RE EDWA

HCMH 43/2019

[2020] HKCFI 1143

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MENTAL HEALTH CASE NO. 43 OF 2019

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D E C I S I O N

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1.  As seen in the heading, these proceedings were commenced under section 23 of Part II of the Mental Health Ordinance, Cap 136 (“Ordinance”). However, the ex-parte originating summons filed on 10 June 2019 was oddly drafted, in that it states that the Applicant is seeking, amongst others, “an order under Section 7 of the Ordinance, and if appropriate, the Applicant seeks leave under Section 23 of the Ordinance to transfer out of jurisdiction of the properties standing in the name or rested in EDWA”.

2.  Prior to the issue of the originating summons, in fact on 17 May 2019, solicitors acting for the Applicant Messrs de Bedin & Lee (“dB&L”) had written to the Official Solicitor’s office, enclosing copies of the Applicant’s intended originating summons and accompanying documents seeking comments[1]. The Official Solicitor declined to comment on intended applications prior to their issue.  This then led to the Applicant formally issuing the originating summons herein.

3.  At the time of filing on 10 June 2019, the originating summons was supported by only the Certificate of Family and Property with exhibits and it was only subsequently on 18 June 2019, one medical certificate and medical report by the same psychiatrist Dr Luz Mila Maria Paez Yepes (“Dr Yepes”) and both dated 19 March 2019 (in Spanish) with English translations were filed.

4.  An application under section 7 is quite different from an application under section 23 of the Ordinance.  An application under section 7 is for an inquiry over whether a person alleged to be mentally incapacitated is capable, or rather incapable of managing and administering his property and affairs.  

5.  On the other hand, an application under section 23 is for a transfer order of the property of a person who resides out of Hong Kong upon the Court being satisfied that he/she has been declared to be mentally incapacitated.

6.  As seen in Re LYO, unrep, HCMP 961/2004 15.07.05,   section 23 can only be evoked when a committee, curator or manager has been properly appointed according to the law of the place where the mentally incapacitated person resides, and that it has no application when no such appointment has been made[2].

7.  Further, Lam J, as he then was, had held in Re LYO that the order that a court may make under section 23 is limited to:

“(a) directing some fit person to make such transfer of the property to the foreign committee or curator;

(b) directing some fit person to receive and pay over any proceeds or profits of the property to the foreign committee or curator[3].” 

8.  Since on the face of the documents, the Applicant has already been appointed the permanent guardian of EDWA’s estate, it would appear that the Applicant can evoke section 23 of the Ordinance.

9.  However, it appears from the draft order for final relief submitted by dB&L that the Applicant intends to seek a wide range of powers.  After the draft order was sent to the Official Solicitor, the Official Solicitor had, amongst other things, drawn the attention of dB&L to Re LYO and had already commented that the draft order contained various powers which were beyond the ambit of section 23 of the Ordinance.

10.  Suffice to say, that on 18 November 2019, this Court also raised various queries, including indicating that the Court was of the view that the scope of the draft order for final relief was wider than the scope of the order that the Court could grant under section 23 of the Ordinance.

11.  There was then silence for some 4 months before any response from dB&L was received.

12.  Instead of re-submitting a proper draft order limited to those orders which the Court can make under section 23 of the Ordinance, on 10 March 2020, dB&L wrote and said that after taking instructions, the Applicant wanted to amend the application in her originating summons to one seeking the appointment of a committee and an inquiry under section 7 of the Ordinance[4].

13.  In response, this Court had on 19 March 2020 drawn the Applicant’s attention to sections 7 (5) and 7(6) and also the definition of “registered medical practitioner” in section 2 of the Ordinance and directed dB&L to provide the Court with written submissions as to why the Court has power to waive or dispense with those provisions. 

14.  The Applicant’s submissions were also directed to be sent to the Official Solicitor.

15.  Counsel for the Applicant Ms Wong Lok Yu has now lodged written submissions on behalf of the Applicant, and so has Mr Ted Lee on behalf of the Official Solicitor, who takes the view the Court has no such power to waive or dispense with the requisite medical certificates.

Background 

16.  EDWA was born in August 1928 and she is now 92 years old, (although according to EDWA’s Hong Kong Identity card, she was stated to be born in August 1930, which I understand was a mistake).  EDWA is a widow and there were no children born out of her marriage. 

17.  EDWA’s parents were married in June 1921 in Hermosillo, Sonora, in Mexico and they had 6 children:

(i) “E”, a son, who passed away in March 2008 in Hong Kong at the age of 80;

(ii) “H”, a son, who passed away in July 2015 in El Paso, Texas, USA;

(iii) “D”, a daughter, born in November 1922 in Hermosillo, Sonora;

(iv) EDWA, who was born in Hermosillo, Sonora, Mexico;

(v) Applicant, who was born in July 1939, in Guadalajara, Jalisco, Mexico;

(vi) “I”, born in October 1943, in Guadalajara, Jalisco, Mexico.

18.  EDWA’s father passed away in Hong Kong in July 1977 and her mother passed away in Guadalajara, Jalisco, in January 1978. D is now 96 and is a retired pensioner and lives in Texas in USA.  The Applicant is now 79 and is also a retired pensioner and I is now 75 and is a housewife. Both Applicant and I live in Jalisco, Mexico.

19.  In November 1957, EDWA married her husband (“Mr Wong”) in Hong Kong and Mr Wong was said to have lived in Hong Kong for many years and had accumulated properties here including real estate, bank accounts, investments and securities.  Mr Wong passed away in Hong Kong in April 1999. EDWA presently holds a Hong Kong identity card. 

20.  According to the Applicant, it was in approximately 2013 that the Applicant and other family members began to notice changes in EDWA, including loss of memory, disorientation, attention difficulties and communication difficulties, and that in approximately 2015, EDWA’s symptoms worsened.  

21.  On around 27 January 2016, EDWA had executed various powers of attorney in respect of her bank accounts in Hong Kong in favour of a lady whom I shall simply call “H”, who is the daughter of EDWA’s cousin and who resides in Hong Kong.

22.  The Applicant had said that it was in or around June 2017 that EDWA left Hong Kong and went back to Mexico.

23.  EDWA was admitted into a rest home on 2 February 2018 with diagnosis of Alzheimer Disease, Functional Cardiac Arrhythmia, Generalised Skin Atrophy and Chronic Urinary Infection. 

24.  On 29 May 2018, the Applicant and her other siblings submitted an application to the Seventh Family Court of the Zapopan Judicial District, Jalisco, Mexico (“Mexican Court”) under File Number 1054/2018 for (i) a declaration of EDWA’s physical and mental incapacity and (ii) appointment of the Applicant as permanent guardian for EWDA.  

25.  Since 18 June 2018, EDWA has been admitted to a nursing home called Corazon de Jesus in Colonia Ladron de Guevara, in Guadalajara, Jalisco, Mexico (“Nursing Home”), where she has remained.  Mother Superior Marta Raquel Velasco Pelayo is the person in charge of the Nursing Home.

26.  On 6 August 2018, EDWA was found by the Mexican Court to be an incapacitated person and the Applicant was appointed the permanent guardian for EDWA for all pertinent legal purposes in Mexico (“Mexican Order”).  This can be seen in a judgment of the Seventh Family Court in Jalisco, Mexico (“Mexican Judgment”)[5], and during those proceedings, EDWA had undergone a medical psychiatric examination conducted on 4 July 2018 by Dr Yepes in the presence of the Seventh Family Court Judge[6], before the order was made by the Mexican Court appointing the Applicant as permanent guardian for EDWA.

27.  Thereafter, on 13 August 2018, the Applicant petitioned in the Probate Court of El Paso County in Texas, USA, under Cause No 2018-GCD00167, for recognition or domestication of a foreign judgment, ie of the Mexican Order and/or Mexican Judgment, and this was granted on 30 August 2018 (amended on 30 August 2018 and further amended on 24 October 2018), and the Applicant was declared to be the guardian of person and estate of EDWA in the USA[7] and amongst other things, the Applicant was authorized to open a guardianship bank account and investment account at Wells Fargo Advisors, or other institutions of her choosing. 

28.  Subsequently, the guardianship bank account and a guardianship investment account were opened for EDWA at Wells Fargo.

29.  EWDA holds various bank and/or investments and/or securities accounts in Hong Kong and also shares in publicly listed companies in Hong Kong.  The Applicant was then advised by the various banks that they will only accept a guardianship or similar order made in Hong Kong.

30.  This then led to the Applicant issuing the present proceedings.  As mentioned earlier, the ex-parte originating summons was accompanied by only the Certificate of Family and Property at the time of filing.

31.  Dr Yepes examined EDWA on 4 July 2018 and 7 March 2019, and declared that EDWA is currently incapable due to a mental incapacity as defined in the Ordinance of managing and administering her own property and affairs in Hong Kong.  She provided a certificate dated 19 March 2019 following the format of the specimen at Annex C under Practice Directions 30.1 (“PD 30.1”) and her certificate was issued on 19 March 2019 (“Medical Certificate”).

The Application’s reasons for not complying with the requirements of section 7(5) of the Ordinance in relation to the requisite medical certificates

32.  It is the Applicant’s case that EDWA is not physically and mentally fit for travel from Mexico to Hong Kong for any medical examination because:

(i) EDWA is currently residing in the Nursing Home in Mexico;

(ii) EDWA is diagnosed by Dr Yepes as being incapable due to mental incapacity of managing and administering her own property and affairs;

(iii) EDWA is diagnosed as being dangerous to herself or others in any way;

(iv) travelling overseas is not currently and/or temporarily recommended due to the current world wide health situation of Covid-19.

33.  It is further the Applicant’s case that it is not reasonable or practicable to require an approved medical practitioner in Hong Kong to travel to Mexico to conduct medical examination as travelling overseas is not currently recommended and the cost and delay in arranging for an approved medical practitioner to travel from Hong Kong to Mexico for examining EDWA will be disproportionate to the benefit of obtaining the 2^nd medical certificate.

34.  It is the Applicant’s case that Dr Yepes’s Medical Certificate is sufficient to prove that EDWA is currently incapable by reason of mental incapacity of managing and administering her own property and affairs, as her medical evidence was also accepted by the Mexican Court as seen in the Mexican Judgment.

The Ordinance

35.  Sections 7(1), 7(4) and 7(5) of the Ordinance provide as follows:

“(1) The Court may, on application under this section, make an order directing an inquiry whether any person subject to the jurisdiction of the Court who is alleged to be mentally incapacitated is incapable, by reason of mental incapacity, of managing and administering his property and affairs.

(4) The application referred to in subsection (3) shall be made by an originating summons (within the meaning of the Rules of the High Court (Cap 4 sub leg A)) and those Rules shall apply accordingly.

(5) Despite subsection (4), the application referred to in subsection (3) shall be accompanied by 2 medical certificates and evidence of the relatives or next-of-kin and the property (if any) of the mentally incapacitated person, and such other documents or evidence as may be required by the Court.”

36.  Under section 7(6), “medical certificate” means :

“… a certificate made and signed by a registered medical practitioner that the mentally incapacitated person is incapable, by reason of mental incapacity, of managing and administering his property and affairs”.

37.  Under section 2 of the Ordinance,

“registered medical practitioner (註冊醫生) means a person who is registered or who is deemed to be registered in accordance with the provisions of the Medical Registration Ordinance.”

38.  Further, paragraph 2.17 of PD 30.1 provides that at least one of the medical certificates must be given by a medical practitioner approved by the Hospital Authority within the meaning of the Hospital Authority Ordinance, Cap 113, as having the relevant special experiences.

Discussion

39.  The issues put forward on behalf of the Applicant by her Counsel Ms Wong are :

(1) whether this Court has power to waive or dispense with the 2^nd medical certificate; and

(2) why the Applicant requires the 2^nd medical certificate to be waived or dispense with.

Issue (1) – whether this Court has power to waive or dispense with the 2^nd medical certificate

40.  First of all, I would point out that in my view the Applicant has not complied with section 7(5) of the Ordinance at all even in respect of the 1^st medical certificate.  This is because Dr Yepes is not a “registered medical practitioner” defined under section 2 of the Ordinance.  She is also not a medical practitioner approved by the Hospital Authority referred to in paragraph 2.17 of PD 30.1.

41.  As set out earlier, section 7(4) of the Ordinance is expressed in mandatory terms.  Ms Wong has referred to this Court to paragraph 16 of the judgment of Lok J in Re ECA [ 2019] HKCFI 49, unrep, HCMH 26/2015, in which Lok J stated that there may be cases that the court may, on good reasons being shown, modify the PD 30.1 procedures so as to do justice in a particular case.

42.  As pointed out by Mr Lee for the Official Solicitor, in Re ECA, what Lok J said in paragraph 16 was as follows:

“There may be cases that the court may, on good reasons being shown, modify the PD 30.1 Procedures so as to do justice in a particular case. However, I do not find that there are special circumstances in the present case to justify the court to depart from the established practices. I appreciate that, as ECA is now residing in the Philippines, there may be difficulty for the Applicant to arrange medical examinations for him for the purpose of preparing the 2 medical certificates, but that is not a sufficient reason for the court to ignore the statutory requirements under s 7.”

43.  The above case does not assist the Applicant since what was referred to by Lok J in respect of modification was of the PD 30.1 procedures and in any event Lok J held that there was no sufficient reason in that case to ignore the statutory requirement under section 7.

44.  Ms Wong has also referred to what was said by Chu JA in paragraph 47 of Re MCP,unrep, CACV 162/2015, 30.09.16 :

“Although the requirement in section 7(5) of the MHO has not been observed, this does not render the proceedings a nullity. It will not lead automatically to the dismissal of the application for inquiry, as the intervener seems to suggest. The court may, in appropriate cases, waive the non-compliance. In this instance, the Judge considered the non-compliance to be excusable, having regard to the difficulties the applicant had in arranging medical examination of MCP. This is a view that the Judge was entitled to take on the evidence before him. In any event, medical reports on MCP’s mental capacity were subsequently ordered and obtained. I am not persuaded that the Judge erred in his decision to proceed with an inquiry of MCP’s mental capacity or to appoint the Committee.”

45.  As submitted by Mr Lee on behalf of the Official Solicitor, the Part II application in the above case was not accompanied by two medical certificates in accordance with section 7 (5) of the Ordinance at the commencement of the proceedings, as the applicant in that case had difficulties accessing MCP and was not informed of the address of the nursing home of MCP, and he would not have been able to arrange for the medical examination of MCP as he was prevented from visiting or contacting MPC.  Chu JA ruled that non-observance with the requirement of section 7(5) of the Ordinance would not render the proceedings a nullity, and that the court may, in appropriate cases, waive the non-compliance.  As seen in the above quoted passage of Chu JA, medical reports on MCP’s mental capacity were subsequently ordered and obtained.

46.  The circumstances in the above case were quite different from the present case.  In the above case, the non-compliance of section 7(5) was at the time of the commencement of the application and later, the requisite medical reports were filed , and it was in this context that Chu JA held that the non-compliance of section 7(5) would not render the proceedings a nullity, and that in appropriate cases, the court may waive the non-compliance.

47.  Upon my reading of the judgment of Chu JA in the case of Re MCP, I do not think that Chu JA has gone so far as to say that the statutory requirement of the requisite medical certificates may in appropriate cases be waived completely under the section 7 proceedings, in that in appropriate cases, other medical evidence may be accepted in lieu of the statutory requirement of the requisite medical certificates.  In any event, I do not find that the case of Re MCP assists the Applicant in the present case.

48.  The only authorities submitted by Ms Wong on this Issue (1) are Re ECA and Re MCP, and based on these authorities, I am not prepared to find that this Court has the power to waive or dispense with the statutory requirements under section 7(5) and other statutory requirements in the Ordinance.

Issue (2) – why the Applicant requires the 2^nd medical certificate to be waived or dispensed with

49.  In any event, even if I were to find that the Court has power to waive or dispense with the statutory requirements under section 7 (5), I am not prepared to exercise such power.  My reasons are set out hereinafter. 

50.  First, as mentioned earlier, without being disrespectful to Dr Yepes who was the Mexican Court appointed expert, she is not a “registered medical practitioner” in Hong Kong as defined under section 2 of the Ordinance, namely registered in accordance with the Medical Registration Ordinance.  Dr Yepes has admitted that she is also not a medical practitioner approved by the Hospital Authority referred to in paragraph 2.17 in PD 30.1.  Thus, there have been no requisite medical certificates, as required under section 7(5), produced.  As said in paragraph 2.16 of PD 30.1, the requisite medical certificates under section 7(5) are essential.

51.  Second, EDWA’s present mental and physical condition are not sufficient for saying that there should be no further medical examinations conducted on her.  As seen in Re Mrs A, [2018] HKCFI 467, HCMH 19/2016, unrep, 02.03.18, notwithstanding Mrs A being in a “fragile” condition, Lok J in that case nevertheless gave directions for medical examinations of Mrs A under section 9 of the Ordinance although the application was initiated in the absence of the 2 requisite medical certificates.

52.  Third, EDWA being in Mexico and said to be unfit to travel is not a sufficient reason for saying that the statutory requirements under section 7 can be waived or dispensed with, as seen in the Re ECA. Although ECA was residing in the Philippines, and that there might be difficulty for the applicant in that case to arrange medical examinations for ECA for the purpose of preparing the 2 medical certificates, Lok J found that was not a sufficient reason for the court to ignore the statutory requirements under section 7.

53.  In Re LYO, unrep, HCMP 961/2004 15.07.05 referred by Ms Wong to this Court, Lam J, as he then was, directed the Official Solicitor to arrange for two independent specialists travelling from Hong Kong to Kai Ping in Guangdong Province where LYO was living, and that it took around a month for this to take place, and Ms Wong argued that due to the Covid-19 situation, it would cause much delay in the present case if the medical practitioners were to travel to Mexico for the medical examinations. 

54.  I do appreciate that with the Covid-19 situation, it may not be feasible at the present moment for EDWA to travel to Hong Kong from Mexico, or for the medical practitioners in Hong Kong to travel to Mexico.  However, there has been no evidence as to whether the Applicant has explored the possibility of whether a medical examination can be conducted by way of video link.

Conclusion

55.  Having considered all the circumstances of this case including all above said, I am not prepared to waive or dispense with the requirements of the medical certificates under section 7 (5) of the Ordinance, even if I were to have the power to do so.  Finally, I wish to point out that it still remains possible for the Applicant to proceed under section 23 of the Ordinance, provided the orders sought are within this Court’s power to grant under that section.

56.  As for costs of this application, I am of the view that the Applicant should not be entitled to her costs being paid out of EDWA’s estate.  Thus, I only order the Official Solicitor’s costs be paid out of EDWA’s estate.  This is an order nisi which shall be made final within 21 days.

57.  It is my intention to publish a copy of this judgment (as anonymised) on the Legal Reference website.  Any one who has any objection thereto should let the Court know within 14 days hereof.