RE LYM

HCMH 44/2013

[2024] HKCFI 2299

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MENTAL HEALTH CASE NO. 44 OF 2013

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REASONS FOR DECISION AND
SUMMARY ASSESSMENT OF COSTS

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A. INTRODUCTION

1.  These proceedings were first commenced in 2013 under Part II of the Mental Health Ordinance, Cap 136 (“MHO”) for a committee to be appointed for the estate of the mentally incapacitated person LYM, one of 9 siblings. The application under Part II was commenced by LYM’s 2^nd elder brother LSWA who was represented by solicitor Ms Christine Yuen (“Ms Yuen”) of Messrs Tse Yuen Ting Wong (“TYTW”). LYM’s younger brother LSHJ was the interested party who intervened in the Part II proceedings and opposed the application by LSWA, and LSHJ offered himself as the committee. LSHJ was represented by solicitor Mr Yaddy Cheung (“Mr Cheung”), then of Messrs Yaddy Cheung & Co. LSHJ had the support of his 5 other siblings, with the remaining sibling at that time said to be uncontactable.

2.  LYM’s siblings eventually arrived at an agreement, and by an order of 7 August 2014, this Court appointed Ms Yeung and Mr Cheung jointly to be the committee for LYM (“Committee”).

3.  By the time of the present hearing before this Court, according to Mr Cheung, some of the LYM’s siblings had passed away, and that at the hearing he represented 4 surviving siblings and Ms Cheung represented 2 of the surviving siblings of LYM, whereas TYTW were solicitors instructed by the Committee for the present hearing.

4.  During the pandemic, on 6 September 2021, the Committee issued a summons (“Summons”) and applied amongst other things for an order that the Committee or alternatively the Director of Social Welfare (“Director”) be appointed as the guardian of LYM under section 59M of the MHO, namely the guardian of the person of LYM.

5.  There were two preliminary issues raised by this Court arising out of the Summons, namely (1) whether the Court has power to appoint the Committee as guardian of the person under section 59M of MHO and (2) notwithstanding the provisions of MHO, whether the Court has inherent jurisdiction to grant a guardianship order to the Committee or any other person not specified in section 59N (1) of MHO as the Court deems fit.

6.  On 3 March 2023, this Court handed down a decision on the preliminary issues raised (“Decision”)[1]. In the Decision, the Court’s answer to Issue (1) is no, and the answer to Issue (2) is yes. The Court will continue to adopt herein the abbreviations in the Decision, unless otherwise indicated.

7.  In paragraph 45 of the Decision, upon deciding that this Court does have inherent jurisdiction to appoint a person not specified in section 59N(1) of MHO to be a guardian of a mentally incapacitated person, this Court then requested the Director to submit a social enquiry report to contain the information set out in section 59P(3) of MHO to be received in evidence for consideration by this Court before deciding whether to appoint a guardian in person for LYM and if so, whether the Committee should be appointed the guardian.

8.  The Social Enquiry Report was duly prepared and submitted by the Director on 29 May 2023 (“SWR”)[2], and a short direction hearing was initially fixed on 3 November 2023. The Director maintained his view that a guardianship order was not necessary for LYM. A guardianship order was not recommended by the social investigation officer. The Director however adopted a neutral stance on whether the Court should appoint a guardian for LYM.

9.  Upon reading the SWR and the Director’s skeleton submissions, this Court decided on 2 November 2023 to vacate the directions hearing on 3 November 2023 and direct instead a substantive hearing to be fixed on 7 May 2024 for this Court to consider the Director’s submissions as to why a guardianship order was not necessary. This Court also directed that LYM be joined as a party to the Summons, and that the Official Solicitor (“OS”) be appointed as the guardian ad litem of LYM at the substantive hearing and to lodge skeleton submissions as to whether it is in the interests and welfare of LYM that LYM should be received into guardianship, and if so, the appropriate person to be appointed.

10.  In OS’s skeleton submissions before this Court, OS took the view that taking into account the interests of the welfare of LYM, she was recommended to be received into guardianship and that if the Court was minded to make a guardianship order, it was OS’s recommendation that the Director should be appointed as public guardian of LYM.

11.  At the resumed hearing on 7 May 2024, the Director initially maintained his views that a guardianship order was not necessary and adopted a neutral stance to whether the Court was to make a guardianship order. However, upon further consideration of the OS’s submissions, the Director agreed to be appointed the guardian of LYM if the Court was minded to make a guardianship order.

12.  Having considered the SWR and all the circumstances of this case, this Court came to the view that LYM should be received into guardianship, and that a guardianship order should be made. Upon the Director indicating his agreement to be appointed, this Court granted on an order at the hearing and appointed the Director as guardian of LYM, for a period of 2 years from the date of the order until 6 May 2026 (“Guardianship Order”), and directed that there be a hearing fixed on or before 31 March 2026 before the Judge in charge of the Mental Health List in the High Court for review of LYM’s guardianship arrangements.

13.  Upon appointing the Director as guardian of LYM, this Court further ordered that the Director be given the following powers:

(1)  To required LYM to reside at such place as may be specified by the Director;

(2)  To convey, or to arrange of the conveyance of LYM to the place so specified by the Director, and such reasonable force may be used as is necessary for the purpose;

(3)  To require LYM to attend at places and times so specified by the Director for the purpose of treatment or special treatment (within the meaning of section 59ZA of the MHO) or occupation, education or training;

(4)  To consent to that treatment (other than special treatment) on behalf of LYM but only to the extent that LYM is incapable of understanding the general nature and effect of such treatment;

(5)  To require access to LYM be given, at any place where LYM is residing, to any registered medical practitioner or approved social worker;

(6)  To make application to the Court for disclosure of the contact means of LYM’s siblings, if necessary; and

(7)  To make application to the Court for making a statutory will of LYM, if necessary.

14.  In the Guardianship Order, this Court also ordered the costs of the Committee and the OS be summarily assessed and paid out from LYM’s estate. The Director did not seek any costs order.

15.  I will set out my reasons hereunder as to why I came to the view that LYM should be received into guardianship.

B.  REASONS

B.1  Legal principles

16.  Part IVB of the MHO sets out the relevant provisions in relation to the guardianship of a mentally incapacitation person (“MIP”) including the establishment of a “Guardianship Board”. In particular, section 59M(2) provides that:

“(2) A guardianship application may be made in respect of a mentally incapacitated person on the grounds that—

(a) in the case of—

(i) a mentally incapacitated person who is mentally disordered, he is suffering from mental disorder of a nature or degree which warrants his reception into guardianship under this Part; or

(ii) a mentally incapacitated person who is mentally handicapped, he has a mental handicap of a nature or degree which warrants his reception into guardianship under this Part; and

(b) it is necessary in the interests of the welfare of the mentally incapacitated person or for the protection of other persons that the mentally incapacitated person should b so received.”

17.  Section 59O(3) then provides that:

“(3) In considering the merits of a guardianship application to determine whether or not to make a guardianship order under subsection (1) in respect of a mentally incapacitated person, the Guardianship Board shall observe and apply the matters or principles referred to in section 59K(2) and, in addition, shall apply the following criteria, namely that it is satisfied—

(a)	(i) that a mentally incapacitated person who is mentally disordered, is suffering from mental disorder of a nature or degree which warrants his reception into guardianship; or
	(ii) that a mentally incapacitated person who is mentally handicapped, has a mental handicap of a nature or degree which warrants his reception into guardianship;

(b) that the mental disorder or mental handicap, as the case may be, limits the mentally incapacitated person in making reasonable decisions in respect of all or a substantial proportion of the matters which relate to his personal circumstances;

(c) that the particular needs of the mentally incapacitated person may only be met or attended to by his being received into guardianship under this Part and that no other less restrictive or intrusive means are available in the circumstances; and

(d) that in the interests of the welfare of the mentally incapacitated person or for the protection of other persons that the mentally incapacitated person should be received into guardianship under this Part.”

18.  Ms Chui on behalf of OS referred the Court to WKP v Charles Chiu Chung Yee & Anor [2018] 3 HKLRD 232, CACV 157/2016 (English translation) in which Lam VP in his judgment had pointed out that section 59K(2) of MHO provides that the ultimate objective of the Guardianship Board when making the decision must be to promote the interest of the [MIP][3].

19.  It is quite clear from the above that the interests of the welfare of the MIP shall be one of the relevant factors to be considered in deciding whether the MIP should be received into guardianship. The best interests of the MIP is the guiding purpose in making a guardianship order[4].

B.2  Personal background of LYM

20.  LYM was born in 1947 and is now aged 77. She is single and has no children. She ranks 5^th in a total of 9 siblings. Sadly, she has been diagnosed with chronic schizophrenia since 1965 and has been in the current long stay care home (“Care Home”) since July 2004, ie for some 20 years. As set out in the SWR, LYM has been arranged to live in a 6-person bedroom measuring 33.4 square meters with simple furniture.

21.  LYM’s assets only comprised of cash, and she had cash deposit of around HKD 25million as at 22 March 2023. The expenses at the Care Home were around HKD 5,000 per month which included the monthly fees of the Care Home (HKD$1,875), medical, nutrition milk, escort, social activities, diapers, travelling and miscellaneous, and her average total monthly expenses in 2022 were about HKD 120,114, or about HKD 10,009.50 per month on average[5].

22.  The reasons why the Committee issued the Summons included[6]:

(1)  there was an enquiry from the Care Home on or around 5 March 2021 and the Care Home had queried the Committee’s ability and/or ambit of power in deciding on the healthcare for LYM including at that time whether LYM should take a COVID 19 vaccine, and whether LYM should be provided health supplements;

(2)  there were many other occasions where LYM was admitted into hospital but the Committee were not certain and indeed would have no power to decide as to what advice or decision should be made regarding the health condition on LYM;

(3)  LYM’s family members were mostly not interested in the matter as most of them were not in Hong Kong.

B.3  Discussion

B.3.1.  Whether it was necessary for a guardianship order to be made for LYM

23.  Counsel Mr Billy Ma represented the Committee at the hearing and that the Committee’s stance was always that LYM should be received into guardianship.

24.  At the hearing, the Director had initially maintained the view that a guardianship order was not necessary for LYM, in light of LYM’s favourable welfare arrangement, proper financial arrangement and stable health condition, and that the 6 powers under section 59R(3) of MHO were not applicable for LYM and in addition, the then less restrictive intrusive means to handle LYM’s welfare was of the best interest of LYM[7].

25.  On the other hand, OS noted that according to the SWR, the 6-person bedroom in which LYM was placed measured 33.4 square meters with simple furniture. LYM was attending regular medical follow up at Ha Kwai Chung General Out-Patient Clinic and West Kowloon Psychiatric Centre, and she was required to take prescribed drugs daily and to have medicine for Vitamin B12-Deficiency injected every 3 months. In 2021, she had 5 admissions to hospital for medical examinations and treatments. On 5 November 2022, LYM had a fall when she had a free walk in the common area in the Care Home, resulting in hospitalization for 3 days. LYM was assessed to have risk of fall and was required to use restraint tools such as restricted vest or platen when necessary, and a bed sensor was prescribed and loaned to her in March 2023. LYM was mainly chair-bounded and double-incontinent requiring wearing diapers 6-8 pieces a day. She required assistance to sit on a geriatric chair. The physiotherapist at the Care Home provided one session of training to LYM per week. No occupational therapy was arranged for her.

26.  OS was of the view that in light of LYM’s above then condition and medical and healthcare needs, it was worthwhile to explore whether there were better options of accommodation and nursing care plan available for LYM, as she could afford the cost of a higher standard of living with more frequent training or therapy which would benefit her health and overall well-being. OS also pointed out that aids and equipment could be purchased for LYM’s exclusive use to enhance her safety and improve her quality of life, and that all these were within the scope of power conferred upon a guardian, and could not be readily exercised without the making of a guardianship order.

27.  I agree with OS’s views. As further pointed out by OS, LYM is now 77, and in 2022, the life expectancy at birth for females in Hong Kong is 86.8 years, according to the Statistics of the Centre for Health Protection, Department of Health, HKSAR. LYM’s assets should be more than sufficient to financially maintain her for the rest of her life. Thus, OS was of the view that it was in the interests of the welfare of LYM to make the most of her available assets to maintain her health and to improve her standard of living in all aspects. Again, I agree.

28.  There was no reason as to why more frequent physiotherapy sessions could not have been provided for LYM and why no occupational therapy had been arranged for her.

29.  Although LYM could well be accustomed in her present environment, there was no reason as to why a bigger bedroom could not be arranged for her. There may be other better options for her accommodation and nursing care, and an improved standard of living with more frequent training or therapy which would no doubt benefit her health and overall well-being. There was no evidence that other better options had been explored for LYM.

30.  Those siblings of LYM who were represented by Ms Yuen and Mr Cheung had indicated their unwillingness for their contact means to be even disclosed to the social investigating officer. In my view, they showed a total lack of interest in the care arrangements of LYM. In light of the lack of support from her siblings, and the need to protect LYM who is incapable of making reasonable decisions in respect of matters relating to her personal circumstances and her own care, I am satisfied that the appointment of a guardian would be necessary in protecting the interests of LYM and that such an appointment is in her best interests.

B.3.2.  Whether Ms Yuen should be appointed the guardian

31.  As pointed out by OS, a guardian should normally be a family member or relative of the MIP as he/she would be in a better position to understand the needs of the MIP and is appointed out of love and affection to care for the MIP and to look after his/her welfare, and that the appointment of the Director as public guardian shall be considered as the last resort.

32.  In the present case, LYM’s siblings will be the potential beneficiaries of LYM’s estate in case of any intestacy under the Intestates’ Estates Ordinance, Cap 73, as there is no evidence that LYM has made a will. In fact, one of the Committee’s submissions in support for a guardianship order is that it may be considered necessary by the guardian to make a statutory will for LYM. Anyway, it is sad to see that none of LYM’s siblings, or any of her family members/relatives, has been interested in LYM’s care, and not even in supervising or overseeing the care arrangements of LYM. They seem to be simply content to delegate these arrangements to the Committee, to the extent that they did not even wish to disclose to the social welfare officer preparing the SWR as to their means of contact. It was further revealed by Mr Cheung that the siblings indicated that they would like to cut down unnecessary expenses of the Committee and had unanimously agreed to use only Mr Cheung as the attorney of LYM[8]. Their attitude would seem to indicate a complete lack of concern over LYM’s interests and welfare.

33.  The Committee, in particular Ms Yuen, had done their best in carrying out their duties delegated to them. Mr Cheung had no objection to Ms Yuen being appointed as the guardian, but with respect, Ms Yuen is not a member of LYM’s family, nor in any way related to LYM. She has only been carrying out her professional duties for which she has been paid for by her client/s, even though she has been visiting LYM regularly over the years. Ms Yuen may also have to act in accordance with her instructions from her client/s, and in light of her client/s’ unhelpful attitude in the present application, there may be conflict of interest on her part. In my view, Ms Yuen may not be a suitable person to be appointed as guardian for LYM.

34.  As mentioned earlier, in the end, the Director agreed to the appointment, and the Director was duly appointed as the public guardian for LYM, with those powers set out earlier in the Guardianship Order.

B.4  Conclusion

35.  For all the reasons set out above, this Court granted the Guardianship Order detailed earlier.

C.  SUMMARY ASSESSEMENT OF COSTS

36.  The Director has not sought costs of the Summons.

37.  OS submitted a statement of costs totalling HKD 82,300.66. I find such costs reasonable and simply round it off to HKD 82,300 to be paid out of the estate of LYM.

38.  TYTW, as solicitors for the Committee, submitted a statement of costs of HKD 257,840, including counsel fees of HKD 40,000. The total solicitors’ costs under sections B, C and D are in my view somewhat on the high side. They have already been allowed $143,691 under the Order of 3 March 2023 for the Preliminary Issues. The hearing on 7 May 2024 was about 1.5 hours. For the present hearing, I will summarily assess the solicitors’ costs to be a total of HKD 120,000. Thus, the total summarily assessed amount for TYTW inclusive of counsel fees is HKD 160,000.

39.  Messrs Cheung & Liu as solicitors separately representing Mr Yaddy Cheung filed only a short affirmation prior to the hearing on the Preliminary Issues. They submitted a statement of costs of a total of HKD 46,713. I will only allow HKD 25,000 on summary assessment.

40.  Unless I receive written objection from parties within 7 days hereof, these reasons will be uploaded to the Legal Reference System for publications.