LCSJ v. LSHA AND ANOTHER

[English Translation – 英譯本]

CACV 483/2022 [2024] HKCA 573

On Appeal From [2022] HKCFI 3838

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 483 OF 2022

(ON APPEAL FROM HCMP NO 8 of 2022)

________________________

__________________________

JUDGMENT

Hon Chu VP (giving the judgment of the Court):

Introduction

1.  The applicant and the 1^st respondent are respectively the son and the daughter of Madam LY (“Madam Lee”).  On 6 December 2021, the Guardianship Board (“the Board”) made a guardianship order under section 59O of the Mental Health Ordinance, Cap. 136, Laws of Hong Kong for the reception of Madam Lee into guardianship for a period of one year commencing from 6 December 2021 and appointed the 1^st respondent to be Madam Lee’s guardian with the powers conferred by section 59R(3) of the Ordinance[1].

2.  On 6 January 2022, the applicant lodged an appeal against the guardianship order by issuing a “notice of originating motion” in the Court of First Instance of the High Court and applied for a stay.  The Director of Social Welfare (“the Director”) was listed as the 2^nd respondent in the case.  Both the 1^st respondent and the Director opposed the appeal.

3.  On 1 December 2022, after a hearing, Deputy High Court Judge Winnie Tsui (“the trial judge”) ordered that the notice of originating motion be dismissed and the applicant do pay costs to the Director, and there be no order as to costs between the applicant and the 1^st respondent.

4.  On 15 December 2022, the applicant lodged the present appeal against the decision of the trial judge.

Background

5.  The Board’s reasons for decision dated 6 December 2021 and the judgment of the trial judge dated 1 December 2022[2] have described the factual background of this appeal in detail.  This Court will not repeat it and will only give a brief account of the main points. 

6.  Madam Lee was born in 1926, and her husband died in 2007.  They had five children and now only the eldest daughter LH, the applicant and the 1^st respondent are still in contact with Madam Lee.  In January 2020, Madam Lee had a stroke and was sent to the Prince of Wales Hospital for treatment.  Later, she was transferred to the Shatin Hospital for rehabilitation treatment.  Her condition had become stable since March 2020 and she could be discharged from the hospital.  However, her family members had disputes over the arrangements for her accommodation and care after discharge.  Therefore, Madam Lee was stranded in the Shatin Hospital.  The 1^st respondent and the eldest daughter suggested Madam Lee be admitted to a care and elderly home while the applicant wished to take Madam Lee back to the Home Ownership Scheme flat owned by her (“Yu Chui Court flat”) and take care of her by him alone.

7.  On 25 November 2020, the 1^st respondent applied to the Board for a guardianship order.  Later, the applicant, by “joining as a party”, became a party to the application and opposed the 1^st respondent’s application.

8.  According to three medical reports dated 19 November 2020, 20 November 2020 and 8 September 2021 respectively, Madam Lee had the diagnosis of vascular dementia confirmed by a doctor of internal medicine and two approved psychiatrists respectively.  She is a mentally incapacitated person who is incapable of making decisions in respect of her own accommodation, financial matters, medical and welfare plans.

9.  On 6 December 2021, the Board, after a hearing, made a guardianship order for a period of one year and appointed the 1^st respondent as the guardian of Madam Lee.  On 6 January 2022, the applicant lodged an appeal in the High Court against the guardianship order in HCMP 8/2022.

10.  On the other hand, the 1^st respondent was appointed as the committee of the estate on 3 November 2021 in HCMH 25/2021 in the Court of First Instance of the High Court.  The applicant lodged an appeal against this decision[3].  On 27 March 2023, the Court of Appeal dismissed the appeal[4].

Decision of the trial judge

11.  The trial judge stated in paragraphs 16 to 23 of the judgment that the applicable legal principles are as follows:

“ 16. Section 59O of the Mental Health Ordinance empowers the Guardianship Board to exercise its discretion to make an order to appoint a guardian where it is satisfied that the mentally incapacitated person is in the circumstances a person in need of a guardian. Section 59O(3) provides that:

“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.”

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

“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.”

18.   Section 59O is a discretion conferred by legislation. The ultimate objective of the Guardianship Board when making the decision must be to promote the interests of the person concerned.

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

20.    In WKP v Chiu Chung Yee Charles [2018] 3 HKLRD 223, the Court of Appeal provided detailed guidelines for appeal under section 59W.

21.   An appeal should be brought pursuant to Order 55 of the Rules of the High Court.  Although it is a rehearing, 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, 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.   If the appeal is not on a question of law (for example, a question of fact), the appellant should apply to the Court of First Instance for leave to appeal first.  Only after leave has been granted can the appeal be formally lodged.

23.   The notice of originating motion is the foundation of the appeal.  The appellant shall set out in the notice the question of law or other question which leave has been granted.  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 …  .”

12.  This Court is of the view that the above legal principles stated by the trial judge are correct, and the applicant did not dispute them in the present appeal.

13.  In paragraphs 33 to 72 of the judgment, the trial judge dealt with the 12 points stated by the applicant one by one.  As the applicant’s grounds of appeal are not directed against the trial judge’s decision on these statements (see paragraph 28 below), it is not necessary for this Court to go into the details of the analyses and the reasons for the decision.  In short, the trial judge held that: (1) those stated in points 1 to 9 did not involve a question of law at all and had no reasonable prospect of success, and there was no other reason in the interests of justice why leave to appeal should be granted; and (2) those stated in points 10 to 12 were not grounds of appeal.  Hence, the trial judge refused to grant leave to appeal on any of these points, dismissed the applicant’s notice of originating motion and confirmed the Board’s guardianship order.

Grounds of appeal of the applicant

14.  The applicant attached 27 pages of document to the notice of appeal.  On 28 February 2023, Registrar of Civil Appeals Phoebe Man directed the applicant to remove the 27 pages of attachment and re-file the amended notice of appeal.  On 7 March 2023, the applicant filed a new notice of appeal whose content was different from the one previously filed. This Court will hear this appeal on the grounds of appeal set out in this new notice of appeal.

15.  The applicant’s grounds of appeal can be summarized into 3 points:

(1)      The trial judge disregarded the applicant’s right to legal hearing and right to obtain legal aid.  Specifically, the applicant alleged that:

(1.1)  On 28 November 2022, the applicant applied for legal aid.  On 29 November 2022, the Director of Legal Aid issued a memorandum of notification of the application for legal aid (“memorandum of application for legal aid”).  At the hearing on 1 December 2022, the applicant informed the trial judge that he had made an application for legal aid, but the trial judge indicated that no memorandum of application for legal aid had been received and proceeded with the hearing.  The conduct of the trial judge was contrary to section 15 of the Legal Aid Ordinance, Cap. 91, Laws of Hong Kong and section 7A of the Legal Aid Regulations, Cap. 91A, Laws of Hong Kong.  It violated the justice of judicial proceedings.  The hearing on 1 December 2022 was therefore null and void and should be set aside. (“Ground of appeal (1)”)

(1.2) The serious delay on the part of the Legal Aid Department in filing the memorandum of application for legal aid only in the afternoon of 1 December 2022 which deprived the applicant of a 42-day stay was a serious administrative blunder. (“Ground of appeal (2)”)

(2) The trial judge disregarded the 1st respondent’s misconduct which rendered him unable to retrieve documents in relation to the litigation and refused to adjourn the hearing. The applicant alleged that on 24 August 2022, a Master of District Court ordered the applicant to deliver vacant possession of the Yu Chui Court flat to the 1st respondent in District Court case DCMP 128/2022 (“24 August 2022 order”). Later, on 22 September and 10 November 2022 respectively, the Master ordered a stay of execution of the 24 August 2022 order until 5 December 2022. However, on 23 and 28 October 2022 and 29 November 2022, the 1st respondent and her husband successively instructed such people like the security guard and the estate officer of Yu Chui Court not to allow the applicant to enter the Yu Chui Court flat. Because of this, the applicant reported the case to Shatin Police Station on three separate occasions. The applicant’s personal identity documents, all his properties as well as litigation papers and hearing bundles were withheld in the Yu Chui Court flat. The 1st respondent deliberately breached the District Court order on three occasions, thus depriving the applicant of a fair and just court hearing. The applicant requested to adjourn the hearing but the trial judge still proceeded with the hearing. (“Ground of appeal (3)”)

Affidavits and written submissions of the applicant

16.  This Court will first deal with the various affidavits and written submissions submitted by the applicant in this appeal.

17.  A well-established legal principle is that an appeal is not a retrial.  A party cannot, except with the leave of the Court of Appeal, adduce on appeal new evidence which was not adduced at the original trial, and the Court of Appeal will only exceptionally allow new evidence to be adduced if it complies with the requirements of the principles of law laid down in Ladd v Marshall.

18.  The applicant’s affidavits were all filed without the leave of the court.  Therefore, Registrar of Civil Appeals Phoebe Man directed on 28 February and 16 August 2023 respectively that the affidavits filed on 27 January, 6 March and 7 March 2023 would not be considered by the court.

19.  Subsequently, at the request of the applicant, Registrar of Civil Appeals Kent Yee directed on 19 October 2023 that the affidavit he filed on 28 August 2023 (9 pages in total with 33 pages of attachment) be taken as his written submissions.  However, the applicant filed an affidavit again on 8 May 2024 without obtaining the court’s leave to file new evidence.  At the appeal hearing, the applicant submitted that he only obtained the documents from the District Court on 2 May and was under a time constraint, therefore he did not have time to make an application to the court.

20.  In our view, the applicant did not explain why these documents could not be obtained at an earlier time.  Moreover, an application should have been made to the court even if time was pressing, particularly when the Registrar of Civil Appeals had expressly directed on 3 November 2023 that parties were not allowed to submit any other documents to the court concerning the appeal hearing.  Any litigant, whether represented or not, is required to comply with the procedure of litigation and the directions and orders of the court.  It is improper for the applicant to disregard the directions of the Registrar of Civil Appeals and file affidavits to submit new evidence without making any application to the court.  This Court will not consider the affidavit filed on 8 May 2024.

21.  Furthermore, although the applicant’s affidavit of 28 August 2023 was taken as his written submissions, some of the matters stated therein and documents attached thereto were not evidence of the hearing before the trial judge.  The applicant cannot submit new evidence in this appeal without the leave of the court.  This Court will not consider such new evidence.

22.  Secondly, it is a well-established legal principle that the notice of appeal must specify the grounds of appeal and the order sought from the Court of Appeal.  Moreover, except with the leave of the Court of Appeal, the appellant shall not be entitled on the hearing of an appeal to rely on any grounds of appeal, or to apply for any relief, not specified in the notice of appeal: Order 59 rule 3(1) and (3) of the Rules of the High Court, Cap. 4A, Laws of Hong Kong and United Muslim Association of Hong Kong v. Yusuf Yu [2018] 4 HKLRD 22, paragraphs 42-46.

23.  The affidavit of 28 August 2023 alleges that the 1^st respondent and her solicitor had, in the course of enforcing the 24 August 2022 order, been “in contempt of court” and “unlawfully misappropriated” the applicant’s properties, personal belongings, litigation papers and memory cards/devices containing the applicant’s and Madam Lee’s private data. These allegations go beyond the grounds of appeal set out in the notice of appeal.  The applicant is not allowed to raise these new arguments on appeal.

24.  Thirdly, on 8 May 2024, the applicant submitted a 13-page “Skeleton” Submission again.  Like the affidavit of 28 August 2023, the content of this written submission deviates from and goes beyond the grounds of appeal set out in the notice of appeal.  Apart from repeating the allegations that the 1^st respondent and her solicitor had, in the course of enforcing the 24 August 2022 order, been “in contempt of court”, “unlawfully misappropriated” the applicant’s properties and contravened the Personal Data (Privacy) Ordinance, Cap. 486, Laws of Hong Kong, it also alleges that they had made “false statements” to the court and “perverted the course of public justice” in the two cases of HCMP 8/2022 and DCMP 128/2022.  The applicant also sought to sue the 1^st respondent and her solicitor, and an order that they paid compensation.  All these are new allegations and applications not mentioned in the notice of appeal.  The written submission even quotes from the transcript of the District Court hearing on 8 April 2024.  As stated above, the applicant did not obtain leave from the Court of Appeal to adduce new evidence.

25.  Based on the legal principles mentioned in paragraph 22 above, the applicant is not allowed to raise these new allegations in this appeal.  Moreover, these allegations are totally irrelevant to the arguments and issues on appeal dealt with by the trial judge and have no bearing on the propriety of the trial judge’s decision, let alone a material bearing.  Therefore, this Court will not consider the applicant’s written submission of 8 May 2024.

Reasons for this Court’s decision

26.   This Court now deals with the grounds of appeal put forward by the applicant.

27.  According to the medical reports before the Board and the trial judge, it is clear that Madam Lee is a mentally incapacitated person as defined in section 2 of the Mental Health Ordinance.  The Board concluded that in her interests, she should be received into guardianship in accordance with section 59O of the Mental Health Ordinance and a guardianship order should be granted.  The trial judge confirmed the decision of the Board.

28.  All three grounds of appeal of the applicant are against the trial judge’s decision of turning down his request and refusing to adjourn the 1 December 2022 hearing.  This decision of the trial judge was a discretionary one relating to case management.  It is a well-established legal principle that the Court of Appeal will not lightly interfere with the discretionary decision of the trial judge.  The appellant must show that the trial judge erred in the principles of law or was plainly wrong, and this is a very high threshold.

(1)      Grounds of appeal (1) and (2)

29.  Grounds of appeal (1) and (2) are interrelated.  This Court will deal with them together.

30.  Section 15(2) and (4) of the Legal Aid Ordinance provides that:

“(2) Where an action has been commenced or where an appeal has been lodged in respect of any proceedings and any party, or any person who wishes to be joined as a party, makes an application for legal aid, the Director shall, as soon as practicable after the application is made, notify the other party or each of the other parties, and file in the court in which the action is commenced or in the court in which the appeal is lodged, as the case may be, a memorandum of such notification.”

“(4) Where any memorandum is so filed, then, unless otherwise ordered by the court in which the memorandum is filed, all proceedings in the action or in the appeal or in both the action and the appeal shall, by virtue of this section, be stayed for such period, being not less than 14 days, as may be prescribed, and during such period (unless otherwise ordered by any such court) time fixed by or under any law or otherwise for the doing of any act or the taking of any step in the proceedings shall not run.”

31.  Section 7A of the Legal Aid Regulations stipulates that the period during which any proceedings are stayed by section 15(4) shall be 42 days.

32.  The trial judge pointed out in paragraph 8 of the judgment that at the hearing on 1 December 2022, the court had not yet received the memorandum of application for legal aid.  The applicant did not dispute this was a fact.  He also complained that there had been a delay on the part of the Legal Aid Department for filing the memorandum of application only in the afternoon of 1 December.  In such circumstances, section 15(4) of the Legal Aid Ordinance did not apply and there was no breach of the law by the trial judge.  Ground of appeal (1) fails.

33.  Moreover, it can be seen from the express provisions of section 15(4) that the court has the power to make other decision(s) to waive or to reduce the specified time during which proceedings are stayed.  Paragraphs 6 and 8 of the trial judge’s judgment (see paragraph 39 below) pointed out that HCMP 8/2022 commenced as early as 6 January 2022, but the applicant applied for legal aid only a few days before the hearing.  Moreover, the hearing was originally fixed for 2 November 2022.  On that day, the trial judge adjourned the hearing upon the applicant’s application.  It would be unfair to the other parties if a further stay was granted.  It can be seen that even if a memorandum of application for legal aid had been filed with the court at the time of the hearing, it was highly likely that the trial judge would lift the stay.

34.  This Court is of the view that while the stay under section 15(4) is to allow an unrepresented litigant reasonable time to apply for and obtain legal aid, at the same time the litigant who intends to apply for legal aid has a duty to do so as expeditiously as possible so as to avoid undue delay in the proceedings.  In the management of cases, the court must treat the parties fairly.  Of course, the court has to safeguard litigant’s right to legal aid and normally, it will not lightly lift the stay pending determination of legal aid application.  However, it is also necessary for the court to ensure that a party will not delay litigation by applying for legal aid, which results in an abuse of the judicial process.

35.  The applicant claimed that he applied for legal aid as a last resort because he was refused entry to the Yu Chui Court flat by the 1^st respondent.  This Court does not accept this as a reasonable explanation for his application for legal aid as late as three days before the hearing.  Furthermore, in our view, having taken into consideration what was stated in paragraphs 6 and 8 of the judgment, particularly having regard to the decisions on accommodation, care and welfare arrangements for Madam Lee which had been delayed for a long time since March 2020, even if the trial judge decided to lift the stay, it was a proper exercise of her discretion under section 15(4).  There is no reason for this Court to intervene.

36.  In short, even if the memorandum of application for legal aid had been filed in court at the time of the hearing of the trial judge, it was not necessarily the case that a 42-day stay and an adjournment of the hearing would be granted since it was highly likely that the trial judge would lift the 42-day stay.  Therefore, the applicant’s allegation that the delay in filing the memorandum of application for legal aid by the Legal Aid Department deprived him of the 42-day stay and was unfair to him cannot be substantiated.

37.  As regards the applicant’s allegation that the Legal Aid Department had delayed in filing the memorandum of application for legal aid, firstly, any fault on the part of the Legal Aid Department would not affect the propriety of the trial judge’s decision and would not nullify the trial judge’s decision.  It is wrong for the applicant to say that there is a superior-subordinate relationship between the court and the Legal Aid Department.  It is also wrong for the applicant to say that since both the court and the Legal Aid Department are structures within the SAR Government, the delay of the Legal Aid Department would nullify the decision of the trial judge.

38.  Ground of appeal (2) fails.

(2)     Ground of appeal (3)

39.  As to ground of appeal (3), the trial judge pointed out in paragraphs 5 to 7 of the judgment that:

“5.  First of all, the applicant said the documents in relation to the hearing were still being withheld in the Yu Chui Court flat. He made three attempts to enter the flat but was denied access to the flat by the management officers of the building who were so instructed by the 1^st respondent, thus he was unable to obtain the documents in preparation for today’s hearing.  He said the 1^st respondent’s conduct was in breach of the stay order made by the District Court on 11 October 2022 in respect of DCMP 128/2022. In such circumstances, it would be unfair to him for the appeal to proceed as scheduled.

6.  At the hearing on 2 November 2022, this Court granted the applicant’s application and adjourned the appeal to today. This Court reminded the applicant on that day that today’s appeal would proceed as scheduled regardless of whether he could gain access to the flat during this period of time.  This was because he could refer to the bundle prepared by the 2^nd respondent in preparation for the appeal.  Furthermore, he had submitted his written submissions to the court for this appeal on 18 November 2022.

7.  In such circumstances, a further adjournment would be unfair to the other parties.”

40.  Obviously, the trial judge took into consideration the applicant’s submission that he was unable to gain access to the Yu Chui Court flat to retrieve litigation documents, but did not consider that his failing to prepare for the hearing as a result of this and/or having the hearing proceeded as scheduled would be unfair to him.  On the other hand, the trial judge also took into consideration the effect of further adjournment(s) on the other parties.  In our view, the trial judge had correctly considered the relevant factors.  As pointed out above, decisions on Madam Lee’s accommodation, care and welfare arrangements have not been finalized since March 2020.  This is inconsistent with the ultimate aim of promoting Madam Lee’s interests under section 59O of the Mental Health Ordinance.  This Court does not consider the trial judge’s discretion to refuse the extension was in any way wrong in principle or plainly wrong.  There is no reason for this Court to intervene.

41.  Ground of appeal (3) fails.

(3)     Conclusion and costs

42.  None of the applicant’s grounds of appeal is established.  His appeal should be dismissed.

43.  The 1^st respondent does not seek costs from the applicant. Therefore, this Court makes no order as to costs between the applicant and the 1^st respondent.

44.  As regards the Director, in accordance with the usual practice in litigation, the applicant who does not succeed in the appeal should pay his costs which are to be assessed summarily.  This Court also directs that: (1) the Director do file with the court and serve on the applicant a statement of costs within 14 days from the date of this judgment; and (2) the applicant may file with the court and serve on the Director a statement of objections as to the amount in the statement of costs within 14 days thereafter.  This Court will then assess the amount of costs in writing.

Orders of this Court

45.  This Court makes the following orders:

(1)     The applicant’s appeal be dismissed.

(2)     There be no order as to costs between the applicant and the 1^st respondent.

(3)     The applicant do pay the 2^nd respondent’s costs which are to be assessed summarily.

(4)     The 2^nd respondent do file with the court and serve on the applicant a statement of costs within 14 days from the date of this judgment.  The applicant may file with the court and serve on the 2^nd respondent a statement of objections as to the amount in the statement of costs within 14 days thereafter.

Translated by the Court Language Section of the Judiciary and vetted by Mr P Y Lo, Barrister-at-law.