RE P

HCMP 136/1981

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 136 OF 1981

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J U D G M E N T

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1.  On 27 March 1981, the court appointed the Applicants as the committee for a mentally disordered person, the Respondent [“the MIP”].  The latest medical evidence shows that the MIP is still mentally incapable.

2.  One of the Applicants, Pang Chiu Tong passed away on 6  July  1996.  The other Applicant, Pang Kam Tong [“PKT”] did not take any step to inform the court until February 2005.  By a summons of 15 February  2005, PKT asked the court to remove Pang Chiu Tong as a member of the committee.

3.  The matter first came before me on 23 March 2005.  This court expressed concern that PKT is residing outside jurisdiction and there could be difficulties if he is appointed as the sole member of the committee.

4.  The following directions were given,

The Committee shall report by an affirmation within 28 days setting out the following information,

(a)     The present condition of the Respondent;

(b)    The financial position of the estate of the Respondent;

(c)     Whether some other person residing within the jurisdiction would be willing to act as an additional member of the committee.

5.  On 12 May 2005, solicitors for PKT wrote to inform the court that although they had duly notified PKT of the court’s directions, they had yet to receive the relevant instructions.

6.  On 17 May 2005, this court indicated that this was unsatisfactory and PKT should explain why he could not supply the information within the time available and how much time would he require.  Given the lapse of time between the death of Pang Chiu Tong and the report of the same to the court, the court naturally had queries as to whether the affairs of the MIP were properly administered.

7.  On 30 May 2005, solicitors for PKT replied and sent to the court a letter written by PKT dated 25 May 2005.  PKT informed the court that he was not in his place of residence between mid-March and mid-April.  He learnt of the court’s directions around 23 May 2005.  He asked for 28 days’ extension to prepare his affirmation.

8.  The matter was listed for hearing on 10 June 2005.  After hearing solicitor for PKT, this court directed PKT to file an account in respect of the estate of the MIP for the past three years within 28 days.  The court also asked the Official Solicitor to investigate into the affairs of the MIP.

9.  On 14 July 2005, solicitors for PKT wrote to inform the court that PKT was not in possession of any further information regarding the estate of the MIP apart from those set out in his affirmation of 1  February  2005.  That affirmation contained minimal information about the estate of the MIP.  It did not give any information about what had happened to the estate in the past three years.

10.  It was further mentioned in the letter of 14 July 2005 that the MIP has been living on Comprehensive Social Security Assistance since August 2001.

11.  The Official Solicitor filed his report on 3 November 2005.  Of the landed properties owned by the MIP, some of them had been resumed over the years between 1979 and 1985.  The Official Solicitor observed that the MIP did not appear to have been given his share of the compensation for the land resumption.  The MIP might also have entitlement to the estate of Pang Chiu Tong.  PKT is the administrator of the estate of Pang Chiu Tong.

12.  The MIP still has interest in the following properties,

(a)     1/9^th share of DD 51 Lot No.4703, a piece of vacant farmland;

(b)    1/9^th share of DD 51 Fanling Lot Nos. 336 and 343, with houses built on the land.

13.  Some relatives who were co-owners of the properties at Lot Nos. 336 and 343 are residing there without payment of any rent to PKT or the MIP.

14.  The Official Solicitor suggested the removal of PKT as a member of the Committee.

15.  Under Section 26B(1)(b) of the Mental Health Ordinance [“MHO”], the court may make an order to replace a committee by another committee or appointed the Official Solicitor as a committee in place of the existing one.

16.  Obviously, PKT should not continue to act as the committee of the estate of the MIP.  He has not been able to give an account for the affairs of the estate notwithstanding the court’s directions in March and June.  He delayed in reporting to the court the demise of Pang Chiu Tong.  He resides out of the jurisdiction, thereby rendering it difficult for this court to exercise supervision over him as to his administration of the estate.

17.  A committee holds a fiduciary position and its members are always subject to the court’s supervision.  Although the court will respect the managerial discretion given to a committee after it has been appointed, its members must be ready, able and willing to report to the court and act in accordance with directions from the court in administering the affairs of the estate of the MIP.  It would be wholly wrong for a committee to treat the properties of a MIP as his own properties.  It would also be wrong for a committee to refuse to render account when the court directs the same.

18.  In the present circumstances, this court considers that it should exercise the power under Section 26B(1)(b) of the MHO to replace PKT by the Official Solicitor as the committee for MIP.

19.  As Pang Chiu Tong was a member of the committee before he passed away, he also owed a duty to account to the court as well as the MIP regarding the compensation money for the resumed properties.

20.  The Official Solicitor as committee for the MIP is directed to inquire further into the compensation money with PKT and the estate of Pang Chiu Tong.  Further, investigation should be made regarding whether any occupation rent should be payable to the estate of the MIP regarding the use of Lot Nos. 336 and 343.