WKP v. CHARLES CHIU CHUNG YEE AND ANOTHER

[English Translation - 英譯本]

CACV 157/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 157 OF 2016

(ON APPEAL FROM HCMP NO. 1717 OF 2015)

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JUDGMENT

Hon Lam VP (giving the reasons for the judgment of the Court):

1.  The present appeal is concerned with an order made under section 59O of the Mental Health Ordinance by the Guardianship Board on 18 June 2015 to appoint the Director of Social Welfare to be the guardian of a mentally incapacitated elderly lady.  In the present judgment, the lady is referred to as CST by this Court.  The applicant, who is referred to as WKP by this Court in the present judgment, is the eldest son of CST.  Apart from the applicant, CST has two more sons.  The husband of CST passed away in 1996.

2.  The 1^st respondent, Charles Chiu Chung Yee, is the Chairman of the Guardianship Board.  The 2^nd respondent is the Director of Social Welfare.  Section 59O of the Mental Health Ordinance empowers the Guardianship Board to exercise its discretion to make an order to appoint a guardian for a mentally incapacitated person where the Guardianship Board is satisfied that such a person is in the circumstances a person in need of a guardian.  Section 59O(3) 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.”

3.  Section 59K(2) of the Mental Health Ordinance provides that:

“(2) The matters or principles that the Board shall observe and apply in the performance of its functions or the exercise of its powers are as follows, namely —— (a) that the interests of the mentally incapacitated person the subject of the proceedings are promoted, including overriding the views and wishes of that person where the Board considers such action is in the interests of that person; (b) despite paragraph (a), that the views and wishes of the mentally incapacitated person are, in so far as they may be ascertained, respected.”

4.  In respect of the guardianship order made under section 59O by the Guardianship Board, a designated person under section 59U(4), namely any person (including a relative of the mentally incapacitated person) who, in the opinion of the Board, has a genuine interest in the welfare of the mentally incapacitated person, may apply under section 59U to review a guardianship order.  

5.  Any party to proceedings before the Guardianship Board may lodge an appeal to the Court of First Instance under section 59W of the Mental Health Ordinance.  However, subject to section 59W(1) of the Mental Health Ordinance, such appeals shall be: (a) on a question of law; or (b) with the leave of the Court, on any other question. 

6.  On 16 July 2015, WKP lodged an appeal with the Court of First Instance by filing a Notice of Originating Motion against the guardianship order made on 18 June 2015.  In the Notice of Originating Motion, he stated as follows: 

“(I) In respect of the judgment of the Chairman of the Guardianship Board: (1) concerning the issue of the investigator, Ms Puk Siu Lai, the social worker had failed to submit the affidavit of [WKP] and the (certificate of) praise by the District Council Member (2) the problem of the proof of identity of [the youngest brother] (3) what is the decision of the Chairman on the matters stated by the investigator? (For example: (a) touching mom’s private parts when applying medicated ointment (b) taking mom to toilet every night (c) confrontations between the eldest son and the elderly homes (d) a record of changing elderly homes five times (4) sibling rivalry leading to the decision of having a social welfare officer to be the guardian (5) the performance and actual function of the Social Welfare Department in the previous year.”

7.  In support of his appeal, he also filed an affidavit on the same day stating as follows:

“(1)   Leading to an erroneous decision where the eldest son is treated as a culprit or the chief offender of the case. (2) Unclear proof of mother-son relationship, thereby losing the right to be an applicant (3) Without “cross-examination”, the Chairman “declared it as the truth”, thereby causing unfairness to the eldest son and the matter was finished hastily. (4) A family member is always the most suitable person to be appointed as a “guardian”.  How come the right of a party is taken away because of the resistance of another party? Is it inhuman to do so? Is it against “human right” or would it be “cutting off one’s nose to spite one’s face”? (5) It has always been this way, we are “well aware” — “looking impressive without real use”, it will only “cause harm to others”, it is really “pointless”.”

8.  In the Notice of Originating Motion, only Charles Chiu Chung Yee was listed as the respondent.  On 10 August 2015, the Director of Social Welfare made an application to join as the 2^nd respondent and the application was granted by the Court on 12 August 2015.  

9.  Later, the appeal was heard before L Chan J on 8 June 2016.

10.  In his decision delivered on 22 June 2016, Chan J dismissed the appeal and ordered WKP to pay the costs of the Director of Social Welfare.  The reasons for the judgment given by Chan J can be briefly summarized in the following main points:

(1)  WKP was a party to the proceedings before the Guardianship Board, therefore he may lodge an appeal under section 59W(1) of the Mental Health Ordinance;

(2)  The matters raised by WKP in the appeal had been adequately considered by the Guardianship Board. The Guardianship Board gave reasons for its decision in the written decision dated 18 June 2015;

(3)  The judge also agreed with the submissions by Miss Poon, the Government Counsel representing the Director of Social Welfare, in response to WKP’s grounds of appeal that there was nothing unfair or improper in the proceedings before the Guardianship Board;

(4)  As the Court had not given WKP leave to raise any other question, he may only appeal on a question of law under section 59W(1) of the Mental Health Ordinance;

(5)  All the grounds of appeal put forward by WKP only concern questions of fact, therefore he simply cannot lodge an appeal before obtaining leave from the Court.

11.  WKP appealed to this Court against the said decision.

12.  Having heard and considered submissions from both parties, this Court took the view that the most important question in this appeal was whether what has been raised by WKP was a question of law or not.  Under section 59W(1) of the Mental Health Ordinance, as WKP had not obtained leave from the Court, he was not allowed to raise any other question other than a question of law.

13.  WKP set out the following grounds in the present Notice of Appeal:

“(1)  As the main item: sibling rivalry leading to the decision of having a social welfare officer to be the guardian is “a question of law”, and not “a question of fact”, hence, it is an erroneous decision.  In addition, as some areas had not been covered in the decision, there was “taking a part for the whole” and thus omissions in judging.

(2)  I had not been given the chance to explain and rebut in detail each argument put forward by the other party. Only “he could talk”, but “I could not”, it is so unfair!

(3)   Regarding the contents of the “Notice of Originating Motion” in relation to my appeal, the judge, the legal representative of the other party and the 2nd respondent simply took them apart and made submissions at will, the matters were not my original meaning. Rather they had been “interpreting out of context” and “making inference”.

Note:  “Regarding items 1 and 2 (“Notice of Originating Motion”) of the previous appeal, they were not written professionally as I was inexperienced.  In fact, I should have referred to the “affidavit” and the “separate page for elaboration”, then it would be crystal clear.  It is also “a question of law” not “a question of fact”.” (refer to part VIII of “my defence 4”)”

14.  In paras 5 and 6 of his skeleton argument dated 20 February 2017, WKP further said that the following points were questions of law:

“5. Item 1 of the “(Notice) of Originating Motion” -- concerning the issue of Ms Puk Siu Lai, the social worker, failing to submit (withholding) the “affidavit” of [WKP] and the certificate of praise by the District Council Member (see pp.19-20, 55-56, refer to pp.29-30). As it is an “allegation in terms of law”, it is also a “question of law”.

6. Item 2 of the “(Notice) of Originating Motion” --“The problem of the proof of identity of [the youngest brother] ……”(see pp.19-20, p.31), how come a “court” hearing was conducted for him, it is against the law. As it is also an “allegation in terms of law”, it is also a “question of law”.”

15.  However, the main argument of WKP’s submissions is that he has all along been the only “person to depend on” by CST, therefore he should be appointed as her guardian.  He also said that the argument of sibling rivalry that the Guardianship Board took as the reason to appoint the Director of Social Welfare as the guardian of CST cannot stand.  As there is a problem with the identity of the youngest brother, and he has become an illegal person, he is legally not allowed to challenge the legal position of WKP as the guardian.  Hence, in paras 8 and 28 of his skeleton argument dated 20 February 2017, he made the following submissions: 

“8． As the eldest brother [WKP] made an application to get his parents and the second youngest brother to come to Hong Kong from Vietnam in 1975, the eldest brother obtained the legal position and right conferred by the British Hong Kong Government. At that time, the youngest brother was already in Hong Kong, but he was unable to apply for the close relatives to come to Hong Kong because he had made false representations regarding the information on his identity card. As a result, the eldest brother has obtained the “right of guarantee” and “right of protection” of his close relatives. In addition, as his parents and the second youngest brother have come into the territory as “dependent persons”, when his mother becomes unable to make decisions in respect of all the matters, the eldest brother becomes her only “person to depend on”, who can represent her in respect of all the matters. Therefore, the “trustee” and “guardian” of his mother can only be the eldest brother. Furthermore, as the eldest brother has taken care of and financially supported her for over 30 years, which is the proof of the eldest brother having the “guardianship right” of his mother. It’s similar to parents providing for and taking care of their children, therefore they have the guardianship right of their children. (The youngest brother has failed to do his filial duty as he only paid his mother $3,000 monthly for her daily expenses in 2012. The second youngest brother can bear witness to it.)

(Interim summary):  Hence, these arguments are very important! Otherwise, it is despising the laws of Hong Kong! (see appendix 1)

…

28． On the other hand, as the eldest brother has a history of taking care of his parents for over 39 years (the second youngest brother can bear witness to it) and a truthful heart, who is healthy with his body and soul (see pp.65-69), he is better than the youngest brother and the Social Welfare Department when it comes to the caring of his mother.  Furthermore, he is Madam Kung’s close relative, and the allegation against him is a biased point of view about him which is not a question of law.  Therefore, from a humanitarian and ethical point of view, he should be the only person to be her guardian.”

16.  This Court took the view that clearly WKP is under a misapprehension about the appointment of a guardian.  At the beginning of this judgment, this Court has cited sections 59O and 59K(2) of the Mental Health Ordinance, which set out clearly the legal basis under which the Guardianship Board made appointments of a guardian, and the matters the Guardianship Board should consider when making the decision on the appointment of a guardian.  This is a discretion conferred by legislation, and no person (including a relative or a family member who has given financial support or taken care of the mentally incapacitated person) is entitled or eligible, as of right, to be appointed as a guardian. 

17.  In the present case, even though WKP has applied for CST to emigrate to Hong Kong many years ago and he has given her financial support as well as taken care of her everyday life in the past, the Guardianship Board shall still consider other relevant factors before making the decision of appointing a guardian for CST.  Section 59K(2) of the Mental Health Ordinance provides that the ultimate objective of the Guardianship Board when making the decision must be to promote the interests of CST.

18.  Having read the Guardianship Board’s reasons for decision in 2014 and 2015, this Court is of the view that the Guardianship Board has not only taken into account of WKP’s support of CST in the past, but also other relevant factors, and made the guardianship order, with the ultimate objective of promoting CST’s interests in mind, to appoint the Director of Social Welfare as the guardian.  This Court does not find any errors of law in the decision of the Guardianship Board.

19.  WKP’s allegation of the problem of his youngest brother’s identity is only his one-sided statement, and there is absolutely no proof of his youngest brother being an illegal Hong Kong resident.  In fact, his youngest brother came to settle in Hong Kong in 1972 and he has established his family and career here. He has also taken part in providing care and financial support to CST.  It is therefore reasonable for the Guardianship Board to consider the relationship between WKP and his youngest brother.

20.  Having considered the submissions of WKP and Miss Poon, the Government Counsel, this Court does not think there is anything unfair in the proceedings before L Chan J, and WKP has sufficient opportunities to make submissions.  From an objective point of view, the judge’s decision is neither taking a part for the whole nor interpreting out of the context.

21.  This Court also agrees with the analysis of L Chan J that WKP has not raised a question of law in the Notice of Originating Motion or other documents he filed.  An appeal (including an appeal against a decision of the Guardianship Board under section 59W(1) of the Mental Health Ordinance) should be brought in the Court of First Instance pursuant to Order 55 of the Rules of the High Court.  Although it is a rehearing (see O. 55, r. 3(1)), it is not conducted in complete disregard of the proceedings before the Guardianship Board or its decision.  A rehearing is not the same as a retrial.  Generally speaking, the court dealing with an appeal will neither hear the evidence once again nor allow the appellant to cross-examine the witnesses again.   There is a significant difference in nature between an appeal hearing and an original trial.  The court’s role in an appeal is to look into the original decision to see if there are mistakes such that the Court of Appeal should intervene.  In the exercise of discretion, different judges, tribunals or boards may reasonably have different views, but it does not mean the court dealing with an appeal can replace the original views of the court, tribunal or board with its own views on these matters.  On the contrary, the court dealing with an appeal must give proper weight to an earlier decision.  An appellant must be able to point out that the trial judge or the tribunal or the board has erred on a point of law, departed from an applicable principle, misapprehended the facts, taken into account irrelevant matters or exercised its discretion without any reasonable basis whatsoever before the court would intervene.

22.  Although Order 55 rule 7 of the Rules of High Court empowers the court to receive further evidence in an appeal, it does not mean an appellant has an absolute right to adduce new evidence.  Given the nature of an appeal and the role of the Court of Appeal explained above, in most cases, the court dealing with an appeal need not and should not accept new evidence. In Gemology Headquarters International v Gemological Institute of America Inc [2014] 5 HKC 145, Au-Yeung J had set out the applicable principles.

23.  An appeal brought under section 59W(1) of the Mental Health Ordinance is also bound by the same Ordinance. As explained above, in the absence of leave of the Court of First Instance, an appeal on any question other than a question of law is not allowed.  Just like any other cases where leave is required before proceeding to appeal, if an appellant appeals on a question of fact by way of filing a Notice of Originating Motion under section 59W(1), the Court of First Instance should make an order requiring the appellant to apply for leave within a specified period of time and stay the proceedings temporarily until the application for leave application is determined.  If the appellant fails to apply for leave within the specified period of time or the application is not successful, the appeal will be dismissed automatically.

24.  Section 59W(1) of the Mental Health Ordinance does not set out the principles the Court of First Instance should apply when considering an application for leave.  This Court is of the view that according to the common law principles (generally applicable to leave applications brought from different tribunals to the Court of First Instance), the Court of First Instance shall only grant leave when an appellant has put forward an argument which has a reasonable prospect of success or there is other reason in the interests of justice for the appeal to be heard.  These criteria are similar to those set out in section 14AA of the High Court Ordinance.

25.  Therefore, in the Notice of Originating Motion, the appellant should set out:

(1)  Whether the appeal he lodged is on a question of law, a question of fact, or a mixture of both;

(2)  If the appeal is on a question of law, set out clearly and accurately the legal issues concerned, point out the principles, provisions, or common law principles and authorities involved, and explain what errors on a point of law the Guardianship Board had made in the present case;

(3)  If the appeal is on a question of fact, state clearly whether leave to appeal has been granted, set out clearly and accurately the findings of fact by the Guardianship Board, and briefly cite the evidence submitted to the Guardianship Board to explain the errors in the findings.

26.  The appellant cannot simply repeat his evidence or the facts of the case, or reiterate the submissions he made before the Guardianship Board without setting out a question of law or a question of fact, and then alleged that the Guardianship Board had erred because it did not believe or accept his evidence, or it rejected his submissions.

27.  If the Court is of the view that an alleged question of law raised by the appellant is in fact a question of fact, the Court of First Instance may order the appellant to apply for leave within a specified period of time and stay the proceedings temporarily until the leave application has been determined.  If the appellant fails to apply for leave within the specified period of time or the application is not successful, the appeal will be dismissed automatically.

28.  If the appellant has neither set out a question of law nor a question of fact in his Notice of Originating Motion, he should apply to amend the same before proceeding with the appeal.  The Notice of Originating Motion is the foundation of the entire appeal. When the court considers the nature of the appeal (namely, whether it is an appeal on a question of law or a question of fact), whether leave should be obtained before proceeding with and considering an appeal, the respondent’s reply to the appeal, and where the case will be further appealed to the Court of Appeal, this document is the basis for all these.  Any question that has not been set out in the Notice of Originating Motion cannot be dealt with in the appeal unless leave is obtained from the court, or else it will be unfair to the respondent.  Hence, we do not accept that WKP can rely on other documents he filed to expand the scope of his appeal. Furthermore, in those other documents WKP has filed, he has not set out in the way listed above whether it is a question of law or a question of fact.

29.  We have earlier quoted the Notice of Originating Motion of the present case in which all the matters or questions raised are not sufficient to prove that the Guardianship Board has erred on a point of law, departed from an applicable principle, misapprehended the facts, taken into account irrelevant matters or exercised its discretion without any reasonable basis whatsoever, and no question of law has been raised too.  We will briefly reply to each of them as follows:

(1)  Not a question of law, WKP can personally adduce his affidavit and the letter from the District Council Member;

(2)  Not a question of law, it is explained above that WKP’s argument is not supported by evidence and that this cannot be used as a ground to overturn the decision of the Guardianship Board;   

(3)  Not a question of law, the Guardianship Board has not and is not required to rule on the disputed facts;

(4)  Not a question of law, it has been explained above that the Guardianship Board can exercise its discretion to take into account of this factor;

(5)  Not a question of law, the Guardianship Board has not and is not required to rule on the disputed facts.

30.  WKP has neither raised a question of law in the Notice of Originating Motion nor obtained leave from the Court of First Instance to raise any other question, therefore, L Chan J was correct in dismissing the appeal.

31.  Accordingly, we order that the appeal by WKP be dismissed, and WKP do pay the costs of the Director of Social Welfare, to be taxed by a Master if not agreed.

32.  As far as the 1^st respondent, Charles Chiu Chung Yee is concerned, this Court is of the view that in respect of the appeal brought under section 59W(1) of the Mental Health Ordinance, the appellant should not name the Guardianship Board, its member or Chairman to be a respondent.  Normally, the Guardianship Board, or its member or Chairman should adopt a neutral attitude and should not take part in the appeal.  In the present case, the 1^st respondent has also adopted a neutral stance in the appeal.  Therefore, it is not necessary for the Court to deal with his costs.  

33.  Generally speaking, the correct respondent in an appeal should be the person who is appointed as the guardian.  If the Director of Social Welfare is not the person who is appointed as the guardian, and the Court requires professional assistance (for example: the person who is appointed as the guardian is not legally represented), the Court may consider inviting the Director of Social Welfare or the Official Solicitor to be an intervener in the appeal.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law.