MORAL LUCK FINANCE LTD v. LAW KIN LEUNG

CACV 127 AND 128/2013

CACV 127/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 127 OF 2013

(ON APPEAL FROM DCCJ NO. 736 of 2011)

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D E C I S I O N

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Hon Cheung JA (giving Decision of the Court) :

1. This is the applicant’s application for leave to appeal to the Court of Final Appeal against our judgment of 28 January 2014 with reasons for judgment being given on 17 February 2014.

2. The applicant relied on the following grounds of great general and public importance :

(1)   Question 1:  In an application for an order for appointment of guardian ad litem under O.80, what is the correct approach and procedure which the Court should adopt in satisfying itself that the proposed patient is a mentally incapacitated person?

(2)   Question 2:  Without prejudice to the generality of Question 1, in such an application:-

(a)   Whether the Court should simply grant the order where (i) the proposed patient and the proposed guardian both consent to the appointment, (ii) there is adequate evidence from the applicant to support the application for an order appointing a guardian ad litem, and (iii) there is no evidence suggesting that the application is anything but a bona fide one.

(b)   Whether the other party (i.e. party other than the proposed patient and the proposed guardian) is entitled to participate in and dispute the application?

(c)   If the other party has adduced medical evidence conflicting with that of the applicant on the issue of the patient’s mental capacity, whether the Court needs to resolve such conflicts? and if so, how?

3. We do not consider that this point has been engaged in the present case.  In our view the approach advocated by the applicant, namely, the judge below should appoint the guardian because the applicant had indicated her consent and there was prima facie evidence of the defendant’s mental capacity is a blinkered approach and ignores the context of the application before the judge which was only made after judgment had been entered against the defendant by reason of his default.  Whatever may be said of the test to be applied in a usual case when a guardian applied for permission to defend the case on behalf of a person under disability, the judge clearly must exercise scrutiny in a situation like the present one where the parties (at a time when they were all legally represented) had expressly agreed to have an inquiry being conducted by him and where there was conflicting evidence on the mental condition of the defendant.  The judge was entitled to ensure that the Court process was not being abused.  This is more so when the only basis advanced by the applicant to set aside the judgment and stay execution of the judgment was solely on the ground that the defendant was a person under disability.  These two issues together with the appointment of guardian were the issues dealt with by the judge at the hearing on 10 August 2012.

4. The applicant also relied on the ‘or otherwise’ ground. The judge’s preference of one expert over the other cannot, in the context of this case, come within the extremely strict requirement in order to obtain leave on this ground.

5. Accordingly the application is refused.  Since the plaintiff did not ask for costs, there will be no order as to costs.