LAW KAM MUI, by Her Next Friend and Daughter, WONG LAI KIN JULIA v. WONG TIN CHEE TINLY AND ANOTHER

HCA 1704/2023

[2024] HKCFI 717

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1704 OF 2023

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R E A S O N S  F O R  D E C I S I O N A N D

D E C I S I O N  O N  C O S T S

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Introduction

1.  The next friend of the Plaintiff (“Julia”) and the Defendants are children of their mother (“Madam Law”).  I mean no disrespect in using the first names of the children of Madam Law for easy identification purpose. 

2.  Madam Law has unfortunately been embroiled in 2 sets of proceedings.  One is an originating summons taken out by her in HCMP 445/2022 to set aside the registration of her Enduring Power of Attorney (“EPA”) by her daughters (Cathy and Angie) who are attorneys thereunder (“EPA Proceeding”).  The other is the present action (“High Court Action”) whereunder Julia sues her brother and sister for false imprisonment of Madam Law. 

3.  An ex parte injunction had been granted by Deputy Judge Leung to Julia on 25 October 2023 (“the Injuction”).  It was executed by Julia, who took Madam Law from the residence of D2 (“Abby”) to St Paul’s Hospital (“St Paul’s”)  on 27 October 2023, where Madam Law has stayed since.  Upon the undertakings given by all the parties, the Injunction was not continued. 

4.  This is the hearing of the summons dated 24 January 2024 taken out by the Defendants for an order (i) for Madam Law to be examined at the St Paul’s by a psychiatrist appointed by the Defendants to ascertain if she is a mentally incapacitated person (“MIP”); and (ii) for the release of medical records compiled or kept by the Hospital to the psychiatrist for the purpose of preparing an expert report. 

5.  The summons is opposed by Julia on the grounds that questions concerning Madam Law’s mental capacity and psychiatric examination should be dealt with in the EPA Proceeding. Parties in the High Court Action should agree to be bound by any determination in the EPA Proceeding.  As a fallback position, Julia considers that if medical examination on mental capacity is to be conducted in the High Court Action, there should be a joint examination and joint expert report produced (“Julia’s fallback proposal”).  As for the Defendants’ request for access to medical records, Julia submits that it is totally misconceived.  She has no authority in dictating whether, how and when the Hospital should release those medical records and the scope of records sought is too wide and imprecise.

6.  After hearing the parties, I adopted Julia’s fallback position and allowed access to medical records.  The Order was as follows:

(1)  A joint medical examination be conducted on Madam Law by two expert psychiatrists to be appointed by the Plaintiff and the Defendants respectively for the purpose of preparing a joint expert psychiatric report to ascertain whether Madam Law was an MIP as of the date of commencement of the present Action i.e. 25 October 2023 and as of the date of the joint examination.

(2)  The psychiatric expert nominated by the Defendants is Dr Chung See Yuen.  The name of the Plaintiff’s psychiatric expert is to be notified by the Plaintiff to the Defendants by 6 March 2024.

(3)  The joint psychiatric examination should follow the reasonable procedural requirements of St Paul’s and Dr Tong Chun Kit Lee (“Dr Lee”) including but not limited to the conditions as follows:

(a)  Notification to the parties in this action and their consent;

(b)  Notification to St Paul’s and its consent;

(c)  Holding of valid admitting right in the list of St Paul’s by the psychiatric experts; and

(d)  Pre-arrangement with St Paul’s.

(4)  In the event that the preliminary view of the psychiatric experts at the joint examination is that Madam Law is an MIP at the time of the joint examination,

(a)  The psychiatric experts shall have access to all the medical records kept by St Paul’s and/or Dr Lee from the time of admission of Madam Law to the Hospital on 26 October 2023;

(b)  The parties shall write to the private doctors of Madam Law by a joint letter for obtaining medical records of Madam Law kept by the private doctors since 1  July 2023 to be used by the psychiatric experts.

(5)  If the preliminary view of the psychiatric experts at the joint examination is that Madam Law is not an MIP, the joint examination shall continue only with the consent of Madam Law.

(6)  Leave to the parties to use the joint psychiatric report in the present Action, HCMP 445/2022 and any future application under Part II of the Mental Health Ordinance (Cap. 136).

(7)  A copy of this Order be served on St Paul’s and Dr Lee for their reference.

(8)  Liberty to the parties to apply generally. 

(9)  Costs of and incidental to the service of the Summons on St Paul’s and Dr Lee prior to the date hereof be borne by the Defendants on indemnity basis.

(10)  Costs of this Summons be reserved, but I stated that I would fix the quantum.

7.  Here are my reasons.

Background

8.  Madam Law has 8 children.  The Plaintiff is the 2^nd child whereas the Defendants are the 5^th and 8^th child, respectively.  Over Madam Law’s welfare, the 8 children were and are at least divided into 2 camps as evidenced by the High Court Action and EPA Proceeding.

9.  In the EPA Proceeding, the Court was told that the Mother had an EPA under which she named Cathy and Angie (4^th and 6^th daughters) as attorneys. The attorneys invoked the EPA on the alleged premise that the Mother had become a mentally incapacitated person.  The Mother took out an originating summons against Cathy and Angie to remove registration of her EPA and that her Letter of Revocation be confirmed.  The Defendants in the High Court Action are not parties to the EPA Proceeding.  The originating summons was set down for trial on 7 and 8 September 2023.  Unfortunately, Madam Law was certified as mentally incapacitated and the trial had to be adjourned.  It has not been restored by the time of this hearing.

10.  On 23 July 2023 Madam Law suffered from a acute stroke and was sent to the Ruttojee Hospital for treatment.  Two days later, she was admitted to the ICU of the Hong Kong Sanatorium and Hospital (“HKSH”).

11.  On 21 October 2023, after examination, 2 psychiatrists came to the conclusion that Madam Law had become an MIP.

12.  On 22 October 2023, D1 (“the Son”) signed a voluntary discharge form purportedly on behalf of Madam Law and the Defendants removed her from HKSH.

13.  On 25 October 2023, Julia obtained the Injunction in the High Court Action enjoining the Defendants from, amongst others, detaining Madam Law or preventing Julia from visiting Madam Law or making arrangements for her medical care. 

14.  On 3 November 2023, the Injunction came before this Court for an inter parte hearing.  The parties mutually undertook to the Court that, amongst others, Julia and the Defendants would not remove Madam Law from St Paul's without the leave of the Court and would not prevent the others from having free access to Madam Law whilst she remained in St Paul's.  As a result, this Court made no order to continue the Injunction but gave directions for the filing of pleadings.

15.  Subsequent to the hearing, on 7 November 2023, this Court issued a letter to all the parties in the EPA Proceeding and the High Court Action, setting out some observations (“Nov 2023 Letter”).  This Court observed that the disputes surrounded the welfare of Madam Law.  Whether she was mentally incapacitated and whether an independent committee should be appointed for her should be the real issue.  The Court raised a series of questions as to whether the High Court Action should proceed or be stayed.  The Court has warned that a party who pursued or defended (including the drafting of pleadings) the High Court Action may find him/her left without an award of costs even if he/she were to be successful at the trial. 

16.  Each party claimed to have concern over Madam Law’s welfare.  Both sides endorsed the Court’s views in the Nov 2023 Letter.  Julia expressed the view that she had no intention to get involved in the EPA Proceeding.  Neither Madam Law nor her solicitors on record in the EPA Proceeding could express a view.

17.  On 4 December 2023, this Court ordered a stay of the present action for the parties to consider their way forward with liberty to apply.

18.  On 4 January 2024, without prior announcement, the Defendants attempted to arrange an assessment to be carried out by Dr Chung on Madam Law at St Paul's but failed.  The Defendants accused Julia for being obstructive.  However, the fact was that St Paul's rejected the assessment on the ground that such visit was “unannounced and not pre-arranged”, and without consent of Dr Lee. 

19.  Julia did not oppose the Defendants’ appointment of a psychiatrist to examine Madam Law.  In a letter dated 15 January 2024, Julia proposed that the Defendants should do so under the EPA Proceeding, which has reached a more advanced stage of proceeding and involved issues more extensive than the present action.  This would avoid incurring costs in the present action.  The Defendants did not respond. 

20.  The Defendants took out the present Summons on 24 January 2024.  By her third affirmation filed on 15 February 2024, Julia put forth Julia’s fallback proposal.  By a letter dated 16 February, the Defendants indicated their agreement to Julia’s fallback proposal.

Reasons for the Order

21.  With regard to §1 of the Order, consistent with what was indicated in the Nov 2023 Letter, this Court considered that the core matter which led to 2 sets of proceedings was Madam Law’s mental capacity.  Julia already had medical reports from 2 psychiatrists certifying that Madam Law was an MIP at the commencement of the High Court Action.  That was why Julia could be a next friend.  However, given that the 2 camps of children were in conflict, it was in the best interests of Madam Law to have her jointly examined and have a joint report produced by 2 psychiatrists to bind all the parties in both sets of proceedings as soon as possible.

22.  I do not agree with Julia’s suggestion that the medical examination should be done in the EPA Proceeding.  That Proceeding concerned the historical mental capacity of Madam Law as of the date Cathy and Angie sought to register the EPA.  However, relevant dates of Madam Law’s mental capacity are:

(1)  the date of commencement of this action as it affected whether or not Madam Law would have wanted this action to commence or continue, and whether or not she should have her own say in her own welfare, care and medical treatment;

(2)  the date of the examination as it would affect whether or not Madam Law could continue the EPA Proceeding and the High Court Action; the report would enable the children to decide whether or not to apply for the appointment of a committee under Part II of the Mental Health Ordinance. 

23.  In the EPA Proceeding, there was practically no one to represent Madam Law.  Her mental capacity was in doubt.  Her solicitors on record could not proceed without instructions.  The best person to protect her interest, as things stood, was Julia as next friend.  That was why directions for medical examination should be given in this action.

24.  With regard to §2 of the Order, each party would be at liberty to appoint one psychiatrist, to ensure fairness in the medical examination.

25.  With regard to §3 of the Order, the joint psychiatric examination should follow the reasonable requirements of St Paul's and Dr Lee.  This is because the unannounced attempt of the Defendants to have Madam Law examined had raised concerns of Dr Lee.

26.  St Paul's has suggested the protocol for examining Madam Law as set out in §3 of the Order.  Neither St Paul's nor Madam Law should be disturbed by an unannounced medical examination.  I consider St Paul's protocol to be reasonable and all the parties and the appointed psychiatrists should abide by them and any other reasonable requirements of St Paul's.

27.  With regard to §§4 and 5, one faces a chicken and egg situation.  Madam Law was mentally incapacitated according to Julia, but the Defendants queried that.  I trusted in the good sense of the psychiatrists.  However, to avoid arguments between the parties, §4 of the Order spelt out that the psychiatrists should first form a preliminary view in the joint examination to see if Madam Law is an MIP at the time of the examination.  If she is, the psychiatrists should have access to her medical records.  In §5, if the preliminary view is that she is not, then the examination should only continue with her consent.

28.  With regard to §4(a), given the relevance of the joint report as set out in paragraph 22 above, the extent of access to St Paul's records should be from the time of admission of Madam Law to St Paul's.

29.  With regard to §4(b), as the records of treating doctors outside St Paul's might also be relevant to the assessment, I have directed the parties to jointly write to those doctors by a joint letter to obtain records from 1 July 2023.

30.  The medical records covered less than a year from 1 July 2023 to the date of joint examination.  Non-psychiatric treatment may or may not have impact on Madam Law’s mental state.  It was best left to the experts to decide.  I have therefore directed that the experts may have access to such records if they would find them useful.

31.  With regard to §6 of the Order, I give leave to the parties to use the joint expert report in the High Court Action, the EPA Proceeding and the potential application under Part II of the Mental Health Ordinance.  This is self-explanatory, given the parties’ agreement to the Court’s observation in the Nov 2023 Letter.

32.  With regard to §7 of the Order, a copy of this Order is to be served on St Paul's and Dr Lee for their reference.  That was to meet their protocol as set out in Dr Lee’s Letter dated 23 January 2024 that there should be “legal and court clearance”. 

33.  With regard to §8, Mr Lin was concerned that experts may come to different views on mental capacity.  The parties may not be able to agree on costs of St Pauls' and Dr Lee.  I thus gave liberty to apply in case difficulties appear in the implementation of this Order.

34.  With regard to §9, the costs of St Paul's and Dr Lee incurred before this hearing should be borne by the Defendants in any event.  That was because the Defendants served the draft Summons on them to seek their consent to the orders sought.  The Defendants even threatened to serve the Summons on them if their answers would be in the negative.  It was a high-handed approach.  Neither St Paul's nor Dr Lee were parties to these proceedings.  A hospital was entitled to have its own protocol for visitors, doctors and access to its records.  Dr Lee had a duty to protect his own patient.  Neither St Paul’s nor Dr Lee should have been troubled by a Summons and forced to incur unnecessary legal costs (if any) over how to handle it before the Court even made an order that might affect them.

35.  For the avoidance of doubt, costs should be on indemnity basis, as St Paul’s and Dr Lee should not be out of pocket on costs.

36.  With regard to §10, there was no basis for the Defendants to seek indemnity costs against the Plaintiff. There was no litigation misconduct of the Plaintiff that was worthy of punishment.  The Plaintiff and St Paul's had adequately explained why the Defendants’ unannounced attempt of medical examination was unacceptable.  It was, rather, the Defendants who were not willing to accept the reality of the medical reports obtained by Julia.  The ultimate Order made was effectively a case management step for expert directions at an early stage which, in the light of the known circumstances, would benefit Madam Law and may curtail 2 sets of proceedings.  Accordingly, any costs order should be on party-and-party basis.

37.  The quantum of costs for each party in respect of this Summons should be limited to $80,000 on each side.  The Defendants had seen fit to incur costs of just under HK$600,000 for this Summons.  It was totally outrageous and disproportionate, given the parties’ agreement to stay in view of the Nov 2023 Letter and that the Summons involved only a single case management matter.  If the parties did treat the welfare of Madam Law as their paramount concern, they could have put the money to better use in the care of their mother.

38.  I have reserved the costs as much depended on the outcome of the medical examination.  If the parties cannot come to agreement on who should bear costs, they should seek a determination in the present action.

39.  For the reasons given, I made the Order.  I thank counsel for their assistance.