CHAN SAI LUN HENRY v. CHAN WAI WAH AND ANOTHER

CACV 143 & 205/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NOS 143 & 205 OF 1998

(ON APPEAL FROM HCAP 2/1993)

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J U D G M E N T

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Hon Mayo JA and Ribeiro J :

1. This is the judgment of the Court.

The Probate Action

2. In 1990, Chan Kong-chung ("Mr Chan") died. He was survived by four children, including Henry Chan Sai Lun ("Henry"), Lily-Ann Chan Wai Wah ("Lily") and Sylvester Chan Sai Lung ("Sylvester"). A will appearing to have been made by Mr Chan and leaving his entire estate to Henry, became the subject matter of a Probate Action commenced in 1993 (HCAP 2/1993). Henry was the Plaintiff and the Defendants were Lily and Sylvester. Sylvester, however, dropped out at an early stage so that the Action proceeded as between Henry and Lily. The central issue at the trial was whether, at the time when the will was executed, Mr Chan possessed the necessary testamentary capacity since he was then undoubtedly very frail and had been taking medication which might have affected such testamentary capacity.

3. On 1 May 1998, after a trial which lasted a total of 28 days, Barnett J found that Mr Chan did have the necessary testamentary capacity and that his will was accordingly valid. Barnett J therefore granted Henry probate and, in accordance with the terms of the will, the whole of the testator's estate passed to Henry.

4. Lily applied for execution of Barnett J's judgment and orders, in particular, the grant of probate to Henry, to be stayed pending the hearing of her intended appeal. On 22 May 1998, Barnett J refused that application.

5. At the trial, Lily had been legally aided. However, after the judgment, she was refused further legal aid, her application having been turned down by the Director of Legal Aid on 26 May 1998. Thereafter, she has acted in person and appeared in person at the hearing before us. Henry appeared as the Respondent, represented by Mr Anthony P W Cheung of counsel, on the instructions of Messrs Wai & Co.

The Order of Godfrey JA

6. On 2nd June 1998, notwithstanding Barnett J's earlier refusal, Lily filed a summons in which she renewed her attempt to obtain a stay of execution. For reasons that are not clear, this application was apparently treated as an originating summons and given an HCMP number (HCMP 2433/1998) although the parties named on the summons were the same as those in the Probate Action.

7. In support of her renewed stay application, Lily filed two affidavits. The first, dated 10 June 1998, dealt with the need for a stay, referring to Henry's intention to dispose of the assets in the light of Barnett J's judgment. The second affidavit had been made by Lily with a view to placing it before the Practice Master on 9 June 1998, in support of her application for certain court fees to be waived on the grounds of poverty. It went into some detail as to her allegedly impoverished condition but was quite irrelevant to her stay application.

8. The summons issued on 2 June 1998 came on for hearing before Godfrey JA on 11 June. It appears from the Order eventually made, that it was treated as an application before a single judge of the Court of Appeal (notwithstanding its treatment by the Registry as an originating summons). Selina Lau of counsel, instructed by Wai & Co on Henry's behalf, was present. However, Lily did not appear. The file note of the hearing records that Miss Lau invited the court to dismiss the application for a stay of execution and asked for costs. The note also states: "Court draws counsel's attention to O 80 r 2(8) of the White Book".

9. The Order which Godfrey JA made upon that hearing reads, so far as material, as follows: -

"AND UPON the Court being satisfied on the evidence filed on this application that the 2nd Defendant ....... is a person who, by reason of mental disorder within the meaning of the Mental Health Act 1983, is incapable of managing and administering her property and affairs

IT IS HEREBY Ordered and Directed:

1. That the said application [i.e., for a stay of execution pending appeal] be dismissed and of its own motion and in order to prevent further abuse of its process, the 2nd Defendant be debarred from taking any further part in the proceedings before this court unless and until a guardian ad litem is added to act on her behalf.

2. That the costs of the Plaintiff of the said application are to be taxed and paid by the 2nd Defendant to the Plaintiff but that this order for costs be not proceeded with until after a guardian ad litem has been added to act on behalf of the 2nd Defendant as aforesaid."

10. No written reasons were given. It is not clear what, if any, evidence was before Godfrey JA apart from the two affidavits mentioned above.

11. On 15 June 1998, Lily lodged a Notice of Appeal (CACV 143/1998) against Barnett J's judgment and on 18 June, she wrote to Godfrey JA's clerk denying that she was suffering from any mental disorder and explaining that she had been unable to attend because she had been physically ill on 11 June. On 23 June, Godfrey JA's clerk wrote stating that since the Order of 11 June had been sealed, the Judge was not prepared to consider any correspondence with Lily. On 21 August, she issued a further Notice of Appeal (CACV 205/1998).

12. About a year later, Lily revived her application. On 29 July 1999 she wrote to the Court again denying mental illness and seeking to proceed with her stay application pending the hearing of her two appeals. At the end of August 1999, Henry issued proceedings (in HCA 14052/1999) seeking to recover possession of Flat C at No 94 Robinson Road, 1st Floor, which had formed part of the estate and which was (and still is) occupied by Lily.

13. On 28 October 1999, Lily issued a fresh summons to a single judge of the Court of Appeal seeking to stay Barnett J's judgment and orders pending appeal. On 1 November 1999, without any hearing, Keith JA struck out her application on the ground that a guardian ad litem had not been appointed as required by Godfrey JA's Order of 11 June 1998.

This Appeal

14. What brings the matter before this Court is a Notice of Appeal filed by Lily on 18 November 1999 in which she seeks to set aside the Orders of Keith JA dated 1 November 1999 and Godfrey JA dated 11 June 1998 as well as a stay of execution of Barnett J's judgment and orders of 1 May 1998, together with various orders designed to prevent dealings with the assets of the estate pending determination of the Appeals.

15. We have decided to hear her because, after reviewing the relevant files, we entertained serious doubts as to whether there was any jurisdiction to make the Order debarring Lily from further participation in the proceedings without a guardian ad litem ("the debarring Order") or any evidence to support its making.

16. At the hearing, we asked Mr Cheung whether he sought to support the debarring Order and if so, invited him to address us on the grounds upon which it ought to be upheld. He indicated that he was not able to advance any grounds of his own to support the Order, in the absence of any reasons given by the Judge. We accordingly indicated that we would set aside the debarring Order and now give our reasons for so doing.

The debarring Order

17. Godfrey JA made the debarring Order of his own motion, apparently on two possible grounds. The first was that he was "satisfied on the evidence filed on this application that the 2nd Defendant ....... is a person who, by reason of mental disorder within the meaning of the Mental Health Act 1983, is incapable of managing and administering her property and affairs". The second was that by debarring her from being heard "in the proceedings before this court unless and until a guardian ad litem" was added, the Court would "prevent further abuse of its process". We do not consider that either of these grounds can be upheld.

18. The Mental Health Act 1983 was invoked as the basis for finding Lily to be mentally disordered and incapable of dealing with her own affairs. However, in June 1998, that Act no longer applied in Hong Kong.

19. It is true that under Part II of the Mental Health Ordinance (Cap 136) ("the MHO"), and in particular sections 10A and 10B, the Court is given relevant powers. Thus, under section 10B(1)(i), the Court is given power to make such orders and give such directions and authorities as it thinks fit, inter alia for the conduct of legal proceedings in the name of the mentally incapacitated person or on that person's behalf.

20. However, under the MHO, a "mentally incapacitated person" means "for the purposes of Part II, a person who is incapable, by reason of mental incapacity, of managing and administering his property and affairs". Such a status is attributed to a person by determination of the Court (under s 10(1)) but only at an inquiry initiated under section 7 and "after receiving such reports and hearing such evidence and arguments as it may think fit". A section 7 inquiry is commenced on application by a relative of the person alleged to be mentally incapacitated or otherwise on application by the Director of Social Welfare, the Official Solicitor or a guardian of the person appointed under the Ordinance. By section 8, notice of such inquiry must be served on the person in question or, if service would be ineffectual, notified by substituted service ordered by the Court. With a view to deciding whether the person in question is a mentally incapacitated person, the Court may, under section 9, direct that person to be examined with a view to obtaining a report as to his mental capacity. Such safeguards obviously exist to ensure that the Court's power to take the administration of a person's property and affairs out of that person's hands on grounds of mental incapacity is properly exercised.

21. In the present case, the debarring Order, based on a finding that Lily was a person suffering from a mental disorder so as to be unable to manage her own affairs, was made without any relevant person applying for an inquiry, without any notice being given of any inquiry so that interested persons (not least Lily herself) could be heard, without any expert examination of Lily's mental capacity, apparently without any evidence other than the affidavits mentioned and without Lily even being present. Plainly, the MHO procedures were not followed and the MHO therefore cannot provide any foundation for the debarring Order.

22. As indicated above, it appears that Godfrey JA may have relied on the provisions of Order 80 as set out in the White Book as the basis for the debarring Order. In our Rules of the High Court, Order 80 adopts the phrase "mentally incapacitated person" and its definition appearing in the MHO. It defines a "person under disability" as "a person who is ....... a mentally incapacitated person". It follows that Order 80 operates to debar a person from bringing or participating in legal proceedings without a next friend or guardian ad litem on grounds of mental incapacity only where such person has previously been determined to be a mentally incapacitated person under the abovementioned MHO procedures. Order 80 does not operate separately from the MHO, nor does it provide a basis for justifying the debarring Order in the present case.

23. It follows, in our judgment, that the debarring Order cannot be justified on any mental incapacity ground.

24. The Court has an inherent jurisdiction to prevent abuse of its process. It normally does so by striking out summarily any proceedings which are an abuse.

25. However, to go further and to debar a citizen from approaching the seat of justice on the grounds of prior abuse of the court's process is a draconian measure which can only be ordered if the stringent conditions of section 27 of the High Court Ordinance are met.

26. That section provides that vexatious litigants can be barred, but only on application by the Secretary for Justice who has to satisfy the court that such person has "habitually and persistently and without any reasonable ground instituted vexatious legal proceedings". The order is only made "after hearing that person or giving him an opportunity of being heard" and then, he is still allowed to start or continue with legal proceedings with the leave of the court (which leave is given if the court is satisfied that the proceedings are not an abuse of the process and that there is prima facie ground for the proceedings). Such an order requires to be published in the Gazette.

27. Plainly, the debarring Order, although it mentions a desire to avoid future abuse of the court's process, cannot be justified on the basis of section 27. It follows that, in our judgment, it is an Order that cannot be upheld on either of the grounds indicated and must be set aside. Since Keith JA's Order was wholly dependent on the validity of the debarring Order, it too must be set aside.

28. We would add one further comment in this context. If it was open to the Court, pursuant to the MHO, to find that Lily (or any other person) was a mentally incapacitated person requiring to be represented by a guardian ad litem, it would not have been appropriate simply to debar her from further participation in the proceeding unless and until a guardian ad litem was appointed without taking any steps to have one appointed. Ex hypothesi, such persons are incapable of administering their affairs and cannot be expected to make such appointment for themselves.

29. The course that the Court should adopt in such cases (at the inquiry under the MHO) is to appoint the Official Solicitor the guardian ad litem instead of leaving the incapacitated person to his or her own devices. Provision is made for this by the Official Solicitor Ordinance (Cap 416). By section 4, the Official Solicitor's duties include a duty "to act, where so appointed by the Court, as provided in Parts 1 and 2 of Schedule 1". Schedule 1, Pt 1, para 1 lays down a duty "to act as guardian ad litem or next friend to any person under a disability of age or mental capacity, in proceedings before any court." Order 80 rule 3, confers an entitlement on the person so appointed to act as next friend or guardian ad litem.

The other Orders sought

30. At the hearing, we also dismissed Lily's renewed application for a stay and for associated interlocutory orders pending the hearing of the Appeals. We did so because we considered that Barnett J and Godfrey JA were both fully entitled to dismiss the stay application in May and June 1998 respectively. We see no grounds to grant a stay at present.

31. We also directed that Lily have leave to set down the pending Appeals (in CACV 143 and 205 of 1998) to be heard together provided that such Appeals be set down within 28 days of the date when this Judgment is handed down. As we indicated to her, the Appeals will automatically stand dismissed if they are not set down within this period. We direct that one day be reserved for the hearing of the aforesaid Appeals.