HO PO CHU v. TUNG CHEE HWA AND OTHERS

CACV 206/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL No. 206 OF 2005

(ON APPEAL FROM HCA34/2005)

______________________

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JUDGMENT

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Hon. Yeung JA:

1.  I have read the draft judgment of Yuen JA.  I agree with her conclusion and her reasons for reaching such a conclusion. 

Hon. Yuen JA:

2.  This action had been struck out by the Registrar on 18 March 2005. On the Plaintiff’s appeal, Deputy Judge B. Fung stayed the action (including the hearing of the appeal from the Registrar’s order) by means of a "debarring order" he issued against the Plaintiff under Order 80 rule 2 of the Rules of the High Court ("RHC").   This is the Defendants’ appeal from Deputy Judge Fung’s order which was made on 7 June 2005.  Although Deputy Judge Fung’s judgment was written in Chinese, proceedings in this court were conducted in English as a number of authorities in English were referred to us by counsel for the Defendants (who did not appear below).

3.  The relevant facts are as follows.  In 2004, the Plaintiff Miss Ho issued a writ against Sing Pao Newspapers Co Ltd.  In 2005, she issued a writ against the defendants in this action.

The Sing Pao case

4.  On 26 November 2004, the defendant in the Sing Pao case issued a summons to strike out the action on the grounds that it was scandalous, frivolous and vexatious and an abuse of process.

Debarring order in the Sing Pao case

5.  That summons was heard by Master Kwang who ordered on 5 May 2005 that the action be stayed under Ord. 80 r.2 RHC as he found that Miss Ho was a mentally incapacitated person whose action should be stayed until a next friend was appointed and solicitors were instructed.

6.  Miss Ho appealed.  Whilst she accepted that she has been suffering from mental illness, she submitted that her doctors’ reports indicated that she was coherent and that her condition was improving. 

7.  On 27 May 2005, Miss Ho’s appeal was heard by Deputy Judge L. Chan.   The deputy judge, after reading the medical reports exhibited by Miss Ho and her correspondence with the High Court, and after considering Ord.80 and the definition of "mental disorder" within the meaning of the Mental Health Ordinance ("MHO"), held that she was a mentally disordered person and that she was incapable of managing and administering her property and affairs.  Consequently he held (para. 14 of his judgment) that she was a "mentally incapacitated person" within the meaning of Ord. 80 r.2  and dismissed her appeal from the master’s order. 

This action

8.  Meanwhile, in this action (HCA 34/2005), the Defendants had issued a summons on 9 March 2005 to strike out the action on the grounds that the Indorsement on Writ disclosed no reasonable cause of action, was scandalous, frivolous and vexatious and was an abuse of the process of the court.

9.  Miss Ho filed voluminous affirmations in opposition, exhibiting amongst other things some medical reports relating to her mental condition (which I shall discuss later). 

10.  On 18 March 2005 the Registrar made an order in terms of the defendants’ summons, striking out the action.

Debarring order in this action

11.  Miss Ho appealed.  The appeal was heard by Deputy Judge Fung on 7 June 2005.  By that time, Deputy Judge Chan’s judgment had been handed down. 

12.  Deputy Judge Fung adopted a similar approach to that taken by Deputy Judge Chan.  He held that the most important affair that required Miss Ho’s management was this action, and that from the Indorsement on Writ, her affirmations, her letters and submissions, it was obvious that she was unable to distinguish between reality and illusion and to fully understand her mental condition.  He found that she was by reason of mental disorder incapable of managing her affairs (para. 11 of the judgment). 

13.  Deputy Judge Fung made an order that the action (and the hearing of the appeal before him) be stayed until Miss Ho could sue by her next friend and solicitors were instructed (para. 13).  However no directions were given for the appointment of a next friend.

Henry Chan v Lily-Ann Chan

14.  It would appear from Master Kwang’s order and Deputy Judge Chan’s judgment in the Sing Pao action, and from Deputy Judge Fung’s judgment in the present action, that they were not aware of the decision of this court (Mayo JA and Ribeiro J) in Chan Sai Lun Henry v Chan Wai Wah Lily-Ann [2000] 1 HKC 453. 

15.  As the editors of Hong Kong Civil Procedure 2004 put it succinctly in §80/2/2 of Vol.1, it was held in that case that a court can apply Ord. 80 to debar a person from bringing legal proceedings without a next friend on grounds of mental incapacity only after that person has been determined to be a mentally incapacitated person under the procedures laid down in the MHO.

Mental Health Ordinance Part II procedures

16.  The procedures referred to by the court in Henry Chan v Lily-Ann Chan (p.458) are contained in Part II of the MHO.  Those procedures require the following steps to be taken before the court can determine whether a person is incapable, by reason of mental incapacity, of managing and administering his property and affairs:

(1)	an application being made (only by persons in a specified class) for an inquiry, commencing with an application to court for detailed directions; the application for an inquiry must be supported by
	-	medical certificates from 2 registered medical practitioners, 1 of whom must be a specialist in the diagnosis of mental disorder or the assessment of mental handicap, as the case may be;
	-	evidence of the relatives (as defined in s.2(1) MHO) or next-of-kin of the person in question; and
		evidence of the property of the person in question: s.7;
	-
(2)	after directions are given by the court, service of a notice of inquiry on the person in question:s.8,
(3)	possibly an examination of the person in question:s.9 and
(4)	after the inquiry, (if the evidence justifies it) a decision by the court that the person in question is incapable, by reason of mental incapacity, of managing and administering his property and affairs: s.10.  A committee of the estate may be appointed to exercise powers over the person’s property and affairs: s.11.
(For a more detailed exposition of these steps, see Director of Social Welfare v Official Solicitor, also known as Re: Madam A, HCMP 44/2004, unrep.).

Appeal

17.  Miss Ho had not been the subject of an MHO inquiry and had not been determined to be a mentally incapacitated person under those procedures.  As Deputy Judge Fung was bound by the decision of the Court of Appeal in Henry Chan v Lily-Ann Chan, he had no power to make a debarring order against her. 

18.  Miss Ho did not however appeal the debarring order.  Neither did she take steps to appoint a next friend.  The effect was that the action was left in a state of limbo.  

19.  On 6 July 2005, the Defendants lodged a notice of appeal.  They  sought a restoration of the Registrar’s strike-out order.  The first ground of appeal (based on the decision in Henry Chan v Lily-Ann Chan) was that Deputy Judge Fung had no jurisdiction to make a debarring order.  The second ground of appeal was that Deputy Judge Fung should have considered the merits of Miss Ho’s appeal against the Registrar’s order, and had he done so, he would inevitably have dismissed her appeal. 

Approach to Henry Chan v Lily-Ann Chan

20.  This court is bound by its own decisions, and on the face of it, this court would be bound by the decision in Henry Chan v Lily-Ann Chan.  However there are exceptions to the rule.  The first is where a decision is in ignorance or forgetfulness of an inconsistent statutory provision.  The second is where there is a manifest slip or error, especially in cases involving the jurisdiction of the court.

21.  As Lord Donaldson MR said in Rickards v Rickards [1990] Fam 194, 203

"

The importance of the rule of stare decisis in relation to the Court of Appeal’s own decisions can hardly be overstated.  We now sometimes sit in eight divisions and, in the absence of such a rule, the law would quickly become wholly uncertain.  However the rule is not without exceptions, albeit very limited. These exceptions were considered in Young v Bristol Aeroplane Co Ltd [1944] KB 718; Morelle Ltd v Wakeling [1955] 2 QB 3769 and more recently, in Williams v Fawcett [1986] QB 604 ... These decisions show that this court is justified in refusing to follow one of its own previous decisions not only where that decision is given in ignorance or forgetfulness of some inconsistent statutory provision or some authority binding upon it, but also, in rare and exceptional cases, if it is satisfied that the decision involved a manifest slip or error.

In previous cases the judges of this court have always refrained from defining this exceptional category and I have no intention of departing from that approach save to echo the words of Lord Greene MR in Young’s case, p.729 and Sir Raymond Evershed MR in Morelle’s case, p.406, and to say that they will be of the rarest occurrence.  Nevertheless some general considerations are relevant. ... Third, an erroneous decision which involves the jurisdiction of the court is particularly objectionable, ... because it will involve ... a breach of the court’s statutory duty if the true view is that the court is wrongly declining jurisdiction.  Such a decision ... is thus in a special category".

22.  It would appear from the decision of the court in Henry Chan v Lily-Ann Chan that the court assumed that Ord. 80 r.1 simply adopted wholesale the definition of “mentally incapacitated person” in the MHO and assumed that that status could only be determined after an inquiry.  It held (p458E-F):

"... 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 s.7 ...".  (Emphasis added).

As I will discuss in detail later, that assumption was inconsistent with statutory provisions in two respects.  First, the draftsman of Ord. 80 r.1 did not adopt wholesale the definition of “mentally incapacitated person” in the MHO.  He only incorporated the MHO for the technical definitions of “mental disorder” and “mental handicap” contained in the MHO.   Secondly and in any event, under the MHO, a person could be defined as being a “mentally incapacitated person” without an inquiry (s.2).  The court failed to consider the provision in s.2 MHO where a "mentally incapacitated person" could also mean:

"for all other purposes [i.e. other than Part II purposes], a patient or mentally handicapped person, as the case may be".

A "patient" means a person suffering or appearing to be suffering from mental disorder. It is not necessary for present purposes to consider when a person should be regarded as "suffering" from mental disorder and when he should be regarded as "appearing to be suffering" from mental disorder. The point is that the court in Henry Chan v Lily-Ann Chan thought that the MHO defined a person as a "mentally incapacitated person” only after an inquiry, which view is inconsistent with s.2, and it also thought that Ord. 80 r.1 incorporated wholesale the definition of “mentally incapacitated person” in the MHO when it did not.

23.  Further, the decision in Henry Chan v Lily-Ann Chan meant in effect that the court had no jurisdiction to make a debarring order under Ord. 80 unless an inquiry under the MHO had been held and had determined that the litigant was mentally incapacitated. Mr Godfrey Lam counsel for the Defendants has in the best traditions of the Bar referred us to some English decisions (especially Ungoed-Thomas J’s decision in In re S (F.G.) [1973] 1 WLR 178) which had not been referred to the court in Henry Chan v Lily-Ann Chan.  It is also clear from the judgment in  Henry Chan v Lily-Ann Chan that the judge who made the order (Godfrey JA) had not given any reasons (p.457I-458A) and counsel who appeared for Henry Chan did not advance any grounds to support the debarring order.  Had the court been apprised of those decisions (which I shall discuss later) , in my respectful view it would not have come to its decision binding Ord. 80 to Part II MHO procedures, as that decision was manifestly in error. 

Issue

24.  The issue in the present appeal is essentially this - is a decision under s.10 MHO (after an inquiry under s.7 of the Part II MHO procedures) a pre-requisite to a debarring order under Ord. 80?

Discussion

25.  The court in Henry Chan v Lily-Ann Chan held that "Ord. 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 ... MHO procedures" (p.459C-D).  With great respect to the court, I am compelled to conclude that that decision was reached per incuriam.

26.  First, the wording of Ord. 80 does not refer at all to MHO procedures but only to the technical definitions of "mental disorder" and "mental handicap" contained in the MHO.  Further, if by holding that “Order 80 does not operate separately from the MHO” (p.459D), the court in Henry Chan v Lily-Ann Chan meant that Part II MHO procedures were necessary not only for a debarring order but whenever a mentally incapacitated litigant sues by his next friend or defends by a guardian ad litem, then that would also be incorrect.  The court permits proceedings to be brought by a next friend (or defended by a guardian ad litem) if they are prima facie for the benefit of a person under disability  without the need for mental incapacity to be first established by an inquiry. 

Wording of Order 80

27.  I start with the wording of Ord. 80.

(1)	Ord. 80 r. 2(1) provides that a “person under disability” may not bring a claim except by his next friend or defend a claim except by his guardian ad litem.
(2)	A “person under disability” is defined in Ord. 80 r. 1 as “a person who is ... a mentally incapacitated person”.
(3)	A “mentally incapacitated person” is defined in Ord. 80 r. 1 as “ a mentally disordered person or a mentally handicapped person (within the meaning of the Mental Health Ordinance (Cap. 136)) who, by reason of mental disorder or mental handicap, as the case may be, is incapable of managing and administering his property and affairs”.  This definition may be broken down into 2 component parts:
	(A)	the person in question is a “mentally disordered person” or a “mentally handicapped person” within the meaning of the MHO; and
	(B)	because of that mental disorder or mental handicap, he is incapable of managing and administering his property and affairs.

Reference to MHO for definitions only

28.  It can be seen immediately that Ord. 80 r. 1 does not define a “mentally incapacitated person” as a person who has been found to be so after an inquiry under Part II MHO.  In fact even within the MHO, the definition of a "mentally incapacitated person" is not so confined (s.2(1) MHO). 

29.  The reference to the MHO in Ord. 80 is only for the definition of the terms "mentally disordered person" and "mentally handicapped person".  That was held by Ungoed-Thomas J. in In re S (F.G).  He considered the difference in the definition of "patient" in the rules of court (rule 105(1) of the Matrimonial Causes Rules, which was similar to Ord. 80 r. 1 of the Rules of the Supreme Court) and in the Mental Health Act 1959, which fortified the point.  That difference does not apply in Hong Kong but the point remains that as a matter of wording, "the reference in ... Ord. 80 r. 1 to the Mental Health Act is only for the purpose of ascertaining the meaning of mental disorder, whose definition in the Act appears in section 4 as ‘mental illness, arrested or incomplete development of mind, psychopathic disorder, and any other disorder or disability of mind’" (p.181B).

Order 80 rule 3(8)(c)(i) shows no inquiry necessary

30.  In fact, Ord. 80 r.3(8)(c)(i) RHC shows that an inquiry is not needed before a mentally incapacitated person can sue by his next friend (or defend by his guardian ad litem).  That rule sets out the documents that should be filed in the Registry before a person can appear by his next friend or guardian ad litem.  It provides that if a person proposing to be next friend or guardian ad litem has not been authorized to act as such under Part II MHO, there must be filed in the Registry a certificate made by the solicitor for the mentally incapacitated person certifying (amongst other things) that he believes the person to whom the certificate relates  is a mentally incapacitated person, giving the grounds of his belief.

31.  If "Ord. 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 ... MHO procedures" (p.459C-D Henry Chan v Lily-Ann Chan), Ord. 80 r.3(8)(c)(i) would make no sense.

Same definition does not mean Part II MHO inquiry necessary

32.  The MHO contains detailed technical definitions of the terms "mental disorder" and "mental handicap": s.2(1). 

-	“Mental handicap” means sub-average general intellectual functioning (which is specifically defined in the MHO) with deficiencies in adaptive behaviour;
-	“Mental disorder” means
	(a)	mental illness;
	(b)	a state of arrested or incomplete development of mind, which amounts to a significant impairment of intelligence and social functioning which is associated with abnormally aggressive or seriously irresponsible conduct on the part of the person concerned;
	(c)	psychopathic disorder (which is specifically defined in the MHO); or
	(d)	any other disorder or disability of mind which does not amount to mental handicap.

33.  Since these definitions are extended to Ord. 80 under r. 1, they have to be met before Component (A) is satisfied.  Component (B) of Ord. 80 r. 1 requires that the court has to be satisfied that because of that mental disorder or mental handicap, the person in question is incapable of managing and administering his property and affairs.  That is the same test as in s.7 of the MHO.

34.  The question then is: even though the wording of Ord. 80 does not in terms require MHO procedures to be undertaken, does the fact that the definitions of "mental incapacity" in Ord. 80 r.1 and in s.7 of the MHO are identical lead to the conclusion that an inquiry under Part II is a pre-requisite to a debarring order under Ord.80?

35.  I do not see anything that would lead inexorably to that conclusion.  An MHO inquiry is not restricted to evidence of the mental condition of the person in question.  There must also be "evidence of the relatives or next-of-kin and the property": s.7(5).  "Evidence of the relatives or next-of-kin and the property" means evidence of the relatives, next-of-kin, property and affairs of the person whose condition is the subject of the application, as well as particulars of the circumstances giving rise to the application: s.7(6).  The term "relatives" refers to a large group of persons: s.2(1).

36.  By reason of the stringent steps involved, an inquiry under s.7 is often an expensive and time-consuming exercise.  Although the court has introduced some cost-saving measures (see Re Madam A), a substantial amount of time and costs are still unavoidable.  This is because the result of a s.10 decision under the MHO is to place the estate of the mentally incapacitated person out of his reach.  There is no reason, as a matter of law or public policy, why it would be necessary to require evidence of relatives or next-of-kin or property before a court considers whether a debarring order should be made.

Evidence required to meet definitions of "mental disorder" and "mental handicap" for debarring order

37.  I accept that a person on the receiving end of a debarring order would have his access to the courts restricted to a certain extent and that is not a power that the court should exercise lightly without clear evidence to justify it, especially when it also visits upon the person in question the stigma of mental incapacity.

38.  For the purposes of an inquiry under the MHO that a person in question is suffering from a "mental disorder" or "mental handicap", the MHO requires the following evidence:

(1)	the application for an inquiry must be accompanied by (amongst other things) 2 “medical certificates”: s.7(5);
(2)	“medical certificate” is defined in the MHO as “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”: s.7(6);
(3)	at least 1 of those medical certificates must be given “by a practitioner approved ... by the Hospital Authority ... as having special experience in the diagnosis and treatment of mental disorder, or having special experience in the assessment of mental handicap, as the case may be”: s.2(2).

39.  Although a debarring order only stays the proceedings until a next friend is appointed and solicitors are instructed, and so has a less draconian effect than a s.10 MHO decision, given the effect on the person’s direct access to the court and the stigma involved, in my view the court should require medical evidence of the same quality (even if not with the same formality) before it would make a debarring order.   Certainly I cannot envisage a court making a debarring order without any medical evidence. 

Use of debarring orders

40.  In my view a debarring order should be used only in exceptional cases - for instance, where the other party to the proceedings has applied to set aside the writ or stay the proceedings on the basis that the person in question is mentally incapacitated (a procedure suggested in Atkin’s Court Forms 2^nd ed. Vol. 26, 1996 issue on Mental Health and Mental Incapacity p.16 §20) and the court considers that the person in question has a possibly valid case which he was unable to fully understand or explore, so that he would benefit from the assistance of a next friend or guardian ad litem (e.g. the Official Solicitor) and legal assistance from solicitors. 

41.  I leave open the issue what steps the court may take if the person in question does not voluntarily undergo a medical examination of his mental condition.  There were insufficient materials before this court to consider this sensitive topic.

42.  In most cases where the court is simply faced with bizarre proceedings, the striking-out procedures under Ord. 18 r. 19 and (in suitable cases) Restricted Applications Orders and Restricted Proceedings Orders would be adequate to safeguard the process of the court and the resources of the other party.

Order 80 does operate separately from the MHO

43.  I then come to the passage in Henry Chan v Lily-Ann Chan where the court held that "Ord. 80 does not operate separately from the procedures of the MHO" (p.459).  Was the court intending to hold that an inquiry under Part II MHO and a s.10 decision was necessary even when a person is simply seeking to institute proceedings as next friend (or defend an action as guardian ad litem) of a person who is said to be mentally incapacitated? 

44.  The court in Henry Chan v Lily-Ann Chan was concerned with a debarring order and I do not think it intended to indicate that the MHO procedures applied in all proceedings affecting a mentally incapacitated person, even to say, typical personal injuries actions where a person said to be mentally incapacitated is suing by his next friend. 

45.  Order 80 r.2 is of wide application.  It operates in simple personal injuries cases where a next friend seeks to bring proceedings to recover damages, and also in cases where litigation which can only be described as bizarre is brought by persons who do not appear to have any locus standi.  Whilst the test of "mental incapacity" is identical, it does not follow that the evidence needed to pass that test must be the same in all situations.

46.  In a situation where an act in legal proceedings is clearly for the benefit of the person in question, it is unnecessary for formal medical evidence to be adduced to show that the plaintiff needs by reason of mental incapacity to sue by a next friend or defend by a guardian ad litem, let alone for time and costs to be expended on a Part II inquiry.

47.  The principle on which the court allows a party to sue by a next friend is set out in Porter v Porter (1888) 37 Ch D 420.  That was a partition action where sale in lieu of partition was sought.  One of the parties E.E. Porter sought the order for sale also as next friend of his brother W.H. Porter as he was said to be of unsound mind.  W.H. Porter and another party Florence Porter applied to strike out W.H. Porter’s name as it was contended that there had been no inquisition finding that he was of unsound mind.  The Court of Appeal held that as a partition was prima facie for the benefit of W.H. Porter as the holder of an undivided share, the action could proceed.         

48.  Bowen LJ held (p.429):

"The application made by [counsel for W.H. Porter and Florence Porter] is at this early stage to take the name of the supposed person of unsound mind suing by his next friend off the proceedings, on the broad ground that an action for partition cannot be brought by a next friend on behalf of a person who is of unsound mind not so found by inquisition ...

... what is the true ground upon which a next friend is allowed to ask for the intervention of the Court on behalf of a person of unsound mind not so found by inquisition?  It seems to me to be this, as was said in substance in Beall v Smith [Law Rep. 9 Ch. 85] and Jones v Lloyd [Law Rep. 18 Eq. 265] that, when there is a person of unsound mind, who although not found to be of unsound mind by inquisition nevertheless stands in need of the protection or the intervention of the Court as regards his property real or personal, or as regards any portion of his property — then, supposing he would if sane be entitled to the intervention of the Court, a third person, a stranger may come forward and do that which is clearly for the benefit of the person of weak mind".

Cotton LJ held (p.427):

"What is the principle on which the Court allows a person of unsound mind to sue by a next friend?  Where the person is incapable of acting for himself the Court allows any one of the Queen’s subjects to take proceedings on his behalf as regards that which is prima facie for his benefit.  In my opinion, a partition is prima facie for the benefit of a holder of an undivided share. ...

Now, is it for the plaintiff bringing such an action to shew that it is really and actually in the particular case for his benefit?  I think not.  It is for those who suggest that the action is not duly constituted to shew that it cannot be really for the benefit of the person of unsound mind.  I do not say what would be required to justify the court in coming to that conclusion, but that I think is what a person who objects to the use of the name of a person of unsound mind as plaintiff ought to make out, in order to induce the Court to say that if the person of unsound mind is the only plaintiff the action must not go on, or that if he is one of several plaintiffs his name must be struck out".

49.  It was also held by the Court of Appeal in Didisheim v London and Westminster Bank [1900] Ch 15 that "the notion that either at law or in equity an action or suit cannot be successfully maintained, if brought in the name of a lunatic not so found by inquisition, without the sanction of the Court, is not supported by authority or sound principle" (p.44).

50.  I have referred earlier to Order 80 rule 3(8) RHC which sets out the documents that have to be filed in the Registry before a mentally incapacitated person can appear by his next friend or guardian ad litem.  Where there has been no inquiry under Part II MHO and no order made under that Ordinance authorizing a person to act as next friend or guardian ad litem, the solicitor has to file a certificate giving grounds for his belief that the person the subject of the certificate is mentally incapacitated.  Obviously a solicitor would not do so unless there was medical evidence to support his belief, but I see no reason why formal medical evidence of the type required for Part II MHO procedures would be necessary when the act is clearly for the benefit of the person in question.

51.  If the opposite party to an action desires to challenge the authority of the next friend or guardian ad litem, he can apply for a stay or dismissal of the proceedings on the basis of lack of authority of the solicitors to file the action or defence (Richmond v Branson [1914] 1 Ch 968, Hong Kong Civil Procedure 2004 Vol. 1, §80/2/2).

Flexible approach to evidence of mental incapacity under Order 80

52.  It is therefore clear in my view that the court should adopt a flexible approach to the evidence of mental incapacity under Ord. 80.  Where mental incapacity is relevant because a debarring order is sought, the court would expect clear medical evidence to prove the mental incapacity because the effect of a debarring order is to restrict a person’s direct access to the court.  However, where mental incapacity is relevant because an action is started by the next friend (or defended by the guardian ad litem) of a person said to be suffering mental incapacity and that act is obviously for the person’s benefit, the court would not initially require formal medical evidence, although it would of course be prudent for the next friend or guardian ad litem (and the solicitor acting under his instructions) to have medical evidence available before the event in case of challenge.

Application to this case

53.  I then turn to the question in this case: do the materials in the present case satisfy the requirements for the debarring order which I have set out above?  There were before Deputy Judge Fung 4 reports:

(1)	a medical report dated 12 August 2004 issued by Dr William Lo Tak-lam, a consultant psychiatrist with the Hospital Authority;
(2)	a psychologist’s report dated 30 September 2004 issued by Mr Chong Heung-chuen, a clinical psychologist also with the Hospital Authority;
(3)	a further medical report dated 24 February 2005 issued by Dr Lo;
(4)	a further medical report dated 14 April 2005 issued by Dr Lo.

54.  In my view, that evidence does not satisfy the requirements of a debarring order under Ord. 80.  Mr Chong is not in any event a "registered medical practitioner" as defined under the Medical Registration Ordinance Cap. 161.  Although Dr Lo is “a practitioner approved ... by the Hospital Authority ... as having special experience in the diagnosis and treatment of mental disorder": s.2(2), and his medical reports indicate that he has been treating Miss Ho for paranoid schizophrenia which is a mental illness and hence a "mental disorder" under Component (A) of Ord. 80 r. 1, none of his reports states that by reason of that mental disorder, she is incapable of managing and administering her property and affairs, which is required under Component (B) of that rule.  I do not think that the court can make an assumption such as that without medical evidence, as there may be wide-ranging implications beyond the action itself.

Order

55.  For those reasons, I am unable to agree with Deputy Judge Fung that the medical evidence necessary for the making of a debarring order under Ord. 80 has been established.  The appeal must be allowed and his order set aside.

56.  That leaves the question whether the Registrar’s order should stand. This court has all the powers of the court below.  We have read the materials that Miss Ho has filed with the court, in particular the Indorsement on Writ.  We have also heard Miss Ho’s submissions in this court. 

57.  Miss Ho says that the Defendants or some of them have not adhered to the Basic Law and so should be dismissed from their posts.  She says that since the government has not offered anyone else as replacement for the post of Chief Executive, she should be given the post (until retirement age) without the need for her to stand for election.  She claims as damages the salaries that she would be able to draw in that post.  It is obvious that the indorsement does not disclose any reasonable cause of action and the affirmations show that the action is frivolous and vexatious and an abuse of the process of the court.  I would dismiss Miss Ho’s appeal from the Registrar’s order.

58.  Although the Defendants’ appeal has been allowed, I do not think it would be fair to order that Miss Ho bear the costs of the appeal as the debarring order was made by the judge on his own motion.   However I would order that the Defendants are to have the costs of the hearing before Deputy Judge Fung which was Mis Ho’s appeal from the Registrar’s order.

Addendum

59.  As a matter of completeness, I would add that this decision is not to be taken as a decision that the order in Henry Chan v Lily-Ann Chan setting aside the debarring order was wrongly made.  Without expressing any concluded views on that case, it would appear to me that the debarring order was in any event liable to be set aside on other grounds, such as the fact that it was made in the absence of the person debarred without any prior notice to her (p.456F-G) and apparently without any medical evidence relating to her condition (p.457B).  However it should be noted that the court also held that the Mental Health Act under which Godfrey JA made his order was no longer applicable to Hong Kong.  In fact, as the judge’s order was made in July 1998, that was before the date when the relevant provision of the Mental Health (Amendment) Ordinance 1997 came into operation (1 February 1999).

60.  Further, I wish to add that I agree with the view of the court in Henry Chan v Lily-Ann Chan that, where a debarring order is made by the court under Ord. 80, steps should be taken for the appointment of a next friend (or guardian ad litem as the case may be) so that the proceedings would not be left in a state of limbo, a situation which would not be to the benefit of either party or the court.

61.  I would also like to thank Mr Lam for his assistance to the court.  

Hon. Lam J:

62.  I have the benefit of reading the draft judgment of Yuen JA and I agree with Her Ladyship’s analysis and the order proposed. I only wish to add some observations as to what the court could do when it is faced with a litigant who is not represented by a next friend and there is suggestion that he or she might suffer from mental incapacity.

63. In my view, the court has a number of options and it is a matter of discretion for the court to decide which is the most appropriate option to adopt in the circumstances of the case. The options are,

(a)	Strike out the claims if it is obviously vexatious;
(b)	If mental incapacity is clearly established by way of medical evidence and there is no dispute by the litigant as to his mental incapacity, and if the action is not vexatious, the court may stay the action pending either appointment of next friend under Order 80 or an inquiry and appointment of committee under Part II of MHO;
(c)	If mental incapacity is disputed, the litigant must be given a fair chance to defend his or her case on that issue. The matter as to capacity can still be resolved within the context of Order 80 (see Atkin’s Court Forms Vol.26 1996 Issue Paras.20 and 23). Alternatively, the court may stay the action pending the holding of a Part II inquiry;
(d)	If the evidence as to mental incapacity is inadequate, the court may allow the action to be proceeded on the basis that the challenge based on disability is unsubstantiated.
However, it is not open to the court to stay the action without any provisions for how a next friend would be appointed and how an application for inquiry under Part II would be made. Otherwise, the case could be held in abeyance forever and the other parties to the litigation would be prejudiced.

64. In some cases, there are advantages in having an inquiry under Part II of the MHO, see Re LHY  HCMP 869 of 2005, 23 December 2005. On the other hand, for a simple case, it would be more appropriate to appoint a next friend.

65. However, irrespective of the route adopted (Order 80 or Part II of MHO), there could be practical difficulties when,

(a)	The medical evidence is not forthcoming; or
(b)	No-one is willing to act as the next friend or the committee.
Further, the court cannot initiate a Part II inquiry although it may refer the case to the Official Solicitor or the Director of Social Welfare for consideration.

66.  The assistance of the Official Solicitor might be enlisted in some cases to deal with the problem in (b). However, if the litigant were unwilling to undergo medical examination, it would still present a problem. One possible answer is that if medical evidence is insufficient, the court has to proceed on the basis that the litigant is not under any disability and Order 80 has no application. Whilst that may be so for a challenge based on disability under Order 80, it may be arguable that the court in the exercise of its protective jurisdiction under Part II of the MHO should in certain circumstances have the power to order examination under Section 9 of the MHO even though the requirement of medical evidence cannot be fully satisfied when the application under Part II is filed.

67.  As Yuen JA observed, the question of medical examination has not been fully argued before this court and the issue would have to be considered in the future.

68.  If a next friend is appointed, those acting for next friend should note the limited authority of a next friend in dealing with the fruits of a judgment, see Leather v Kirby [1965] 1 WLR 1489; Re LWO [2005] 3 HKC 174.

69.  On the facts of the present case, I have no doubt that the Registrar adopted the appropriate course in striking out the Plaintiff’s claim.