER

HCA 2728/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2728 OF 2015

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D E C I S I O N

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1.  This action was commenced by the plaintiff, Mr Chu Kwok-kee Kookie as the committee and on behalf of Madam Ming Chor-pao.

2.  It is not disputed that Madam Ming died in November 2016.  Pursuant to section 27(4) of the Mental Health Ordinance, Cap 136, the committee of the estate of Madam Ming was discharged (without any order) on the death of Madam Ming. 

3.  However, this does not mean that the cause of action itself did not survive the death of Madam Ming.  Order 15, rule 7 of the Rules of the High Court permits any person in whom the cause of action vests to apply for a substitution order, substituting himself or herself as the plaintiff. 

4.  However, the application for a substitution order should be made promptly.  Order 15, rule 9(1) of the Rules of the High Court provides inter alia that:

“If after the death of a plaintiff...in any action the cause of action survives, but no order under rule 7 is made substituting the plaintiff any person in whom the cause of action vests..., the defendant...may apply to the Court for an order that unless the action is proceeded with within such time as may be specified in the order the action shall be struck out as against the plaintiff...who has died.”

5.  In my view, the terms of Order 15, rule 9(1) clearly envisage that a reasonable time should be given to the person intending to apply for a substituation order before the action is struck out.

6.  Accordingly, in the present case, I order that:

(i) Unless the action is proceeded with within three months from the date hereof, the action shall be struck out as against the plaintiff.

As the order granted is conditional in nature, I order that:

(ii) Costs be reserved.